Rodrigues v. The Incorporated Village of Mineola et al
ORDER granting in part and denying in part 29 Motion to Dismiss for Failure to State a Claim For the reasons set forth herein, defendants' motion to dismiss the Amended Complaint is granted in part and denied in part. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/16/2017. (Hammond, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
No 16-CV-1275 (JFB)(GRB)
ZACARIAS RODRIGUES AND MORSMAN REALTY CORP.,
THE INCORPORATED VILLAGE OF MINEOLA, ET AL.,
MEMORANDUM AND ORDER
June 16, 2017
JOSEPH F. BIANCO, District Judge:
Plaintiff Zacarias Rodrigues filed the
Complaint in this action on March 15, 2016.
(ECF No. 1.) After this Court dismissed the
Complaint with leave to amend on October
25, 2016 (ECF Nos. 21–22), Rodrigues filed
the Amended Complaint on November 30,
2016 (ECF No. 25 (“Am. Compl.”)), which
added his company, Morsman Realty Corp.
(“Morsman”) (collectively with Rodrigues,
“plaintiffs”) as a plaintiff. Presently before
the Court is a motion to dismiss the Amended Complaint filed by defendants the Incorporated Village of Mineola (“Village”) and
Daniel B. Whalen, the Village’s Superintendent of the Department of Buildings (collectively “defendants”). 1 For the reasons set
The Amended Complaint also names Mayor Scott
P. Strauss as a defendant, but plaintiffs have
acknowledged that the claim against Mayor Strauss
was based on Strauss’s “involvement with respect to
Plaintiffs’ now dismissed claim” and, consequently,
“consent to dismissing Defendant Strauss as an individual Defendant in this matter.” (ECF No. 27.)
forth below, the motion is granted in part
and denied in part. In particular, the motion
is granted with respect to the claims
(1) against Mayor Strauss, (2) based on the
2006 summons, and (3) against Whalen to
the extent they stem from the parking citations. The motion is denied as to the claims
against Whalen and the Village regarding
the summonses for the building violations
and as to the Village regarding the parking
Accordingly, all claims in the Amended Complaint
against Mayor Strauss are dismissed.
In addition, at oral argument, plaintiff conceded that
the Amended Complaint fails to state any claims
based on a summons he received in 2006 because the
statute of limitations expired on that claim before the
Complaint was filed. See Cloverleaf Realty of N.Y.,
Inc. v. Town of Wawayanda, 572 F.3d 93, 94 (2d Cir.
2009) (“[T]he statute of limitations for a claim under
§ 1983 that accrued in New York is three years.”
(quoting Jaghory v. New York State Dep’t of Educ.,
131 F.3d 326, 331 (2d Cir.1997))). Therefore, the
claims based on the 2006 summons are dismissed.
(“Code”). (Id. ¶ 20.) Building Inspector
Keith Gessner issued the summons. (Id.
¶ 21.) On July 22, 2014, Rodrigues received
another summons from the Village, this one
issued by Building Inspector Thomas Murphy, for “allow[ing] discharge into the Villages [sic] separate storm sewer system . . .
materials other than storm water.” (Id.
¶¶ 24–25.) On December 1, 2014, Rodrigues received additional summonses from
the Village via Murphy for operation of a
non-permitted use of a garbage corporation
in an M-District and for permitting a tenant
to deposit waste on private property. (Id.
¶ 32.) It was later determined that, although
garbage trucks were being stored on the
Property, there was no garbage being stored
or dumped there. (Id.)
The following facts are taken from the
Amended Complaint. The Court assumes
them to be true for purposes of deciding this
motion and construes them in the light most
favorable to plaintiffs, the non-moving party.
Rodrigues is of Portuguese descent.
(Am. Compl. ¶ 11.) He is the sole owner
and shareholder of Morsman, which owns
property at 75 Windsor Avenue, Mineola,
New York (the “Property”). (Id. ¶¶ 6, 13.)
In 2005, plaintiffs applied for a permit to
operate a concrete mixing plant on the Property, but the Village denied the application.
(Id. ¶ 14.) Plaintiffs eventually entered into
a stipulation of settlement with the Village
whereby they were allowed to use the Property as an outdoor storage facility for the
“open storage of trucks, machinery, equipment and materials . . . provided they are not
used for the production of cement.” (Id.
Plaintiffs’ non-Portuguese neighbors
have not received summonses even though
they have spilled concrete production material onto public streets and into storm drains.
(Id. ¶¶ 22, 25–26.) In addition, at least one
neighbor, D&A Sand and Gravel (“D&A”),
produces and stores concrete at their facility
at 328 Sagamore Avenue (“328 Sagamore”),
but its owner only has a permit to do so at a
different facility located at 335 Sagamore
Avenue (“335 Sagamore”). (Id. ¶ 30.)
Since the time the parties entered into
the stipulation, inspectors from the Village
have frequently visited the Property. (Id.
¶ 17.) Several of plaintiffs’ neighbors also
operate storage facilities, some without permits, but they have not received frequent
visits from inspectors. (Id. ¶ 18.) Plaintiffs’
neighbors are not of Portuguese descent.
(Id. ¶ 19.) When Rodrigues raised concerns
about unfair treatment with defendant
Whalen, Whalen responded, “mind your
own business.” (Id. ¶ 18)
Rodrigues has also received over 25
parking citations from the Village from September 2013 to February 2015 totaling over
$6,000 in fines. (Id. ¶ 34.) The citations
were issued for, inter alia, double parking
and improper parking of a commercial vehicle. (See, e.g., id. ¶¶ 36–47.) Plaintiffs’
neighbors have not received citations to the
extent Rodrigues has even though some of
them have engaged in similar behavior. (Id.
On September 28, 2006, Rodrigues received a summons as owner of Morsman,
which alleged that he “allow[ed] for the accumulation of filth, dirt, concrete dust and
stones upon a public place (Windsor Avenue) within the Village of Mineola” in violation of the Village’s Municipal Code
B. Procedural History
Rodrigues filed the Complaint on March
15, 2016. (ECF No. 1.) Defendants’ initial
motion to dismiss was granted on October
pleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id.
25, 2016. (See ECF Nos. 21–22.) Plaintiffs
filed the Amended Complaint on November
30, 2016 (ECF No. 25), and defendants
moved to dismiss on February 3, 2017 (ECF
No. 29). Plaintiffs filed an opposition on
March 28, 2017 (ECF No. 35), and defendants replied on April 11, 2017 (ECF No. 37).
Oral argument was held on April 20, 2017.
(ECF No. 38.) bThe Court has fully considered the parties’ submissions.
The Amended Complaint sets forth
claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) for violations of the Equal Protection Clause of the Fourteenth Amendment and municipal liability against the Village based on its selective enforcement of
laws, rules, regulations, and ordinances
against plaintiffs because of Rodrigues’s
national origin. (Am. Compl. ¶¶ 71–76.)
Specifically, plaintiffs claim that the Village
selectively targeted them for both violations
of the Village’s Code and traffic citations.
As set forth below, the Court concludes that,
although the Amended Complaint fails to
state a claim based on the Village’s issuance
of traffic citations with respect to Whalen
individually, it adequately states Equal Protection against Whalen based on his alleged
selective enforcement of summonses for
Code violations. The Amended Complaint
also adequately alleges municipal liability
against the Village for both the Code violations and the parking citations.
II. Standard of Review
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept
the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g.,
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a
plausible set of facts sufficient ‘to raise a
right to relief above the speculative level.’”
Operating Local 649 Annuity Trust Fund v.
Smith Barney Fund Mgmt. LLC, 595 F.3d
86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.
A. Individual Liability
As a threshold matter, defendants argue
that Whalen cannot be held individually liable because (1) the Amended Complaint
does not adequately allege that Whalen was
personally involved in the constitutional violations; and (2) Whalen is entitled to qualified immunity. For the reasons outlined below, the Court concludes that, although the
Amended Complaint fails to state a claim
against Whalen based on the traffic citations, the allegations against him regarding
the Code violations suffice to survive defendants’ motion to dismiss.
The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal,
setting forth two principles for a district
court to follow in deciding a motion to dismiss. 556 U.S. 662 (2009). First, district
courts must “identify[ ] pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth.” Id.
at 679. “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.”
Id. Second, if a complaint contains “well-
1. Personal Involvement
In order to state a plausible claim for relief under Section 1983, a plaintiff must allege the personal involvement of the defendant in the alleged constitutional deprivation.
Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010) (“It is well settled in this Circuit that
personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” (quoting Farrell v. Burke, 449
F.3d 470, 484 (2d Cir. 2006)). “Personal
involvement” may be established by evidence of a supervisor’s direct participation
in the challenged conduct or “by evidence of
an official’s (1) failure to take corrective
action after learning of a subordinate’s unlawful conduct, (2) creation of a policy or
custom fostering the unlawful conduct,
(3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others
by failing to act on information regarding
the unlawful conduct of subordinates.”
Hayut v. State Univ. of New York, 352 F.3d
733, 753 (2d Cir. 2003). A supervisor can
also be held liable where he “authorized or
approved challenged misconduct.” Bermudez v. City of N.Y., 783 F. Supp. 2d 560, 602
(S.D.N.Y. 2011) (citing Stevens v. New
York, 691 F. Supp. 2d 392, 400 (S.D.N.Y.
2009)). On the other hand, an “individual
cannot be held liable for damages under
Section 1983 merely because he held a high
position of authority.” Back v. Hastings on
Hudson Union Free Sch. Dist., 365 F.3d
107, 127 (2d Cir. 2004). Where a Section
1983 claim fails to allege the personal involvement of the defendant, it fails as a matter of law. See Johnson v. Barney, 360 F.
App’x 199, 201 (2d Cir. 2010).
by the building inspectors. Bermudez, 783
F. Supp. 2d at 602. Specifically, the
Amended Complaint alleges that (1) the Village’s building inspectors cannot issue
summonses without obtaining approval from
Whalen in his capacity as Superintendent of
Buildings (Am. Compl. ¶ 65); (2) building
inspectors must report any relevant violations of the Code to Whalen, who then decides whether any action will be taken (id.
¶ 66); and (3) it is listed in Whalen’s job duties that he must determine against whom
the Code will be enforced (id. ¶ 69). Although plaintiffs do not specifically allege
that Whalen authorized the building inspectors’ actions in this case, this allegation can
be reasonably inferred from their other allegations, namely Rodrigues’s receipt of the
summonses and the process required for issuing them as outlined in the Amended
Complaint. See Cleveland, 448 F.3d at 521
(on motion to dismiss, court must draw all
reasonable inferences in plaintiff’s favor).
In other words, because building inspectors
must obtain Whalen’s approval before issuing a summons, it can be fairly inferred from
plaintiff’s receipt of a summons that Whalen
approved it. This is sufficient to establish
his personal involvement. See, e.g., Whiting
v. Inc. Vill. of Old Brookville, 79 F. Supp. 2d
133, 137 (E.D.N.Y. 1999) (holding that
plaintiff adequately pled personal involvement where defendant, inter alia, “approv[ed] the charges filed by [a subordinate
Furthermore, even if plaintiffs had not
alleged that Whalen approved the summonses, the Amended Complaint still adequately
alleges that he exhibited “deliberate indifference to the rights of others by failing to
act on information regarding the unlawful
conduct of subordinates.” Hayut, 352 F.3d
at 753. In particular, plaintiffs assert that,
when Rodrigues complained about unfair
treatment, Whalen told him to “mind [his]
own business.” (Am. Compl. ¶¶ 18, 68.)
Here, the Amended Complaint sufficiently alleges personal involvement by defendant Whalen with respect to the selective
enforcement of the Code. First, plaintiffs’
allegations indicate that Whalen “authorized
or approved [the] challenged misconduct”
Such a response to the unlawful conduct of
subordinates plainly is sufficient to demonstrate personal involvement to the extent
necessary to survive a motion to dismiss.
See Hill v. Taconic Developmental Disabilities Servs. Office, 283 F. Supp. 2d 955, 962
(S.D.N.Y.) (holding that plaintiff’s Section
1983 claim survived summary judgment
where defendant “exhibited deliberate indifference to the plaintiff’s rights by failing to
act on information indicating that her constitutional right to equal protection was being
did not violate the law.”). As the Second
Circuit has noted, “[t]his doctrine is said to
be justified in part by the risk that the ‘fear
of personal monetary liability and harassing
litigation will unduly inhibit officials in the
discharge of their duties.’” McClellan v.
Smith, 439 F.3d 137, 147 (2d Cir. 2006)
(quoting Thomas v. Roach, 165 F.3d 137,
142 (2d Cir. 1999)). Thus, qualified immunity is not merely a defense, but rather is
also “an entitlement not to stand trial or face
the other burdens of litigation.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). Accordingly, the availability of qualified immunity
should similarly be decided by a court “[a]t
the earliest possible stage in litigation.”
Hunter v. Bryant, 502 U.S. 224, 227 (1991).
The Amended Complaint does not, however, contain any allegation from which it
can be inferred that Whalen played a role in
the issuance of traffic citations against Rodrigues. Therefore, the motion to dismiss
the Amended Complaint is granted with respect to the claims against Whalen arising
out of the traffic citations. See Stevens, 691
F. Supp. 2d at 401; Raymond v. City of N.Y.,
No. 15-CV-6885-LTS-HBP, 2017 WL
892350, at *5 (S.D.N.Y. Mar. 6, 2017).
Nonetheless, the Second Circuit has emphasized that “a defendant presenting an
immunity defense on a Rule 12(b)(6) motion
instead of a motion for summary judgment
must accept the more stringent standard applicable to this procedural route.” McKenna
v. Wright, 386 F.3d 432, 436 (2d Cir. 2004);
see also McCray v. City of New York, Nos.
03-CV-9685 (DAB), 03-CV-9974 (DAB),
03-CV-10080 (DAB), 2007 WL 4352748, at
*18 (S.D.N.Y. Dec. 11, 2007) (“A defendant
asserting a qualified immunity defense at the
12(b)(6) stage faces a formidable hurdle.
Because the evidence supporting a finding
of qualified immunity is normally adduced
during the discovery process and at trial, the
defense of qualified immunity [usually]
cannot support the grant of a Fed. R. Civ. P.
12(b)(6) motion for failure to state a claim
upon which relief can be granted.” (citations
and ellipsis omitted)). In particular, the
facts supporting the defense must be clear
from the face of the complaint. In addition,
in such situations, “plaintiff is entitled to all
reasonable inferences from the facts alleged,
not only those that support his claim, but
also those that defeat the immunity defense.” McKenna, 386 F.3d at 436. The
burden is on the defendant to show “that the
2. Qualified Immunity
Defendants next argue that Whalen is
entitled to qualified immunity because the
Amended Complaint does not allege he engaged in conduct that violated clearly established law. Under the doctrine of qualified
immunity, government actors may be
shielded from liability for civil damages if
their “conduct did not violate plaintiff’s
clearly established rights, or if it would have
been objectively reasonable for the official
to believe that his conduct did not violate
plaintiff’s rights.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003); see
also Fielding v. Tollaksen, 257 F. App’x
400, 401 (2d Cir. 2007) (“The police officers, in turn, are protected by qualified immunity if their actions do not violate clearly
established law, or it was objectively reasonable for them to believe that their actions
origin does not violate the Fourteenth
Amendment, and no official of reasonable
competence would disagree.” Id.
challenged act was objectively reasonable in
light of the law existing at that time.” Savino
v. Town of Southeast., 983 F. Supp. 2d 293,
309 (S.D.N.Y. 2013) (quoting Rosen v. City
of New York, 667 F. Supp. 2d 355, 362
Here, as discussed in more detail below,
plaintiffs have adequately alleged that
Whalen selectively enforced the Code
against them because of Rodrigues’s nationality. Accordingly, given that the right
against selective enforcement of a statue
based on nationality was clearly established
before Whalen approved the summonses, it
would have been “unreasonable [for him] to
believe that applying or enforcing a law
based on someone’s national origin does not
violate the Fourteenth Amendment.” Id.
Accordingly, Whalen is not entitled to qualified immunity at this stage of the litigation.
Defendants emphasize that, to defeat
qualified immunity, a plaintiff must show
that “the violative nature of particular conduct is clearly established.” (Defs.’ Mem.
Supp. Mot. to Dismiss Am. Compl., ECF
No. 31 (“Defs.’ Br.”), at 13 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).).
They further argue that the Amended Complaint does not specifically allege that
Whalen approved the summonses with discriminatory intent, and, thus, fails to show
that he violated clearly established law. (Id.
B. Equal Protection
Plaintiffs’ Equal Protection claim alleges
that defendants violated their right to equal
protection by selectively enforcing the Code
against them because of Rodrigues’s nationality. As set forth below, the Court concludes that the Amended Complaint adequately sets forth a selective enforcement
As a threshold matter, “the prohibition
against the application of a neutral law because of someone’s race or national origin
was previously established, as was the prohibition against selective enforcement of a
law for the same reasons” well before
Whalen’s alleged approval of the summonses in this case. Savino, 983 F. Supp. 2d at
308 (citing Yick Wo v. Hopkins, 118 U.S.
356, 373–74 (1886); LeClair v. Saunders,
627 F.2d 606, 610 (2d Cir. 1980)). Thus, in
Savino, the court rejected a defendant’s
qualified immunity arguments on summary
judgment where “a trier of fact could reasonably determine that [the defendant] applied the zoning laws against [the plaintiff]
. . . because of [the plaintiff’s] nationality.”
Id. The court further held that the jury
“could reasonably conclude that [the defendant’s] actions in enforcing the zoning
code . . . were unreasonable in light of the
aforementioned clearly established law.” Id.
In the event the jury made these factual findings, the court continued, it would be “unreasonable to believe that applying or enforcing a law based on someone’s national
The Second Circuit has “described selective enforcement as a ‘murky corner of
equal protection law in which there are surprisingly few cases.’” Diesel v. Town of
Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000)
(quoting LeClair v. Saunders, 627 F.2d 606,
608 (2d Cir. 1980)). Nevertheless, it is wellsettled that plaintiffs must meet a twopronged test in order to successfully demonstrate selective enforcement under the Fourteenth Amendment. Cine SK8 v. Town of
Henrietta, 507 F.3d 778, 790 (2d Cir. 2007).
Specifically, “plaintiffs must show both
(1) that [they were] treated differently from
other similarly situated businesses and
(2) that ‘such differential treatment was
based on impermissible considerations such
as race, religion, intent to inhibit or punish
the exercise of constitutional rights, or malicious or bad faith intent to injure a person.’”
Id. (quoting Harlen Assocs. v. Inc. Vill. of
Mineola, 273 F.3d 494, 499 (2d Cir. 2001)).
Supp. 2d 451, 463 (N.D.N.Y. 1999), for example, the court held that a plaintiff produced adequate evidence to show that similarly situated individuals were treated differently to support her selective enforcement
claim. In that case, the plaintiff’s evidence
indicated that numerous white homeowners
openly operated businesses in residential
areas without use variances, but the town
only enforced its zoning ordinance against
the plaintiff, a black woman. Id. at 462–63;
see also Mosdos, 815 F. Supp. 2d at 697–98
(holding that other businesses the plaintiffs
identified were “similarly situated” because
the complaint alleged that their construction
projects “were similar in size or scope to the
[plaintiffs’] proposed development” yet the
village permitted them “to proceed without
requiring [environmental] compliance,”
which they had required from plaintiffs).
1. Similarly Situated
First, “[a] selective enforcement claim
requires, as a threshold matter, a showing
that the plaintiff was treated differently
compared to others similarly situated.”
Church of the American Knights of the Ku
Klux Klan v. Kerik, 356 F.3d 197, 210 (2d
Cir. 2004). In particular, a plaintiff must
include allegations “comparing [himself] to
individuals that are ‘similarly situated in all
material respects.’” Sebold v. City of Middletown, No. 3:05-CV-1205, 2007 U.S. Dist.
LEXIS 70081, at *81 (D. Conn. Sept. 21,
2007) (quoting Graham v. Long Island R.R.,
230 F.3d 34, 39 (2d Cir. 2000)). Nevertheless, “similarly situated does not mean identical, but rather a reasonably close resemblance of the facts and circumstances of
plaintiff’s and comparator’s cases, to the
extent that an objectively identifiable basis
for comparability exists. In other words,
Plaintiffs must identify comparators whom a
prudent person would think were roughly
equivalent.” Savino, 983 F. Supp. 2d at 305
(citations, brackets, and ellipses omitted);
see also Mosdos Chofetz Chaim, Inc. v. Vill.
of Wesley Hills, 815 F. Supp. 2d 679, 696
(S.D.N.Y. 2011) (“To satisfy this lessdemanding test in the selective enforcement
context, plaintiffs ‘must identify comparators whom a prudent person would think
were roughly equivalent[, but] [p]laintiff[s]
need not show an exact correlation between
[themselves] and the comparators.’” (alterations in original)). Furthermore, “[a]s a
general rule, whether items are similarly situated is a factual issue that should be submitted to the jury.” Harlen, 273 F.3d at 499
Here, plaintiffs have adequately identified “similarly situated” individuals and
companies in the Amended Complaint that
have not received frequent visits from inspectors or summonses for the same violations of the Code. (See Am. Compl. ¶¶ 18,
25–30.) In particular, the Amended Complaint lists six neighboring businesses that
“operate outdoor storage facilities on their
property without being frequently visited by
village inspectors, despite the fact that many
neighbors are operating without permits.”
(Id. ¶ 18.) Furthermore, although the Village issued a summons to plaintiffs for “allow[ing] for the accumulation of filth dirt,
concrete dust and stones upon a public
place” (id. ¶ 20), it did not do so for their
neighbors even though Rodrigues “observed
[them] spill concrete production material
onto public streets” (id. ¶ 22; see also id.
Furthermore, plaintiffs have identified
similarly situated individuals not of Portuguese national origin who did not receive
parking citations to the extent plaintiffs did.
In Riley v. Town of Bethlehem, 44 F.
Amended Complaint states a plausible claim
with respect to the first prong of the selective enforcement test.
Specifically, plaintiffs allege that, from September 2013 through February 2015, Rodrigues received over 25 parking citations
for such conduct as double parking and improperly parking commercial vehicles. (Id.
¶¶ 34–55.) “Neighboring property owners,”
however, were not “issued tickets . . . despite engaging in the same behavior.” (Id.
¶ 57.) Plaintiffs specifically cite “multiple
unregistered and unlicensed vehicles” belonging to a neighboring property at 100
Windsor Avenue “that have been blocking
the sidewalk for years” without receiving
tickets. (Id. ¶ 59.) The owner of that property “is not of Portuguese national origin.”
(Id. ¶ 61.)
2. Impermissible Motive
Under the second prong of the test, a
plaintiff must demonstrate that the “differential treatment was based on impermissible
considerations such as race, religion, intent
to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent
to injure a person.” Cine SK8, 507 F.3d at
790 (citations omitted); see also Freedom
Holdings Inc. v. Int’l Tobacco Partners,
Ltd., 357 F.3d 205, 234 (2d Cir. 2004). “To
prevail, plaintiffs must prove that the disparate treatment was caused by the impermissible motivation.” Bizzarro v. Miranda, 394
F.3d 82, 87 (2d Cir. 2005). One impermissible motive is a discriminatory purpose,
which “implies that the decisionmaker selected or reaffirmed a particular course of
action at least in part because of . . . its adverse effects upon an identifiable group.”
Adler v. Kent Vill. Hous. Co., 123 F. Supp.
2d 91, 98 (E.D.N.Y. 2000) (quoting Estate
of Rosenbaum by Plotkin v. City of N.Y., 975
F. Supp. 206, 223 (E.D.N.Y. 1997)).
In short, plaintiffs have identified companies in the same area that operate the same
type of business as plaintiffs and have engaged in the same unlawful activities for
which plaintiffs received summonses and
parking citations, but they did not receive
similar treatment from the Village. The
Court concludes that, if these allegations are
credited, a “prudent person [c]ould think”
plaintiffs “were roughly equivalent” to their
neighbors. Savino, 983 F. Supp. 2d at 305;
see also Riley, 44 F. Supp. 2d at 463;
Mosdos, 815 F. Supp. 2d at 697. 2 Thus, the
In Thomas v. Venditto, 925 F. Supp. 2d
352, 365 (E.D.N.Y. 2013), for instance, the
court held that the plaintiffs adequately set
forth an impermissible purpose where the
complaint alleged that “at least seven other
homes in [the] [p]laintiffs’ neighborhood
[were] being used illegally as multi-family
homes, [but] criminal charges [were] only
. . . brought against Mr. Thomas.” It further
alleged that “each of the comparators was
Caucasian, whereas Mr. Thomas is African
American and Mrs. Thomas is Puerto Rican.” Id. Thus, the court concluded that
Defendants argue that plaintiffs are not similarly
situated to their neighbors because plaintiffs entered
into a stipulation with the Village that permitted the
Village to conduct regular inspections. (Defs.’ Br. at
8.) They also point out that plaintiffs were convicted
of illegally operating a concrete mixing plant prior to
signing the stipulation. (Id.) These distinctions are
not, however, enough for the Court to conclude, as a
matter of law, that plaintiffs’ Equal Protection claim
fails. First, the Amended Complaint alleges that at
least one other neighbor, D&A, also illegally operates
a concrete mixing plant at 328 Sagamore (id. ¶ 28,
30), so plaintiffs’ alleged illegal operation of a concrete facility is insufficient, at this stage, to distinguish all of their non-Portuguese neighbors. Second,
even if no other company had engaged in the alleged
unlawful conduct, “plaintiffs need not show an exact
comparators,” as noted above. Mosdos, 815 F. Supp.
2d at 696. Thus, in this case, these purported dissimilarities do not allow this issue to be resolved on a
motion to dismiss.
“the Complaint allege[d] that Defendants’
enforcement of the Town Code is racially
motivated.” Id.; see also Tower Properties
LLC v. Vill. of Highland Falls, No. 14-CV04502 NSR, 2015 WL 4124499, *9–12
(S.D.N.Y. July 7, 2015) (complaint adequately alleged impermissible purpose
where it set forth differential treatment and
racially suggestive statements made by
mayor); Purdie v. Brown, No. 14 CIV. 8490
NSR, 2015 WL 6741875, at *7 (S.D.N.Y.
Nov. 3, 2015) (complaint adequately alleged
discriminatory motive where “Plaintiff alleged the arrests of two African–American
police officers; humiliating treatment following his arrest; and a number of nonAfricanAmerican [sic] comparators who
were not arrested”).
“the court presume[d] that [plaintiff] possesse[d] the requisite good faith belief that
discovery will confirm her allegations of
selective enforcement”); Bissinger v. City of
N.Y., No. 06 CIV. 2325 (WHP), 2007 WL
2826756, at *9 (S.D.N.Y. Sept. 24, 2007)
(plaintiffs adequately alleged selective enforcement claim where they alleged that
“along with other photograph vendors, they
were arrested, ticketed, and harassed when
legally selling photographs, while other
vendors, selling at the same times and places, were not”); Vertical Broad., Inc. v. Town
of Southampton, 84 F. Supp. 2d 379, 390
(E.D.N.Y. 2000) (declining to dismiss
“equal protection claim [that was] not sufficiently factually developed at this juncture
[motion to dismiss] for full analysis”).
Here, as in Thomas, plaintiffs have adequately identified other businesses that have
allegedly engaged in the same type of conduct as plaintiffs but did not receive the
same treatment. Furthermore, also like in
Thomas, plaintiffs have alleged that the
owners of these businesses are of a different
national origin. (Am. Compl. ¶ 19.) At this
early stage of the proceedings, the Court
concludes that these allegations set forth a
plausible claim with respect to the second
prong of the selective enforcement test. See
Thomas, 925 F. Supp. 2d at 365; see also
Collins v. W. Hartford Police Dep’t, 380 F.
Supp. 2d 83, 93 (D. Conn. 2005) (“[I]n light
of the liberal pleading requirements of Fed.
R. Civ. P. 8, disposition of a selective enforcement claim at the motion to dismiss
stage should be done only with great circumspection.”); see, e.g., Rizvi v. Town of
Wawarsing, No. 112CV1396GLSRFT, 2013
WL 12177175, at *5 & n.10 (N.D.N.Y. Jan.
15, 2013) (declining to dismiss where plaintiff simply “allege[d] that the Town is only
applying the licensing requirements on the
Motel, and the impetus behind this selective
enforcement is her protected characteristics”
despite “gaps in these allegations” because
In sum, plaintiffs have asserted a plausible selective enforcement claim, adequately
alleging similarly situated comparators of a
different national origin who were treated
differently. Therefore, defendants’ motion
to dismiss their Equal Protection claim
based on the issuance of the summonses is
C. Municipal Liability
Defendants also move to dismiss plaintiffs’ Section 1983 claim for municipal liability against the Village under Monell v.
Department of Social Services of the City of
New York, 436 U.S. 658, 694–95 (1978).
Plaintiffs argue that the Village is liable for
Whalen’s actions with respect to the building violations because Whalen is a “final
policymaker” for the Village.
The Second Circuit has held that a plaintiff may demonstrate municipal liability under Monell by showing that a municipal
“policymaker” violated plaintiff’s constitutional rights:
poses of § 1983.” (citation omitted) (quoting
Pembaur v. City of Cincinnati, 475 U.S.
469, 481–82 (1986))). “Whether the official
in question possessed final policymaking
authority is a legal question, which is to be
answered on the basis of state law. . . . The
relevant legal materials include state and
local positive law, as well as custom or usage having the force of law.” Jeffes v.
Barnes, 208 F.3d 49, 57 (2d Cir. 2000), cert.
denied, 531 U.S. 813 (2000) (citations omitted). Specifically, “‘[t]he matter of whether
the official is a final policymaker under state
law is to be resolved by the trial judge before the case is submitted to the jury.’”
Richardson v. Metro. Dist. Comm’n, No. 300-CV-1062 (JCH), 2003 U.S. Dist. LEXIS
12757, at *20 (D. Conn. July 23, 2003)
(quoting Jeffes, 208 F.3d at 57).
Where plaintiffs allege that
their rights were deprived not
as a result of the enforcement
of an unconstitutional official
policy or ordinance, but by
the unconstitutional application of a valid policy, or by a
[municipal] employee’s single tortious decision or
course of action, the inquiry
focuses on whether the actions of the employee in
question may be said to represent the conscious choices
of the municipality itself.
Such an action constitutes the
act of the municipality and
therefore provides a basis for
municipal liability where it is
taken by, or is attributable to,
one of the [municipality’s]
Furthermore, where a municipal official
“‘has final authority over significant matters
involving the exercise of discretion,’ his
choices represent government policy.”
Gronowski, 424 F.3d at 296 (quoting
Rookard v. Health and Hosps. Corp., 710
F.2d 41, 45 (2d Cir. 1983)); see also Diodati
v. City of Little Falls, No. 6:04-CV-446
(FJS/DEP), 2007 U.S. Dist. LEXIS 4322, at
*6 (N.D.N.Y. Jan. 18, 2007) (“A policymaker is an individual whose ‘decisions, at
the time they are made, for practical or legal
reasons constitute the municipality’s final
decisions.’” (quoting Anthony v. City of New
York, 339 F.3d 129, 139 (2d Cir. 2003)).
Moreover, “the official in question need not
be a municipal policymaker for all purposes.
Rather, with respect to the conduct challenged, he must be responsible under state
law for making policy in that area of the
[municipality’s] business.” Jeffes, 208 F.3d
at 57. “Thus, the court must ask whether
[the] governmental official [is a] final policymaker for the local government in a particular area, or on [the] particular issue involved in the action.” Id.; see also Doe v.
City of Waterbury, 453 F. Supp. 2d 537, 543
Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 126 (2d Cir. 2004); see also
Gronowski v. Spencer, 424 F.3d 285, 296
(2d Cir. 2005) (“Municipal liability may attach under § 1983 when a [municipal] policymaker takes action that violates an individual’s constitutional rights.”); Davis v.
Lynbrook Police Dep’t, 224 F. Supp. 2d
463, 478 (E.D.N.Y. 2002) (“A plaintiff can
show a municipal custom, policy or practice
by establishing that an official who is a final
policymaker directly committed or commanded the constitutional violation. . . . .”).
Indeed, “[e]ven one episode of illegal retaliation may establish municipal liability under
§ 1983 if ordered by a person whose edicts
or acts represent official city policy.”
Gronowski, 424 F.3d at 296; see also Amnesty Am., 361 F.3d at 126 (“Thus, even a
single action by a decisionmaker who ‘possesses final authority to establish municipal
policy with respect to the action ordered’ is
sufficient to implicate the municipality in
the constitutional deprivation for the pur10
(D. Conn. 2006) (“The critical inquiry is not
whether an official generally has final policymaking authority; rather, the court must
specifically determine whether the government official is a final policymaker with respect to the particular conduct challenged in
the lawsuit.”). However, “[a]lthough the
official in question does not have to be a final policymaker for all purposes, but only
with respect to the conduct challenged,
simply exercising discretion in an area
where that official is not the final policymaker under state law cannot, by itself, establish municipal liability.” Barry v. N.Y.
City Police Dep’t, No. 01 Civ. 10627
(CBM), 2004 U.S. Dist. LEXIS 5951, at *43
(S.D.N.Y. Apr. 6, 2004); see also Diodati,
2007 U.S. Dist. LEXIS 4322, at *6 (“An individual who merely has discretion to handle
a particular situation is not a policymaker.”);
Richardson, 2003 U.S. Dist. LEXIS 12757,
at *20 (“Mere discretion in the performance
of his duties is not sufficient. However, the
official need only have the power to make
official policy on a particular issue.”). On
the other hand, where a policymaker “exceeded the bounds of the authority granted
to him,” his actions “cannot be fairly said to
represent official policy.” City of Waterbury,
453 F. Supp. 2d at 544 (“[A]lthough
Giordano is generally a final policymaker
for Waterbury, Giordano’s specific actions
in this case cannot be fairly said to represent
official policy, because under state law, he
exceeded the bounds of the authority granted
The Court disagrees. Courts routinely
hold that an official with final enforcement
authority qualifies as a “final policymaker”
for Monell purposes. For example, in New
Creation Fellowship of Buffalo v. Town of
Cheektowaga, N.Y., No. 99-CV-460A(F),
2004 WL 1498190, at *64 (W.D.N.Y. July
2, 2004), the court held that a building inspector qualified as a “final policymaker”
with respect to a particular ordinance where
that ordinance stated that it was to be “administered and enforced by the Town Building Inspector.” The court reasoned, “as the
Town has by ordinance delegated to its
Building Inspector, Ulatowski, sole responsibility for enforcement of the . . . Ordinance, it follows that Ulatowski is a final
policymaker . . . under the Monell doctrine.”
Id. The fact that a party could appeal a decision of the Building Inspector to the Town
Board did not alter the court’s conclusion.
Id.; see also, e.g., Kern v. Layne, No.
06CIV.13490(GAY), 2009 WL 4884149, at
*1 (S.D.N.Y. Dec. 16, 2009) (“[B]ased upon
the scope of authority vested in the Building
Inspector under the Village Code with respect to building permits and certificates of
occupancy, defendant Layne is a final municipal policymaker for purposes of establishing municipal liability under § 1983.”);
Rodriguez v. Margotta, 71 F. Supp. 2d 289,
298 (S.D.N.Y. 1999) (indicating that an official would qualify as a final policymaker if
he is “empowered to write the building code,
set policy for enforcement of the code, or to
bring about prosecutions under the code”);
Town of Orangetown v. Magee, 665 N.E.2d
1061, 1068 (N.Y. 1996) (holding that a
“Building Inspector . . . implement[ed]
Town Policy” where the zoning code
“vest[ed] the Building Inspector, alone, with
the authority to revoke building permits”).
Defendants argue that the Village vests
its Board of Trustees with final policymaking authority, and that, as Superintendent of
Buildings, Whalen is only “responsible for
enforcing certain provisions of this Code.”
(Defs.’ Br. at 15 (quoting Vill. of Mineola
Code § 115-15).) From this, they argue that
he cannot qualify as a “final policymaker”
for purposes of Monell liability.
Here, the Amended Complaint adequately alleges that Whalen is a final policymaker.
Specifically, plaintiffs allege that
Whalen has the final say in whether sum11
monses shall issue for certain violations of
(See Am. Compl. ¶ 66
(“[B]uilding inspectors must report any possible violations to Defendant DANIEL
WHALEN, who then issues the decision on
what action if any is to be taken.”).) Thus,
like the ordinance in New Creation Fellowship, the Village’s Code “delegate[s] to
[Whalen] sole responsibility for enforcement
of the” provisions at issue in this litigation.
2004 WL 1498190, at *64. Moreover, there
is nothing in the Village’s Code, much less
the Amended Complaint, to suggest that
Whalen’s decisions are subject to an appeal
to the Village’s Board, thus making this case
even more straightforward than New Creation Fellowship. See 2004 WL 1498190, at
*64 (holding that a building inspector was
still a final policymaker even though his decisions were subject to appeal). In short,
plaintiffs have a plausible claim that the
Code affords Whalen the power “to bring
about prosecutions under the code” by finally approving summonses, Margotta, 71 F.
Supp. 2d at 298, thus making him a final
policymaker “with respect to the conduct
challenged” in the relevant area of the Village’s business, Jeffes, 208 F.3d at 57. 3 Ac-
cordingly, the motion to dismiss the Section
1983 claim against the Village is denied.
For the reasons set forth above, defendants’ motion to dismiss is granted with respect to the claims (1) against Mayor
Strauss, (2) based on the 2006 summons,
and (3) against Whalen to the extent they
stem from the parking citations. The motion
is denied as to the claims against Whalen
and the Village regarding the summonses for
the building violations and as to the Village
regarding the parking citations.
JOSEPH F. BIANCO
United States District Judge
Dated: June 16, 2016
Central Islip, NY
Plaintiffs are represented by Jonathan A.
Tand and Gary R. Novins, Tand & Associates, 990 Stewart Avenue, Suite 130, Garden
City, NY 11530. Defendants are represented by Steven C. Stern, Kevin Levine, and
Susan Hull Odessky, Sokoloff Stern LLP,
179 Westbury Avenue, Carle Place, NY
With respect to the parking citations, defendants
only argue that plaintiffs have not adequately asserted
“final policymaker liability” to support a Monell
claim. The Court concludes, however, that the
Amended Complaint sufficiently alleges a different
basis for Monell liability in regards to the parking
citations, namely that the Village has “a longstanding
practice or custom” of national origin discrimination
in the issuance of such citations. Hurdle v. Bd. of
Educ. of City of N.Y., 113 F. App’x 423, 425 (2d Cir.
2004); see also Donohue v. Manetti, No. 15-CV-636
(JFB)(GRB), 2016 WL 740439, at *5 (E.D.N.Y. Feb.
24, 2016) (summarizing applicable standard for Monell liability based on a municipal policy or custom).
In particular, the Amended Complaint contains detailed factual allegations of over 20 citations Rodrigues received between 2013 and 2015 that his
non-Portuguese neighbors did not receive even
though they engaged in the same conduct. (See Am.
Compl. ¶¶ 34–63.) This is sufficient, at this stage, to
state a Monell claim against the Village with respect
to the parking citations. See Donohue, 2016 WL
740439, at *5 (“[T]o survive a motion to dismiss,
plaintiff cannot merely allege the existence of a municipal policy or custom, but ‘must allege facts tending to support, at least circumstantially, an inference
that such a municipal policy or custom exists.’”
(quoting Santos v. New York City, 847 F. Supp. 2d
573, 576 (S.D.N.Y. 2012))).
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