Village Green at Sayville, LLC v. The Town of Islip et al
Filing
49
ORDER granting 44 Motion to Dismiss; granting in part and denying in part 45 Cross Motion for Reconsideration: For the reasons discussed in the attached Order, Defendants' renewed motion to dismiss is GRANTED, and Plaintiff's motion t o reargue the Court's 34 Order is GRANTED with respect to the futility exception but DENIED with respect to standing for Fair Housing Act claims. On reconsideration, Defendants' motion to dismiss is GRANTED. This Court has now dismissed all seven causes of action. The Clerk of Court is directed to enter judgment accordingly and terminate the action. Ordered by Judge Denis R. Hurley on 1/22/2021. (Ready, John)
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 1 of 25 PageID #: 2180
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------------X
VILLAGE GREEN AT SAYVILLE, LLC,
Plaintiff,
MEMORANDUM AND ORDER
- against -
2:17-CV-7391 (DRH) (ARL)
THE TOWN OF ISLIP, THE TOWN BOARD OF
THE TOWN OF ISLIP, THE PLANNING
BOARD OF THE TOWN OF ISLIP, ANGIE M.
CARPENTER, individually and in her official
capacity as Member of the Town Board of the
Town of Islip, STEVEN J. FLOTTERON,
individually and in his official capacity as
Member of the Town Board of the Town of Islip,
TRISH BERGIN WEICHBRODT, individually
and in her official capacity as Member of the
Town Board of the Town of Islip, JOHN C.
COCHRANE, JR., individually and in his official
capacity as Member of the Town Board of the
Town of Islip, MARY KATE MULLEN,
individually and in her official capacity as
Member of the Town Board of the Town of Islip,
EDWARD FRIEDLAND, individually and in his
official capacity as Member of the Planning
Board of the Town of Islip, KEVIN BROWN,
individually and in his official capacity as
Member of the Planning Board of the Town of
Islip, ANTHONY MUSUMECI, individually and
in his official capacity as Member of the Planning
Board of the Town of Islip, JOSEPH
DEVINCENT, individually and in his official
capacity as Member of the Planning Board of the
Town of Islip, DONALD FIORE, individually and
in his official capacity as Member of the Planning
Board of the Town of Islip, DANIEL DELUCA,
individually and in his official capacity as
Member of the Planning Board of the Town of
Islip, and MICHAEL KENNEDY, individually
and in his official capacity as Member of the
Planning Board of the Town of Islip,
Defendants.
-------------------------------------------------------------------X
Page 1 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 2 of 25 PageID #: 2181
APPEARANCES
LAW OFFICES OF MARK A. CUTHBERTSON
Attorneys for Plaintiff
434 New York Avenue
Huntington, NY 11743
By: Mark A. Cutherbertson, Esq.
Matthew DeLuca, Esq.
SINNREICH KOSAKOFF & MESSINA LLP
Attorneys for Defendants
267 Carleton Avenue, Suite 301
Central Islip, NY 11722
By: Vincent J. Messina, Jr., Esq.
Lisa A. Perillo, Esq.
Timothy F. Hill, Esq.
ISLIP TOWN ATTORNEY’S OFFICE
Attorney for Defendant
655 Main Street
Islip, NY 11751
By: John Ryan DiCioccio, Esq.
HURLEY, Senior District Judge:
INTRODUCTION
In an Order dated September 27, 2019, (the “Order” [ECF 34] 1), the Court
granted the captioned Defendants’ motion to dismiss Plaintiff Village Green at
Sayville, LLC’s (“Plaintiff”) first, fourth, sixth, and seventh causes of action for lack
of subject-matter jurisdiction.
The Court denied the Defendants’ motion as to
Plaintiff’s second, third, and fifth causes of action, which respectively concern alleged
violations of 42 U.S.C. §§ 1981, 1982 and New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. L. § 296. As to these three counts, Defendants were directed
1
The Order can be found at 2019 WL 4737054 (E.D.N.Y. 2019).
Page 2 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 3 of 25 PageID #: 2182
to renew their motion pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1),
limited to the question of whether a final decision is required to establish standing
and ripeness for § 1981, § 1982 and NYSHRL claims.
Defendants’ renewed motion to dismiss Counts Two, Three, and Five is
presently before the Court, (Def. Renewed Mem. [ECF 44]), along with Plaintiff’s
cross-motion made pursuant to Federal Rule of Civil Procedure 54(b) to reargue the
Order’s dismissal of the first, fourth, sixth, and seventh causes of action, (Pl. Recons.
[ECF 45]). The Court concludes that § 1981, § 1982, and NYSHRL claims require a
final decision before a plaintiff has standing; because Plaintiff has no final decision,
Defendants’ renewed motion is GRANTED, resulting in the dismissal of Counts Two,
Three, and Five. Though Plaintiff failed to raise the futility exception in the briefing
on the initial motion to dismiss, Plaintiff’s cross-motion to reargue the Order is
GRANTED on this issue. Upon reargument, however, Defendants’ motion to dismiss
is GRANTED as to all counts, as Plaintiff has failed to demonstrate futility.
Plaintiff’s cross-motion to reargue the Order is DENIED with respect to Fair Housing
Act standing because Plaintiff is incorrect in contending that it does not require a
final decision.
BACKGROUND
The Court assumes familiarity with its full recitation of relevant facts as set
forth in its earlier Order. (See Order at 3–7).
In short, Plaintiff alleges Defendants’ racially discriminatory animus
motivated them to stifle Plaintiff’s efforts to modify certain covenant and restrictions
Page 3 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 4 of 25 PageID #: 2183
(“C&Rs”), which Plaintiff and Defendants had previously agreed upon as a condition
to rezoning property, but with which Plaintiff could not comply as a result of
Defendants’ subsequent conduct. (Am. Comp. ¶¶ 2, 4, 6). Plaintiff’s endeavors have
stalled following “contentious public hearings” evidencing hostility towards
minorities and the Town Board’s “non-vote,” in which Board members failed to second
a motion to approve Plaintiff’s application. (Id. ¶¶ 6–7, 53, 63). Plaintiff tried to
confirm, with the Town Attorney, that “no further proceedings before the Town
Board, Planning Board or any other Town Agency will be held” and that Defendants
consider the failed motion to approve a “denial.” (Id. ¶¶ 67–68; Ex. B to Am. Compl.).
The Town Attorney never responded to Plaintiff’s inquiries. (Id. ¶¶ 67–68).
Plaintiff brought actions in New York State court and federal court. In state
court, Plaintiff filed an Article 78 petition asking that court to “direct [Defendants] to
Approve the Village Green Application, without any Covenants, Conditions, or
Modifications.” (Am. Verified Pet. ¶ 251, Village Green at Sayville, LLC v. Town of
Islip et al., No. 16-11060 (N.Y. Sup. Ct. July 25, 2017) (capitalization in original); e.g.,
id. ¶ 255 (“Defendants are obligated to process the site plan application. Such is
administrative. This is ministerial and non-discretionary.”); ¶ 257 (“Village Green is
entitled to entry of a Preliminary Injunction and Temporary Restraining Order
against [Defendants] directing them to process a Village Green site plan
application.”)). The Article 78 proceeding remains pending.
In federal court, Plaintiff alleges seven causes of action for violations of the:
(1) Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”); (2) Civil Rights Act of 1866,
Page 4 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 5 of 25 PageID #: 2184
42 U.S.C. § 1981; (3) Civil Rights Act of 1866, 42 U.S.C. § 1982; (4) Civil Rights Act
of 1871, 42 U.S.C. § 1983, and the Equal Protection Clause of the Fourteenth
Amendment; (5) NYSHRL § 296(6); (6) substantive due process under the Fourteenth
Amendment; and (7) the takings clause of the Fifth Amendment, as applicable to the
states by the Fourteenth Amendment. (Am. Compl. ¶¶ 87–133).
On September 27, 2019, this Court dismissed the first, fourth, sixth, and
seventh claims for lack of subject-matter jurisdiction. Under the first prong of the
Williamson County Regional Planning Commission v. Hamilton Bank (“Williamson”)
analysis, these claims ripen for federal judicial consideration only after the municipal
entity “reache[s] a final decision” on Plaintiff’s application. (Order at 10–11 (quoting
Williamson, 473 U.S. 172, 186 (1985)). Plaintiff proffered the Town Board’s non-vote
and the Town Attorney’s silence as evidencing a final decision. (Id. at 12–15). The
Court disagreed. (Id. (“Plaintiff has a non-vote and an alleged statement by the Town
attorney absent any citation to relevant binding precedent suggesting that this
utterance, such as it may be, constitutes a final decision, or is otherwise binding on
the Town Board.”)).
Further, Defendants’ “sweeping pronouncements that a final decision is
required” for the § 1981, § 1982, and NYSHRL claims went “without cit[ation] to any
authority in support.” (Id. at 17–19). The Court thus ordered the parties to address
whether Williamson’s final-decision requirement applies to those three claims. (Id.).
Defendants renewed their motion to dismiss as to the remaining claims on
November 1, 2019.
(See Def. Renewed Mem.).
Page 5 of 25
On January 31, 2020, Plaintiff
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 6 of 25 PageID #: 2185
cross-moved to reargue the Court’s Order on the four already-dismissed claims. See
Pl. Recons.
DISCUSSION
The Court begins with Defendants’ renewed motion to dismiss Counts Two,
Three, and Five, and then turns to Plaintiff’s cross-motion to reargue the dismissal
of Counts One, Four, Six, and Seven.
I.
Renewed Motion to Dismiss Pursuant to Rule 12(b)(1) for Lack of
Subject Matter Jurisdiction
A.
Legal Standards
A district court may properly dismiss a case pursuant to Rule 12(b)(1) for lack
of subject-matter jurisdiction when it lacks the “statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Plaintiffs
asserting a district court’s subject-matter jurisdiction bear the burden to prove its
existence by a preponderance of the evidence. MacPherson v. State St. Bank & Trust
Co., 452 F. Supp. 2d 133, 136 (E.D.N.Y. 2006), aff’d, 273 F. App’x 61 (2d Cir. 2008);
accord Tomaino v. United States, 2010 WL 1005896, at *1 (E.D.N.Y. Mar. 16, 2010).
A court may consider materials beyond the pleadings to resolve questions about its
subject-matter jurisdiction. Cunningham v. Bank of New York Mellon, N.A., 2015
WL 4101839, at *1 (E.D.N.Y. July 8, 2015) (citing Morrison v. Nat’l Austl. Bank, Ltd.,
547 F.3d 167, 170 (2d Cir. 2008)).
The standing doctrine concerns a federal court’s jurisdictional power to hear a
plaintiff’s suit. Carver v. City of New York, 621 F.3d 221, 225 (2d Cir.2010) (quoting
Warth v. Seldin, 422 U.S. 490, 498 (1975)). Plaintiffs must have standing for each of
Page 6 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 7 of 25 PageID #: 2186
their claims and forms of relief sought. Id. (quoting Baur v. Veneman, 352 F.3d 625,
642 n.15 (2d Cir.2003)). For standing, Article III of the U.S. Constitution demands
(1) the plaintiff must have “suffered an injury-in-fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 736
(2d Cir. 2017) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). An
“injury-in-fact” is a “concrete and particularized and actual or imminent, not
conjectural or hypothetical” invasion of a legally protected interest.
Id. at 736
(quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016)). At the pleadings
stage, general factual allegations of injury resulting from the defendant’s conduct
may suffice to show standing. Id. at 736 (quoting Lujan, 504 U.S. at 561).
The ripeness doctrine concerns the “Article III limitations on judicial power
and prudential reasons to refuse exercising jurisdiction,” Nat’l Park Hosp. Ass’n v.
Dep’t of Interior, 538 U.S. 803, 808 (2003), and can be viewed as a “specific application
of the actual[, concrete, particularized, or imminent] injury aspect of Article III
standing,” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013).
Unless ripe, a plaintiff’s case impermissibly entangles a federal court in abstract
disagreements on premature matters involving speculative injuries that may never
occur. Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90
(2d Cir. 2002).
Page 7 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 8 of 25 PageID #: 2187
B.
The Parties’ Arguments
Defendants answer the Court’s question in the affirmative: a final decision is
a prerequisite to the Court entertaining Plaintiff’s § 1981, § 1982, and NYSHRL
claims.
Defendants construe broadly the term “land-use”—from the binding
precedent espousing the finality requirement—as referring to any “land-use dispute
generally” and not referring specifically to, e.g., takings, due process, and equal
protection claims. Def. Renewed Mem. at 13–17. They cite Sunrise Detox V, LLC v.
City of White Plains, 769 F.3d 118 (2d Cir. 2014) and Town & Country Adult Living,
Inc. v. Vill./Town of Mt. Kisco, 2019 WL 1368560 (S.D.N.Y. Mar. 26, 2019) for the
application of the Williamson final-decision requirement to discrimination claims in
the land-use context. Def. Renewed Mem. at 13–17. And even if the § 1981, § 1982,
and NYSHRL claims are not “land-use” claims, Defendants continue, ordinary
constitutional standing and ripeness principles dictate that no concrete injury
occurred in the absence of a final decision. Id. at 17–20.
Plaintiff concedes that “all seven . . . causes of action are governed by the
finality requirement in Williamson, which requires the municipality [to have]
reached a final decision.” Pl. Recons. at 9; see id. at 10–11 (“[T]he Williamson finality
requirement similarly applies to Plaintiff’s Second and Third Causes of Action. . . .
Plaintiff’s Fifth Cause of Action, for violations of the NYSHRL, is also subject to the
finality requirement.”).
Because the issue goes to subject-matter jurisdiction, the Court proceeds with
its analysis notwithstanding the parties’ agreement that a final decision is required.
Page 8 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 9 of 25 PageID #: 2188
See Platinum-Montaur Life Scis., LLC v. Navidea Biopharm., Inc., 943 F.3d 613, 617
(2d Cir. 2019) (“[S]ubject-matter jurisdiction cannot be . . . conferred by consent of the
parties.”).
C.
Plaintiff Lacks Standing for its Second, Third, and Fifth
Causes of Action
1.
Williamson’s Final-Decision Requirement
The Second Circuit has extended Williamson’s finality requirement to
discrimination-based land-use claims like Plaintiff brings here, including to § 1981,
§ 1982, and NYSHRL claims. See Sunrise Detox, 769 F.3d 118 (2d Cir. 2014).
In Sunrise Detox, the plaintiff applied for a special zoning permit to designate
its proposed drug and alcohol rehabilitation facility a “community residence.” Id. at
119–20. Though the planning board recommended approval, public opposition led
the
plaintiff
to
revise
its
application,
requesting
instead
a
“reasonable
accommodation” to treat the facility as a community residence. Id. at 120. The
defendants denied the new application and advised the plaintiff either to seek a
variance or to appeal the decision, as “the city could take no further action.” Id. at
119, 121. The plaintiff chose neither option and filed a lawsuit alleging inter alia
intentional discrimination in violation of the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. Id.
The Second Circuit affirmed dismissal on ripeness—or, more specifically,
un-ripeness—grounds. Sunrise Detox, 769 F.3d at 124–25. In so holding, it explained
the Williamson finality requirement extended beyond that case’s regulatory taking
posture. Id. at 122 (“We have previously extended the final-decision requirement to
Page 9 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 10 of 25 PageID #: 2189
zoning challenges based on substantive due process; First Amendment rights of
assembly and free exercise; the Religious Land Use and Institutionalized Persons Act
of 2000 (“RLUIPA”) . . . ; and a state analogue to RLUIPA.” (citing Murphy v. New
Milford Zoning Comm’n, 402 F.3d 342, 349–50, 352 (2d Cir. 2005)). As such, “a
plaintiff alleging discrimination in the context of a land-use dispute is subject to the
final-decision requirement unless he can show that he suffered some injury
independent of the challenged land-use decision.” Id. at 123. Such independent
injuries may flow from “a zoning policy that is discriminatory on its face or the
manipulation of a zoning process out of discriminatory animus to avoid a final
decision,” either of which obviates a plaintiff’s need to await a final decision. Id.
(internal citations omitted); see also Safe Harbor Retreat LLC v. Town of E. Hampton,
629 Fed. App’x 63, 65 (2d Cir. 2015).
The finality requirement applies to Plaintiff’s second, third, and fifth counts. 2
Those counts are alleged to have “arisen out of a pattern of discrimination on the
basis of race, ethnicity, and familial status” in a land-use dispute. See Am. Compl.
¶ 2; id. ¶ 13 (“Defendants’ conduct . . . has prevented Minorities from obtaining
housing in the overwhelmingly white hamlet of Sayville, thereby perpetuating the
pattern of segregation in the Town . . . .”); ¶ 36 (“[T]he Town has prevented
The Second Circuit did not distinguish between federal- and state-law causes
of action alleging discrimination in the land-use context, see Sunrise Detox, 769 F.3d
at 124 (applying the Williamson final-decision requirement to Connecticut’s RLUIPA
analogue), and there is no basis to distinguish them here. See Am. Compl. ¶ 2; see
also Pl. Recons. at 11 (“[T]he finality requirement of Williamson. can also be
applied . . . under New York State law.”).
2
Page 10 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 11 of 25 PageID #: 2190
construction of the type of affordable and market-rate rental apartments that
Minorities are disproportionately likely to occupy. This serves to exclude Minorities
and perpetuate the pattern of segregation that currently exists in the Town.”); ¶ 81
(“[T]he Town has a custom, policy, or practice of limiting affordable or rental housing
in predominately white areas . . . by imposing C&Rs that require condominiums or
impose age-restrictions on rental apartments, while infrequently imposing such
restrictions on properties in areas with high concentrations of Minorities.”); ¶ 82
(“Defendants frequently grant applications to modify C&Rs to permit rental
apartments in the areas . . . with a high concentration of Minorities, while refusing
to modify such C&Rs in predominantly white areas . . . , which has the purpose and
effect of discriminating against Minorities that seek to live in the predominantly
white areas . . . .”); ¶ 85 (“Defendants’ refusal to modify the C&Rs precluding the
development of multi-family housing, and rejecting Plaintiff’s application[,] have the
purpose and effect of limiting the housing opportunities for Minorities . . . and
perpetuating ethnic and racial segregation in housing in the Town.”); see also id.
¶¶ 89–98, 102–03, 107–08, 112–118, 124–25.
Plaintiff does not plead any “injury independent of the challenged land-use
decision” that would exempt its case from the finality requirement. See Sunrise
Detox, 769 F.3d at 123. There are no plausible allegations against Defendants for
facially discriminatory policies. See Am. Compl. ¶ 90 (“This facially-neutral custom,
policy or practice, both on its face and as applied . . . , has reinforced the historical
patterns of racial and ethnic segregation in the Town.” (emphasis added)).
Page 11 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 12 of 25 PageID #: 2191
Nor does Plaintiff allege Defendants are manipulating its zoning process with
a “discriminatory animus to avoid a final decision.” See Sunrise Detox, 769 F.3d at
123 (emphasis added); Safe Harbor Retreat, 629 Fed. App’x at 65. Indeed, Plaintiff’s
Complaint and opposition briefing on Defendants’ first motion to dismiss reflect
Plaintiff’s belief that it received a final decision. E.g., Am. Compl. ¶ 9 (“On the very
night the Town Board denied Plaintiff’s application . . .”); id. ¶ 12 (“In denying
Plaintiff’s application . . .”); id. ¶ 76 (“During the same period which the Town and
Planning Boards considered and denied Plaintiff’s application . . .”); id. ¶ 96
(“Defendants denied Plaintiff’s application without even holding a vote thereon.”); Pl.
Opp. at 8 [ECF 29-5] (“The non-vote was treated as a denial, and no further action
was taken on the Application.”); id. at 12 (“[I]t is clear that the Town Board’s . . . nonvote was a denial . . .”); id. (“Defendants’ record of this vote, memorialized in a Town
Board resolution, states that the vote ‘fail[ed] for lack of a second.’ It should therefore
be considered a denial.” (internal citation omitted)).
With nary a hint in the Complaint of injuries independent of the challenged
land-use decision, Plaintiff must satisfy the Williamson finality requirement. See
Sunrise Detox, 769 F.3d at 123.
2.
Sunrise Detox’s Hypothetical
Before the Court leaves behind its Sunrise Detox analysis, a hypothetical from
that case merits brief mention. The Second Circuit declined to answer whether
a property owner who claimed that a local official vetoed his or her
development project out of hostility based on the owner’s race, gender,
disability, or the like, in violation of federal statutory or constitutional
law, could seek immediate recompense in federal court from that official
for the dignitary or emotional harm inflicted by the official even in the
Page 12 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 13 of 25 PageID #: 2192
absence of a final decision on the development proposal or without
pursuing an administrative appeal of that action. That question is not
presented in [Sunrise Detox], because [plaintiff] does not seek
compensatory damages from the official who it claims acted out of
discriminatory motivation, but rather seeks an injunction blocking the
disapproval and authorizing construction of its project. Regardless of
the basis of the claim that the local action violated federal rights, the
relief sought brings the case squarely within the compass of Williamson
County and its progeny.
Id. at 123. That is, a final decision may, or may not, be required of a property owner
(i) seeking compensatory damages (ii) for “dignitary or emotional harm” (iii) flowing
from an official’s discrimination (iv) towards the owner’s race. See id. Taking each
in sequence, it is clear that Plaintiff seeks compensatory damages. Am. Compl. ¶ 1;
id. at 31 ¶ C (“Plaintiff demands judgment against Defendants as follows . . . [a]ward
compensatory damages . . . [to] fully compensate Plaintiff for the loss that has been
caused by the conduct of Defendants alleged herein.”).
But it is problematic if
Plaintiff purports that the Complaint alleges “dignitary or emotional harm.” The
Court holds that Plaintiff’s failure to allege “dignitary or emotional harm” removes
itself from Sunrise Detox’s hypothetical.
In its list of harms, Plaintiff leads with “economic losses” from “professional
expenses and fees related to [his application], property taxes and other carrying
costs.” Id. ¶ 86; Pl. Opp. at 9–11; see Order at 15 (reciting Plaintiff’s injuries). Suffice
to say, these are not dignitary harms. The closest allegation is the “deprivation of
[the] right to develop affordable housing for Minorities.”
Am. Compl. ¶ 86
(capitalization in original). Conceptually, this deprivation is a “harm” in-and-of-itself
and wholly separate from a “dignitary harm,” though the latter may spring from the
former. Cf. Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (“The deprivation
Page 13 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 14 of 25 PageID #: 2193
of First Amendment rights entitles a plaintiff to judicial relief wholly aside from . . .
any mental or emotional injury he may have incurred.”); see generally Augustin v.
Jablonsky, 2001 WL 770839, at *6 n.4 (E.D.N.Y. Mar. 8, 2001) (defining “dignitary
harm”).
Nevertheless, absent a basis to connect Plaintiff’s “deprivation” to a
dignitary or emotional harm, the Court will not conjure one into the Amended
Complaint. Therefore, the claims here are not the type considered in Sunrise Detox’s
outstanding hypothetical. See Sunrise Detox, 769 F.3d at 123.
3.
Plaintiff Has No Final Decision
For the same reasons expressed in its Order dated September 27, 2019, the
Court dismisses the second, third, and fifth causes of action for lack of subject-matter
jurisdiction as a result of Plaintiff’s failure to obtain a final decision. Order at 12–13,
16–17.
The purported final actions—the Town Board’s non-vote and the Town
Attorney’s non-response—remain without “citation to relevant binding precedent
suggesting . . . [they] constitute[] a final decision.” Id. at 13; see Am. Compl. ¶¶ 67–
69. The absence of a final decision is also apparent from the “Article 78 proceeding
pending in state court to compel Defendants to grant Plaintiff’s application.” Order
at 16.
Plaintiff devotes the bulk of its brief to the “two exceptions to the finality
requirement,” which would dispense with final-decision requirement altogether. Pl.
Recons. at 9, 11–15. The Court addresses the exceptions in the context of Plaintiff’s
cross-motion to reargue.
Page 14 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 15 of 25 PageID #: 2194
II.
Cross-Motion to Reargue the Court’s September 27, 2019 Order
A.
Legal Standards
Under Federal Rule of Civil Procedure 54(b), as well as its inherent power, a
court may “reconsider a prior decision at any time before entry of final judgment.”
Smith v. Town of Hempstead Dept. of Sanitation Sanitary Dist. No. 2, 982 F. Supp.
2d 225, 230 (E.D.N.Y. 2013) (internal quotation marks omitted). Rule 54(b) provides,
in relevant part, that “any order or other decision . . . that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
responsibilities.” Fed. R. Civ. P. 54(b).
The standard for a motion for reconsideration “is strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or
[factual] data that the court overlooked – matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (finding district court properly exercised
its discretion to reconsider earlier ruling in light of the introduction of additional
relevant case law and substantial legislative history); see also Arum v. Miller, 304 F.
Supp. 2d 344, 347 (E.D.N.Y. 2003) (“To grant such a motion the Court must find that
it overlooked matters or controlling decisions which, if considered by the Court, would
have mandated a different result” (citation and internal quotation marks omitted)).
“The major grounds justifying reconsideration are ‘an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error
Page 15 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 16 of 25 PageID #: 2195
or prevent manifest injustice.’” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal
Practice & Procedure § 4478). Thus, a “‘party may not advance new facts, issues, or
arguments not previously presented to the Court.’” Nat’l Union Fire Ins. Co. v. Stroh
Cos., 265 F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v. St. Martin’s Press, 2000 WL
98057, at *1 (S.D.N.Y. Jan. 18, 2000)). A party may, however, introduce relevant
authority that was not before the district court when it initially ruled on the matter.
See Vaughn v. Consumer Home Mortg. Co., 2007 WL 140956, at *6 (E.D.N.Y. Jan. 22,
2007). In the alternative, reconsideration is appropriate if a court “misinterpreted or
misapplied” relevant case law in its original decision.
B.
The Parties’ Arguments
Plaintiff moves the Court to reconsider the Order in its entirety as a result of
the Court’s “fail[ure] to address the existence of two exceptions to the finality
requirement set forth in Williamson.” Pl. Recons. at 11–15. Plaintiff argues the
Court overlooked that no final decision is necessary (1) where “a zoning agency . . .
has dug in its heels and made clear” it will deny an application, or (2) a zoning agency
imposes “repetitive or unfair land-use procedures in order to avoid a final decision.”
Sherman v. Town of Chester, 752 F.3d 554, 562 (2d Cir. 2014). Plaintiff further argues
that “the Court misapprehended the test for standing under the [Fair Housing Act]”
because “Second Circuit precedent does not require a final decision, only that Plaintiff
has pleaded a concrete and redressable harm that is traceable to Defendants actions.”
Pl. Recons. at 19–20.
Page 16 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 17 of 25 PageID #: 2196
Defendants argue that the Court did not overlook any fact or legal precedent
meriting reconsideration of its Order. Further, Defendants contend that Plaintiff’s
current position reflects an about-face turn from its earlier view of Defendants’ “final”
action. Def. Renewed Reply at 8–20 [ECF 46]. Defendants say the Court did not
“misapprehend” Second Circuit precedent, which “does not stand for the proposition
that a final decision is not required for standing under the Fair Housing Act.” Id. at
20–22. Defendants also reiterate their bases for dismissal of Counts One, Four, Six,
and Seven under Rule 12(b)(6), which the Order did not reach following its subjectmatter jurisdiction analysis.
C.
Futility
1.
Plaintiff Failed to Raise a Futility Argument
Upon re-review of Plaintiff’s initial opposition brief, the Court finds that
Plaintiff did not raise a futility argument. See Pl. Opp. at 12. Plaintiff casts its
reargument papers as “simply elaborat[ing] on its previously raised argument by
citing additional case law and providing a more thorough discussion of the futility
exception,” but the Court disagrees because there was no “previously raised
argument.” See Pl. Recons. Reply at 4 [ECF 47].
Plaintiff’s previously-cited “case law” was one case—Sunrise Development Inc.
v. Town of Huntington, 62 F. Supp. 2d 762, 770 (E.D.N.Y. 1999)—which was cited
solely to point out the existence of the futility exception. Pl. Opp. at 12 (quoting
Sunrise Dev., 62 F. Supp. 2d at 770 (“[L]itigants are not required to engage in futile
gestures to establish ripeness.”) and id. (“[A]ny further efforts to work within
administrative apparatus would be an exercise in futility.”)); see also Pl. Recons.
Page 17 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 18 of 25 PageID #: 2197
Reply at 5. Mere recitation of the futility standard does not aid the Court in its
application to the facts at bar. Further, Sunrise Development is not a case about the
futility exception; it contains no more analysis on futility than does Plaintiff’s initial
briefing. Compare 62 F. Supp. 2d at 770–71 (devoting two sentences to the futility
exception), with Pl. Opp. at 12 (quoting those same two sentences). The Sunrise
Development court never reached the issue of futility because the defendants’ actions
were “tantamount to a final denial of the special use permit . . . caus[ing plaintiff]
actual, concrete injury.” 62 F. Supp. 2d at 771 (emphasis added).
Plaintiff’s “discussion” is similarly conclusory.
See Pl. Opp. at 12.
The
reargument papers compared to the initial papers reflect the dearth in treatment.
For example, the reargument papers catalogue nine-pages worth of futility-argument
by comparing-and-contrasting the facts with those in Sherman v. Town of Chester,
752 F.3d 554, 562 (2d Cir. 2014). See Pl. Recons. at 11–19. But the initial papers cite
Sherman once—for an inapposite proposition twenty-two pages after the futility
“discussion.” See Pl. Opp. at 12, 34. Unlike its reargument papers, Plaintiff’s initial
papers never identified what gestures would be futile, nor does it explain why such
further efforts would be futile – despite Plaintiff’s acknowledgment that “it is no
simple task to distinguish procedures that are merely frustrating from those that are
unfair or would be futile to pursue.” Pl. Recons. at 12 (quoting Sherman, 752 F.3d at
563); see also Pl. Recons. Reply at 5 (stating that such “substantial” factual support
is found “in Plaintiff’s opposition papers,” i.e., Pl. Recons. at 3–8).
Plaintiff’s
“discussion” summarily asserts that if the Town Board’s non-vote and Town
Page 18 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 19 of 25 PageID #: 2198
Attorney’s non-response are not final decisions, then they must suffice to meet
Plaintiff’s burden on futility. That argument is less “in the alternative” and more
“heads I win, tails you lose.”
In conclusion, nothing in Plaintiff’s initial papers constitutes raising a
developed futility argument. The term “futile,” or some derivative thereof, appears
only on one page: three times in the body and once in a footnote. Pl. Opp. at 12. The
Court is not hyper-technical—there is no page-length or term-usage criteria for
properly-raised arguments—but the abbreviated appearance evidences its short
shrift. See id.
The Court nevertheless exercises its discretion to grant the motion for
reconsideration on the issue of futility. E.g., Mangino v. Inc. Vill. of Patchogue, 814
F. Supp. 2d 242, 247 (E.D.N.Y. 2011). 3
While the failure to argue futility could serve as the Court’s basis to deny
reargument, see Nat’l Union Fire Ins. Co., 265 F.3d at 115, Plaintiff’s insistence that
the current procedural posture “require[s] the Court to reconsider” the Order and
analyze futility merits brief attention, Pl. Recons. Reply at 6.
The renewed motion to dismiss does not “entitle[]” Plaintiff to raise futility in
the first instance; Plaintiff misunderstands the Court’s direction for the renewed
motion. See Pl. Recons. Reply at 6. The Order expressly raised a question of law
necessary to determine its subject-matter jurisdiction: “whether a final decision is
required to establish standing and ripeness for § 1981, § 1982, and NYHRL claims.”
Order at 26. The renewed motion is limited to that question. Id. Its answer does not
turn on the facts of the case or on exceptions arising if the answer is “yes.”
Plaintiff already had an opportunity to address the Court’s subject-matter
jurisdiction over the second, third, and fifth causes of action. Compare Pl. Recons.
Reply at 6, with Pl. Opp. at 9–13 (arguing “the Court has subject-matter jurisdiction”
for every claim). Merely because the Court posed a question about its subject-matter
jurisdiction does not give Plaintiff carte blanche to raise new arguments in favor of
such jurisdiction, e.g., futility. Though a party may not waive or forfeit challenges to
subject-matter jurisdiction, a party may waive or forfeit arguments in support of
subject-matter jurisdiction. Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 809
3
Page 19 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 20 of 25 PageID #: 2199
n.6 (1986); Sexual Minorities Uganda v. Lively, 899 F.3d 24, 34 (1st Cir. 2018) (“Even
though federal subject-matter jurisdiction cannot be established through waiver or
estoppel, it may be defeated by waiver or estoppel. For example, a federal court is
not required to assume jurisdiction under a theory that a party has waived.”); U.S. ex
rel. King v. Hillcrest Health Ctr., Inc., 264 F.3d 1271, 1279 (10th Cir. 2001) (“Grounds
or arguments in support of subject matter jurisdiction may be waived like any other
contention.”); Ceres Gulf v. Cooper, 957 F.2d 1199, 1207 n.16 (5th Cir. 1992) (“Because
of our limited jurisdiction, we must always be vigilant to ensure that we have subject
matter jurisdiction, addressing the issue sua sponte if need be. But, this discipline is
separate from our declining to address untimely raised legal theories in support of
that jurisdiction.”); see 13 C. Wright, A. Miller & E. Cooper, Federal Practice &
Procedure § 3522, at n.17 (3d ed. 2020); see also Kontick v Ryan, 540 U.S. 443, 455
(2004) (“A litigant generally may raise a court’s lack of subject-matter jurisdiction at
any time in the same civil action, even initially at the highest appellate instance”
(emphasis added)); Lafalier v. State Farm Fire & Cas. Co., 391 Fed. App’x 732, 738
(10th Cir. 2010) (“[A]lthough the argument concerns subject matter jurisdiction, it
remains waivable because it is an argument in support of, not a challenge to,
jurisdiction.”).
By analogy, the Second Circuit can refuse to consider arguments in favor of
subject-matter jurisdiction that were not first raised in the district court. E.g.,
Williams v. Romarm, 751 Fed. App’x 20, 23 (2d Cir. 2018) (“[P]laintiffs also argue
that subject matter jurisdiction exists under the first clause of the commercialactivity exception. But that argument was not raised by the plaintiffs below in their
opposition to Romarm’s motion to dismiss and therefore was waived” (citation
omitted)); Larkins v. Garcia, 379 Fed. App’x 17, 17 (2d Cir. 2010) (“[A]s Appellant did
not raise before the district court the alleged violations of the constitution and federal
criminal law that she argues on appeal, the district court had no cause to construe
the complaint as raising constitutional claims” and thus “correctly concluded that it
lacked subject matter jurisdiction.”); see also Morse v. Ozark Cnty., Mo., 609 Fed.
App’x 359, 360–61 (8th Cir. 2015); Barnard v. Century Enters., Inc., 89 F.3d 844, at
*1 n.2 (9th Cir. 1996) (“[T]he Barnards advance several other reasons to support their
contention that the district court had subject matter jurisdiction. Because the
Barnards did not raise these contentions in district court, they have waived them on
appeal.”).
Consider the plaintiff in Giovanniello v. N.Y. Law Pub. Co., who moved for
reconsideration of a court order dismissing his case for lack of subject-matter
jurisdiction. 2007 WL 4320757, at *1 (S.D.N.Y. Dec. 11, 2007). The plaintiff’s
reconsideration brief presented a novel “choice-of-law issue,” which he asserted he
was “entitled” to raise because the issue “concern[ed] th[e] Court’s subject-matter
jurisdiction.” Id. The Giovanniello court did not agree that he was so entitled. Id.
“The gravamen of the prior motion to dismiss was th[e] Court’s subject-matter
jurisdiction. [Plaintiff] had a full and fair opportunity to raise the choice of law
argument . . . but chose not to do so.” Id. (emphasis in original). The same reasoning
Page 20 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 21 of 25 PageID #: 2200
2.
On Reconsideration, Plaintiff Fails to Plausibly Allege
Futility
The Amended Complaint fails to meet futility’s “high standard,” which
requires Defendants’ actions to be “so unreasonable, duplicative, or unjust as to make
the conduct farcical.” Sherman, 752 F.3d at 563. This is best seen by comparing
Sherman with Plaintiff’s case.
Sherman involved five zoning regulation changes, each mooting a proposal the
plaintiff had recently submitted or was about to submit. 752 F.3d at 562. The
plaintiff faced retroactive six-month moratoriums on development that “applied only
to [his] property,” a one-year extension of one of those moratoriums, new and “openly
hostile” officials, and “monthly lists of demands, which included” various repetitive
and unnecessary studies. Id. at 557–60. He had to “answer all inquiries by local
residents,” with some answers repeated “twenty to forty times because the Planning
Board did not permit him to quote a previous answer.” Id. He had to pay $65,000 in
fees before he could obtain a hearing. Id. His efforts lasted over a decade, forcing
him “to spend over $5.5 million . . . [becoming] financially exhausted to the point of
facing foreclosure and possible personal bankruptcy.” Id. at 563. The Second Circuit
held he adequately pled futility and he need not obtain a final decision. See id.
operates here. The Court’s earlier Order squarely addresses the lack of subjectmatter jurisdiction, which was the first issue raised in the parties’ initial briefs. See
Order at 26; Def. Mem. at 12–19 [ECF 28-10]; Pl. Opp. at 9–15. Plaintiff never used
the opportunity to argue futility. See supra Section II.C.1.
Assuming arguendo that Plaintiff did not waive his futility argument in favor
of subject-matter jurisdiction, the Court still reaches the same conclusion and
dismisses Plaintiff’s case in its entirety. See Section II.C.2.
Page 21 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 22 of 25 PageID #: 2201
By contrast, the only zoning change Plaintiff faced was negotiated in its favor,
subject to accepting the C&Rs. Am. Compl. ¶¶ 1, 4. Plaintiff faced no moratoriums,
no extensions of any moratoriums, nor monthly lists of demands. While Plaintiff did
suffer an openly hostile public hearing and undertake repetitive studies, it was not
asked to answer every resident’s inquiries. Id. at 14–16 4; see also Bloomingburg
Jewish Educ. Ctr. v. Vill. of Bloomingburg, 111 F. Supp. 3d 459, 479 (S.D.N.Y. 2015)
(“Futility does not exist merely because public officials are hostile to the proposal at
issue.”). Plaintiff’s efforts to modify the C&Rs spanned less than three years, 5 and
no paragraph in Plaintiff’s submissions specify the costs incurred to date. 6 Id. ¶¶ 43,
69.
Furthermore, futility requires Defendants’ either to lack discretion to grant
Plaintiff’s application or to have “dug in its heels and made clear that all such
applications will be denied.” Murphy, 402 F.3d at 349 (emphasis added). Plaintiff
admits “no vote was held” on the application but infers from that non-vote its denial.
The paragraph numbers repeat on page 15 of the Amended Complaint, so the
Court prefers the clarity of page numbers for this citation.
4
The Complaint does not plausibly support including all “seven fruitless years
[Plaintiff spent] trying to comply the C&Rs” as part of “Defendants’ history of
undermining any development.” Pl. Recons. at 15, 18. The Complaint mentions “a
difficulty in obtaining financing” which was “later exacerbated by the subsequent
economic and housing market crash of the Great Recession in 2008.” Am. Compl.
¶ 40. That is, at least part of the reason why the interval was fruitless cannot be
attributed to Defendants. Plaintiff was also able to purchase one easement during
that time, albeit not from Defendants. Id. ¶ 41.
5
Plaintiff alleges it suffered, continues to suffer, and will suffer in the future
“more than $10 million economic losses.” Am. Compl. ¶ 86. But the Complaint does
not break down that figure into present and future losses, so the Court is unable to
compare it, apples-to-apples, to Sherman’s figures.
6
Page 22 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 23 of 25 PageID #: 2202
Am. Compl. ¶ 63; Pl. Opp. at 12. Likewise, Plaintiff interprets the Town Attorney’s
silence as confirmation of its belief. But in the “absen[ce of] any citation to relevant
binding authority suggesting” the Town Attorney speaks for the Town Board, the
Board has not “made clear” its position. See Order at 12–13. Plaintiff thus has not
demonstrated futility.
D.
Fair Housing Act Standing
The Court denies reconsideration of its holding that Plaintiff lacks standing on
his FHA claims. Order at 16 (“Plaintiff does not have standing to bring its FHA claim
because there is no final decision and accordingly no injury.”). Plaintiff argues the
Court erred because “Second Circuit precedent does not require a final decision, only
that Plaintiff has pleaded a concrete and redressable harm that is traceable to the
defendants.” Pl. Recons. at 20. The Court does not share Plaintiff’s reading of Mhany
Management, Inc. v. County of Nassau, 819 F.3d 581 (2d Cir. 2016). Without a final
decision, Plaintiff has not suffered a “concrete” harm.
To begin, even though the Second Circuit may not have yet decided whether
the final-decision requirement applies to FHA claims, its inaction should not be
interpreted as a repudiation of the requirement. The Court adheres to the reasoning
in its Order—and that of the lower courts in the Second Circuit and the other
Circuits—which require FHA claims to satisfy the final-decision requirement. See
Order at 14–15; Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona,
915 F. Supp. 2d 574, 607–10 (S.D.N.Y. 2013) (citing cases).
Page 23 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 24 of 25 PageID #: 2203
The Second Circuit in Mhany Mgmt. observed, “Standing under the Fair
Housing Act is as broad as Article III permits.” 891 F.3d at 600. The Article III
standing elements are (1) an injury-in-fact, (2) traceability, and (3) redressability.
John, 858 F.3d at 736 (citing Lujan, 504 U.S. at 560–61). Mhany Mgmt.’s standing
analysis expressly concerns “the latter two prongs”: traceability and redressability.
819 F.3d at 600 (emphasis added). The finality requirement, however, arises from
ripeness concerns, Williamson, 473 U.S. at 186–94, and ripeness is “a specific
application of the actual injury aspect of Article III standing,” also known as “the first
Lujan factor,” Nat’l Org. for Marriage, Inc., 714 F.3d at 688 (emphasis added). “In
other words, a non-final decision . . . does not ordinarily give rise to an injury that is
sufficiently concrete and particularized to satisfy Article III,” i.e., the first prong of
the standing analysis. Sunrise Detox, 679 F.2d at 122. In concerning itself solely
with the second and third prongs, Mhany Mgmt. therefore says nothing on the first
prong, from where the finality requirement originates. See 819 F.3d at 600–03. When
the Mhany Mgmt. court upheld the plaintiff’s standing, it gave no occasion to read
into the decision an unwritten overturning of the injury-in-fact prong or, by
consequence, the final decision requirement. See 819 F.3d at 600–03. In fact, this
Court understands the Mhany Mgmt. plaintiff to have received a final decision. See
Order at 16. The Court thus finds no reason to reconsider its analysis of Mhany
Mgmt. or Plaintiff’s lack of standing for its FHA claims. See id.
Page 24 of 25
Case 2:17-cv-07391-DRH-ARL Document 49 Filed 01/22/21 Page 25 of 25 PageID #: 2204
CONCLUSION
For the reasons discussed above, Defendants’ renewed motion to dismiss is
GRANTED, and Plaintiff’s motion to reargue the Court’s order is GRANTED with
respect to the futility exception but DENIED with respect to standing for Fair
Housing Act claims.
On reconsideration, Defendants’ motion to dismiss is
GRANTED. This Court has now dismissed all seven causes of action. The Clerk of
Court is directed to terminate the action.
SO ORDERED.
Dated: Central Islip, New York
January 22, 2021
s/ Denis R. Hurley
Denis R. Hurley
United States District Judge
Page 25 of 25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?