Dellinger et al v. The Town of Huntington et al
Filing
45
ORDER ADOPTING REPORT AND RECOMMENDATIONS - Having considered the Plaintiffs' objections to the Report and conducted a de novo review of the record, the Court is satisfied that Magistrate Judge Brown's Report is not facially erroneous; ther efore, it is adopted in its entirety. Accordingly, IT IS HEREBY ORDERED that the Defendants' Dismissal Motions are granted in their entireties; Plaintiffs' Complaint is dismissed with prejudice. IT IS FURTHER ORDERED that the 12/5/2018 Status Conference is cancelled; and IT IS FURTHER ORDERED that the Clerk of Court is directed to close this case. SO Ordered by Judge Sandra J. Feuerstein on 11/26/2018. (Tirado, Chelsea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARY ANN DELLINGER and
CARMEN TOMEO,
Plaintiffs,
v.
THE TOWN OF HUNTINGTON,
TGJ 2014 LLC, EUGENE COOK,
JOSHUA PRICE, and TIMOTHY CAVANAUGH,
FILED
CLERK
3:26 pm, Nov 26, 2018
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Case No.: 17-cv-5319 (SJF)(GRB)
ORDER ADOPTING
REPORT &
RECOMMENDATION
Defendants.
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FEUERSTEIN, Senior District Judge:
I.
Introduction
Plaintiffs Mary Ann Dellinger and Carmen Tomeo (collectively, “Plaintiffs”) commenced
this action against Defendants The Town of Huntington (hereafter, the “Town Defendant” or
“Town”), TGJ 2014 LLC (“TGJ”), Eugene Cook (“Cook”), Joshua Price (“Price”), and Timothy
Cavanaugh (“Cavanaugh”; together with TGJ, Cook, and Price, the “Non-Town Defendants”;
collectively with the Town Defendant, the “Defendants”) seeking relief, pursuant to 42 U.S.C. §§
1983, 1986, and Article I, § 6 of the New York State Constitution, for the alleged selective
enforcement of the Huntington Town Code to devalue property owned by the Plaintiffs. (See
Complaint, ECF No. 1.) The Town Defendant and the Non-Town Defendants have each moved
to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
(hereafter, collectively, the “Dismissal Motions”). (See ECF No. 15 (Town Defendant’s Motion
to Dismiss); ECF Nos.17-20 1 (Non-Town Defendants’ Motions to Dismiss).) Plaintiffs both
1
While filed individually (see ECF No. 17 (TGJ’s Motion to Dismiss); ECF No. 18
(Cavanaugh’s Motion to Dismiss); ECF No. 19 (Price’s Motion to Dismiss); and ECF No. 20
1
oppose the Dismissal Motions (hereafter, “Opposition” or “Opp’n”) (see ECF No. 31-1) and
cross move for default judgment against the Non-Town Defendants (hereafter, the Default
Judgment Motion”) (see ECF No. 31). The Dismissal Motions and Default Judgment Motion
were referred to Magistrate Judge Gary R. Brown for a Report and Recommendation (see Minute
Entry dated Feb. 27, 2018 (ECF No. 38).)
Now before the Court is the Magistrate Judge’s August 29, 2018 Report and
Recommendation (hereafter, “Report”) recommending: that the Default Judgment Motion be
denied; that the Motions to Dismiss be granted, and the Complaint be dismissed with prejudice;
and, consequently, that Plaintiff’s request to amend the Complaint be denied. (See Report (ECF
No. 41).) The Plaintiffs have filed a limited objection (hereafter, “Objection”) (see ECF No. 43),
to which the Town Defendant has responded (hereafter, “Response”) (see ECF No. 44), but the
Non-Town Defendants have not (Case Docket, in universum.). For the reasons that follow, the
Court overrules the Plaintiffs’ objections and adopts Magistrate Judge Brown’s Report in its
entirety.
II.
Background
The “BACKGROUND” section of the Report addresses the facts and procedural history
underlying this action, which are incorporated by reference (see Report at 1-4) and with which
the Court assumes the Parties’ familiarity. However, for the reader’s convenience, the Court
summarizes as follows.
The Plaintiffs’ claims against the Defendants are premised upon their prior ownership of
real property, a five-family dwelling located at 792 Larkfield Road in East Northport, New York
(Cook’s Motion to Dismiss)), TGJ’s, Cook’s, Price’s, and Cavanaugh’s Motions to Dismiss are,
in actuality, one joint motion.
2
(hereafter, the “Property”). According to a 1997 Town-issued “Letter in Lieu”, the Property’s
multi-dwelling status was “grandfathered” as it existed before the Town’s 1934 establishment of
its Town Code. (See Complaint ¶¶18-19.) However, in 2012, a Huntington Town Code
inspector informed the Plaintiffs that the Property was zoned as a single-family dwelling and
they would have to either return the Property to that status or seek a zoning variance. (See id. at
¶20.) On September 11, 2012, the Town Defendant “filed a complaint against the Plaintiffs for
violation of the Town Code alleging overcrowding and illegal apartment” (hereafter, the “Code
Violation Complaint”). (Id. at ¶21.) Plaintiffs alleged that at least one sale of the Property was
not consummated because of the pending Code Violation Complaint (hereafter, the “2013
Potential Sale”) (see id. at ¶22; see also id. at ¶23 (alleging the Town Defendant informed
potential purchaser “that the Property was unsafe” and “should be demolished”), and ¶24
(alleging the Town Defendant informed potential purchaser that it would not allow Property “to
be used ‘for any purposes and cautioned him to ‘think twice’ before pursuing the sale”); Report
at 3 n.1), but that another sale was consummated with TGJ on September 12, 2014 (hereafter, the
“2014 Sale”), despite said Code Violation Complaint. (See id. at ¶29.) They allege that since the
2014 Sale the Defendant Town “has not filed any violation against the [P]roperty alleging
overcrowding or that the five (5) apartments were illegal.” (Id. at ¶ 30.)
III.
Applicable Standards
A. Report and Recommendation Standard of Review
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct
proceedings of dispositive pretrial matters without the consent of the parties. See Fed. R. Civ. P.
72(b). Any portion of a report and recommendation on dispositive matters to which a timely
objection has been made is reviewed de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
3
However, “when a party makes only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report strictly for clear error.” Frankel v. City of
N.Y., Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009); see also
Butto v. Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) (“In a case where a party makes
only conclusory or general objections, or simply reiterates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” (quotations and citation omitted)).
The Court is not required to review the factual findings or legal conclusions of the magistrate
judge as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.
Ct. 466, 88 L. Ed.2d 435 (1985). Whether or not proper objections have been filed, the district
judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or
recommendations. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
B. The Rule 12(b)(6) Standard
The standard of review on a Rule 12(b)(6) motion is that a plaintiff plead sufficient facts
“to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 1974 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009). The
plausibility standard requires “more than a sheer possibility that a defendant has acted
unlawfully.” Id.
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly,
550 U.S. at 555, 127 S. Ct. 1955). “Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557,
4
127 S. Ct. 1955). “Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. 544, 127 S. Ct. at 1959.
In deciding a motion pursuant to Rule 12(b)(6), the Court must liberally construe the
claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences
in favor of the plaintiff. See Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 176
(2d Cir. 2013) (quotations and citation omitted); Grullon v. City of New Haven, 720 F.3d 133,
139 (2d Cir. 2013). However, this tenet “is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. at 679, 129 S. Ct.
1937. “In keeping with these principles a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more than conclusions, are not entitled
to the assumption of truth.” Id.; see also Ruston v. Town Bd. of Town of Skaneateles, 610 F.3d
55, 59 (2d Cir. 2010).
Nonetheless, a plaintiff is not required to plead “specific evidence or extra facts beyond
what is needed to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 12021 (2d Cir. 2010); accord Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs.
Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 729-30 (2d Cir. 2013). “When there
are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. at
1937.
5
In deciding a Rule 12(b)(6) motion, the Court must limit itself to the facts alleged in the
complaint, which are accepted as true; to any documents attached to the complaint as exhibits or
incorporated by reference therein; to matters of which judicial notice may be taken; or to
documents upon the terms and effect of which the complaint “relies heavily” and which are,
thus, rendered “integral” to the complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 15253 (2d Cir. 2002); see also ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014), cert.
denied, 135 S. Ct. 715 (2014). Courts may also consider public records in deciding a motion to
dismiss. See Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide,
Inc., 369 F.3d 212, 217 (2d Cir. 2004) (state court complaint); Taylor v. Vermont Dep’t of Educ.,
313 F.3d 768, 776 (2d Cir. 2002) (state court decree); Pani v. Empire Blue Cross Blue Shield,
152 F.3d 67, 75 (2d Cir. 1998) (case law and statutes). Moreover, a plaintiff’s “failure to include
matters of which as pleader[] [she] had notice and which [are] integral to [her] claim–and that
[she] apparently most wanted to avoid–may not serve as a means of forestalling . . . [a] decision
on a [Rule] 12(b)(6) motion.” L-7 Designs, 647 F.3d at 422 (quotations, alterations and citation
omitted). Factual allegations are assumed to be true “unless contradicted by more specific
allegations or documentary evidence . . . .” Id.
IV.
Discussion
A. Magistrate Judge Brown’s Report & Recommendations
As to the Plaintiffs’ Default Judgment Motion, while recognizing that the basis for
Plaintiffs’ Motion was the purported failure of TGJ, Cook, and Cavanaugh to timely respond to
the Complaint, which those Defendants oppose arguing that their filings were timely, the
Magistrate Judge found that “irrespective of the merits of the timeliness argument,” because of
Plaintiffs’ own failure in not satisfying the procedural requirements for default judgment, said
6
relief was not warranted. (See Report at 4.) That is, while Rule 55 requires one to engage in a
two-step process, to wit, the entry of default by the clerk of court and then, upon application, the
entry of default judgment (see id. at 4-5 (citing Fed. R. Civ. P. 55; further citations omitted)),
since the Plaintiffs “have neither requested nor received a certificate of default from the Clerk,”
that “alone justifies denial of [P]laintiffs’ motion without prejudice.” (Report at 5 (citations
omitted).) Magistrate Judge Brown further stated that since Plaintiffs failed to “state a cause of
action as to TGJ, Cook and Cavanaugh,” that was another basis for recommending denial of the
Default Judgment Motion. (See id. (citing Taizhou Zhongneng Import & Export Co. v.
Koutsobinas, 509 F. App’x 54, 56 (2d Cir. 2013)).)
As to the Defendants’ Dismissal Motions, Magistrate Judge Brown found all of
Plaintiffs’ § 1983 claims fell outside of the applicable three-year statute of limitation. 2 (See
Report at 8 (identifying the cognizable acts to be: the September 2012 filing of the Code
Violation Complaint, and both the execution of and subsequent rescission of the 2013 Potential
Sale contract).) He rejected the Plaintiffs’ position that their claims accrued upon the Town’s
non-enforcement of its Code after the 2014 Sale of the Property, “as the Supreme Court has
instructed that the ‘proper focus is on the time of the discriminatory act.’” (Id. (quoting
Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994); further citations omitted); see also id. at 7
(“The proper focus is on the time of the unlawful act, not the point at which the consequences of
the act become painful.” (further citation omitted)).) Rather, the Magistrate Judge stated:
2
The Magistrate Judge noted that “[b]ecause the language of Article I, § 6 of the New York
State Constitution closely tracks the Fourteenth Amendment, courts generally have found the
two provisions ‘to be coextensive.’” (Report at 6 n.4 (quoting DeMartino v. N.Y.S. Dep’t of
Labor, 167 F. Supp.3d 342, 373-74 (E.D.N.Y. 2016); further citations omitted).) Implicit from
that notation is Magistrate Judge Brown’s inclusion of the Plaintiffs’ constitutional claim with
his analysis of their § 1983 claims. This Court does likewise.
7
Indeed, by its own terms, the Complaint identifies the object of the
conspiracy alleged as an effort “to selectively enforce the
Huntington Town Code to devalue the Property in order to permit
the other Defendants to purchase the Property at less than market
price.” Compl. ¶ 3. Under this analysis, [P]laintiffs’ claim
accrued no later than the allegedly improper issuance of the
Violation notice [i.e., the Code Violation Compliant], or the
purportedly improper statements to [P]laintiffs’ potential
purchaser, both of which occurred well outside the limitations
period. Therefore, taking the facts alleged as true, [P]laintiffs’
claims under § 1983 are time barred.
(Report at 10.) Moreover, Magistrate Judge Brown rejected the Plaintiffs’ attempts to invoke
equitable tolling to save their § 1983 claims as they neither pled facts supporting such a theory
nor, in their motion papers, identified any such facts. (See id. at 10-11.) Finally, he determined
that because it was subject to a one-year statute of limitation, Plaintiffs’ § 1986 claim was
untimely for the same reasons stated as to their § 1983 claims, thereby warranting a
recommendation that it be dismissed. (See id. at 12.)
B. The Plaintiffs’ Objection
“[P]laintiffs specifically object to the following findings: (1) that [P]laintiffs’ claims
under 42 U.S.C. § 1983 and the New York State Constitution are time barred; and (2) that ‘all of
the cognizable acts complained of fall outside the limitations period.’” (Objection at
(unnumbered) 2.) The Plaintiffs argue that the Code Violation Complaint was a “continuing
harm” throughout their ownership of the Property. (See Objections at (unnumbered) 3.) They
also contend that the “passing of title [of the Property] is clearly relevant as it is only after title
passes [] that a claim for selective enforcement can even be raised under these facts,” thereby
objecting to the Magistrate Judge’s notation that the title passage date is irrelevant. (See id.;
Report at 8 n.5; see also Objection at (unnumbered) 4 (reiterating that “[o]nly after title passed
hands, AND no enforcement actions were taken by the Town against TGJ [], could there have
8
been an accrual of a valid cause of action under these facts.” (citing Caroselli v. Curci, No. 08cv-1743, 2009 WL 211041 (E.D.N.Y. Jan. 23, 2009)).) Finally, Plaintiffs posit that their:
claims may be brought within three years of the passing of title
[i.e., September 12, 2014] because at the time of the transfer of
title, the violation was pending against [P]laintiffs – the harm
continued until title changed hands. While the violation was
pending, [P]laintiffs’ property value continued to decline and
[P]laintiffs lost a valid sale at a higher value. This was clearly a
continuing harm to [P]laintiffs.
(Objection at (unnumbered) 4.) In sum, Plaintiffs request that their Objection be sustained such
that their § 1983 and New York State constitutional claims not be dismissed as time barred and
that they been afforded the opportunity to amend their Complaint. (Id.)
C. The Town Defendant’s Response
Not surprisingly, the Town Defendant agrees with Magistrate Judge Brown’s
recommendation that all of Plaintiffs’ § 1983 claims are “’clearly time-barred.’” (Response at 2
(quoting Report at 8).) In particular, the Town Defendant focuses on Magistrate Judge Brown’s
reliance “upon a multitude of cases to conclude that any Section 1983 causes of action arising
out of an alleged code enforcement action accrued at the time of the alleged improper
enforcement” (id. (citing Report at 8-10)), which in this instance was September 11, 2012, the
date the Town filed its Code Violation Complaint against the Plaintiffs. (See id.) The Town
highlights the fault in the Plaintiffs’ Objection, i.e., “that because the alleged violation issued by
the Town ‘remained a violation against [P]laintiffs right until title to the [P]roperty transferred’ it
was a ‘continuing harm’ which precluded the statute of limitations from running” (Response at 2
(quoting Objection at (unnumbered) 3), by noting the failure to support it with case law (see id.)
and by citing numerous cases rejecting “the type of ‘continuing harm’ argument advanced by
9
Plaintiffs” (id.) and supporting Magistrate Judge Brown’s recommendation that Plaintiffs’ §
1983 claims are time-barred, to wit:
Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999)(“We
have made it clear that a continuing violation cannot be established
merely because the claimant continues to feel the effects of a timebarred discriminatory act”); Andrews v. Town of Wallingford, [No.
3:16-cv-1232,] 2017 WL 3588571, *3 (D. Conn. [Aug. 21,]
2017)(“[t]he ‘continuing violation’ rules does not apply merely
because a plaintiff experiences continuing harm from a defendant’s
otherwise discrete time-barred act”); Blackman v. County of
Nassau, 819 F. Supp. 198, 207 (E.D.N.Y. 1993)(“the mere fact that
wrongful acts may have a continuing impact is not sufficient to
find a continuing violation.”).
(Id. at 2-3.) Hence, the Town Defendant requests that Plaintiffs’ Objections be overruled and
this Court follow the Magistrate Judge’s recommendation of dismissing this action in its entirety.
D. The Court’s Consideration of Plaintiffs’ Objections
As an initial matter, Plaintiffs explicitly “do not object to the denial of [their] crossmotion for default judgment.” (Objection at (unnumbered) 2.) Nor do they address the
Magistrate Judge’s recommendations regarding the untimeliness of their § 1986 claim (see
Report at 12) or the futility of their supposed § 1981 claim (see id. at 6 n.3). Moreover, the
Plaintiffs have failed to address Magistrate Judge Brown’s recommendations regarding their
attempt to equitable tolling their § 1983 claims. (See Report at 10-12; cf., Objection, in
universum.) Other than their conclusory assertion that they “should be given time to amend their
pleadings” (Objection at (unnumbered) 4 (“Conclusion” section)), Plaintiffs do not meaningfully
object to the Magistrate Judge’s recommendation that, in essence, it would be futile to permit the
amending of the Complaint as “the recommendation to dismiss all claims is premised on a
substantive and incurable defect, to wit: [P]laintiffs’ failure to file within the applicable
limitations period.” (Report at 12.) Thus, Plaintiffs are deemed to have waived any objections
10
to those portions of the Report recommending: dismissing Plaintiffs’ §§ 1981 and 1986 claims;
denying equitable tolling of the statute of limitation; and denying Plaintiffs’ request to amend
their Complaint. As the Court is not required to review the factual findings or legal conclusions
of a magistrate judge as to which no proper objections are made, see Arn, 474 U.S. at 150, and
finding no clear error as to Magistrate Judge Brown’s recommendation to dismiss the Plaintiffs’
§§ 1981 and 1986 claims, deny the application of equitable tolling, and deny the amending of the
complaint, those portions of the Report are adopted in their entirety.
As to Magistrate Judge Brown’s recommendation to dismiss the Plaintiffs’ § 1983 claims
as time-barred, the Plaintiffs’ Objections 3 focus on their “selective enforcement claim.”
(Objection at (unnumbered) 3.) Plaintiffs assert they have adequately pleaded that: they were
treated differently during the time period they owned the Property (see id.); the Town Defendant
thwarted the 2013 Potential Sale (see id.); and that once the Property was sold, the Code
Violation Complaint was not enforced (see id. at (unnumbered) 4). Then, in a conclusory
manner, they state their claim of selective enforcement could have accrued “[o]nly after title
passed hands, AND no enforcement actions were taken by the Town against TGJ . . . .” (Id.
(citing Caroselli, 2009 WL 211041, at *5).) Finally, Plaintiffs contend that “[w]hile the
violation was pending, [their] [P]roperty value continued to decline and [they] lost a valid sale at
a higher value,” which “was clearly a continuing harm” to them. (Id.)
3
The Plaintiffs’ Objections barely reach beyond general and conclusory, which would have
been entitled to review for clear error only. See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 5152 (E.D.N.Y. 2008)(“When a party makes only conclusory or general objections, or simply
reiterates his original arguments, the Court reviews the Report and Recommendation only for
clear error.”)(quotation marks, brackets, and further citation omitted).
11
First, to the extent the Plaintiffs cite case law supposedly supporting their “selective
enforcement claim” Objection, their reliance on Caroselli is unpersuasive. 4 While the Caroselli
court recited the general proposition that a § 1983 claim “accrues when the plaintiff has a
compete cause of action, or when the plaintiff can file suit and obtain relief,” the issue therein
was whether there were extraordinary circumstances, such as fraud or concealment, warranting
the equitable tolling of plaintiff’s § 1983 claim; however, it found no factual support for claims
of fraud or concealment. See id. The same is true in the instant case; there are no allegations of
extraordinary circumstances. Further, at stated supra, Plaintiffs have not raised any objections to
the Magistrate Judge’s recommendation that equitable tolling is not applicable in this instance.
Second, as to the issue of when a § 1983 claim accrues, Magistrate Judge Brown
correctly highlighted that, “as the Supreme Court has instructed . . . ‘the proper focus is on the
time of the discriminatory act,’” Report at 8 (quoting Eagleston, 41 F.3d at 871 (quoting
Chardon v. Fernandez, 454 U.S. 6, 8 (1981))), and not, as the Plaintiffs suggest, “when the nonenforcement of the Town code against the TGJ defendants” occurred. (Report at 8 (citing Pls.’
Opp’n (ECF No. 31-1) at 4)(emphasis in Report); see also id. at 8-10 (citing and discussing cases
holding that § 1983 claims accrue when the unlawful act commences and not the time at which
the consequences of the act become painful).) After its own de novo review, this Court agrees
with the Magistrate Judge’s reasoning, which it now adopts, that it was the Town Defendant’s
filing the Code Violation Complaint which triggered Plaintiff’s § 1983 “selective enforcement
4
The other cases cited and quoted in their Objection are put forth by the Plaintiffs in support of
general legal contentions, but not in support of their specific objections. As the Town
Defendants state, “In their Objection[], Plaintiffs make no effort to challenge the caselaw or
reasoning set forth by Judge Brown supporting his analysis that their claims accrued, if at all,
well outside of the applicable three-year statute of limitations period. Plaintiffs do not cite a
single case providing support for their assertion that Judge Brown incorrectly applied the statute
of limitations to their claims.” (Response at 2.)
12
claims”. As the holders of a “Letter in Lieu”, once the Town brought its Code Violation
Complaint on September 11, 2012, the Plaintiffs had reason to know of the potential cloud over
title to the Property, which could jeopardize its value. See, e.g., Wormer v. City of Rensselaer,
293 F. App’x 783, 783 (2d Cir. 2008). Further, by the time the 2013 Potential Sale failed due to
the pending Code Violation Complaint (see Complaint ¶ 22 5), the Plaintiffs had reason to know
that the Town’s actions could harm them. As the Magistrate Judge astutely observed, by their
own allegations, the Plaintiffs established the relevant time period to be applied to their § 1983
selective enforcement claims, i.e., when “[t]he Defendants conspired to selectively enforce the
Huntington Town Code to devalue the Property” such that the Non-Town Defendants could buy
it “at less than market value.” (Complaint ¶ 3; cf., Report at 10 (“Under this analysis,
[P]laintiffs’ claim accrued no later than the allegedly improper issuance of the Violation notice,
or the purportedly improper statements to [P]laintiffs’ potential purchaser, both of which
occurred well outside the limitations period.”).) Hence, this Court agrees with the Magistrate
Court that it is of no consequence when title to the Property passed to the Non-Town Defendants
(see Report at 8 n.5) or what became of the pending Code Violation Complaint after the Property
was sold, since “[t]he proper focus is on the time of the unlawful act, not the point at which the
consequences of the act become painful.” Ognibene v. Niagara Cty. Sheriff’s Dep’t, 117 F.
App’x 798, 799-800 (2d Cir. 2005)(further citations omitted). Accordingly, the Plaintiffs’
§ 1983 claims lack facial plausibility to allow the Court to draw the reasonable inference that the
Defendants are liable for the misconduct alleged. See Iqbal, 556 U.S. at 678; see also Twombly,
5
Although the Plaintiffs do not indicate the date when they knew the 2013 Potential Sale would
not occur, since they state they entered into the 2014 Sale contract with the Non-Town
Defendants on April 14, 2014 (see Complaint), it is reasonable to infer that the 2013 Potential
Sale failed prior to that date, which in any event, is outside the applicable three-year statute of
limitation.
13
550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” (citations omitted)).
***
Having considered the Plaintiffs’ objections to the Report and conducted a de novo
review of the record, the Court is satisfied that Magistrate Judge Brown’s Report it is not facially
erroneous; therefore, it is adopted in its entirely.
V.
Conclusion
Accordingly, IT IS HEREBY ORDERED that the Defendants’ Dismissal Motions are
granted in their entireties; Plaintiffs’ Complaint is dismissed with prejudice.
IT IS FURTHER ORDERED that the December 5, 2018 Status Conference is cancelled;
and
IT IS FURTHER ORDERED that The Clerk of Court is directed to close this case.
Dated this 26th day of November 2018 at Central Islip, New York.
_/s/_Sandra J. Feuerstein__
Sandra J. Feuerstein
United States District Judge
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