Sharp et al v. The Incorporated Village of Farmingdale

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS : IT IS HEREBY ORDERED, with respect to the individual plaintiffs, that defendant Peterson's and the Village defendants' motions to dismiss (Dkt. Nos. 15 and 17, respectively) are granted, the feder al claims are dismissed with prejudice, and any state law claims are dismissed without prejudice. IT IS FURTHER ORDRED, with respect to the corporate plaintiffs, that counsel for the corporate plaintiffs has thirty (30) days from the date of this Ord er to determine whether the corporate plaintiffs wish to proceed on the claims in the amended complaint. If so, the Courtwill allow defendants to renew (by letter) their previously submitted motion to dismiss and will give corporate plaintiffs' counsel an opportunity to respond on behalf of the corporate plaintiffs.. Ordered by Judge Joseph F. Bianco on 9/29/2017. (Bollbach, Jean)cm by chambers

FILED

IN CLERK'S Ot=F/CE
U.S. DISTRICT COURT E.O.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JOHN SHARP, MORGAN SHARP, 217 MAIN
STREET, LLC, and WK.MF, INC.,

LGNG ISbAN9 QFFICE

Plaintiffs,

ORDER
16-CV-2994 (JFB) (AKT)

-againstINCORPORATED VILLAGE OF FARMINGDALE,
FORMER FARMINGDALE VILLAGE MAYOR
GEORGESTARKIE,ROBERTPETERSON,and
FARMINGDALE VILLAGE CLERK
BRIAN HARTY,
Defendants.

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JOSEPH F. BIANCO, District Judge:
On June 9, 2016,pro se plaintiffs John Sharp and Morgan Sharp (together, "plaintiffs" or
"individual plaintiffs") and 217 Main Street, LLC and WKMF, Inc. (together, "corporate
plaintiffs") filed a complaint in this action against the Incorporated Village of Farmingdale (the
"Village"), alleging causes of action for violations of various federal constitutional rights
pursuant to 42 U.S.C. §§ 1983 and 1985, as well as violations of New York State, Nassau
County, and Incorporated Village of Farmingdale law. (Compl., Dkt. No. 1.) On August 5,
2016, plaintiffs filed an amended complaint, adding former Farmingdale Village Mayor George
Starkie, Robert Peterson, and Farmingdale Village Clerk Brian Harty (the "individual
defendants," together with the Village, "defendants") as named defendants in this action, once
again asserting causes of action for violations of various federal constitutional rights 1 pursuant to

1
Specifically, plaintiffs alleged that defendants violated their rights to petition the government for a redress of
grievances; procedural due process; substantive due process; equal protection; and protection against unjust takings.

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42 U.S.C. §§ 1983 and 1985, as well as violations ofNew York State, Nassau County, and
Incorporated Village of Farmingdale Law. (Am. Compl., Dkt. No. 9.) On July 21, 2016, the
Village filed its initial motion to dismiss. (Dkt. No. 6.)
On September 15, 2016, defendants filed their respective motions to dismiss. (Dkt. Nos.
15-20.) Defendant Peterson also submitted a "Notice to Pro Se Litigant who Opposes a Rule 12
Motion Supported by Matters Outside the Pleadings." (Dkt. No. 16.) Plaintiffs submitted their
opposition to defendants' respective motions to dismiss on October 19, 2016 (Dkt. No. 22), and
defendants filed their respective replies on October 28, 2016 and October 31, 2016 (Dkt. Nos. 23
and 24). By Order dated October 6, 2016, the Court referred defendants' motions to dismiss to
Magistrate Judge Tomlinson for a report and recommendation. (Dkt. No. 21.)2
On August 21, 2017, Magistrate Judge Tomlinson issued a Report and Recommendation.
("R&R," Dkt. No. 27.) The R&R recommended that the Court grant defendants' motions to
dismiss, in part, and deny defendants' motions to dismiss, in part. (Id at 1.) Specifically, the
R&R recommended that the motions to dismiss be granted as to individual plaintiffs John and
Morgan Sharp, and that defendants' motions to dismiss be denied as to corporate plaintiffs 217
Main Street, LLC and WKMF, Inc. because corporations must be represented by duly licensed
counsel. (Id at 1-2.) The R&R further recommended, however, that the corporate plaintiffs be
given 30 days to retain counsel, and that in the event the corporate plaintiffs fail to retain
counsel, that defendants' motions to dismiss the amended complaint be granted in their entirety. 3
(Id. 2.)

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The Court also referred the Village's initial motion to dismiss to Magistrate Judge Tomlinson, however, in light of
the fact that plaintiffs filed an amended complaint within 21 days of service ofthe Village's motion to dismiss,
Magistrate Judge Tomlinson deemed the Village's initial motion to dismiss moot. (Jan. 17, 2017, Electronic Order.)
3
The R&R did not consider any information outside of the parties' pleadings, and thus determined that conversion
to a motion for summary judgment was not necessary. (R&R 13).

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On September 7, 2017,pro se plaintiffs filed objections to the R&R. ("Pis. Objs.," Dkt.
No. 29.) On September 20, 2017, the Village defendants filed an opposition to plaintiffs'
objections. ("Village Defs. Opp. Pis. Objs.," Dkt. No. 32.) On September 21, 2017, defendant
Peterson filed an opposition to plaintiffs' objections, adopting and incorporating the legal
arguments and case law set forth in the Village defendants' opposition to plaintiffs' objections.
("Def. Peterson Opp. Pis. Objs.," Dkt. No. 34.) On September 20, 2017, Lawrence E. Kelly,
Esq. submitted letters noticing his appearance on behalf of the corporate plaintiffs. (Dkt. Nos. 30
and 31. )4 The Court has fully considered the parties' submissions.
For the reasons set forth below, with respect to the individual plaintiffs, the Court adopts
the well-reasoned and thorough R&R's findings and recommendations that (1) individual
plaintiffs' federal claims are time-barred; (2) the Court decline to exercise supplemental
jurisdiction over any state law claims in the absence of any viable federal claims; and (3) the
Court grant defendants' motions to dismiss as to all defendants without leave to replead, given
any amendment would be futile in light of the R&R's finding and recommendation that
plaintiffs' federal claims are time-barred. With respect to the motions to dismiss the claims
brought by the corporate plaintiffs, the Court agrees with the R&R that those motions should not
be considered given the absence of legal representation by the corporations, and they are denied

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By letter dated September 17, 2017 (filed on September 20, 2017), prose plaintiff John Sharp indicated his intent
to secure counsel to represent the corporate plaintiffs before the Court-ordered deadline. (Dkt. No. 33.) As noted,
the corporate plaintiffs retained Lawrence E. Kelly, Esq. as counsel. (See Dkt. Nos. 30 and 31.) In the same letter,
plaintiff John Sharp also claimed that defendant Peterson, who he claims was never an employee of the Village, is
represented by the same counsel as the Village defendants-Kenneth E. Pitcoff of Morris Duffy Alonso & Faleyin violation of the New York State Constitution, Article VIII, Section 1, which provides, in part, that "No ... village
... shall give or loan any money or property to or in aid of any individual .... " (Dkt. No. 33.) By letter dated
September 26, 2017, however, Mr. Pitcoff, counsel for the Village defendants, stated that he does not represent
defendant Peterson; instead, defendant Peterson has separate counsel, Jonathan P. Pirog, Esq., ofTromello,
McDonnell & Kehoe. (Dkt. No. 35; see also Dkt. No. 10 (Mr. Pirog's Notice of Appearance on behalfof defendant
Peterson) and Dkt. No. 14 (letter from Mr. Pitcoffreflecting his representation of the Village defendants).)
Accordingly, the Court determines that there is no issue with respect to defense counsels' representation in this
action.

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without prejudice to renew. In light of the fact that the corporate plaintiffs have now retained
counsel (see Dkt. Nos. 30 and 31), the Court will give corporate plaintiffs' counsel thirty (30)
days to determine whether the corporate plaintiffs wish to proceed on the claims in the amended
complaint. If so, the Court will allow defendants to renew (by letter) their previously submitted
motion to dismiss, and the Court will give corporate plaintiffs' counsel an opportunity to respond
on behalf of the corporate plaintiffs.

Standard of Review
A district judge may accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.

See Deluca v. Lord, 858 F. Supp. 1330, 1345

(S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988). As to those portions
of a report to which no "specific written objections" are made, the Court may accept the findings
contained therein, as long as the factual and legal bases supporting the findings are not clearly
erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI

Holdings Corp., 956 F. Supp. 509, 513 (S.D.N. Y. 1997). When "a party submits a timely objection
to a report and recommendation, the district judge will review the parts of the report and
recommendation to which the party objected under a de novo standard of review." Jeffries v.

Verizon, 10-CV-2686 (JFB) (AKT), 2012 WL 4344188, at *1 (E.D.N.Y. Sept. 21, 2012); see also
28 U.S.C. § 636(b)(l)(C) ("A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to. The district j~dge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.").

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Plaintiffs' Objections to the R&R
Plaintiffs objected to the R&R on the grounds that it incorrectly determined that
plaintiffs' due process claims were not rendered timely under the continuing violation doctrine.
More specifically, plaintiffs argued that the R&R failed to "reconcile the mandates of the New
York State Legislature in enacting" the New York State Uniform Fire and Building Code (the
"Uniform Code"), N.Y. Exec. Law§ 370 et seq., "as an area of due process law separate and
apart from zoning regulation," (Pis. Objs. 4), and that in doing so, the R&R failed to "credit the
continuation of harm reviews mandated under the due process protections of the Uniform Code,
including the right to appeal, the right to remedy, the right to seek a variance, the right to New
York Department of State oversight of Uniform Code administration and enforcement in the
Village of Farmingdale, and the right to defendant Village ofFanningdale's lawful compliance
with the mandates" of the Uniform Code (id). Plaintiffs also claimed that, "[b]y intentionally
failing to abide by th[e] directions [of the Uniform Code], the defendants engaged in a
continuing pattern and practice[,] [making] any of [plaintiffs'] allegations []timely under
Second Circuit caselaw," (id. at 5-6). As support, plaintiffs cited Remigio v. Kelly extensively.
04 CIV 1877 (JGK) (MHD), 2005 WL 1950138 (S.D.N.Y. Aug. 12, 2005) (Dolinger, Mag. J.).
In Remigio, Magistrate Judge Dolinger held that the continuing violation doctrine applied to
plaintiffs procedural due process claims when plaintiff was deprived of a hearing following the
seizure of his car and defendants were obligated to provide plaintiff with a hearing promptly
post-seizure. Id. at *8-11. Plaintiffs also referenced various provisions of the Uniform Code
outlining the powers and duties of the Secretary of State (the "secretary"), including the
secretary's authority to "publish ... written interpretations of the uniform code upon written

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request of a permit applicant," (Uniform Code.§ 376(4)5, Pis. Objs. 8), and the secretary's
powers and duties concerning code enforcement training (Uniform Code§ 376a, Pis. Objs. 1921).
Finally, plaintiffs also contended that, "[a]s the Complaint makes clear, the Village
worked to suppress any disclosure or compliance with their obligations under the Uniform
Code." (Pis. Objs. 21.)

Defendants' Opposition to Plaintiffs' Objections and Objections to the R&R
Defendants opposed plaintiffs' objections to the R&R on the grounds that plaintiffs'
reliance on Remigio is "misplaced" (Village Defs. Opp. Pis. Objs. 2-3), and the distinction
between the Uniform Code and zoning law "is not relevant to the case at bar" (id. at 4).
Defendants argued that Remigio is misplaced because the "legislative means of obtaining postdeprivation process following the seizure of property pursuant to criminal forfeiture statute is
wholly distinct from the mechanism available to plaintiffs, who allege that they were issued a
defective certificate of occupancy and disagree with the conditions imposed pursuant to the
permitting process" (id at 2-3)-whereas in Remigio, "~e municipal defendant was obligated to
promptly conduct a post-deprivation hearing after seizing the plaintiffs' property and failed to do
so," (id at 3), here, "plaintiffs had access to post-deprivation due process in the form of a
proceeding pursuant to CPLR Article 78, but did not avail themselves of that process" (id.). In
addition, defendants claimed that plaintiffs' contention "that the R&R erroneously conflated the
law applicable to municipal zoning decisions with the law applicable to the enforcement of the
New York [S]tate Uniform Code" is incorrect, because the R&R did not rule on the merits of
plaintiffs' constitutional claims-instead, the R&R found that plaintiffs' claims were time-

5

Plaintiffs also quoted language from Uniform Code Section 376(4) that "[s]ubsequent enforcement of such code
shall be consistent with such written interpretations." Id.

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barred. (Id. at 4.)
Defendants also objected to the R&R on the ground that, "even if plaintiffs' claims are
deemed timely, plaintiffs Complaint should be dismissed on resjudicata grounds." (Defs. Opp.
Pis. Objs. 4-6.) The R&R declined to dismiss plaintiffs' claims on resjudicata grounds "[i]n
light of the distinctions between the scope of immunity afforded the municipal defendants in the
2011 Action and the immunity available in Section 1983 and 1985 cases." (R&R 23-24.)
Defendants contend that the R&R' s decision was improper because the R&R cited no cases
precluding the application of resjudicata on this ground, and the R&R's analysis conflicts With
New York State's transactional approach to resjudicata. (Defs. Opp. Pis. Objs. 4.)
Analysis
Having reviewed de novo plaintiffs' objections to the R&R, defendants' opposition to
plaintiffs' objections, the relevant law, and the R&R, the Court agrees with Magistrate Judge
Tomlinson's conclusion that plaintiffs' federal claims should be dismissed because they are timebarr~d. 6 (See R&R 24-37.)

The Court has considered plaintiffs' objections and concludes that they do not support a
finding that the continuing violation renders plaintiffs' due process claims timely. First, the
Court disagrees with plaintiffs' contention that the R&R erred in failing to recognize the
Uniform Code as "an area of du~ process law separate and apart from zoning regulation," (Pis.
Objs. 4). To the extent plaintiffs argue that defendants deprived them of procedural due process
under the Uniform Code, the Court can find nothing in the Uniform Code-in the cited

6
Although defendants objected to the R&R on the basis that plaintiffs' claims should also be dismissed on res
judicata grounds, because the Court adopts the R&R's finding and recommendation that plaintiffs' federal claims
are time-barred, the Court need not, and does not, adopt the R&R's resjudicata finding and recommendation and

therefore declines to consider defendants' objection to the R&R with respect to this issue.

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provisions or otherwise-providing for a separate procedural scheme through which plaintiff
could challenge defendants' actions. Instead, as set forth in more detail below, plaintiffs had
access to adequate process to challenge defendants' actions through other means. To the extent
plaintiffs argue that defendants' purported noncompliance with the Uniform Code constituted a
"continuous practice an~ policy of discrimination" triggering the continuing violation doctrine
and rendering plaintiffs' substantive due process claims timely, also explained further below, the
Court disagrees because plaintiffs have failed to allege any "non-time-barred acts taken in
furtherance of that policy." Fahs Constr. Grp., Inc. v. Gray, 725 F.3d 289, 292 (2d Cir. 2013)
(quotation marks and citations omitted) (equal protection claim time-barred when plaintiff failed
to allege any acts of discrimination within statute of limitations).
The Court has also considered whether the continuing violation doctrine applies to
plaintiffs' procedural due process claims and concludes that it does not. As noted above,
plaintiffs cite Remigio extensively in their objections to support their argument that their due
process claims are timely under the continuing violation doctrine. The Court, however, does not ·
find Remigio applicable to the instant action. The Court's decision in Remigio was premised on
the fact that plaintiff had sufficiently alleged a procedural due process violation-defendants
deprived plaintiff of a post-seizure hearing that defendants were required to provide. As such,
the court found that the continuing violation doctrine applied to plaintiffs procedural due
process claim because "[e]ach day that the defendants failed to hold a hearing·. . . was another
instance of the defendants' continuing and incrementally increasing unlawful conduct," and
defendants' failure to hold the required post-seizure hearing "amount[ed] to an illegal policy or
practice, if it was not one to begin with." 2005 WL 1950138, at *10-11.

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In their objections, plaintiffs attempt to analogize their situation to Remigio by claiming
that, "[f]rom October 5, 2010, when Plaintiffs received an email containing the favorable Code
Interpretation form NYS/DOS/DCEA, plaintiffs were deprived of a hearing, and then further
deprived of a hearing until July 2, 2013, when, at the direction of new Mayor Ekstrand, Code
Enforcement Official Fellman, accepted a request for a new building permit, to amend the
occupancy of the premises to plaintiff's [sic] originally requested 97 person occupancy," finally
conforming the certificate of occupancy to the Uniform Code. (Pis. Objs. 12.) Plaintiffs argue
that the statute limitations should be tolled during this time. (Id)
The Court rejects plaintiffs' argument. First, it is too conclusory to support a finding that
plaintiffs were denied an opportunity to challenge the building permit or occupancy
determination-plaintiffs' amended complaint and objections are devoid of any allegations that,
following the issuance of the building permit, they attempted to challenge the building permit or
certificate of occupancy and were prevented from doing so. 7
Moreover, in contrast to Remigio, plaintiffs had access to procedural due process in the
form of a C.P .L.R Article 78 proceeding. The Second Circuit "has held on numerous occasions
that where, as here, a party sues the state and its officials and employees for the arbitrary and
random deprivation of a property or liberty interest, an Article 78 proceeding is a perfectly
adequate postdeprivation remedy." Ahmed v. Towrz of Oyster Bay, 7. F. Supp. 3d 245, 254
(E.D.N.Y. 2014); see also, e.g., Gregory v. Inc. Viii. ofCentre Island, 14-CV-2889 (JFB) (AKT),

7

Although plaintiffs' amended complaint alleges that plaintiffs were "forced to acquiesce" and "forced to bow
down" to defendants Peterson and Mayor Starkie's "unlawful [occupancy] demands" so that they could open their
bar/restaurant and "stop the hemorrhage of money caused by the actions of defendants" (Am. Compl. ~~ 152, 158),
these allegations merely explain why plaintiffs submitted a building permit with an occupancy purportedly below
the legal limit-they do not support a finding that plaintiffs were unable to thereafter challenge the building permit
or certificate of occupancy. Indeed, the fact that plaintiffs challenged defendants' actions in a separate state court
action filed on July 20, 2011, see Sharp v. The Inc. Viii. of Farmingdale, No. 11-01010838 (Sup. Ct. 2011),
evidences that plaintiffs were able to challenge the building permit and certificate of occupancy.

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2015 WL 5093623, at *7-8 (E.D.N.Y. Aug. 28, 2015) (finding no procedural due process
violation regarding denial of building applications when plaintiff could have challenged
decisions through C.P .L.R. Article 78 proceeding). Unlike in cases where courts have denied
motions to dismiss, plaintiffs do not allege that an Article 78 proceeding would have been
inadequate, and, as noted above, they fail to show that they were denied the opportunity to
challenge the building permit or certificate of occupancy. See, e.g., Koncelik v. Town ofE.
Hampton, 781 F. Supp. 152, 158 (E.D.N.Y.1991) (denying motion to dismiss procedural due
process claim in zoning case despite availability of Article 78 procedure because "although
plaintiffs timely and successfully availed themselves of the Article 78 proceeding (as to the
Planning Board claim), their plans to develop their property are still being delayed by the ZBA's
and the Planning Board's pending appeal"); Acorn Ponds v. Viii. ofN. Hills, 623 F. Supp. 688,
690-91 (E.D.N.Y. 1985) (denying motion to dismiss procedural due process claim related to
zoning decision, despite fact that plaintiff was able to obtain orders in Article 78 proceeding,
because such remedies were inadequate given the delay in obtaining the certificates of
occupancy). Accordingly, the Court concludes that plaintiffs had access to adequate process, and
that the continuing violation doctrine therefore cannot apply to their pro~edural due process
claims because plaintiffs have not plausibly stated a procedural due process cause of action.
The Court likewise determines that the continuing violation doctrine does not render
plaintiff~'

substantive due process claims timely. Even assuming arguendo that some

unconstitutional policy existed whereby defendants refused to follow the Uniform Code, the
Court agrees with the R&R' s findings that plaintiffs have failed to allege that defendants took an
"act in furtherance of the [purported unconstitutional policy]" that falls within the statute of

10

limitations, Fahs Constr. Grp., 725 F.3d at 292. (See R&R 25-29). Accordingly, the Court.
concludes that plaintiffs' substantive due process claims are time-barred. 8
The Court has also considered plaintiffs' statement in their objections that, "[a]s the
Complaint makes clear, the Village worked to suppress any disclosure or compliance with their
obligations under the Uniform Code." (Pis. Objs. 21.) To the extent plaintiff~ argue that their
claims are subject to equitable tolling, for the reasons set forth in the R&R, the Court agrees with
Magistrate Judge Tomlinson's determination that the equitable tolling doctrine does not apply in
the instant action. (See R&R 32-37.)
Finally, the Court also adopts the R&R's findings and recommendations that, with
respect to the individual plaintiffs, the Court (i) decline to exercise supplemental jurisdiction
over any state law claims, and therefore dismiss the state law claims in the absence of any viable
federal claims (id. at 37-38); and (ii) dismiss plaintiffs' amended complaint without leave to
replead given any amendment would be futile due to the fact that plaintiffs' claims are timebarred (id at 38-40).
In light of the foregoing, the Court adopts the well-reasoned and thorough R&R's
findings and recommendations that the individual plaintiffs' claims in the amended complaint be
dismissed without leave to replead. Accordingly,
IT IS HEREBY ORDERED, with respect to the individual plaintiffs, that defendant
Peterson's and the Village defendants' motions to dismiss (Dkt. Nos. 15 and 17, respectively) are

8

The Court also agrees with the R&R's finding that all federal claims arising out of the purported frustration of
plaintiffs' efforts to obtain a building permit and certificate of occupancy are also time-barred because these events
took place in 2010 and are well-outside of the statute of limitations. (See R&R 25.) In addition, for the reasons set
forth in the R&R, the Court finds that any federal claims arising out of the April 4, 2011 public hearing about a
"proposed outdoor dining ordinance possibly restricting the use of outside areas of commercial properties on Main
Street" (Am. Compl. ~ 172), are likewise time-barred. (See R&R 25.) Finally, the Court adopts the R&R's findings
and recommendations that plaintiffs' FOIL allegations cannot form the basis of plaintiffs' constitutional claims and
that plaintiffs' FOIL allegations therefore do not render plaintiffs' federal claims timely. (See R&R 29-32.)

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granted, the federal claims are dismissed with prejudice, and any state law claims are dismissed
without prejudice.
IT IS FURTHER ORDRED, with respect to the corporate plaintiffs, that counsel for the
corporate plaintiffs has thirty (30) days from the date of this Order to determine whether the
corporate plaintiffs wish to proceed on the claims in the amended complaint. If so, the Court
will allow defendants to renew (by letter) their previously submitted motion to dismiss and will
give corporate plaintiffs' counsel an opportunity to respond on behalf of the corporate plaintiffs.

S~ORilRRRO.

Dated:

Septembe~q, 2017
Central Islip, NY

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