Price et al v. City of Troy, New York et al

Filing 98

MEMORANDUM-DECISION and ORDER. Defendants' cross-motion, Dkt. No. 97 for an order joining the pending motions is GRANTED; plaintiffs' motion for leave to amend the complaint, Dkt. No. 96 is GRANTED; defendants' motion, Dkt. No. 82 for a more definite statement pursuant to Rule 12(e) is GRANTED. ORDERED that plaintiffs shall file an amended complaint, pursuant to the directives contained in the within order, within TEN (10) DAYS of the date of this order. Signed by Magistrate Judge Christian F. Hummel on 6/26/2014. (lah, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MICHAEL PRICE, 24 ALBANY HOLDING LLC,
& YOUTH EMPOWERMENT SERVICES OF
NEW YORK, INC.,
Plaintiffs,
vs.

1:12-CV-0815
(DNH/CFH)

CITY OF TROY NEW YORK; LOU ROSAMILIA,
in his individual and official capacity as Mayor of City
of Troy; WILLIAM CHAMBERLAIN, in his individual
and official capacity as City of Troy Deputy Mayor; BILL
FRENCH, in his individual and official capacity as City of
Troy Code Enforcement Officer; DON ALDANO, in his
individual and official capacity as City of Troy Code
Enforcement Employee; MARK McGRATH, in his
individual and official capacity as City of Troy Code
Enforcement Officer; JOHN DOES #1; ISAAC BERTOS, in
his individual and official capacity as City of Troy Police
Officer; CHRISTOPHER JOHNSON, in
his individual and official capacity as City of Troy Police
Officer; BILL WADE, in his individual and official capacity
as City of Troy Police Officer; SERGEANT FRENCH, in his
individual and official capacity as City of Troy Police Officer;
JOHN TEDESCO, in his individual and official capacity as
City of Troy Police Officer; and JOHN DOES #2,
Defendants.1

APPEARANCES:
1

OF COUNSEL:

Due to the inconsistencies in the captions on the parties’ submissions, this Court utilizes the caption
previously assigned to the case in the January 15, 2014 Decision and Order of the Hon. David N. Hurd.

OFFICE OF VINCENT U. UBA
750 Broadway
Albany, New York 12207
Attorney for Plaintiffs

Vincent U. Uba, Esq.

PATTISON, SAMPSON, GINSBERG
& GRIFFIN, P.C.
22 First Street
P.O. Box 208
Troy, Ne York 12181
Attorneys for Defendants

Donald J. Shanley, Esq.

CITY OF TROY
CORPORATION COUNSEL
1776 6th Avenue
Troy, New York 12180
Attorneys for Defendants

Ian H. Silverman, Esq.

Christian F. Hummel, U.S. Magistrate Judge:
MEMORANDUM- DECISION AND ORDER
INTRODUCTION
Presently before the Courts are the following motions: (1) defendants’ motion pursuant to
Rule 12(e) of the Federal Rules of Civil Procedure for a more definitive statement of plaintiffs’
claims (Dkt. No. 82); plaintiffs’ motion to amend the complaint (Dkt. No. 96); and (3) defendants’
cross motion, pursuant to Rule 7.1(c) of the Federal Rules of Civil Procedure, seeking an Order
joining plaintiffs’ motion to amend with defendants’ prior motion for a more definitive statement
(Dkt. No. 97).
BACKGROUND2
In August 2010, plaintiff 24 Albany Holding LLC, through its Director and plaintiff,
Michael Price (an African American citizen), purchased the property at 275 Fourth Street, Troy,
New York from David Slattery (a Caucasian American). The property was purchased for the use

2

The “background” recited is based upon the allegations contained in plaintiffs’ original complaint.
2

and benefit of the plaintiff, Youth Empowerment Services of New York Inc. (“YES”), a not-forprofit corporation. The property is located in an R-4 Zone which, according to the City of Troy
Zoning Law, is for “multi-family residential, restaurants and for other similar uses”. Prior to
plaintiffs purchasing the property, two families occupied the second and third floor of the building
and a restaurant/bar was located on the first floor. The restaurant, 630 Paradise Pub, was owned
and operated by James Skaggs. After purchasing the property, Price moved into the second floor
and rented the third floor.3
In August 2010, plaintiffs attempted to use the first floor as a restaurant to raise funds for
YES. Plaintiff was informed that a use and area variance was required. Plaintiff retained an
architect and, on August 18, 2010, plaintiff submitted an Application for Permit and other
documentation to the Department of Building and Codes. Plaintiff was informed by Don Aldano,
a City of Troy Building and Codes employee, that William Chamberlain, the Deputy Mayor for
the City of Troy, told Mr. Aldano that he should not process plaintiff’s application.
Plaintiff alleges that on or around August 20, 2010, officers from the Troy Police
Department, including Officers Bertros, Johnson, Wade, French and John Doe #2, invaded his
home without a warrant and damaged his personal property. Plaintiff also alleges that the same
officers invaded the third floor of the building and, “put a gun to the head of plaintiff’s tenant and
his wife ordering them and their family to immediately vacate the apartment”. The building was
then “shut down” and both plaintiff and his tenants were denied access.
In March 2011, Price was informed that his application was lost and therefore, he
submitted a new application for a permit with a new set of plans. Plaintiff did not receive a
response.

3

The complaint alleges that Price moved into the building in February 2011. However, the date is
inconsistent with other dates and allegations in the complaint.
3

Plaintiffs allege that the Department of Building and Codes issued several “bogus
violations” against plaintiff and his building in an attempt to harass plaintiff. Plaintiff alleges that
Officers Bertros, Johnson, Wade, French and John Doe repeatedly harassed him in the following
manner: (1) defendants seized over $9000.00 from his residence in August 2010; (2) defendants
threatened plaintiff; (3) defendants arrested individuals hired to perform work at the premises on
the basis of “trespassing”; (4) defendants disrupted plaintiff’s son’s birthday party with racial
slurs; (5) defendants “ejected” plaintiff’s African-American friends from his home and arrested
his guests; (6) defendants published, to third parties, that a shooting occurred on plaintiff’s
property thereby preventing plaintiffs from renting property.
On January 18, 2012, City of Troy Mayor, Louis Rosamilia, issued an Order banning
plaintiffs from the building for 45 days. Officer Wade and Troy Code Enforcement Officer Mark
McGrath came to the property and denied plaintiff access. As a result of being denied access for
an extended period of time, plaintiff alleges that he incurred costs to redo the home.
On March 28, 2012, during a hearing at Troy City Court, Mr. Welcome, of the Troy City
Code Enforcement, stated that the Troy Police Department restricted plaintiffs’ access. On April
28, 2012, defendants entered plaintiff’s home and ordered him to vacate the premises.
PROCEDURAL HISTORY
On or about May 16, 2012, plaintiffs filed a complaint pursuant to 42 U.S.C. § 1983
alleging that defendants deprived plaintiffs of their Fourth and Fourteenth Amendment rights.
Plaintiffs also claim that defendants violated plaintiffs’ rights under the Fair Housing Act,
engaged in abuse of legal process and defamed plaintiffs. This action arises in connection with
plaintiffs’ ownership and occupation of a building located at 275 Fourth Street in Troy, New
York.

4

On January 11, 2013, plaintiffs moved for a default judgment against all defendants,
except the City of Troy.4 Defendants cross-moved to vacate the entry of default and also moved
for a more definitive statement. (Dkt. Nos. 38, 40, 57). On January 15, 2014, United States
District Judge David N. Hurd issued an Order denying plaintiffs’ motion for a default judgment
and granting defendants’ motion to vacate the entry of default. Judge Hurd also denied
defendants’ motion for a more definitive statement without prejudice. (Dkt. No. 77).
On January 23, 2014, defendants filed an Answer to plaintiffs’ complaint. (Dkt. No. 80).
On February 3, 2014, defendants filed the within motion for a more definitive statement.
Plaintiffs’ opposed the motion and filed a motion to amend the complaint. Defendants’ opposed
the motion to amend and cross-moved for joint relief.
PROPOSED AMENDED COMPLAINT
Plaintiffs annexed an Amended Complaint as an exhibit to the motion for leave to amend
the complaint. The proposed pleading includes a new plaintiff, David L. Slattery, the prior owner
of the subject premises, 275 Fourth Street in Troy, New York. The proposed pleading includes
fourteen new factual allegations relating to the previously named plaintiffs and nineteen factual
allegations relating to Mr. Slattery. In addition, the proposed amendment includes an additional
cause of action and prayers for relief.
With respect to the previously named plaintiffs, the proposed amendment includes facts
relating to incidents that occurred after the original complaint was filed. To wit, plaintiffs claim
that in August 2012, a fire was intentionally set at the premises and that the Troy Police
Department refused to assist plaintiff or complete a police report due to the pending lawsuit.
Plaintiffs also claim that since the complaint was filed, the property has been burglarized and that

4

On July 23, 2012, the City of Troy filed an Answer to plaintiffs’ complaint.
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the police refuse to assist or provide protection due to the fact that Price, is a Black/African
American citizen. Plaintiffs claim that surveillance cameras captured video depicting officers of
the Troy Police Department damages plaintiff’s vehicles but that the cameras and footage were
subsequently stolen during a burglary. Plaintiff, Michael Price, alleges that his girlfriend and
sister have been harassed by the police due to their relationship to plaintiff and issued appearance
tickets for trespassing. Plaintiff claims he was arrested for failing to answer a violation of the
Troy City Code relating to his failure to obtain a Certificate of Occupancy and that while he was
incarcerated, his residence was burglarized. Plaintiffs allege that defendants have verbally
pressured plaintiff to sell the premises and imposed disingenuous taxes and penalties on the
property. Since the issuance of a Certificate of Occupancy in January 2013, defendants have
imposed various restrictions and conditions on the Certificate rendering it difficult for plaintiff to
enjoy the premises.
With respect to Slattery, plaintiff alleges that on or around February 22, 2010, Slattery
sold the premises to Price and the deed was transferred to 24 Albany Holdings LLC. Slattery
entered into a mortgage agreement and executed a deed of mortgage with Price and 24 Albany
Holdings LLC wherein the mortgage was held by Slattery, as the mortgagee and secured by the
property. Plaintiffs allege that defendants never interfered with Slattery’s use or enjoyment of the
property. Slattery alleges that defendants’ conduct against Price has resulted in Price being
unable to make mortgage payments to Slattery. Defendants are now attempting to foreclose on
the property and extinguish Slattery’s mortgage interest in the property. Slattery has sent letters
to the Mayor of the City of Troy and the Troy Police Department complaining of the oppressive
conduct against Price but received no response. Slattery alleges that defendants have unlawfully
interfered with his right to sell or transfer his interest in the property to a member of a protected

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class under the Fair Housing Act. As a result, Slattery claims he has suffered severe, irreparable
economic harm.
DISCUSSION
Rule 12(e) allows “[a] party may move for a more definite statement of a pleading to
which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.” FRCP 12(e). “A motion pursuant to Rule 12(e) should not be
granted unless the complaint is so excessively vague and ambiguous as to be unintelligible and as
to prejudice the defendant seriously in attempting to answer it. The rule is designed to strike at
unintelligibility rather than want of detail and . . . allegations that are unclear due to a lack of
specificity are more appropriately clarified by discovery rather than by an order for a more
definite statement.” Sterling v. Mercantile Adjustment Bureau, LLC, 2011 W L 4915813, at *1-2
(W.D.N.Y. 2011) (citing Kok v. First Unum Life Ins. Co., 154 F.Supp.2d 777, 781–82 (S.D.N.Y.
2001) (internal quotation marks and citations omitted)); see also FRA S.p.A. v. Surg-o-Flex of
America, Inc., 415 F. Supp. 421, 427 (S.D.N.Y. 1976). (“[a] rule 12(e) motion may only be
granted if ‘a pleading . . . is so vague and ambiguous that a party cannot reasonably be required to
frame a responsive pleading”).
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend a pleading
shall be freely given when justice so requires. See Livingston v. Piskor, 215 F.R.D. 84, 85
(W.D.N.Y. 2003). “Absent evidence of undue delay, bad faith or dilatory motive on the part of the
movant, undue prejudice to the opposing party, or futility, Rule 15's mandate must be obeyed.”
Monahan v. New York City Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000) (citing Foman v.
Davis, 371 U.S. 178 (1962)).

7

Defendants’ 12(e) motion was based upon the original complaint. Plaintiffs opposed the
motion arguing that defendants filed an Answer to the complaint, thereby waiving the right to
object to the complaint as overly vague. Defendants’ submitted a reply brief. While that motion
was pending, plaintiffs filed a motion to amend with the proposed amended complaint annexed as
an exhibit. Defendants did not oppose that motion but cross moved asking the Court to apply the
previously filed Rule 12(e) motion to the proposed amended complaint. Defendants argue that the
proposed complaint suffers from the same insufficiencies as the original complaint. Plaintiffs
have not responded to the cross motion. Accordingly, in the interest of judicial economy, the
Court will consider defendants’ 12(e) motion within the context of the amended complaint.
See Dowling v. Prudential Ins. Co., 1988 WL 3418, at *3 (S.D.N.Y. 1988) (the plaintiffs' motion
to amend the complaint, and the defendant's motion for a more definite statement may be
considered jointly).
A.

New Factual Allegations/Motion to Supplement Pleading
Defendants argue that the allegations contained in paragraphs 31 through 44 of the

proposed amended complaint relate to new incidents that allegedly occurred after the within
action was commenced. Therefore, defendants argue that plaintiffs’ motion is a motion to
supplement the complaint under Fed. R. Civ. P. 15(d), not a motion to amend pursuant to Fed. R.
Civ. P. 15(a). Defendants correctly assert that the claims in the aforementioned paragraphs are
arise out of incidents that occurred at or relating to the subject premises between August 2012 and
January 2013 and are based on incidents that occurred after the original complaint was filed.
Thus, defendants correctly assert that the claims are treated more properly in a motion for leave to
supplement the complaint under Rule 15(d), rather than as a motion for leave to amend the
complaint under Rule 15(a). Tolliver v. Malin, 2014 WL 1378447, at *7 (S.D.N.Y. 2014).

8

However, regardless of the rule, the standard for determining the plaintiffs’ motion is the same.
Id. Here, defendants do not argue that they suffered any prejudice nor do they present any
argument based on undue delay, bad faith or futility as a result of the claims asserted in these
paragraphs. Thus, defendants mere objection to plaintiffs entitling the motion as a request to
amend rather than supplement is irrelevant.
B.

New Plaintiff
Although Rule 15(c)'s express terms address only the addition of new defendants, the

Second Circuit has held that Rule 15(c) “is also applicable to a proposed change of plaintiffs.”
Bensinger v. Denbury Res. Inc., 2013 WL 3353975, at *4 (E.D.N.Y. 2013) (citing Advanced
Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 19 (2d Cir. 1997)). “The attitude taken in
the revised Rule 15(c) toward a change of defendants extends by analogy to amendments that
change plaintiffs.” Id. (citing Fed.R.Civ.P. 15 Advisory Committee Notes (1966)). Courts in this
Circuit consistently allow relation back of new plaintiffs where defendants had fair notice of the
new plaintiffs’ claims and would not suffer undue prejudice. Id. (citations omitted). Here,
defendants do not object to Slattery being added as a plaintiff but objects to the factual allegations
asserted by Slattery, as discussed infra.
C.

Futility
“An amendment to a pleading is futile if the proposed claim could not withstand a motion

to dismiss pursuant to Fed.R.Civ.P. 12(b) (6).” Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243,
258 (2d Cir. 2002). Defendants objections to the proposed pleading is largely an objection based
upon futility. To wit, defendants claim that the amended complaint is futile as it relates to
Slattery because he is attempting to assert claims for which he lacks standing. Defendants set
forth a similar argument with respect to the claims asserted by the previously named plaintiffs.

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Defendants contend that there are three separate entities listed as plaintiffs in the complaint and
that certain plaintiffs do not have standing to assert claims on behalf of other plaintiffs. For
example, defendants argue that a corporation cannot assert a claim for racial bias. Defendants
contend that plaintiffs have added to this confusion because, throughout the complaint, they refer
to “plaintiff” or “plaintiffs” without explanation as to which plaintiff(s) is asserting which claim
against which defendant(s). Defendants further argue that all defendants are accused of a
“myriad” of claims and therefore, defendants are presented with difficulties defending and
responding to the claims. Defendants request that plaintiffs be directed to redraft the proposed
pleading so as to separately state and number the claims of each plaintiff and to identify which
named defendants each claim is asserted against.
Generally, a motion for a more definite statement may be granted when the complaint has
made general allegations against numerous defendants and has failed to identify the specific
defendants against whom plaintiff is asserting each of his causes of action. Caraveo v. Nielsen
Media Research, Inc., 2002 WL 530993, at *2 (S.D.N.Y. 2002) (citing Bower v. Weisman, 639
F.Supp. 532, 538 (S.D.N.Y.1986) (the plaintiff brought seven causes of action against three
defendants and employed the term “defendant” without specifying which particular defendant is
referred to). “A defendant ‘cannot effectively respond to [plaintiff's] complaint until he knows
which claims [plaintiff] is asserting against him in his individual capacity’ ”. Id. The word
"defendant" or "defendants" should not be used by plaintiff without a modifier such as "all
defendants," or specifying certain named defendants. See id.
Upon reviewing the factual allegations in the amended complaint, the Court finds that
plaintiffs do not distinctly identify which factual allegations relate to which defendants and which
plaintiff is asserting what claim. In paragraphs 5–63, where the factual allegations are listed,
plaintiffs are inconsistently referred to as “plaintiff” or “plaintiffs” and defendants are repeatedly
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refers to as “defendant” or "defendants" in a manner that is vague and ambiguous with respect to
which defendants engaged in which actions. Defendants cannot be “left to wonder, did plaintiff [
] intend ‘defendants’ to refer to all defendants, or was the use of ‘defendants’ simply a shorthand
way of referring to the [certain] defendants only in [a] particular context?” See Caraveo, 2002
WL 530993, at *3. Plaintiffs must clearly refer to the parties with the proper identifiers so as to
not leave the Court or defendant(s) to guess as to which party was involved in each
incident/allegation.
Upon further review of the proposed pleading, the Court holds that plaintiffs have not
clearly and concisely plead any cause of action. Plaintiffs’ amended complaint is insufficient as
plaintiffs have failed to identify the defendant or defendants who allegedly violated plaintiff's
Fourth and Fourteenth Amendment Rights and how they allegedly did so. See Wik v. City of
Rochester, 2008 WL 4911805, at *20 (W.D.N.Y. 2008). Moreover, plaintiffs failed to identify
which plaintiff or plaintiffs suffered from the alleged deprivation. To wit, in the First Cause of
Action, plaintiffs allege:
In violation of 42 U.S.C. 1983, the defendants have deprived the
plaintiffs, an American Citizen of his/its rights privileges and
immunities guaranteed by the Fourth and Fourteenth Amendment of the
Constitution of the United States, by, under the color of state law and
without due process of law, denying plaintiffs the right to use and
access its/his property.
The Second Cause of Action alleges:
In violation of 42 U.S.C. 1983, the defendants have deprived the
plaintiffs, an American Citizen of his/its rights privileges and
immunities guaranteed by the Fourth and Fourteenth Amendment of the
Constitution of the United States, by, under the color of state law,
searching and seizing his properties without warrant, and without legal
justification.
The Fourth Cause of Action alleges:

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The defendants have engaged in extreme and outrageous conducts,
which conducts have caused severe emotion distress to the plaintiff; in
that, the defendants on more than one occasion degraded the plaintiff
and his tenants and friends by referring to them in racially degrading
terms, and by subjecting plaintiffs to homelessness and poor living
conditions, and furthermore depriving plaintiff of access and use of his
property without legal justification.
See Amended Complaint (Dkt. No. 96).
The inconsistent use of the word “plaintiff/plaintiffs” and “defendant/defendants” does not
properly place defendant(s) on notice of what claims are asserted against whom. The Fifth, Sixth
and Seventh Causes of Actions suffer from the same ambiguities. Plaintiff uses “defendants” and
fails to state which defendant or defendants allegedly violated the Fair Housing Act, abused legal
process and defamed plaintiff.
Given these ambiguities, the Court finds that the pleading is vague and ambiguous and
does not satisfy the pleading requirements of Rule 8. While details of a complaint's factual basis
should be determined during discovery, see Dowling, 1988 WL 3418, at *3, defendants’ motion
for a more definitive statement is granted. Plaintiffs are granted leave to amend the complaint but
the Court rejects the proposed complaint annexed as an exhibit herein. Instead, plaintiffs are
directed to redraft the complaint and clearly identify which defendants are named as to each cause
of action and when the events relating to that claim occurred. See Amadasu v. Ngati, 2006 WL
842456, at *4 (E.D.N.Y. 2006); see also U.S. v. Int’l Longshoremen's Ass'n, 518 F.Supp.2d 422,
464, n.5 (E.D.N.Y. 2007) (citing Koch v. Hickman, 2007 WL 586695, at *2 (E.D.Cal. 2007) (“[i]t
is not the Court's responsibility to read [p]laintiff's story and then try to determine which claim
goes with which facts or which facts go with which [d]efendant or claim. This is the [p]laintiff’s
responsibility.”)).

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CONCLUSION
For the reasons stated above, it is hereby
ORDERED, that defendants’ cross-motion for an order joining the pending motions (Dkt.
No. 97) is GRANTED; it is further
ORDERED, that plaintiffs’ motion for leave to amend the complaint (Dkt. No. 96) is
GRANTED; it is further
ORDERED, that defendants’ motion (Dkt. No. 82) for a more definitive statement
pursuant to Rule 12(e) is GRANTED; it is further
ORDERED, that plaintiffs shall file an amended complaint, pursuant to the directives
contained in the within order, within TEN (10) DAYS of the date of this Order. The amended
complaint submitted by plaintiffs in response to this Memorandum-Decision and Order must set
forth a short and plain statement of the facts they rely on in support of their claims, and which
names one or more specific individuals who engaged in acts of misconduct or wrongdoing which
violated plaintiffs' constitutional rights. Any amended complaint filed shall supersede and replace
in its entirety the original complaint, and therefore must be a complete pleading which sets forth
all of the claims that plaintiffs want this Court to consider as a basis for awarding relief herein.
Plaintiff should file an amended complaint that, in all instances clarifies, which claims and factual
allegations are being asserted against which defendants.
IT IS SO ORDERED.

Dated: June 26, 2014
Albany, New York

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