Schneider v. Chandler et al

Filing 125

OPINION & ORDER.....The defendants May 1, 2017 motion to dismiss is granted. The second amended/supplemental complaint is dismissed with prejudice. The Clerk of Court shall enter judgment for the defendants and close the case. (Signed by Judge Denise L. Cote on 2/7/2018) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------X
:
STEVEN SCHNEIDER, P.E., and
:
SCHNEIDER ASSOCIATES,
:
:
Plaintiffs,:
:
-v:
:
COMMISSIONER RICK D. CHANDLER, P.E. :
in his individual and official
:
capacities, ASSISTANT COMMISSIONER :
ALEXANDRA FISHER, ESQ. in her
:
individual and official capacities, :
ASSISTANT COMMISSIONER TIMOTHY
:
LYNCH, P.E. in his individual and
:
official capacities, MATTHEW BURDGE,:
ESQ. in his individual and official :
capacities, MICHAEL MORELLI, ESQ. in:
his individual and official
:
capacities, RONALD PARK, ESQ. in his:
individual and official capacities, :
YEGAL SHAMASH, P.E. in his
:
individual and official capacities, :
AISHA NORFLETT in her individual and:
official capacities, BOROUGH
:
COMMISSIONER IRA GLUCKMAN, R.A. in :
his individual and official
:
capacities, BOROUGH COMMISSIONER
:
WENER DeFOE, R.A. in his individual :
and official capacities, BOROUGH
:
COMMISSIONER DEREK LEE, R.A. in his :
individual and official capacities, :
BOROUGH COMMISSIONER MARTIN REBHOLZ,:
R.A. in his individual and official :
capacities, THE CITY OF NEW YORK,
:
and JOHN AND JANE DOES NOS. 1-10,
:
:
Defendants.:
:
------------------------------------X

16cv6560(DLC)
OPINION & ORDER

APPEARANCES
For the plaintiffs:
Christopher M. Slowik
Klein Slowik PLLC
90 Broad Street, Suite 602
New York, NY 10004
For the defendants:
Sheryl Neufeld
Nicholas Ciapetta
Samantha Schonfeld
Zachary W. Carter
Corporation Counsel for the City of New York
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
Plaintiffs Steven Schneider and Schneider Associates were
disqualified from inspecting construction sites for the City of
New York (“City”) prior to the commencement of an administrative
hearing before the City’s Office of Administrative Trials and
Hearings (“OATH”).

They bring this action pursuant to 42 U.S.C.

§ 1983 alleging violations during that interim period of their
procedural and substantive due process rights, and of their
equal protection rights.

The defendants have moved to dismiss

the second amended/supplemental complaint (“SAC”) pursuant to
Federal Rule of Civil Procedure 12(b)(6).
reasons, the motion is granted.

2

For the following

Background
The following facts are drawn from the SAC.

Steven

Schneider is a professional engineer licensed by the State of
New York.

Until the events giving rise to the instant dispute,

Schneider was credentialed as a Special Inspector by the City
Department of Buildings (“DOB”).

Schneider is also the sole

proprietor of Schneider Associates, a firm that, also until the
events giving rise to this dispute, was credentialed by DOB as a
Special Inspection Agency (“SIA”).
The title of Special Inspector is awarded by the City to
individuals with certain professional and educational
qualifications in architecture or engineering.

Special

Inspectors inspect construction sites to ensure compliance with
the standards of the City Building Code.

The City awards the

title of SIA to entities that comply with the City’s regulations
and employ at least one Special Inspector.
In October 2015, Schneider Associates applied to the City
to renew its application as an SIA.

On November 2, DOB sent a

letter to Schneider Associates directing it to produce within
ten business days “[a]ll documents pertaining to” seven job
applications submitted by Schneider to DOB for special
inspections in Brooklyn and Queens.

This letter also directed

Schneider to appear in person at DOB for “a meeting to review

3

the aforementioned inspections, associated documentation, as
well as [his] qualifications to perform such inspections.”
The meeting between Schneider and DOB took place on January
7, 2016, with Schneider accompanied by counsel.

DOB was

represented at the meeting by Commissioner Matthew Burdge,
Special Enforcement Unit attorney Michael Morelli, Special
Enforcement Unit attorney Ronald Park, Assistant Commissioner
Timothy Lynch, and Investigative Engineering Services Unit
engineer Yegal Shamash, each of whom works for DOB and is a
defendant in this action (collectively, with Deputy Commissioner
of Legal Affairs Alexandra Fisher and Executive Director of
Licensing and Exams Aisha Norflett, the “DOB Defendants”).

At

this meeting, the five defendants asked Schneider questions for
several hours regarding the seven inspections listed in the
November 2 letter.

Schneider was not informed that DOB regarded

the January 7 meeting as part of a proceeding to disqualify him
as a Special Inspector.
On February 2, 2016, Schneider received a letter from DOB
signed by Burdge informing Schneider that DOB had “significant
concerns as to [Schneider’s] fundamental understanding of the
responsibilities of a special inspector and [his] ability to
properly conduct special inspections” and that “[t]he documents
. . . and the information provided [by Schneider to DOB] during

4

the [January 7] meeting[] were insufficient to address” DOB’s
concerns.

The February 2 letter further stated:

Based on these concerns relating to your performance
of special inspections, the New York City Department
of Buildings intends to disqualify you from performing
special inspections in accordance with § 28-115.2 of
the Administrative Code of the City of New York. This
letter shall serve as your notice of this proposed
action. If you choose to contest the proposed action,
within three (3) business days from the date of this
letter you must contact [a DOB employee] to schedule a
meeting. Such meeting shall take place within ten
(10) business days from the date of your call, and you
must personally appear for the meeting. The meeting
will be recorded and you may bring legal counsel if
you wish. If you wish to provide additional documents
for this meeting, copies must be delivered no later
than five (5) days prior to the scheduled meeting
date, directly to the attention of [Burdge].
. . . .
Should you fail to contact [DOB] within the specified
time or appear for a meeting within the specified
time, the Department will disqualify you from
performance of special inspections.
(Emphasis in original).
Three business days later, on February 8, DOB sent
Schneider a third letter, notifying Schneider that DOB “ha[d]
not received a meeting request within the allocated time to
contest the proposed action,” and that, “[a]ccordingly,
beginning immediately, YOU ARE DISQUALIFIED FROM CONDUCTING
SPECIAL INSPECTIONS AND PROGRESS INSPECTIONS IN THE CITY OF NEW
YORK.

The Department will no longer accept TR-1 forms bearing

your signature and seal in any capacity other than as the Design

5

Applicant.”

(Emphasis in original).

The letter further stated

that Schneider had “15 days in which to notify the Department of
all special inspections and progress inspections for which [he
was] currently responsible” and that it was Schneider’s
“responsibility to notify anyone affected by this
disqualification.”

(Emphasis in original).

Then, on February 19, DOB issued a letter to Schneider and
Schneider Associates informing them that Schneider Associates’
application to renew its SIA registration was denied based on
the “deficiencies in [Schneider’s] performance of specific
special inspections” identified in DOB’s February 2 letter.

On

February 26, a press release entitled “DOB BARS CONSTRUCTION
PROFESSIONALS INVOLVED IN FATAL ACCIDENTS” was posted on DOB’s
official website (“Press Release”).

(Emphasis in original).

The Press Release stated as follows:
The Department of Buildings announced today that it is
revoking the privileges of a special inspector and the
license of a master plumber who were implicated in
fatal accidents. DOB found that the special inspector
and the master plumber were negligent on job sites and
disregarded public safety. Last year, DOB launched an
enhanced disciplinary enforcement initiative against
unscrupulous construction professionals, leading to
these two cases and other high-profile disciplinary
actions last year that stopped work at more than 500
construction sites citywide.
In 2011, a concrete collapse occurred at an active
construction site at 2929 Brighton 5th Avenue in
Brooklyn resulting in the death of one worker and
injuring others. In the ensuing DOB review of site
conditions, Steven Schneider, a Professional Engineer
6

and Special Inspector, was unable to document that he
performed any safety inspections on site. Special
inspection privileges, which require years of
construction experience to obtain, allow a qualified
individual to monitor, inspect, and document that a
job is complying with approved plans throughout the
development process. Through its enhanced
disciplinary enforcement initiative, DOB audited
Schneider’s job history and found that he failed to
properly perform and document inspections on numerous
sites over the past few years. In addition, DOB found
that Schneider failed to report hazardous conditions
on at least one occasion. As a result of this
misconduct, the Department has permanently revoked his
Special Inspection privileges, denied renewal of his
Special Inspection Agency registration and referred
him to the State for further disciplinary action.
Plaintiffs have named as John or Jane Doe defendants the as-yet
unidentified DOB employee or employees who created and posted
the Press Release.
In March 2016, the remaining defendants, Brooklyn Borough
Commissioner Ira Gluckman, Bronx Borough Commissioner Werner
DeFoe, Queens Borough Commissioner Derek Lee, and Manhattan
Borough Commissioner Martin Rebholz (“Borough Commissioner
Defendants”) sent letters to approximately 122 persons for whom
plaintiffs had contracted to perform special inspections (“March
Letters”).

Each of the March Letters identified the address and

application number associated with the construction project and
stated, in part, as follows:
The Department of Buildings (the “Department”) intends
to revoke the approval and permit issued in connection
with the referenced application above . . . within
fifteen calendar days . . . unless sufficient
information is presented to the Department to
7

demonstrate that the approval and permit should not be
revoked.
These actions are the result of Steven Schneider,
P.E., the Special Inspector for the application number
indicated above, being disqualified from the
performance of Special Inspections.
You must retain a new Special Inspector in order for
this job to continue.
(Emphasis in original).

Most of the construction projects to

which these letters were sent were not the seven identified to
Schneider by DOB in its previous letters.

After the March

Letters were sent, many of the parties with whom plaintiffs had
contracted for special inspection services cancelled those
contracts.

In addition, some contract counterparties have

withheld payments owed to plaintiffs for work the plaintiffs had
completed prior to the disqualifications.
On October 11, 2016, DOB issued a letter to Schneider
stating that Schneider’s “Special Inspector privileges are
hereby restored, effective immediately.”

The next day, on

October 12, DOB filed a formal petition against Schneider,
initiating an administrative hearing to revoke Schneider’s
Special Inspector status before OATH.

8

Procedural History
Plaintiffs filed their original complaint in the present
action on August 18, 2016. 1

On November 15, plaintiffs moved for

a temporary restraining order and a preliminary injunction to
prevent the OATH hearing, scheduled for November 18, from taking
place.

The Honorable Jesse Furman, to whom this action was then

assigned, denied the motion at a hearing that day.
After the defendants filed a motion to dismiss on December
14, 2016, plaintiffs filed a first amended complaint on January
17, 2017.

The plaintiffs filed the operative pleading, the SAC,

on January 24, 2017.
In the SAC, the plaintiffs assert under 42 U.S.C. § 1983
that the individual defendants unconstitutionally deprived them
of property and liberty interests in violation of the Due
Process Clause of the Fourteenth Amendment, arising out of the
manner in which DOB disqualified Schneider from performing
special inspections and denied Schneider Associates’ SIA renewal
application, and deprived Schneider of his equal protection
rights by treating him differently than similarly situated
Special Inspectors.

The plaintiffs also bring two claims

against the City under Monell v. Dep’t of Soc. Servs., 436 U.S.

Plaintiffs have also challenged DOB’s actions in a proceeding
in New York state court, under Article 78 of the New York Civil
Practice Law and Rules.
1

9

658 (1978), on government custom and negligent training
theories.
Defendants moved to dismiss the SAC in its entirety on May
1, 2017.

This motion became fully submitted on June 27.

On

July 29, plaintiffs requested that the Court disregard the
report and recommendation from the OATH proceeding that
On

defendants attached as an exhibit to their reply papers. 2

November 7, 2017 this matter was reassigned from Judge Furman.

Discussion
In order to survive a motion to dismiss, “a complaint must
plead specific facts sufficient to support a plausible inference
that the defendant is liable for the misconduct alleged.”
v. Columbia University, 831 F.3d 46, 54 (2d Cir. 2016).

Doe
A court

must “accept[] all factual allegations in the complaint as true
and draw[] all reasonable inferences in the plaintiff’s favor.”
Tongue v. Sanofi, 816 F.3d 199, 209 (2d Cir. 2016) (citation
omitted).
“A complaint is deemed to include any written instrument
attached to it as an exhibit or any statements or documents
The OATH hearing took place over two days in February 2017, and
on May 25, 2017 the OATH administrative law judge issued a
report and recommendation that recommended Schneider be
disqualified from performing special inspections. DOB adopted
the report, thereby revoking Schneider’s registration as a
Special Inspector, on May 30, 2017.
2

10

incorporated in it by reference.”

Nicosia v. Amazon.com, Inc.,

834 F.3d 220, 230 (2d Cir. 2016) (citation omitted).

“Where a

document is not incorporated by reference, the court may
neverless consider it where the complaint relies heavily upon
its terms and effect, thereby rendering the document integral to
the complaint.”

DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,

111 (2d Cir. 2010) (citation omitted).

“A necessary

prerequisite for taking into account materials extraneous to the
complaint is that the plaintiff rely on the terms and effect of
the document in drafting the complaint; mere notice or
possession is not enough.”

Nicosia, 834 F.3d at 231 (citation

omitted) (emphasis in original).
The parties agree that the series of letters sent by DOB to
Schneider on November 2, 2015, and on February 2, 8, and 19,
2016, the March Letters issued by the Borough Commissioner
Defendants, and the Press Release issued by DOB on February 26,
2016, are integral to the SAC.

Other documents attached to the

defendants’ motion papers will not be considered.

They are

Schneider Associates’ SIA renewal application, the May 27, 2017
OATH report recommending that DOB disqualify Schneider from
performing special inspections, and two complaints filed in the
United States District Court for the Southern District of New
York.

11

I. Schneider’s Procedural Due Process Claims
The defendants have moved to dismiss the procedural due
process claims brought by Schneider.

Schneider asserts that his

procedural due process rights were violated when he was not
provided, prior to being disqualified as a Special Inspector on
February 8, 2016, with notice of the formal charges, a hearing
before a neutral adjudicator such as OATH, and other procedural
protections such as the power to issue subpoenas and the power
to call, examine, and cross-examine witnesses.
“In a § 1983 suit brought to enforce procedural due process
rights, a court must determine (1) whether a property interest
is implicated, and, if it is, (2) what process is due before the
plaintiff may be deprived of that interest.”

Nnebe v. Daus, 644

F.3d 147, 158 (2d Cir. 2011) (loss of taxi driver’s license upon
arrest).

For the purposes of their motion to dismiss, the

defendants do not contest that Schneider has a protected
property interest in his Special Inspector privileges.
Accordingly, the sole question is whether the process provided
to Schneider prior to February 8, 2016, as it is alleged in the
complaint, was constitutionally adequate.
To determine what process is due and whether the process
given was adequate, a court balances three factors:
First, the private interest that will be affected by
the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
12

used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government's interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

While a

predeprivation hearing is generally required before an
individual is deprived of property rights, the Mathews test is
used to determine “whether to tolerate an exception.”

Nnebe,

644 F.3d at 158 (citation omitted).
Regarding the first factor, the interest in “pursuing a
particular livelihood” is “strong.”

Spinelli v. City of New

York, 579 F.3d 160, 171 (2d Cir. 2009).

The Second Circuit has

recognized that the “interim period between erroneous
deprivation and reinstatement can be financially devastating”
and, as such “a licensee erroneously deprived of a license
cannot be made whole simply by reinstating the license.”

Id.

(citation omitted).
As for the second factor, the risk of erroneous deprivation
and the probable value of additional procedures, courts consider
both the significance of the pre- and postdeprivation process.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 n.12
(1985) (post-termination procedures are relevant).

In the

somewhat analogous situation, where a tenured public employee is
discharged, the Second Circuit has held that due process did not

13

require a pretermination hearing before a neutral adjudicator
because an Article 78 proceeding “constitutes a wholly adequate
post-deprivation hearing for due process purposes.”

Locurto v.

Safir, 264 F.3d 154, 175 (2d Cir. 2001) (police officer and fire
fighters discharged after appearing on racist police float).
The government’s interest includes both the cost to the
government of providing additional procedures and the interest
motivating the property deprivation itself.
U.S. at 335.

See Mathews, 424

One important government interest, for instance,

is promoting public safety.

See Ferrari v. Cty. of Suffolk, 845

F.3d 46, 60-62 (2d Cir. 2016) (seizure of vehicles whose drivers
had repeatedly driven recklessly or while intoxicated).
The motion to dismiss is granted as to the procedural due
process claims in Counts 1 and 2 alleging that the DOB
Defendants revoked Schneider’s Special Inspector privileges
without due process of law.

The plaintiffs’ theory of

deprivation is that the DOB Defendants violated Schneider’s due
process rights on February 8, 2016 -- the date DOB disqualified
him from conducting special inspections -- principally by not
providing him with formal charges and a hearing before a neutral
adjudicator such as OATH before doing so.

The first Mathews

factor favors Schneider; Schneider’s interest in pursuing his
chosen career of Special Inspector is constitutionally
significant.

The second and third factors, however, favor
14

defendants.

Schneider was entitled to contest his

disqualification through an Article 78 postdeprivation
proceeding.

Moreover, the City’s interest in protecting public

safety at building sites is significant.
Given the availability of the Article 78 hearing, it is
unnecessary to decide precisely what predeprivation process
Schneider was due.

It is worth noting, however, that he was

given both notice and an opportunity to be heard while
represented by counsel in advance of the February 8, 2016
decision.

Although DOB’s November 2, 2015 letter did not

specify that the January 7, 2016 meeting was part of a
disqualification process, that letter did note that DOB intended
to “review . . . [Schneider’s] qualification to perform
[special] inspections.”

And the February 2, 2016 letter

provided written notice of DOB’s intent to disqualify Schneider,
listed five grounds for disqualification, and gave Schneider
three business days to request a meeting to contest the proposed
disqualification.

That meeting would have taken place in person

and on the record, and Schneider would have been entitled to
bring legal counsel and provide evidence.
To the extent that Schneider bases his due process claim on
the DOB Defendants’ failure to follow City regulations when
revoking Schneider’s Special Inspector privileges on February 8,
his argument is misplaced.

Citing the Accardi doctrine,
15

Schneider asserts that City regulations required DOB to provide
an OATH hearing and other procedural protections before
disqualifying Schneider.

The Accardi doctrine is a “principle[]

of federal administrative law rather than of constitutional law
binding upon the States.”

Bd. of Curators of Univ. of Mo. v.

Horowitz, 435 U.S. 78, 921 n.8 (1978).

It requires federal

agencies to adhere to their own procedural regulations.

See

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268
(1954).

Section 1983, under which this suit is brought, allows

plaintiffs to enforce federal constitutional or statutory
rights.
2013).

See Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir.
The DOB Defendants’ alleged disregard of the City’s

regulations is not relevant to a Section 1983 claim except to
the extent that the process provided fell short of the minimum
required by due process.

Because the SAC does not plead a

constitutionally deficient process, counts 1 and 2 of the SAC
are dismissed.
II. Schneider Associates’ Procedural Due Process Claim
Schneider Associates contends it was deprived of due
process when its application to renew its registration was
denied.

Schneider Associates asserts that it was entitled to

the presentment of formal charges and an OATH hearing before any
denial decision.

The defendants have moved to dismiss the

procedural due process claims brought by Schneider Associates on
16

the ground that Schneider Associates had no protectable property
interest that gave rise to due process protections.
Property interests are “created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law.”

Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 577 (1972).

“When alleging a

property interest in a public benefit, the plaintiff must show a
legitimate claim of entitlement to such interest that is
grounded in established law.”
(citation omitted).

Spinelli, 579 F.3d at 169

Thus, if the decision whether to grant or

deny an application for a license renewal is committed to agency
discretion, the Fourteenth Amendment does not protect the
applicant’s interest in that license.

See N.Y. State Prof’l

Process Servers Ass’n, Inc. v. City of New York, No. 14 Civ.
1266 (DLC), 2014 WL 4160127, at *8 (S.D.N.Y. Aug. 18, 2014),
aff’d sub nom. Clarke v. de Blasio, 604 F. App’x 31 (2d Cir.
2015); see also Spinelli, 579 F.3d at 169 (noting that “there
may be no protected property interest where the licensor has
broad discretion to revoke the license”).
Schneider Associates did not have a property interest in
the renewal of its SIA registration.

The City administrative

code does not specify any standards for approving applications
to renew SIA registration.

See R.C.N.Y. § 101-06(c).

In fact,

the only constraint on the City’s discretion regarding renewal
17

applications is a negative constraint, namely that “[r]enewal
will be precluded where there has been a finding by the
commissioner that any special inspection or test conducted by
the special inspector or special inspection agency has not been
performed in accordance with the requirements set forth in the
code.”

R.C.N.Y. § 101-06(c)(10)(i).

Thus, Count 3 of the

complaint is dismissed.
III. Plaintiffs’ Due Process Claim Based on the Loss of
Contracts
In Count 4, the plaintiffs seek damages from the Borough
Commissioner Defendants for the loss of their contracts with
third parties after those defendants sent the March Letters to
those third parties.

The plaintiffs assert that they were

entitled to an OATH hearing before such letters could be sent.
Assuming plaintiffs possessed a protectable property
interest in the contracts to perform special inspections,
plaintiffs have not shown how the March Letters are anything
other than a logical consequence of the deprivation of
Schneider’s Special Inspector status, which for the reasons
explained above comported with due process.

The City requires

special inspections for certain building projects; once
Schneider was disqualified from performing those inspections,
the building permits that relied on his special inspection
services could no longer do so.

Because the underlying
18

disqualification comported with due process, the notification to
third parties of this disqualification and its effect on their
building permits is not unconstitutional.

Finally, to the

extent that Schneider’s contracting counterparties have failed
to compensate him for work performed prior to their receipt of
the March Letters, that conduct is not fairly traceable to the
March Letters, which are solely prospective in nature.
Accordingly, Count 4 is dismissed.
IV. Stigma-Plus Claim
Schneider asserts that the Press Release contained false
information which stigmatized him and caused him to lose
business.

He asserts that its publication constituted a

“stigma-plus” violation of his procedural due process rights.
The defendants have moved to dismiss Schneider’s stigma-plus due
process claim on the ground that an Article 78 proceeding
provided him with an adequate opportunity to clear his name.
To state a claim that his liberty interests were violated
on a stigma-plus theory, Schneider must allege
(1) the utterance of a statement about [him] that is
injurious to [his] reputation, that is capable of
being proved false, and that he . . . claims is false,
and (2) some tangible and material state-imposed
burden in addition to the stigmatizing statement.
Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005) (citation
omitted).

“[T]he availability of adequate process defeats a

stigma-plus claim.”

Segal v. City of New York, 459 F.3d 207,
19

213 (2d Cir. 2006).

As in other due process contexts, the key

question is whether Schneider was given “the right to be heard
at a meaningful time and in a meaningful manner.”
omitted).

Id. (citation

In the context of at-will government employees, and

relying on the balancing test enunciated in Mathews v. Eldridge,
424 U.S. 319 (1976), the Second Circuit has held that an
“Article 78 proceeding provides the requisite post-deprivation
process . . . .”

Anemone v. Metropolitan Transp. Auth., 629

F.3d 97, 121 (2d Cir. 2011).
Assuming that the Press Release constitutes a defamatory
statement sufficient to state a stigma-plus claim, Schneider
fails to state a claim.

The Press Release followed the February

8, 2016 notice to Schneider that he had been disqualified by DOB
from conducting special inspections.

The Press Release advised

the public of that disqualification.

Accordingly, as was true

for the procedural due process claims Schneider brings in Counts
1 and 2, the Article 78 review process afforded him all of the
process to which he was due.

Count 6 of the SAC is therefore

dismissed.
V. Monell Claims
The defendants have moved to dismiss Counts 5 and 7 of the
SAC, which are Monell claims brought against the City premised
on the liability of City officials for violating the plaintiffs’
procedural due process rights.

“Liability under section 1983 is
20

imposed on the municipality when it has promulgated a custom or
policy that violates federal law and, pursuant to that policy, a
municipal actor has tortiously injured the plaintiff.”
v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013).

Askins

Because the

plaintiffs have failed to state a claim for any of the predicate
constitutional torts pleaded in the SAC, their Monell claims
fail.

As a result, Counts 5 and 7 are dismissed.

VI. Substantive Due Process
The defendants have moved to dismiss the plaintiffs’
substantive due process claims, which assert that the
defendants’ actions to disqualify the plaintiffs constituted a
gross abuse of governmental authority.

“Substantive due process

protects against government action that is arbitrary,
conscience-shocking, or oppressive in a constitutional sense,
but not against government action that is incorrect or ill
advised.”

Cunney v. Bd. of Trustees of Village of Grand View,

N.Y., 660 F.3d 612, 626 (2d Cir. 2011) (citation omitted).
“[W]hile a procedural due process claim challenges the procedure
by which a removal is effected, a substantive due process claim
challenges the fact of the removal itself.”

Southerland v. City

of New York, 680 F.3d 127, 142 (2d Cir. 2012) (citation
omitted).
Taking the allegations in the SAC as true, plaintiffs have
not pleaded a violation of their substantive due process rights.
21

There is nothing conscience-shocking in the manner in which
Schneider or Schneider Associates were disqualified or in the
act of disqualification.

Schneider was informed in advance of

DOB’s intention and both were disqualified by letter.

As a

result, Counts 8 and 9 of the SAC are dismissed.
VII. Class-of-One Equal Protection Claim
Lastly, the defendants have moved to dismiss plaintiffs’
equal protection claim, which alleges that DOB treated
plaintiffs differently than other, similarly situated Special
Inspectors and SIAs in the manner they disqualified Schneider
and Schneider Associates.

To state a claim for a violation of

their equal protection rights, plaintiffs must allege that
(i) no rational person could regard the circumstances
of the plaintiff to differ from those of a comparator
to a degree that would justify the differential
treatment on the basis of a legitimate governmental
policy; and (ii) the similarity in circumstances and
difference in treatment are sufficient to exclude the
possibility that the defendants acted on the basis of
a mistake.
Fahs Const. Grp., Inc. v. Gray, 725 F.3d 289, 292 (2d Cir. 2013)
(per curiam) (citation omitted).

If a plaintiff fails to allege

comparators “sufficiently similar” who were treated differently,
they fail to state a class-of-one equal protection claim.
Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 60 (2d
Cir. 2010).

22

The plaintiffs’ equal protection claim fails because they
have not identified comparators.

Their “[t]hreadbare recital[]

of the elements of [the class-of-one] cause of action, supported
by mere conclusory statements, do[es] not suffice” to state a
claim.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Count 10

of the SAC is dismissed.

Conclusion
The defendants’ May 1, 2017 motion to dismiss is granted.
The second amended/supplemental complaint is dismissed with
prejudice.

The Clerk of Court shall enter judgment for the

defendants and close the case.

Dated:

New York, New York
February 7, 2018
__________________________________
DENISE COTE
United States District Judge

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