Zavalidroga v. Girouard et al

Filing 9

ORDER adopting the 4 Report and Recommendations in its entirety, except for the recommendation that the false arrest and malicious prosecution claims against Defendant Ryan Marshall be dismissed with prejudice. ORDERED that, to the extent the Com plaint (Dkt. No. 1 ) relates to MZ, that no guardian be appointed, and the Complaint be DISMISSED in its entirety without prejudice and that, as it relates to TZ, the Complaint (Dkt. No. 1 ) is DISMISSED WITH PREJUDICE in its entirety as against al l Defendants, except for TZ's claims against Defendant Ryan Marshall regarding the alleged February 9, 2016 false arrest and malicious prosecution, which are DISMISSED WITHOUT PREJUDICE. Signed by Judge Brenda K. Sannes on 10/24/17. (Copy served on plaintiff via regular and certified mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TOMAS ZAVALIDROGA, individually and as Power
of Attorney of Margaret Zavalidroga,
6:17-cv-682 (BKS/ATB)
Plaintiffs,
v.
THERESA GIROUARD, et al.,
Defendants.
APPEARANCES:
Tomas Zavalidroga
Old Forge, NY
Plaintiff, pro se
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
On June 20, 2017, pro se Plaintiff Tomas Zavalidroga (“TZ”) commenced this civil rights
action under 42 U.S.C. § 1983, “individually and as Power of Attorney [for] Margaret
Zavadriloga” (“MZ”), against twenty-one Defendants, including New York Supreme Court
Justice Samuel Hester, Town Justice Paul Tryon, MZ’s court-appointed guardian Theresa
Girouard, the “State-employed Guardianship evaluators” Charles Massoud-Tastor and Stuart
Finer, local government units, local law enforcement officials, and private parties. (Dkt. No. 1).
The Complaint seeks monetary, injunctive, and declaratory relief, and asserts four “causes of
action”: (1) under 42 U.S.C. §§ 1981, 1983, and 1985, for alleged deprivation of his “federal
rights, property interests,” and discrimination; (2) under the First, Fourth, Fifth, Sixth, and
Fourteenth Amendments to the U.S. Constitution, for alleged deprivation of “due process and

significant liberty and property interests”; (3) under state law, for alleged “false arrest and false
imprisonment, trespass and conversion of property”; and finally (4) under the International
Covenant on Civil and Political Rights (the “ICCPR”), for alleged violations of the “international
human rights of the Plaintiff and his privies.” (Dkt. No. 1, at 8-10).
This matter was referred to United States Magistrate Judge Andrew T. Baxter, who
issued an Order and Report-Recommendation on July 7, 2017. Having reviewed the Complaint
pursuant to 28 U.S.C. § 1915(e)(2)—which provides for dismissal of proceedings in forma
pauperis if the action is frivolous, fails to state a claim, or seeks monetary relief from an immune
defendant—Magistrate Judge Baxter recommended dismissal without prejudice of all the claims
brought on behalf of MZ, and dismissal with prejudice of all the claims brought directly by TZ as
against all Defendants. (Dkt. No. 4, at 35-36). TZ filed objections to the ReportRecommendation on July 24, 2017.
This Court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper
objection is one that identifies the specific portions of the [Report and Recommendation] that the
objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl.
Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (quoting DuBois v. Macy’s Retail
Holdings, Inc., 11-cv-4904, 2012 WL 4060586, at *1, 2012 U.S. Dist. LEXIS 131678, at *3
(E.D.N.Y. Sept. 13, 2012)). Properly raised objections must be “specific and clearly aimed at
particular findings” in the Report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485,
487 (S.D.N.Y. 2009). Findings and recommendations as to which there was no properly
preserved objection are reviewed for clear error. Id. “To the extent . . . that the party makes only

2

conclusory or general arguments . . . the Court will review the Report strictly for clear error.”
DiPilato v. 7-Eleven, Inc., 662 F Supp. 2d 333, 339 (S.D.N.Y. 2009).
First, TZ objects to dismissal because the “factual background of the action” cannot be
established before “the requisite pre-trial conference” or Defendants’ answer, and because the
Magistrate Judge cannot provide “for the amending of the pro se Complaint.” (Dkt. No. 5, at 1).
Magistrate Judge Baxter did not base his dismissal on factual grounds. Instead, he ruled that, as a
matter of law, TZ could not represent MZ and that TZ’s direct claims should be dismissed for
various reasons—including lack of jurisdiction, failure to state a claim, and absolute immunity.
(See Dkt. No. 4, at 9-35). The Magistrate Judge’s Report-Recommendation contains a thorough
and accurate recitation of the relevant facts alleged in the Complaint. (See Dkt. No. 4, at 1-8).
TZ’s first objection is therefore meritless.
Second, TZ appears to argue that he has alleged new facts and causes of action and is not
precluded from relitigating issues decided in prior proceedings. (Dkt. No. 5, at 1). The ReportRecommendation, however, does not discuss preclusion but the distinct Rooker-Feldman
doctrine. See Dubin v. County of Nassau, No. 16-cv-4209, 2017 WL 4286613, at *5, 2017 U.S.
Dist. LEXIS 159117, at *11 (E.D.N.Y. Sept. 27, 2017) (noting that the Rooker-Feldman
“doctrine was once improperly equated with that of res judicata”). TZ’s second objection thus
provides no basis for rejecting the Report-Recommendation. 1
Having reviewed the rest of the Report-Recommendation for clear error, the Court adopts
the Report-Recommendation in its entirety except for the recommendation that the claims against
Defendant Oneida County Sheriff’s Deputy Ryan Marshall arising out of the allegedly false

1
TZ also argues that it is “impermissible for a corrupt State Court to create its own procedural justifications and
causes of action by negating federally protected contracts.” (Dkt. No. 5, at 1). This is not an objection to any specific
finding or conclusion in the Report-Recommendation. Accordingly, this argument also fails.

3

arrest and malicious prosecution that occurred on or about February 9, 2016 be dismissed with
prejudice. As Magistrate Judge Baxter recognized, the pendency of the state criminal proceeding
against TZ warrants this Court’s abstention under Younger v. Harris, 401 U.S. 37, 43-54 (1971),
but a dismissal under the Younger abstention doctrine is without prejudice to a federal plaintiff’s
resumption of federal litigation after the state criminal proceeding has ended. See, e.g., Novie v.
Village of Montebello, No. 10-cv-9436, 2012 WL 3542222, at *14, 2012 U.S. Dist. LEXIS
115948, at *51 (S.D.N.Y. Aug. 16, 2012) (dismissing a plaintiff’s claims without prejudice under
the Younger abstention doctrine). Therefore, TZ’s complaint is dismissed with prejudice, except
for his false arrest and malicious prosecution claims against Defendant Ryan Marshall, which are
dismissed without prejudice.
For these reasons, it is hereby
ORDERED that the Report-Recommendation (Dkt. No. 4) is ACCEPTED in its
entirety, except for the recommendation that the false arrest and malicious prosecution claims
against Defendant Ryan Marshall be dismissed with prejudice; and it is therefore
ORDERED that, to the extent the Complaint (Dkt. No. 1) relates to MZ, that no guardian
be appointed, and the Complaint be DISMISSED in its entirety without prejudice; and it is
further
ORDERED that, as it relates to TZ, the Complaint (Dkt. No. 1) is DISMISSED WITH
PREJUDICE in its entirety as against all Defendants, except for TZ’s claims against Defendant
Ryan Marshall regarding the alleged February 9, 2016 false arrest and malicious prosecution,
which are DISMISSED WITHOUT PREJUDICE; and it is further

4

ORDERED that the Clerk of Court shall serve a copy of this Memorandum-Decision and
Order on Plaintiff in accordance with the Local Rules along with copies of the unpublished
decisions cited in this decision.
IT IS SO ORDERED.
Dated: October 24, 2017
Syracuse, New York

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Dubin v. County of Nassau, --- F.Supp.3d ---- (2017)
2017 WL 4286613

2017 WL 4286613
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Benjamin DUBIN and Byron Alston, on behalf of
themselves and all others so similarly situated,
Plaintiffs,
v.
The COUNTY OF NASSAU, the Nassau County
Legislature, and the Nassau County Traffic and
Parking Violations Agency, Defendants.
No 16–CV–4209 (JFB) (AKT)
|
Signed September 27, 2017

tickets or citations and received a final disposition other
than “not guilty.”
1

At oral argument on the instant motion, plaintiffs
conceded that the TPVA is a non-suable entity under
New York State law. Accordingly, the Court dismisses
the TPVA from this action.

2

Specifically, plaintiffs allege bill of attainder,
procedural due process, substantive due process, unjust
takings, equal protection, excessive fines, and double
jeopardy violations by defendants.

3

Plaintiffs also consented to dismissal of Count 20 of the
SAC brought pursuant to Article 78 of the New York
Civil Practice Law and Rules, N.Y. C.P.L.R. § 7801 et
seq. The Court, therefore, dismisses that claim.

4

Nassau County Ordinance 190–2012 amended Nassau
County Ordinance 16–2011, which is the provision
cited in the SAC, and it appears to be the operative
ordinance governing the DRF. See Guthart v. Nassau
Cty., 55 Misc.3d 827, 52 N.Y.S.3d 821, 824 (Sup. Ct.
Nassau Cty. 2017).

Attorneys and Law Firms
Plaintiffs are represented by Kevin Page, Kiel Martin
Doran, and Steven M. O’Connor of O’Connor Reed, LLP,
242 King Street Port Chester, New York 10573.
Defendants are represented by Andrew Reginald Scott of
the Nassau County Attorney’s Office, 1 West Street,
Mineola, New York 11501.

MEMORANDUM AND ORDER
Joseph F. Bianco, District Judge:
*1 Plaintiffs Benjamin Dubin (“Dubin”) and Byron
Alston (“Alston,” and with Dubin, “plaintiffs”) bring this
putative class action against defendants the County of
Nassau (the “County”), the Nassau County Legislature
(the “Legislature”), and the Nassau County Traffic and
Parking Violations Agency (the “TPVA”)1 (collectively,
“defendants”) alleging (1) a cause of action for violations
of various federal constitutional rights2 pursuant to 42
U.S.C. § 1983 (“Section 1983”); (2) a claim under the
Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202;
and (3) eighteen claims under New York State law for
myriad constitutional and statutory infractions.3 The
gravamen of plaintiffs’ Second Amended Complaint
(“SAC”) is that defendants have unlawfully enacted and
enforced a local ordinance known as the Drivers’
Responsibility Fee (the “DRF”), Nassau Cty. Ordinance
190–2012.4 The DRF allegedly imposes a mandatory
payment of $45 on all motorists who have been issued

Defendants now move to dismiss the SAC pursuant to
Federal Rule of Civil Procedure 12(b)(6)5 on the
following grounds: (1) the Rooker–Feldman doctrine bars
plaintiffs’ claims; (2) the Court should abstain from
adjudicating the Section 1983 claim due to ongoing New
York State court proceedings; (3) the Court should
decline jurisdiction over plaintiffs’ second cause of action
for a declaratory judgment; (4) all of plaintiffs’ federal
claims under Section 1983 fail to state a cause of action;
and (5) in the absence of a viable federal claim, the Court
should not exercise supplemental jurisdiction over
plaintiffs’ New York State law claims.
5

As discussed infra, defendants argue that there is no
subject matter jurisdiction over this action; accordingly,
the Court will also treat this motion as one to dismiss
pursuant to Rule 12(b)(1).

As an initial matter, the Court concludes that (1) the
Rooker–Feldman does not bar any claims in this case, and
(2) abstention is unwarranted on the federal claims. On
the merits, the Court finds that plaintiffs have not pled a

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plausible cause of action based on their bill of attainder,
procedural due process, substantive due process, unjust
takings, equal protection, and double jeopardy allegations.
However, the Court denies the motion to dismiss the
excessive fines claim under Section 1983 on the ground
raised by defendants—namely, that the DRF cannot be
punitive because it is not imposed following a criminal or
quasi-criminal proceeding and is assessed to defray
administrative costs. Because it was not raised by
defendants, the Court does not reach the second issue with
respect to the excessive fines claim—that is, whether a
$45 fine can be unconstitutionally excessive.
*2 Accordingly, because a federal claim has survived
defendants’ motion, the Court retains supplemental
jurisdiction over plaintiffs’ state law claims and will not
dismiss them at this stage. Thus, for the reasons set forth
below, the Court grants defendants’ motion in part and
denies it in part.

I. BACKGROUND
A. Factual Background
The Court takes the following facts from the SAC. (ECF
No. 23.) The Court assumes these facts to be true for
purposes of deciding this motion and construes them in
the light most favorable to plaintiffs as the non-moving
party.

1. The Parties
Plaintiffs Dubin and Alston are both New York State
residents and were respectively assessed a DRF on
September 4, 2015 and July 7, 2016. (SAC at ¶¶ 7–8.)
The County is a local New York government governed by
the Legislature, which established the TPVA and enacted
ordinances related to the DRF. (Id. at ¶¶ 9–10.)

2. Nature of the Action
This case arises out of “defendants’ unlawful assessment
of [the DRF] against motorists who have had tickets
and/or citations dismissed by the” TPVA court. (Id. at ¶
1.) Plaintiffs allege that the DRF mandates a $45 payment
by all motorists who receive citations or tickets and a
“final disposition other than not guilty,” and although
“characterized as a ‘fee,’ this charge is in fact a
non-discretionary penalty imposed merely for having
been issued a ticket, and the TPVA Court must charge the

penalty even when the tickets against the individuals have
been dismissed ....” (Id. at ¶ 2; see also id. at ¶ 28 (“This
is a legislative penalty, and is not based on an actual
adjudication by any Court after a hearing or other
opportunity to be heard.”).)
The SAC further states that the “TPVA has created a
chilling-effect to [sic] individual citizens who come
before that Court, as the[ ] only way that the[y] can
dispute the penalty is to go to trial, which requires time,
effort, and costs just to dispute the DRF.” (Id. at ¶ 4.) As a
result, “only approximately 1% of individuals who are
issued tickets elect to proceed to trial,” notwithstanding
that “for those individuals whom [sic] make an
appearance before the TPVA Court, over 40% of all
tickets are dismissed.” (Id. at ¶¶ 4, 30.) In sum, plaintiffs
assert that the DRF “has nothing to do with
‘administrative costs’ relating to issuing tickets/citations”
but is rather a punishment imposed “against individuals
for simply being issued a ticket without any findings of
fact, nor proof of any actual violations,” and “irrespective
of whether or not they are actually guilty of any offense
or violation ....” (Id. at ¶¶ 32–34.) Moreover, the SAC
alleges that the DRF’s underlying aim is to generate
revenue for the County to help defray budget deficits. (Id.
at ¶¶ 34–40.)

3. Plaintiffs’ Alleged Injuries
On or about July 31, 2015, Dubin was issued a ticket with
an appearance date of September 11, 2015 for a defective
brake light on his vehicle. (Id. at ¶¶ 16–17, Exh. A.) After
Dubin repaired the brake light and had his vehicle
inspected by a County police officer, the TPVA dismissed
the ticket but nevertheless assessed a DRF.6 (Id. at ¶¶
18–20, Exhs. B–C.)
6

At that time, the DRF required Dubin to pay $30. (Id. at
¶ 19; see also id. at ¶ 2 n.2.)

Alston appeared before the TPVA on or about July 7,
2016 regarding seven outstanding tickets or citations. (Id.
at ¶ 23, Exh. F.) He pled guilty to four offenses, and the
TPVA dismissed the remaining three tickets/citations.
(Id.) The TPVA assessed Alston a DRF for each
dismissed ticket, as well as a “deferred payment fee” of
$15 per ticket, for an approximate total cost of $180. (Id.
at ¶ 24.)
*3 Among other relief, plaintiffs seek, on behalf of
themselves and a class of other similarly situated
individuals, a declaration that the “DRF violates the

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Constitutional protections of the Fifth, Eighth and
Fourteenth Amendments, and as well as [sic] other
[federal] Constitutional Protections”; an injunction
enjoining defendants from imposing the DRF; and
reimbursement of all DRF charges and associated
expenses. (Id. at ¶ 6.)

B. Procedural Background
Dubin commenced this action on July 29, 2016 (ECF No.
3), and plaintiffs filed an amended complaint on October
20, 2016 (ECF No. 12) and the SAC on November 30,
2016 (ECF No. 23). Defendants moved to dismiss the
SAC on January 13, 2017 (ECF No. 25) and provided
supplemental legal authority in support of their motion on
February 3, 2017 (ECF No. 28). Plaintiffs filed their
opposition to the motion and defendants’ supplemental
letter on February 27, 2017 and March 2, 2017,
respectively (ECF Nos. 30–31); and defendants replied on
March 20, 2017 (ECF No. 33).
The Court heard oral argument on March 23, 2017 (ECF
No. 34), and plaintiffs subsequently filed their own letter
providing supplemental legal authority in support of their
opposition on May 27, 2017 (ECF No. 38). The Court has
fully considered all of the parties’ submissions and
arguments.

II. STANDARDS OF REVIEW
Relevant here are Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), which respectively govern motions
to dismiss for lack of subject matter jurisdiction and
motions to dismiss for failure to state a claim. The
following standards of review are applicable to motions
brought under those provisions.

A. Subject Matter Jurisdiction
To defeat a motion to dismiss brought under Rule
12(b)(1), “[t]he 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 resolving this issue,
the court “must accept as true all material factual
allegations in the complaint, but [it is] not to draw
inferences from the complaint favorable to plaintiffs.” J.S.
ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d
Cir. 2004). Additionally, the court “may refer to evidence
outside the pleadings” to resolve the jurisdictional issue.

Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000) (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d
1006, 1011 (2d Cir. 1986)).

B. Failure to State a Claim
In reviewing a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), the Court must accept the
factual allegations set forth in the complaint as true and
draw all reasonable inferences in favor of the plaintiff.
See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d
Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d
96, 100 (2d Cir. 2005). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint must allege a
plausible set of facts sufficient ‘to raise a right to relief
above the speculative level.’ ” Operating Local 649
Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC,
595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)). This standard does not require
“heightened fact pleading of specifics, but only enough
facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
The Supreme Court clarified the appropriate pleading
standard in Ashcroft v. Iqbal, setting forth a two-pronged
approach for courts deciding a motion to dismiss. 556
U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The
Supreme Court instructed district courts to first “identify[
] pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.”
Id. at 679, 129 S.Ct. 1937 (explaining that though “legal
conclusions can provide the framework of a complaint,
they must be supported by factual allegations”). Second,
if a complaint contains “well-pleaded factual allegations,
a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.” Id. A claim has “facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. 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.” Id. at 678, 129 S.Ct. 1937 (quoting and
citing Twombly, 550 U.S. at 556–57, 127 S.Ct. 1955
(internal citation omitted)).
*4 The Court notes that in adjudicating a Rule 12(b)(6)
motion, it is entitled to consider:
(1) facts alleged in the complaint
and documents attached to it or
incorporated in it by reference, (2)
documents ‘integral’ to the

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complaint and relied upon in it,
even if not attached or incorporated
by reference, (3) documents or
information
contained
in
defendant’s motion papers if
plaintiff
has
knowledge
or
possession of the material and
relied on it in framing the
complaint, (4) public disclosure
documents required by law to be,
and that have been, filed with the
Securities
and
Exchange
Commission, and (5) facts of which
judicial notice may properly be
taken under Rule 201 of the Federal
Rules of Evidence.
In re Merrill Lynch & Co., 273 F.Supp.2d 351, 356–57
(S.D.N.Y. 2003) (internal citations omitted), aff’d in part
and reversed in part on other grounds sub nom. Lentell v.
Merrill Lynch & Co., 396 F.3d 161 (2d Cir. 2005), cert.
denied, 546 U.S. 935, 126 S.Ct. 421, 163 L.Ed.2d 321
(2005); see also Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir. 1991) (“[T]he district court ...
could have viewed [the documents] on the motion to
dismiss because there was undisputed notice to plaintiffs
of heir contents and they were integral to plaintiffs’
claim.”).

III. DISCUSSION
Defendants argue that the Court should dismiss the SAC
because (1) the Court lacks jurisdiction under
Rooker–Feldman; (2) the Court should abstain from
considering the Section 1983 claim because it implicates
pending New York State court proceedings; (3) the Court
should decline jurisdiction over plaintiffs’ declaratory
judgment cause of action because it is dependent on
plaintiffs’ state law claims; and (4) plaintiffs’ Section
1983 claim fails to state a cause of action because the
SAC does not plausibly plead a violation of any federal
constitutional right. Further, in the absence of a viable
federal cause of action, defendants contend that the Court
should decline supplemental jurisdiction over plaintiffs’
remaining state law claims.
For the reasons set forth below, the Court concludes that
Rooker–Feldman does not bar adjudication of this matter
and that abstention on the Section 1983 and declaratory
judgment claims is unwarranted. The Court further finds
that plaintiffs’ allegations do not plausibly plead a bill of
attainder, procedural due process, substantive due

process, unjust takings, equal protection, or double
jeopardy violation under Section 1983. However, the
Court denies the motion to dismiss the excessive fines
claim under Section 1983 on the ground raised by
defendants—namely, that the DRF cannot be punitive
because it is not imposed following a criminal or
quasi-criminal proceeding and is assessed to defray
administrative costs. Because it was not raised by
defendants, the Court does not reach the second issue with
respect to the excessive fines claim—that is, whether a
$45 fine can be unconstitutionally excessive. Thus,
because a federal claim survives defendants’ motion, the
Court retains supplemental jurisdiction over the pendant
state law claims and will not dismiss them at this stage.
Accordingly, defendants’ motion is granted in part and
denied in part.

A. Rooker–Feldman
1. Applicable Law
*5 The Rooker–Feldman doctrine arises from two
decisions issued by the United States Supreme Court:
Rooker v. Fidelity Trust Company, 263 U.S. 413, 44 S.Ct.
149, 68 L.Ed. 362 (1923); and District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75
L.Ed.2d 206 (1983). It stands for the proposition that
“lower federal courts possess no power whatever to sit in
direct review of state court decisions.” Atl. Coast Line
R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 296,
90 S.Ct. 1739, 26 L.Ed.2d 234 (1970); accord Hoblock v.
Albany Cnty. Bd. of Elecs., 422 F.3d 77, 84 (2d Cir. 2005)
(“[F]ederal district courts lack jurisdiction over suits that
are, in substance, appeals from state-court judgments.”).
Though this doctrine was once improperly equated with
that of res judicata, see Moccio v. N.Y. State Office of Ct.
Admin., 95 F.3d 195, 199–200 (2d Cir. 1996), the
Supreme Court has clarified that Rooker–Feldman is
jurisdictional in nature, whereas res judicata deals with
preclusion, see Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 293, 125 S.Ct. 1517, 161 L.Ed.2d
454 (2005) ( “Preclusion, of course, is not a jurisdictional
matter.”) (citing Fed. R. Civ. P. 8(c) (listing res judicata
as an affirmative defense)).
In Hoblock, the Second Circuit carefully reviewed the
Rooker–Feldman doctrine in light of the Supreme Court’s
Exxon Mobil decision. See Hoblock, 422 F.3d at 83–92.
Noting that Exxon Mobil had narrowed the scope of the
Rooker–Feldman doctrine, the Second Circuit ruled that
its application “ ‘is confined to cases of the kind from
which the doctrine acquired its name: cases brought by
state-court losers complaining of injuries caused by
state-court judgments rendered before the district court

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proceedings commenced and inviting district court review
and rejection of those judgments.’ ” Id. at 85 (quoting
Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517). Thus, the
Second Circuit set forth four requirements for
Rooker–Feldman to apply: (1) “the federal-court plaintiff
must have lost in state court”; (2) “the plaintiff must
complain of injuries caused by a state court judgment”;
(3) “the plaintiff must invite district court review and
rejection of that judgment”; and (4) “the state-court
judgment must have been rendered before the district
court proceedings commenced.” Id. (footnote omitted).
The Second Circuit has classified the first and fourth
requirements as “procedural” and the second and third
requirements as “substantive.” See id.

2. Analysis
Defendants argue that Rooker–Feldman applies here
because (1) “[p]laintiffs are challenging the fees incurred
by them in appearing before and having their potential
liability adjudicated before TPVA, an arm of the Nassau
County District Court”; (2) plaintiffs’ court-imposed DRF
liability arose prior to commencement of the instant
action; and (3) plaintiffs ask this Court to review and
reject the TPVA’s findings. (Defs.’ Mem. of Law in
Supp. of Mot. to Dismiss Second Am. Compl. (“Defs.’
Br.”), ECF No. 25–4, at 5.) The Court disagrees.
First, plaintiffs are not the quintessential “state court
losers” to whom Rooker–Feldman pertains. Rather than
litigating a state court proceeding and receiving an
unfavorable judgment, plaintiffs allege that the TPVA
dismissed their tickets or citations without a
determination that they were guilty of any infraction. (See
SAC at ¶¶ 2, 19–20, 24, 28.) Termination of a state court
action without an adverse disposition is not a loss for
Rooker–Feldman purposes. See Green v. Mattingly, 585
F.3d 97, 102 (2d Cir. 2009) (“We cannot say that
[dismissal of the plaintiff’s state family court proceeding]
amount[ed] to a state-court loss for purposes of the
Rooker–Feldman doctrine. Although there was no final
adjudication in plaintiff’s favor, there was also no final
‘order of disposition’ removing her child, and plaintiff
secured the reversal of the one form of interlocutory relief
entered against her. The Rooker–Feldman doctrine,
therefore, does not bar plaintiff’s claims, as she did not
‘lose’ in state court.” (citations omitted)); see also V.S. v.
Muhammad, 595 F.3d 426, 430 (2d Cir. 2010) (same);
Bertuglia v. City of New York, 839 F.Supp.2d 703, 718
(S.D.N.Y. 2012) (holding that Rooker–Feldman did not
bar Section 1983 claims stemming from a criminal
prosecution because “the plaintiffs succeeded in having
the state court indictments against them dismissed, and
thus there was no ‘extant and controlling’ judgment with

continuing ‘legal effect’ in their case” (citation omitted)).
*6 Moreover, plaintiffs claim that imposition of the DRF
is a non-discretionary and non-appealable legislative
mandate. (SAC at ¶ 58 (“The individual motorist cannot
dispute the DRF before the TPVA Court whatsoever, the
TPVA judges have no discretion not to impose the DRF,
the motorists are not provided a trial on the DRF itself,
and there is no appeals process for the DRF.” (citing
People v. Stamos, 51 Misc.3d 136(A), 38 N.Y.S.3d 832
(App. Term. 2016) (holding that the imposition of a $30
fee by the TPVA following dismissal of a charge of
operating an unregistered motor vehicle was not
reviewable on appeal because “the $30 fee here was not
made in conjunction with a judgment of conviction or
sentence and does not come before this appellate court
upon an appeal from a judgment of conviction”)).) Under
such
circumstances,
the
“narrow
rule”
of
Rooker–Feldman does not apply. See Green, 585 F.3d at
103 (“Here, however, plaintiff brings a § 1983 action only
after the Family Court proceedings were dismissed
without a final order of disposition. Her action, moreover,
complains only of injuries caused by a state-court order
that was interlocutory, unappealable, and effectively
reversed by a superseding order.”).
Finally, as the Supreme Court recognized in Feldman, its
namesake doctrine does not bar federal adjudication of a
general constitutional challenge to a state law or rule. See
460 U.S. at 482–85, 103 S.Ct. 1303 (distinguishing
“between general challenges to state bar admission rules
and claims that a state court has unlawfully denied a
particular applicant admission” and holding that a federal
district court has jurisdiction over the former claim); see
also Feng Li v. Rabner, 643 Fed.Appx. 57, 59 (2d Cir.
2016) (“As to the court’s Rooker–Feldman ruling, this
doctrine does not apply to Li’s challenge to the
constitutionality of the state court rule.”). In other words,
as the Court emphasized in another case, “[i]f a federal
plaintiff presents an independent claim, it is not an
impediment to the exercise of federal jurisdiction that the
same or a related question was earlier aired between the
parties in state court.” Skinner v. Switzer, 562 U.S. 521,
532, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011) (brackets
and citations omitted). Thus, the Supreme Court found in
Skinner that Rooker–Feldman did not preclude a
constitutional challenge to a Texas statute governing
post-conviction DNA testing, notwithstanding that a state
court had previously found that the petitioner was not
entitled to testing under that law. Id. (finding that
“Skinner does not challenge the adverse [state court]
decisions themselves; instead, he targets as
unconstitutional the Texas statute they authoritatively
construed,” and holding that “a state-court decision is not

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reviewable by lower federal courts, but a statute or rule
governing the decision may be challenged in a federal
action” (citing Feldman, 460 U.S. at 487, 103 S.Ct. 1303;
Exxon, 544 U.S. at 286, 125 S.Ct. 1517)). Likewise,
plaintiffs are not contesting a state court’s interpretation
or application of the DRF;7 instead, they assert that the
County ordinance authorizing the DRF is itself unlawful.
(See, e.g., SAC at ¶ 6.) Thus, this Court has subject matter
jurisdiction over plaintiffs’ claims because they are
independent of any state court judgment against them. See
McCormick v. Braverman, 451 F.3d 382, 392 (6th Cir.
2006) (“None of these claims assert an injury caused by
the state court judgments; Plaintiff does not claim that the
state court judgments themselves are unconstitutional or
in violation of federal law. Instead, Plaintiff asserts
independent claims that ... a state statute is vague and
overbroad.”); Sykes v. Mel Harris & Assocs., LLC, 757
F.Supp.2d 413, 429 (S.D.N.Y. 2010) (Chin, J.) (holding
that Rooker–Feldman did not apply because the plaintiffs
sought, “inter alia, declaratory relief that defendants
violated the law and injunctive relief via notice to putative
class members that is independent of the state-court
judgments”); McCloud v. Mairs, No. 12 CV 2556 SLT
LB, 2014 WL 9880043, at *4 (E.D.N.Y. Oct. 24, 2014)
(“As plaintiff complains only of defendants’ actions, not
those of the state court, the second prong of the
Rooker–Feldman doctrine is not met.” (citing Morrison v.
City of New York, 591 F.3d 109, 112 (2d Cir. 2010))),
report and recommendation adopted, 2015 WL 3607565
(E.D.N.Y. June 2, 2015).
7

Further, as noted, plaintiffs contend that the DRF is
compulsory in every case other than those that receive a
“not guilty” disposition. The Court finds
Rooker–Feldman particularly inapplicable based on
those allegations because plaintiffs are not seeking
review of an independent determination or judgment by
a state court. See Hoblock, 422 F.3d at 84 (under
Rooker–Feldman, “[f]ederal district courts lack
jurisdiction over suits that are, in substance, appeals
from state-court judgments”).

*7 In sum, Rooker–Feldman does not require dismissal of
this case for lack of subject matter jurisdiction because
the SAC alleges (1) that plaintiffs did not lose in state
court; (2) that the DRF is non-discretionary and
non-appealable and, thus, that plaintiffs are not seeking
federal review of a state court decision; and (3)
independent constitutional claims against the law
authorizing the DRF.

Defendants advance two abstention arguments in support
of their motion to dismiss. First, they contend that, under
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d
669 (1971), the Court should decline subject matter
jurisdiction over plaintiffs’ Section 1983 claim because
there are ongoing state court proceedings. Second,
defendants assert that the Court should abstain from
adjudicating the second cause of action for a declaratory
judgment pursuant to Railroad Commission v. Pullman
Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971
(1941), because interpretation of the DRF depends on
unsettled New York State law. As discussed below, the
Court disagrees with both contentions.

1. Applicable Law
As a threshold matter, “abstention is generally disfavored,
and federal courts have a ‘virtually unflagging obligation’
to exercise their jurisdiction.” Niagara Mohawk Power
Corp. v. Hudson River–Black River Regulating Dist., 673
F.3d 84, 100 (2d Cir. 2012) (quoting Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800,
817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). “The
abstention doctrine comprises a few extraordinary and
narrow exceptions to a federal court’s duty to exercise its
jurisdiction,” and “the balance is heavily weighted in
favor of the exercise of jurisdiction.” Woodford v. Cmty.
Action Agency of Greene Cnty., Inc., 239 F.3d 517, 522
(2d Cir. 2001) (alterations and citations omitted).
Under Younger abstention, “federal courts should
generally refrain from enjoining or otherwise interfering
in ongoing state proceedings.” Spargo v. New York State
Comm’n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir.
2003). In Sprint Communications, Inc. v. Jacobs, –––
U.S. ––––, 134 S.Ct. 584, 187 L.Ed.2d 505 (2013), the
Supreme Court “clarified that district courts should
abstain from exercising jurisdiction only in three
‘exceptional circumstances’ involving (1) ‘ongoing state
criminal prosecutions,’ (2) ‘certain civil enforcement
proceedings,’ and (3) ‘civil proceedings involving certain
orders uniquely in furtherance of the state courts’ ability
to perform their judicial functions.’ ” Falco v. Justices of
the Matrimonial Parts of Supreme Court of Suffolk Cty.,
805 F.3d 425, 427 (2d Cir. 2015) (quoting Sprint, 134
S.Ct. at 591), cert. denied, ––– U.S. ––––, 136 S.Ct. 2469,
195 L.Ed.2d 802 (2016). “[T]hese three ‘exceptional’
categories ... define Younger’s scope.”8 Sprint, 134 S.Ct.
at 591.
8

B. Abstention

Prior to Sprint, the Second Circuit held that abstention
under Younger is mandatory when: “(1) there is a
pending state proceeding, (2) that implicates an

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important state interest, and (3) the state proceeding
affords the federal plaintiff an adequate opportunity for
judicial review of his or federal constitutional claims.”
Spargo, 351 F.3d at 75. However, the Supreme Court
held in Sprint that these criteria are “not dispositive,”
but are rather “additional factors appropriately
considered by the federal court before invoking
Younger.” 134 S.Ct. at 593.

The Pullman doctrine permits a federal court to abstain
from deciding a state law issue “when it appears that
abstention may eliminate or materially alter the
constitutional issue presented.” Ohio Bureau of Emp’t
Servs. v. Hodory, 431 U.S. 471, 481, 97 S.Ct. 1898, 52
L.Ed.2d 513 (1977); see Pullman, 312 U.S. 496, 61 S.Ct.
643. The policy served by such abstention is to “avoid the
need to address difficult constitutional questions
dependent on the interpretation of state law in a situation
where a decision on the ambiguous state law could not
‘escape being a forecast rather than a determination’ and
might be ‘supplanted by a controlling decision of a state
court.’ ” Hartford Courant Co. v. Pellegrino, 380 F.3d 83,
100 (2d Cir. 2004) (quoting Pullman, 312 U.S. at
499–500, 61 S.Ct. 643). The doctrine is an “extraordinary
and narrow exception” to a district court’s duty to
adjudicate the case before it. Allegheny v. Frank Mashuda
Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 3 L.Ed.2d 1163
(1959).
*8 In the Second Circuit, Pullman abstention may be
appropriate where three conditions are met: (1) the state
statute is “unclear or the issue of state law [is] uncertain”;
(2) “resolution of the federal issue depend[s] upon the
interpretation to be given to the state law”; and (3) “the
state law [is] susceptible of an interpretation that would
avoid or modify the federal constitutional issue.”
McRedmond v. Wilson, 533 F.2d 757, 761 (2d Cir. 1976);
see also Hartford Courant Co., 380 F.3d at 100; United
Fence & Guard Rail Corp. v. Cuomo, 878 F.2d 588, 594
(2d Cir. 1989).

2. Analysis
For the following reasons, the Court finds, in its
discretion, that abstention is not warranted at this stage of
the litigation under either Younger or Pullman.

a. Younger Abstention
Defendants argue the court should dismiss plaintiffs’

Section 1983 claim pursuant to Younger because,
although plaintiffs’ TPVA adjudications have been
resolved, the SAC “asserts causes of action on behalf of a
putative class including all persons who have paid the fee
from January 1, 2008 and the present. Thus, since these
Plaintiffs’ state proceedings are ongoing, this Court
should decline” subject matter jurisdiction over the
federal claims in the SAC. (Defs.’ Br. at 7.)
This argument is without merit. As plaintiffs note in their
opposition, other courts have correctly held that the
existence of an uncertified, putative class does not
implicate abstention concerns. See, e.g., Winfield v.
Citibank, N.A., 842 F.Supp.2d 560, 572–73 (S.D.N.Y.
2012) (“The defendant has not established a basis for
Colorado River abstention at this stage of the litigation.
The Court is not yet being asked to decide whether it is
appropriate to certify the California subclass on whose
behalf plaintiff Shen seeks to bring his claim, such that
there would be a class action in New York” that is
duplicative of a state court action.). Given the Supreme
Court’s admonition in Sprint that “[o]nly exceptional
circumstances justify a federal court’s refusal to decide a
case in deference to the States,” 134 S.Ct. at 591 (quoting
New Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 491 U.S. 350, 368, 109 S.Ct. 2506, 105 L.Ed.2d
298 (1989)), the Court agrees with plaintiffs that, because
the Court has not yet determined the nature and
constituent members of the proposed class, it would be
premature to conclude that resolving this action would
necessarily interfere with ongoing state proceedings
involving unidentified individuals.9
9

Of course, the Court may reconsider this issue at a later
stage in the litigation if it becomes appropriate to do so.
See Fed. R. Civ. P. 12(h)(3) (“If the court determines at
any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.”).

Moreover, as the Supreme Court has consistently held, the
“pertinent inquiry [under Younger] is whether the state
proceedings afford an adequate opportunity to raise the
constitutional claims ....” Moore v. Sims, 442 U.S. 415,
430, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); see also
Sprint, 134 S.Ct. at 591 (holding that whether a pending
state court proceeding “provides an adequate opportunity
to raise federal challenges” is a relevant “additional
factor[ ] appropriately considered by the federal court
before invoking Younger” (brackets and citations
omitted)); Zablocki v. Redhail, 434 U.S. 374, 380 n.5, 98
S.Ct. 673, 54 L.Ed.2d 618 (1978) (“[T]he District Court
was correct in finding Huffman and Younger inapplicable,
since there was no pending state-court proceeding in

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which appellee could have challenged the statute.”). Thus,
in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43
L.Ed.2d 54 (1975), the Court found that Younger did not
preclude injunctive relief in a Section 1983 case
contesting a state statute governing preliminary hearings
in criminal prosecutions because the “injunction was not
directed at the state prosecutions as such, but only at the
legality of pretrial detention without a judicial hearing, an
issue that could not be raised in defense of the criminal
prosecution,” and thus, the district court’s “order to hold
preliminary hearings could not prejudice the conduct of
the trial on the merits.” Id. at 108 n.9, 95 S.Ct. 854; see
also Donohue v. Mangano, 886 F.Supp.2d 126, 141
(E.D.N.Y. 2012) (“Younger abstention does not apply
when a plaintiff’s federal claims cannot be presented in
pending state proceedings.” (citation omitted)).
*9 Here, as already discussed, plaintiffs have alleged that
the DRF is non-discretionary and non-appealable and,
therefore, that there is no opportunity to challenge that
statute on federal constitutional grounds before the TPVA
or any state appellate tribunal. (See, e.g., SAC at ¶ 58
(citing Stamos, 38 N.Y.S.3d 832).) In addition, plaintiffs
do not seek to enjoin cases before the TPVA or any other
New York State court; instead, they request an injunction
barring defendants from imposing the DRF (see SAC at ¶
6)—an act, plaintiffs further contend, that does not
involve fact-finding or a merits determination by a state
judge (see id. at ¶¶ 32–33). In other words, as in Gerstein,
an order by this Court precluding enforcement of the DRF
would not “prejudice the conduct of” TPVA proceedings
concerning the underlying ticket or citation.10
10

For purposes of its analysis, the Court assumes,
arguendo, that TPVA adjudications fall into one of
three Sprint categories. However, as discussed, such
classification
permits—but
does
not
require—abstention; instead, a federal district court
may consider additional factors before invoking
Younger, including whether the state proceeding at
issue affords litigants an avenue for raising federal
claims. See Sprint, 134 S.Ct. at 593.

Therefore, based on the allegations in the SAC, the Court
concludes, in its discretion, that Younger abstention is not
warranted with respect to plaintiffs’ Section 1983 claim.

b. Pullman Abstention
Defendants also assert that the Court should decline
jurisdiction over plaintiffs’ second cause of action under

the Declaratory Judgment Act because the SAC
“request[s] the Court to determine New York
Constitutional issues, as well as issues regarding whether
the challenged ordinance is preempted, as a matter of state
law, by NY Vehicle and Traffic Law, the NY Civil Rights
Law, the NY Penal Law and the NY Criminal Procedures
Law”; and “the Court is requested to decide whether the
challenged ordinances are authorized under the NY
Municipal Home Rule Law.” (Defs.’ Br. at 8.) In addition,
defendants contend that resolution of plaintiffs’ state law
claims will dispose of the Section 1983 challenge because
“[i]t is only after the [DRF is] declared invalid [under
New York State law] that Plaintiffs’ constitutional claims
are made relevant.” (Defs.’ Reply Mem. of Law in Supp.
of Mot. to Dismiss Second Am. Compl. (“Defs.’ Reply
Br.”), ECF No. 33, at 5; see also id. at 3 (“[I]f there are no
questions that the ordinances imposing the DRF are valid
under state law, then it cannot be said that there was a
constitutional violation.”).) The Court disagrees.
As an initial matter, defendants mischaracterize the SAC.
They argue that plaintiffs “make[ ] no allegation that the
enactment of the [DRF] was in violation of federal law.”
(Id. at 3.) However, that contention is belied by nearly
twenty pages of substantive claims asserting that the DRF
infringes numerous federal constitutional rights (see SAC
at ¶¶ 1–6, 28–92), as well as plaintiffs’ specific request
for “declaratory relief that the DRF violates the
Constitutional protections of the Fifth, Eighth and
Fourteenth Amendments, and as well as [sic] other
Constitutional Protections” (id. at ¶ 6).
With respect to the Pullman factors, even assuming that
this case satisfies the first criterion—that the DRF
ordinance is “unclear or the issue of state law is
uncertain”—it does not fulfill the second prong because
resolution of plaintiffs’ federal claims does not depend
upon the Court’s construction of New York State law.
This Court addressed a similar issue in Moore v. County
of Suffolk, 851 F.Supp.2d 447 (E.D.N.Y. 2012), in which
the plaintiffs sought a declaration that certain county and
town laws were unconstitutional under federal law and an
injunction enjoining their enforcement. In addition, the
plaintiffs argued that New York State law preempted
those local statutes. The Court found that “[r]esolution of
the constitutional issues [did] not depend upon the Court’s
interpretation of the state law issue” because “[t]his
Court’s holding as to whether [New York State law]
preempts the town and county laws has no bearing on the
resolution of the constitutional issues.” Id. at 457. It
further cited Canaday v. Koch, 608 F.Supp. 1460
(S.D.N.Y. 1985), for the proposition that Pullman’s
second factor “requires that the constitutional issue be
logically dependent on resolution of the state law issue.”

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Id. at 1467.
*10
Likewise,
in
Planned
Parenthood
of
Dutchess–Ulster, Inc. v. Steinhaus, 60 F.3d 122 (2d Cir.
1995), the Second Circuit found that the district court
abused its discretion in abstaining from plaintiff’s claims
that the defendants’ refusal to enter into a contract with
the plaintiff constituted a bill of attainder and violated the
First and Fourteenth Amendments, as well as various
New York State laws. The Court held that Pullman
abstention was not warranted because the
defendants [did] not explain[ ] how
the federal issue presented in this
case ... could be mooted by any
particular interpretation of the state
regulations
at
issue.
The
defendants’ alleged failure to
comply with the procedural
requirements set forth in N.Y. Gen.
Mun. L. § 104–b and N.Y. Comp.
R. and Regs. tit. 18, §§ 407.2,
407.10 has no bearing on the
constitutional issue presented. Nor,
finally, are we aware of a statutory
construction which could cure the
constitutional violations alleged by
plaintiff.
Id. at 126–27 (citing Williams v. Lambert, 46 F.3d 1275,
1282 (2d Cir. 1995) (no interpretation of statute could
avoid fact that plaintiff fell within class of people at
whom statute was aimed)).
Here, whether or not the DRF is a valid enactment under
New York State law or is preempted by other statutes
does not vitiate plaintiffs’ claims that the DRF, inter alia,
is a bill of attainder or violates federal procedural due
process protections. See Canaday, 608 F.Supp. at 1467
(“Whether plaintiffs were denied equal protection of the
laws is a question that may be decided independently of
any decision as to plaintiffs’ rights under state law. It is
not logically necessary to decide the state law issues first,
before reaching the constitutional claim; the constitutional
claim is alternative to, rather than dependent upon, the
state law claims.”); see also United Fence & Guard Rail
Corp., 878 F.2d at 593, 596 (holding that abstention
“policies are outweighed by countervailing concerns
when a federal court is asked to consider claims involving
important federal rights” and that the district court abused
its discretion in abstaining under Pullman from
considering a federal constitutional challenge to a state
law because “the federal constitutional issues presented
do not depend upon resolution of the state law issues”);

Donohue, 886 F.Supp.2d at 140 (“Pullman is not
applicable in the instant case because resolution of the
federal issue—namely, the Contracts Clause in the United
State[s] Constitution—does not depend on any
construction of the state laws at issue.”); Sherman v.
Town of Chester, No. 01 CIV. 8884 (SAS), 2001 WL
1448613, at *3 (S.D.N.Y. Nov. 15, 2001) (“The
resolution of the federal question does not ‘depend’ on the
resolution of ... whether the Town acted ultra vires under
[New York State law] in enacting the Local Law ... or [ ]
whether the Town violated Sherman’s property right
under the State constitution. Instead, the federal claim
turns on whether Sherman had a federally protectable
property right in the permit.” (internal citations omitted)).
Cf. Nov. Team, Inc. v. New York State Joint Comm’n on
Pub. Ethics, 233 F.Supp.3d 366, 371 (S.D.N.Y. 2017)
(“Regarding the second factor relevant to Pullman
abstention, resolution of Plaintiffs’ federal constitutional
claims depends on the interpretation of the Advisory
Opinion.”), appeal withdrawn, No. 17–334, 2017 WL
3399691 (2d Cir. May 17, 2017); Zuffa, LLC v.
Schneiderman, No. 15-CV-7624 (KMW), 2016 WL
311298, at *6 (S.D.N.Y. Jan. 26, 2016) (holding that
Pullman abstention was warranted because the
“[p]laintiff’s federal constitutional vagueness challenge
depend [ed] on the interpretation of [the] state law, and
the [the state law was] susceptible to interpretations that
would resolve the statutory uncertainty and eliminate the
federal constitutional issue”), appeal withdrawn, No.
16–535 (2d Cir. June 14, 2016).
*11 Thus, defendants’ reliance on Guthart v. Nassau
County, 55 Misc.3d 827, 52 N.Y.S.3d 821 (Sup. Ct.
Nassau Cty. 2017), is misplaced. (See Defs.’ Feb. 3, 2017
Letter, ECF No. 28.) There, a New York State trial court
found that imposing the DRF was a proper exercise of the
County’s power pursuant to New York Municipal Home
Rule Law § 10 and New York Vehicle and Traffic Law §
1111–b(e). Id. at 824–25 (“[T]here is nothing in the
language of [New York Vehicle and Traffic Law §
1111–b(e) ] itself that abrogates the existing and
long-standing authority holding that a municipality may
impose fees reasonably related to the cost of
administering and/or enforcing its own regulations and
programs.”); see also id. at 826 (“Nor can it be said that
the cited charges cannot be imposed under the doctrine of
preemption. Local governments have broad authority to
enact legislation that promotes the welfare of their
citizens, but cannot adopt local laws or ordinances that are
inconsistent with the New York State constitution or with
any general State law.”). Accordingly, the court dismissed
the plaintiff’s claims seeking a declaration that the DRF
was invalid under New York State law and for unjust
enrichment, fraud, and negligent misrepresentation. Id. at

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827–28. That determination, however, does not vitiate
plaintiffs’ Section 1983 claim in this action because, as
already discussed, the validity of the DRF under New
York State law does not abrogate any potential federal
constitutional violations.11 Simply put, a local ordinance
may comport with the substantive and procedural
requirements of a state constitution and state statutes but
nevertheless infringe federally-protected rights.12 See, e.g.,
Nelson v. Colorado, ––– U.S. ––––, 137 S.Ct. 1249, 1256,
197 L.Ed.2d 611 (2017) (holding that a Colorado statute
violated the Due Process Clause). Further, the plaintiff in
Guthart—unlike plaintiffs in this case—did not assert a
Section 1983 cause of action, and in any event, “to permit
state courts to rule first on what are substantially federal
constitutional claims is inconsistent with Congress’ grant
of federal jurisdiction.” United Fence & Guard Rail
Corp., 878 F.2d at 596 (citing, inter alia, Hawaii Hous.
Auth. v. Midkiff, 467 U.S. 229, 236–37 & n.4, 104 S.Ct.
2321, 81 L.Ed.2d 186 (1984)).
11

Thus, defendants err in citing to the Second Circuit’s
decisions in Allstate Insurance Company v. Serio, 261
F.3d 143 (2d Cir.), certified question accepted, 96
N.Y.2d 931, 733 N.Y.S.2d 366, 759 N.E.2d 364 (2001),
and certified question answered, 98 N.Y.2d 198, 746
N.Y.S.2d 416, 774 N.E.2d 180 (2002); and Expressions
Hair Design v. Schneiderman, 808 F.3d 118 (2d Cir.
2015), vacated and remanded, ––– U.S. ––––, 137
S.Ct. 1144, 197 L.Ed.2d 442 (2017). Both of those
cases involved First Amendment challenges to vague
New York statutes, and the Second Circuit found that
certifying certain state law questions to the New York
Court of Appeals was proper because those issues were
antecedent to the federal claims. Here, in contrast,
resolving plaintiffs’ state law claims—which allege that
the DRF is invalid under the New York Constitution
and various state statutes—would not obviate the
Section 1983 cause of action.

Accordingly, as set forth above, the Court finds, in its
discretion, that Pullman abstention—which is a limited
exception to the rule that federal courts must exercise
their mandatory subject matter jurisdiction, see United
Fence & Guard Rail Corp., 878 F.2d at 593—is
inapplicable here because resolving plaintiffs’ New York
State law claims is not a condition precedent to
adjudicating their federal constitutional challenges.13
13

Further, as plaintiffs note, to the extent that Guthart
clarified the application of state law to this case, then
the first Pullman prong has not been satisfied.

12

determining whether a statute imposes an unconstitutional
punishment for bill of attainder purposes is a question of
federal law. Thus, in deciding whether the DRF is a
“penalty” as opposed to a “fee,” the Court may not need
to apply ambiguous New York legal authority. If,
however, such a concern becomes relevant at a later stage
of this case, the Court may re-visit the Pullman inquiry.
See Fed. R. Civ. P. 12(h)(3).

Finally, to the extent that defendants argue that the
language of plaintiffs’ second cause of action—which
“request[s] that this Court issue a declaration that the
DRF is not a ‘fee’, but instead a ‘penalty’ or ‘fine[’]; or in
the alternative that the DRF is a ‘mandatory surcharge’;
or in the alternative that the DRF is a ‘tax’ ” (SAC ¶ 131)
and cites several New York statutes and cases—obligates
application of unclear state law, the Court does not
conclude that such an interpretation is warranted at this
juncture. For instance, as discussed further infra,

Although defendants have not raised this argument in
their motion, the Court also finds that Wilton
abstention—which applies to Declaratory Judgment
Act cases—does not pertain to this action because
plaintiffs do not “seek purely declaratory relief,” but
also, inter alia, damages. See Niagara Mohawk Power
Corp. v. Hudson River–Black River Regulating Dist.,
673 F.3d 84, 105–06 (2d Cir. 2012).

C. Section 1983
*12 Having determined that there is subject matter
jurisdiction over this action, the Court proceeds to the
merits of plaintiffs’ Section 1983 claim and discusses
each constitutional challenge seriatim.14
14

At oral argument, plaintiffs averred that defendants had
waived their merits challenges to the Section 1983
claim because they failed to reiterate those arguments
in their reply brief. Although the Court may
accordingly deem those claims as abandoned, see, e.g.,
In re Dana Corp., 412 B.R. 53, 64 (S.D.N.Y. 2008), in
its discretion, it will not do so.

Section 1983 provides that “[e]very person who, under
color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected,
any citizen of the United States ... to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
....” 42 U.S.C. § 1983. In order to state a claim under
Section 1983, a plaintiff must allege (1) the deprivation of
any rights, privileges, or immunities secured by the
Constitution and its laws, and (2) that the deprivation was

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“committed by a person acting under the color of state
law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010);
see also Ahlers v. Rabinowitz, 684 F.3d 53, 60–61 (2d
Cir. 2012); see also Rehberg v. Paulk, 566 U.S. 356, 132
S.Ct. 1497, 1501–02, 182 L.Ed.2d 593 (2012). Here,
defendants only contest the first factor.
For the reasons set forth below, the Court holds that
plaintiffs have failed to state a cause of action based on
alleged bill of attainder, procedural due process,
substantive due process, equal protection, unjust takings,
and double jeopardy violations. However, the Court
denies the motion to dismiss the excessive fines claim
under Section 1983 on the ground that the DRF cannot be
punitive. Because it was not raised by defendants, the
Court does not address whether a $45 fine can be
unconstitutionally excessive.

1. Bill of Attainder
Article I, Section 10, Clause 1 of the United States
Constitution states, in relevant part, “No State shall ...
pass any Bill of Attainder ....” U.S. Const. art. I, § 10, cl.
1. “A bill of attainder is a legislative act which inflicts
punishment without a judicial trial.” United States v.
Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 90 L.Ed. 1252
(1946) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.)
277, 18 L.Ed. 356 (1866)). The Supreme Court has
articulated three elements of a bill of attainder: (1)
“specification of the affected persons,” (2) “punishment,”
and (3) “lack of a judicial trial.” Selective Serv. Sys. v.
Minn. Pub. Interest Research Grp., 468 U.S. 841, 846–47,
104 S.Ct. 3348, 82 L.Ed.2d 632 (1984).
“With respect to the existence vel non of punishment,” the
Second Circuit has identified the following three factors
to consider:
(1) whether the challenged statute falls within the
historical meaning of legislative punishment (historical
test of punishment); (2) whether the statute, “viewed in
terms of the type of severity of burdens imposed,
reasonably can be said to further nonpunitive
legislative purposes” (functional test of punishment);
and (3) whether the legislative record “evinces a
[legislative] intent to punish” (motivational test of
punishment).
ACORN v. United States, 618 F.3d 125, 136 (2d Cir.
2010) (quoting Selective Serv. Sys., 468 U.S. at 853, 104
S.Ct. 3348). These three factors “are the evidence that is
weighed together in resolving the bill of attainder claim.”
Id. (quoting Con. Edison Co. of N.Y., Inc. v. Pataki, 292
F.3d 338, 350 (2d Cir. 2002)). Nevertheless, the Supreme

Court has warned that, “[h]owever expansive the
prohibition against bills of attainder, it surely was not
intended to serve as a variant of the equal protection
doctrine, invalidating every Act of Congress or the States
that legislatively burdens some persons or groups but not
all other plausible individuals.” Nixon v. Adm’r of Gen.
Servs., 433 U.S. 425, 471, 97 S.Ct. 2777, 53 L.Ed.2d 867
(1977) (footnotes omitted). “Forbidden legislative
punishment is not involved merely because the Act
imposes burdensome consequences.” Id. at 472, 97 S.Ct.
2777.
*13 The SAC alleges that the “DRF is a legislatively
mandated fine and/or penalty, being imposed by a
governmental entity under the color of law, without a
trial, and without discretion by a court of law.” (SAC at ¶
45.) Additionally, it states that the “DRF penalty is
imposed only against any individuals who have been
issued a ticket by the Nassau County police or the TPVA
under the authority of defendants, irrespective of guilt
under the eyes of the law and/or a trial being conducted.”
(Id. at ¶ 47.) Defendants argue that the SAC fails to state a
claim because (1) “the ordinance does not impose
punishment upon an identifiable individual”; (2) “the
assessment of a relatively modest fee for the processing of
the infraction does not” constitute punishment as a matter
of law; and (3) “[p]laintiffs had the ability to have a trial
and obtain a disposition of not guilty.” (Defs.’ Br. at 9.)
The Court agrees with defendants that the SAC does not
adequately allege the specificity element.15 Plaintiffs are
correct that for a legislative act to be a bill of attainder, it
must “apply either to named individuals or to easily
ascertainable members of a group ....” Lovett, 328 U.S. at
315, 66 S.Ct. 1073. However, the Supreme Court
cautioned in Nixon that “the Constitution is [not] offended
whenever a law imposes undesired consequences on an
indvidual [sic] or on a class that is not defined at a proper
level of generality.” 433 U.S. at 469–70, 97 S.Ct. 2777.
This is because finding that “an individual or defined
group is attainted whenever he or it is compelled to bear
burdens which the individual or group dislikes” would
“remove [ ] the anchor that ties the bill of attainder
guarantee to realistic conceptions of classification and
punishment” and “cripple the very process of legislating,
for any individual or group that is made the subject of
adverse legislation can complain that the lawmakers could
and should have defined the relevant affected class at a
greater level of generality.” Id. at 470, 97 S.Ct. 2777
(footnote omitted). Thus, although the SAC asserts that
the DRF singles out ticketed motorists who do not receive
a disposition of innocence, that is not the end of the
specificity inquiry.

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15

Accordingly, the Court need not, and does not, address
defendants’ aadditional arguments regarding lack of
punishment and the availability of judicial process.

Instead, the Supreme Court has held that a law
distinguishes a class of people for bill of attainder
purposes when it speaks “in terms of conduct which,
because it is past conduct, operates only as a designation
of particular persons.” Communist Party of the U.S. v.
Subversive Activities Control Bd., 367 U.S. 1, 86, 81 S.Ct.
1357, 6 L.Ed.2d 625 (1961); see also Cummings, 71 U.S.
at 317–18 (holding that law was a bill of attainder
because, inter alia, it singled out individuals for past
involvement in the Confederacy); Ex parte Garland, 71
U.S. (4 Wall.) 333, 377–78, 18 L.Ed. 366 (1866) (same).
In contrast, the Court has upheld laws with a prospective
enforcement application even if they designate a
particular group of individuals for possible sanction.
For instance, Communist Party held that the Subversive
Activities Act was not a bill of a attainder because it
“require[d] the registration only of organizations which,
after the date of the Act, [were] found to be under the
direction, domination, or control of certain foreign powers
and to operate primarily to advance certain objectives,”
and thus, “[p]resent activity constitute[d] an operative
element to which the statute attache[d] legal
consequences, not merely a point of reference for the
ascertainment of particular persons ineluctably designated
by the legislature.” 367 U.S. at 86–87, 81 S.Ct. 1357; see
also id. at 87, 81 S.Ct. 1357 (holding that “[f]ar from
attaching to the past and ineradicable actions of an
organization,” the Act’s application was “made to turn
upon continuing contemporaneous fact”). Likewise, in
Selective Service System, the Supreme Court found that a
federal statute was not sufficiently specific and, therefore,
not a bill of attainder because it did not target a group
based on their prior behavior, but instead penalized
present and future violations of that law. 468 U.S. at
847–51, 104 S.Ct. 3348; see also id. at 850–51 & n.7, 104
S.Ct. 3348 (“Because it allows late registration, § 12(f) is
clearly distinguishable from the provisions struck down in
Cummings and Garland. Cummings and Garland dealt
with absolute barriers to entry into certain professions for
those who could not file the required loyalty oaths; no one
who had served the Confederacy could possibly comply,
for his status was irreversible.”).
*14 Conversely, the Second Circuit found in
Consolidated Edison that a New York State law imposing
a utility sanction for prior wrongdoing was an
unconstitutional bill of attainder because of its
“retrospective focus.” 292 F.3d at 349. It emphasized that

“defin[ing] past conduct as wrongdoing and then
impos[ing] punishment on that past conduct” is an
“indispensible [sic] element of a bill of attainder” because
“[s]uch a bill attributes guilt to the party or parties singled
out in the legislation.” Id. (citing, inter alia, Nixon, 433
U.S. at 472–73, 97 S.Ct. 2777; Cummings, 71 U.S. at
325). Accordingly, the Second Circuit held that “[t]he
retrospective focus of Chapter 190 [was] essential to [its]
determination that the statute is a bill of attainder. The
power of legislatures to enact purely prospective changes
to utility rates, even to the rates of a single utility, is
considerably broader than their authority to act
retrospectively.” Id.
Here, there are no allegations in the SAC that defendants
enacted or enforced the DRF to punish past conduct.
Instead, plaintiffs assert that they have sufficiently alleged
the specificity element because “individuals whose
tickets/citations have ‘a final disposition other than
not-guilty’, which includes those motorists whose tickets
have been dismissed ... are ‘easily ascertainable via the
group defined by the [L]egislature.” (Pls.’ Mem. of Law
in Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Opp’n Br.”),
ECF No. 30, at 11.) However, that is plainly not the
applicable standard. As Nixon instructed, determining that
a statute is a potential bill of attainder merely because it
specifies an individual or a collective of individuals for
sanction would “invalidat[e] every Act of Congress or the
States that legislatively burdens some persons or groups
but not all other plausible individuals.” 433 U.S. at 471,
97 S.Ct. 2777; see also Elgin v. U.S. Dep’t of Treasury,
641 F.3d 6, 21 (1st Cir. 2011) (Stahl, J., concurring in
judgment) (“A statute meets the specification element if it
identifies individuals by name or by description of prior
conduct so that it operates only as a designation of
particular persons. A statute of general applicability that
affects individuals only upon enforcement is not a bill of
attainder; it is simply an example of the quintessential
legislation that the Constitution tasks Congress with
creating.” (citations omitted)), aff’d sub nom. Elgin v.
Dep’t of Treasury, 567 U.S. 1, 132 S.Ct. 2126, 183
L.Ed.2d 1 (2012).
Even construing the SAC in a light most favorable to
plaintiffs and drawing all inferences in their favor, there
are no claims that the DRF identifies individuals or a class
of people for sanction based on their past acts; instead, the
only plausible reading of the SAC is that the DRF is a
“general enforcement statute” that “turn[s] upon
continuing contemporaneous fact” because individuals are
not assessed a fee until the TPVA dismisses their ticket or
citation. As a result, plaintiffs have not adequately pled
specificity, see, e.g., Communist Party, 367 U.S. at 87, 81
S.Ct. 1357, and accordingly, the Court dismisses the bill

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of attainder aspect of their Section 1983 claim.

2. Procedural Due Process
The crux of plaintiffs’ Section 1983 claim is that the DRF
violates their procedural due process rights. The SAC
alleges that the “system the defendants have created
through the TPVA Court for imposing the DRF is an
unfair adjudication process against individuals who are
simply issued a ticket by Nassau County law enforcement
officer[s]” because “[t]here is no justification for taking
away plaintiffs’ and Class members’ property (money)
without any charges/accusatory instruments pending, nor
any findings of fact against such individuals” or proof
“that any violations occurred (i.e.—innocent until proven
guilty).” (SAC at ¶¶ 51–53.) Moreover, plaintiffs aver that
“by charging a DRF, the defendants have found a way to
legally extort individuals whom appear before the TPVA”
because if plaintiffs and others “refuse to pay such a fee
they are scheduled for a trial, which is done as a penalty
for refusing to pay and questioning the imposition of the
DRF. Such trial may require additional days in court, and
possibly even the retention of an attorney.” (Id. at ¶ 57.)
Similarly, the SAC alleges that
*15 there is a $125 non-refundable
application fee to the TPVA to
simply apply to vacate the DRF, as
well as a $250 non-refundable fee
to appeal the application of the
DRF. The faux procedures in place
to simply question the DRF are
more costly and expensive (and
non-refundable) than the DRF
itself,
and
therefore
are
substantially insufficient to protect
an individual’s due process rights
(i.e.—even if they win the dispute
before the TPVA, they will not get
their $150 fee returned).
(Id. at ¶ 66.)
To assert a violation of procedural due process rights, a
plaintiff must “first identify a property right, second show
that the [State] has deprived him of that right, and third
show that the deprivation was effected without due
process.” Local 342, Long Island Pub. Serv. Emps.,
UMD, ILA, AFL–CIO v. Town Bd. of Huntington, 31 F.3d
1191, 1194 (2d Cir. 1994) (citation omitted). Further, 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.” Boddie v. Connecticut, 401 U.S. 371,
378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). The Supreme
Court, however, distinguishes between (1) claims based
on established state procedures, and (2) claims based on
random, unauthorized acts by state employees. See
Rivera–Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458,
465 (2d Cir. 2006) (citing Hudson v. Palmer, 468 U.S.
517, 532, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); and
Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 68
L.Ed.2d 420 (1981), overruled on other grounds by
Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88
L.Ed.2d 662 (1986)). On the one hand, where a plaintiff
alleges a deprivation pursuant to an established state
procedure, “the state can predict when it will occur and is
in the position to provide a predeprivation hearing.” Id.
(citing Hellenic Am. Neighborhood Action Comm. v. City
of New York, 101 F.3d 877, 880 (2d Cir. 1996)). “Under
those circumstances, ‘the availability of post-deprivation
procedures will not, ipso facto, satisfy due process.’ ” Id.
(quoting Hellenic, 101 F.3d at 880). In contrast, when a
plaintiff brings a procedural due process claim “[b]ased
on random unauthorized acts by state employees,” the
state satisfies procedural due process requirements so
long as it provides a meaningful post-deprivation
remedy.16 Id. (citing Hellenic, 101 F.3d at 880; and
Hudson, 468 U.S. at 532, 104 S.Ct. 3194).
16

This differing treatment for “random, unauthorized
acts” rests on “pragmatic considerations.” Hellenic, 101
F.3d at 880 (citing Hudson, 468 U.S. at 532–33, 104
S.Ct. 3194). When an arbitrary act by a low-level state
employee causes a deprivation, “it is difficult to
conceive of how the State could provide a meaningful
hearing before the deprivation takes place.” Velez v.
Levy, 401 F.3d 75, 92 (2d Cir. 2005). Thus, “[w]here a
pre-deprivation hearing is impractical and a
post-deprivation hearing is meaningful, the State
satisfies its constitutional obligations by providing the
latter.” Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir.
1984).

Here, defendants concede that “the de minimus [DRF] is [
] a protected property interest for the procedural due
process discussion.”17 (Defs.’ Br. at 13.) Nevertheless,
they contend that an adequate remedial process exists. At
the second step of the above test, the Court must balance
the following factors in evaluating the adequacy of a
challenged procedure:
(1) the private interest that will be
affected by the official action; (2)
the risk of an erroneous deprivation
of such interest through the
procedures used, and the probable

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value, if any, of additional or
substitute procedural safeguards;
and (3) the Government’s interest,
including the function involved and
the fiscal and administrative
burdens that the additional or
substitute procedural requirement
would entail.

U.S. 264, 299, 101 S.Ct. 2389, 69 L.Ed.2d 1 (1981)
(citation omitted). “It is sufficient, where only property
rights are concerned, that there is at some stage an
opportunity for a hearing and a judicial determination.”
Id. at 303, 101 S.Ct. 2389 (quoting Ewing v. Mytinger &
Casselberry, 339 U.S. 594, 599, 70 S.Ct. 870, 94 L.Ed.
1088 (1950)).
18

*16 Nat’l Org. for Women v. Pataki, 261 F.3d 156,
167–68 (2d Cir. 2001) (quoting Mathews v. Eldridge, 424
U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).
17

As discussed infra, however, the Court concludes that
the DRF does not implicate a property interest subject
to substantive due process protections.

Defendants argue that plaintiffs’ procedural due process
claim fails because “neither of the named plaintiffs claims
to have pursued their remedies under the law,” since they
elected not to proceed to trial on their underlying tickets
or citations. (Defs.’ Br. at 13–14.) Further, defendants
argue that, “[a]s a general rule, there can be no procedural
due process violation when the state provides apparently
adequate procedural remedies and the plaintiff has not
availed himself of those remedies.” (Id. at 14 (citation
omitted).) The Court agrees that, based on the allegations
in the SAC, adequate procedures exists to safeguard
plaintiffs’ property rights.
First, the Court finds that the “private interest” at stake is
minimal. A $45 fee does not involve substantial property
rights. See, e.g., Krieger v. City of Rochester, 42 Misc.3d
753, 978 N.Y.S.2d 588, 601 (Sup. Ct. Monroe Cty. 2013)
(holding on a procedural due process challenge to
red-light traffic ticket laws that “the modest $50 penalty
was not so substantial as to infringe upon a person’s
private property rights”); cf. Pringle v. Wolfe, 88 N.Y.2d
426, 431, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996) (“It
is well established that a driver’s license is a substantial
property interest that may not be deprived without due
process of law.”).
Second, insofar as plaintiffs allege that the DRF ensnares
“innocent” motorists whose tickets or citations have been
dismissed without a disposition of “not guilty” (see SAC
at ¶¶ 36, 39, 53, 55, 61), the Court finds that there are
adequate pre-deprivation and post-deprivation procedures
to prevent erroneous determinations by the TPVA.18 The
Supreme Court has said that “due process ordinarily
requires an opportunity for ‘some kind of hearing’ prior to
the deprivation of a significant property interest.” Hodel
v. Virginia Surface Min. & Reclamation Ass’n, Inc., 452

Because the SAC alleges a procedural due process
violation based on “systemic” enforcement of the DRF,
the Court concludes that available post-deprivation
procedures will not, standing alone, necessarily satisfy
due process. See Hellenic, 101 F.3d at 880; Pierre v.
N.Y.C. Taxi & Limousine Comm’n, No. 17-CV-973
(MKB), 2017 WL 1417257, at *3 (E.D.N.Y. Apr. 19,
2017) (collecting cases).

Here, plaintiffs concede that motorists accused of traffic
violations are entitled to a trial on the merits, and that the
relevant County ordinance does not impose a DRF on
those who receive a “not guilty” finding. (See Pls.’ Opp’n
Br. at 17 & n.23.) Nevertheless, they assert that “[s]uch a
situation flips the burden of proof, and is violative of
numerous procedural due protections” because “the
government cannot flip the burden to the individual to
prove his innocence,”19 and “motorists before the TPVA
have no ability to dispute the DRF penalty, nor have a
trial on the DRF itself.” (Id. at 18.) However, that position
is against the weight of federal and New York authority
holding that due process is satisfied by notice and an
opportunity to be heard before a motorist is punished for a
traffic infraction. See, e.g., Boguslavsky v. City of New
York, 173 F.3d 843, 1999 WL 197202, at *2 (2d Cir.
1999) (unpublished opinion) (“As for Boguslavsky’s
Fourteenth Amendment procedural due process claim,
Boguslavsky was provided a hearing on the parking ticket
underlying the booting incident and an opportunity to
present evidence that the parking signs on the street were
inadequate. Thus, the district court properly found that
Boguslavsky had presented no factual basis for asserting a
due process claim.”); Rackley v. City of New York, 186
F.Supp.2d 466, 482 (S.D.N.Y. 2002) (“There is no
material factual dispute that the City’s administrative
parking violations system, together with the judicial
system of the State of New York, provided plaintiff with
adequate
pre-deprivation
remedies,
adequate
post-deprivation remedies, and sufficient notice that such
remedies were available.” (footnote omitted)); Calabi v.
Malloy, 438 F.Supp. 1165, 1171–72 (D. Vt. 1977),
amended sub nom. Calabi v. Conway, 468 F.Supp. 76 (D.
Vt. 1978) (holding that there was no due process violation
based on “the legislature’s decision not to provide a
separate presuspension hearing procedure” prior to
suspending a motorist’s license because “the opportunity

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to contest the actual traffic offense in court provide[d] the
motorist with a hearing which [was] sufficient to meet
due process standards”); Pringle v. Wolfe, 88 N.Y.2d 426,
434, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996) (holding
that “the minimal risk of an erroneous suspension [of a
driver’s license] is further diminished by the driver’s right
to a meaningful presuspension opportunity to rebut the”
charges against him); Krieger, 978 N.Y.S.2d at 602 (due
process satisfied by notice and an opportunity to be heard
at an evidentiary hearing before assessment of red-light
traffic penalty).
19

Plaintiffs’ contention that motorists are required to
“prove their innocence” before the TPVA to avoid
imposition of the DRF appears to be a rhetorical
statement rather than a factual description of the
evidentiary burdens borne at a TPVA proceeding.
Indeed, Section 227 of the New York Vehicle and
Traffic Law provides that “[e]very hearing for the
adjudication of a traffic infraction, as provided by this
article, shall be held before a hearing officer ... [and]
[t]he burden of proof shall be upon the people, and no
charge may be established except by clear and
convincing evidence.” N.Y. Veh. & Traf. Law §
227[1].

*17 Further, although plaintiffs contend that availing
themselves of a trial would be costly and time-consuming
(see SAC at ¶¶ 4–5, 57–58), “[t]he fact that [the available
pre-deprivation] procedures place the onus for resolving
outstanding tickets on the driver, rather than on the
[County], does not violate the Due Process Clause of the
United States Constitution.” Schaer v. City of New York,
No. 09 CIV. 7441 CM MHD, 2011 WL 1239836, at *9
(S.D.N.Y. Mar. 25, 2011). For example, in Davis v.
Nassau County, No. 06-CV-4762 ADS WDW, 2011 WL
5401663 (E.D.N.Y. Nov. 5, 2011), the plaintiff sued, inter
alia, the County and the TPVA for suspending his
driver’s license without a finding of guilt. The plaintiff
acknowledged that he willfully chose not to attend a
hearing on the alleged violation, and the court held that
there was no procedural due process violation because
as a matter of law, the Plaintiff was
afforded with [sic] a sufficient
pre-deprivation remedy that he
chose not to pursue. The Plaintiff
was given the opportunity of a trial
on the merits and did not attend,
even though he knew the
consequences of not doing so.
Therefore, the Court finds that the
Plaintiff received all the process he
was due under the law.

2011 WL 5401663, at *6. Similarly, plaintiffs here failed
to pursue an available and adequate pre-deprivation
procedure that may have avoided the DRF injury that led
to this lawsuit. As a result, plaintiffs have not pled a
procedural due process violation. See, e.g., Brady v. Town
of Colchester, 863 F.2d 205, 211 (2d Cir. 1988) (to state a
due process claim, “a plaintiff must [allege] 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” (citation
omitted)).
Moreover, even where a post-deprivation procedure is
not, by itself, sufficient relief for claims based on
established state procedures, see Hellenic, 101 F.3d at
880, the combination of pre- and post-injury proceedings
can provide constitutionally-sufficient redress. See Levy v.
Cohen, 439 Fed.Appx. 30, 31–32 (2d Cir. 2011) (holding
that the “pre-deprivation proceedings available to [the
plaintiff] ... combined with the availability of an adequate
post-deprivation remedy through New York’s Article 78
proceeding, constituted sufficient process to satisfy the
Due Process Clause of the Fourteenth Amendment”
(citing Harris v. Mills, 572 F.3d 66, 76 (2d Cir. 2009)
(denial by state agency of physician’s petition to reinstate
his revoked medical license did not deprive physician of
due process, where physician was given adequate notice
and opportunity to be heard before his petition for
reinstatement
was
denied,
and
an
adequate
post-deprivation remedy was available through Article 78
proceedings); and Rivera–Powell, 470 F.3d at 466
(holding that pre-deprivation process was constitutionally
adequate where the plaintiff received notice and was
represented at a pre-deprivation hearing by an attorney));
Morales v. New York, 22 F.Supp.3d 256, 277 (S.D.N.Y.
2014) (“Plaintiff’s own allegations show that he was
afforded disciplinary hearings and that he willingly
abandoned at least some of these hearings. Moreover,
Plaintiff could have brought an Article 78 proceeding
under New York Civil Practice Law and Rules.”).
To the extent that plaintiffs claim that any individual DRF
assessment was in error—or that the DRF ordinance is in
conflict with a state law requirement that, where traffic
ticket “cases are dismissed upon appeal (from the TPVA
court to the Appellate Term), all fines and fees [must be]
returned to the individual” (Pls.’ Opp’n Br. at 19)—New
York provides an avenue for post-deprivation relief via an
Article 78 proceeding, N.Y. C.P.L.R. § 7801 et seq. See,
e.g., De Asis v. New York City Police Dep’t, 352
Fed.Appx. 517, 518 (2d Cir. 2009) (“Finally, insofar as
Appellant can be construed as raising a due process claim
based on the defendants’ failure to refund a prepaid fine
after Appellant successfully challenged his traffic

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citations, the claim is unavailing because a
post-deprivation remedy was available, in the form of an
Article 78 mandamus proceeding.” (citing New York State
Nat’l Org. for Women, 261 F.3d at 168)); Nestle Waters
N. Am., Inc. v. City of New York, No. 15-CV-05189
(ALC), 2016 WL 3080722, at *11 (S.D.N.Y. May 25,
2016) (noting that “Article 78 proceedings allow for
unfettered review of alleged errors in statutory
interpretation”), aff’d, 689 Fed.Appx. 87 (2d Cir. 2017).
For instance, the Second Circuit held in Nestle Waters
that there was no procedural due process violation based
on the plaintiff’s allegation that the defendants had a
policy of issuing and enforcing defective parking
summonses because the “review afforded through the
Parking Violations Bureau (‘PVB’) administrative
processes and Article 78 proceedings in New York State
[was] adequate for due process purposes.” 689 Fed.Appx.
at 88.
*18 Based on the facts of this case—which, as noted,
involves a property interest far less substantial than the
suspension of a driver’s license, see Davis, 2011 WL
5401663; the revocation of a professional license, see
Levy, 439 Fed.Appx. 30; or the removal of a candidate
from an election ballot, see Rivera–Powell, 470 F.3d
458—the Court finds, as other courts in this Circuit have
correctly determined, see, e.g., Rackley, 186 F.Supp.2d at
482, that the availability of both pre- and post-deprivation
procedures to plaintiffs was constitutionally adequate
under the second prong of the Mathews inquiry.
The Supreme Court’s recent decision in Nelson v.
Colorado does not, as plaintiffs contend, affect this
determination. (See Pls.’ May 27, 2017 Letter, ECF No.
38.) There, the Court invalidated a Colorado statute on
due process grounds because it permitted the state to
“retain[ ] conviction-related assessments unless and until
the prevailing defendant institute[d] a discrete civil
proceeding and prove[d] her innocence by clear and
convincing evidence” following vacatur of her criminal
conviction. 137 S.Ct. at 1252. The Court held that
“Colorado may not retain funds taken from [the
petitioners] solely because of their now-invalidated
convictions, for Colorado may not presume a person,
adjudged guilty of no crime, nonetheless guilty enough
for monetary exactions.” Id. at 1256 (citations omitted).
However, Nelson is distinguishable from this case on
three significant grounds.
First, and as discussed further infra with respect to
plaintiffs’ double jeopardy claim, plaintiffs have not
alleged facts sufficient to show that TPVA proceedings
are akin to criminal prosecutions, which implicate far
more important rights than the property interest at issue

here. Second, the Supreme Court emphasized in Nelson
that the “risk [t]here involved [was] not the risk of
wrongful or invalid conviction any criminal defendant
may face,” but rather “the risk faced by a defendant
whose conviction has already been overturned that she
will not recover funds taken from her solely on the basis
of a conviction no longer valid.” Id. at 1257. Thus, in
Nelson, the petitioners were deprived of property based
on convictions that were no longer extant. Here, plaintiffs
allege that the DRF is imposed after a ticket or citation is
dismissed with a disposition of other than “not guilty.” In
other words, the deprivation at issue does not stem from a
subsequently invalidated conviction. Finally, the
Colorado statute that the Supreme Court struck down in
Nelson placed the evidentiary burden on the defendant to
demonstrate innocence, whereas here, the County must
prove a traffic violation by “clear and convincing
evidence” at any trial on the merits. See supra note 19.
Accordingly, to the extent that plaintiffs would argue that
Nelson changes the clear and consistent precedent
summarized above, the Court disagrees and finds that it
has no bearing on the Mathews test as applied to the facts
of this case.
Third, in light of the Court’s determination supra that the
existing procedures are adequate, and given that neither
party has suggested alternative or additional procedural
protections, the Court need not address the final step of
the Mathews analysis.
In sum, the Court concludes that plaintiffs have not
plausibly stated a procedural due process claim because
(1) the property interest at issue is minimal; and (2) there
are adequate pre- and post-deprivation safeguards to
prevent a wrongful injury. Therefore, the Court dismisses
this aspect of plaintiffs’ Section 1983 claim.

3. Substantive Due Process
*19 The SAC also asserts that “the DRF violates
plaintiffs’ and Class members’ substantive due process
rights under the Fifth and Fourteenth Amendments”
because
[i]rrespective of any procedural
safeguards the defendants have
utilized in assessing the DRF
penalty against individuals whom
have simply been issued a ticket ...
defendants’ imposition of the DRF
penalty against plaintiffs and the
Class when the ticket has been
dismissed
violates
their
fundamental right to property

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without
sufficient
substantive
justification or rational basis in law.
(SAC at ¶ 63.)
The Due Process Clause of the Fourteenth Amendment
protects persons against deprivations of “life, liberty, or
property.” U.S. Const. amend. XIV, § 1. The Fourteenth
Amendment “does not provide a comprehensive scheme
for determining the propriety of official conduct or render
all official misconduct actionable.” Pena v. DePrisco, 432
F.3d 98, 112 (2d Cir. 2005). Instead, the scope of
substantive due process is very limited. See Washington v.
Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138
L.Ed.2d 772 (1997). The Supreme Court has said that it is
“reluctant to expand the concept of substantive due
process
because
guideposts
for
responsible
decisionmaking in this unchartered area are scarce and
open-ended.” Collins v. Harker Heights, 503 U.S. 115,
125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Substantive
due process is a means of “protection of the individual
against arbitrary action of government.” Wolff v.
McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d
935 (1974).
“In order to establish a violation of a right to substantive
due process, [after plaintiff demonstrates that it was
denied a valid property interest,] a plaintiff must
demonstrate not only government action but also that the
government action was ‘so egregious, so outrageous, that
it may fairly be said to shock the contemporary
conscience.’ ” Pena, 432 F.3d at 112 (quoting Cty. of
Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998)). To satisfy this standard,
a plaintiff must show that the government decision it
challenges “was arbitrary or irrational or motivated by
bad faith.” Rosa R. v. Connelly, 889 F.2d 435, 439 (2d
Cir. 1989).
Here, plaintiffs have not adequately alleged deprivation of
a protected property right. As courts in this Circuit have
correctly held, “the substantive Due Process clause does
not protect plaintiffs from modest fines ....” Leder v. Am.
Traffic Sols., Inc., 81 F.Supp.3d 211, 224 (E.D.N.Y.
2015) (holding that $65 fine imposed by the TPVA was
not a substantive due process violation) (citing Idris v.
City of Chicago, Ill., 552 F.3d 564, 566 (7th Cir. 2009)
(“The interest at stake is a $90 fine for a traffic infraction,
and the Supreme Court has never held that a property
interest so modest is a fundamental right.”); Kelly v. Rice,
375 F.Supp.2d 203, 209 (S.D.N.Y. 2005) (“Nothing about
the issuance of a parking ticket implicates the rarely-used
doctrine of ‘substantive due process.’ If a claim that a
police officer’s deliberate indifference caused the death of

a motorist during a high-speed chase does not violate
substantive due process, ... then surely the issuance of a
parking ticket on a single occasion does not do so.”
(citations omitted)); and Krieger, 978 N.Y.S.2d 588),
aff’d, 630 Fed.Appx. 61 (2d Cir. 2015); see also Buttaro
v.
Affiliated
Computer
Servs.,
Inc.,
No.
CV14353LDWSIL, 2016 WL 8711058, at *2 (E.D.N.Y.
Dec. 2, 2016) (holding that plaintiffs failed to plead
substantive due process violation based on an $80 fine).
Likewise, the $45 sanction imposed by the DRF does not
impinge an “interest[ ] that [is] ‘implicit in the concept of
ordered liberty’ ” and, therefore, does not implicate
substantive due process protections.20 Local 342, 31 F.3d
at 1196 (quoting Palko v. Connecticut, 302 U.S. 319, 325,
58 S.Ct. 149, 82 L.Ed. 288 (1937)).
20

Plaintiffs’ attempt to distinguish Leder is unpersuasive.
They argue that the instant case is different because
“the plaintiffs herein are not disputing individual’s [sic]
actions being arbitrary, but instead the DRF ordinance
itself being arbitrary ....” (Pls.’ Opp’n Br. at 20 n.25.)
However, as set forth above, a substantive due process
violation must allege arbitrary state action that results
in deprivation of a property right. Capricious conduct,
standing alone, does not state a claim for relief. See W.
Farms Assocs. v. State Traffic Comm’n of State of
Conn., 951 F.2d 469, 472 (2d Cir. 1991) (“[A] plaintiff
may not successfully claim a deprivation of property
without due process absent the identification of a
protected property interest.”).

*20 As a result, the Court dismisses the substantive due
process component of plaintiffs’ Section 1983 claim.

4. Unjust Takings
In addition, the SAC states that defendants have violated
“the Takings Clause of the Fifth Amendment” because
“defendants have been systematically taking property
from individuals (here, monetary amounts), without any
compensation whatsoever, and without any just cause.”
(SAC at ¶ 77.) Plaintiffs further assert that, although the
stated “purpose behind the DRF is the reimbursement the
costs for issuing tickets/citations to drivers ... such
overhead fees for regulating the public should only be
borne upon those who plead guilty and/or are found guilty
of such infractions, and/or taxpayers as a whole ....” (Id. at
¶ 80 (citing Armstrong v. United States, 364 U.S. 40, 49,
80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960).)
The Fifth Amendment guarantees that no one will “be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,

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without just compensation,” U.S. Const. amend. V, and it
has been made applicable to the states through the
Fourteenth Amendment, see, e.g., Weaver v. Brenner, 40
F.3d 527, 534 (2d Cir. 1994). To plead a taking under the
Fifth (or Fourteenth) Amendment, a plaintiff must allege
that (1) plaintiff possessed a valid property interest; (2)
there was a taking of that property interest under color of
state law; and (3) the taking was without just
compensation. See, e.g., Cranley v. Nat’l Life Ins. Co. of
Vt., 318 F.3d 105, 111 (2d Cir. 2003); Story v. Green, 978
F.2d 60, 62 (2d Cir. 1992).
However, even where a plaintiff has sustained an unjust
taking, he “has not suffered a violation of the Just
Compensation Clause until [he] has unsuccessfully
attempted to obtain just compensation through the
procedures provided by the State.” Villager Pond, Inc. v.
Town of Darien, 56 F.3d 375, 379 (2d Cir. 1995) (quoting
Williamson Cty. Reg’l Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 195, 105 S.Ct. 3108,
87 L.Ed.2d 126 (1985)). “The Fifth Amendment does not
proscribe the taking of property; it proscribes taking
without just compensation.” Williamson Cty., 473 U.S. at
194, 105 S.Ct. 3108. “Thus, before a plaintiff may assert a
federal takings claim, he must first seek compensation
from the state if the state has a ‘reasonable, certain and
adequate provision for obtaining compensation.’ ”
Villager Pond, 56 F.3d at 379–80; see also Sherman v.
Town of Chester, 752 F.3d 554, 561 (2d Cir. 2014)
(holding that to establish ripeness, a plaintiff “must ‘show
that (1) the state regulatory entity has rendered a final
decision on the matter, and (2) the plaintiff has sought just
compensation by means of an available state procedure’ ”
(quoting Dougherty v. Town of N. Hempstead Bd. of
Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)). The
Second Circuit has further held that “a state compensation
procedure will be deemed available and adequate within
the meaning of Williamson even when that procedure
remains unsure and undeveloped.” Southview Assocs.,
Ltd. v. Bongartz, 980 F.2d 84, 99 (2d Cir. 1992) (citations
omitted).
Here, plaintiffs have not pled that they pursued any state
court remedies for the purported takings, and “[c]ourts
within the Second Circuit have uniformly dismissed Fifth
Amendment takings claims at the pleadings stage when
plaintiffs fail to sufficiently allege that they have availed
themselves of such state procedures.” Viteritti v. Inc. Vill.
of Bayville, 831 F.Supp.2d 583, 591 (E.D.N.Y. 2011)
(citing, inter alia, Vandor, Inc. v. Militello, 301 F.3d 37,
38–39 (2d Cir. 2002)). Moreover, courts in this Circuit
have correctly and consistently held that Article I, Section
7 of the New York State Constitution—which provides
that “private property shall not be taken for public use

without just compensation,” N.Y. Const. art. I, §
7—“satisfies the availability element of the second prong
of Williamson County.” Melrose Credit Union v. City of
New York, 247 F.Supp.3d 356, ––––, 2017 WL 1200902,
at *11 (S.D.N.Y. 2017) (collecting cases) (citing, inter
alia, McCormack Sand Co. v. Town of N. Hempstead
Solid Waste Mgmt. Auth., 960 F.Supp. 589, 595
(E.D.N.Y. 1997) (“New York law provides procedures for
obtaining compensation for the alleged taking [of
personal property], including a cause of action for inverse
condemnation under Article I, Section 7 of the New York
Constitution.”)). “Indeed, Plaintiffs ... assert a claim for
compensatory damages under Article I, Section VII in this
very lawsuit” as Count 8 of the SAC (see SAC at ¶¶
203–12). Melrose Credit Union, 247 F.Supp.3d at ––––,
2017 WL 1200902, at *11.
*21 Plaintiffs attempt to circumvent this pleading
requirement by invoking the well-established rule that
there is no need to exhaust available state remedies prior
to instituting a Section 1983 action. (See Pls.’ Opp’n Br.
at 14–15 & n.19.) However, the Supreme Court squarely
rejected that argument in Williamson County and, in so
doing, explained the difference between the exhaustion
and ripeness doctrines:
Respondent asserts that it should not be required to
seek variances from the regulations because its suit is
predicated upon 42 U.S.C. § 1983, and there is no
requirement that a plaintiff exhaust administrative
remedies before bringing a § 1983 action. Patsy v.
Florida Board of Regents, 457 U.S. 496, 102 S.Ct.
2557, 73 L.Ed.2d 172 (1982). The question whether
administrative remedies must be exhausted is
conceptually distinct, however, from the question
whether an administrative action must be final before it
is judicially reviewable.
...
While the policies underlying the two concepts often
overlap, the finality requirement is concerned with
whether the initial decisionmaker has arrived at a
definitive position on the issue that inflicts an actual,
concrete injury; the exhaustion requirement generally
refers to administrative and judicial procedures by
which an injured party may seek review of an adverse
decision and obtain a remedy if the decision is found to
be unlawful or otherwise inappropriate. Patsy
concerned the latter, not the former.
...
The Fifth Amendment does not proscribe the taking of
property; it proscribes taking without just

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compensation. ... If the government has provided an
adequate process for obtaining compensation, and if
resort to that process yields just compensation, then the
property owner has no claim against the Government
for a taking.
473 U.S. at 192–95, 105 S.Ct. 3108 (citations and
alterations omitted).
Thus, plaintiffs err in relying on the rule that failure to
exhaust state avenues for relief does not bar Section 1983
actions. Ripeness, not exhaustion, is the relevant inquiry,
and plaintiffs have not suffered a takings violation under
the Due Process Clause if they have not attempted to
secure compensation via state procedures. Thus, the Court
grants defendants’ motion to dismiss plaintiffs’ unjust
takings claim because the SAC does not allege a ripe
injury.

5. Equal Protection
As for the equal protection prong of plaintiffs’ Section
1983 claim, the SAC alleges that
defendants have deprived the plaintiffs of equal
protections under law by imposing the DRF (which is
unquestionably a penalty/fine for simply being issued a
ticket/citation), which groups innocent individuals
along with guilty individuals, whom are all imposed
with the same monetary penalty/fine.
...
Very simply, to charge the DRF penalty against
innocent individuals, when the court (here, the TPVA)
does not have sufficient evidence to make a guilty
finding is an explicit violation of the Equal Protections
Clause.
(SAC at ¶¶ 82, 84.)
The Fourteenth Amendment to the United States
Constitution provides that no state may “deny to any
person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. This language has
been interpreted to mean that, in legislation, “all persons
similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985). Where, as here,21 a
challenged law does not discriminate against a suspect
class or implicate a fundamental right, rational basis
scrutiny applies. See Hayden v. Paterson, 594 F.3d 150,
170 (2d Cir. 2010).

21

Plaintiffs concede that their equal protection claim does
not implicate a suspect class or a fundamental right.
(Pls.’ Opp’n Br. at 15.)

*22 This standard of review is “a paradigm of judicial
restraint.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); see also id.
at 313, 113 S.Ct. 2096 (“Whether embodied in the
Fourteenth Amendment or inferred from the Fifth, equal
protection is not a license for courts to judge the wisdom,
fairness, or logic of legislative choices.”). “In areas of
social and economic policy,” a statutory classification
must be upheld “if there is any reasonably conceivable
state of facts that could provide a rational basis for the
classification,” id. at 313, 113 S.Ct. 2096, and such a
statute is valid unless the “varying treatment of different
groups or persons is so unrelated to the achievement of
any combination of legitimate purposes that [a court] can
only conclude that the legislature’s actions were
irrational,” Hayden, 594 F.3d at 170 (quoting Vance v.
Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171
(1979)); see also Beach Commc’ns, 508 U.S. at 316, 113
S.Ct. 2096 (“Defining the class of persons subject to a
regulatory
requirement—much
like
classifying
governmental beneficiaries—inevitably requires that
some persons who have an almost equally strong claim to
favored treatment be placed on different sides of the line,
and the fact that the line might have been drawn
differently at some points is a matter for legislative, rather
than judicial, consideration.” (alterations and citation
omitted)); Greene v. Town of Blooming Grove, 879 F.2d
1061, 1063 (2d Cir. 1989) (holding that a statute
exercising general police power “will not be held
unconstitutional if its wisdom is at least fairly debatable
and it bears a rational relationship to a permissible state
objective”). “The party challenging such an ordinance
bears the heavy burden of negating every conceivable
rational and legitimate basis for the ordinance.” Casciani
v. Nesbitt, 392 Fed.Appx. 887, 889 (2d Cir. 2010) (citing
Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 75, 121 S.Ct.
2053, 150 L.Ed.2d 115 (2001)).
Plaintiffs have not carried their pleading onus in this case.
Although the SAC summarily alleges that the DRF’s
classification scheme is not “rational” (see, e.g., SAC at
¶¶ 63, 65), those threadbare, conclusory assertions are
insufficient under the legal standard set forth supra. See,
e.g., Seabrook v. City of New York, 509 F.Supp.2d 393,
402 (S.D.N.Y. 2007); Rheaume v. Pallito, No.
5:11-CV-72 (JC), 2012 WL 3394343, at *5 (D. Vt. July
13, 2012) (“Indeed, [the plaintiff’s] entire equal
protection claim, asserted amidst a string of other alleged
constitutional violations, is precisely the sort of

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‘threadbare recital’ that the Supreme Court has deemed
insufficient.” (citing Iqbal, 556 U.S. at 678, 129 S.Ct.
1937)), report and recommendation adopted, 2012 WL
3518535 (D. Vt. Aug. 14, 2012). Plaintiffs have not
alleged any facts from which a plausible claim could be
made that the DRF lacks “any reasonable conceivable”
purpose.22 Indeed, its acknowledged, ostensible
objective—to recoup administrative costs associated with
processing and adjudicating traffic violations (see SAC at
¶ 34)—would certainly be a prudent goal. See Guthart, 52
N.Y.S.3d at 824 (noting that the “legislative finding
supporting the [DRF] is stated in the amending ordinance
to be that ‘the current fee charged to motorists appearing
before TPVA whose cases have been adjudicated to a
final disposition other than not guilty is currently below
the actual cost of adjudicating those cases’ ”).
22

Plaintiffs cite Sacher v. Village of Old Brookville, 967
F.Supp.2d 663 (E.D.N.Y. 2013), in their opposition, but
that case is inapposite because it concerned a
“class-of-one” equal protection claim, and the relevant
touchstone was whether plaintiffs had sufficiently pled
disparate treatment. Id. at 670–72. Here, plaintiffs have
not met their burden of pleading facts that would
“negat[e] every conceivable rational and legitimate
basis for the [DRF].” Casciani, 392 Fed.Appx. at 889.

Insofar as plaintiffs allege that the DRF has an improper
ulterior motive—namely, to finance the County’s budget
deficits (see SAC at ¶¶ 34–38)—“defendants’ subjective
motivation in enacting the ordinance is irrelevant to the
question of whether the ordinance itself is constitutionally
valid.” Casciani v. Nesbitt, 659 F.Supp.2d 427, 437
(W.D.N.Y. 2009), aff’d, 392 Fed.Appx. 887 (2d Cir.
2010); see also Beach Commc’ns, 508 U.S. at 315, 113
S.Ct. 2096 (“Moreover, because we never require a
legislature to articulate its reasons for enacting a statute, it
is entirely irrelevant for constitutional purposes whether
the conceived reason for the challenged distinction
actually motivated the legislature.”).
*23 Finally, although plaintiffs argue that they are entitled
to discovery to demonstrate that the DRF lacks rationality
(see Pls.’ Opp’n at 17), “it is well settled that ‘the
Government has no obligation to produce evidence, or
empirical data to sustain the rationality of a statutory
classification.’ ” Jones v. Schneiderman, 888 F.Supp.2d
421, 428 (S.D.N.Y. 2012) (quoting Lewis v. Thompson,
252 F.3d 567, 582 (2d Cir. 2001). “In other words, a
legislative choice is not subject to courtroom fact-finding
and may be based on rational speculation unsupported by
evidence or empirical data.” Beach Commc’ns, 508 U.S.
at 315, 113 S.Ct. 2096. “To hold otherwise would be to
interpret the Fourteenth Amendment in a way that is

destructive to federalism and to the power of the
sovereign states to regulate their internal economic
affairs.” Sensational Smiles, LLC v. Mullen, 793 F.3d 281,
287 (2d Cir. 2015), cert. denied, ––– U.S. ––––, 136 S.Ct.
1160, 194 L.Ed.2d 174 (2016); see also id. (“Much of
what states do is to favor certain groups over others on
economic grounds. We call this politics.”). Thus, even
were plaintiffs to proceed to summary judgment on their
equal protection claim, they could not undermine the
DRF’s rationality through extrinsic evidence or
testimony.23 Put differently, if a reasonable purpose
appears on the face of the challenged law, then the
Court’s inquiry is at an end.
23

As a result, the legislative histories that plaintiffs
attached to and cited in their opposition (see ECF No.
29) are irrelevant. In any event, they are outside the
pleadings and are not materials that a Court may
consider on a motion to dismiss. See supra Part II.B.

In sum, because plaintiffs have not adequately alleged
that the DRF ordinance is irrational, the Court dismisses
the equal protection portion of their Section 1983 claim.24
See Casciani, 659 F.Supp.2d at 434; Immaculate Heart
Cent. Sch. v. N.Y. State Pub. High Sch. Athletic Ass’n, 797
F.Supp.2d 204, 211 (N.D.N.Y. 2011) (“When neither the
complaint nor the non-moving party’s opposition negate
‘any reasonably conceivable state of facts that could
provide a rational basis’ for the challenged classification,
a defendant’s motion to dismiss an equal protection claim
will be granted.” (citation omitted)).
24

In the event of dismissal, plaintiffs have requested
leave to amend their pleading to assert a “class-of-one”
equal protection claim. (See Pls.’ Opp’n at 16 n.21.)
Given that this a putative class action, it is unclear that
plaintiffs could successfully allege such a cause of
action. See Fortress Bible Church v. Feiner, 694 F.3d
208, 221 (2d Cir. 2012) (observing that “the Supreme
Court affirmed [has] the existence of a class-of-one
theory for equal protection claims, under which a single
individual can claim a violation of her Equal Protection
rights based on arbitrary disparate treatment” (emphasis
added) (citing Vill. of Willowbrook v. Olech, 528 U.S.
562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000))).
However, in an abundance of caution, the Court will
grant plaintiffs leave to amend to attempt to assert that
claim.

6. Double Jeopardy
Plaintiffs also assert a double jeopardy violation on the

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ground that “[b]y imposing the DRF upon individuals
after the charges/accusatory instrument against them have
been
dismissed,
the
TPVA
court
is
subjecting/jeopardizing individuals twice to the same
charges/assessment of penalties.” (SAC at ¶ 86.)
The Double Jeopardy Clause protects an individual’s right
not to be “subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V, cl. 2. It
prohibits both the second prosecution of a defendant for
the same offense after an acquittal or a conviction and the
imposition of multiple punishments for the same offense.
See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969), overruled on other
grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201,
104 L.Ed.2d 865 (1989). In Hudson v. United States, 522
U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), the
Supreme Court clarified that the “Clause protects only
against the imposition of multiple criminal punishments
for the same offense,” and it thus does not extend to civil
penalties. Id. at 99, 118 S.Ct. 488.
In United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135,
135 L.Ed.2d 549 (1996), the Supreme Court articulated a
two-part test to determine whether a sanction is criminal
or civil. First, a court must consider whether the
legislative “intent underlying the enactment of, or the end
served by” the law. Doe, 120 F.3d at 1273. “[I]f a
disability is imposed ‘not to punish, but to accomplish
some other legitimate governmental purpose,’ then it has
been considered ‘nonpenal.’ ” Id. (quoting Trop v. Dulles,
356 U.S. 86, 96, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)).
Second, if the law was not designed to be punitive in
nature, courts must then determine whether, despite this,
it is “so punitive either in purpose or effect” that it is
“transform[ed] into a criminal penalty ....” United States
v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 65 L.Ed.2d
742 (1980). “The Supreme Court has not spelled out the
precise nature of the second-stage inquiry,” Doe v. Pataki,
120 F.3d 1263, 1275 (2d Cir. 1997), and indeed has
determined it to be “a highly context specific matter,”
Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4
L.Ed.2d 1435 (1960). However, the Court has set forth a
list of considerations to guide the inquiry, including
*24 [w]hether the sanction involves
an affirmative disability or
restraint, whether it has historically
been regarded as a punishment,
whether it comes into play only on
a finding of scienter, whether its
operation
will
promote
the
traditional
aims
of
punishment—retribution
and

deterrence, whether the behavior to
which it applies is already a crime,
whether an alternative purpose to
which it may rationally be
connected is assignable for it, and
whether it appears excessive in
relation to the alternative purpose
assigned....
Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83
S.Ct. 554, 9 L.Ed.2d 644 (1963) (footnotes omitted). The
list is not exhaustive nor is any particular inquiry
dispositive. See United States v. Ward, 448 U.S. 242, 249,
100 S.Ct. 2636, 65 L.Ed.2d 742 (1980); Doe, 120 F.3d at
1275 (“Sometimes one factor will be considered nearly
dispositive of punitiveness ‘in fact,’ while sometimes
another factor will be crucial to a finding of
nonpunitiveness.” (citation omitted)). Moreover, the
Supreme Court has cautioned that “all civil penalties have
some deterrent effect,” and if a civil sanction was required
to be “ ‘solely’ remedial (i.e., entirely nondeterrent) ...
then no civil penalties are beyond the scope of the
[Double Jeopardy] Clause.” Hudson, 522 U.S. at 102, 118
S.Ct. 488.
The burden thus rests on the party challenging the law to
“show by ‘the clearest proof’ that the sanctions imposed
‘are so punitive in form and effect as to render them
criminal despite [the legislature’s] intent to the contrary.’
” Doe, 120 F.3d at 1274 (quoting Ursery, 518 U.S. at 290,
116 S.Ct. 2135). The Supreme Court has described this
burden as “heavy” and found punishments such as
involuntary civil confinement to be civil in nature. See
Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072,
138 L.Ed.2d 501 (1997). At the same time, the Court has
recognized that sanctions imposed in civil proceedings
may constitute punishment. See Dep’t of Revenue of
Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937,
128 L.Ed.2d 767 (1994); Hudson, 522 U.S. at 95, 118
S.Ct. 488.
Here, plaintiffs argue that they have carried their pleading
burden because the SAC alleges that the DRF is punitive.
(Pls.’ Opp’n Br. at 21–22; see, e.g., SAC at ¶ 45.)
However, as the court in Guthart noted, “[t]he legislative
finding supporting the [DRF] is stated in [Nassau County
Ordinance 190–2012] to be that ‘the current fee charged
to motorists appearing before TPVA whose cases have
been adjudicated to a final disposition other than not
guilty is currently below the actual cost of adjudicating
those cases.’ ” Guthart, 52 N.Y.S.3d at 824 (quoting
Nassau Cty. Ordinance § 190–2012). Thus, because the
Legislature evidently intended the DRF to be, at least in
part, remedial, plaintiffs have not met the first part of the

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Ursery test.25 See Hudson, 522 U.S. at 102, 118 S.Ct. 488.

so punitive that it is effectively penal in nature.26

25

26

As discussed further infra, for purposes of the
Excessive Fines Clause, a civil sanction may be both
remedial and punitive and still be subject to the Eighth
Amendment’s ambit. Thus, even if a law does not
implicate double jeopardy protections, it may still be
considered a “fine.” See Hudson, 522 U.S. at 103, 118
S.Ct. 488.

Further, plaintiffs have not alleged facts sufficient to state
a plausible claim that the DRF “ ‘[is] so punitive in form
and effect as to render [it] criminal ....’ ” Doe, 120 F.3d at
1274 (quoting Ursery, 518 U.S. at 290, 116 S.Ct. 2135).
Indeed, such a claim would not be plausible given the
weight of New York legal authority holding that penalties
for traffic infractions are civil and not criminal. See Dolce
v. Nassau Cty. Traffic & Parking Violations Agency, 7
N.Y.3d 492, 493–94, 497, 825 N.Y.S.2d 663, 859 N.E.2d
469 (2006) (“reviewing the language of the statute
authorizing the creation of the TPVA and its legislative
history” and noting that the TPVA’s purpose was to
enable “divestiture in City and District Courts statewide
of jurisdiction over non-criminal traffic violations and
parking violations” (citation omitted)); Krieger, 978
N.Y.S.2d at 598–99 (holding double jeopardy does not
apply to red-light ticket penalties because “the statutory
scheme demonstrates an unequivocal intent to create a
civil enforcement mechanism, not a criminal one,” and
“the limited $50 fine is not so severe as to transform the
intended civil penalty into a quasi-criminal one”); Cty. of
Nassau v. Levine, 29 Misc.3d 474, 907 N.Y.S.2d 563, 568
(Dist. Ct. Nassau Cty. 2010) (“As for movant’s claim that
his due process rights are violated because he will not be
able to cross-examine a live witness [at a hearing on a
red-light ticket], and assuming that claim be correct,
inasmuch as he faces neither criminal conviction nor
conviction for any provision of the Vehicle and Traffic
Law, his assertion is without merit.”); People v. Haishun,
238 A.D.2d 521, 656 N.Y.S.2d 660, 661 (App. Div. 2d
Dep’t 1997) (“Applying the Ursery two-prong test to the
instant case, we conclude, as have the Third and Fourth
Departments, that sentencing a defendant for driving
while intoxicated after the suspension of his or her
driver’s license pursuant to Vehicle and Traffic Law §
1193(2)(e)(7), does not violate double jeopardy
principles.” (citations omitted)).
*25 Accordingly, the Court dismisses plaintiffs’ double
jeopardy claim because they have not alleged facts
sufficient to plausibly state either that (1) the Legislature
intended the DRF to be a criminal sanction, or (2) the
DRF and the circumstances surrounding its imposition are

Therefore, the Court need not, and does not address,
defendants’ additional argument that the Double
Jeopardy Clause does not apply to this case because the
DRF is not imposed following a judgment of acquittal
or conviction. (See Defs.’ Br. at 17.)

7. Excessive Fines
Finally, the SAC alleges that the “DRF imposed by the
defendants is an excessive fine issued against those whose
only improper action is simply being issued a ticket,” and
that “[b]y charging a penalty after the charges/accusatory
instrument have been dismissed, defendants have violated
the Eighth Amendment’s prohibition upon excessive fines
in comparison to the accused actions.” (SAC at ¶¶ 90–91.)
The Eighth Amendment provides: “Excessive bail shall
not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. Const., Amend.
8. The Supreme Court has explained that “the word ‘fine’
... mean[s] a payment to a sovereign as punishment for
some offense.” Browning–Ferris Industries of Vt., Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909,
106 L.Ed.2d 219 (1989) (footnoted omitted). “The
Excessive Fines Clause thus ‘limits the government’s
power to extract payments, whether in cash or in kind, as
punishment for some offense.’ ” United States v.
Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028, 141
L.Ed.2d 314 (1998) (quoting Austin v. United States, 509
U.S. 602, 609–10, 113 S.Ct. 2801, 125 L.Ed.2d 488
(1993)).
The Second Circuit has established a “two-step inquiry
for determining whether a financial penalty is excessive
under the Eighth Amendment.” United States v. Viloski,
814 F.3d 104, 108 (2d Cir. 2016) (footnote omitted), cert.
denied, ––– U.S. ––––, 137 S.Ct. 1223, 197 L.Ed.2d 462
(2017). First, a court must “determine whether the
Excessive Fines Clause applies at all.” Id. at 109 (citing
Bajakajian, 524 U.S. at 334, 118 S.Ct. 2028). That
requirement is met if a forfeiture “may be characterized,
at least in part, as ‘punitive’—i.e., forfeitures for which a
defendant is personally liable.” Id. (citing Bajakajian, 524
U.S. at 327–28, 118 S.Ct. 2028). “In contrast, purely
‘remedial’ forfeitures—i.e., those in rem forfeitures
intended not to punish the defendant but to compensate
the Government for a loss or to restore property to its
rightful owner—fall outside the scope of the Excessive
Fines Clause.” Id. (citing Bajakajian, 524 U.S. at 329,
118 S.Ct. 2028; and Paroline v. United States, ––– U.S.

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––––, 134 S.Ct. 1710, 1726, 188 L.Ed.2d 714 (2014)
(“The primary goal of restitution is remedial or
compensatory, but it also serves punitive purposes. That
may be sufficient to bring it within the purview of the
Excessive Fines Clause.”)).
Second, a court must “determine whether the challenged
forfeiture is unconstitutionally excessive.” Id. at 109
(citing Bajakajian, 524 U.S. at 334, 118 S.Ct. 2028.) “A
forfeiture is unconstitutionally excessive ‘if it is grossly
disproportional to the gravity of a defendant’s offense.’ ”
Id. (quoting Bajakajian, 524 U.S. at 334, 118 S.Ct. 2028).
The Second Circuit has articulated a four-factor test
governing this inquiry:
(1) the essence of the crime of the
defendant and its relation to other
criminal activity, (2) whether the
defendant fits into the class of
persons for whom the statute was
principally designed, (3) the
maximum sentence and fine that
could have been imposed, and (4)
the nature of the harm caused by
the defendant’s conduct.
*26 Id. (quoting United States v. George, 779 F.3d 113,
122 (2d Cir. 2015)). Moreover, the Second Circuit has
said that “courts may consider—in addition to the four
factors ... previously derived from Bajakajian—whether
the forfeiture would deprive the defendant of his
livelihood, i.e., his ‘future ability to earn a living.’ ” Id. at
111 (citation omitted).
Here, defendants argue that the Court need not consider
whether the DRF is “unconstitutionally excessive”
because it is “not punitive in nature.” (Defs.’ Br. at 20.)
They assert that because the DRF is not imposed
following a “criminal or quasi-criminal proceeding from
which there was a finding of guilt or innocence” and is
assessed “to defer the administrative costs associated with
a ticket’s processing,” the Excessive Fines Clause does
not apply. (Id. at 19.)
However, in Austin, the Supreme Court held that because
the “purpose of the Eighth Amendment ... was to limit the
government’s power to punish,” the Excessive Fine
Clause may apply to civil forfeiture if that sanction “can
only be explained as serving in part to punish.” 509 U.S.
at 609–10, 113 S.Ct. 2801 (emphasis added) (citing
United States v. Halper, 490 U.S. 435, 447, 109 S.Ct.
1892, 104 L.Ed.2d 487 (1989) (“It is commonly
understood that civil proceedings may advance punitive
as well as remedial goals, and, conversely, that both

punitive and remedial goals may be served by criminal
penalties.”), abrogated on other grounds by Hudson, 522
U.S. 93, 118 S.Ct. 488). “Thus, the question is not ...
whether [the] forfeiture ... is civil or criminal, but rather
whether it is punishment.” Id. at 610, 113 S.Ct. 2801
(footnote omitted); see also Halper, 490 U.S. at 448, 109
S.Ct. 1892 (“[A] civil sanction that cannot fairly be said
solely to serve a remedial purpose, but rather can only be
explained as also serving either retributive or deterrent
purposes, is punishment, as we have come to understand
the term.”).
Accordingly, defendants are mistaken to contend that for
a sanction to be a “fine,” it must be the result of a
“criminal or quasi-criminal proceeding from which there
was a finding of guilt or innocence.”27 Following Austin
and Bajakajian, both federal and New York State courts
have found that administrative and other civil penalties
satisfy the first part of the test delineated above, even if
they bear no direct relationship to a criminal
prosecution.28 See, e.g., Korangy v. U.S. F.D.A., 498 F.3d
272, 277 (4th Cir. 2007) (assuming that Food and Drug
Administration “penalties [were] at least partially punitive
and thus subject to the Eighth Amendment,” but
“conclud[ing] that [the] penalties imposed [were not]
grossly disproportionate to the gravity of the offense”),
cert denied sub nom. Korangy Radiology Assocs., P.A. v.
Food & Drug Admin., 552 U.S. 1143, 128 S.Ct. 1110, 169
L.Ed.2d 811 (2008); Towers v. City of Chicago, 173 F.3d
619, 624 (7th Cir. 1999) (holding that “fines imposed by
the City under the ordinances at issue here [were] not
solely remedial” and therefore were subject to Eighth
Amendment), cert. denied, 528 U.S. 874, 120 S.Ct. 178,
145 L.Ed.2d 150 (1999); Sanders v. Szubin, 828
F.Supp.2d 542, 553 n.8 (E.D.N.Y. 2011) (observing that
defendants conceded that administrative sanctions
imposed by Office of Foreign Assets Control were “at
least in part, punitive and thus [ ] properly considered
within the ambit of the Eighth Amendment’s prohibition
of ‘excessive’ fines”); Prince v. City of New York, 108
A.D.3d 114, 966 N.Y.S.2d 16, 20 (App. Div. 1st Dep’t
2013) (in a case challenging a mandatory sanitation fine,
“reject[ing] the City’s contention that the Excessive Fines
Clause does not apply to the civil penalty at issue here”
because “[a]lthough Eighth Amendment claims often
arise in the criminal context, civil fines may also fall
within reach of the amendment,” and “[t]he relevant
inquiry is not whether the fine arises in the civil or
criminal context, but whether the fine constitutes
punishment” (collecting cases)). But see New York State
Fed’n of Taxi Drivers, Inc. v. City of New York, 270
F.Supp.2d 340, 343 (E.D.N.Y. 2003) (“Plaintiff cites no
authority for the proposition that administrative penalties
of the sort challenged here could be subject to the Eighth

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Amendment.”).
27

28

Prior to Austin, the Supreme Court held in Ingraham v.
Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711
(1977), a case concerning corporal punishment in
schools, that
Eighth Amendment scrutiny is appropriate only after
the State has complied with the constitutional
guarantees traditionally associated with criminal
prosecutions.... [T]he State does not acquire the
power to punish with which the Eighth Amendment
is concerned until after it has secured a formal
adjudication of guilt in accordance with due process
of law. Where the State seeks to impose punishment
without such an adjudication, the pertinent
constitutional guarantee is the Due Process Clause of
the Fourteenth Amendment.
Id. at 671 n.40; see also City of Revere v. Mass. Gen.
Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d
605 (1983) (holding that individual could not sue
hospital for failing to provide medical care after he was
shot because where there has “been no formal
adjudication of guilt ... the Eighth Amendment has no
application”).
However,
the
Supreme
Court
subsequently
distinguished that decision and its progeny on the
ground that it involved alleged cruel and unusual
punishment. See Browning–Ferris Indus., 492 U.S. at
263 n.3, 109 S.Ct. 2909 (“Ingraham, like most of our
Eighth Amendment cases, involved the Cruel and
Unusual Punishments Clause, and it therefore is not
directly controlling in this Excessive Fines Clause
case.”) Further, as set forth supra, Austin and related
case law make clear that a civil proceeding that does
not involve a formal adjudication of guilt may
nevertheless result in an excessive fine.

As noted supra note 25, in this way, the Excessive
Fines Clause has a more expansive reach than the
Double Jeopardy Clause, which is limited to criminal
sanctions and civil penalties that are so punitive as to
effectively be criminal in nature. See Ursery, 518 U.S.
at 286, 116 S.Ct. 2135 (“But Austin, it must be
remembered, did not involve the Double Jeopardy
Clause at all. Austin was decided solely under the
Excessive Fines Clause of the Eighth Amendment, a
constitutional provision which we never have
understood as parallel to, or even related to, the Double
Jeopardy Clause of the Fifth Amendment.”).

*27 Thus, to determine whether the DRF constitutes an
excessive fine, the appropriate standard is not whether it
stems from a criminal or pseudo-criminal proceeding, but
whether it is punishment. Although defendants argue that
the DRF has the legitimate remedial purpose of
“defer[ring] the administrative costs associated with a

ticket’s processing,” on a motion to dismiss, the Court
must assume the allegations in the SAC to be true, and
plaintiffs have adequately asserted that the DRF is, at
least in part, punishment imposed “against individuals for
simply being issued a ticket without any findings of fact,
nor proof of any actual violations,” and “irrespective of
whether or not they are actually guilty of any offense or
violation ....”29 (Id. at ¶¶ 32–34.)
29

Accordingly, defendants err in relying on Ford Motor
Credit Company v. New York City Police Department,
394 F.Supp.2d 600 (S.D.N.Y. 2005), because that
decision involved a motion for summary judgment, and
the court concluded based on the facts in the record that
a municipal fine was “plainly not punitive and therefore
not subject to Eighth Amendment analysis,” but instead
“remedial, as it is imposed to compensate the City for
administrative expenses incurred in the disposition of [
] vehicles.” Id. at 618, aff’d, 503 F.3d 186 (2d Cir.
2007). In contrast, this action is at the pleadings stage,
and defendants have adduced no facts demonstrating
that the DRF has a wholly non-punitive objective.

Accordingly, because plaintiffs have asserted that the
DRF has a punitive purpose, the Court finds that they
have stated a cause of action pursuant to the Excessive
Fines Clause. As noted, defendants do not argue that the
SAC fails to plausibly assert that the DRF is
“unconstitutionally excessive,” and plaintiffs do allege
that the DRF is disproportionate “in comparison to the
accused actions (i.e.—no charges pending, yet a penalty
still imposed).” (SAC at ¶ 91.) Thus, the Court does not
reach this second requirement.

***
In sum, with respect to defendants’ subject matter
jurisdiction arguments, the Court concludes that
Rooker–Feldman does not bar adjudication of this case
because plaintiffs are not state court losers and are not
seeking review of an adverse state judgment, but rather
assert a general constitutional challenge to the DRF. In
addition, the Court, in its discretion, declines to abstain
under either Younger or Pullman because there are no
pending state court proceedings involving plaintiffs in
which they could assert their Section 1983 claim, and
resolution of plaintiffs’ constitutional claims does not
depend on interpreting or applying unclear state law.
On the merits, the Court grants defendants’ 12(b)(6)
motion to dismiss (1) the bill of attainder claim because

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plaintiffs have not sufficiently alleged specificity; (2) the
procedural due process claim because plaintiffs have not
sufficiently alleged inadequate procedures connected to
deprivation of a substantial property interest; (3) the
substantive due process claim because plaintiffs have not
sufficiently alleged deprivation of a protected property
right; (4) the unjust takings claim because plaintiffs have
not sufficiently alleged a ripe injury; (5) the equal
protection claim because plaintiffs have not sufficiently
alleged that the DRF lacks a rational basis; and (6) the
double jeopardy claim because plaintiffs have not
sufficiently alleged that the DRF is a criminal sanction by
design or is so punitive as to effectively be a criminal
sanction.
However, the Court denies the motion to dismiss the
excessive fines claim under Section 1983 on the ground
raised by defendants—namely, that the DRF cannot be
punitive because it is not imposed following a criminal or
quasi-criminal proceeding and is assessed to defray
administrative costs. Because it was not raised by
defendants, the Court does not reach the second issue with
respect to the excessive fines claim—that is, whether a
$45 fine can be unconstitutionally excessive.
*28 Therefore, the Court grants defendants’ motion in
part and denies it in part, and, because one of plaintiffs’
federal claims survives, the Court will not dismiss the
pendant state law claims at this stage.30
30

The Court notes that plaintiffs’ brief focuses on the
unconstitutional application of the DRF as to tickets or
citations that the TPVA has dismissed with a
disposition of other than “not guilty.” However, the
SAC alleges claims on behalf of, inter alia, a proposed
“ultra vires class” that includes “[a]ll persons who paid
a [DRF] to the [TPVA] between January 1, 2008 and
the present.” (SAC at ¶ 93.) In other words, plaintiffs
also apparently challenge the constitutionality of the
DRF as to tickets or citations imposed against motorists
who received a “guilty” disposition and paid that fee.
The Court’s analysis in this Memorandum and Order
applies equally to all DRF assessments irrespective of a
ticket or citation’s final disposition. In fact, many of
plaintiffs’ Section 1983 claims, including the
procedural due process claim, do not apply to “guilty”
dispositions. In any event, the Court dismisses the
Section 1983 claims—except for the excessive fines
claim—as to all applications of the DRF.

note 24. Nevertheless, the Court has considered whether
plaintiffs should be granted leave to amend their other
Section 1983 claims. Rule 15(a)(2) of the Federal Rules
of Civil Procedure provides that a party shall be given
leave to amend “when justice so requires.” Fed. R. Civ. P.
15(a)(2). “Leave to amend should be freely granted, but
the district court has the discretion to deny leave if there
is a good reason for it, such as futility, bad faith, undue
delay, or undue prejudice to the opposing party.” Jin v.
Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002); see
Local 802, Assoc. Musicians of Greater N.Y. v. Parker
Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998) (finding
that leave to amend may be denied based upon the
“futility of amendment”). As to futility, “leave to amend
will be denied as futile only if the proposed new claim
cannot withstand a 12(b)(6) motion to dismiss for failure
to state a claim, i.e., if it appears beyond doubt that the
plaintiff can plead no set of facts that would entitle him to
relief.” Milanese v. Rust–Oleum Corp., 244 F.3d 104, 110
(2d Cir. 2001) (citing Ricciuti v. N.Y.C. Transit Auth., 941
F.2d 119, 123 (2d Cir. 1991)).
In light of the pleading deficiencies discussed above, it is
not clear to the Court that plaintiffs can plausibly state
any of the federal constitutional claims that the Court has
dismissed. However, in an abundance of caution, the
Court will grant plaintiffs leave to amend.

IV. CONCLUSION
For the foregoing reasons, the Court grants in part and
denies in part defendants’ motion to dismiss. With
plaintiffs’ consent, the Court dismisses defendant TPVA
and plaintiffs’ Article 78 claim (Count 20 of the SAC). In
addition, the Court dismisses plaintiffs’ bill of attainder,
procedural due process, substantive due process, unjust
takings, equal protection, and double jeopardy claims
under Section 1983 for failure to state a claim with leave
to amend. The Court denies defendants’ motion with
respect to the excessive fines claim. Any amended
complaint must be filed within thirty (30) days of this
Memorandum and Order.
*29 SO ORDERED.

All Citations
D. Leave to Amend
In the event of dismissal, plaintiffs have only requested
leave to amend their equal protection claim. See supra

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26

DuBois v. Macy’s Retail Holdings, Inc., Not Reported in F.Supp.2d (2012)
2012 WL 4060586

2012 WL 4060586
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Serge DuBOIS, Plaintiff,
v.
MACY’S RETAIL HOLDINGS, INC., Defendant.
No. 11–CV–4904 (NGG)(LB).
|
Sept. 13, 2012.
Attorneys and Law Firms
Serge Dubois, Brooklyn, NY, pro se.
Diane Krebs, Gordon & Rees LLP, New York, NY, for
Defendant.

is served. The R & R reiterates this requirement. (See R
& R at 20.) Judge Bloom filed the R & R on August 17,
2012, and the Clerk of Court mailed a copy to DuBois
later that day. (See Docket Entry # 35.) Under Rule
5(b)(2)(C) of the Federal Rules, service of a paper such
as a report and recommendation is complete when the
paper is mailed. Accordingly, DuBois had until end of
Friday, August 31, 2012, to file objections. The Clerk
of Court, however, noted on the public docket that
objections to the R & R would be due by Tuesday,
September 4, 2012. (See Docket Entry # 35.) DuBois
filed his objections on Wednesday, September 5, 2012,
and thereby missed both the true and the posted
deadline for filing objections. Because the objections
are untimely, it would be within the court’s discretion
to ignore them and to review the entire R & R for clear
error. See La Torres v. Walker, 216 F.Supp.2d 157, 159
(S.D.N.Y.2000): Gesualdi v. Mack Excavation &
Trailer Serv., Inc., No. 09–CV–2502 (KAM)(JO), 2010
WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010). But
DuBois is pro se and he has filed his objections within
one day of the posted deadline. Under these relatively
unusual circumstances, the court will, sua sponte, grant
DuBois a one-day extension of time to object to the R
& R nunc pro tunc.

MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
*1 Before the court is a motion filed by Defendant
Macy’s Retail Holdings, Inc. to dismiss Plaintiff Serge
DuBois’s complaint, and confirm an arbitral award
against DuBois. (See Docket Entry # 25.) The court
referred these motions to Magistrate Judge Lois Bloom
(see Docket Entry # 16), and Judge Bloom has
recommended that they be granted (see Report and
Recommendation (“R & R”) (Docket Entry # 35)). Judge
Bloom also construed a document attached to DuBois’s
complaint as a cross-motion to vacate the arbitral award,
and recommend that the cross-motion be denied. (See id.
at 6 & n. 6.) For the following reasons, R & R is
ADOPTED as modified below. The motion to dismiss is
GRANTED. The motion to confirm the arbitral award is
GRANTED. The cross-motion to vacate the arbitral
award is DENIED.
DuBois objects to the R & R.1 (See Objections (“Obj.”)
(Docket Entry # 36).)
1

DuBois’s objections are untimely, but the court will
nevertheless consider them. Rule 72(b)(2) of the
Federal Rules of Civil Procedure limits a party’s time
to object to a report and recommendation to fourteen
days from the day that the report and recommendation

The court reviews de novo those portions of the R & R to
which DuBois properly objects. See 28 U.S.C. §
636(b)(1). A proper objection is one that identifies the
specific portions of the report and recommendation that
the objector asserts are erroneous and provides a basis for
this assertion. See U.S. Flour Corp. v. Certified Bakery,
Inc., No. 10–CV–2522 (JS)(WDW), 2012 WL 728227, at
*2 (E.D.N.Y. Mar. 6, 2012). Conclusory or general
objections are insufficient to trigger de novo review. See
Pall Corp. v. Entergris, Inc., 249 F.R.D. 48, 51
(E.D.N.Y.2008); see also Mario v. P & C Food Markets,
Inc., 313 F.3d 758, 766 (2d Cir.2002) (holding that
plaintiff’s objection to a report and recommendation was
“not specific enough” to “constitute an adequate
objection”). Those portions of the R & R to which there is
no specific reasoned objection are reviewed for clear
error. See Pall Corp., 249 F.R.D. at 51. As with all pro se
submissions, the court construes DuBois’s objections
liberally. See Triestmann v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir.2006).
DuBois first objects to “Judge Bloom’s statement [ ] that
the plaintiff did not raise a claim for ‘color’ in the
arbitration proceeding or in the instant complaint.” (Obj.¶
1.) The issue of whether DuBois’s discrimination claims
were based in part on “color,” as opposed to being solely
based on race, sex, and national origin, is not related to
Judge Bloom’s recommendations and in no way affects

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1

DuBois v. Macy’s Retail Holdings, Inc., Not Reported in F.Supp.2d (2012)
2012 WL 4060586

the outcome of this case. The court therefore accepts,
arguendo, DuBois’s contention, and sustains this
objection. The R & R is MODIFIED to assume agruendo
that DuBois’s discrimination claims, here and at
arbitration, were based in part on “color.”
Next, DuBois objects to Judge Bloom’s construction of
his complaint and attached affidavit as solely a motion to
vacate the arbitral award pursuant to 9 U.S.C. § 10. (See
Obj. ¶ 2.) According to DuBois, the affidavit
accompanying his complaint should also be construed as
motion under 9 U.S.C. § 11 to modify the award. (See id.)
DuBois’s affidavit is not styled as motion of any sort.
Judge Bloom treated it as a motion to vacate only because
pro se submissions are afforded a special liberal
construction by the court. (See R & R at 6.) The court has
reviewed the affidavit and it does not set forth any
grounds to modify the arbitral award. (See Aff. of Serge
DuBois (Docket Entry # 1).) Its thrust is that the arbitrator
was unfair and biased, arguments that go to vacatur not
modification. Compare 9 U.S.C. § 10 with id. § 11. The
objection is overruled.
*2 DuBois’s third objection is to Judge Bloom’s
characterization of his arguments for vacating the arbitral
award. (See Obj. ¶ 3) Judge Bloom construed DuBois’s
allegations as focused on 9 U.S.C. § 10(a)(1), (2) and (3).
(See R & R at 8.) DuBois now claims that he also raised
arguments related to the other ground for vacatur under §
10(a)—that “the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted to them
was not made.” See 9 U.S.C. § 10(a)(4). An “inquiry
under § 10(a)(4) ... focuses on whether the arbitrators had
the power, based on the parties’ submissions or the
arbitration agreement, to reach a certain issue, not
whether the arbitrators correctly decided that issue.”
DiRussa v. Dean Witter Reynolds, Inc., 121 F.3d 818, 824
(2d Cir.1997). The court has reviewed DuBois’s
submissions in this case and cannot discern any argument
challenging the arbitrator’s authority to issue an award on
DuBois’s discrimination claims.2 The objection is
overruled.
2

With respect to this objection, DuBois refers also to the
transcript of the arbitration itself. (See Obj. ¶ 3.) The
court has reviewed this portion of the transcript, and
there is nothing there to indicate that DuBois
questioned the arbitrator’s authority or jurisdiction.
(See Arb. Tr. (Docket Entry # 30–5) at 52–60.)

Fourth, DuBois objects to “Judge Bloom’s statement that
the plaintiff was given every opportunity to present his

testimony, documentary evidence and witnesses, both
during and after the arbitration.” (Obj.¶ 4.) In support of
this objection he cites his affidavit (which was construed
as a motion to vacate, see supra ), two letters he wrote
after the arbitration to the American Arbitration
Association, and an affidavit from his wife. (See Obj. ¶ 4
(citing Aff. of Serge DuBois; Aff. of Linda DuBois
(Docket Entry # 30–1); Ltr. of July 28, 2011 (Docket
Entry # 30–2); Ltr. of Sept. 26 (Docket Entry # 30–2)).)
Even if these self-serving documents are read liberally to
allege that DuBois was not allowed to present evidence,
such an argument is utterly belied by the record. The
arbitrator included the following passage in his written
award:
The right to call witnesses and
issue
subpoenas
was
fully
explained to Claimant [DuBois].
He repeatedly stated that he chose
not to call any witnesses. Claimant
was also given the opportunity to
give direct testimony at the hearing,
but he declined to do so. Instead, he
insisted that the Amended Claim
and other documents he had
previously submitted told his entire
story. It was explained to him that
live supplemental testimony would
aid his case, but he declined. As a
result, I accepted Claimant’s
written submissions as his direct
testimony.
Claimant’s
case
consisted of his arguments at the
hearing,
his
testimony
on
cross-examination,
his
documentary exhibits and his
cross-examination of Respondent’s
witnesses. He did not call any
witnesses to corroborate his claims,
despite having identified potential
witnesses during the pre-hearing
conferences and at the hearing
itself.
(Arb. Award (Docket Entry # 1) ¶¶ 7–9 (citing Arb. Tr.
(Docket Entry30–4) at 6–9, 15–18, and 33–37).) The
court has reviewed the arbitration’s transcript, and it more
than confirms the arbitrator’s description of the
proceedings. The arbitrator veritably implored DuBois to
present evidence and testify during, and even after, the
arbitration, but DuBois always refused. (See, e.g., Arb. Tr.
(Docket Entry30–4, 30–5, 30–6) at 6–9, 13–18, 31–37,
119–21.) DuBois indeed had “every opportunity” to fully
present his case. The objection is overruled.

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DuBois v. Macy’s Retail Holdings, Inc., Not Reported in F.Supp.2d (2012)
2012 WL 4060586
4

*3 Fifth, DuBois objects to the section of the R & R that
addresses 9 U.S.C. § 10(a)(3) (see Obj. ¶ 5.), but he does
so solely in a conclusory fashion.3 The objection is
overruled.
3

Judge Bloom determined that DuBois had failed to
show that the arbitration was fundamentally unfair, as
is required to obtain vacatur under § 10(a)(3). (See R &
R at 12–14.) In his Objections, DuBois maintains that:
“there is plenty of evidences [sic] demonstrating that
the plaintiff was unfairly prejudiced during and after
the arbitration process and that fundamental fairness
was strongly violated”; “there is no ground for the
arbitrator’s decision to be inferred from the facts of the
case”; and “the entire arbitration hearing is fraudulent.”
(Id.) DuBois makes no factual allegations to support
these assertions.

DuBois’s sixth objection is to Judge Bloom’s refusal to
consider certain materials that DuBois attached to his
affidavit in opposition to the motion to dismiss. (Obj.¶ 6.)
It appears that DuBois is referring to an affidavit by his
wife, Linda DuBois, an affidavit by one Beneze
Duvenerne (Docket Entry # 30–2), and a list of
“additional claims for expenses and damages” (Docket
Entry # 30–3). (See R & R at 16 n. 15.) As these
documents were submitted after DuBois filed his
complaint, Judge Bloom correctly ruled that they cannot
be considered in connection with his opposition to the
motion to dismiss. See Fed.R.Civ.P. 12(d). Giving these
documents an extremely liberal reading, however, the
court concludes that Linda DuBois’s affidavit relates to
DuBois’s court-construed motion to vacate. Accordingly,
the court considers this affidavit as a supplement to the
motion to vacate, and it determines that the affidavit does
not affect Judge Bloom’s analysis of vacatur motion in
any way. The objection is sustained as to the affidavit of
Linda DuBois and overruled as to the other documents
described in this objection. The R & R is MODIFIED to
reflect the fact that the court has considered Linda
DuBois’s affidavit in connection with its review of Judge
Bloom’s recommendation that the motion to vacate be
denied.
Seventh, DuBois objects to Judge Bloom’s conclusion
that his city-law discrimination claims must be dismissed
pursuant to the election of remedies provision contained
in the New York City Human Rights Law (“NYCHRL”).
(See Obj. ¶ 7.) His principal argument is that his claims
should survive because the clerk’s office told him that his
complaint was properly filed.4 (Id.)

DuBois also appears to argue that his city-law
discrimination claims are cognizable because they may
have been included in a prior complaint that was
dismissed without prejudice. (See Obj. ¶ 7 .) But the
court did not address any of DuBois’s claims in his
prior case; it merely granted a motion to compel
arbitration and dismissed the complaint accordingly.
See DuBois v. Macy’s East Inc., No. 06–CV–6522
(NGG)(LB), 2007 U.S. Dist. LEXIS 87039, at *1, *4,
2007 WL 4224781 (E.D.N.Y. Nov. 26, 2007).

While it is not clear that an objection solely supported by
frivolous arguments such as these is sufficient to avoid
clear error review, cf. Pall Corp., 249 F.R.D. at 51
(conclusory objections do not trigger de novo review), the
court—out of an abundance of caution—will nevertheless
review this portion of the R & R de novo.
To begin with, all of DuBois’s claims are barred by the
doctrine of res judicata, see infra, and so his argument
regarding Judge Bloom’s alternative ruling is beside the
point. That said, his city-law claims must also be
dismissed because DuBois pursued them administratively
before he filed suit against Macy’s. Subject to several
exceptions not implicated in this case, the NYCHRL
requires claimants to choose between pursuing judicial or
administrative remedies for their city-law-based
discrimination claims. See N.Y .C. Admin. Code §
8–502(a). Where a claimant files charges with a city or
state agency, he generally cannot reassert those claims in
a court of law. Id. DuBois brought his city-law claims
before New York City Commission of Human Rights in
2005. (See CCHR Det. & Order of Dec. 7, 2005 (Docket
Entry # 26–2).) He may not pursue them again here. The
objection is overruled.
*4 DuBois’s eighth objection concerns Judge Bloom’s
statement that “a final judgment on the merits of an action
precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.”
(Obj.¶ 8.) Liberally construed, it appears that DuBois
objects to Judge Bloom’s conclusion that all of DuBois
claims’s are barred by the doctrine of res judicata.
Here, again, DuBois’s arguments are so weak as to raise a
real question about whether de novo review is merited,
but, again, the court will give DuBois the benefit of the
doubt and review this portion of the R & R de novo.5
5

DuBois argues that res judicata should not apply
because a previous action between these parties was
dismissed without prejudice, and because his claims are
meritorious. (See Obj. ¶ 8) The latter argument does not
go to the issue of res judicata, and the former argument

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3

DuBois v. Macy’s Retail Holdings, Inc., Not Reported in F.Supp.2d (2012)
2012 WL 4060586
evinces a misunderstanding of the R & R. As Judge
Bloom made clear, it is the arbitral award, not the
dismissal of DuBois’s prior complaint, that operates as
res judicata in this case. (See R & R at 18.)

An arbitral award can have just as much of a preclusive
effect in federal court as can a judgment in a lawsuit. See
Pike v. Freeman, 266 F.3d 78, 90–91 (2d Cir.2001). The
law is unclear as to whether a federal court should rely on
state or federal law when it determines an arbitral award’s
preclusive effect, see id. at 90 n. 14, but, for the purposes
of this case, this does not matter because federal and New
York are sufficiently similar, see id. Thus, the arbitral
award is entitled to preclusive effect here if it: (1)
involved an adjudication on the merits; (2) involved the
same parties or their privies; (3) decided or could have
decided the same claims at issue here. See id. at 91 (citing
federal law). These elements are all easily met in this case
(compare Arb. Award with Compl. (Docket Entry # 1)),
and so all of DuBois claims must be dismissed.6 The
objection is overruled.
6

The court may dismiss a complaint under Rule 12(b)(6)
based on an affirmative defense that appears on the face
of the complaint. Jones v. Block, 549 U.S. 199, 215,
127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Here, DuBois
attached a copy of the arbitral award to his complaint,
and thereby incorporated it into his pleadings.

Ninth, DuBois purports to object to the entire R & R
because Judge Bloom “should at least consider the
inappropriate [sic] prejudiced bias and unfairness [sic]
manner that [the arbitrator] behaved, conducted and
decided the award, which included fraud, violation of
fundamental fairness, partiality, and corruption.” (Obj. at
9.) Even liberally construed as an attack limited to the
part of R & R that addresses DuBois’s motion to vacate,
this objection is extremely general. It is also almost
entirely conclusory.7 (Id.) The court therefore concludes
that this objection is insufficient to merit de novo review
of any portion of the R & R. The objection is overruled.
7

Read liberally, Dubois makes one allegation related to
his otherwise conclusory assertion of partiality: that the
arbitrator failed to sanction Macy’s when it “exhibited
additional fraudulent documents during the [arbitral]
hearing, [and] failed to exhibit several other documents
to the hearing.” (Obj.¶ 9.) The remainder of his
arguments in connection with this objection, however,
do not relate to fraud or arbitral misconduct. He attacks
Judge Bloom for failing to consider his wife’s affidavit;
reminds the court that he alleged fraud in his

court-construed motion to vacate; and complains that
he never received a certain check, the relevance of
which the court is unable to discern from the objections
or the R & R. (See id.)
The arbitrator’s failure to sanction Macy’s does not
constitute partiality or corruption for the purposes of
§ 10(a)(2). “In this Circuit, evident partiality within
the meaning of 9 U.S.C. § 10 will be found where a
reasonable person would have to conclude that an
arbitrator was partial to the arbitration.”
Scandinavian Reinsurance Co. v. St. Paul Fire &
Marine Ins. Co., 668 F.3d 60, 73 (2d Cir.2012).
Here, no reasonable person could conclude that the
arbitrator’s failure to sanction Macy’s exhibited bias.
The arbitrator found that the documents in question
were authentic (see Arb. Award ¶ 10), and there was
no evidence besides DuBois’s self-serving testimony
on which he could have found otherwise.

Tenth, DuBois again purports to object to the entire R &
R, this time on the grounds that Judge Bloom did not
overturn the arbitral award on its merits. (Obj.¶ 10.) The
court does not have the authority to review the merits an
otherwise properly entered arbitral award. Cf. 9 U.S.C. §§
10 and 11 (providing grounds for vacatur and
modification of arbitral awards). The objection is
overruled.
DuBois’s eleventh objection is to Judge Bloom’s
determination that DuBois had failed to show that the
arbitrator was biased against him. (Obj.¶ 11.) According
to DuBois, “the nature of the entire arbitration hearing
and the unfair outcome of the award establish strong
evidence of bias, fraud, corruption, undue means,
misconduct, misbehavior and excessive power, and the
plaintiff has established everything that the court requires
to vacate an arbitration award.” (Id.) This objection is
utterly conclusory. The objection is overruled.
*5 Finally, for his twelfth objection, DuBois delivers a
purely merits-based defense of his claims. (Obj.¶ 12.) The
court has already determined that DuBois’s claims must
be dismissed because they are barred by the doctrine of
res judicata. Their underlying merit is therefore irrelevant.
The objection is overruled.
The court has reviewed the remainder of the R & R for
clear error and finds none.
The court accordingly ADOPTS the R & R as modified
above. The motion to dismiss is GRANTED. The motion
to confirm the arbitral award is GRANTED. The
cross-motion to vacate the arbitral award is DENIED. The
Clerk of Court is respectfully directed to close the case.

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4

DuBois v. Macy’s Retail Holdings, Inc., Not Reported in F.Supp.2d (2012)
2012 WL 4060586

SO ORDERED.

Not Reported in F.Supp.2d, 2012 WL 4060586

All Citations
End of Document

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5

Novie v. Village of Montebello, Not Reported in F.Supp.2d (2012)
2012 WL 3542222

2012 WL 3542222
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Brian NOVIE and Marina Novie, Plaintiffs,
v.
VILLAGE OF MONTEBELLO, its Board of
Trustees, its Planning Board, and its Engineer,
Attorney(s), and Building Inspector, Defendants.
No. 10–CV–9436 (CS).
|
Aug. 16, 2012.
Attorneys and Law Firms
Michael D. Diederich, Jr., Brigitte M. Gulliver, Law
Office of Michael Diederich, Jr., Stony Point, NY, for
Plaintiffs.
Mary E. Brady Marzolla, Feerick Lynch MacCartney,
PLLC, South Nyack, NY, for Defendants.

OPINION AND ORDER
SEIBEL, District Judge.
*1 Before this Court are Plaintiffs’ Motion for Leave to
file a Second Amended Complaint pursuant to Federal
Rule of Civil Procedure 15(a)(2), (Docs.39, 48–50), and
Defendants’ Motion to Dismiss the Amended Complaint
pursuant to Rules 12(b)(1) and 12(b)(6), (Doc. 16). For
the following reasons, Plaintiffs’ Motion is GRANTED
IN PART and DENIED IN PART, and Defendants’
Motion is GRANTED.

I. Background
A. Factual Background
For the purposes of the present Motions, the Court accepts
as true the facts (but not the conclusions) as stated in
Plaintiffs’ Amended Complaint (“AC”), (Doc. 11), and
Plaintiffs’ proposed Second Amended Complaint
(“SAC”), (Doc. 49).1

1

Except where noted, the factual allegations set forth in
the AC and the SAC are the same; I cite to the SAC
only for the sake of simplicity.

1. Plaintiffs’ Property
Plaintiffs, a married couple, and their twins, born in 2008,
are residents of the Village of Montebello (the “Village”),
Town of Ramapo. (SAC ¶¶ 1, 11, 13.) In 2004,2 Plaintiffs
purchased a piece of property (the “Property”) in the
Village that is approximately 40,000 square feet in size
and has a single-family house on it. (Id. ¶¶ 11, 14, 16, 19.)
The house was built in 1972, and Plaintiffs believe that at
that time, the rear portion of the Property consisted of a
backyard lawn without trees. (Id. ¶ 22.) Over the course
of the next several decades, ash and elm trees grew in the
backyard, “eventually becoming mature trees which, as a
result of Dutch Elm Disease and other diseases and
blights, became sick and dying in recent years.” (Id. ¶ 23.)
By 2009, “virtually all the trees in Plaintiffs’ back yard
were crowded together, spindly, and dead, dying,
vine-covered or otherwise in poor health.” (Id. ¶ 24.)
Plaintiffs believe that this “ ‘untamed’ rear yard” has
created problems such as “unmanageable undergrowth
and brush, and with this the obvious likelihood of animal
intruders including snakes[,] ... black widow spiders,
skunks, raccoons, rodents, bats and deer, and with the
mammals, the possibility of rabies and the increasing
threat of deer ticks carrying Lyme Disease.” (Id. ¶ 26.)
2

Plaintiffs’ SAC is inconsistent as to whether they
purchased the property in 2003, (see SAC 1), or 2004,
(see SAC ¶ 11).

2. The Village Tree Preservation Law
This case concerns provisions of the Village’s Tree
Preservation and Landscape Maintenance Law (Chapter
176 of the Village Code) (the “Tree Law”).3 The relevant
portions of the law are reproduced below:
3

General Code of the Village of Montebello, New York,
Ch.
176,
available
at
http://www.ecode360.com/8769464.

§ 176–6. Tree removal; permit; Planning Board
review; licensing of contractors; fees.
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1

Novie v. Village of Montebello, Not Reported in F.Supp.2d (2012)
2012 WL 3542222

A. Prohibited activities. Except as permitted
herein, no person shall do or cause to be done by
others, either purposely, carelessly, or negligently,
any of the following acts upon privately owned
property within the Village of Montebello:
(1) Cut, destroy, remove, or substantially injure any
tree except as may be permitted in Subsection B,
permitted activities, below,
(2) Place or maintain upon the ground any substance
or impervious surface which would impede the free
access of air and water to the roots of any tree.
*2 (3) Apply any substance to any part of a tree,
including the roots, with the intent to injure or
destroy the tree.
B. Permitted activities. Notwithstanding the
restrictions above, the following activities shall be
permitted:
(1) The cutting, pruning, or trimming of trees in a
manner that is not harmful to the health of the tree.
(2) The cutting, destruction or removal of trees
which are dead or imminently dead or which
endanger public safety and pose imminent peril, such
condition confirmed by the Village Engineer, or his
or her designee as chosen by the Village Board of
Trustees, with the assistance of an arborist if the
Village Engineer or designee believes same
necessary to facilitate making an informed decision
in the circumstances, in the form of a permit issued
after application and after payment of a permit fee
set by said Board by resolution, and prior to cutting
or removal. Application for this permit shall include
a map of the property identifying the location of said
tree or trees and supporting evidence (e.g.,
photographs, report of an arborist) indicating the
reason for removal. Any person who cuts, destroys
or removes trees for said purpose without first
obtaining a permit because he or she believed that
public safety was endangered or an imminent peril
posed shall submit a written application to the
Planning Board made within five days after the
cutting, destruction or removal of trees has occurred,
except that the period is extended to 20 days if the
removal occurs due to an extreme weather condition,
such as a hurricane, which is known to have
damaged a significant number of trees in the Village.
In the case of removal without a permit, independent
proof (such as a photograph, police report or
arborist’s certification) is required in accordance
with § 176–6D, Exceptions, in order to obtain

approval from the Planning Board excepting said
person from the regulations contained herein. The
Planning Board may also request the Village
Engineer, Village Planner or other Village consultant
to assist in evaluating such applications. The fees
charged to the Village by all such consultants shall
be paid by the applicant. Removal of trees for
nonimminent perils shall be governed by §
176–6B(4).
(3) Upon receipt of a permit after application to the
Village Engineer or other designee of the Village
Board and payment of a permit fee set by said Board
by resolution, the cutting or removal of not more
than one tree per 10,000 square feet of lot area
during any two-year period but, irrespective of lot
area, in no event removal of more than eight trees
per lot in any two-year period, or 12 trees in any
six-year period, unless said removal is in accordance
with a site or subdivision plan duly approved by the
Planning Board. [See Subsection B(6), below.] In the
latter case, trees shall have been identified on said
plans, and no additional trees shall be cut without
approval of the Planning Board. For the purpose of
this provision, “year” shall be construed to be the
calendar year.
*3 ...
C. Excluded activities. The provisions of this
chapter shall not apply to activities involving trees
within the public rights-of-way or publicly owned
properties.
D. Exceptions. Upon written application to the
Planning Board, and after payment of a permit fee
set by the Board of Trustees by resolution, the
Planning Board may, by resolution, grant an
exception from any of the requirements of this
chapter. The decision by the Planning Board shall
be made within 30 days of receipt of the request or
at the next regularly scheduled Planning Board
meeting if not within 30 days. The Planning Board
may grant such exceptions from the requirements
of this chapter as may be reasonable and within
the purposes and intent of this chapter if the
enforcement of one or more of the provisions is
impractical or will exact undue hardship because
of peculiar conditions pertaining to the property in
question but, in so granting, may require that a
compensatory planting or compensatory payment
be made. The Planning Board may also request the
Village Engineer, Village Planner or other Village
consultant to assist in evaluating such
applications. The fees charged to the Village by all

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2

Novie v. Village of Montebello, Not Reported in F.Supp.2d (2012)
2012 WL 3542222

such consultants shall be paid by the applicant.

adjacent properties.

E. Planning Board review standards and fees.
Where an application is submitted to the Planning
Board to remove tree(s), said permit may be
granted only for the following reasons and under
the following conditions:

(b) Such certification does not represent relief
from the independent requirement that a
compensatory planting be made elsewhere on the
property or a compensatory payment be made to
the Tree Fund, as directed by the Planning Board,
to the extent removal exceeds the number of trees
which may be removed as of right for the subject
lot per Subsection B(3). The Planning Board may
also request the Village Engineer, Village Planner
or other Village consultant to assist in evaluating
such applications. The fees charged to the Village
by all such consultants shall be paid by the
applicant.

(1) Where the location of an existing tree or trees
provides no alternative but to place a proposed
structure outside the permitted building setbacks, and
only if a said tree or trees to be removed are replaced
on the property as a compensatory planting, or a
compensatory payment is made to the Tree Fund, as
directed by the Planning Board, to the extent
removal exceeds the number of trees which may be
removed as of right for the subject lot per Subsection
B(3).
...
(4) Nonimminent peril.
(a) At the discretion of the Planning Board, and
upon the express written finding of an arborist
having ISA certification or having other
comparable credentials acceptable to the Planning
Board or other expert opinion acceptable to the
Planning Board, that the proposed removal will
alleviate a nonimminent peril to public safety or
will likely not result in or cause, increase or
aggravate any of the following conditions:
[1] Impaired growth or development of the
remaining trees or shrubs on the property of the
applicant or upon adjacent property;
[2] Soil erosion sediment or dust, drainage or
sewerage problems or any other reasonably
foreseeable dangerous or hazardous condition;
[3] Have a significant adverse impact upon
existing biological and ecological systems;
[4] Significantly affect noise pollution by
increasing noise levels to such a degree that a
public nuisance may be anticipated or by
significantly reducing the noise-dampening effect
of vegetation near sensitive noise receptors;
*4 [5] Significantly affect wildlife habitat
available for wildlife existence and reproduction
by causing emigration of wildlife to adjacent or
associated ecosystems; or
[6] Significantly denude a visible buffer between

(5) The fees for an application to the Planning Board
for tree removal shall be $250 or other such fee as
set from time to time by resolution of the Village
Board. The Planning Board may also request the
Village Engineer, Village Planner or other Village
consultant to assist in evaluating such applications.
The fees charged to the Village by all such
consultants shall be paid by the applicant.
....
§ 176–7. Penalties for offenses.
A. The Village Engineer or other designee of the
Village Board shall determine compliance with
this chapter, and any person violating any of the
terms or provisions of this chapter or refusing to
comply with the rules and regulations of this
chapter shall, upon conviction, be subject to a fine
not exceeding $250 for each offense. Each tree
that is cut or damaged without appropriate
approval from a Village agency shall constitute a
single offense, up to a maximum penalty of
$10,000 per lot.
...
C. In addition to being subject to prosecution and
fining, any person having violated this chapter
shall also be referred to the Planning Board for the
purpose of developing a tree remediation plan,
showing the existing and proposed landscaping
conditions on the premises in question, and which
shall be designed to mitigate the effects of the
offense, which shall be known as the
“compensatory planting plan” or, if the Planning
Board approves in lieu thereof, the making of a
compensatory payment to the Tree Fund (See
Subsection D below.) The Planning Board may

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also require such remedial or protective measures
to be undertaken as may be necessary to protect
the balance of the original landscaping, such as,
but not limited to, the use of snow fencing, chain
link fencing, or other protective measures. The
Planning Board may also request the Village
Engineer, Village Planner or other Village
consultant to assist in evaluating the violation and
recommending a remediation. The fees charged to
the Village by such consultants shall be paid by
the violator.
D. In addition to any penalty, the violator will be
required to effectuate a compensatory planting by
replacing in kind each and every tree removed, cut
down or destroyed in violation of this chapter. If a
tree was so large and mature that it cannot be
replaced, the Planning Board may require the
planting of multiple trees instead, based oh the
sole determination of the Planning Board of the
number, species and size of trees necessary to
meet the objectives of this chapter. In the
alternative, in appropriate circumstances where the
planting of additional trees is impractical in the
judgment of the Planning Board, it may accept
compensatory payment to the Tree Fund in lieu of
planting as it may direct or as it may approve upon
the request of the violator. No certificate of
occupancy shall be issued for new construction on
the property on which occurred any violation of
this chapter unless and until the provisions of this
subsection have been complied with.
*5 E. Where a tree of any size that is removed, cut
down or destroyed is in a conservation easement
or conservation area designated on a plan
approved by the Planning Board, fines may be
doubled.
F. Whenever the Village Engineer or designee as
determined by the Village Board shall determine
that any activity is being conducted in violation of
this chapter, then the Village Engineer shall
request that the Building Inspector notify the
owner of the property, the owner’s agent, or the
person performing the work to suspend and halt
work. Such direction by the Building Inspector (a
stop-work order) shall be in writing and delivered
to the owner, the owner’s agent, or the person
performing the work or affixed to the site. Such
stop-work order shall state the reasons therefor
and the conditions under which the work may be
resumed.
...

3. The 2009 Cutting
In the spring of 2009, Plaintiffs, “without realizing that
there existed a Village regulation pertaining to the cutting
of trees,” cut down three dead trees and three dying trees
on their Property (the “2009 Cutting”). (SAC ¶ 28.) The
Village brought charges against Mr. Novie for violation
of the Tree Law in connection with the 2009 Cutting. (See
Marzolla Aff. Ex. D.)4 On or around February 26, 2010,
Mr. Novie and the Village entered into a Civil
Compromise Agreement, whereby Mr. Novie agreed to
pay the Village $250 and “follow proper procedures with
regard to any improvements/tree removal ... concerning
[his] property,” and the Village agreed to dismiss the
charges against Mr. Novie. (Id.; see SAC ¶ 31.)
4

“Marzolla Aff.” refers to Attorney Affidavit [of Mary
E. Brady Marzolla]. (Doc. 17.)

4. The 2010 Cutting
In 2010, Plaintiffs applied for a permit to cut fifteen dead
or dying ash and elm trees and three healthy trees. (SAC
¶¶ 32, 50; Marzolla Aff. Ex. E, at 1 (Plaintiffs’ Tree
Removal Permit Application, received by Village July 17,
2010, seeking permission for removal of fifteen dead ash
and elm trees and three healthy trees, two of which were
oak trees).) Plaintiffs state that they “received the permit
back ‘approved,’ yet with ambiguous handwriting,” (SAC
¶ 33), and maintain that “the Village Engineer did not
expressly ‘deny’ any portion of Plaintiffs’ application to
remove fifteen dead trees,”5 (id. ¶ 53). In August 2010,
Plaintiffs had a contractor cut dead or dying trees (the
“2010 Cutting”). (Id. ¶¶ 34, 54.) Plaintiffs allege that after
the contractor began work, “a ‘consulting engineer’ of the
Village suddenly appeared, intruded onto Plaintiffs’
property without permission, ... and instructed Plaintiff[s’]
contractor to cease work.” (Id. ¶ 36.) Shortly thereafter,
the Village filed a summons and complaint in the Ramapo
Justice Court accusing Mr. Novie6 of violating the Tree
Law7 by cutting three more trees than had been permitted.
(Id. ¶¶ 37, 57.) Defendants also allegedly “coerced
Plaintiffs into paying $250 to the Village Planning
Board,” “[n]otwithstanding that the only trees cut on
Plaintiffs’ property in 2010 were either dead or dying,”
and “invoiced Plaintiffs for approximately $2,000 in
alleged contractor services.”8 (Id. ¶¶ 55–56.) Plaintiffs
further allege that if they are found to have violated the
Tree Law, the Village will be “allow[ed] ... to place
demands upon [them] which could exceed tens of
thousands of dollars.” (Id. ¶ 42.)

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5

6

It is not clear what Plaintiffs find “ambiguous” about
the handwriting on the approved permit application.
The handwriting states:
-Lot size: 37,461 S.F.
-(3) trees may be removed as of right, 176–6B(3)
-Total of (14) trees marked for removal
-(1) tree is located in 20′ san. sewer easement (not
allowed).
-(*)-Inspection revealed: (8) trees may be removed
per 176–6B(2), dead or imminently dead. Also, (3)
trees may be removed as of right for a total of (11)
trees allowed for removal.
(Marzolla Aff. Ex. E, at 3.) In fact, Plaintiffs’
assertion that the handwriting was “ambiguous”
appears to be disingenuous, given that Plaintiffs’
Brief on Appeal in a separate state action before the
Supreme Court of the State of New York Appellate
Term, Second Department, (“Plaintiffs’ Appellate
Brief”), attached as Exhibit C to Defendants’
Supplemental Briefing (“Ds’ Supp.”), (Doc. 46),
states in plain terms that the “hand-written language
... authorized the removal of 3 trees less than
[Plaintiff] Novie had requested. No reason was given
by the Village for the reduced number.” (Ds’ Supp.
Ex. C, at 2.) It is also not clear why Plaintiffs now
argue that the Village did not expressly deny any
portion of their application, given their
understanding that the Village “authorized the
removal of 3 trees less than [Plaintiff] Novie had
requested.” (Id.)

Only Mr. Novie was named as a Defendant in the
Justice Court action, but for the sake of simplicity, I
will use the term “Plaintiffs” to refer to the sued party
in that action.

7

Plaintiffs’ SAC adds that the “Justice Court code
enforcement proceeding was dismissed on January 31,
2012. The Justice Court found the Tree Law to be
unconstitutional.” (SAC ¶ 38.)

8

The SAC adds that the Village has since “sought
additional consultants’ fees from the Plaintiffs, for their
alleged yet unadjudicated violation of the Village’s
Tree Law.” (Id. ¶ 41a.)

B. Procedural History
*6 Plaintiffs filed their Complaint in this action on
December 20, 2010. (Doc. 1.) At a conference before this

Court on March 24, 2011, the parties discussed Plaintiffs’
request to amend the Complaint to include facts regarding
a new invoice issued to Plaintiffs by the Village, (see
Docs. 2, 3, 6), and address numerous potential
deficiencies in Plaintiffs’ Complaint, many of which were
raised by Defendants in their pre-motion letter, (Doc. 8).
The Court permitted Plaintiffs to amend their Complaint,
(see Minute Entry Mar. 24, 2011), and Plaintiffs filed
their AC on June 6, 2011, (Doc. 11), asserting a number
of facial and as-applied constitutional claims, as well as
other federal and state law claims. On October 12, 2011,
Defendants filed the instant Motion to Dismiss. (Doc. 16.)
On January 31, 2012, Plaintiffs wrote to inform me that
the Ramapo Justice Court dismissed the code enforcement
matter against Plaintiffs and found the Tree Law to be
unconstitutional. (Docs.29, 30.) Oh February 7, 2012,
Plaintiffs wrote this Court again, mentioning that the
Village planned to appeal the Justice Court’s decision,
taking issue with the Village’s assertion of a Hen for
consultant fees on the Property, and asking the Court to
“accept this letter application as an informal motion ... to
supplement the complaint with newly arising facts.” (Doc.
32.)
At a conference on March 26, 2012, I allowed Plaintiffs to
make a formal motion for leave to amend the AC and
indicated that I would consider that Motion at the same
time as Defendants’ pending Motion to Dismiss. (See
Minute Entry Mar. 26, 2012.) I also told Plaintiffs,
however, that they should not attempt to refine the
material already in the AC or add new claims arising from
old facts; rather, they could only pursue leave to amend to
add new claims arising from new facts and to drop claims
that they believed to be meritless.
On May 17, 2012, Plaintiffs filed their Motion for Leave
to Amend, (Doc. 35), but it consisted solely of the SAC
and was unaccompanied by a memorandum of law or any
other discussion of the legal standards pertaining to a
motion for leave to amend. Accordingly, I gave them an
opportunity to renew their Motion with the required
documents and analysis. (See Doc. 36.) In that
endorsement, I reminded counsel that any proposed
second amended complaint could only add new claims
arising from new facts, not refine old claims or add new
claims arising from old facts. (Id.) Plaintiffs filed their
renewed Motion for Leave to Amend the AC on June 1,
2012. (Doc. 39.)

II. Motion for Leave to Amend
Plaintiffs’ SAC seeks to incorporate additional facts and
claims and to withdraw certain claims.9 I will address

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each proposed change in turn.
9

In comparing the AC with the SAC, I rely on the
“Tracked Changes” version of the SAC submitted by
Plaintiffs with their Motion for Leave to Amend. (Doc.
49.)

A. Legal Standard
Leave to amend a complaint should be “freely give[n] ...
when justice so requires.” Fed.R.Civ.P. 15(a)(2). “[I]t is
within the sound discretion of the district court to grant or
deny leave to amend.” McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 200 (2d Cir.2007). “Leave to amend,
though liberally granted, may properly be denied for;
‘undue delay, bad faith or dilatory motive on the part of
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.’ “ Ruotolo v. City of N.Y., 514
F.3d 184, 191 (2d Cir.2008) (quoting Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

B. Changes in the Second Amended Complaint
1. Additional Facts
*7 Plaintiffs have added facts in the SAC concerning the
outcome of the Justice Court code enforcement
proceeding and the Village’s subsequent appeal of the
Justice Court’s decision. (See SAC ¶ 38.) Because this
decision was rendered in January 2012, well after the AC
was filed, and is relevant to the current proceedings, and
because adding these facts would not prejudice
Defendants, the addition of these facts is appropriate.
Plaintiffs also seek to incorporate facts concerning
additional consultants’ fees imposed on them by the
Village subsequent to the Justice Court’s decision. (See
id. ¶¶ 41a-c, 42.) For the same reasons, these facts may be
incorporated into the SAC.
Plaintiffs next attempt to incorporate new facts and
assertions supporting their claim of unequal treatment
based on Marina Novie’s orthodox Jewish religion. (See
id. ¶¶ 106a-d.) None of these facts are alleged to have
occurred after the filing of the AC, and it does not appear
to the Court that they postdate the AC. Accordingly, these
statements may not be incorporated into the SAC.
Similarly, Plaintiffs also attempt to incorporate new facts
and assertions in support of their challenge to the
provisions of the Tree Law that allow the Village to pass
on the costs of consultants to residents (the “Consultant

Fee Regulations”). (See id. ¶¶ 108a-j.) Again, there is no
indication as to why these allegations could not have been
included in the AC. None of them appears to concern
conduct that postdated the AC, except paragraph 108i
which asserts that the Village “may be considering”
action with regard
to a
wholly unrelated
matter-permission to remove small rocks and debris from
Plaintiffs’ Property. (Id. ¶ 108i.) Rather, the proposed
language consists of general, undated assertions
concerning Defendants’ practices pursuant to the
Consultant Fee Regulations. Accordingly, these assertions
may not be included in the SAC, because, to the extent
they are even relevant to this action, they do not constitute
new facts or new claims.10
10

In any event, for reasons discussed below—namely, the
propriety of abstention in this matter—amendment to
add the new facts discussed above would be futile.

2. Additional Claims
Plaintiffs seek to incorporate two new claims into the
SAC. First, they assert a claim pursuant to the Americans
with Disabilities Act (“ADA”) in connection with the
Village’s refusal to let Plaintiffs remove oak trees from
their Property and the Village’s demand that Plaintiffs
plant several new oak trees as replacement trees. (See id.
¶¶ 121–28.) Plaintiffs’ request to add an ADA claim is
denied, because the facts on which they base this claim
appear to predate the AC or at the very least are not
alleged to have occurred after the AC. For example, the
statements that “Plaintiffs requested removal of one of
their oak trees” but the Village denied that request
appears to refer to the application relating to the 2010
Cutting, (see Marzolla Aff. Ex. E (request to remove “2
oak” “due to allergy of home owner”)),11 and the claim
that the Village required them to plant new oak trees is
undated. In any event, even if the activity did postdate the
AC, because this claim appears to be entirely without
merit,12 amendment to add it would be futile. Accordingly,
this claim may not be included in the SAC.
11

If Plaintiffs are indeed referring to their July 2010 Tree
Removal Permit Application when they say the Village
denied them permission to remove oak trees, it is not
clear why the permission they received to remove three
trees as of right could not include the oak trees. If
Plaintiffs are referring to some other request to remove
oak trees from their Property, they have failed to give
any specifics concerning such request.

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12

For one thing, Plaintiffs’ claim appears to be meritless
because their SAC provides no facts indicating why
Mr. Novie is a “qualified individual with a disability,”
see 42 U.S.C. § 12102 (defining “disability”); id. §
12131(2) (defining “qualified individual with a
disability”), apart from stating that he is allergic to oak
pollen, see Martinez v. RZB Fin. LLC, No.
10–CV–4214, 2010 WL 4449031, at *4 (S.D.N.Y. Nov.
5, 2010) (dismissing ADA claim due to failure to allege
a disability because “[t]he most specific allegation is
that [plaintiff’s] disability includes a severe allergy to
mold”) (internal quotation marks omitted). Nor does it
appear that Plaintiffs ever sought an accommodation
based on Mr. Novie’s condition. See Baker v. N.Y. State
Dep’t of Envtl. Conservation, No. 10–CV1016, 2012
WL 2374699, at *3 (N.D.N.Y. June 22, 2012)
(dismissing reasonable accommodation claim because
plaintiffs never sought accommodation and noting that
plaintiffs’ papers were “devoid of any controlling legal
authority which even suggests that an accommodation
request ... is unnecessary”).

*8 Similarly, Plaintiffs seek to add a new claim under the
New York Constitution based on the same facts
supporting their existing First Amendment claim. (See
SAC 21.) Again, because this attempt explicitly
contravenes my order not to refine or supplement the
existing claims based on old facts, Plaintiffs are not
permitted to add this claim.13
13

In any event, as stated above, amendment to add this
claim would be futile, because if added, I would
dismiss it on jurisdictional grounds, as discussed below.

3. Withdrawn Claims
The AC contains a Fair Housing Act claim. (See AC ¶¶
109–19.) In their Memorandum of Law in opposition to
Defendants’ Motion to Dismiss, Plaintiffs expressly
withdrew this claim. (Ps’ Mem. 15.)14 It is not clear
whether the inclusion of this claim in the SAC was an
oversight. (See SAC ¶¶ 109–20, 127.) To the extent
Plaintiffs seek to amend the AC to add the claim back in
after thinking better of withdrawing it, they are not
permitted to do so. As stated above, I permitted Plaintiffs
to seek leave to amend to add new facts and claims, not to
refine and rethink their old claims.
14

“Ps’ Mem.” refers to Plaintiff’s [sic ] Memorandum of
Law in Opposition to Defendants’ Motion to Dismiss.
(Doc. 24.)

Finally, Plaintiffs wish to withdraw their Commerce
Clause claim-which claim was already withdrawn in their
Memorandum of Law in opposition to Defendants’
Motion to Dismiss, (Ps’ Mem. 15)—and their Fourth
Amendment search and seizure claim, and are permitted
to do so.

III. Motion to Dismiss
1. Documents the Court may Consider
When deciding a motion to dismiss, the Court’s “review
is limited to the facts as asserted within the four corners
of the complaint, the documents attached to the complaint
as exhibits, and any documents incorporated in the
complaint by reference.” McCarthy, 482 F.3d at 191; see
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006).
“When matters outside the pleadings are presented in
response to a 12(b)(6) motion, a district court must either
exclude the additional material and decide the motion on
the complaint alone or convert the motion to one for
summary judgment ... and afford all parties the
opportunity to present supporting material.” Friedl v. City
of N.Y., 210 F.3d 79, 83 (2d Cir.2000) (alteration and
internal quotation marks omitted).
There are circumstances, however, under which it is
appropriate for a court to consider documents outside of
the complaint on a motion to dismiss. For example, when
deciding a motion to dismiss, the Court is entitled to
consider:
(1) facts alleged in the complaint
and documents attached to it or
incorporated in it by reference, (2)
documents “integral” to the
complaint and relied upon in it,
even if not attached or incorporated
by reference, (3) documents or
information contained in [a]
defendant’s motion papers if
plaintiff
has
knowledge
or
possession of the material and
relied on it in framing the
complaint, (4) public disclosure
documents required by law to be,
and that have been, filed with the
Securities
and
Exchange
Commission, and (5) facts of which
judicial notice may properly be
taken under Rule 201 of the Federal
Rules of Evidence.

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*9 Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560,
567 (E.D.N.Y.2011) (internal quotation marks omitted). If
a document outside of the complaint is to form the basis
for dismissal, however, “it must be clear on the record
that no dispute exists regarding the authenticity or
accuracy of the document,” and “[i]t must also be clear
that there exist no material disputed issues of fact
regarding the relevance of the document.” Faulkner, 463
F.3d at 134.

• A letter dated August 17, 2010 from Martin Spence
of Spence Engineering (the Village Engineer) to the
Village Clerk notifying the Clerk’s Office that
Spence Engineering performed an inspection of
Plaintiffs’ property on August 10, 2010 and found
that Plaintiffs had cut down fourteen trees—three
more than their permit allowed, (id. Ex. H);
• Minutes of a Village Planning Board meeting on
September 14, 2010, which Plaintiffs attended, and
at which the Planning Board discussed Plaintiffs’
application for an exception to the Tree Law with
regard to the 2010 Cutting. Attached to the Minutes
are several documents that were presented to the
Planning Board at that meeting: the minutes from the
August 31, 2010 Community Design Review
Committee
(“CDRC”)
meeting;
documents
concerning an unrelated subdivision (the “Fried”
subdivision); a memo from Martin Spence regarding
Plaintiffs’ Property which includes a tree
remediation plan for the Property; and a letter to the
Planning Board from Al Rubin—the Chairman of the
Planning Board who recused himself from the matter
because he is Plaintiffs’ neighbor-suggesting that the
Planning Board “provide[ ] some environmental
message” to Plaintiffs that excess cuttings “will not
be tolerated,” (id. Ex. I);

Furthermore, it is improper for a court to consider
declarations and affidavits on a motion to dismiss. See
Ramasamy v. Essar Global Ltd., No. 11–CV–3912, 2012
WL 1681763, at *2 (S.D.N.Y. May 8, 2012) (“sworn
affidavit by plaintiff” is “material that could not ordinarily
be considered on a Rule 12(b)(6) motion to dismiss”);
Wachtel v. Nat’l R.R. Passenger Corp., No. 11–CV–613,
2012 WL 292352, at *2 (S.D.N.Y. Jan. 30, 2012)
(declining to consider plaintiff’s affidavit attached to
opposition to motion to dismiss because “the Court cannot
consider affidavits in ruling on a motion to dismiss”);
Valez v. City of N.Y., No. 08–CV–3875, 2008 WL
5329974, at *3 n. 5 (S.D.N.Y. Dec. 16, 2008) (noting that
it would be improper to consider plaintiff’s affidavit on
motion to dismiss); cf. Fonte v. Bd. of Managers of Cont’l
Towers Condo., 848 F.2d 24, 25 (2d Cir.1988) (“If the
district court considered [plaintiff’s] affidavit in disposing
of the Rule 12(b)(6) motion, it erred in failing to convert
the motion to one for summary judgment ....”).

*10 • Minutes from the Planning Board meeting of
November 9, 2010 (including CDRC Minutes from
October 26, 2010 and an attachment concerning an
unrelated issue), (id. Ex. J);
• The text of the Village’s regulations concerning
consulting fees (Chapter 65 of the Village Code),
(Marzolla Reply Aff. Ex. A).15

a. Attachments to Defendants’ Motion
Defendants have submitted the following documents with
their Motion to Dismiss:
• Plaintiffs’ Complaint and AC, (Marzolla Aff. Exs.
A–B);

15

“Marzolla Reply Aff.” refers to the Attorney Affidavit
[of Mary E. Brady Marzolla]. (Doc. 21.)

• The text of the Tree Law, (id. Ex. C);
• The Civil Compromise Agreement, signed in
February 2010, between Brian Novie and the Village
settling the charges brought against Mr. Novie in
connection with the 2009 Cutting, (id. Ex. D);
• Plaintiffs’ 2010 Tree Removal Permit Application
signed on July 15, 2010 and the Village’s August 2,
2010 approval of that application, (id. Ex. E);
• Signed copies of an Agreement to Pay Professional
Consulting Fees—one signed by Marina Novie on
July 15, 2010, and one signed by Brian Novie on
August 17, 2010, (id. Exs. F–G);

All of these documents except the August 17, 2010 letter
from the Village Engineer will be considered for the
purposes of these Motions. More specifically, I may take
judicial notice of the Tree Law and Consultant Fee
Regulations, as they are public documents. See Missere v.
Gross, 826 F.Supp.2d 542, 553 (S.D.N.Y.2011). The Tree
Removal Permit Application is incorporated by explicit
reference into the SAC, (see, e.g., SAC ¶ 32–33), and
Plaintiff has certainly relied on it in framing the SAC, as
it goes to the heart of this lawsuit. The Civil Compromise
Agreement appears to be referenced in paragraph 31 of
the SAC, and because Plaintiffs take issue with the fees
and penalties charged by Defendants in connection with
the Tree Law, it is integral to the SAC and Plaintiffs may

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be said to have relied on it in framing the SAC. The
Agreements to pay consulting fees are likewise integral to
the SAC given that some of Plaintiffs’ claims are
premised on the Village’s imposition of consulting fees.
(See, e.g., id. ¶¶ 157–61.) Finally, the minutes of the
September 14, 2010 and November 9, 2010 Planning
Board meetings will also be considered because they are
public documents16 of which I may take judicial notice for
the fact that they exist, but not for the truth of the matters
asserted therein.17 See Schubert v. City of Rye, 775
F.Supp.2d 689, 698 (S.D.N.Y.2011) (On 12(b)(6) motion
to dismiss, “[t]he court may consider matters of which
judicial notice may be taken, even if the corresponding
documents are not attached to or incorporated by
reference in the complaint.”) (alteration and internal
quotation marks omitted); id. (“[A] court should generally
take judicial notice ‘to determine what statements the
documents contain[,] not for the truth of the matters
asserted.’ ”) (alterations omitted) (quoting Kramer, 937
F.2d at 774).
16

17

All minutes from meetings of the Village’s Planning
Board are available to the public at h
ttp://www.villageofmontebello
.corn/Planning%
20Board% 20Minutes.html (last visited Aug. 14, 2012).

For example, to the extent the November 9th minutes
are offered to prove that Plaintiffs did not attend the
meeting, they are being offered for the truth of their
contents, a purpose for which I may not consider them.
See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d
Cir.1991). Further, I need not decide whether
consideration of the documents attached to the Planning
Board minutes is proper because those documents have
no effect on my decision on the pending Motions.

In contrast, the letter from Martin Spence to the Village
Clerk’s Office will not be considered because it is not
clear that Plaintiff had knowledge of this document or
relied on it in framing the SAC. (But see SAC ¶ 36 (‘
“consulting engineer’ of the Village ... intruded onto
Plaintiffs’ property”).) Accordingly, Exhibits A, B, C, D,
E, F, G, I, and J to the Marzolla Affidavit and Exhibit A
to the Marzolla Reply Affidavit will be considered.18
Exhibit H to the Marzolla Affidavit will not be
considered.
18

Plaintiffs have not challenged the authenticity or
accuracy of any of these documents. See Faulkner, 463
F.3d at 134.

b. Attachments to Defendants’ Supplemental Briefing
In response to the Court’s request for supplemental
briefing regarding the concurrent state court proceeding,
(Doc. 44), Defendants attached to their letter brief: (1)
transcripts of the proceedings in the Ramapo Justice Court
on November 22, 2011 and January 31, 2012; (2)
Plaintiffs’ motion to dismiss filed with the Ramapo
Justice Court and the attachments thereto; and (3) both
parties’ briefs on appeal of the Justice Court’s decision to
the New York Supreme Court Appellate Term, Second
Department. (See Ds’ Supp. Exs. A–F.) I may take
judicial notice of all of these materials—for the fact that
they exist and the facts of what is in them, but not for
their truth—because they are public documents. See Blue
Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels &
Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir.2004)
(courts can “look to public records, including complaints
filed in state court, in deciding a motion to dismiss”).

c. Attachment to Plaintiffs’ Opposition to Defendants’
Motion to Dismiss
*11 Plaintiffs have submitted only one document in
conjunction with their opposition to Defendants’ Motiona
personal Affidavit by Plaintiffs.19 (Doc. 25.) I will not
consider this document for the purposes of deciding
Defendants’ Motion because affidavits are not properly
considered on a motion to dismiss. See Ramasamy, 2012
WL 1681763, at *2; Wachtel, 2012 WL 292352, at *2.
19

Plaintiffs’ submission is technically not an affidavit
because it is not sworn before a notary. See Black’s
Law Dictionary (9th ed. 2009) (An affidavit is “[a]
voluntary declaration of facts written down and sworn
to by the declarant before an officer authorized to
administer oaths.”); see Azkour v. Little Rest Twelve,
Inc., No. 10–CV–4132, 2012 WL 402049, at *3 n. 1
(S.D.N.Y. Feb. 7, 2012). Even if I were to construe the
affidavit as a declaration pursuant to 28 U.S.C. § 1746,
it would still not be considered at this stage. See Mugno
v. Societe Internationale de Telecomm. Aeronautiques,
Ltd., No. 05–CV–2037, 2007 WL 316572, at *7 n. 7
(E.D.N.Y. Jan. 30, 2007) (declining plaintiff’s request
for court to consider “declarations of various persons”
on a Rule 12(b)(6) motion to dismiss).

2. Motion to Dismiss Standard
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ “

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556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiffs obligation to provide the grounds
of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Twombly, 550 U.S. at 555
(alteration, citations, and internal quotation marks
omitted). While Federal Rule of Civil Procedure 8 “marks
a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era, ... it
does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.” Iqbal, 556
U.S. at 678–79.
In considering whether a complaint states a claim upon
which relief can be granted, the court “begin[s] by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth,”
and then determines whether the remaining well-pleaded
factual allegations, accepted as true, “plausibly give rise
to an entitlement to relief.” Id. at 679. Deciding whether a
complaint states a plausible claim for relief is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id.
“[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘shown’—‘that the
pleader is entitled to relief.’ “ Id. (alteration omitted)
(quoting Fed.R.Civ.P. 8(a)(2)).

3. Discussion
I will deem a SAC conforming to my decision above to
have been filed and will address my discussion below to
such a document.

a. Abstention
Defendants argue that this Court should abstain from
deciding this case under the doctrine laid down in
Younger v. Harris, 401 U.S. 37 (1971), (Ds’ Mem. 5–6),20
which generally prohibits “federal courts from enjoining
ongoing state proceedings.” Hartford Courant Co. v.
Pellegrino, 380 F.3d 83, 100 (2d Cir.2004). “Although
the Younger abstention doctrine was born in the context
of state criminal proceedings, it now applies with equal
force to state administrative” and civil proceedings.

Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191,
198 (2d Cir.2002) (citing Ohio Civil Rights Comm’n v.
Dayton Christian Schs., Inc., 477 U.S. 619, 627, 106 S.Ct.
2718, 91 L.Ed.2d 512 (1986)). “Younger abstention is
required when three conditions are met: (1) there is an
ongoing state proceeding; (2) an important state interest is
implicated in that proceeding; and (3) the state proceeding
affords the federal plaintiff an adequate opportunity for
judicial review of the federal constitutional claims.” Id.;
accord Parent v. New York, No. 11–CV–2474, 2012 WL
2213658, at *2 (2d Cir. June 18, 2012) (summary order).
“Despite the strong policy in favor of abstention, a federal
court may nevertheless intervene in a state proceeding
upon a showing of ‘bad faith, harassment or any other
unusual circumstance that would call for equitable relief.’
“ Diamond, 282 F.3d at 198 (quoting Younger, 401 U.S.
at 54).
20

“Ds’ Mem.” refers to Defendants’ Memorandum of
Law in Support of Motion to Dismiss Plaintiffs’
Complaint. (Doc. 18.)

*12 The first two requirements of Younger are clearly met
here. There is an ongoing proceeding in state court—the
appeal from the Town Justice Court to the Second
Judicial Department of the New York Supreme Court
Appellate Term. See Hansel v. Town Court for Town of
Springfield, NY., 56 F.3d 391, 393 (2d Cir.1995)
(requirement of ongoing state proceeding met when
plaintiff faced ongoing criminal prosecution in town
court); Sendlewski v. Town of Southampton, 734 F.Supp.
586, 590–91 (E.D.N.Y.1990) (abstention proper where
federal action would interfere with proceedings in town
justice court and state supreme court).
Second, the state proceeding implicates an important state
interest insofar as it concerns a town land use regulation
akin to a zoning requirement. See Donangelo, Inc. v.
Town of Northumberland, No. 03–CV–934, 2005 WL
681494, at *2 (N.D.N.Y. Mar. 24, 2005) (regulating
zoning and land use and protecting health of citizens and
environment are “clear[ly]” state interests “important
enough to warrant abstention”); Wandyful Stadium, Inc. v.
Town of Hempstead, 959 F.Supp. 585, 590
(E.D.N.Y.1997) (zoning regulation is important state
interest); Sendlewski, 734 F.Supp. at 591 (action in town
justice court to enforce town’s zoning and land use
regulations implicates important state interest); cf. id. (“In
determining the substantiality of the state’s interest in its
proceedings, a court must not look narrowly to the state’s
interest in the outcome of the particular case, but rather, to
the importance of the generic proceedings to the state.”)
(alteration, emphasis, and internal quotation marks

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Novie v. Village of Montebello, Not Reported in F.Supp.2d (2012)
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omitted). Furthermore, the importance of the state interest
here is reinforced by the fact that the Village chose to
enforce the Tree Law through a criminal proceeding
against Mr. Novie. (SAC ¶ 73 (Village prosecuting
criminal code enforcement case against Mr. Novie).) See
Wandyful, 959 F.Supp. at 590 (relying on Ninth Circuit
case that found that where city had option to proceed
either by civil or criminal enforcement of municipal
ordinance, use of latter “demonstrates the importance of
the underlying state interest”) (internal quotation marks
omitted); Sendlewski, 734 F.Supp. at 590 (“importance of
the state’s interest may be demonstrated if the civil action
is closely related to a criminal proceeding”).
With regard to the third Younger prong, “the relevant
question ... is whether the state’s procedural remedies
could provide the relief sought[,] not whether the state
will provide the constitutional ruling which the plaintiff
seeks .” Glatzer v. Barone, 394 F. App’x 763, 765 (2d
Cir.2010) (summary order) (emphasis in original)
(alterations and internal quotation marks omitted). Where
the constitutional claims in the state and federal actions
are different, however, abstention is inappropriate, as “the
state proceeding [would] not afford the federal plaintiff an
adequate opportunity for judicial review of his or her
federal constitutional claims.” Hartford Courant, 380
F.3d at 101 (emphasis and internal quotation marks
omitted). “[I]mportantly,” however, “under Younger, any
uncertainties as to the scope of state proceedings or the
availability of state remedies are generally resolved in
favor of abstention.” Spargo v. N.Y. State Comm’n on
Judicial Conduct, 351 F.3d 65, 77–78 (2d Cir.2003).
*13 I find that the third Younger prong is met and
abstention is appropriate in this case because the state
proceeding pending before the Appellate Term affords
Plaintiffs an opportunity for review of their federal
claims. In their motion to dismiss the Justice Court
lawsuit, Plaintiffs vigorously argued as a defense that the
Tree Law is unconstitutional on due process, First
Amendment, takings, and state law grounds, (see Ds’
Supp. Ex. E, at 14–21), and asserted that it also “raises
equal protection concerns,” (id. at 10–11). The parties
discussed these defenses at oral argument before the
Justice Court on November 22, 2011. (See, e.g., id. Ex. F,
at 11 (discussing takings, due process, and equal
protection defenses); id. at 34 (discussing ripeness of
takings, due process, and equal protection defenses); id. at
36 (discussing First Amendment defenses).) After the
Justice Court found the Tree Law to be
unconstitutional-presumably because it was not
“necessary to secure the health, safety and welfare of [the
Village’s] residents,” (id. Ex. A, at 6; see id. at 5)—the
Village appealed the decision and the parties briefed the

federal constitutional (due process, equal protection,
takings, and First Amendment) and state law issues for
the Appellate Term.21 (See Ds’ Supp. Exs. B–D.) Thus,
Plaintiffs clearly had an opportunity to raise these
constitutional issues in the pending state proceeding and
availed themselves of that opportunity such that the third
Younger prong is satisfied.22 See Parent, 2012 WL
2213658, at *2 (third prong met where plaintiff raised his
constitutional claims in state court); McGRX, Inc. v.
Vermont, 452 F. App’x 74, 74–75 (2d Cir.2012)
(summary order) (holding that “Younger clearly applies”
where plaintiff Would have opportunity to raise federal
claims in state court action).23
21

All briefing before the Appellate Term was complete as
of June 22, 2012, and the parties are waiting for the
court to set an oral argument date. (See Ds’ Supp. 1.)

22

In Plaintiffs’ Supplemental Briefing submitted to this
Court on July 30, 2012 (“Ps’ Supp.”), (Doc. 47),
Plaintiffs assert that Younger abstention is inappropriate
because both the Justice Court and the Appellate Court
cannot “provide Plaintiffs with redress to the federal
law wrongdoing.” (Ps’ Supp. 2.) Yet Plaintiffs provide
no explanation—and the Court can find no apparent
reason (apart from the damages issue discussed
below)—as to why they cannot obtain the relief they
seek in the state court proceedings, at least as far as
equitable relief is concerned. See Parent, 2012 WL
2213658, at *2 (plaintiff “has not demonstrated that the
state courts are an inadequate forum for raising his
constitutional claims. Indeed, it appears that [plaintiff]
has repeatedly raised his constitutional claims before
the state courts, albeit without receiving any favorable
decisions. However, simply because the state courts
have not issued decisions in his favor does not render
them ‘inadequate’ for purposes of Younger
abstention.”); Hansel, 56 F.3d at 394 (“So long as a
plaintiff is not barred on procedural or technical
grounds from raising alleged constitutional infirmities,
it cannot be said that state court review of constitutional
claims is inadequate for Younger purposes.”).

23

In order for a state court to provide a “meaningful
opportunity for review” of Plaintiffs’ claims, the claims
presented to each court must be the same, Hartford,
380 F.3d at 101 (declining to abstain because “the
constitutional claims in the state and federal actions
[we]re ... quite different”). Here, Plaintiffs assert as
federal constitutional defenses in state court the same
federal constitutional claims they raise in federal court,
and I find that the issues in both actions are essentially
identical. First, as to Plaintiffs’ takings claims, while
Defendants argue on appeal to the Appellate Term that

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Novie v. Village of Montebello, Not Reported in F.Supp.2d (2012)
2012 WL 3542222
Plaintiffs abandoned their takings claims during oral
argument before the Justice Court, (Ds’ Supp. Ex. D, at
8), it is far from clear that Plaintiffs indeed abandoned
those claims, (see id. Ex. F, at 14 (ambiguous as to
whether Plaintiffs’ counsel was answering in the
affirmative the Justice Court’s question about pursuing
the takings claim or the question about whether
Plaintiffs were challenging the entire statute)), and
therefore I find that the Appellate Term could provide
meaningful review of those claims.
Second, while in the federal action Plaintiffs
challenge the constitutionality of the Consultant Fee
Regulations under the due process and equal
protection clauses, whereas in the state action they
challenge those Regulations under the takings clause
(although the Consultant Fee Regulations are in fact
mentioned in the due process section of Plaintiffs’
Appellate Brief (see, e.g., Ds’ Supp. Ex. C, at
17–18)), (compare Ds’ Supp. Ex. C, at 30, with SAC
¶ 108), I find the distinction to be meaningless in the
circumstances for a number of reasons. First, the
substance of the challenges to the Consultant Fee
Regulations in both the state and federal court
actions is essentially the same: in both actions
Plaintiffs take issue with the magnitude of the fees
and the process through which they are imposed.
(See SAC ¶¶ 41–43; Ds’ Supp. Ex. C, at 18, 30.)
Second, the due process and equal protection
challenges to the Consultant Fee Regulations are
articulated in the federal action in only one sentence,
with little underlying support. (See SAC ¶ 108 (one
general sentence describing challenge to Consultant
Fee Regulations); see also id. ¶¶ 41–43, 56 (minimal
factual allegations supporting challenge to
Consultant Fee Regulations).) Therefore, what
appears to be slapdash labeling of the challenges will
not save Plaintiffs’ claims from abstention where the
substance of the claims is the same. Moreover,
Plaintiffs’ counsel even admitted in correspondence
to this Court that “Mr. Novie’s Justice Court
challenge to the Tree Law [i]s for the most part the
same as in this Court.” (Doc. 32.) Accordingly,
inarticulate, unspecific, or inconsistent pleading will
not save Plaintiffs’ claims from abstention.
Finally, even if I were not required to abstain from
deciding Plaintiffs’ due process and equal protection
challenges to the Consultant Fee Regulations, these
claims would fail. As an initial matter, to the extent
that Plaintiffs’ due process and equal protection
claims overlap with their takings claim—such that
Plaintiffs may be said to be seeking damages for
these violations, and therefore they are not subject to
abstention—these claims would be subject to
dismissal under the ripeness doctrine articulated in
Williamson County Regional Planning Commission
v. Hamilton Bank of Johnson City, 473 U.S. 172, 105
S.Ct. 3108, 87 L.Ed.2d 126 (1985), as discussed
below. See Lost Trail LLC v. Town of Weston, 289 F.
App’x 443, 444 (2d Cir.2008) (summary order).
With regard to the merits of these claims, as to the

equal protection claim, Plaintiffs allege essentially
no facts in support of this claim, and certainly none
that would render an equal protection challenge to
the Consultant Fee Regulations plausible. Any such
allegations are purely speculative and conclusory. As
to the due process challenge, to the extent that
Plaintiffs allege that consulting fees were assessed
without adequate process, (see SAC ¶¶ 41, 41b), this
claim fails because adequate process exists for
challenging the fees-namely, the option to bring an
Article 78 proceeding, (see id.; Marzolla Reply Aff.
Ex. A, § 65–6 (“Any applicant who disputes any fee
statement presented to him pursuant to this chapter
may bring a proceeding in the Supreme Court of the
State of New York ... pursuant to Article 78 ... within
30 days after presentation of such disputed fee
statement.”)). That Plaintiffs chose not to avail
themselves of that procedure in the proper forum
(state court) when presented with the fee statements
bars them from now asserting that they did not
receive due process of law. See N.Y. State Nat’l Org.
for Women v. Pataki, 261 F.3d 156, 169 (2d
Cir.2001) (“[A] procedural due process violation
cannot have occurred when the governmental actor
provides apparently adequate procedural remedies
and the plaintiff has not availed himself of those
remedies.”) (internal quotation marks omitted); Clark
v. DiNapoli, No. 09–CV–1037, 2011 WL 4901330,
at *10 (N.D.N.Y. Oct. 14, 2011) (same); see also
Brown v. City of N.Y., No. 10–CV–3104, 2011 WL
6003921, at *14 (S.D.N.Y. Nov. 30, 2011) (“Even if
plaintiff enjoyed a protectable constitutional interest
in his ... employment, he did not challenge his
termination in a New York state-court proceeding
under Article 78. Courts in this Circuit recognize
such proceedings as sufficient to protect an
aggrieved party’s right against constitutional
deprivations without due process of law.”) (internal
citation omitted).
One could imagine a scenario where a Village
resident challenged a fee statement in an Article 78
proceeding within thirty days of receiving the
statement, but because “[t]he commencement of [the
Article 78] proceeding [did] not stay the obligation ...
to pay [the] fee statement,” (Marzolla Reply Aff. Ex.
A, § 65–6), he or she became obligated to pay the
fees—and possibly faced a lien on his or her
property, (see id. § 65–7)—prior to any action in the
Article 78 proceeding. In such a situation, that
resident might have a viable due process claim, given
that a deprivation would occur prior to the
opportunity to be heard. On the other hand, the
resident could seek a stay from the Article 78 court. I
express no opinion on that matter, however, because
it is undisputed that Plaintiffs did not challenge the
fee statements through the procedures provided, and
in fact, signed agreements with the Village agreeing
to pay such fees. (See Marzolla Aff. Exs. F–G.)
Accordingly, their procedural due process claim also
fails on the merits. To the extent Plaintiffs purport to

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Novie v. Village of Montebello, Not Reported in F.Supp.2d (2012)
2012 WL 3542222
raise a substantive due process challenge to the
Consultant Fee Regulations, such a claim would also
fail, as Plaintiffs have not pleaded any facts that
would render plausible an interpretation of the
Consultant Fee Regulations as “so outrageously
arbitrary as to constitute a gross abuse of
governmental authority” and “so egregious, so
outrageous, that [they] may be fairly said to shock
the contemporary conscience.” Ruston v. Town Bd.
for Town of Skaneateles, No. 06–CV–927, 2009 WL
3199194, at *5–6 (N.D.N.Y. Sept. 30, 2009) (internal
quotation marks omitted).

Plaintiffs broadly assert that the bad faith exception
applies, stating that “the code enforcement prosecution
was brought in bad faith motivated by discrimination
and a desire to harass.” (Ps’ Mem. 3–4.) Yet the SAC
and Plaintiffs’ Memorandum are devoid of facts or
even allegations that would plausibly show that the
code enforcement proceeding was brought in bad faith.
To the contrary, the record indicates that Defendants
brought the proceeding based on Plaintiffs’ repeated
violations of the Tree Law, and did not lack a
“reasonable expectation of obtaining a favorable
outcome.” Jackson Hewitt, 455 F. App’x at 18.

While abstention appears to be proper—and Plaintiffs
have not demonstrated that an exception to the Younger
doctrine applies,24—courts in this Circuit have held that
abstention is generally not appropriate in cases seeking
damages pursuant to 42 U.S.C. § 1983 (“Section 1983”).
See Morpurgo v. Inc. Vill. of Sag Harbor, 327 F. App’x
284, 286 (2d Cir.2009) (summary order) (district court
properly found Younger requirements were met and
abstained from exercising jurisdiction over claims seeking
injunctive relief, but “erred in abstaining from exercising
jurisdiction over plaintiff’s claims for monetary
damages”); Rivers v. McLeod, 252 F.3d 99, 101–02 (2d
Cir.2001) (per curiam ) (“[T]he Younger doctrine is
inappropriate where the litigant seeks money damages for
an alleged violation of § 1983 ....”); Bobrowsky v. Yonkers
Courthouse, 777 F.Supp.2d 692, 709 (S.D.N.Y.2011)
(“The Second Circuit has held that Younger is
inapplicable to § 1983 claims seeking money damages,
but Younger abstention continues to apply to claims for
injunctive relief brought pursuant to § 1983.”); but see
Kirschner v. Klemons, 225 F.3d 227, 238 (2d Cir.2000)
(“The Supreme Court has declined to reach the issue [of]
whether Younger applies to claims for money damages
....”).

*14 Here, Plaintiffs bring all of their constitutional claims
pursuant to Section 1983 but seek monetary damages only
for “loss of use of [Plaintiffs’] real property” and “for the
regulatory taking of their real property.” (SAC 25–26.)
Thus, abstention is appropriate as to all of Plaintiffs’
claims that are also raised in the state proceeding, except
for their takings claim for damages, which I address
below. Accordingly, I abstain from exercising
jurisdiction, see Parent, 2012 WL 2213658, at *2 (district
court lacks jurisdiction over claims dismissed pursuant to
Younger abstention), over Plaintiffs’ due process, equal
protection, and First Amendment claims; their takings
claims for declaratory and injunctive relief; and their state
claims,25 except for their nuisance and Article 78 claims,
and dismiss those constitutional and state law claims
without prejudice, see Vandor, Inc. v. Militello, 301 F.3d
37, 38–39 (2d Cir.2002) (per curiam ) (“absent
jurisdiction federal courts do not have the power to
dismiss with prejudice” ) (emphasis in original) (internal
quotation marks omitted); Howard v. Koch, 575 F.Supp.
1299, 1304 (S.D.N.Y.1982) (dismissing claims without
prejudice on Younger abstention grounds); but see Brims
v. Ramapo Police Dep’t, No. 11–CV–712, 2011 WL
7101233, at *6 (S.D.N.Y. Dec.23, 2011) (dismissing with
prejudice claim barred by Younger abstention);
Warburton v. Goord, 14 F.Supp.2d 289, 297
(W.D.N.Y.1998) (dismissing with prejudice claims barred
by Younger abstention and Rooker–Feldman doctrines).

24

As the Second Circuit recently explained, “[t]here are
... two ‘tightly defined exceptions to the Younger
abstention doctrine,’ the ‘bad faith’ exception and the
‘extraordinary circumstances’ exception.’ “ Jackson
Hewitt Tax Serv. Inc. v. Kirkland, 455 F. App’x 16, 18
(2d Cir.2012) (summary order) (internal citation
omitted) (quoting Diamond, 282 F.3d at 197–98).
Plaintiffs argue only that the former applies in this
action. (See Ps’ Mem. 4.) Plaintiffs bear the burden of
establishing this exception, see Diamond, 282 F.3d at
198, and to do so, they “must show that the party
bringing the state action [has] no reasonable
expectation of obtaining a favorable outcome, but
rather brought the proceeding with a retaliatory,
harassing, or other illegitimate motive.” Jackson
Hewitt, 455 F. App’x at 18 (alteration in original)
(internal citation and quotation marks omitted). Here,

25

Plaintiffs have presented to the Appellate Term their
arguments that the Tree Law is ultra vires and exceeds
the authority granted to the Village in the New York
Constitution and the General Municipal Law § 96–b.
(See Ds’ Supp. Ex. C, at 16–17, 20–23.) Accordingly, I
abstain from exercising jurisdiction over these claims.
In any event, as discussed below, I would decline to
exercise supplemental jurisdiction over the state claims
in the absence of surviving federal claims.

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b. Takings Claims
Ripeness is a jurisdictional inquiry antecedent to a Court’s
ability to hear claims. See Vandor, 301 F.3d at 38. “The
ripeness doctrine is especially important in land use and
zoning disputes which are quintessential local issues that
... are properly left in the first instance to local bodies that
are better equipped than federal courts to address and
resolve such issues.” Caldarola v. Town of Smithtown,
No. 09–CV–272, 2010 WL 6442698, at *7 (E.D.N.Y.
July 14, 2010) (report and recommendation, adopted in
full, 2011 WL 1336574 (E.D.N.Y. Apr.4, 2011)) (internal
quotation marks omitted). “[F]ederal takings claims are
not ripe unless (1) the agency involved has reached a final
decision and (2) the plaintiff has sought and has failed to
receive adequate compensation through available state
procedures.” Adrian v. Town of Yorktown, 341 F. App’x
699, 700 (2d Cir.2009) (summary order) (citing
Williamson, 473 U.S. at 190–95).
As to the first prong, before any land use
dispute—whether brought as a takings, due process, equal
protection, or to some extent a First Amendment
claim—is ripe for review, Plaintiffs must satisfy the
finality requirement of ripeness. Lost Trail, 289 F. App’x
at 444; Murphy v. New Milford Zoning Comm’n, 402 F.3d
342, 348 (2d Cir.2005); Caldarola, 2010 WL 6442698, at
*7. Under Williamson, “a claim that the application of
government regulations effects a taking of a property
interest is not ripe until the government entity charged
with implementing the regulations has reached a final
decision regarding the application of the regulations to the
property at issue.” Williamson, 473 U.S. at 186. Ripeness
“reflects the judicial insistence that a federal court know
precisely how a property owner may use his land before
attempts are made to adjudicate the constitutionality of
regulations purporting to limit such use.”26 Murphy, 402
F.3d at 349. As such, the finality requirement is not met if
plaintiffs have not sought, for example, a variance or a
waiver of the regulations. See Williamson, 473 U.S. at
193–94; Murphy, 402 F.3d at 348; Rivendell Winery, LLC
v. Town of New Paltz, 725 F.Supp.2d 311, 318
(N.D.N.Y.2010). Plaintiffs need not, however, apply for a
variance or exception from the regulations if such action
would be futile. See Murphy, 402 F.3d at 349. The futility
exception applies only when the relevant agency “lacks
discretion to grant variances or has dug in its heels and
made clear that all such applications will be denied.” Id.
“[M]ere doubt” that variance applications will be denied
is insufficient to invoke the futility exception. Rivendell
Winery, 725 F.Supp.2d at 319.
26

The Second Circuit’s explanation of the underpinnings
of the finality requirement is particularly apt here:
Four considerations ... undergird [the finality

prong of the ripeness inquiry]. First, ... requiring a
claimant to obtain a final decision from a local
land use authority aids in the development of a full
record. Second, ... only if a property owner has
exhausted the variance process will a court know
precisely how a regulation will be applied to a
particular parcel. Third, a variance might provide
the relief the property owner seeks without
requiring judicial entanglement in constitutional
disputes. Thus, requiring a meaningful variance
application as a prerequisite to federal litigation
enforces the long-standing principle that disputes
should be decided on non-constitutional grounds
whenever possible. Finally, ... courts have
recognized that federalism principles also buttress
the finality requirement. Requiring a property
owner to obtain a final, definitive position from
zoning authorities evinces the judiciary’s
appreciation that land use disputes are uniquely
matters of local concern more aptly suited for local
resolution.
Murphy, 402 F.3d at 348 (internal citations omitted).

*15 Plaintiffs appear to assert three variations of a takings
claim. They allege that Defendants effected (1) “a de
facto temporary taking of real property by preventing the
reasonable removal of trees so that a homeowner can ...
create a back yard,” (SAC ¶ 89); (2) a permanent taking
by “deeming trees located upon Plaintiffs’ property as
Village property which the Plaintiffs cannot use or
remove without Village permission,” (id. ¶ 91); and (3) a
taking of Plaintiffs’ Property without due process of law
by taking money from Plaintiffs’ mortgage lender in
connection with the imposed consultant fees, (id. ¶ 94). I
consider only the first two theories because Plaintiffs seek
damages solely for a taking of their real property. (See id.
at 25–26.) Similarly, to the extent these various theories
encompass a facial challenge to the Tree Law (which is
not clear from Plaintiffs’ papers), (see id . ¶¶ 89, 92),
because Plaintiffs appear to seek damages only in
connection with the manner in which the Tree Law was
applied to their Property, I abstain from considering any
facial takings claims.
Plaintiffs’ as-applied takings claim concerning the 2009
and 2010 Cuttings is not ripe because a final decision was
not reached as to how the Tree Law would be applied to
their land. More specifically, Plaintiffs did not avail
themselves of the Village’s process by which they could
seek a retroactive exception to the Tree Law—a process I
find sufficiently analogous to seeking a variance. See
Easton LLC v. Inc. Vill. of Muttontown, No.
11–CV–4791, 2012 WL 1458211, at *6 (E.D.N.Y.
Apr.27, 2012) (hardship exception, which allowed
plaintiff to apply for exemption from subdivision

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moratorium, akin to a variance); cf. Murphy, 402 F.3d at
353 (“[T]hrough the variance process local ... authorities
function as ‘flexible institutions; what they take with the
one hand they may give back with the other.’ ”) (quoting
MacDonald, Sommer & Frates v. Yolo Cnty., 477 U.S.
340, 350, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986)).
In 2009, Plaintiffs cut down trees on their Property
without a permit but did not challenge the enforcement of
the Tree Law against them and instead chose to settle the
matter. (See Marzolla Aff. Ex. D.) In 2010, they applied
for a permit to cut more trees. (Id. Ex. E.) That permit was
granted as to some of the trees, (id.), but Plaintiffs
exceeded the limits imposed by the permit. After they
were served with a Notice of Violation for excessive tree
removal on August 17, 2010, Plaintiffs applied for a
retroactive exception from the Tree Law pursuant to
sections 176–6(B)(2) and 176–6(D) of the Tree Law.27
(Ds’ Supp. Ex. B, at 9 (Plaintiffs “sought to stay
enforcement of the [Tree Law] violation by applying to
the Planning Board for an exception ... for having
exceeded the permitted approval for tree removal.”).)28 As
part of the process for obtaining an exception, Plaintiffs
attended a Planning Board meeting on September 14,
2010, at which Plaintiffs and the Planning Board agreed
that as part of Plaintiffs’ application, Plaintiffs would
create a comprehensive tree remediation plan and survey
with topographic information. (Id at 12–13.) The matter
was then adjourned until the November 9, 2010 Planning
Board meeting. (Id.) It appears—and Plaintiffs do not
allege otherwise—that shortly thereafter, Plaintiffs
abandoned their application for an exception by not
appearing with the requested documents at the November
9th meeting. (Id at 13.) Thus, because there is no
indication in the record that Plaintiffs fully pursued an
exception to the Tree Law for the 2009 and 2010
Cuttings, their takings claim is not ripe. See Kittay, 112
F.Supp.2d at 349 (claim not ripe where plaintiff “failed to
obtain a final ... decision concerning the applicability of
the ... Regulations ... to its property and, in effect, invites
th[e] Court to address important and potentially complex
constitutional and regulatory issues in a vacuum”);
Hunter v. Town of Chili, N.Y., No. 09–CV–6285, 2010
WL 598679, at *2 (W.D.N.Y. Feb.18, 2010) (claim not
ripe where plaintiff failed to allege that he undertook
appeal of decision denying his request for fill permit
pursuant to town regulations).29
27

Section 176–6(B)(2) provides in relevant part: “In the
case of removal without a permit, independent proof
(such as a photograph, police report or arborist’s
certification) is required in accordance with § 176–6D,
Exceptions, in order to obtain approval from the
Planning Board excepting said person from the

regulations contained herein.” General Code of the
Village of Montebello, New York, Ch. 176, available
at http:// www.ecode360.com/8769464.
Section 176–6(D) holds:
Exceptions. Upon written application to the
Planning Board, and after payment of a permit fee
set by the Board of Trustees by resolution, the
Planning Board may, by resolution, grant an
exception from any of the requirements of this
chapter. The decision by the Planning Board shall
be made within 30 days of receipt of the request or
at the next regularly scheduled Planning Board
meeting if not within 30 days. The Planning Board
may grant such exceptions from the requirements
of this chapter as may be reasonable and within
the purposes and intent of this chapter if the
enforcement of one or more of the provisions is
impractical or will exact undue hardship because
of peculiar conditions pertaining to the property in
question but, in so granting, may require that a
compensatory planting or compensatory payment
be made. The Planning Board may also request the
Village Engineer, Village Planner or other Village
consultant to assist in evaluating such applications.
The fees charged to the Village by all such
consultants shall be paid by the applicant.
Id.

28

The relevant facts regarding Plaintiffs’ pursuit of an
exception are taken from Defendants’ submissions to
the Appellate Term. Plaintiffs have not, however, either
in their state or federal court papers, challenged these
facts or indicated why their claims are ripe under the
Williamson doctrine. In any event, even if I disregarded
the undisputed statements in Defendants’ brief to the
Appellate Term, the record would still be devoid of any
indication that Plaintiffs pursued the exception process
to a final decision. Plaintiffs appear only to take issue
with the cost involved in the Village’s requirements for
applying for an exception to the Tree Law, (see Ds’
Supp. Ex. C, at 8 (“The ‘remediation plan’ and
‘compensatory planting’ provisions listed under §
176–7(C) and (D)—which are being required of
Respondent Novie, notwithstanding the absence of any
Justice Court conviction—impose substantial additional
expense”)), but the fact that seeking an exception or a
variance to a land use law may be expensive does not
relieve Plaintiffs from pursuing that process prior to
bringing a federal lawsuit for a takings violation, see
Kittay v. Giuliani, 112 F.Supp.2d 342, 350
(S.D.N.Y.2000) (rejecting argument that pursuing
variance or approval would have been futile and noting
that plaintiff may not “maintain an otherwise premature
lawsuit on the grounds of financial hardship”), aff’d
252 F.3d 645 (2d Cir.2001) (per curiam ).

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Novie v. Village of Montebello, Not Reported in F.Supp.2d (2012)
2012 WL 3542222
29

Nor have Plaintiffs demonstrated that pursuing that
process would be futile. They point to no action by the
Village that prevents the exception process from
continuing.

*16 Further, even if a final decision was reached as to the
use of Plaintiffs’ Property, their takings claims are unripe
under the second Williamson prong because Plaintiffs
have not alleged that they availed themselves of state
procedures that could provide them with adequate
compensation. See Williamson, 473 U.S. at 194 (“The
Fifth Amendment does not proscribe the taking of
property; it proscribes the taking without just
compensation.”). “As long as the State has a ‘reasonable,
certain and adequate provision for obtaining
compensation,’ an aggrieved party must obtain recourse
through that means before bringing a takings claim in
federal court.” R–Goshen LLC v. Vill. of Goshen, 289
F.Supp.2d 441, 449 (S.D.N.Y.2003) (quoting Williamson,
473 U.S. at 194). Indeed, New York has such procedures,
see Vandor, 301 F.3d at 39 (takings claim unripe because
plaintiff failed to bring Article 78 proceeding; “under
New York State law, Article 78 is a form of proceeding
available to compel public officials to comply with their
responsibilities” and is “constitutionally sufficient”);
R–Goshen, 289 F.Supp.2d at 449 (discussing provisions
of New York State Constitution and Eminent Domain
Procedure Law that would satisfy second Williamson
prong),30 but Plaintiffs failed to pursue them. Likewise,
with regard to their challenges to the Consultant Fee
Regulations, Section 65–6 of the Village Code31 provides
that Plaintiffs could have challenged the imposition of
fees via an Article 78 proceeding, but Plaintiffs failed to
avail themselves of that opportunity. Thus, Plaintiffs’
takings claim would also fail under the second prong of
the Williamson doctrine.
30

See General Code of the Village of Montebello, New
York,
Ch.
65,
available
at
http://www.ecode360.com/8767126.

32

While in some instances entering a stay of Plaintiffs’
claims for monetary damages would be a proper course
of action, see Kirschner, 225 F.3d at 238 (“The
Supreme Court has declined to reach the issue whether
Younger applies to claims for money damages, but has
noted that even if it does, the federal suit should be
stayed, rather than dismissed, if the money damages
sought could not be obtained in the pending state
proceeding, even if the money damages sought could
be obtained in a separate state proceeding.”); Sorokin v.
Dow Jones & Co. Inc., No. 11–CV–839, 2011 WL
1458592, at *6 (S.D.N.Y. Apr.11, 2011) (“Younger
abstention does not allow for the dismissal of a claim
for money damages, although a stay for a damages
claim may be appropriate, pending resolution of the
state court proceeding.”); Rodgers v. Cartagena, No.
10–CV–9285, 2011 WL 724680, at *1 (S.D.N.Y.
Feb.25, 2011) (staying claim for damages where
proceeding with case in federal court would interfere
with ongoing state proceeding); Broadway 41st St.
Realty Corp. v. N.Y. State Urban Dev. Corp., 733
F.Supp. 735, 744–45 (S.D.N.Y.1990) (abstaining under
Younger from considering plaintiffs’ takings claims and
thus declining to “consider plaintiffs’ requests for
damages on the theory of the de facto takings doctrine,”
and “plac[ing] [de facto takings claims for monetary
relief] on the suspense calendar pending completion of
the state court ... proceedings”), but because Plaintiffs’
takings claims are not ripe, I lack subject matter
jurisdiction over these claims and therefore also lack
grounds on which to enter a stay, see Country View
Estates, 452 F.Supp.2d at 144 (dismissing unripe
claims without prejudice rather than staying the case
and explaining, “[i]f the case is not ripe, there is no
subject matter jurisdiction, and thus no basis to issue a
stay”).

The New York State Constitution provides that
“[p]rivate property shall not be taken for public use
without just compensation .” N.Y. Const. art. I, § 7(a).

31

Daines, 815 F.Supp.2d 726, 735 (S.D.N.Y.2011); see
Country View Estates @ Ridge LLC v. Town of
Brookhaven, 452 F.Supp.2d 142, 144 (E.D.N.Y.2006)
(dismissing claims without prejudice on ripeness
grounds).32

Accordingly, Plaintiffs’ takings claim regarding the 2009
and 2010 Cuttings fails on ripeness grounds and is
“dismissed without prejudice to refiling if and when
Plaintiffs take the requisite actions necessary to make the
claim ripe for review on the merits.” TZ Manor, LLC v.

c. State-law claims
Plaintiffs’ remaining claims—their common law nuisance
claim and Article 78 claim—were not explicitly raised in
the state-court proceeding, and therefore I need not
abstain from exercising jurisdiction over them.
Nonetheless, the “traditional ‘values of judicial economy,
convenience, fairness, and comity’ “ weigh in favor of
declining to exercise supplemental jurisdiction where all
federal-law claims are eliminated before trial. Kolari v.
N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.2006)
(quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343,
350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)). Having

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2012 WL 3542222

determined that all of the claims over which this Court
has original jurisdiction should be dismissed, I decline to
exercise supplemental jurisdiction over Plaintiffs’
remaining state-law causes of action. See id. (citing 28
U.S.C. § 1367(c) (3)).33 Accordingly, these claims are
dismissed without prejudice.
33

I cannot in any event exercise jurisdiction over
Plaintiffs’ Article 78 claim. See Bender v. City of N.Y.,
No. 09–CV–3286, 2011 WL 4344203, at *10 (S.D.N.Y.
Sept.14, 2011) (Article 78 proceedings “must be
brought in the supreme court of the relevant county [of
New York]. Federal courts lack jurisdiction to hear
such claims.”); Blatch ex rel. Clay v. Hernandez, 360
F.Supp.2d 595, 637 (S.D.N.Y.2005) (“New York State
has not empowered the federal courts to consider
[Article 78] claims.”).

End of Document

IV. Conclusion
*17 For the foregoing reasons, Plaintiffs’ Motion for
Leave to Amend is GRANTED IN PART and DENIED
IN PART, and Defendants’ Motion to Dismiss is
GRANTED. All of Plaintiffs’ claims are dismissed
without prejudice. The Clerk of Court is respectfully
directed to terminate the pending Motions, (Docs.16, 39,
48–50), and close the case.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 3542222

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