Riano v. Town of Schroeppel et al
Filing
32
MEMORANDUM-DECISION AND ORDER granting 17 Motion to Dismiss for Failure to State a Claim: The Court hereby ORDERS that Defendants' motion to dismiss is GRANTED; and the Court further ORDERS that Plaintiff's petition is DISMISSED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 8/10/15. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BRENDA RIANO,
Plaintiff,
vs.
5:13-cv-00352
(MAD/TWD)
TOWN OF SCHROEPPEL; TOWN BOARD OF
THE TOWN OF SCHROEPPEL; PATRICK J.
NUGENT, individually and in his official capacity as
Town Supervisor; PAUL M. GILBERT, in his official
capacity as Town Councilman; RICHARD P. KLINE,
in his official capacity as Town Councilman;
WILLIAM GODFREY, in his official capacity as
Town Councilman; WILLIAM W. VAN DYKE, in his
official capacity as Town Councilman; ROBERT
DALTON, individually and in his official capacity as
Code Enforcement Officer of the Town of Schroeppel;
and PAUL D. CASPER, JR., individually as former
Supervisor of the Town of Schroeppel,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
NEIL M. GINGOLD, ATTORNEY
5178 Winterton Drive
Fayetteville, New York 13066
Attorneys for Plaintiff
NEIL M. GINGOLD, ESQ.
RICE & AMON
Four Executive Boulevard, Suite 100
Suffern, New York 10901
Attorneys for Defendant
TERRY RICE, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On March 1, 2013, Plaintiff commenced this suit by filing a notice of petition and verified
petition in New York State Supreme Court, Onondaga County. See Dkt. No. 1 at 5-50
("Petition").1 In the Petition, Plaintiff asserts claims arising out of Defendants' issuance of a
demolition permit and subsequent Stop Work Order. Plaintiff seeks a declaratory judgment
pursuant to Section 3001 of the New York Civil Practice Law and Rules and damages under 42
U.S.C. § 1983. See id. On March 28, 2013, Defendants timely removed the action to this Court
pursuant to 28 U.S.C. § 1441 et seq., on the grounds that it "arises under the Constitution and law
of the United States and involves a federal question." See Dkt. No. 1 at 2. Presently before the
Court is Defendants' motion to dismiss for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 17.
Plaintiff has opposed Defendants' motion. See Dkt. No. 25.
II. BACKGROUND2
According to Plaintiff's Petition, Plaintiff was, at all relevant times to this action, a
resident of Phoenix, New York. See Petition ¶ 2. The named Defendants in this action are all
employed, or were employed, by the Town of Schroeppel (the "Town"). Defendant Dalton is the
Town's Code Enforcement Officer. See id. ¶ 6. Defendants Casper and Nugent are the former
and current Town Supervisors, respectively. See id. ¶¶ 5, 7. The remaining named Defendants
are all members of the Town Council. See id. ¶ 4.
In 2007, the Town passed a local law entitled "Local Law Providing for the
Administration and Enforcement of the New York State Uniform Fire Prevention and Building
Code," which provides as follows:
In order to avoid confusion, the Court's references to specific page numbers for entries on
the docket will cite to the page number assigned by the Court's electronic filing system.
1
The factual background is taken from Plaintiff's petition and is presumed true solely for
the purpose of this motion.
2
2
This local law provides for the administration and enforcement of
the New York State Uniform Fire and Prevention and Building
Code (Uniform Code) and the State Energy Conservation
Construction Code (the Energy Code) in this Town. Except as
otherwise provided in the Uniform Code, or other state law, or other
section of this local law, all buildings, structures, and premises,
regardless of use or occupancy, are subject to the provisions of this
local law.
Id. ¶ 9 (quoting Local Law No. 1 of 2007 of the Town of Schroeppel ("Local Law No. 1")).
Local Law No. 1, Section 5 provides that a building permit which conforms to the requirements
of the Uniform Code is a prerequisite for projects, including demolition of any building or
structure. See id. ¶ 36.
Article 18 of the New York Executive Law, known as the New York State Uniform Fire
Prevention and Building Code Act, provides as follows:
1. The provisions of this article and of the uniform fire prevention
and building code shall supersede any other provision of a general,
special, or local law, ordinance, administrative code, rule or
regulation inconsistent or in conflict therewith[.]
****
2. Nothing herein shall be construed as affecting the authority of
the state labor department to enforce a safety or health standard
issued under provisions of sections twenty-seven and twenty-sevena of the labor law.
Id. ¶ 54 (quoting N.Y. Exec. Law § 383). The New York State Department of Labor, pursuant to
its authority under New York State law, has promulgated regulations regarding asbestos surveys
under 12 N.Y.C.R.R. Part 56. Section 56-5.1(g) mandates that an "asbestos survey shall be
completed and submitted . . . prior to commencing work." 12 N.Y.C.R.R. § 56-5.1(a); see also
Petition ¶ 58.
On March 24, 2011, Plaintiff sought to obtain a permit from the Town Code Enforcement
Office ("CEO") to demolish a building which formerly housed her bowling alley business, the
3
Phoenix Bowl Inn Sports Center ("Bowl Inn"). Plaintiff was instructed by a clerk in the CEO that
she needed to submit a permit application, a certificate of issuance, and a thirty-dollar ($30.00)
fee. See Petition ¶¶ 10-17, 24. Plaintiff subsequently provided the CEO with the requested
documentation, thereby obtaining a demolition permit from the CEO on March 25, 2011 for the
Bowl Inn. See id. ¶¶ 18-19.
Plaintiff commenced demolition of the Bowl Inn on April 19, 2011, and on April 20,
2011, Plaintiff was verbally issued a Stop Work Order for the demolition by Defendant Dalton, on
the grounds that an asbestos survey had not been conducted prior to issuance of the demolition
permit. See id. ¶¶ 20, 24, 72. On April 25, 2011, Plaintiff received a written Notice of Violation
and Order to Comply from the New York State Department of Labor, Division of Asbestos
Control. This notice informed Plaintiff that, since she had failed to prepare an asbestos survey
prior to the commencement of demolition of the Bowl Inn, the entire site was deemed
contaminated. As a result, all of the remaining debris was to be assumed contaminated with
asbestos-containing material and, therefore, had to be handled and disposed of as asbestos. See
id. ¶¶ 27-28.
Prior to receiving the verbal Stop Work Order and written Notice of Violation, Plaintiff
had contracted with non-party Alpco Recycling ("Alpco") for the demolition of the Bowl Inn.
See id. ¶ 76. The contract called for Alpco to demolish the entire building, recycle or sell all
material capable of being recycled or sold, level the grade of the site, and remove any remaining
debris. Following the State Department's determination that the debris from the demolition site
was deemed contaminated by asbestos, Alpco could not sell or recycle any of the scrap metal and
other debris. Consequently, Alpco refused to perform the remainder of its obligations under the
contract, and Plaintiff has not completed demolition and removal. See id. ¶¶ 76-77.
4
Additionally, Plaintiff had contracted with a non-party retail sales company to purchase
the Bowl Inn property for development. The contract required that the site be cleared of the Bowl
Inn structure. Since Plaintiff did not satisfy this condition, the developer subsequently withdrew
from the contract for sale. See id. ¶¶ 78-79.
According to Plaintiff's petition,
Local Law No. 1 is in violation of the State of New York Labor
Law and its regulations dealing with asbestos[.]
****
The Town of Schroeppel Code Enforcement Officer is prohibited
and would be negligent under the State Labor Law to issue a
Demolition Permit for a building or structure, knowing there has
not been prepared an asbestos survey for that building or structure,
for that violates the Labor Law.
****
[Plaintiff] contends that [Local Law No. 1] is invalid and
unenforceable, both on its face and as construed by [Defendants],
in that [Local Law No. 1] is in clear conflict with the preemptive
State Labor Law and its regulations as to the asbestos and
demolition activities associated therewith, when the Town issued a
Demolition Permit to [Plaintiff] on March 25, 2011, allowing her
to commence the demolition of her building, and then three and a
half weeks later the Town Code Enforcement Officer issued a
verbal Stop Work Order to [Plaintiff] based on [Plaintiff] not
having prepared an asbestos survey of her building prior to
commencing the demolition.
Id. ¶¶ 75, 90, 98. Plaintiff's first cause of action seeks a declaration pursuant to N.Y. C.P.L.R. §
3001 as to the validity of Local Law No. 1 and whether it was "negligently administered" by
Defendants. See id. ¶¶ 99-100, A.3 Plaintiff's second cause of action seeks monetary damages
In an October 18, 2013 Memorandum-Decision and Order, the Court remanded
Plaintiff's first cause of action to Onondaga County Supreme Court, while retaining jurisdiction
over the federal claims. See Dkt. No. 8. This case was stayed pending resolution of the state-law
3
(continued...)
5
arising out of Defendants' conduct, as well as a determination that Defendants deprived Plaintiff
of her rights under the Due Process, Equal Protection, and Contract Clauses of the United States
Constitution and comparable provisions of the New York State Constitution. See id. ¶¶ 101-102.
III. DISCUSSION
A.
Standard of Review
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. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). 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).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Mangiafico v. Blumenthal, 471
F.3d 391, 398 (2d Cir. 2006)).
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 factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
3
(...continued)
claims.
6
above the speculative level," see id. at 555 (citation omitted), 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 554, 557, 127 S. Ct.
1955, 167 L. Ed. 2d 929). 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 570.4
B.
Due Process
1. Procedural Due Process
Before addressing Plaintiff's substantive due process claim, the Court will first consider
Plaintiff's procedural due process claim. "'[T]o establish a procedural due process violation, a
plaintiff must prove that he or she was deprived of an opportunity granted at a meaningful time
and in a meaningful manner for a hearing appropriate to the nature of the case.'" Zito v. Town of
In Plaintiff's response to the motion to dismiss, she asserts that "the proper pleading
standard does not require a plaintiff to plead specific facts." Dkt. No. 25 at 7 (citation omitted).
Further, Plaintiff quotes from two Supreme Court cases for the proposition that "'[t]he Federal
Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he
bases his claim.'" Id. (quoting Conley v. Gibson, 355 U.S. 41 (1957); Leatherman v. Tarrant
County NIC Unit, 507 U.S. 163 (1993)). In Twombly, the Supreme Court overturned the pleading
standard set forth in Conley, which had provided that a motion to dismiss should be granted only
if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." In Twombly, the Supreme Court provides that "Conley's 'no
set of facts' language has been questioned, criticized, and explained away long enough," has
"earned its retirement," and is now "best forgotten." Twombly, 550 U.S. at 561-62.
4
7
Babylon, 543 Fed. Appx. 25, 27 (2d Cir. 2013) (quoting Brady v. Town of Colchester, 863 F.2d
205, 211 (2d Cir. 1988)). Defendants contend that Plaintiff "challenged the issuance of the permit
herein in various contexts, including a State Court action which rejected her claims.5 As a result,
Plaintiff does not possess a viable procedural due process claim as a matter of law." Dkt. No. 19
at 19. In response, Plaintiff raises two arguments. First, Plaintiff contends that New York State
Supreme Court Judge Norman W. Seiter's ruling to dismiss Plaintiff's petition in state court "was
limited in its scope," focusing solely on "whether Local Law No. 1 of 2007 required the Code
Enforcement Officer to provide a notice to plaintiff to obtain or prepare an asbestos survey as a
condition of obtaining a demolition permit." Dkt. No. 25 at 12. Thus, Plaintiff seems to suggest
that she was not afforded a meaningful opportunity to discuss her alleged Section 1983 injuries.
Upon careful review of Judge Seiter's Order, the Court notes several findings made by the
state court that are connected to Plaintiff's underlying federal claims. For instance, Judge Seiter
explicitly found that "it was [Plaintiff's] and her contractor's responsibility to comply with the
state law and regulation" regarding the asbestos survey. Dkt. No. 11-1 at 2. Judge Seiter also
held that "an unknown asbestos condition is, in and of itself, unsafe. Such an unsafe condition is
a proper basis for an oral stop work order and this court finds that [Defendants] acted properly in
its issuance of an oral stop work order." Id. at 3 (emphasis added). It appears, therefore, that
Judge Seiter's review was not solely limited, as Plaintiff contends, as to whether Defendants
provided adequate notice of the asbestos survey requirement. In fact, Judge Seiter also
considered Defendants' actions following the issuance of the demolition permit; namely, the
subsequent Stop Work Order which denied Plaintiff the ability to further demolish the Bowl Inn
and thereby satisfy Plaintiff's contractual obligations with non-party Alpco.
5
See Riano v. Town of Schroeppel et al., No. 2014-0317 (N.Y. Sup. Ct. June 6, 2014).
8
Plaintiff had the ability to challenge the administrative decision/Stop Work Order through
an Article 78 proceeding, and her failure to do so is fatal to her procedural due process claim. See
Beachwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 156-57 (2d Cir. 2006); see also Hafez
v. City of Schenectady, 894 F. Supp. 2d 207, 215 n.9 (N.D.N.Y. 2012) (citations omitted). New
York State statutes provide an opportunity for full and complete judicial review of all
administrative determinations. The availability of such judicial review satisfies the dictates of
procedural due process. See G.I. Home Developing Corp. v. Weis, 499 Fed. Appx. 87, 89 (2d Cir.
2012); Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877,
881-82 (2d Cir. 1996); Petruso v. Schlaefer, 474 F. Supp. 2d 430, 437 n.1 (E.D.N.Y. 2007), aff’d,
312 Fed. Appx. 397 (2d Cir. 2009). In fact, Plaintiff challenged the issuance of the permit herein
in various contexts, including a State Court action which rejected her claims.
Plaintiff contends that she was "denied the ability of a timely state court review within the
normal 90 days allowed by New York Town Law for an Article 78 proceeding."6 Dkt. No. 25 at
11. Specifically, Plaintiff contends that Defendants "initially lulled petitioner into believing that
the [Defendants] [were] looking into a plan or plans to correct the acknowledged error committed
by the [CEO] in initially issuing the demolition permit on March 25, 2011, and then issuing a
verbal Stop Work Order on April 20, 2011." Petition ¶ 95. Plaintiff fatally admits, however, that
she received acknowledgment from Defendants regarding their alleged error in issuing the
demolition permit "a few days inside the ninety day statute of limitations under the New York
Town Law." Petition ¶ 96. Since Plaintiff acknowledges that the statute of limitations period had
Plaintiff misstates the applicable statute of limitations period for an Article 78
proceeding. Here, the applicable statute of limitations for an Article 78 proceeding is in fact four
months. N.Y. C.P.L.R. § 217(1) (McKinney 2014) (stating that "a proceeding against a body or
officer must be commenced within four months after the determination to be reviewed becomes
final and binding upon the petitioner").
6
9
not yet expired, her failure to timely bring an Article 78 proceeding further precludes Plaintiff's
procedural due process claim. See O'Leary v. Town of Huntington, No. 11-CV-3754, 2012 WL
3842567, n.7 (E.D.N.Y. Sept. 5, 2012) (explaining that "because one must show that the state
procedural remedies are inadequate in order to bring a Section 1983 due process claim, the
availability and non-use of such procedures would bar a Section 1983 claim. Thus, the legal
defect in the due process claim is the failure to use available, post-deprivation remedies, rather
than some general failure to exhaust") (citing Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir.
1988)).
Based on the foregoing, the Court grants Defendants' motion to dismiss as to Plaintiff's
procedural due process claim.
2. Substantive Due Process
"To state a substantive due process claim, a plaintiff must plead that (1) 'a constitutionally
cognizable property interest is at stake,' and (2) the defendant's alleged actions depriving her of
that right were 'not merely incorrect or ill-advised,' but 'arbitrary, conscience-shocking, or
oppressive in the constitutional sense.'" Finn v. Anderson, 592 Fed. Appx. 16, 20 (2d Cir. 2014)
(quoting Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir. 2006)).
a. Cognizable Property Interest
The requirements of a cognizable property interest in a substantive due process claim are
straightforward:
It is well settled in this Circuit that a constitutionally protected
property interest in land use regulation arises only if there is an
entitlement to the relief sought by the property owner. A plaintiff
has a legitimate claim of entitlement to a particular benefit if, absent
10
the alleged denial of due process, there is a certainty or a very
strong likelihood that the benefit would have been granted. Where
a local regulator has discretion with regard to the benefit at issue,
there normally is no entitlement to that benefit. An entitlement to a
benefit arises only when the discretion of the issuing agency is so
narrowly circumscribed as to virtually assure conferral of the
benefit. The issue of whether an individual has such a property
interest is a question of law since the entitlement analysis focuses
on the degree of official discretion and not on the probability of its
favorable exercise.
Gagliardi v. Vill. of Pawling, 18 F.3d 188, 192 (2d Cir. 1994) (alterations, citations, and internal
quotation marks omitted); see also Harrington v. Cnty. of Suffolk, 607 F.3d 31, 34-35 (2d Cir.
2010); Soundview Assocs. v. Town of Riverhead, 725 F. Supp. 2d 320, 334 (E.D.N.Y. 2010). The
analysis changes, however, "when a plaintiff is issued a permit that is then revoked. In such cases
the 'clear entitlement' test is inapplicable because a permit, once issued, is 'unquestionably'
property of the holder." Missere v. Gross, 826 F. Supp. 2d 542, 556 n.9 (S.D.N.Y. 2011) (citing
Soundview Assocs., 725 F. Supp. 2d at 334).
To this end, Plaintiff correctly recognizes that the Town's issuance of the demolition
permit "gave plaintiff the right to demolish," and "it was no longer a discretionary right of the
Town to grant or deny." Dkt. No. 25 at 10. However, it has also been held in this Circuit that
"New York law allows for the revocation and/or modification of a building permit issued in error
such that plaintiffs cannot establish that they had or have a federally protected property right to
the permit." Petruso v. Schlaefer, 312 Fed. Appx. 397, 400 (2d Cir. 2009). Therefore, Plaintiff
contends that Defendants "should have conditioned the issuance on the plaintiff's obtaining the
asbestos survey" and "should have held the application until the asbestos survey was presented,"
and, therefore, Plaintiff argues that the demolition permit was issued "in error." Plaintiff cannot
claim to have a cognizable property interest in a permit that she herself contends should never
have been issued.
11
To the extent that Plaintiff argues that she had a cognizable property interest in the "right
to demolish" and that such right was interfered with by the Stop Work Order, the argument must
fail. First, Defendants did not revoke the demolition permit. Rather, Defendants issued a Stop
Work Order until such time as Plaintiff could comply with the applicable state law. As such,
Plaintiff was not deprived of any interest in the permit. See Gottlieb v. Village of Irvington, 69 F.
Supp. 2d 553, 556 (S.D.N.Y. 1999) ("Plaintiffs apparently want the Court to equate the Village's
temporary interference with their right to continue building – because of the stop work order –
with a denial or revocation of a building permit. Those two things cannot be equated, however");
Witt v. Village of Mamaroneck, 992 F. Supp. 2d 350, 367 (S.D.N.Y. 2014) (holding that, "even if
the building permit itself represented a valid property interest, Gottlieb makes clear that, because
that permit was never actually revoked, any such property interest was never denied") (citation
omitted).
Moreover, the fact that demolition had begun does not aid Plaintiff. In Petruso v.
Schlaefer, 474 F. Supp. 2d 430 (E.D.N.Y. 2007), the Eastern District of New York dismissed a
due process claim that rested "primarily on the argument that the near completion of construction
gave Plaintiffs a vested right to the permit under New York State law." Id. at 438. The court held
that the plaintiffs' completion of ninety percent of their project did not alter the outcome, noting
that "where a zoning board finds that a permit was issued in error that permit may be revoked,
even in cases where construction has taken place." Id. at 433, 438-39. The Second Circuit not
only affirmed this portion of the district court's opinion, but it explicitly adopted the Eastern
District's reasoning. See Petruso v. Schlaefer, 312 Fed. Appx. 397, 400 (2d Cir. 2009)
("Substantially for the reasons stated by the District Court . . ., we conclude that New York law
allows for the revocation and/or modification of a building permit issued in error such that
12
plaintiffs cannot establish that they had or have a federally protected property right to the
permit"). As such, even if the demolition permit was issued in error, Plaintiff did not obtain a
vested property right simply because she had begun demolition.
Additionally, the Town Code provides the Code Enforcement Officer with discretion to
issue a stop work order in certain situations. Specifically, the Town Code provides that "[t]he
Code Enforcement Officer shall issue a stop-work order to halt . . . [a]ny work that is being
conducted in a dangerous or unsafe manner in the opinion of the Code Enforcement Officer,
without regard to whether such work is or is not work for which a building permit is required, and
without regard to whether a building permit has or has not been issued for such work[.]" Town
Code § 38-7(A). As Judge Seiter already determined on remand, "[s]uch an unknown asbestos
condition is, in and of itself, unsafe. Such an unsafe condition is a proper basis for an oral stop
work order[.]" Dkt. No. 11-1 at 3. Given the discretion the Code Enforcement Officer had to
issue the Stop Work Order, it is clear that Plaintiff had no vested property interest in the
demolition permit or to demolish the building. See A.B.C. Home Furnishing, Inc. v. Town of East
Hampton, 947 F. Supp. 635, 645 (E.D.N.Y. 1996).
Plaintiff also claims that she had a protected property interest in the property "she owned
for over many years – that being the bowling center property[.]" Dkt. No. 25 at 10. However,
such a claim does not assert a cognizable property interest since ownership of property is not the
appropriate focus of the analysis. Had Plaintiff's property been re-zoned for a purpose
inconsistent with its current use, Plaintiff's ownership of the property would be relevant. The fact
she owned the property for many years and operated a bowling facility on it does not provide
Plaintiff with the unfettered right to then demolish the facility without complying with local and
state regulations.
13
Accordingly, the Court grants Defendants' motion to dismiss to the extent it finds that
Plaintiff's substantive due process claim fails to plausibly allege a cognizable property interest.
b. Conscience-Shocking Conduct
Assuming, however, that Plaintiff did have a cognizable property interest in the
demolition permit, the issuance of the permit and subsequent Stop Work Order by Defendants
does not amount to conscience-shocking conduct sufficient to state a violation of substantive due
process. "In order to shock the conscience and trigger a violation of substantive due process,
official conduct must be outrageous and egregious under the circumstances; it must be truly
'brutal and offensive to human dignity . . . .'" Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir.
2007) (citing Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d 168, 173 (2d Cir. 2002)). In
gauging the shock value of the alleged conduct, "negligently inflicted harm is categorically
beneath the threshold," while "conduct intended to injure in some way unjustifiable by any
government interest is the sort of official action most likely to rise to the conscience-shocking
level." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Considering again that State
Supreme Court Judge Seiter held that (1) Defendants were not required to request an asbestos
survey from Plaintiff prior to issuing the demolition permit, and (2) Defendants acted properly in
issuing Plaintiff a Stop Work Order, such adjudicated actions certainly do not rise to a level of
outrageous or egregious sufficient to warrant an alleged substantive due process violation. At
best, Plaintiff has alleged that Defendants were negligent in issuing a demolition permit without
first ensuring that an asbestos survey had been completed in compliance with state law.
Negligence, however, is insufficient to support a substantive due process claim. See Cox v.
Warwick Valley Cent. School Dist., 654 F.3d 267, 276 (2d Cir. 2011) (holding that "[c]ommon
14
negligence is categorically insufficient to shock the conscience") (citation omitted).
Accordingly, the Court grants Defendants' motion to dismiss to the extent it finds that
Plaintiff's substantive due process claim fails to plausibly allege conscience-shocking conduct.
C.
Equal Protection
Plaintiff further concedes that the Petition "fail[s] to assert a factual basis for an equal
protection claim." Dkt. No. 25 at 12. Plaintiff's concession, however, is prefaced on Defendants'
alleged refusal to provide Plaintiff with her demolition permit application file. Essentially,
Plaintiff is requesting pre-trial discovery in order to "more artfully and factually assert an equal
protection violation." Id. at 13. Since Plaintiff admittedly has not pled "enough facts to state a
claim to relief that is plausible on its face," the Court grants Defendants' motion to dismiss as to
Plaintiff's equal protection claim. Twombly, 550 U.S. at 570.
"A class-of-one claim exists '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.'" Analytical Diagnotic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir.
2010) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d
1060 (2000)). In order to succeed on such claim, "plaintiff must show an extremely high degree
of similarity between themselves and the persons to whom they compare themselves." Ruston v.
Town Bd. of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (internal quotation marks omitted).
Here, Plaintiff seems to contend that because "[t]he Town of Schroeppel, and every other
municipality in New York State does in fact require that demolition applicants prepare an
asbestos survey prior to the issuance of Demolition Permits," Defendants "knowingly caused
[Plaintiff] to unknowingly, and inadvertently, expose herself to civil, and possible criminal
15
prosecution" when they unlawfully issued her the demolition permit and subsequent Stop Work
Order. See Petition ¶¶ 131, 136. Defendants argue, however, that the Petition "is devoid of any
allegations of the existence of comparitors, let alone facts to substantiate that they are similarly
situated in all relevant aspects." Dkt. No. 19 at 26. The Court agrees. The Petition fails to
plausibly allege the existence of similarly situated individuals treated differently from her or that
there was no rational basis for the difference in treatment. Without such allegations, the claim
must be dismissed.
Accordingly, the Court grants Defendants' motion to dismiss as to Plaintiff's equal
protection claim.
D.
Contracts Clause Claim7
In the Petition, Plaintiff alleges that Defendants' issuance of the Stop Work Order violated
Article I, Section 10 of the United States Constitution, which provides that "'[n]o State shall . . .
pass any . . . Law impairing the Obligations of Contracts.'" See Petition ¶ 102 (quoting U.S.
CONST. art. I, § 10). For the most part, the named Defendants are not legislative bodies and
therefore are not proper parties in an action pursuant to the Contracts Clause. See Kinney v.
Conn. Judicial Dep't, 974 F.2d 313, 314 (2d Cir. 1992) (finding that the prohibition in the
Contracts Clause "is aimed at the legislative power of the State, and not at the decisions of its
courts, the acts of administrative or executive boards or officers, or the doings of corporations or
individuals") (citing New Orleans Water-Works Co. v. La. Sugar Ref. Co., 125 U.S. 18, 30, 8 S.
Ct. 741, 31 L. Ed. 607 (1888)); Jamaica Ash & Rubbish Removal Co., Inc. v. Ferguson, F. Supp.
2d 174, 177 (E.D.N.Y. 2000) ("[T]he Contracts Clause applies only to legislative bodies").
Although Defendants have not addressed this specific claim in their motion to dismiss,
the Court will conduct review sua sponte with respect to the sufficiency of Plaintiff's pleading.
7
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Even assuming the Contracts Clause could be applied to the named Defendants, the Court
finds that Plaintiff's claim would still fail. When asserting a violation of the Contracts Clause, the
plaintiff is required to show three elements: (1) there is a contractual relationship; (2) there has
been a change in law that impairs that relationship; and (3) the impairment is substantial and
unjustified. See General Motors Corp. v. Romein, 503 U.S. 181, 185-86 (1992); see also Coney
Islands Resorts, Inc. v. Giuliani, 103 F. Supp. 2d 645, 655 (E.D.N.Y. 2000) (citation omitted).
Local Law No. 1 was passed in 2007 while the contracts that Defendants are alleged to have
infringed upon were not entered into until 2011. Further, the state regulation requiring an
asbestos survey was enacted in 1987 and most recently amended on March 21, 2007. See 12
N.Y.C.R.R. § 56-5.1. As such, Plaintiff has not alleged that a change in the law impaired her
contractual relationships. Rather, she has alleged that the implementation of a pre-existing law
impaired her contractual relationships, which is outside the scope of the Contracts Clause.
Accordingly, having reviewed Plaintiff's Contracts Clause claim sua sponte, the Court
finds that Plaintiff has failed to plausibly allege this cause of action; and, therefore, the claim is
dismissed.
E.
Qualified Immunity
Lastly, named Defendants Nugent, Dalton, and Casper individually contend that they are
entitled to qualified immunity. See Dkt. No. 19 at 34. "The doctrine of qualified immunity
shields public officials from 'liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.'" Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006) (citing Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). Whether a defendant actually
17
violated a plaintiff's rights is not the central issue: "Even defendants who violate constitutional
rights enjoy a qualified immunity that protects them from liability for damages unless it is further
demonstrated that their conduct was unreasonable under the applicable standard." Davis v.
Scherer, 468 U.S. 183, 190 (1984). Indeed, "qualified immunity only applies where a
government official performs a discretionary, as distinct from a ministerial function." Toussie v.
Cnty. of Suffolk, 806 F. Supp. 2d 558, 588 (E.D.N.Y. 2011) (citing Waltz v. Town of Smithtown,
46 F.3d 162, 169 (2d Cir. 1993)).
Notably, a defendant asserting a qualified immunity defense on a motion to dismiss "faces
a formidable hurdle . . . and is usually not successful." Field Day, LLC v. Cnty. of Suffolk, 463
F.3d 167, 191-92 (2d Cir. 2006). In this regard, the defense will succeed only where entitlement
to qualified immunity can be established "based [solely] on the facts appearing on the face of the
complaint." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004).
Having considered the parties' arguments, the Court finds that the individual Defendants
are entitled to qualified immunity. Plaintiff's constitutional challenges pursuant to § 1983 revolve
around Defendants alleged unlawful issuance of a demolition permit and subsequent Stop Work
Order. The Court finds that it was objectively reasonable to issue Plaintiff the Stop Work Order.
The complaint makes clear that, when Defendant Dalton issued the Stop Work Order, Plaintiff
was not in compliance with New York law as a result of her failure to obtain an asbestos survey
prior to commencing demolition. As such, an objectively reasonably official would not believe
that he was violating Plaintiff's rights.
Accordingly, the Court grants Defendants' motion to dismiss to the extent it finds that the
individual Defendants are entitled to qualified immunity.
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F.
Personal Involvement
"'[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994) (quotation and other citations omitted). "'[W]hen monetary damages are sought under §
1983, the general doctrine of respondeat superior does not suffice and a showing of some
personal responsibility of the defendant is required.'" Id. (quoting Johnson v. Glick, 481 F.2d
1028, 1034 (2d Cir. 1973)). There is a sufficient showing of personal involvement of a defendant
if (1) the defendant directly participated in the alleged constitutional deprivation; (2) the
defendant is a supervisory official who failed to correct the wrong after learning about it through
a report or appeal; (3) the defendant is a supervisory official who created a policy or custom
under which the constitutional deprivation occurred, or allowed such a policy or custom to
continue; or (4) the defendant is a supervisory official that was grossly negligent in managing
subordinates who caused the constitutional deprivation. See id. (quoting Williams v. Smith, 781
F.2d 319, 323-24 (2d Cir. 1986)).
Upon careful review of Plaintiff's petition, the Court finds insufficient facts to indicate the
personal involvement of either Defendant Nugent or Defendant Casper in the alleged
constitutional deprivations. The extent of Defendant Casper's involvement in the alleged
controversy is (1) his receipt of a letter from the Town Attorney indicating "that it was totally
[Plaintiff's] error in obtaining her Demolition Permit by not obtaining and submitting an asbestos
survey to the Town of Shroeppel," and (2) a telephone interview between Defendant Casper and
an investigative reporter discussing the controversy. See Petition ¶¶ 126, 150. Moreover, the
extent of Defendant Nugent's involvement in the alleged controversy is (1) a failure to respond to
Plaintiff's request for a copy of her permit application, and (2) hearsay testimony from a non19
party contractor suggesting that Defendant Nugent was interested in purchasing Plaintiff's
property through condemnation proceedings. See id. ¶¶ 152-54. The above allegations fail to
plausibly allege that Defendants Casper and Nugent were personally involved in the alleged
constitutional violations.
Accordingly, the Court finds that, in the alternative, Plaintiff has failed to plausibly allege
that Defendants Casper and Nugent were personally involved in any of the alleged
unconstitutional actions.
IV. CONCLUSION
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 Defendants' motion to dismiss is GRANTED; and the Court further
ORDERS that Plaintiff's petition is DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 10, 2015
Albany, New York
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