Norwood et al v. Salvatore et al
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 22 Motion to Dismiss for Failure to State a Claim: The Court hereby ORDERS that Defendant's motion to dismiss is GRANTED in part and DENIED inpart; and the Court further ORDER S that the Norwood Plaintiffs' equal protection claims are DISMISSED with prejudice; and the Court furtherORDERS that the Orlowski Plaintiffs' selective enforcement equal protection claim is DISMISSED with prejudice. Signed by U.S. District Judge Mae A. D'Agostino on 1/17/14. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DOUGLAS NORWOOD, III, LEEANN NORWOOD,
D.N., Minor Son of Plaintiffs NORWOOD,
PAUL ORLOWSKI, and LENA ORLOWSKI,
MICHAEL SALVATORE, in his capacity as
TOWN OF HANCOCK CODE ENFORCEMENT
OFFICER, and TOWN OF HANCOCK,
OFFICE OF JOHN V. JANUSAS, ESQ.
26 Court Street
Brooklyn, New York 11242
Attorney for Plaintiffs
JOHN V. JANUSAS, ESQ.
MCKENZIE HUGHES LLP
101 South Salina Street
P.O. Box 4967
Syracuse, New York 13221
Attorneys for Defendants
JEFFREY D. BROWN, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiffs commenced this action on June 22, 2012, under 42 U.S.C. § 1983 alleging, inter
alia, that Defendants violated their Fourteenth Amendment rights to substantive due process and
equal protection. Plaintiffs' claims arise from allegations surrounding their interactions with the
Town of Hancock, New York, and its Code Enforcement Officer, Michael Salvatore, regarding
certificates of occupancy, building permits, and other certificates and permits. Presently before
the Court is Defendants' second motion to dismiss Plaintiffs' equal protection claims. Dkt. No.
Following the filing of Plaintiffs' initial complaint on June 22, 2012, Defendants moved to
dismiss in lieu of answering on October 23, 2012, pursuant to Fed. R. Civ. P. 12(b)(5) and
12(b)(6). Dkt. No. 8. On April 10, 2013, this Court issued a Memorandum-Decision and Order
granting in part and denying in part Defendants' first motion to dismiss. Dkt. No. 15 ("April 10,
2013, MDO"). With respect to Defendants' 12(b)(5) motion to dismiss due to insufficient service,
the April 10, 2013, MDO denied that motion as to Defendant Town of Hancock and Defendant
Michael Salvatore in his official capacity, and granted that motion as to Defendant Salvatore in
his personal capacity. Defendants' 12(b)(6) motion to dismiss Plaintiffs' substantive due process
claims was denied as to the Norwood Plaintiffs and granted as to the Orlowski Plaintiffs, and the
motion to dismiss Plaintiffs' equal protection claims was granted as to both the Norwood and
Orlowski Plaintiffs, with leave to amend. In addition, the April 10, 2013, MDO dismissed the
Norwood Plaintiffs' cause of action for declaratory relief and the Orlowski Plaintiffs' malicious
prosecution claims. Finally, Defendants' motion to dismiss on qualified immunity grounds was
Thereafter, Plaintiffs amended their complaint on May 6, 2013, to include new allegations
regarding their equal protection claims. Dkt. No. 19, 19-1 ("Amended Complaint"). Defendants
then filed a second 12(b)(6) motion to dismiss Plaintiffs' equal protection claims. Dkt. No. 22.
On June 18, 2013, counsel for Plaintiffs submitted a three paragraph Affidavit in Partial
Opposition. Dkt. No. 24.
The Court assumes the parties' familiarity with Plaintiffs' allegations, as discussed in the
April 10, 2013, MDO, and discusses only those allegations relevant to disposition of the instant
motion to dismiss. These allegations are presumed to be true only for the purposes of this motion,
and do not constitute findings of fact by the Court.
The Norwood Plaintiffs
Plaintiffs Douglas and Leeann Norwood, along with their minor son D.N. (collectively,
the "Norwood Plaintiffs"), reside at 4085 O&W Road, East Branch, New York, in the Town of
Hancock. Dkt. No. 19, at 1.1 The Norwood Plaintiffs purchased a home in East Branch, Town of
Hancock, New York in 1998, which was destroyed by a fire in 2009. Id. at 3. On or about July
15, 2009, the Norwood Plaintiffs contacted Defendant Salvatore, the Town of Hancock Code
Enforcement Officer ("CEO"), to apply for a building permit to rebuild their home. Defendant
Salvatore instructed them, after visiting their property, that certain "prep" work would have to be
performed before they could apply for the building permit. See id. at 4. Thereafter, the Norwood
Plaintiffs began expending funds performing the requested "prep" work, but Salvatore's demands
in that regard changed over time. In particular, "Salvatore demanded an elevation certificate and
The pages of Plaintiffs' Amended Complaint are not numbered and the numbered
paragraphs of do not run consecutively through the document as required under Fed. R. Civ. P.
10(b). Moreover, the Amended Complaint was electronically filed in two parts. Accordingly, to
avoid confusion, the Court refers to the page numbers assigned by the Electronic Case Filing
system to each part of the Amended Complaint. Counsel for Plaintiffs is respectively reminded
that, for ease of reference, each page of any document filed with the Court is to be numbered, and
each paragraph in a complaint is to be consecutively numbered throughout the complaint, rather
than numbered within each section as done here.
engineered plans for the footings and piers," "Salvatore demanded that the plaintiffs Norwood
install the concrete footings and piers with steel reinforcements," and "Salvatore insisted upon
installation of flooding vents." See id. at 4-5. On or about September 15, 2009, Salvatore
performed an inspection of the property and issued additional demands regarding work to be
performed prior to issuance of the building permit. During this inspection, the Norwood Plaintiffs
allege, Salvatore raised his voice and used certain racial epithets in describing prospective tenants
for a new development adjacent to their property. See id. at 5.2 Ultimately, after the Norwood
Plaintiffs had completed all of the work requested by Salvatore, Salvatore instructed the Norwood
Plaintiffs to halt construction and informed them that he would not issue a building permit or
certificate of occupancy. See id. at 6.
The Norwood Plaintiffs allege that their treatment "was in marked contrast to the
treatment of Joel May," who was similarly situated to them. Id. at 6. Mr. May also owned
property in the Town of Hancock and sought to improve it in 2008 by installing a manufactured
home on it. Installation of a manufactured home and rebuilding of a home are similar activities,
the Norwood Plaintiffs allege, in that the purpose of both is to create a residence and they both
require submission of a building permit application, issuance of a building permit, and the grant
of a certificate of occupancy. Mr. May was treated differently than the Norwood Plaintiffs in that
Specifically, the Norwood Plaintiffs allege as follows:
[D]efendant SALVATORE raised his voice at the plaintiffs
NORWOOD, in front of their fourteen year old son, D.N., and
exclaimed "you really do not want to rebuild at this location,
because ANGELO VALENTI is going to have niggers and spics
moving in across the street." He continued his diatribe yelling that
the "niggers and spics will be using all the units that ANGELO
VALENTI was planning to install" and as a result the plaintiffs
NORWOOD would not want to live there.
Mr. May installed the manufactured home on his property in 2008 without a permit, connected it
to utilities without a building permit, and has occupied it since without ever applying for or
obtaining a building permit or certificate of occupancy. In addition, Mr. May was not ordered to
perform any "prep" work at his property prior to its use as a residence, and his home was installed
in violation of several building codes, including lack of a proper septic tank and foundation. See
id. at 6-8. As a result of this disparate treatment of similarly situated individuals, it is alleged that
Salvatore's actions "were borne of malicious ill intent, and without any justification whatsoever."
Id. at 8.
The Norwood Plaintiffs further allege that their treatment "was in marked contrast to the
treatment of David Menhenett." Id. Mr. Menhenett also owns property in the Town of Hancock,
located at 677 Old Route 17, which he sought to improve in 2011 by constructing a home.
Construction of a home and rebuilding of a home are similar activities, the Norwood Plaintiffs
allege, in that the purpose of both is to create a residence and they both require submission of a
building permit application, issuance of a building permit, and the grant of a certificate of
Mr. Menhenett was treated differently than the Norwood Plaintiffs in that Mr.
Menhenett constructed a home on his property in 2011 without a permit, connected it to utilities
without a building permit, and has occupied it without ever applying for or obtaining a building
permit or certificate of occupancy. In addition, Mr. Menhenett was not ordered to perform any
"prep" work at his property prior to its use as a residence, and his home was constructed in
violation of several building codes, including lack of a proper septic tank and foundation. See id.
at 6-8. After neighbors of Mr. Menhenett complained about the lack of a proper septic tank to the
New York State Department of Health, an inspector from that agency visited Mr. Menhenett's
property and immediately ordered Mr. Menhenett and the Defendants to remove the illegal septic
tank and rectify the problem. The other code violations at Mr. Menhenett's property remain
unresolved. As a result of this disparate treatment of similarly situated individuals, it is again
alleged that Salvatore's actions "were borne of malicious ill intent, and without any justification
whatsoever." Id. at 11.
The Norwood Plaintiffs allege that the conduct described above was in furtherance of
Defendants' "racist agenda and 'de facto' zoning scheme designed to exclude minorities from
residing within [the] Town of Hancock." Dkt. No. 19-1 at 1. The Norwood Plaintiffs do not
allege that they are members of any racial group or any other protected class.
The Orlowski Plaintiffs
Plaintiffs Paul Orloski and Lena Orlowski (collectively, the "Orlowski Plaintiffs"), reside
in the Town of Hancock at 3350 Readburn Road, Walton, New York. Dkt. No. 19, at 1. In or
about March 2009, the Orlowski Plaintiffs contacted Defendant Salvatore by telephone to
determine whether a building permit or any other documentation was required from the Town of
Hancock before they moved a manufactured (or mobile) home from one location on their property
to another. Dkt. No. 19-1 at 4. Defendant Salvatore instructed them that if the manufactured
home was to be relocated without being reoccupied or connected to utilities, then no permit would
be necessary. Thereafter, the Orlowski Plaintiffs relocated the manufactured home to new
location on their property. Defendant Salvatore later commented to the Orlowski Plaintffs that he
"saw where it was relocated," and "liked" the new spot. Id. In April 2009, the Orlowski Plaintiffs
received a letter from Salvatore warning that relocation of a manufactured home without a
building permit constituted a violation of Town of Hancock Local Law #1, and threatened to fine
them up to $1,000 per day if it was not removed immediately. The Orlowski Plaintiffs then
confronted Defendant Salvatore regarding his prior statements to them that a building permit was
not necessary prior to their relocation of the manufactured home. Salvatore responded that he did
not recall speaking to the Orlowski Plaintiffs, and if they did not have his statement recorded or in
writing, "then that's too bad." Id. at 5. In April 2010, the Orlowski Plaintiffs received an
appearance ticket which charged them with Building without a Permit. During a September 2010
appearance in the Town of Hancock Justice Court, the Orlowski Plaintiffs were told by Town
Attorney Leonard Sienko and Defendant Salvatore they could plead guilty, pay a $600 fine, and
then either remove the manufactured home or meet several requirements for a building permit.
The Orlowksi Plaintiffs informed Defendant Salvatore at this time that their neighbor, Joel May,
had installed a manufactured home and connected it to utilities without a permit in 2008, and had
occupied it since without a certificate of occupancy. The Orlowski Plaintiffs did not plead guilty
and following a trial on October 25, 2010, they were found not guilty. On November 16, 2010,
they received another letter from Salvatore warning that relocation of a manufactured home
without a building permit constituted a violation of Town of Hancock Local Law #1, and
threatened to fine them up to $1,000 per day if it was not removed immediately. Thereafter, in
response to the new letter issued by Salvatore, the Orlowski Plaintiffs dismantled the
manufactured home and removed it from their property. See id. at 5-6.
The Orlowski Plaintiffs further allege that Salvatore's conduct with respect to their
property, particularly when compared to Salvatore's conduct with respect to Mr. Mays and Mr.
Menhenett, "demonstrat[es] a pattern of bad faith and malicious intent to harm [them.]" "[T]here
is no reasonable explanation for" this "pattern of wrongfully favoring some property owners over
others" "other than malice and bad faith intent to injure" the Orlowski Plaintiffs. Id. at 7. The
Orlowski Plaintiffs do not allege that they are members of any protected class.
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief and pleadings
without considering the substantive merits of the case. See Global Network Commc'ns v. City of
New York, 458 F.3d 150, 155 (2d Cir. 2006); Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.
2007). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in
the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc.
v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth,
however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). "Generally, consideration of a motion to dismiss under Rule 12(b)(6) is
limited to consideration of the complaint itself" unless all parties are given a reasonable
opportunity to submit extrinsic evidence. Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). In
ruling on a motion to dismiss pursuant to Rule 12(b)(6), a district court generally must confine
itself to the four corners of the complaint and look only to the allegations contained therein.
Robinson v. Town of Kent, No. 11 Civ. 2875, 2012 WL 3024766, at *3-4 (S.D.N.Y. July 24,
2012) (citing Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient facts "to sho[w] that the pleader is entitled to
relief[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (internal quotation marks
omitted). Under this standard, the pleading's "[f]actual allegations must be enough to raise a right
of relief above the speculative level," see id. at 555, and present claims that are "plausible on
[their] face," id. at 570. "The plausibility standard is not akin to a 'probability requirement,' but it
asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at
678 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to
relief.'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations in a
complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at
558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to
plausible, [the] complaint must be dismissed," id. at 570.
Equal Protection Claims
"The Equal Protection Clause requires that the government treat all similarly situated
people alike." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (citing
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). "Although the prototypical
equal protection claim involves discrimination against people based on their membership in a
vulnerable class, [the Second Circuit has] long recognized that the equal protection guarantee also
extends to individuals who allege no specific class membership but are nonetheless subjected to
invidious discrimination at the hands of government officials." Id. (citation omitted). "To state
an equal protection claim, a plaintiff must charge a governmental officer not only with
deliberately interpreting a statute against the plaintiff, but also with singling him out alone for that
misinterpretation." Gagliardi v. Vill. of Pawling, 18 F.3d 188, 193 (2d. Cir. 1994) (internal
quotations and citation omitted). "Where, as here, a plaintiff does not claim to be a member of a
constitutionally protected class, he may bring an Equal Protection claim pursuant to one of two
theories: (1) selective enforcement, or (2) 'class of one.'" Vaher v. Town of Orangetown, 916 F.
Supp. 2d 404, 433 (S.D.N.Y. 2013) (footnote omitted). Under either a selective enforcement or
"class of one" equal protection claim, a plaintiff must show treatment different from other
similarly situated individuals. See Nemeth v. Vill. of Hancock, No. 3:10-CV-1161, 2011 WL
56063, *5 (N.D.N.Y. Jan. 7, 2011)
A successful selective enforcement equal protection claim requires pleading and proof: (1)
that the plaintiff "was treated differently from other similarly situated individuals"; and (2) that
"such differential treatment was 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 [the plaintiff]." U.S. v. Stewart, 590 F.3d 93, 121 (2d Cir. 2009), cert. denied by Sattar v.
U.S., 559 U.S. 1031 (2010) (quoting Harlen Assocs., 273 F.3d at 499); see also Bizarro v.
Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d
The Second Circuit has repeatedly recognized that "cases predicating constitutional
violations on selective treatment motivated by ill-will, rather than by protected-class status or an
intent to inhibit the exercise of constitutional rights, are 'lodged in a murky corner of equal
protection law in which there are surprisingly few cases and no clearly delineated rules to apply.'"
Bizzaro, 394 F.3d at 86 (quoting Leclair, 627 F.2d at 608). It is clear, however, that a plaintiff
must allege more than mere conclusory allegations to establish malicious or bad faith intent on
behalf of a defendant to harm the plaintiff. See 33 Seminary LLC v. City of Binghamton, 869 F.
Supp. 2d 282, 310 (N.D.N.Y. 2012); Laidlaw Energy and Envrmt'l, Inc. v. Town of Ellicottville,
No. 08-CV-32-S, 2011 WL 4954881, *11 (W.D.N.Y. Oct. 18, 2011); Toussie v. Town Bd. of
Town of East Hampton, No. CIVA 08-1922, 2010 WL 597469, *9-10 (E.D.N.Y. Feb. 17, 2010).
The Supreme Court has affirmed the validity of "class of one" 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." Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000) (per curiam). "[A]n Olech-type equal protection claim focuses on
whether the official's conduct was rationally related to the accomplishment of the work of their
agency." Bizarro, 394 F.3d at 88-89. "Stated differently, a plaintiff asserting a 'class of one'
equal protection claim must allege that the intentional disparate treatment . . . was 'wholly
arbitrary' or 'irrational.'" Vaher, 916 F. Supp. 2d at 433 (citations omitted). In order to survive a
motion to dismiss, a plaintiff making a "class of one" claim must allege specific examples of
differing treatment of others who are similarly situated. See Ruston v. Town Bd. for the Town of
Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010). "Courts, including the Second Circuit, have
repeatedly cautioned about the danger of ordinary disputes between a citizen and a municipality –
whether it be about land use, licenses, inspections, or some other regulatory or investigative
function of local governments – being transformed into federal lawsuits by an incorrect,
overexpansive theory of class-of-one liability." Crippen v. Town of Hempstead, No. 07-CV-3478,
2013 WL 1283402, *7 (E.D.N.Y. Mar. 29, 2013).
"[T]here is disagreement within the Second Circuit regarding the precise standard for
determining whether comparators are similarly situated for [selective enforcement and 'class of
one'] claims." Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 693
(S.D.N.Y. 2011). In the selective enforcement context, plaintiffs must compare themselves to
individuals that are "similarly situated in all material respects." Sharpe v. City of New York, No.
11 CIV. 5494, 2013 WL 2356063, *4 (E.D.N.Y. May 29, 2013) (citation omitted). A plaintiff
need not show exact correlation between herself and the comparators; the test is whether a
prudent person would think them roughly equivalent. Mosdos, 815 F. Supp. 2d at 696; Abel v.
Morabito, No. 04 Civ. 07284, 2009 WL 321007, *5 (S.D.N.Y. Feb. 10, 2009); Estate of Morris v.
Dapolito, 297 F. Supp. 2d 680, 686 (S.D.N.Y. 2004).
In a "class of one" case, the "level of similarity between plaintiffs and the persons with
whom they compare themselves must be extremely high," because such comparison is used "to
provide an inference that the plaintiff was intentionally singled out for reasons that so lack any
reasonable nexus with a legitimate governmental policy that an improper purpose – whether
personal or otherwise – is all but certain." Neilson v. D'Angelis, 409 F.3d 100, 104-05 (2d Cir.
2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008) (per
curiam)). Thus, the comparator's circumstances must be "prima facie identical." Id. at 105.
"Accordingly, to succeed on a class-of-one claim, a plaintiff must establish that (i) no rational
person could regard the circumstances of the plaintiff to differ from those of a comparator to a
degree that would justify the differential treatment on the basis of a legitimate government policy;
and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the
possibility that the defendants acted on the basis of a mistake." Clubside, Inc. v. Valentin, 468
F.3d 144, 159 (2d Cir. 2006) (quoting Neilson, 409 F.3d at 105).
In Skehan v. Village of Mamaroneck, 465 F.3d 96 (2d Cir. 2006), overruled on other
grounds by Appel, 531 F.3d at 140, the Second Circuit cited the Neilson test in explaining what a
plaintiff must show to prevail on a selective treatment claim. Id. at 110. Following Skehan, some
courts have extended the "extremely high" level of similarity standard for "class of one" claims
into the selective enforcement context. See, e.g., Kamholtz v. Yates Cnty., No. 08-CV-6210, 2008
WL 5114964, *5 (W.D.N.Y. Dec. 3, 2008), aff'd 350 Fed. Appx. 589 (2d Cir. 2009); Dones v.
City of New York, No. 07-CV-3085, 2008 WL 2742108, *9 (S.D.N.Y. July 9, 2008) (citing
Skehan). Since Skehan was decided solely on qualified immunity grounds and the Second Circuit
has subsequently indicated that it was actually a "class of one" case, several courts have found
that the "class of one" standard does not apply to selective enforcement cases. See, e.g., Mosdos,
815 F. Supp. 2d at 694; Frank Sloup & Crabs Unlimited, LLC v. Loeffler, 745 F. Supp. 2d 115,
130 (E.D.N.Y. 2010) ("Although some district courts in the Second Circuit have stated that the
standard for similarly situated when bringing a selective enforcement claim is the same as in a
'class of one' claim, the Court employs the slightly different formulations set forth by the Second
Circuit for each claim. . . . [I]f anything, the two standards differ in that the similarly situated
standard for class of one claims is more stringent.”) (citation and internal quotation marks
omitted); Mangino v. Inc. Vill. of Patchogue, 739 F. Supp. 2d 205, 255-56 (E.D.N.Y. 2010)
(same); Faulks v. City of Hartford, No. 08-CV-270, 2010 WL 259076, *7 (D. Conn. Jan. 19,
2010) (acknowledging that more courts have treated selective enforcement and "class of one" as
separate claims with distinct elements of proof); Vassallo v. Lando, 591 F. Supp. 2d 172, 184 n.9
(E.D.N.Y. 2008) (applying different standards to the plaintiffs' selective enforcement and "class
of one" claims).3 Moreover, as one court in the Second Circuit has observed, "[a]n extremely
high level of similarity is required in the 'class of one' context because plaintiffs asserting those
Other courts have acknowledged the disagreement without deciding which standard
should apply. See, e.g., Fortunatus v. Clinton Co., No. 8:12-CV-458, 2013 WL 1386641, *14
(N.D.N.Y. Apr. 4, 2013) (noting disagreement within the Second Circuit, observing that "this
Court does not understand the subtle distinction between 'extreme high degree' and 'all material
respects,'" and ultimately concluding that the plaintiff's proof failed under the lesser standard);
Laidlaw, 2011 WL 4954881, at *10 n.4 (acknowledging that "there is a dispute in this Circuit's
district courts over whether the same standard applies to both selective enforcement and 'class of
one' claims" while granting defendant's motion to dismiss "[b]ecause this Court finds that
[plaintiff] is not similarly situated even under a more permissive selective enforcement standard,
it need not consider whether [plaintiff] would fare better under the potentially more stringent
'class of one' standard"); Gentile v. Nulty, 769 F. Supp. 2d 573, 580 (S.D.N.Y. 2011) (noting that
"courts are in some disagreement as to the meaning of 'similarly situated' in the selective
enforcement context," but declining to decide which standard to apply on summary judgment
because, under any standard, the plaintiff had not shown that there was a question of fact as to
whether he was similarly situated to any comparators); Wood v. Town of East Hampton, No.
08–CV–4197, 2010 WL 3924847,*20 (E.D.N.Y. Sept. 30, 2010) (explaining that the court "need
not resolve this disagreement because, under any of the standards articulated," the plaintiff had
failed to allege that he was similarly situated to the proffered comparator).
claims are attempting to prove that the government's treatment was arbitrary and irrational."
Mosdos, 815 F. Supp. 2d at 698. For these reasons, this Court agrees with those courts that have
employed a more demanding standard of similarity for "class of one" claims than for selective
Neither the Norwood Plaintiffs nor the Orlowski Plaintiffs have alleged that the disparate
treatment they received was motivated by membership in a protected class or the exercise of
constitutional rights. Thus, their equal protection claims are "lodged in [the] murky corner of
equal protection law." Bizzaro, 394 F.3d at 86. Although the Amended Complaint does not
specify precisely which equal protection theory Plaintiffs are pursuing – selective enforcement or
"class of one" – for the purposes of this motion to dismiss, the Court will analyze their respective
claims under both theories.
The Norwood Plaintiffs allege that they are similarly situated to two comparators – Mr.
May and Mr. Menhenett. The former, Mr. May, is alleged to have installed a manufactured home
on his property in 2008 without a permit, connected it to utilities without a building permit, and
occupied it since without ever applying for or obtaining a building permit or certificate of
occupancy. Unlike the Norwood Plaintiffs, Mr. May was not ordered to perform any "prep" work
at his property prior to its use as a residence, and his home was installed in violation of several
building codes, including lack of a proper septic tank and foundation. The latter, Mr. Menhennet,
is alleged to have constructed a home on his property in 2011 without a permit, connected it to
utilities without a building permit, and occupied it without ever applying for or obtaining a
building permit or certificate of occupancy. Mr. Menhenett was also not ordered to perform any
"prep" work at his property prior to its use as a residence, and his home was constructed in
violation of several building codes, including lack of a proper septic tank and foundation.
As discussed above, selective enforcement equal protection claims require that plaintiffs
allege a comparator who is "similarly situated in all material respects." Accepting the Norwood
Plaintiffs' factual allegations as true and drawing all reasonable inferences in their favor, "the
Court concludes that [the Norwood] Plaintiffs have failed to articulate how their property could
be viewed by a reasonably prudent person as being roughly equivalent to [Mr. May's or Mr.
Menhennet's] properties[.]" Viteritti v. Inc. Vill. of Bayville, 918 F. Supp. 2d 126, 135 (E.D.N.Y.
2013) (citation omitted). As alleged by the Norwood Plaintiffs, the "prep work" required of them
by Defendants Salvatore and the Town of Hancock was related to mitigating flood damage. See
Dkt. No. 19 at 4-5 (alleging that "Salvatore demanded an elevation certificate and engineered
plans for the footings and piers," "Salvatore demanded that the plaintiffs Norwood install the
concrete footings and piers with steel reinforcements," and "Salvatore insisted upon installation of
flooding vents"). In order to plead a plausible selective enforcement equal protection claim, the
Norwood Plaintiffs would have to identify at least one similarly situated comparator, who should
have also been required to install flood damage mitigating features, and differing treatment.
Since the Norwood Plaintiffs do not allege, for example, that the properties of Mr. May or Mr.
Menhennet were in a similar location which would have required such "prep work" prior to
issuance of a building permit or certificate of occupancy, they "compare the proverbial apples
with the oranges[.]" Nemeth, 2011 WL 56063, at *6. Given that the Norwood Plaintiffs have
failed to adequately plead a comparator who is similarly situated in all material respects, they
cannot maintain a selective enforcement equal protection claim. See Viteritti, 918 F. Supp. 2d at
136 (granting the defendants' motion to dismiss selective enforcement claim because "a 29-foot
long, 4 1/2-foot high structure, comprised of boulders, a fence, and shrubs, which completely
blocks any vehicular access to a street is not a condition that could be viewed by a reasonably
prudent person as being roughly equivalent to broken pavement or large potholes"); Filipowski v.
Vill. of Greenwood Lake, No. 10-CV-1753, 2013 WL 3357174, *7 (July 3, 2013) (finding that the
plaintiffs had failed to allege facts sufficient to plausibly suggest sufficient similarity under either
the "class of one" or selective enforcement standards because they did not describe the nature of
the structures built on the properties, the zoning of the respective properties, or any other details
relevant to the claim such as lot size or slope); Nemeth, 2011 WL 56063, at *6 (rejecting
plaintiffs' attempt to "equate enforcement of a fence ordinance or a setback rule with enforcement
of the Zoning Code's non-conforming use expansion regulations"); Laidlaw, 2011 WL 4954881,
at *10 (dismissing selective enforcement claim where plaintiff had abandoned or vacated certain
property and comparator did not, making zoning codes applicable to plaintiff different than those
applicable to comparator). Accordingly, this claim is dismissed with prejudice.
With respect to the Orlowski Plaintiffs' selective enforcement claim, the Court has already
found their similarly situated allegations regarding Mr. May to be sufficient to survive a motion
to dismiss. See April 10, 2013, MDO at 21. This finding is therefore the law of the case. See
Am. Hotel Int'l Group, Inc. v. OneBeacon Ins. Co., 611 F. Supp. 2d 373, 378 (S.D.N.Y. 2009)
("Under the law of the case doctrine, 'a decision on an issue of law made at one stage of a case
becomes binding precedent to be followed in subsequent stages of the same litigation.'" (quoting
In re PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991))). However, the Court has also found the
allegations in the Orlowski Plaintiffs' original complaint with respect to Defendants' "malicious or
bad faith intent to injure" to be wholly conclusory and insufficient to survive a motion to dismiss.
See April 10, 2013, MDO at 21-22. Plaintiffs were afforded an opportunity to remedy this defect
by amending their complaint, but, for the following reasons, they have failed to do so.
In the Amended Complaint, the Orlowski Plaintiffs essentially allege that the conduct
which gives rise to their claims "demonstrat[es] a pattern of bad faith and malicious intent to
harm [them,]" and that "there is no reasonable explanation for" this "pattern of wrongfully
favoring some property owners over others" "other than malice and bad faith intent to injure."
Dkt. No. 19-1 at 7. These allegations remain conclusory and are insufficient to state a plausible
claim that the differing treatment was motivated by malice or ill will.4 See 33 Seminary LLC, 869
F. Supp. 2d at 310 (holding that the plaintiffs had not sufficiently pled a selective enforcement
claim due to their failure to explain the defendants' motive in alleged disparate treatment);
Nemeth, 2011 WL 56063, at *7 (finding allegations in complaint which "merely theorize[d] that
the asserted difference in treatment was because of Plaintiffs' relatively recent relocation to the
Village" to be "unsupported by anything other than Plaintiffs' supposition that this consideration
motivated Defendants[, which did] not raise the right to relief above the speculative level");
Laidlaw, 2011 WL 4954881, at *10 (dismissing selective enforcement claims where the only
As discussed above, the Court has found the Norwood Plaintiffs' allegations of similarly
situated individuals to be inadequate to survive a motion to dismiss under the selective
enforcement standard. Assuming, arguendo, that their allegations in this regard were sufficient,
their selective enforcement claims would nevertheless be subject to dismissal. Just like the
Orlowski Plaintiffs, the Norwood Plaintiffs' allegations regarding bad faith are conclusory and
insufficiently detailed. Unlike the Orlowski Plaintiffs, however, the Norwood Plaintiffs have also
alleged that racial animus played a role in their disparate treatment. See Dkt. 19 at 3, 5-6. These
allegations, even if true, could not raise a claim of entitlement to relief. The Norwood Plaintiffs
have not alleged that they are members of any racial group or protected class. In addition, they
have not alleged that Salvatore's racist statements were directed at them. Moreover, the Amended
Complaint fails to allege how Defendants' "racist agenda" and "de facto zoning scheme" were
advanced by the treatment suffered by the Norwood Plaintiffs. Indeed, Salvatore's alleged
statements suggest that his intention was to keep individuals other than the Norwoods out of the
Town of Hancock. Thus, the Norwood Plaintiffs have “not nudged [their] claims across the line
from conceivable to plausible." Twombly, 550 U.S. at 558.
specific factual allegation in support of plaintiff's claim was that the Town intended to injure
plaintiff to benefit another resident).
In Toussie v. Town Bd. of the Town of East Hampton, the court dismissed the plaintiffs'
selective enforcement claim where "the sole factual basis proffered to support the claim of malice
[wa]s the Plaintiffs' refusal to sell the Town the land for its open space program." Toussie, 2010
WL 597469, at *10. The court noted that the plaintiffs had not alleged any personal conflicts
with members of the Town board, or any other officials, and that the disparate treatment alleged
was motivated to secure compliance with legitimate governmental objectives. Since the
government was motivated for reasons not wholly unrelated to any legitimate state objective, it
was therefore not impermissible in the sense required for an equal protection claim. Id. (quoting
Bizarro, 394 F.3d at 87). Similarly here, Plaintiffs have not alleged any personal conflicts
between themselves, the Town of Hancock, or Salvatore. Moreover, Plaintiffs have not alleged
that Defendants' conduct was motivated by anything other than a desire to secure their
compliance with building codes and other local laws. Thus, the allegations in the Amended
Complaint are "at best, merely consistent with [Defendants'] liability and stop short of the line
between possibility and plausibility of entitlement to relief." Toussie, at *10 (quoting Iqbal, 556
U.S. at 678).
Indeed, in his "Affirmation in Partial Opposition," counsel for Plaintiffs concedes that
"[a]t this stage in the litigation, the plaintiffs simply do not know why they were so harshly
treated as compared to others in the community, as depositions have not yet been held and
discovery has not been completed." Dkt. No. 24, ¶ 2. Since Plaintiffs admittedly do not know
why they suffered disparate treatment, they "have failed to state a plausible claim that the
differing treatment between [their] property and the [comparators' property] was motivated by
malice or ill will." Toussie, 2010 WL 597469, at *10. Accordingly, Plaintiffs' selective
enforcement equal protection claims fail and Defendants' motion to dismiss those claims is
granted with prejudice. The Court will next analyze Plaintiffs' claims under a "class of one"
theory, which do not require allegations of bad faith.
Class of One
The Court has already found the Norwood Plaintiffs' allegations regarding similarly
situated individuals to be insufficient under the "in all material respects" standard applicable to
selective enforcement claims. Thus, those same allegations are necessarily insufficient to survive
a motion to dismiss under the more stringent standard applicable in "class of one" cases.
Accordingly, the Norwood Plaintiffs' "class of one" equal protection claim is dismissed with
prejudice on that basis. Cf. Filipowski, 2013 WL 3357174, at *8 & n.13 (finding allegations of
similarly situated comparators to be insufficient under "class of one" standard and noting that
even if the plaintiffs were alleging a selective enforcement claim, the court "would still find that
Plaintiffs have failed to plausible allege that similarity"); see also Mihaly v. Town of Trumbull
Water Pollution Control Auth., No. 3:12cv1157, 2013 WL 2948329 (D. Conn. June 14, 2013)
(dismissing "class of one" equal protection claims because the plaintiff did not allege that
comparator properties "had a similarly low elevation" or that those properties "would have
otherwise needed to install grinder pumps" in order to connect to sewer system).
Assuming, arguendo, that the Norwood Plaintiffs' similarly situated allegations were
sufficiently detailed to survive a motion to dismiss under this standard, the "class of one" claim
would nevertheless be subject to dismissal. In order to prevail on a motion to dismiss, plaintiffs
must allege facts giving rise to an inference that the intentional disparate treatment at issue in a
"class of one" claim was wholly arbitrary or irrational. On a motion to dismiss "allegations that
are conclusory and thus not entitled to the presumption of truth," such as those alleging that
Defendants acted with "malicious and ill intent," or "bad faith," are to be set aside. Toussie, 2010
WL 597469, at *6 (citing Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010)).
Under a "class of one" theory, "[Defendants'] conduct is subject only to a rational basis
review, a deferential standard that requires the denial of an equal protection challenge 'if there is
any reasonably conceivable state of facts that could provide a rational basis' for [Defendants']
action." Toussie, 2010 WL 597469, at *8. Here, the Norwood Plaintiffs have failed to make
factual allegations which would give rise to the inference that Defendants' treatment of them, as
compared to those similarly situated, had no rational basis. See Nemeth, 2011 WL 56063, at *7
(dismissing "class of one" claim where "the allegations in the Complaint [did] not exclude the
potential that there was a rational basis for the difference in treatment"). As discussed above, the
"prep work" required of the Norwood Plaintiffs by Defendants was for the purpose of flood
damage mitigation. Such requirements are rationally related to the legitimate government interest
in enforcing laws governing residences and other structures erected on property subject to
flooding. Cf. Unique Properties LLC v. Terrebonne Parish Consol. Gov't, 150 Fed. Appx. 313,
314 (5th Cir. 2005) (finding that district court did not err in holding "that drainage and street
flooding issues are related to a legitimate government interest"); Mandot Constr. v. St. Tammany
Parish, Civil Action No. 04-3057, 2006 WL 1328838, *7 (E.D. La. May 9, 2006) (holding that
"the Parish has a legitimate government interest in protecting the adjacent property owners from
flooding, which was rationally related to the Parish's requirement that [the plaintiff] receive
approval of her drainage plan"). Nor do the Norwood Plaintiffs allege that these requirements
were arbitrarily or irrationally applied to them because, for example, their property was not
located in an area subject to flooding. "Plaintiffs do not set forth a plausible equal protection
claim merely because they did not achieve the result they would have liked." Nemeth, 2011 WL
56063, at *7. Thus, the Norwood Plaintiffs' "class of one" equal protection claim is implausible
because the allegations are incompatible with the claim of no rational basis. Accordingly, the
Norwood Plaintiffs' "class of one" equal protection claim must be dismissed.
With respect to the Orlowski Plaintiffs, the Court finds that they have sufficiently alleged
an "extremely high" level of similarity between themselves and Mr. May. The Orlowski
Plaintiffs allege that they sought permission from Defendants to relocate a manufactured home on
their property and that Defendant Salvatore instructed them that they could do so without a
building permit. Relying on this representation, the Orlowski Plaintiffs relocated the
manufactured home. Thereafter, they were threatened with monetary fines and were issued an
appearance ticket which charged them with Building without a Permit. The Orlowski Plaintiffs
further allege that Mr. May also owned property in the Town of Hancock and, with Defendants'
knowledge, installed a manufactured home on his property without a permit. Defendants have not
prosecuted Mr. May or otherwise sought to enforce his compliance with local laws. At this stage
of the litigation, these activities – relocation and installation of a manufactured home – are
substantially similar in that the purpose of both is to install a manufactured home as a residence
and they both require submission of a building permit application, issuance of a building permit,
and the grant of a certificate of occupancy to do so. "In the context of this motion to dismiss, the
court holds that the[se] allegations . . . are just plausible enough to survive a motion to dismiss.
In so holding, the court focuses on the fact that with respect to th[is] particular propert[y],
Plaintiffs have pled the existence of [a] propert[y] containing the same type of structure for which
they were denied [a permit]." Sacher v. Vill. of Old Brookville, No. CV 12-6110, 2013 WL
4780046, *7 (E.D.N.Y. Sept. 4, 2013).
In addition, the Court cannot say, on the current record, that there is a rational basis for the
disparate treatment alleged by the Orlowski Plaintiffs. They contend that a neighbor installed a
manufactured home without obtaining a building permit and has occupied it since 2008. When
they relocated an existing manufactured home on their property, Defendants insisted that they
obtain a building permit and perform certain work on their property and the manufactured home
before it could be occupied. No such action has been taken with respect to Mr. May. Thus, the
Orlowski Plaintiffs' allegations, taken as true for the purposes of this motion to dismiss, are
sufficient to nudge their "class of one" equal protection claim across the line to plausibility.
Accordingly, Defendants' motion to dismiss the Orlowski Plaintiffs' "class of one" equal
protection claim is denied. Defendants are, of course, free to make a motion for summary
judgment on these claims once the record has been developed. "It remains to be see[n] whether
such a claim will survive a motion for summary judgment." Id. at *8.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion to dismiss is GRANTED in part and DENIED in
part5; and the Court further
ORDERS that the Norwood Plaintiffs' equal protection claims are DISMISSED with
prejudice; and the Court further
ORDERS that the Orlowski Plaintiffs' selective enforcement equal protection claim is
DISMISSED with prejudice; and the Court further
As a result of this Memorandum-Decision and Order, the only remaining claims are the
Norwood Plaintiffs' substantive due process claim and the Orlowski Plaintiffs' "class of one"
equal protection claim.
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: January 17, 2014
Albany, New York
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?