Gym Door Repairs, Inc. et al v. New York City Department of Education et al

Filing 35

OPINION: Upon the conclusions set forth above, Plaintiffs' request for injunctive relief is denied, and Defendants' motion (23) to dismiss the Complaint is granted with leave given to replead within twenty days. (Signed by Judge Robert W. Sweet on 9/5/2013) (cd)

UNITED STATES DISTRI
COURT
SOUTHERN DISTRICT OF NEW YORK

------x
GYM DOOR REPAIRS,
SYSTEMS LLC,

INC. and SAFE PATH

PIa

12 Civ. 7387

iff,

OPINION

-againstNEW YORK CITY DEPARTMENT OF EDUCATION,
DENNIS M. WALCOTT, as
ancel r of the
New York City Department of Education,
NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY, THE BOARD OF TRUSTEES OF THE
NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY, THE CITY OF NEW YORK,
JOHN T. SHEA, as chief Execut
Officer
of New York City Department of
Education
sion of School Facilities,
VOLKERT BRAREN, as Director of Program
Management of NYCDOE, CHRIS COYLE, as
Construction Project Manager of New York
City Department of Education,
CHRIS D'ALIMONTE, as Borough Contract
Manager of New York City
rtment of
Education, THOMAS FANIZZI, as Manhattan
Maintenance Planner of New York City
Department of Education and
sion of
School Facilities and JOHN DOE NUMBERS 1
through 5, whose names are not presently
unknown, as agents, servants and employees
of THE CITY OF NEW YORK,
Defendants.

---x
A P PEA RAN C E S:
Att

for Plaintiffs

TARTER KRINSKY & DROGIN LLP

1350 Broadway, 11th Floor

New York, NY 10018

-~""""'::::'''===:

. tlSDC SDNY - - - - : ­
., :)OCUMENT

'LECTRONICALLV ['If J'~',
·)OC #:
_DATE FI:-:LED---';
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.;.. .,-;;:

4>

;=A

By: Eric
,Esq.
Lisa M. McIntyre, Esq.
Eva M. Young, Esq.

Attorne

for Defendants

MICHAEL A. CARDOZO
Corporation Counsel of the
ty of New York
100 Church Street, Room 5-180
New York, NY 10007
Scott Glotzer, Esq.

2

De

ndants the C

of New York (

"City"), New York

City Department of Education ("NYCDOC"), Dennis M. Walcott, New
York

Y School Construction Aut

ty ("NYCSCA"), Board of

Trustees of the New York City School Construction Author
John T.

, Volkert Braren, Chris Coyle, Chris D'

y,

imonte and

Thomas Fanizzi, and John Doe Numbers 1 through 5 (the
"Individual Defendants", and collectively "Defendants"), have
moved to dismiss the compla
Inc.

of

aintiffs Gym Door Repairs,

("GDRI") and Safepath Systems LLC ("SSL" and collectively,

the "PIa

iffs") pursuant to Fed. R. Civ. P. 12 (b) (6)

12(b) (6)"). Upon the conclusions set forth below, t

("Rule
motion is

granted.

Prior Proceedings

The Plaintiffs filed a complaint (

"Complaint") on

October 2, 2012 in which they asserted claims under 42 U.S.C. §
1983 ("§1983") aris

from,

inter alia, the all

of a protectable property interest without

process.

rivation
On

December 31, 2012, the Defendants moved to dismiss the
Complaint.

The motion was heard and marked fully submitted on

March 13, 2013.
3

The Facts

In 2001, the New York State 1
Education Law § 409-f (t

islature enacted

"Statute") in response to the dea

of two students resulting from accidents involving electrically
operated partitions used in school gyms.

Compl.

~

15.

The

Statute mandated that

Every electrically operated partition or
room divider
11 be equipped with safety
devices which, subject to standards
establis d in rules and regulations
promulgated by the commissioner, stop the
forward motion of the partition or room
divider . . . when a body passes between t
leading panel of such divi r and a wall, or
when a body is
t
stac ng area of such
partition or divider.

N.Y. Educ. L.

§

409-f.

In furtherance of

Statute, the New York State

Education Department promulgated and implemented Commissioner's
Regulation
alia,

§

155.25 (the "Regulation"), which required, inter

that the safety equipment installed pursuant to the Statue

"shall not be tampered with, overridden or by-passed" and "must
be maintained in accordance with the manufacturer's

4

instructions, including the manufacturer's recommended service
interval .

Compl.

"

<j(

17.

Plaintiffs are manufacturers, installers and service
contractors of safety system cal

Safepath System ("SPS"

or the "System"), which is designed to prevent accidents
involving electrically operated partition doors.

2007,
sa

In or around

fendant NYCSCA, which is responsible for ensuring the
y of New York

ty's school

ilities, issued the New York

Y School Construction Authority Manual (the
"Speci

cations"), which set forth det

regarding the
elect

Is and

tructions

sign, construction and maintenance of

cally operated partitions in t

City's schools.

Section

4(a) of the Specifications mandated that "[tJhe infra-red sa
detection system shall be "S

-Path" as manufactu

ty

by [GDRIJ

"

According to Plaintiffs, the combined ef
Statute,

Regulation and the Speci

of the

cations is to require the

City's schools to utilize Plaintiffs' Safepath System on all
elect

cal

operated partition doors subject to the Statute,

and to utilize Plaintiffs' services to install, service, repair
and maintain

S

tern, and to train and certify maintenance
5

rform those duties.

technicians and/or contractors to
~

39.

Plaintiffs believe that these

Compl.

irements have the

effect of conveying a property interest to Plaintiffs

rail

revenue and business opportunities generated from the labor,
ma

als and/or

parameters of

ces required in order to comply wi
Statute, Regulation and

cifications.

the
Id.

Although there are more than 1,000 electrically
operated partitions that require a sa

y system pursuant to the

Statute, Plaintiffs have not installed their Safepath System on
more than half of those locations.

Id.

~~

41-44.

Moreover, the

Safepath Systems that have been installed have not been
regularly inspected, services, repaired and/or maintained
exclusively by Plaintiffs.

Id.

~~

45 46.

Beginning in 2004, Plaintiffs repeatedly advised
Defendants concerning their alleged property interest vested by
the Statute, Regulation and Specifications, and demanded that
Defendants adhere to the requirements of these mandates by
exclus
48-57.

ly utilizing Plaintiffs' products and services.
Defendants reject

these demands.

6

Id.

~

61.

Id.

~~

After unsuccess

lly seeking redress from the New York
New York State

City Department of Investigations and

Attorney General's Office, in March 2011 Plaintiffs cowmenced a
lawsuit in New York Supreme Court pursuant to N.Y. C.P.L.R. § 78
(the "Article 78 Action")

which they sought to compel

Defendants to recognize their alleged property interest and
s' compliance with the Statute and the

orce the De
Regulation.

Id.

~~

63 65.

The New York Supreme Court (the

"State Court") ultimately ruled that Plaintif
to bring the Article 78 Action.

Id.

According to Plaintiffs, De
filing

~

lacked standing

65.

ndants retaliated for the

the Article 78 Action by directing contractors engaged

by NYC DOE and NYCSCA to perform school construction and
improvement work to "never use" Plaintiffs' Safepath System or
services on any school-related construction projects.

.

~

66.

In or about April 2012, references to Plaintiffs and
the Safepath System were removed from the Specifications.
67.
modif

According to Plaintiffs, Defendants effected this
ion of the Specifications in retaliation for

Plaintiffs' efforts to enforce compliance with the Statute,
Regulation and Specifications.

Id.
7

Id.

~

Plaintiffs thereafter initiated the
in which they have assert

(i) cIa

stant lawsuit,

under §1983 for viol

ion

r procedural and substantive due process rights as a
result of being deprived of t

ir alleged property interest,

(ii) a First Amendment retaliation claim and (iii) a request for
injunctive relief requiring Defendants to exclus
Plaintif

ly use

' products and services in the course of complying

with the Statute.

The Applicable Standard

On a motion to dismiss pursuant to Rule 12(b) (6), all
factual allegations

the complaint are accept

1 inferences are drawn in favor of
Molecular Co

12 F.3d 1170, 1174

as true, and

pleader. Mills v. Polar
(2d Cir. 1993).

The issue

"is not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer

dence to support t

claims."
(2d Cir. 1995)

56 F.3d 375, 378
Scheuer v. Rhodes,

(1974)).

8

416 U.S. 232, 235-36

To survive a motion to dismiss pursuant to Rule
12(b) (6), "a complaint must contain sufficient factual matter,
ief t

accepted as true, to 'state a claim to
on its face.'N Ashcroft v. I

570 (2007)).

e

556 U.S. 662, 129 S.Ct. 1937,

Bell Atl. Co

1949 (2009)

aus

1S

v. Twombl

550 U.S. 544,

Plaintiffs must allege sufficient facts to "nudge [

1 their claims across the line from conceivable to plausible. N
550 U.S. at 570.

Twombl

ctual all

the

ions of a complaint as true, it is "not bound to

accept as true a Ie
all

Though the court must a

ion. N -----"'-­
I

1 conclusion couched as a factual
556 U.S. at 678

(quoting Twombl

550 U.S.

at 555).

The Complaint Fails To State A Claim Under 42 U.S.C.

Section 1983 "does not itself provi
rights, but in

a method for

ct of

rights elsewhere confer

1983

substant

ndicating
v. Count

"

§

ral

of Nassau, 2009

U.S. Dist. Lexis 27105, at *58 (E.D.N.Y. Mar. 30, 2009)
(internal quotation marks omitted); Patterson v. Count
Oneida, 375 F.3d 206, 225 (2d

r. 2004); Cit

of

of Oklahoma

v. Tuttle, 471 U.S, 808, 816 (1985); Baker v. McCollan, 443 U.S.
137, 144 n.3(l979);

kes v.James
9

13 F.

515, 519 (2d Cir.

1993) ;

~~~

__

~~~L-

of New York, 2009 U.S. Dist. Lexis 30241,

_ _ _ _ _ _ _ _ _ ____

r i l l , 2009).

at *10 (S.D.N.Y.

In general, "Section 1983

provides a cause of action for the 'depr
privileges, or immunities s
by any

rson act

by

Constitution and laws'

'under color of any statute,

regulation, custom, or us

It is well sett

nance,

0

, of any State or Territory.'"

Gomez v. Toledo, 446 U.S. 635,

§

tion of any rights,

638

(1980).

that "to state a claim under

1983, a plaintiff must allege (1)

that the challenged conduct

to a person acting under color

was attributable at least in

of state law, and (2) that such conduct deprived the

aintiff

of a right, privilege, or immunity secured by the Constitution
or laws of the United States."

Roffman v. Cit

of New York

st. Lexis 23665, at *10 (S.D.N.Y. Dec. 10, 2002);

2002 U.S.

see also Gomez,

446 U.s. at 640.

Here, Plaintiffs have alleged that Defendants'
conduct, in

l

ng Plaintiffs of their alleged

operty

interest in the revenue and business opportunities resulting
from P

intiffs' purported right to the be

exc

s

supplier and servicer of safety devices for electrically
operated

rtitions in New York City schools, had the effect of
10

depriving Plaintiffs of their constitutional rights to
procedural and substantive due process.

As set

rth below,

both of these claims fail because Plaintiffs have not
established t
there

existence of the property interest, and

have not alleged a deprivation sufficient to support a

§1983 claim.

olation

The constitutional right to procedural
requires that a deprivation of

ife, 1

Plainti

,

process

rty, or property

preceded by notice and an opportunity to be heard. Mullane v.
Central Hanover Bank & Trust, 339 U.S. 306,313 (1950).

Whether an individual's procedural due process rights
ied rests on whet

have

r that

rson has been deprived

of a liberty or property interest subject to due process
protection.
(1972).

_B_o~a~r~d~o~f~~~___s __ ~R_~t~h,
__v . _ o

408 U.S. 564, 569-72

The Supreme Court has explained that a property

interest in a benefit requires "more than an abstract ne

or

sire for it" and more than a "unilateral expectation" of
receiving the benefit. Id. at 577.

In order to serve as the

basis for a procedural due process claim, an ind
11

dua' must

have a "legitimate claim of entitlement" to the benefit at
issue.

rd.

universe of property rights subject to due

process protections "are created and their dimensions are
fined by

sting rules or understandings that stem from an

independent source such as state law."
60, 62

(2d Cir. 1992).
ion

type of

Accordingly, a s
will subs

a benef

St

v. Green,
ect

978 F.2d

hope or

ntly issue is not the

rest that triggers due process protection.

Roth,

408 U.S. at 577.

In

r to make out a cause of action for denial of

0

process, a plaintiff must "first

procedural

ntify a

property right, second show that the State has deprived h
that right, and third show t
without due process."
__

~~L-

__

~

____

~

____

~

of

t the deprivation was effected

Local 342

----------~-----~----------------------

________________________________

1191 1194 (2d Cir. 1994),

~~

__

, 31 F.3d

Mehta v. Surles, 905 F.2d
r curiam)).

595, 598 (2d Cir. 1990)

"The burden is on the

one complaining of a due process violation to establish that the
legislature has acted

an arbitrary and irrational way," i.e.,

without due process of law.
of New York,
F.2d 1199 (

All Aire Condition

979 F. Supp. 1010, 1018 (S.D.N.Y. 1997), aff'd, 166
Cir. 1998).
12

Under the New York State public bidding laws:
low bidder nor any ot

"[nJeither

r bidder has a vest

a public contract

property interest

(1985)

Conduit &

rt Authori

v. Met
144, 148-49,

"

, 66 N.Y.2d

(citations omitted); see also John Gil

Construction, Inc. v. Riverso, 72 F. Supp.2d 242, 252

(S.D.N.Y.

1999); Schiavone Construction Co. v. La Rocca, 117 A.D.2d 440,
443 (3d Dep't 1986); Callanan Indust. v. Count
116 A.D.2d 883, 884

v.

(3d Dep't 1986); Eastwa

of Schene

Construction Co

rk, 762 F.2d 243, 250 (2d Cir. 1985)

(involvement in publicly financed project does not rise to level
of property interest).

Moreover, the Complaint has not alleged any
contractual rights as against Defendants. Plaintiffs perform
ialty work under sub-contracts wi
Contractors ("JOC").
Plaintiffs lack

Compl.

<J1<J1

53,

66.

t

Job Order
As subcontractors,

of contract with Defendants, and are

thus precluded from bringing suit against Defendants. - - - " ' - ' ­
Ba
Bette &
(3d

Duke, Inc. v. State of New York, 240 A.D.2d 54, 56

' t 1998); Travelers Cas. & Sur. Co. v. Dormitor

735 F. Supp.2d 42, 69 (S.D.N.Y. 2010).
13

.,

In addition, absent an intent to benefit a
prime contract, a

subcontractor that is expressly stated in t

subcontractor is not a third-party beneficiary.
Electrical Construction

. v. Atlas

(1976); Faist v. Garsl
(2nd

Port Chester

40 N.Y.2d 652,

Construction

656

220 A.D.2d 718, 719

't 1995); Artwear, Inc. v. Hughes, 202 A.D.2d 76,

84

(1st Dep't 1994);
Point Condominium III

182 A.D.2d 664,665 (2d Dep't 1992); 156

A . D. 2 d 550, 551 ( 2 d Dep 1 t

1989); _A_r_r_o_w_L_o_u_v_e_r_& _--*-_r_v_._N_e_w_
_

York Cit

106 A.D.2d 533, 534

Transit Auth.

(2d Dep't 1984).

Further, the incorporation into a subcontract of construction
specifications and other requirements of a pr

contract does

not vest any rights in a subcontractor against an owner. Port
Chester Electric Construction Co. v. Atlas, supra, 40 N.Y.2d at
Inc. v. Binks Manu

656; S. Leo Harmona

Co., 597 F.
., 1985

Supp. 1014, 1024-1026 (S.D.N.Y. 1984) aff'd without
U.S. App.

s 26713

1746, etc. v. Unit

(2d Cir. March 5, 1985);

_Aircraft, 534 F.2d 422,

441

s 743 and
(2d Cir. 1975).

Here, Article 58A of DOE's general contract
specifically disclaims any relationship between itself and any
subcontractor, providing that nothing in either the general
14

into by the general

contract or any sub-contract ente

between the

contractor will create any contractual relationsh
Declaration of Scott Gl

subcontractor and DOE.

ss ("Glotzer Decl.")

Support of City Defendants' Motion to Di
~

zer in

10 & Exhibit E.

has also failed to establish

The Compla
PIa

iffs have a

ght to be awarded a public contract or to

subcontract on a public contract. In cases of contracting,
government officials have a "significant
continued conferral of [a] benefit,
that

rec

scretion" over "the

[and thus] it will

rare

ent will be able to establish an entitlement to

that benefit."

Kell

Kare Ltd. v. O'Rour

930 F.2d 170, 175

(2d Cir. 1991); see also Town of Cast

Rock v. Gonzales, 545

U.S. 748, 756 (2005); RR Vii

Inc. v. Denver Sewer

Corp., 826 F.2d 1197, 1202

(2d Cir. 1987).

Moreover, Under New

York law, DOE may only award contracts to the lowest responsible
dder.

GML § 103, Educ. Law §§ 2556(10), 2556(10-a).

In the face of

se well-established norms and laws

regarding the awarding of government contracts, the mere fact
that

aintiffs

maintenance

laterally inserted language in their own

structions that expressly precl
15

anyone ot

r

than Plaintiffs from performing the maintenance, see Compl.
38, cannot have
a sole source relat

ef

of requir
sh

~

Defendants to enter into

with Plaintiffs.

Accordingly, the

language in the Regulation requiring that "[a]ll equipment must
be maintained in accordance with the manufacturer's
instructions H must be understood as mandating con

rmity w

the methods and procedures prescribed by the manufacturer,
rather than commanding that the manufacturer be ves
power to determine vendor selection.

with

See ----~----~--~~--~~
Dai
Co­

v. Brannan, 173 F.2d 57, 66 (2d Cir. 1949)

(holding

that "when alternative interpretations [of an administrative
regulation] are poss
be chosen.

e, the more reasonable of the two is to

. fI) •

Lastly, even assuming, arguendo, t

Plaintiffs have

somehow alleged a protectable property right, they have still
led to allege a deprivation of such right without procedural
due process, given that Plaintiffs had the opportunity to pursue
Arti

e 78 review.

See Beechwood Restorative Care Center, et

al. v. Leeds, et al., 436 F.3d 147, 156 (2d Cir. 2006)
t

"[a]n Article 78 proceeding.

afford[s] a meaning

post-deprivation remedyH that obviates a
violation) i C.A.U.T.I.O.N.

Ltd. v. Cit
16

(holding
1

aim for due process
of New

898 F.

lmer, 468 U.S.

Supp. 1065, 1074-75 (S.D.N.Y. 1995); Hudson v.
517, 533 (1984).

B.
Ri

The Compla t Fails To Allege A Violation of Plaintiffs'
t to Substantive Due Process

"To establish a

olation of a right to substantive

due process, 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.'"
c

Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005),

ing

f Sacramento v. Lewis, 523 U.S. 833, 847

The Court of Appeals
stated that "in
vi

Second Circuit

s

t

(1995)).
y

r to shock the conscience and trigger a

ation of sUbstantive due process, official conduct must be

outrageous and

regious under

circumstances; it must be

truly 'brutal and offensive to human dignity .... '" Lombardi v.
Whitman, 485 F.3d 73, 81-82 (2d Cir. 2007), quoting Smith v.
Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir.
2002); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973);
__

~~

__

~~d-~~~

of _ _ _ _ _ _ _ __ _
2006 U.S. Dist. Lexis
New York,

_ _ _ _ _ _ _ _'_ _

~

62220 at *30 (S.D.N.Y. Aug. 30, 2006); aff'd, 293
(2d Cir. 2008).

(Government action must be "arbitrary,

17

Appx. 13

conscience-shoc

a constitutional sense,H

ng, or oppressive

ct or ill-advised").

not merely "

Moreover, the governmental action must be the product
of an improper motive unrelated to a legitimate governmental
purpose,

"Only a substantial

fringement of state law prompted

by personal or group animus, or a deliberate flout

of the law

that trammels significant personal, or property rights,
qualifiers]

for relief' under the doctrine of substant

process. Natale v. Town of
1999)

field,

170 F.3d 258,263 (2d Cir.

(citation omitted); Heath v. Henning, 854 F.2d 6,

Cir. 1988)

due

9 (2d

(contrasting Fourth Amendment standard of obj ect

reasonableness wi

substantive due process standard requiring

improper motive) .

In addition, contractual rights, by themselves, will
not support a substantive due

ss claim since "simple state-

law contractual rights, without more, are [not] worthy of
substantive due process protection." Local 342. 1. I. Public
Co.
s, 31 F.3d at 1196; ----------- ~----------~----Russell P

Service

----------~--~---

v. Ci

of New York

..

1997 U.S. Lexis 1970 at *30 (S.D.N.Y. Feb.

21, 1997).

18

In the instant case, the Complaint does not identify
was revoked, denied, or on

any contract or sub-contract t
whi

P

intiffs received a declaration of de

It, a finding of

non responsibility, or a negative evaluation, or any ot
of conduct that could possibly
conscience."

r type

construed as "shocking the

Rather, the Complaint has merely alleged

Plaintiffs were depr

of a right to be sole source suppliers

and servicers of electrically operated partition doors and to be
listed in perpetuity as such in the SCA's specifications, Compl.
<JI<JI

53, 61, 66, 67 ,74,80, 81, which is a

did not in fact possess. See

§

A.

ght that Plaintiffs
Accordingly,

Plaintiffs

have not alleged a substantive due process violation.

The Complaint Has Not Stated A Claim For First Amendment
Retaliation

To prevail on a claim
a plaintiff must demonstrate:
matter of public concern;

r

rst Amendment retaliation,

(i) that his

(ii) that he s

ch

ss

a

fered an adverse

action; and (iii) the existence of a causal connection between
spee

and

adverse action indicati

a motivating factor for the adverse action.
F.3d 79,9: (2d Cir. 2003); Mandell v. Count
19

that the speech was
Cobb v. Pozzi,352
lk,

3:6

F.3d 368,382 (2d Cir. 2003); _R_e_c_k_s_o_n__~____~~________~~v .
__
New York State Urban Deve

ion, 2006 U.S. Dist.

----------------~------------~--------~--------

Lexis 49269 at *12 (S.D.N.Y. July 12, 2006); Ruotolo v. Cit

of

New York, 2006 U.S. Dist. Lexis 49903 at *15 (S.D.N.Y. July 19,
2006) .

the third element of their retaliation

To satis

claim, Plaintiffs have alleged that their speech - i.e., their
complaints to Defendants and filing of t
result

Article 78 Action ­

in the adverse action of Defendants depriving

Plaintiffs of

ir property interest

the revenue and

business opportunities resulting from installat
of the safety systems required
forth above,
there

Plaintif

the Statute.

and servicing
However, as set

have no such property interest, and

have failed to adequately allege the

ir retaliat

claim, which is fatal to

retaliation claim.

See Kuck v. Danaher,

rd element of
rst Amendment

600 F.3d 159, 167-68

(2d Cir. 2010).

Plaintiffs' Request For Injunctive Relief Is Denied

Under Second Circuit law, an injunction is properly
grant

when the

aintiff shows "(a) ir
20

rable harm and (b)

either (1)

to t

stions go

sufficiently serious

s or (2)

me

likelihood of success on t

merits to make them

a balance of ha

a fair ground for litigation

hips tipping

cidedly toward the party requesting preliminary relief."
Global Mkts.

Fund, Ltd., 598 F.3d 30, 35
Dai

rtunities Master

Inc. v. VGS
(2d Cir. 2010)

Inc. v. H.P. Hood & S

s

on

Inc., 596 F.2d 70, 72

~~~~~~~~~~~~~----~~~~~--

(2d Cir.

1979)).

PIa

iffs have

leged that

yare entitled to

injunctive relief because Defendants' are depriving them of
ir property interest granted by the Statute, Regulation and
Specifications.

Compl.

~~

92 93.

As set fo

above,

Plaintiffs have no such property interest; accordingly, they
have

iled to aIle

their request

an irreparable

relief.

rm, which is fatal to

See ----~--~----~--~------~----~
Fa
rt Malmo AB v.

Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009).

21

Conclusion

Upon the conc

ions set fo

above, Plaintiffs'

request for injunctive relief is denied, and Defendants' motion
to

smiss the Complaint is granted with leave given to replead

within twenty days.l

It is so ordered.

New York, NY
September

6--;-2013

ROBERT W. SWEET
U.S.D.J.

S

Plaintiffs' cIa
fail on the merits, there is no ne
to address Defendants' alternat
arguments.
1

22