Avraham v. Lakeshore Yacht & Country Club Inc. et al
MEMORANDUM-DECISION AND ORDER granting Defts 25 , 27 , 29 , 30 , 37 , and 46 Motions to Dismiss. Denying Pltf's 38 Motion for Default Judgment; denying Pltf's 49 and 64 Motions to Amend/Correct; denying Pltf's 62 Let ter Request. Permission to file a further motion to amend the complaint is not granted. Pltf's claims based on federal law are dismissed with prejudice as to all defts. Jurisdiction over Pltf's state law claims is declined and those claims are dismissed without prejudice. Signed by Judge David N. Hurd on 11/7/16. [Served Pltf by certified mail.] (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LAKESHORE YACHT & COUNTRY CLUB,
INC., and its members / owners, TOWN OF
CICERO NY, NEW YORK STATE, JUDY
BOYKE, ANTHONY RIVIZZIGNO, WAYNE
DEAN, STEVEN PROCOPIO, Town of Cicero
Code Enforcement, RICHARD HOOPER,
Town of Cicero Code Enforcement, JESSICA
ZAMBRANO, Town of Cicero, ZACHARY M.
MATTISON, Hancock Estabrook, LLP,
MICHAEL L. CORP, Hancock Estabrook, LLP,
JOHN J. MARZOCCHI, Germain and Germain
Law Firm, NEIL G. GERMAIN, Germain and
Germain Law Firm, ROBERT M. GERMAIN,
Germain and Germain Law Firm, VERN
CONWAY, ROBERT SMITH, Town of Cicero
Planning Board, MARK VENESKY, Town of
Cicero Board, RICHARD CUSHMAN, Town of
Cicero Board, GILBERT, STINZIANO, HEINZ
& SMITH P.C., HANCOCK ESTABROOK LLP,
GERMAIN AND GERMAIN LAW FIRM, HAL
R. ROMANS, Ianuzi & Romans Land Surveying,
P.C., and IANUZI & ROMANS LAND
Plaintiff, Pro Se
6724 Lakeshore Road
Cicero, NY 13039
NEWMAN & LICKSTEIN
Attorneys for Defendant Lakeshore
Yacht & Country Club Inc.
SCOTT A. LICKSTEIN, ESQ.
STEVEN D. LICKSTEIN, ESQ.
SUGARMAN LAW FIRM LLP
Attorneys for Defendants Town of Cicero NY,
Judy Boyke, Anthony Rivizzigno, Wayne
Dean, Steven Procopio, Richard Hooper,
Jessica Zambrano, John J. Marzocchi,
Neil G. Germain, Robert M. Germain,
Vern Conway, Robert Smith, Mark Venesky,
Richard Cushman, Gilbert, Stinziano, and
Heinz & Smith P.C.
211 West Jefferson Street
Syracuse, NY 13202
PAUL V. MULLIN, ESQ.
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorneys for Defendant New York State
Albany, NY 12224
ADRIENNE J. KERWIN, ESQ.
Ass't Attorney General
GILBERTI, STINZIANO LAW FIRM
Attorneys for Defendant Anthony P.
Rivizzigno, Gilberti, Stinziano, and
Heinz & Smith P.C.
555 East Genesee Street
Syracuse, NY 13202
ANTHONY P. RIVIZZIGNO, ESQ.
HANCOCK, ESTABROOK LAW FIRM
Attorneys for Defendant Zachary M. Mattison,
Michael L. Corp, and Hancock Estabrook LLP
100 Madison Street, Suite 1500
Syracuse, NY 13202
JANET D. CALLAHAN, ESQ.
COSTELLO, COONEY LAW FIRM
Attorneys for Defendants Gilberti, Stinziano,
and Heinz & Smith P.C.
500 Plum Street, Suite 300
Syracuse, NY 13204
PAUL G. FERRARA, ESQ.
SMITH, SOVIK, KENDRICK & SUGNET, P.C.
Attorneys for Defendant Germain and Germain
250 South Clinton Street, Suite 600
Syracuse, NY 13202
KEVIN E. HULSLANDER, ESQ.
PAPPAS, COX, KIMPEL, DODD & LEVIN, PC
Attorneys for Defendants Hal R. Romans and
Ianuzi & Romans Land Surveying, P.C.
614 James Street, Suite 100
Syracuse, NY 13203
THOMAS J. MURPHY, ESQ.
DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
On October 30, 2015, plaintiff Ovadia Avraham ("Avraham" or "plaintiff"), proceeding
pro se, filed this civil rights action alleging that defendants are participants in a decades-long
conspiracy whose primary object has been to prevent plaintiff from developing a parcel of
waterfront land situated adjacent to the Lakeshore Yacht and Country Club (the "LYCC" or
the "Club") in Cicero, New York.
Avraham's initial seventy-six page complaint, which included eighteen pages of
supporting exhibits and asserted twenty-one causes of action against twenty-three different
defendants, sought injunctive relief as well as millions of dollars in compensatory and
punitive damages. The same day he instituted this lawsuit, plaintiff also filed two requests to
"Remove/Transfer" certain pending state court actions in which he is, or was, a named
defendant in an effort to consolidate those state actions as part of this federal one. A few
days later, plaintiff filed two emergency motions seeking preliminary injunctive relief.
On November 9, 2015, a Decision and Order issued denying all four of Avraham's
pending motions. Among other things, this Decision and Order concluded that plaintiff's
removal petitions were procedurally defective and that his requests for injunctive relief lacked
the requisite supporting documentation.
On November 24, 2015, defendant Hal Romans ("Romans") and his surveying firm,
Ianuzi & Romans Land Surveying, P.C. (the "Surveying Firm Defendants"), submitted an
answer to Avraham's complaint. However, in lieu of filing similarly responsive pleadings, the
twenty-one other named defendants chose instead to invoke the Federal Rules of Civil
Procedure to seek pre-answer dismissal of this action insofar as plaintiff's complaint could be
construed as raising one or more claims against them.
First, on December 31, 2015, defendant New York State (the "State") moved pursuant
to Rules 12(b)(1) and 12(b)(6) seeking dismissal from the action on the ground that the
Eleventh Amendment precludes Avraham from asserting any viable claims against it.
Second, on January 5, 2016, defendant Gilberti, Stinziano, Heintz & Smith, P.C. (the
"Gilberti Firm"); defendants Town of Cicero (the "Town"), Judy Boyke ("Boyke"), Anthony P.
Rivizzigno ("Rivizzigno"), Wayne Dean ("Dean"), Steven Procopio ("Procopio"), Richard
Hooper ("Hooper"), Jessica Zambrano ("Zambrano"), John J. Marzocchi ("Marzocchi"), Neil
G. Germain ("N. Germain"), Robert M. Germain ("R. Germain"), Vern Conway ("Conway"),
Robert Smith ("Smith"), Mark Venesky ("Venesky"), and Richard Cushman ("Cushman")
(collectively the "Town Defendants"); and defendants Hancock Estabrook, LLC (the
"Hancock Firm") along with two of its attorneys, Michael L. Corp ("Corp") and Zachary M.
Mattison ("Mattison"), (collectively the "Hancock Firm Defendants"), each moved separately
seeking Rule 12(b)(6) dismissal. Defendants Germain & Germain, LLP (the "Germain Firm")
filed a substantially similar Rule 12(b)(6) motion on February 5, 2016.
On February 10, 2016, Avraham filed a motion seeking an entry of default against the
LYCC, which had not yet entered an appearance. The Club responded to plaintiff's filing in
short order, explaining in a February 19 letter that it had not been properly served and
requesting an extension of time to answer or otherwise respond to plaintiff's complaint. The
Club's request was granted on February 22.
On February 25, 2016, faced with the prospect of an imminent dismissal motion from
the LYCC as well as already-filed dismissal motions from the State, the Gilberti Firm, the
Germain Firm, the Town Defendants, and the Hancock Firm Defendants, Avraham requested
a ninety-day extension of time to respond. The Club filed its own Rule 12(b)(6) dismissal
motion on February 29 and, on March 17, plaintiff's request for an extension of time to
respond was granted.
On April 21, 2016, Avraham moved to amend his complaint, submitting a fifty-six page
proposed amended pleading along with seven short exhibits. Although the Surveying Firm
Defendants submitted a letter motion indicating that they did not oppose plaintiff's motion for
leave to amend, the LYCC, the Gilberti Firm, the Germain Firm, the Town Defendants, and
the Hancock Firm Defendants (collectively "defendants") each submitted briefing in
opposition to plaintiff's request for leave to amend.1
Finally, on May 17, 2016, Avraham further supported his request for leave to amend
with a sixty-eight page affirmation that describes in greater detail the allegedly unlawful
The State did not submit further briefing.
conduct on which his proposed amended complaint is based. Since filing this particular
motion to amend, plaintiff has also filed (1) a letter motion requesting leave to file another
amended complaint and, more recently, (2) a second motion to amend accompanied by a
second proposed amended complaint.
In addition to the fact that both of these requests are premature in light of Avraham's
already pending motion to amend under consideration here, plaintiff's newly proposed
pleading includes substantially the same factual allegations and claims for relief that will
already be addressed in this decision. However, because he is proceeding pro se, the
additional factual information in plaintiff's affirmation as well as his second proposed pleading
will be considered to the extent these documents clarify or supplement the allegations in
plaintiff's original amended pleading.
All of these pending motions will now be considered on the basis of the presently
available submissions and without oral argument.
Avraham, an ethnic Jew born in Israel, immigrated to the United States in
1974. Proposed Am. Compl. ("Compl.") at 1, 7.3 In 1995, plaintiff purchased an eighty-two
acre parcel of waterfront property (the "Property") located on Oneida Lake from former New
At first blush, Avraham's affirmation appears to be yet another formulation of a possible amended
complaint. However, upon further review, this document appears to explain in greater detail, rather than fully
supplant, the narrative thread running through plaintiff's proposed amended pleading. Accordingly, the
following allegations are taken from the proposed amended complaint, ECF No. 49-1, the supporting
affirmation, ECF No. 61-1, and a review of the second proposed pleading, ECF No. 64-1, and will be
assumed true for purposes of resolving the pending motions. However, for reasons that will be made clear
below, the additional factual detail provided in the affirmation and the second proposed amended complaint
that concern events prior to October of 2011 will be omitted.
The individually numbered paragraphs in Avraham's proposed amended complaint repeat
themselves at various junctures. Accordingly, specific citations are to the page numbers assigned to the
document by CM/ECF.
York State Senator Tarky Lombardi, Jr. Id. at 1-2, 11. The Property, which includes the
Oneida Bay Marina (the "Marina"), is situated adjacent to the LYCC, itself located at 6777
Lakeshore Road in Cicero, New York. Id. at 4-5, 11.
Lombardi, a former member of the LYCC, chose to sell the Property to Avraham for
only $10,000 more than what John Wozniczka, Sr., himself a long-time Club member, had
offered for the entire parcel. Id. at 1, 19. According to plaintiff, this infuriated the rest of the
Club members. Id. Plaintiff alleges that Club members immediately offered to purchase the
Property from him. Id. When plaintiff refused this offer, the Club members "made it their
objective to do 'whatever it takes'" to "make sure [plaintiff is] never allowed to do anything"
with the Property. Id. at 11-12.
On March 15, 1996, Avraham received a telephone call from Anthony Aloi, who
advised plaintiff that he wanted to discuss plaintiff's "parking lot and the illegal dumping in
which the LYCC had engaged in" on plaintiff's Property. Compl. at 12.
On March 23, 1996, Avraham received another telephone call, this time "from a man
with a deep NYC accent who introduced himself as 'Anthony,' [who] said he is a member of
the LYCC." Compl. at 12. According to plaintiff, "Anthony" informed him that the Club
members were "not very happy" that he had purchased the land. Id. Plaintif f asserts that
"Anthony" told him "you don't know who you are messing with" and that he should do
everyone a favor and "go back where [he] came from." Id.
On April 19, 1996, Aloi visited Avraham at the Marina and warned him that the LYCC
"has never lost a case." Compl. at 12. Although plaintiff explained that he believed he had
certain legal rights to use a nearby parking lot, Aloi refused to discuss the illegal dumping on
plaintiff's Property or how to remedy the situation. Id. According to plaintiff, Aloi also made
certain statements at this meeting that suggested the Club members would begin to take
action to obstruct plaintiff's attempts to make use of the Marina or the associated parcel of
land. Id. Plaintiff also asserts that Aloi suggested to plaintiff that he should sign an
agreement to lease the parking lot from LYCC. Id. When he refused, Aloi told plaintiff that
he "should not mess" with the Club because "they don't like [his] kind over here." Id.
On April 30, 1996, Nini Segroy stopped at Avraham's Marina and introduced himself
as a member of the LYCC. Compl. at 12. According to plaintiff, Segroy warned him that "he
should cooperate and sign a lease for the parking lot" and also told plaintiff that he "should
not mess with the LYCC." Id.
On May 10, 1996, John P. W ozniczka, Jr. drove past Avraham in the parking lot and
yelled: "You fucking Jew go back where you came from." Compl. at 12.
On May 22, 1996, a man who introduced himself to Avraham as "Nick" stopped at the
Marina and again warned plaintiff that the Club members were "not happy" that plaintiff was
the new owner of the Property. Compl. at 12-13.
On May 24, 1996, Patrick Mastroiano drove past Avraham's Property and
yelled: "Sand nigger, get the fuck out of here." Compl. at 13.
On June 8, 1996, "Nick" returned to Avraham's Property and warned him again that
Club members would make his life "miserable" if he did not cooperate with them. Compl. at
On June 17, 1996, Avraham was "hosting a visit" from his cousin, Jimi Avraham, from
England. Compl. at 13. According to plaintiff, unidentified Club members yelled to
Jimi: "Just what we need, more towel heads" as they "came past" plaintiff's
Property. Id. Plaintiff was forced to physically restrain Jimi, who wanted to "physically
defend himself" from these individuals. Id.
In July of 1996, Avraham became involved in a legal dispute with the Caster family,
his neighbors to the west. Compl. at 42. According to plaintiff, his "attorney wrote to the
Casters asking them to move all of their belongings and to stay off [the] property." Id.
On July 19, 1996, Avraham received a letter from the Department of Health that
permitted him to operate a "hot dog stand" on the Property. Compl. at 13. The next day,
however, Jay Seitz stopped by plaintiff's Property and told him "there were many complaints"
about the stand. Id. Six days later, on July 26, 1996, Seitz again stopped by plaintiff's
Property and told him that it was "illegal" for him to operate the hot dog stand. Id. According
to plaintiff, Seitz also "threatened legal action." Id.
On July 29, 1996, Avraham met with Vern Conway, Chairman of the Town of Cicero's
Zoning Board of Appeals. Compl. at 8-9, 13. According to plaintiff, Conway informed him
that "as long as the LYCC is against [plaintiff]" he will "not be able to do anything" with his
In August of 1996, the Caster family filed a "motion to show cause" against Avraham
in Supreme Court, Oswego County. Compl. at 42. An Order entered by that Court
"temporarily barred" plaintiff from the Property. Id. Plaintiff asserts that Anthony Rivizzigno,
the Town of Cicero's Attorney, instructed officers with the Town of Cicero Police Department
to enforce this Order. Id. at 43.
On August 2, 1996, Seitz stopped at Avraham's Property "to harass him" about a "car
sales sign" plaintiff had erected on the land. Compl. at 14. After plaintiff explained to Seitz
that businesses located on the Property "had operated as a car and boat sales of fice and
show room for more than forty years," he "never heard from him again on this matter." Id.
On August 10, 1996, Seitz returned to Avraham's Property accompanied by "a man
named Mark," a Town of Cicero Councilman. Compl. at 14. According to plaintiff, both Seitz
and "Mark" attempted to convince him "not to operate a hot dog stand from his property"
because there were "too many" complaints. Id. Seitz and "Mark" explained that Rivizzigno
had asked them to speak to plaintiff because he had been receiving complaints. Id. Later
that day, "two people in a golf cart parked at the parking lot and [ ] talked loudly to each
other" about how they were going to shut plaintiff down. Id. Two weeks later, Seitz told
plaintiff he would be "dragged into court" about the hot dog stand. Id. The same day he
received this information from Seitz, Patrick Mastroiano, the LYCC President, drove past
plaintiff and yelled: "Hey, why don't you go back where you came from, sand nigger." Id.
On August 30, 1996, John P. W ozniczka, Sr. drove past Avraham in a "brown
Cadillac" and yelled: "Hey towel head, go home." Compl. at 14. Plaintiff alleges that a
number of other, unidentified people yelled similar "vulgar and foul" names at him during the
summer of 1996. Id. According to plaintiff, each of these people either "turned into the
LYCC driveway or had just exited the LYCC driveway." Id.
On September 13, 1996, Avraham found a "mutilated dead skunk" in his
mailbox. Compl. at 37. Although plaintiff called the police to investigate, there was "no
evidence of the perpetrator and the matter received no further attention." Id. Later, two
different people drove by in cars headed for the LYCC and held their noses, acting "as
though there was a foul smell." Id. at 37-38.
On May 9, 1997, LYCC President Mastroiano drove past Avraham in a van and
yelled: "We are going to shut you, you fucking sand nigger." Compl. at 14. Five days later,
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John P. Wozniczka4 drove past plaintiff twice before yelling: "Towel head, go back to
Palestine or wherever you came from." Id.
On May 30, 1997, Aloi met with Avraham to advise him that he should sign a lease for
the parking lot or else the Club would "erect a fence." Compl. at 14. Plaintiff
refused. Id. Later, on June 4, LYCC employees began installing a fence that blocked
plaintiff's access to the parking lot. Id. at 30. According to plaintiff, Mastroiano told him to
"Get the Fuck out" and that there were "no Jews allowed, [because] the Italians are
here." Id. at 31. Plaintiff called 911 and requested that the New York State Police be
summoned, but Captain Grant from the Cicero Police Department arrived instead. Id. at
33. Captain Grant "received his orders from Rivizzigno" and "continually" threatened plaintiff
with arrest. Id.
On June 14, 1997, Avraham found a second dead skunk in his mailbox. Compl. at
38. Plaintiff again called the police, who told him that nothing could be done. Id. Six days
later, Mastroiano drove by plaintiff and said: "I told you, you fucking Jew." Id. According to
plaintiff, Mastroiano also "held his nose" and told him to "get the fuck out of here." Id.
On July 26, 1997, Avraham received a letter stating that the Town of Cicero had
"received many complaints" about a trailer parked on his Property. Compl. at 15. According
to plaintiff, he did nothing about this letter and "no further action was taken." Id.
On July 29, 1997, Conway told Avraham that his current business activities on the
Property might be "illegal." Compl. at 29. Plaintiff understood this to mean that Club
members would "use their official positions" within the Town to prevent him from doing
It is unclear whether Avraham is referring to the father or the son in this particular allegation.
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business if he did not "discontinue his Marina development." Id. Plaintiff also claims that
Rivizzigno drove by him on "many occasion[s]" and yelled various ethnic slurs and other
vulgarities. Id. at 35.
On August 16, 1997, Avraham found a third dead skunk in his mailbox. Compl. at
38. Two weeks later, plaintiff also found a printed document in his mailbox that "advised"
him "to go back where [he] came from." Id.
On January 5, 1999, the LYCC sought a variance from the Town of Cicero to permit
the Club to expand its kitchen to "compete with" plaintiff's food service operations. Compl. at
25. Although this request was opposed by residents, the Town of Cicero Zoning Board of
Appeals unanimously granted the variance. Id. According to plaintiff, he had applied for, and
been denied, similar variances over a four-year period. Id.
On June 6, 1999, Avraham filed a written report with the Cicero Police Department
after he was "almost run over" by a car driven by one of the Wozniczkas. Compl. at 20.
Plaintiff claims that the Wozniczka family had constructed a new house directly behind
plaintiff's property in 2001 or 2002 and would attempt to "run over" plaintiff every time they
drove past him. Id. at 34. Plaintiff describes an incident that occurred in the "summer of
2006," when some Club members called him "that sand nigger" after he refused to turn off
the "hole digging machine" he was using near the Club's golf course. Id. at 35. Plaintiff also
describes an incident that occurred "[d]uring 2007," when Wozniczka, Jr. "walked onto"
plaintiff's property and struck his daughter's dog "in the face and eye with a golf club." Id. at
On June 22, 2009, the Town of Cicero enacted an ordinance regulating hot dog
vendors. Compl. at 21. According to plaintiff, he was the only individual selling food from a
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mobile kitchen located on his own Property within the entire Town of Cicero. Id.
In August 2009, Avraham received a letter from Wayne Dean, a Town of Cicero Code
Enforcement Officer, stating that a marina is not an "acceptable use" in a neighborhood
commercial zone such as the one in which plaintiff's Property was situated. Compl. at
47. According to plaintiff, this zoning was changed from "commercial" in 2002 in an attempt
to deny him "the proper use of his land." Id. at 6, 46.
In March of 2010, Avraham requested copies of the "Avi File" from the Town of
Cicero, a file which plaintiff understood to contain "all of the documents that relate to
plaintiff." Compl. at 40-41. According to plaintiff, many of the documents in this file were
"never logged in or recorded." Id. at 40. It appears that Town of Cicero officials never
produced this file for plaintiff. See id. at 41.
On August 25, 2010, Rivizzigno and the Town of Cicero "voted to delete and rewrite"
the Town's "[P]eddler, Solicitor[, and] Food vendor ordinance." Compl. at 21. The following
day, August 26, Dean informed plaintiff that anyone who works for him must "pay a fee and
undergo a Police background check." Id. Later in 2010, Rivizzigno, the Gilberti Firm,
Marzocchi, and the Germain Firm brought charges against plaintiff in Cicero Town Court. Id.
at 47. According to plaintiff, these charges "include false imprisonment and fine for illegally
selling automobiles" and for "failure to obtain" a street vendor permit. Id.
In October of 2011, Avraham received the results of a Freedom of Information Act
request he had made into the complaints against him. Aff. ¶¶ 172-73. Plaintiff says this
request shows there was only one, unsigned complaint against him. Id. ¶ 173. However,
plaintiff also states that Dean, a Town Official, stated "under oath" that most of the
complaints against plaintiff were "verbal." Id. ¶ 174.
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In November of 2011, Avraham was found not guilty of the code violations alleged
against him, "except the charge of sales of [an] automobile" because the presiding Judge
concluded that "sales of automobiles is not allowed in a neighborhood commercial
zone." Aff. ¶ 186. According to plaintiff, this is the first time the Town of Cicero has ever
attempted to shut down an existing auto sales business. Id. ¶ 187.
In May 2012, Avraham began construction on "Lakeshore Estates." Compl. at
45. Although plaintiff has submitted "approved" plans and paid the required fee, he has yet
to receive a building permit from the Town of Cicero. Id. at 45-46. Plaintiff submitted
construction drawings to the Town of Cicero, whose officials told him it would take "about 2
weeks" to obtain the permit. Aff. ¶¶ 253-54.
On June 12, 2012, Avraham received a telephone call from the Town of Cicero Code
Enforcement Office instructing him to "come in and pay for [his] building permit." Aff. ¶ 255.
According to plaintiff, he paid the fee but "still did not get a permit." Id.
In February of 2014, Procopio and Richard B. Hooper, the Director of Code
Enforcement for the Town of Cicero, told Avraham "that all [he has] to do is complete a
simple request for an extension" and he will be granted an extension for his "foundation
permit." Aff. ¶ 270.
On June 20, 2014, Avraham met with Hooper, N. Germain, Robert Smith, and
Procopio, who told him that he would receive an extension within one week. Aff. ¶ 274.
Plaintiff did not receive this extension. Id.
On September 10, 2014, Avraham sent Procopio and Hooper an e-mail inquiring
about the reason he had not received the extension he had been promised on June
20. Aff. ¶ 275. Hooper told plaintiff that his permit had expired, he would not receive an
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extension, and that he must go through the site plan approval process again. Id. ¶ 276.
On September 12, 2014, Avraham wrote to Hooper and Jessica Zambrano, the Town
of Cicero Supervisor, describing the events leading up to the denial of his permit. Aff. ¶ 278.
Plaintiff submitted "recordings" of the June 20 meeting to substantiate his claim that he was
"promised" an extension, but has never heard back from Zambrano. Id. ¶¶ 279-81.
On October 3, 2014, Avraham received a letter from Hooper. Compl. at 45. Although
plaintiff does not describe the contents of this letter, he asserts that it was part of an effort to
prevent him from "developing his real property and to reduce the value of the property to very
little worth." Id.
In December of 2014, Avraham "decided to offer food service" at his
Property. Aff. ¶ 282.
In March of 2015, Avraham met with Procopio at the Town of Cicero Code
Enforcement Office and told him about his intent to offer food service. Aff. ¶ 283. Procopio
told him that he may need a "site plan approval" or a "vendor permit." Id. Plaintiff told
Procopio that these permit requirements were inapplicable to him. Id.
On May 7, 2015, Hooper and Procopio served Avraham with a "stop work order,"
demanding that plaintiff cease work "on the landscape at the center jetty." Aff. ¶ 291.
According to plaintiff, Hooper insisted that he needed a "site plan approval." Id. Plaintiff's
architect, William Walton, told him that the "stop work order" was served on him because
plaintiff had "brought in over 20 tons of stone" in violation of "town ordinance." Id. ¶ 295.
On May 11, 2015, Avraham visited the Town of Cicero Code Enforcement Office to
ask Hooper if he would give plaintiff a "sign permit" for the "Lakeside Grill." Aff. ¶ 297.
According to plaintiff, Hooper said "he would not refuse" to give him a permit. Id. However,
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Hooper later denied the permit because plaintiff had failed to obtain a "Solicitor, Peddler,
Hawker, and Street Vendor Permit." Id. ¶ 298.
In June of 2015, Avraham spoke to Joe Barbaro, a Syracuse business owner, to ask
him why he did not show up for plaintiff's trial against the Caster family. Aff. ¶ 83. According
to plaintiff, Barbaro told him: "I know [the LYCC] guys, they're very powerful." Id.
On June 24, 2015, the Town of Cicero enacted "Local Law 5," which changed the
definition of a "restaurant" to include "all facilities" that are primarily engaged in the sale of
food." Compl. at 45. According to plaintiff, this law has been "arbitrarily enforced" against
him because he is "primarily" engaged "in the business of operating a marina." Id.
During the summer of 2015, Procopio, Hooper, Zambrano, Conway, Marzocchi, and
the Germain Firm filed "false" complaints with the Onondaga County Health Department in
an attempt to have plaintiff's health permit revoked. Compl. at 50. According to plaintiff,
these complaints were based on plaintiff's failure to obtain a vendor permit from the Town of
Avraham further asserts that all of these individuals contacted his "milling materials
supplier" to threaten that company with the loss of a municipal road project it had won if the
supplier continued to provide plaintiff with certain materials. Compl. at 50.
Avraham also asserts that all of these individuals filed a complaint in New York State
Supreme Court seeking to dismantle certain "platforms" plaintiff had built on the
Property. Compl. at 51. Finally, plaintiff claims that these individuals caused the New York
State Liquor Authority to revoke his liquor license. Id.
On July 18, 2015, Avraham was "served with documents containing a complaint sworn
to by [Hooper]." Aff. ¶ 301. Plaintiff was later served with a "Notice of Appearance" for "town
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court." Id. ¶ 302. Plaintiff insists he is no longer affiliated with Lakeshore Estates LLC "and
therefore cannot appear as defendant" in that case. Id. ¶ 303. Plaintiff explains that this
document "alleged 8 code enforcement violations." Id. ¶ 314.
In October 2015, Gary Repko, a retired Town of Cicero Code Enforcement Officer,
told Avraham: "they (the town) just don't like you." Aff. ¶ 125.
On January 28, 2016, Avraham "interviewed" Alan Drohan, a law clerk to the Judge
presiding over the Caster family litigation, who told plaintiff that he "prided himself" on never
letting a Court Order "sit for more than 60 days." Aff. ¶ 91. According to plaintiff, Drohan
"knows Aloi and Rivizzigno very well" and suggests that Drohan "took no action" on an Order
that was supposed to have been signed in the litigation. Id. ¶¶ 88-92.
On February 24, 2016, Kevin Atkins, a previous tenant of the Property who had
become involved in the Caster family litigation, told Avraham that Aloi had "brought him a
prepared affidavit and told him to sign it." Aff. ¶ 80.
III. LEGAL STANDARDS
A. Subject Matter Jurisdiction5
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it." Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000). " The plaintiff bears the burden of proving
subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). " In determining the existence of subject
matter jurisdiction, a district court may consider evidence outside the pleadings." Saleh v.
Only the State has asserted a 12(b)(1) argument.
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Holder, 84 F. Supp. 3d 135, 137-38 (E.D.N.Y. 2014) (citing Makarova, 201 F.3d at 113).
"Subject matter jurisdiction is a threshold issue and, thus, when a party moves to dismiss
under both Rules 12(b)(1) and 12(b)(6), the motion court must address the 12(b)(1) motion
first." Id. (citations omitted).
B. Failure to State a Claim
"To survive a Rule 12(b)(6) motion to dismiss, the '[f]actual allegations must be
enough to raise a right to relief above the speculative level.'" Ginsburg v. City of Ithaca, 839
F. Supp. 2d 537, 540 (N.D.N.Y. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). "Although a complaint need only contain 'a short and plain statement of the claim
showing that the pleader is entitled to relief' (FED. R. CIV. P. 8(A)(2)), more than mere
conclusions are required." Id. "Indeed, '[w]hile legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.'" Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009)). "Dismissal is appropriate only where plaintiff has failed to provide
some basis for the allegations that support the elements of his claims." Id.; see also
Twombly, 550 U.S. at 570 (requiring "only enough facts to state a claim to relief that is
plausible on its face").
"When ruling on a motion to dismiss, the court must accept as true all of the factual
allegations contained in the complaint and draw all reasonable inferences in the
non-movant's favor." Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 344 (N.D.N.Y. 2014)
(Baxter, M.J.). In making this determination, a court generally confines itself to the "facts
stated on the face of the complaint, . . . documents appended to the complaint or
incorporated in the complaint by reference, and . . . matters of which judicial notice may be
taken." Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs.,
- 18 -
L.P. v. Entm't Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).
However, in some cases, "a document not expressly incorporated by reference in the
complaint is nevertheless 'integral' to the complaint and, accordingly, a fair object of
consideration on a motion to dismiss." Goel, 820 F.3d at 559. A document is only "integral"
to the complaint "where it relies heavily upon its terms and effect." Id. (quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
In other words, mere notice or possession of the document is not enough; rather, the
plaintiff must have relied on the terms and effect of the document in drafting the
complaint. See Goel, 820 F.3d at 559; see also Nicosia v . Amazon.com, Inc., –F.3d–, 2016
WL 4473225, at *5 (2d Cir. Aug. 25, 2016) (observing that this exception is typically invoked
where the unincorporated material is a "contract or other legal document containing
obligations upon which the plaintiff's complaint stands or falls, but which for some
reason—usually because the document, read in its entirety, would undermine the legitimacy
of the plaintiff's claim—was not attached to the complaint").6
C. Leave to Amend
"Generally, leave to amend should be freely given, and a pro se litigant in particular
should be afforded every reasonable opportunity to demonstrate that he has a valid
claim." Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (citations and internal q uotation marks
omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962) ("In the absence of any
apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of
Even then, consideration of such material is only proper if it is clear on the record that no dispute
exists regarding the authenticity or accuracy of the document and that there are no material disputed issues
of fact regarding the material's relevance. Nicosia, 2016 WL 4473225, at *5.
- 19 -
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.—the leave sought should, as the rules require, be 'freely given.'").
Importantly, however, "it is well established that leave to amend a complaint need not
be granted where amendment would be futile." Ellis v. Chao, 336 F.3d 114, 127 (2d Cir.
2003). "A proposed amended is futile where it 'fails to state a claim' or 'where the claim or
defense proposed to be added has no colorable m erit." Corbett v. Napolitano, 897 F. Supp.
2d 96, 119 (E.D.N.Y. 2012) (quoting Ho Myung Moolsan Co. v. Manitou Mineral Water, Inc.,
665 F. Supp. 2d 239, 250 (S.D.N.Y. 2009)). Accordingly, "[a]n 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).
D. Pro Se Pleadings
The basic pleading requirements set forth above apply to pro se plaintiffs as well as
plaintiffs represented by counsel, but "a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers." Ahlers v.
Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012) (internal quotation marks omitted) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). In other words, "[w]here, as here, the complaint
was filed pro se, it must be construed liberally with 'special solicitude' and interpreted to raise
the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)
(quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).
However, "all normal rules of pleading are not absolutely suspended" when a plaintiff
is proceeding pro se. Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 214 (N.D.N.Y.
2008) (McAvoy, J.) (internal quotation marks and footnote omitted). Even a pro se plaintiff
- 20 -
must plead sufficient factual allegations to suggest an entitlement to relief. See id. Simply
put, Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Iqbal, 556 U.S. at 678 (citations omitted).
In contrast to the twenty-one causes of action set forth in his original filing, Avraham's
first proposed amended pleading identifies just five bases for recovery: (1) the Racketeer
Influenced and Corrupt Organizations Act ("RICO"); (2) the Equal Protection Clause of the
Fourteenth Amendment; (3) the Due Process Clause of the Fourteenth Amendment;
(4) interference with plaintiff's right to contract; and (5) hate crimes in violation of New York
The factual allegations contained in both of Avraham's proposed amended pleadings
are substantially similar to the allegations set forth in his original complaint—these filings
chronicle in greater or lesser detail the basis for plaintiff's assertion that LYCC members and
officials with the Town of Cicero have been unlawfully meddling in his business affairs for
decades. However, as noted above, plaintiff has slightly shifted his theories of recovery,
raising certain new claims for relief as well as enhancing the allegations of his proposed
pleadings with an affirmation he submitted in opposition to defendants' various arguments.
Where, as here, "a plaintiff seeks to amend his complaint while a motion to dismiss is
pending, a court 'has a variety of ways in which it may deal with the pending motion to
dismiss, from denying the motion as moot to considering the merits of the motion in light of
the amended complaint." Hamzik v. Officer for People with Dev. Disabilities, 859 F. Supp. 2d
Plaintiff's second proposed amended complaint contains several state law claims. Those claims
will be addressed in the Conclusion.
- 21 -
265, 273-74 (N.D.N.Y. 2012) (quoting Roller Bearing Co. of Am., Inc. v. Am. Software, Inc.,
570 F. Supp. 2d 376, 384 (D. Conn. 2008)).
The moving defendants have each had an opportunity to respond to the claims raised
in Avraham's first proposed amended pleading and, with the exception of the State, each set
of defendants has taken advantage of this opportunity by submitting briefing in opposition to
plaintiff's motion to amend in addition to fully briefing their respective dismissal
motions. Plaintiff, in turn, initially responded to all of these filings by submitting the sixty-five
page affirmation mentioned above. In fact, although plaintiff has since submitted a second
proposed amended pleading, the allegations of that document are substantially similar to the
detailed facts already set forth in his affirmation. Accordingly, because all of the relevant
stakeholders have had ample opportunity to respond to the substance of each other's filings,
the merits of the pending motions to dismiss will be considered in light of the allegations in
both of plaintiff's proposed amended complaints as modified by his supporting
affirmation. See, e.g., Boguslavsky v. Kaplan, 159 F.3d 715, 719 (2d Cir. 1998) (" [C]ourts
may look to submissions beyond the complaint to determine what claims are presented by an
Avraham's proposed amended complaint indicates that his civil RICO claims are
based on mail and/or wire fraud. See Compl. at 46 (asserting that "[t]he [d]efendants have
engaged in the pattern of harassment" through "use of the U.S. Mail . . . [and by] e-mailing
fraudulent messages and documents through the internet" in an attempt to acquire plaintiff's
"RICO was enacted to prevent organized crime from infiltrating America's legitimate
- 22 -
business organizations." Elsevier Inc. v. Memon, 97 F. Supp. 3d 21, 29 (E.D.N.Y. 2015)
(citation and internal quotation marks omitted). RICO contains a criminal provision, 18
U.S.C. § 1962, and a civil provision, 18 U.S.C. § 1964. As relevant here, RICO's civil
provision permits recovery for any person who is "injured in his business or property by
reasons of a violation of" RICO's criminal provision. 18 U.S.C. § 1964(c).
To establish a civil RICO claim, "a plaintiff must show: '(1) a violation of the RICO
statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was
caused by the violation of Section 1962.'" Elsevier Inc., 97 F. Supp. 3d at 30 (quoting
DeFalco v. Bernas, 244 F.3d 286, 305 (2d Cir. 2001)).
Importantly, a RICO plaintiff must satisfy two, distinct pleading burdens. First, a
plaintiff "must allege that the defendant has violated the substantive RICO statute, 18
U.S.C. § 1962, commonly known as criminal RICO." Elsevier Inc., 97 F. Supp. 3d at 30
(quoting Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983)).
To satisfy the first burden, the plaintiff must allege the following "seven constituent
elements: (1) that the defendant (2) through the commission of two or more acts
(3) constituting a 'pattern' (4) of 'racketeering activity' (5) directly or indirectly invests in, or
maintains an interest in, or participates in (6) an 'enterprise' (7) the activ ities of which affect
interstate or foreign commerce." Elsevier Inc., 97 F. Supp. 3d at 30.
"To satisfy the second burden, a plaintiff 'must allege that he was 'injured in his
business or property by reason of a violation of section 1962.'" Elsevier Inc., 97 F. Supp. 3d
at 30. Notably, "[a] plaintiff must adequately allege the[ ] seven [constituent] elements
'before turning to the second burden—i.e., invoking RICO's civil remedies.'" Id.
"Civil RICO claims are subject to a four-year statute of limitations." Nat'l Grp. for
- 23 -
Comm'cns & Computs. Ltd. v. Lucent Techs. Inc., 420 F. Supp. 2d 253, 264 (S.D.N.Y.
2006). "The statute of limitations begins to run 'when the plaintiff discovers or should have
discovered the RICO injury.'" Id. (quoting Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d
23, 35 (2d Cir. 2002).
"Although RICO cases often involve 'pattern[s] of predicate acts that [are] complex,
concealed or fraudulent,' the Supreme Court has clearly held that it is plaintiff's discovery of
the injury, not discovery of the underlying pattern of predicate acts, which triggers the statute
of limitations." Lucent Techs. Inc., 420 F. Supp. 2d at 264 (quoting Rotella v. Wood, 528
U.S. 549, 555-57 (2000). Further, pursuant to the " separate accrual rule," a RICO plaintiff
"who is continuously injured by an underlying RICO violation may only recover for injuries
discovered or discoverable within four years of the time suit is brought." Id.
With these standards in mind, any recovery for the vast majority of conduct Avraham
describes in his proposed pleadings, as well as in his affirmation, is time-barred by the
four-year statute of limitations applicable to civil RICO claims.8 However, because plaintiff
filed this action on October 30, 2015, any allegations beginning in October of 2011 require
For example, Avraham indicates that he received a letter from Hooper on October 3,
2014, presumably connected to his failed attempts to receive certain permits from the Town
of Cicero. Second, plaintiff alleges that the Town of Cicero enacted "Local Law 5" on June
24, 2015, which changed the definition of a "restaurant" and resulted in adverse
"A motion to dismiss is often not the appropriate stage to raise affirmative defenses like the statute
of limitations." Ortiz v. City of New York, 755 F. Supp. 2d 399, 401 (E.D.N.Y. 2010). However, "as long as
the affirmative defense is based on the facts allege dint he complaint, it may be raised on a motion to
dismiss." Id. Accordingly, a 12(b)(6) dismissal for untimeliness is warranted where the "complaint shows
clearly that a claim is not timely." Id. (citation omitted).
- 24 -
consequences for him. Third, plaintiff asserts that "during the summer of 2015," defendants
Procopio, Hooper, Zambrano, Conway, Marzocchi, and the Germain Firm filed complaints
with the Onondaga County Health Department in an attempt to have plaintiff's health permit
revoked, threatened his "milling materials supplier" with the loss of certain Town business,
used the New York State court system to attempt to dismantle certain "platforms" plaintiff had
built, and caused the New York State Liquor Authority to revoke his liquor license. Fourth,
plaintiff asserts he was served by Hooper with a "Notice of Appearance" for "town court" that
"alleged 8 code enforcement violations."
With respect to Avraham's allegations concerning notices of code violations, service of
legal process, or formal complaints sent to municipal or state agencies, a defendant's "use of
mail and wire to conduct allegedly fraudulent 'litigation activities' is insufficient to establish
predicate acts of racketeering." Snyder v. U.S. Equities Corp., 2014 WL 317189, at *7
(W.D.N.Y. Jan. 28, 2014) (collecting cases).
Further, Rule 9(b) requires allegations sounding in fraud, such as those surrounding
the acts on which Avraham's proposed RICO claims are based, to be "state[d] with
particularity." FED. R. CIV. P. 9(b). To comply with this particularity requirement, "the
complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2)
identify the speaker, (3) state where and when the statements were made, and (4) explain
why the statements were fraudulent." Elsevier Inc., 97 F. Supp. 3d at 30 (citation omitted).
After careful review of all of Avraham's submissions, none of the timely allegations,
whether considered individually or in the aggregate, are sufficient to meet the relatively
demanding threshold pleading requirements for a civil RICO claim set forth above. Cf. Toms
v. Pizzo, 4 F. Supp. 2d 178, 183 (rejecting pro se plaintiff's attempt to "satisfy the RICO
- 25 -
pleading requirements simply by reiterating a laundry list of predicate acts found in the
statute or case law"), aff'd 172 F.3d 38 (2d Cir. 1998) (summary order). Accordingly,
plaintiff's RICO claims must be dismissed.
B. New York Penal Law
Avraham's proposed amended complaint also alleges defendants have "engaged in
hate crimes" in violation of New York Penal Law. Compl. at 52-53. However, a "plaintiff has
no private right of action to enforce state criminal statutes and lacks the authority to institute
a criminal investigation." Sulehria v. New York, 2012 WL 1288760, at *11 (N.D.N.Y. Feb. 8,
2012) (Baxter, M.J.) (Report & Recommendation) (collecting cases), adopted by 2012 WL
1284380 (N.D.N.Y. Apr. 16, 2012) (Kahn, J.). Accordingly, plaintiff's claims based on New
York Penal Law must be dismissed.
C. 42 U.S.C. § 1981
Avraham also alleges that defendants unlawfully interfered with his right to contract
when Hooper and others directed plaintiff's "milling supplier" to stop dumping millings on
plaintiff's Property. Compl. at 49-51. According to plaintiff, the Club "was receiving the same
millings and having them dumped into its parking lot" and that this differential treatment was
therefore "done because [p]laintiff is a Jew, color, national origin, hatefully motivated." Id.
Plaintiff suggests this occurred "during the summer of 2015." Id.
Section 1981 provides that "[a]ll persons within the jurisdiction of the United States
shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white
citizens." 42 U.S.C. § 1981(a). "To make and enforce contracts" includes the "making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship." CBOCS West, Inc. v.
- 26 -
Humphries, 553 U.S. 442, 450 (2008).
"To state a claim under § 1981, a plaintiff must allege: '(1) [that he] is a member of a
racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the
discrimination concerned one or more of the activities enumerated in the statute." Andrews
v. Fremantlemedia, N.A., Inc., 613 F. App'x 67, 69 (2d Cir. 2015) (summary order) (quoting
Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)).
"The statute of limitations for claims brought pursuant to 42 U.S.C. § 1981 is [ ] three
years unless the claims arise out of a post-1990 Act of Congress such as the 1991
Amendments to § 1981 (pertaining to discrimination in contractual relationships), in which
case the statute of limitations is four years." Morales v. Cnty. of Suffolk, 952 F. Supp. 2d
433, 436 (E.D.N.Y. 2013).
"In order to survive a motion to dismiss, a plaintiff must specifically allege the
'circumstances giving rise to a plausible inference of racially discriminatory intent." Morales,
952 F. Supp. 2d at 436 (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir.
1994). Importantly, "liability under § 1981 for interference with a third-party contract attaches
only to persons who actually had the power or authority to prevent the plaintiffs from
contracting with the third party." Ginx, Inc. v. Soho Alliance, 720 F. Supp. 2d 342, 358
Avraham alleges that Hooper told plaintiff's "milling materials supplier" to "stop
delivering millings." Compl. at 50. Plaintiff also alleges that the municipal defendants—six in
total—threatened plaintiff's materials supplier with "losing the municipal road project" if he did
not discontinue deliveries. Id. But beyond the conclusory allegation that this was done
because [p]laintiff is a Jew, color, national origin, hatefully motivated," there is nothing to
- 27 -
connect this adverse action to plaintiff's ethnicity. See, e.g., Dickerson v. State Farm Fire &
Cas. Co., 1996 WL 334076, at *3 (S.D.N.Y. Aug. 1, 1996) ("It is not enough merely to assert
that the defendant took adverse action against the plaintiff, and that the action was the
product of racial animus. The complaint must allege specific facts supporting both the
existence of the racial animus and the interference of a link between the adverse treatment
and the racial animus.").
Hooper and the other municipal defendants who might actually have been empowered
to interfere with Avraham's milling supplier are not the defendants responsible for the racial
and ethnic slurs that were directed toward plaintiff in the late 1990s or early 2000s. These
instances of racial or ethnic animus, which occurred over a period of almost twenty years and
are attributed to various identified and unidentified Club members, are not sufficiently
connected to these municipal defendants to give rise to a plausible inference of
animus. Accordingly, plaintiff's § 1981 claims will be dismissed.
D. 42 U.S.C. § 1983
Avraham also alleges claims brought pursuant to 42 U.S.C. § 1983 based on the
Equal Protection and Due Process clauses of the Fourteenth Amendment.
"The purpose of § 1983 is to deter state actors from using the badge of their authority
to deprive individuals of their federally guaranteed rights and to provide relief to victims if
such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). However, "[s]ection 1983
itself creates no substantive rights; it provides only a procedure for redress for the deprivation
of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir.
1993). Accordingly, to prevail on a § 1983 claim, a plaintiff must show (1) the deprivation of
a right, privilege, or immunity secured by the Constitution and its laws by (2) a person acting
- 28 -
under the color of state law. See 42 U.S.C. § 1983.
"In § 1983 actions, the applicable limitations period is the 'general or residual state
statute of limitations.'" Fierro v. N.Y.C. Dep't of Educ., 994 F. Supp. 2d 581, 85-86 (S.D.N.Y.
2014) (quoting Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002)). "For a § 1983
claim arising in New York, the statute of limitations is three years." Id. (citations omitted).
"Federal law, however, determines when a § 1983 cause of action accrues." Id. (citation
omitted). "[A]ccrual occurs 'when the plaintiff knows or has reason to know of the injury
which is the basis of his action.'" Id. (quoting Pearl, 296 F.3d at 80).
1. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State
shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S.
Const. amend. XIV, § 1. "The Equal Protection Clause requires that the government treat all
similarly situated people alike." Gentile v. Nulty, 769 F. Supp. 2d 573, 577-78 (S.D.N.Y.
An Equal Protection claim may be brought by a "class of one" in cases "where the
plaintiff alleges that [he] has been intentionally treated differently from others similarly
situated and that there is no rational basis f or the difference in treatment." Id. at 578 (quoting
Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010)). Alternatively, a
plaintiff may prevail on a theory of "selective enforcement" by showing "(1) that he was
treated differently from others similarly situated, 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 a person." Id.
(citation and internal quotation marks omitted).
- 29 -
The statute of limitations applicable to Avraham's § 1983 claims operates to bar
consideration of any unlawful events that might have occurred before October of 2012. The
remaining timely allegations are primarily based on the allegedly unfair denial of a requested
building permit as well as the Town of Cicero's enactment of "Local Law 5" on June 24,
2015. According to plaintiff, this local law has been "arbitrarily enforced" against him and is
part of a larger effort to prevent him from "developing his real property and to reduce the
value of the property to very little worth."
These assertions are insufficient to state a plausible equal protection claim under
either a class-of-one or selective enforcement theory. "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 som e other regulatory or
investigative function of local governments—being transformed into federal lawsuits" through
an overly expansive reading of the equal protection clause. Crippen v. Town of Hempstead,
2013 WL 1283402, at *7 (E.D.N.Y. Mar. 29, 2013).
Although Avraham asserts that Hooper and other Town officials falsely promised
plaintiff that he would be granted a building permit if he applied for it, he has failed to
demonstrate how such falsehoods violated his constitutional rights. With respect to Local
Law 5, plaintiff has done little more than assert that it has been applied to him unfairly.
Absent additional details, this sort of conclusory assertion runs afoul of basic pleading
requirements and fails to state a plausible equal protection claim. See, e.g., MacPherson v.
Town of Southampton, 738 F. Supp. 2d 353, 371 (E.D.N.Y. 2010) (dismissing equal
protection claim, whether pleaded as "selective enforcement" or "class-of-one" claim,
because complaint failed to "identify any comparators or similarly situated entities").
- 30 -
Avraham further asserts that "during the summer of 2015," defendants Procopio,
Hooper, Zambrano, Conway, Marzocchi, and the Germain Firm filed complaints with the
Onondaga County Health Department in an attempt to have plaintiff's health permit revoked,
threatened his "milling materials supplier" with the loss of certain Town business, used the
New York State court system to attempt to dismantle certain "platforms" plaintiff had built,
and caused the New York State Liquor Authority to revoke his liquor license.
Even accounting for Avraham's pro se status, these assertions also fail to satisfy
threshold pleading requirements. Among other things, plaintiff has failed to identify which
conduct is attributable to one or more of the six different defendants named in this portion of
his proposed pleading or how one or more of these defendants have singled plaintiff out for
this treatment without a rational basis on which to do so. Accordingly, plaintiff's equal
protection claims will be dismissed.
2. Due Process
The Due Process Clause of the Fourteenth Amendment to the Constitution provides
that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of
law." U.S. Const. amend. XIV, § 1. "Due process has both a procedural and substantive
component." Berrios v. State Univ. of N.Y. at Stony Brook, 518 F. Supp. 2d 409, 418
(E.D.N.Y. 2007). "Procedural due process requirements are generally satisfied by
appropriate notice and an opportunity to be heard." Id. "Substantive due process, on the
other hand, refers not to particular hearing procedures, but circumscribes an 'outer limit' on
permissible governmental action." Id.
A procedural due process claim generally requires a plaintiff to satisfy three
elements: "first, identify a property right, second show that the government has deprived him
- 31 -
of that right, and third show that the deprivation was effected without due process." Ahmed
v. Town of Oyster Bay, 7 F. Supp. 3d 245, 254 (E.D.N.Y. 2014) (emphasis in original).
Like his § 1983 equal protection claims, Avraham's assertions detailing conduct that
occurred before October 2012 are time-barred by the applicable statute of limitations. See
generally Compl. at 39-46. The timely allegations that remain fail to include information
about certain necessary predicates to a due process claim. For example, the proposed
pleadings fail to explain the particular building permits he sought, the reasons why plaintiff
was entitled to receive those particular permits, or how the Town of Cicero officials deprived
him of the appropriate process associated with those permit requests. See Kabrovski v. City
of Rochester, N.Y., 149 F. Supp. 3d 413, 421 (W .D.N.Y. 2015) (noting that a procedural or
substantive due process claim lies only where a plaintiff has a protected property interest in
receiving the permit; i.e., if "the issuing authority lacks discretion to deny the permit . . . or if
the discretion of the issuing agency was so narrowly circumscribed that approval of a proper
application was virtually assured").
If anything, a review of the proposed pleadings indicate that the Town of Cicero's
Code Enforcement Office employees and other Town officials regularly engaged with
Avraham, recorded his various requests, and permitted him to participate in some kind of an
application process that ultimately resulted in various denials. Without more, "[t]he fact that
the permit could have been denied on non-arbitrary grounds defeats the federal due process
claim." RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 918 (2d Cir.
1989). Accordingly, plaintiff's due process claims must be dismissed.
Although Avraham repeatedly invokes RICO to claim the existence of a conspiracy, it
- 32 -
also bears noting that both § 1983 and § 1985 perm it recovery where defendants have
conspired to violate a plaintiff's constitutional rights.
To state a § 1985 conspiracy claim, "a plaintiff mus[t] allege: (1) some class-based
discriminatory animus underlying the defendant's actions; and (2) that the conspiracy was
aimed at interfering with plaintiff's protected rights." Trombley v. O'Neill, 929 F. Supp. 2d 81,
96 (N.D.N.Y. 2013) (Suddaby, J.). To state a § 1983 conspiracy claim, a plaintiff must
allege: "(1) an agreement between two or more state actors or between a state actor and a
private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act
done in furtherance of that goal causing damages." Id. at 97 (citations and internal quotation
Importantly, however, "[a] violated constitutional right is a natural prerequisite to a
claim of conspiracy to violate such right. Thus, if a plaintiff cannot sufficiently allege a
violation of his rights, it follows that he cannot sustain a claim of conspiracy to violate those
rights." Trombley, 929 F. Supp. 2d at 97 (citation omitted). Further, "[v]ague and conclusory
allegations that defendants entered into an unlawful agreement will not suffice to state a
conspiracy claim under either § 1983 or § 1985(3)." Id. Instead, "a plaintiff must provide
some factual basis supporting a meeting of the minds, such that defendants entered into an
agreement, express or tacit, to achieve the unlawful end." Id. (citation omitted).
As discussed above, Avraham has failed to establish any plausible claims for the
denial of a constitutional right. Further, his permit-related claims focus on allegedly improper
conduct by Town of Cicero officials and are not sufficiently connected to any alleged
agreement to act in concert with LYCC members. Trombly, 929 F. Supp. 2d at 106
("[O]fficers, agents, and employees of a single municipal entity, each acting within the scope
- 33 -
of his or her employment, are legally incapable of conspiring with each other."). Accordingly,
any claim based on a conspiracy to violate plaintiff's constitutional rights must also be
E. Final Matters
As noted above, the State has not filed any supplemental opposition to Avraham's
motion to amend, presumably relying on its prior filing seeking Rule 12(b)(1) dismissal on the
basis of the Eleventh Amendment immunity. A review of the proposed amended complaints
and plaintiff's affirmation reveal that his allegations focus on actions by Club members and
officials with the Town of Cicero. These pleadings do not describe how the State itself was
even involved in the alleged conduct, let alone how it might be liable for it. Accordingly, the
State's motion to dismiss will be granted.
In a similar vein, the Hancock Firm Defendants correctly note that Avraham's
amended pleadings largely omit any substantive allegations against them outside of a
passing reference to a consultation. See Abreu v. Travers, 2016 WL 6127510, at *16
(N.D.N.Y. Oct. 20, 2016) (D'Agostino, J.) ("Dismissal is appropriate where a defendant is
listed in the caption, but the body of the complaint fails to indicate what the defendant did to
the plaintiff."). Accordingly, the Hancock Firm Defendants' motion to dismiss will also be
Likewise, although the Surveying Firm Defendants did not oppose Avraham's first
motion to amend, it bears noting that the proposed pleadings are bereft of any substantive
allegations concerning them. "When a complaint names defendants in the caption but
makes no substantive allegations against them in the body of the pleading, the complaint
does not state a claim against these defendants." Ho Myung Moolsan Co., Ltd. v. Manitou
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Mineral Water, Inc., 665 F. Supp. 2d 239, 251 (S.D.N.Y. 2009). Accordingly, the Surveying
Firm Defendants will also be dismissed from this action. Cohen v. Local 338RWDSU/UFCW, 2010 WL 3199695, at *11 (S.D.N.Y. Aug. 12, 2010) (dismissing claims
against certain defendants sua sponte where the amended pleading "contain[ed] no factual
allegations" against those defendants and lacked any suggestion that they "engaged in any
conduct that would entitle plaintiff to relief").
Finally, although district courts in this Circuit are generally reluctant to dismiss a pro se
plaintiff's action without permitting leave to replead, the Second Circuit has explained that it is
nevertheless appropriate to do so in cases "[w]here it appears that granting leave to amend
is unlikely to be productive." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993). In this case, Avraham has already had four opportunities to plead a plausible claim
based on the underlying factual narrative set forth in his filings—first, in his initial complaint;
later, in his proposed amended pleading, itself submitted in an effort to cure deficiencies
identified by defendants in their initial series of dismissal arguments; more recently, in the
sixty-five page affirmation that was accepted in reply to defendants' renewed dismissal
arguments; and finally, in his recently filed second proposed amended complaint. Because
none of these filings suffice to state a claim, permitting another opportunity to amend at this
point is "unlikely to be productive." Accordingly, leave to replead will not be granted.
Without being unsympathetic to Avraham's ongoing frustration, neither the allegations
in his proposed amended complaint nor the substantially similar allegations set forth in his
proposed second amended complaint, even amplified by the additional factual details set
forth in his affirmation, are sufficient to state viable federal claims. Because a federal court is
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a court of limited jurisdiction and typically only presides over a certain limited class of cases,
it bears noting that the remedy for defendants' allegedly wrongful conduct in connection with
plaintiff's more recent requests for certain permits likely lies in state court. See, e.g.,
Christian v. Town of Riga, 649 F. Supp. 2d 84, 96 (W .D.N.Y. 2009) (noting that "New York
State law provides mechanisms for relief from a denial of or delay in issuing a building
permit" and citing New York's Civil Practice Law and Rules Article 78). Finally, to the extent
that plaintiff's newly proposed pleading might be construed to assert claims based on state
law, supplemental jurisdiction over those claims is declined. See 28 U.S.C. § 1367(c)(3).
Therefore, it is
1. Avraham's first motion to amend his complaint (ECF No. 49) is DENIED as futile;
2. Avraham's second motion to amend his complaint (ECF Nos. 62, 64) is DENIED as
3. Avraham's motion for a default judgment as to LYCC (ECF No. 38) is DENIED as
4. Permission to file a further motion to amend the complaint is NOT GRANTED;
5. New York State's motion to dismiss (ECF No. 25) is GRANTED;
6. The Gilberti Firm's motion to dismiss (ECF No. 27) is GRANTED;
7. The Town Defendants' motion to dismiss (ECF No. 29) is GRANTED;
8. The Hancock Firm Defendants' motion to dismiss (ECF No. 30) is GRANTED;
9. The Germain Firm's motion to dismiss (ECF No. 37) is GRANTED;
10. The Club's motion to dismiss (ECF No. 46) is GRANTED;
11. Avraham's claims based on federal law are DISMISSED with prejudice as to all
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12. Jurisdiction over Avraham's state law claims is DECLINED and those claims are
DISMISSED without prejudice.
The Clerk of the Court is directed to enter a judgment accordingly and close the file.
IT IS SO ORDERED.
Dated: November 7, 2016
Utica, New York.
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