O'Reilly et al v. Incorporated Village of Rockville Centre
Filing
29
MEMORANDUM AND ORDER re 28 Motion to Stay: As set forth in the attached Memorandum and Order, good cause exists warranting the issuance of a stay of discovery pending the outcome of Defendant's Rule 12(b)(6) motion to dismiss. Accordingly, Defendant's motion to stay discovery (ECF No. 28 ) is GRANTED. In the event the pending motion to dismiss is denied, the parties are directed to file within ten days of the issuance of the Order on that motion a proposed discovery schedule for the undersigned's consideration. So Ordered by Magistrate Judge James M. Wicks on 5/8/2024. (DF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
JAMES O’REILLY and BRETT O’REILLY,
Plaintiffs,
MEMORANDUM
AND ORDER
-against-
23-cv-04249 (NCM) (JMW)
INCORPORATED VILLAGE OF
ROCKVILLE CENTRE,
Defendant.
X
A P P E A R A N C E S:
John M. Brickman, Esq.
Christian Browne, Esq.
McLaughlin & Stern, LLC
1122 Franklin Avenue, Ste 300
Garden City, NY 11530
Attorneys for Plaintiffs
-andSteven C. Stern, Esq.
Sokoloff Stern LLP
179 Westbury Avenue
Carle Place, NY 11514
Attorney for Defendant
WICKS, Magistrate Judge:
Plaintiffs, James O’Reilly and Brett O’Reilly (“Plaintiffs”) commenced this land use
action against Defendant, Incorporated Village of Rockville Centre (“Defendant” or the
“Village”) on June 8, 2023 alleging that their subdivision application was unreasonably delayed
through legislative, Zoning Board of Appeals (“ZBA”), and Planning Board (“PB”) processes.
1
See generally, ECF No. 1. Specifically, Plaintiffs assert three causes of action pursuant to 42
U.S.C. § 1983: (i) substantive due process, (ii) equal protection, and (iii) violations of the First
Amendment, based on their appeal of determinations by these boards. (Id.) Following
unsuccessful settlement attempts, Defendant moved to dismiss Plaintiff’s Complaint in its
entirety pursuant to Fed. R. Civ. P. 12(b)(6), and subsequently moved to stay discovery in this
case pending the outcome of its motion to dismiss. (See ECF Nos. 19, 27, 28.) Now before the
Court is Defendant’s Motion to Stay Discovery (ECF No. 28), which is opposed by Plaintiff
(ECF No. 27-20). The motion to dismiss is pending before the Honorable Natasha C. Merle
(ECF No. 27). For the foregoing reasons, Defendant’s Motion to Stay (ECF No. 28) is
GRANTED.
BACKGROUND
I.
Factual Background
The following factual allegations are drawn from the Complaint. See generally, ECF
No. 1. Plaintiffs purchased a 1.75-acre parcel in the name of Brett O’Reilly, which was
previously open space that was part of a five-acre campus owned by a local Church. (ECF No.
1 at ¶ 10.) The Church had been engaged in a dispute with a nursery school that resulted in the
school vacating its basement, and some people in the community blamed Plaintiffs for the
school’s demise. (Id. at ¶¶ 15-16.) James O’Reilly had meetings with public officials regarding
the potential development of the property in 2014. (Id. at ¶ 17-18.) On January 4, 2016, the
Board of Trustees (“BOT”) adopted a definition of the word “street” for the purpose of
establishing lot or building frontage to refer to a “public road or street.” (Id. at ¶ 19.) 1
According to Plaintiffs, under this new definition, only a “public road or street” could be used “for the
purpose of establishing required dimensions or parameters of street frontage of a lot, use, building or
structure.” (Id. at ¶ 20.) Plaintiffs assert the Village construed the term “public road or street” to mean a
street dedicated to, and owned by the Village. (Id.)
1
2
Plaintiffs allege the Village added the “street” definition in efforts to thwart Plaintiffs’
development plan, which would entail the creation of a new dead-end, or cul-de-sac street,
running off of Hempstead Avenue, to enable access to new lots. (Id. at ¶ 21-22.) Specifically,
Plaintiffs allege the addition of the definition required them to seek and obtain zoning
variances in order to proceed with their subdivision development. (Id. at ¶ 22.)
James O’Reilly “began to plan” their development in the spring of 2016, and
“attempted to engage” with members of the BOT through the summer. (Id. at ¶¶ 23-26.) He
wrote to Village Attorney A. Thomas Levin in September 2016, informing him Plaintiffs
would dedicate a proposed roadway on his project to the Village. (Id. at ¶ 27.) He first filed a
subdivision application on September 30, 2016. (Id. at ¶ 28.) Between October 2016 and April
2017, Plaintiffs engaged in communications with the Village regarding the application of the
new definition of street to their project. (Id. at ¶¶ 29-30.) On April 21, 2017, the Village’s new
Superintendent of Buildings, Patrick O’Brien, informed James O’Reilly he needed to eliminate
a strip of property that was proposed for one of the lots, and Plaintiffs changed the “strip
design.” (Id. at ¶¶ 32-33.)
The ZBA convened a hearing on May 24, 2017, but adjourned it because of an alleged
defect in Plaintiffs’ mailing notices, and rescheduled it for June 7, 2017. (Id. at ¶ 34.) Members
of the public voiced “strenuous opposition” to the proposed subdivision and the hearing lasted
for hours, after which the ZBA denied Plaintiffs’ application. (Id. at ¶¶ 35-36.) Plaintiffs
changed their plans by restoring the strip of land to the lot, which they claim eliminated the
need for a street frontage variance, but Mr. O’Brien denied it because the proposed private
roadway was not a street under the Village’s definition. (Id. at ¶¶ 37, 45.) On July 10, 2017, the
Village enacted a six-month moratorium on development of private roads, but the state court
3
struck it down. (Id. at ¶¶ 40, 46.) 2 On November 28, 2018, James O’Reilly submitted an
entirely new application for six lots. (Id. at ¶ 48.) After some back-and-forth, on February 9,
2018, Plaintiffs were informed the application would go before the ZBA because it did not
meet the requirements for street frontage. (Id. at ¶ 51.) It was heard by the ZBA on March 29,
2018. (Id.) The ZBA granted the variances. (Id. at ¶ 55.)
Plaintiffs’ application went before the PB on July 10, 2018, and the hearing continued
on July 17, 2018, when Plaintiffs were directed to submit an environmental impact statement
(“EAF”). (Id. at ¶¶ 59-61.) Plaintiffs submitted the EAF, which the PB accepted at its
September 12, 2018 meeting. (Id. at ¶ 63.) The PB reviewed the EAF and issued a “negative
declaration” under the New York State Environmental Quality Review Act (“SEQRA”), but
denied the application because “it was not in conformity with the character of the
neighborhood.” (Id. at ¶¶ 64-65.) Plaintiffs challenged the decision in an Article 78 proceeding,
which the parties settled on August 6, 2019. (Id. at ¶¶ 66-69.) 3
Plaintiffs recorded the map with the County Clerk on February 10, 2020, which offered
to dedicate the new road to the Village. (Id. at ¶¶ 71-72.) They had already secured a buyer for
the six lots, but the buyer canceled when the COVID-19 emergency began. (Id.) The Building
Department issued the permits on July 20, 2020. (Id. at ¶ 77.) Following a remote BOT hearing
on the dedication on July 23, 2020, the BOT approved the dedication of the road. (Id. at ¶ 73.)
Although Plaintiffs claim the street was “essentially complete” by October 2020, the Village
On July 17, 2017, Plaintiffs brought suit against Defendant in Nassau County Supreme Court seeking a
hybrid declaratory judgment and injunctions to invalidate the moratorium. (ECF No. 1). On October 17,
2017, the Court invalidated the moratorium. (Id.)
2
Plaintiffs commenced the CPLR Article 78 special proceeding against the Planning Board, challenging
denial of their subdivision application on November 20, 2018. (Id. at ¶ 66.) The Planning Board approved
Plaintiffs’ subdivision application on August 6, 2019, the date of the settlement. (Id. at ¶ 69.)
3
4
insisted that the topcoat and other “punch list” items be completed, and utility easements and a
performance bond be filed, prior to the final conveyance. (Id. at ¶¶ 78-86.) On May 17, 2022,
the BOT approved the final conveyance and renamed the new street “Birch Lane.” (Id. at ¶ 87.)
Plaintiffs’ subsequently sold the lots. (Id.) Thereafter, the Village twice amended the definition
of “street” to avoid the confusion faced by Plaintiffs’ subdivision. (Id.)
II.
Procedural History
Plaintiffs commenced this action on June 8, 2023, against Defendant alleging the three
causes of action for violation of Plaintiffs’ substantive due process rights, violation of
Plaintiffs’ equal protection rights, and retaliation for Plaintiffs’ exercise of their First
Amendment rights. See generally, ECF No. 1. Specifically, Plaintiffs allege Defendant violated
their constitutional rights by intentionally delaying Plaintiffs’ development project for over five
years. (Id. at ¶ 1.) Following unsuccessful settlement discussions (see Electronic Order dated
November 20, 2023), Defendant moved to dismiss all claims asserted in the Complaint on
March 14, 2024. (ECF No. 27.) Defendants subsequently moved to stay all discovery pending
the outcome of the motion to dismiss on March 29, 2024. (ECF Nos. 28-3, 28-7.) Plaintiffs
filed their Opposition to Defendant’s Motion to Stay that same day. (ECF No. 28-6.)
III.
The Parties’ Contentions
In support of its Motion to Stay, Defendant asserts Plaintiffs’ claims are unmeritorious
because: (i) the claims are barred by the three-year statute of limitations for causes of actions
brought under 42 U.S.C. § 1983; (ii) Plaintiffs’ substantive due process claim fails to allege a
deprivation of a property interest and that the government’s action were egregious; (iii)
Plaintiffs’ class of one equal protection claim fails to provide similarly situated subdivision
applications; and (iv) Plaintiffs’ First Amendment claim fails the “plausibility test.” See
5
generally, ECF No. 28-3. Defendant additionally argues that Plaintiffs seek “voluminous and
overbroad discovery.” (Id. at 11-14.) Finally, Defendant argues that Plaintiffs will not be
prejudiced by a stay of discovery since they sold the lots in the subdivision. (Id. at 14.)
In their Opposition, Plaintiffs argue their claims are meritorious because the claims are
not barred by the statute of limitations, and Plaintiff properly stated a substantive due process,
equal protection, and First Amendment claim. See generally, ECF No. 28-6. Plaintiff avers
that the typical three-year statute of limitations does not apply – rather, the claims must be
analyzed and are timely under the “continuing violation doctrine.” (Id. at 5-6.) Plaintiffs
further argue their substantive due process claim would survive a motion to dismiss, since
Plaintiffs’ applications for land use approvals were denied as a result of Defendant’s deliberate
abuse of government power, and Plaintiffs maintained a property interest in the subdivision.
(Id. at 8-10, 11-15.) With respect to their equal protection claim, Plaintiffs argue they stated a
cause of action because similarly situated applicants of subdivisions were approved and
Plaintiffs experienced a difference in treatment. (Id. at 16-20.) Finally, as to their First
Amendment claim, Plaintiff argues that the plausibility test is satisfied because Defendant’s
further delayed the subdivision process due to Plaintiff’s success in state court. (Id. at 19-20.)
Plaintiffs further argue that continuing discovery would not be burdensome, as many of
the documents have already been produced in the state court action and Plaintiff is willing to
limit discovery requests when warranted. (Id. at 21-22.) Plaintiffs contend they would be
prejudiced by a stay in discovery since Plaintiffs would “be further delayed, memories fade,
and evidence deteriorates.” (Id. at 23.) Defendant’s Reply to Plaintiffs’ Opposition further
refutes the applicability of the continuing violation doctrine and maintains that Plaintiffs failed
to state a substantive due process, equal protection, and First Amendment claim. See
6
generally, ECF No. 28-7.
DISCUSSION
“‘[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the cases on its docket with economy of time and effort for itself, for
counsel, and for litigants.’” Thomas v. N.Y. City Dep’t of Educ., No. 09-CV-5167, 2010 WL
3709923, at *2 (E.D.N.Y. Sept. 14, 2010) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254
(1936)). The mere filing of a dispositive motion in and of itself does not halt discovery
obligations in federal court.4 That is, a stay of discovery is not warranted, without more, by
the mere pendency of a dispositive motion. Weitzner v. Sciton, Inc., No.CV 2005-2533, 2006
WL 3827422, at *1(E.D.N.Y. Dec. 27, 2006). Rather, the moving party must make a showing
of “good cause” to warrant a stay of discovery. Chesney v. Valley Stream Union Free Sch.
Dist. No. 24, 236 F.R.D. 113, 115 (E.D.N.Y. 2006). In evaluating whether a stay of discovery
pending resolution of a motion to dismiss is appropriate, courts typically consider: “(1)
whether the Defendants has made a strong showing that the plaintiff’s claim is unmeritorious;
(2) the breadth of discovery and the burden of responding to it; and (3) the risk of unfair
prejudice to the party opposing the stay.” Id. (citation omitted). “Courts also may take into
consideration the nature and complexity of the action, whether some or all of the Defendants
have joined in the request for a stay, and the posture or stage of the litigation.” Id. (citation
omitted).
“Upon a showing of good cause[,] a district court has considerable discretion to stay
discovery pursuant to Rule 26(c).” Al Thani v. Hanke, 20-CV-4765 (JPC), 2021 WL 23312, at
Contrast this with New York state court practice which expressly provides for a stay of discovery
pending the filing of a dispositive motion. See N.Y. CPLR 3214(b) (automatic stay of “disclosure” upon
service of dispositive motion).
4
7
*1 (S.D.N.Y. Jan. 4, 2021) (alteration in original) (quoting Republic of Turkey v. Christies, Inc.,
316 F. Supp. 3d 675, 677 (S.D.N.Y. 2018)). In assessing good cause, Courts look to “the
particular circumstances and posture of each case.” Ellington Credit Fund, Ltd. v. Select
Portfolio Servs., Inc., No. 08 Civ. 2437 (RJS), 2008 WL 11510668, at *2 (S.D.N.Y. June 12,
2008) (quoting Hachette Distrib., Inc. v. Hudson Cnty. News Co., 136 F.R.D. 356, 358
(E.D.N.Y. 1991)). Au fond, the specific facts, circumstances and context of the case guide the
court.
Here, the Court finds “good cause” to stay discovery in light of the arguments
Defendants advances in its Rule 12(b)(6) motion for the reasons set forth below. 5 First, the
arguments Defendant sets forth appear, at least on their face, to make a strong showing that
Plaintiffs’ claims are barred by the statute of limitations and otherwise fail on the merits.
“Section 1983 claims brought in New York are subject to New York’s three-year statute of
limitations for general personal injury actions.” Bar-Mashiah v. Inc. Vill. of Hewlett Bay Park,
No. CV 18-4633 (AKT), 2019 WL 4247593, at *11 (E.D.N.Y. Sept. 6, 2019). Because
Plaintiffs filed the Complaint in this action on June 8, 2023, they may recover only for those
claims that accrued on or after June 8, 2020. See id; Deepwells Estates Inc. v. Inc. Vill. of Head
of Harbor, 973 F. Supp. 338, 345 (E.D.N.Y. 1997) (internal citations omitted) (“An action
accrues when the plaintiffs know, or had reason to know, of the injury that is the basis of the
action.”).
The Court finds that Plaintiffs “were well aware of the alleged injury purportedly
created” by the Village’s denial of their subdivision application – and their claims therefore
The Court’s consideration and analysis of the arguments set forth in Defendant’s motion to dismiss
Plaintiff’s Complaint under Fed. R. Civ. P. Rule 12(b)(6) is purely for purposes of weighing whether a
stay should be granted. This analysis should not in any way be construed as the Court prejudging the
merits or predicting the outcome of the motion to dismiss before District Judge Natasha C. Merle.
5
8
accrued – prior to June 8, 2020. Bar-Mashiah, No. CV 18-4633 (AKT), 2019 WL 4247593, at
*11. “In reaching this conclusion, the Court takes judicial notice” of the fact that Plaintiffs
commended an Article 78 special proceeding against the Planning Board, challenging denial of
their subdivision application on November 20, 2018, “and therefore had to have been aware of
the alleged injury created by [the Village’s denial] at least as of [November 2018], when they
first sought a judicial remedy via Article 78.” Id; see also ECF No. 1 at ¶ 66. Plaintiffs’
argument that the continuing violations doctrine tolls the three-year statute of limitations is
unavailing. Id. (“Under the continuing violations doctrine, a claim challenging a continuous
practice or policy of discrimination may not accrue until the last discriminatory act in
furtherance of the policy.”). Preliminarily, the Court notes that the “continuing violation
doctrine is applicable in limited contexts, including Title VII discrimination and retaliation
claims, Eighth Amendment claims of medical indifference brought under Section 1983, and
Eighth Amendment claims for cruel and unusual punishment against federal officials.” Kwas v.
Intergraph Gov't Sols., No. 15CV5897JFBAYS, 2016 WL 4502039, at *2 (E.D.N.Y. Aug. 24,
2016) (emphasis added).
“Apart from the fact that the Court is unaware of any authority applying the continuing
violation doctrine to land-use disputes like this one,” it additionally concludes that Plaintiffs
“knew or should have known” of their claims at the time the Village denied their subdivision
application, and therefore “there is no justification for the application of the continuing
violation theory.” Bar-Mashiah, No. CV 18-4633 (AKT), 2019 WL 4247593, at *12 (internal
citations omitted); Lubavitch of Old Westbury, Inc. v. Inc. Vill. of Old Westbury, New York,
No. 208CV05081GRBLGD, 2023 WL 6521621, at *16 (E.D.N.Y. Feb. 7, 2023) (internal
quotations omitted) (“Plaintiffs overlook that where the continuing violation doctrine applies,
9
the limitations period begins to run when the defendant has engaged in enough activity to make
out an actionable claim.”); Trinidad v. New York City Dep't of Correction, 423 F. Supp. 2d
151, 165 n.11 (S.D.N.Y. 2006) (quoting Stephens v. Hofstra University School of Law, 2005
WL 1505601, at *4 (E.D.N.Y. Jun. 24, 2005) (“As a general matter, the continuing violation
doctrine is ‘heavily disfavored in the Second Circuit’ and courts have been ‘loath’ to apply it
absent a showing of ‘compelling circumstances.’”); see also Andrews v. Town of Wallingford,
No. 3:16-CV-01232 (JAM), 2017 WL 3588571, at *3 (D. Conn. Aug. 21, 2017), aff'd, 739 F.
App'x 62 (2d Cir. 2018) (holding the continuing violations doctrine inapplicable to plaintiff’s
land-use claim).
To succeed on their substantive due process claim, Plaintiffs must “allege acts
establishing (1) a cognizable property interest (2) that was invaded in an arbitrary and irrational
manner.” Rankel v. Town of Somers, 999 F. Supp. 2d 527, 546 (S.D.N.Y. 2014) (internal
citations omitted) (“A plaintiff must plead governmental conduct that is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.”) Plaintiffs’
allegations that their applications for land use approvals were denied as a “result of
Defendant’s deliberate abuse of government power” are likely insufficient to state a
substantive due process claim. See e.g., Rankel, 999 F. Supp. 2d at 546–47 (internal citations
omitted) (“To the extent Plaintiff bases his claim on the Town’s obligation to enforce its
Codes, this purported obligation, as explained above, provides no protected interest because
Plaintiff cannot demand that Defendants enforce these discretionary laws.”)
Even assuming Plaintiffs had a property interest, they likely fail to allege the Village
“engaged in conduct that is so egregious, so outrageous as to shock the conscience.” Id. at 547
(quoting Ruston v. Town Bd. of Skaneateles, No. 06–CV–927, 2008 WL 5423038, at *5
10
(N.D.N.Y. Dec. 24, 2008)) (holding Plaintiff’s allegation that the Town denied him permits,
allowed infringement of his right of way, and targeted his property for baseless violations in
retaliation for his First Amendment activity and to benefit his neighbors were “allegations of
‘improper motives’ and ‘selective enforcement’ on the part of municipal officials [that] fall
into the ‘non-conscience-shocking category.’”).
To state a claim for equal protection, Plaintiffs can proceed on both a “selective
enforcement” and a “class-of-one theory[:]”
Where a plaintiff is treated unequally compared with others similarly situated, and when
such treatment is based on impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to
injure a person, the facts give rise to a claim of selective enforcement. Similarly, equal
protection claims based on a so-called “class of one” theory involve claims where the
plaintiff alleges that she has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment. A plaintiff
asserting a selective enforcement or class-of-one claim must present evidence of similarly
situated comparators.
Dean v. Town of Hempstead, 527 F. Supp. 3d 347, 430–33 (E.D.N.Y. 2021) (internal citations
omitted) (cleaned up); Pappas v. Town of Enfield, 602 F. App'x 35, 36 (2d Cir. 2015) (quoting
Fortress Bible Church v. Feiner, 694 F.3d 208, 223–24 (2d Cir. 2012)) (“Where a plaintiff
challenges a zoning decision, that standard requires her to identify comparators who are similarly
situated to her with regard to the zoning board's ‘principal reasons’ for denying the
application.”).
The Court similarly finds that Plaintiffs likely “have not met their burden of showing that
they were treated differently compared to others similarly situated and that there is no rational
basis for the difference in treatment as Plaintiffs fail to present evidence of similarly situated
comparators.” Dean, 527 F. Supp. 3d at 433 (collecting cases); Rankel, 999 F. Supp. 2d at 545
(dismissing Plaintiff's equal protection claim because “he failed to allege that he was treated
11
differently from similarly situated individuals.”); MacPherson v. Town of Southampton, 738
F.Supp.2d 353, 371 (E.D.N.Y.2010) (dismissing equal protection claim because complaint failed
to “identify any comparators or similarly situated entities”); Gregory v. Inc. Vill. of Ctr. Island,
No. 14-CV-2889 JFB AKT, 2015 WL 5093623, at *13 (E.D.N.Y. Aug. 28, 2015) (internal
quotations omitted) (collecting cases) (noting “a plaintiff alleging unfair treatment in a
zoning/building context must plead specific examples of applications and hearings that were
similar to plaintiff's application and demonstrative of the disparate treatment alleged” and
holding plaintiff failed to plead “a class-of-one claim,” because he “ha[d] not passed the
threshold hurdle of pleading the existence of a comparator[,]” and his “assertions that similarly
situated applicants were treated differently” were “purely conclusory”).
To state a First Amendment retaliation claim, Plaintiffs must show: “(1) [they have] a
right protected by the First Amendment; (2) [Defendant’s] actions were motivated or
substantially caused by his exercise of that right; and (3) [Defendant’s] actions caused [them]
some injury.” Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013); Rankel, 999 F. Supp.
2d at 541 (internal quotations omitted) (“On a motion to dismiss, the court must be satisfied that
such a claim is supported by specific and detailed factual allegations, which are not stated in
wholly conclusory terms.”); Schubert v. City of Rye, 775 F. Supp. 2d 689, 712 (S.D.N.Y. 2011)
(internal quotations omitted) (“To succeed on their First Amendment retaliation claim[,]
Plaintiffs must plausibly allege that their conduct was protected by the First Amendment, and
that Defendants’ conduct was motivated by or substantially caused by their exercise of free
speech.”). “The Court must ‘conduct an inquiry into whether plaintiff's speech was actually
chilled by the retaliatory conduct.’” Soundview Assocs. v. Town of Riverhead, 725 F. Supp. 2d
12
320, 341 (E.D.N.Y. 2010) (quoting Saleh v. City of N.Y., No. 06–CV–1007, 2007 WL 4437167,
at *3 (S.D.N.Y. Dec. 17, 2007)).
The Court finds that Plaintiffs’ allegation that Defendant further delayed the
subdivision process as a result of Plaintiff’s success in state court is insufficient to plausibly
state a claim of First Amendment retaliation. Even assuming that Plaintiffs’ commencement of
the state court action is conduct protected by the First Amendment 6, Plaintiff have not
“explicitly and sufficiently alleged that the [D]efendant [delayed] their applications for permits
. . . in retaliation for this protected conduct.” Hampton Bays Connections, Inc. v. Duffy, 127 F.
Supp. 2d 364, 373-74 (E.D.N.Y. 2001); Schubert, 775 F. Supp. 2d at 712-14 (collecting cases)
(holding “Plaintiffs’ conclusory and inconsistent allegations do not plausibly state a claim of
First Amendment retaliation[,]” and noting “[a]t most, [the] [p]laintiffs are merely alleging that
their complaints ... were ignored by [the] [d]efendants . . .[n]ot a single fact [was] alleged that
plausibly supports an inference of retaliatory motive that can be drawn from Defendants’
decision not to accede to Plaintiffs' request, rendering these boilerplate allegations
insufficient”); Old St. George's LLC v. Bianco, 389 F. App'x 33, 35 (2d Cir. 2010) (“[T]he
complaint does not plausibly allege that DeChiaro’s decision to seek inclusion into the
Westchester Agricultural District motivated or substantially caused any of the adverse actions
complained of.”); Rosendale v. Brusie, No. 07-CV-8149CS, 2009 WL 778418, at *9 (S.D.N.Y.
Mar. 25, 2009), aff'd, 374 F. App'x 195 (2d Cir. 2010) (holding plaintiff’s allegations that “in
its campaign to retaliate against him because of his exercise of First Amendment rights, the
town and the defendants have taken a purposeful, aggravated and persistent course of
“The rights to complain to public officials and to seek administrative and judicial relief from their
actions are protected by the First Amendment.” Dougherty v. Town of N. Hempstead Bd. of Zoning
Appeals, 282 F.3d 83, 91 (2d Cir. 2002).
6
13
conspiratorial ... non-enforcement of pertinent municipal zoning regulations” were, without
supporting facts, “vague and conclusory allegations” insufficient to support a First Amendment
retaliation claim.); In the Matter of the Application of Hampshire Recreation, LLC v. Vill. of
Mamaroneck, No. 14-CV-7228 (CS), 2016 WL 1181727, at *10 (S.D.N.Y. Mar. 25, 2016),
aff'd sub nom. Hampshire Recreation, LLC v. The Vill. of Mamaroneck, 664 F. App'x 98 (2d
Cir. 2016) (collecting cases) (“[T]to the extent Plaintiffs argue that Defendants retaliated
against them by denying their applications and efforts for rezoning, such a claim is not
plausible.”); Musco Propane, LLP v. Town of Wolcott, No. 10-CV-1400, 2011 WL 3267756, at
*9 (D. Conn. July 28, 2011) (dismissing First Amendment retaliation claim where actions
taken by town authorities after the plaintiff engaged in protected conduct “appear to be part of
a continuing series of zoning decisions that began before” the protected conduct occurred).
Having found that, on its face, Plaintiffs fail to make out their 1983 claims, the Court finds the
first factor weighing in favor of a stay. See Alapaha View Ltd. v. Prodigy Network, LLC, No.
20-CV-7572 (VSB), 2021 U.S. Dist. LEXIS 89789, at *4 (S.D.N.Y. May 10, 2021) (finding
stay warranted because the motion to dismiss may result in complete dismissal of the suit and
did not appear to be “unfounded in the law”).
Second, the breadth of discovery here, as presented by Defendant, favors a stay because
the parties could avoid substantial burden and waste of precious resources by staying
discovery until the motion to dismiss has been decided. Given that the land-use dispute dates
as far back as 2014, it would be especially prudent to reserve any discovery until after the
motion to dismiss is decided. See e.g., O’Sullivan v. Deutsche Bank AG, No. 17-cv-8709
(LTS) (GWG), 2018 U.S. Dist. LEXIS 70418, at *26-27 (S.D.N.Y. Apr. 26, 2018)
(“O’Sullivan”).
14
Third, the Court does not find that a stay would result in any material prejudice to
Plaintiffs, especially in light of the fact that they have already sold the lots in the subdivision.
The circumstances presented here are strikingly similar to those in O’Sullivan, where the
Court found that “the passage of a reasonable amount of time” alone “cannot itself constitute
prejudice sufficient to defeat a motion to stay discovery.” O’Sullivan, 2018 U.S. Dist. LEXIS
70418 at *30. In addition, the plaintiff’s argument that documents may be destroyed was
found to be a “usual litigation risk[] that affect[s] all the parties equally.” Id. at *31. The
court ultimately granted the defendants’ motion to stay in light of the potential burden that
can arise from undergoing discovery as well as defendants’ strong showing that the pending
motion to dismiss may be granted. Id.
The Court additionally notes this case is still in its nascent stages. Defendant’s Rule
12(b)(6) motion to dismiss is fully briefed and sub judice. See ECF No. 27. This portends
that any stay will be relatively short. Like O’Sullivan, the passage of time here is not a good
reason to stay discovery despite the fact that memories may fade and documents may be hard
to cull together. And, any delays in the case thus far have resulted from Plaintiffs’ own
decision to wait years to commence this action when they were equipped with the information
since at least November 2018. Thus, it cannot be said that a short stay of discovery for a few
months pending the decision of an already fully briefed motion to dismiss will result in a
prejudice to Plaintiffs. Accordingly, weighing all the relevant factors, the Court finds that a
stay of discovery pending the outcome of Defendant’s Rule 12(b)(6) motion is warranted.
CONCLUSION
For the foregoing reasons, good cause exists warranting the issuance of a stay of
discovery pending the outcome of Defendant’s Rule 12(b)(6) motion to dismiss. Accordingly,
15
Defendant’s motion to stay discovery (ECF No. 28) is GRANTED. In the event the pending
motion to dismiss is denied, the parties are directed to file within ten days of the issuance of
the Order on that motion a proposed discovery schedule for the undersigned’s consideration.
Dated: Central Islip, New York
May 8, 2024
S O O R D E R E D:
/s/
James M. Wicks
JAMES M. WICKS
United States Magistrate Judge
16
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?