Tower Properties LLC v. Village of Highland Falls et al

Filing 23

OPINION & ORDER: Defendants' motion to dismiss is GRANTED in part and DENIED in part. Defendants' motion to disqualify counsel is DENIED. Plaintiff shall have until 30 days from the date of this Order to amend the Second Amended Complaint as to the Due Process Clause and 42 U.S.C. § 1982 claims as set f01ih in this Opinion. If Plaintiff elects to file a third amended complaint, Defendants shall have until 30 days from the date of Plaintiffs filing to move or file responsive p leadings. If Plaintiff does not file a third amended complaint, Defendants shall have until 60 days from the date of this Order to file responsive pleadings on the remaining claims. An initial in-person case management and scheduling conference pu rsuant to Fed. R. Civ. P. 16 is scheduled for September 11, 2015 at 10:00 a.m., at the United States Courthouse, 300 Quarropas Street, Courtroom 218, White Plains, New York 10601. The parties shall confer in accordance with Fed. R. Civ. P. 26(f) at least 21 days prior to the conference and attempt in good faith to agree upon a proposed discovery plan that will ensure trial readiness within six months of the conference date. The parties shall also complete a Civil Case Discovery Plan and Scheduling Order and bring it to the conference. The Court respectfully directs the Clerk to terminate the motion at ECF No. 12. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 7/6/2015) (lnl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TOWER PROPERTIES LLC, d/b/a NICOLES
a/k/a NICOLES CATERING HALL,
Plaintiff,
14-cv-04502 (NSR)
-againstOPINION & ORDER
VILLAGE OF HIGHLAND FALLS and
PATRICK FLYNN, individually and as Mayor of
the Village of Highland Falls,
Defendants.

NELSONS. ROMAN, United States District Judge
Plaintiff Tower Prope1ties LLC ("Plaintiff') brings this action pursuant to 42 U.S.C. §§
1982 and 1983 against Defendants Village of Highland Falls (the "Village") and Mayor Patrick
Flynn (the "Mayor"), individually and in his official capacity, asse1ting violations of its First and
Fomteenth Amendment rights, as well as its rights to make and enforce contracts, and to
purchase, lease, sell, hold and convey real and personal property. Before the Court are
Defendants' motions to dismiss the Second Amended Complaint ("SAC") and to disqualify
Plaintiffs counsel. For the following reasons, Defendants' motion to dismiss is GRANTED in
patt and DENIED in part. Defendants' motion to disqualify counsel is DENIED.

BACKGROUND
The following facts are taken from the SAC unless otherwise noted, and are accepted as
~ true for the purposes of this motion.

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Plaintiff, a limited liability company ("LLC") organized under the laws of the State of

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16 months. Prior to Plaintiff operating Nicoles, another unrelated entity operated a catering hall
at the same location for more than ten years. Nicoles’ clientele and its employees were
predominately African-American and other minorities, and most of its events – weddings,
birthdays, and other private parties – catered to African-Americans.
Plaintiff alleges that the Village and the Mayor “intentionally embarked on a continuous
policy and practice . . . to harass and shut down Nicoles because of the race of those who c[a]me
to Nicoles.” (SAC ¶ 1.) Plaintiff’s specific allegations are set forth in greater detail below. As
of December 31, 2014, Nicoles dismissed all of its employees and is no longer doing business.
(See January 12, 2015 Letter of Jeff Feigelson, Docket No. 22.)
1. Statements By Public Officials
The SAC contains a number of statements made by the Mayor that purportedly evidence
the existence of a continuous policy or practice to discriminate against Nicoles because of the
race of its customers. For instance, during a meeting of the Village’s board (“Village Board”) on
March 17, 2014, the Mayor remarked that he was “concerned about the functions that are
happening at Nicoles … they’re attracting a large group from Spring Valley and Newburgh.”
(SAC ¶ 11.) According to Plaintiff, this statement was merely code for “African-Americans,” as
those communities are largely populated by African-Americans. Further, the Mayor also met
with a member of Nicoles’ management, at which time he stated that Nicoles was attracting the
“wrong crowd” and that he did not want “these types of people infecting Highland Falls.” (SAC
¶ 13.) Similarly, Plaintiff alleges that these statements were also code for “African-Americans.”
Plaintiff also alleges that Konstantinos Fatsis, the prosecutor for the Village, referred to
Nicoles’ African-American customers as “hood rats” in a Facebook post, reflecting the racial
bias of some of the leaders of the Village. (SAC ¶ 15.)

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2. The Village’s “Live Entertainment” Statute
Chapter 126 of the Village Code requires any person providing live entertainment to
obtain a permit (the “Live Entertainment Statute” and “Live Entertainment Permit,”
respectively). According to Plaintiff, the Village has never issued a violation notice for failure to
comply with the statute, despite the fact that many of the bars, restaurants, and catering halls in
the Village, including the prior catering hall at Nicoles’ location, do not have the required permit.
Nevertheless, in early January 2014, rather than notifying Plaintiff of the need for a permit, the
Mayor ordered the police to issue a violation notice to Nicoles. At 11:50 p.m. on January 11,
2014, the Village police issued the violation notice to Nicoles without any warning and ordered
the catering hall to shut down for the evening. At that time, the penalty for violating the Live
Entertainment Statue was a maximum fine of $250 and/or a term of imprisonment not longer
than 15 days.
Other establishments in the Village, which Plaintiff terms the “White Establishments,”
purportedly have live entertainment at their facilities from time to time and cater predominately
to a white clientele. At the time Nicoles received its violation notice, Plaintiff contends that none
of the White Establishments had the required permit, but nevertheless did not receive a violation
notice. Further, the Mayor, who runs a private party company providing deejays for events, has
never obtained a permit to provide live entertainment despite performing at four events held in
the Village between 2011 and 2014. The Mayor’s deejay company has never received a notice
for violating the Live Entertainment Statute.
On or about January 13, 2014, Plaintiff filed an application for a permit to provide live
entertainment at Nicoles. According to Plaintiff, upon receipt of a permit application, the
Village’s Chief of Police shall initiate an investigation to determine if “the applicant is a person

3

of good moral character,” and if he finds such, shall approve the application. (SAC ¶ 35.)
Plaintiff contends that neither the Village nor the Mayor have the power to refuse to issue the
permit if the Chief of Police finds the applicant is of good moral character. (SAC ¶ 37.) On or
about January 15, 2014, the Chief of Police concluded that Plaintiff was of good moral character
and was entitled to receive the permit. Nevertheless, the Mayor requested that the Chief of
Police not approve the permit “until I tell you to,” (SAC ¶ 41), and Defendants refused to issue
the permit until after the Village Board voted on the application during its next meeting,
scheduled for January 22, 2014. Plaintiff further alleges that no applicant ever: (1) required a
vote of the Village Board to approve its permit; (2) waited more than three days for approval of
its permit; and (3) had the Mayor instruct the Chief of Police to delay approval of its permit.
Plaintiff finally received its permit on January 24, 2014, following a Village Board vote at the
January 22, 2014 meeting. The permit was, however, only valid for a period of six months,
despite the Live Entertainment Statute requiring the issuance of a permit valid for one year.
Plaintiff alleges that one or more of the White Establishments received permits for one year. As
a result of the Mayor’s decision to delay granting the permit, Plaintiff was forced to cancel two
events planned for the weekend of January 17 and 18, 2014, resulting in lost profits and incurring
ill will with its customers.
The Live Entertainment Statute was amended on or about March 17, 2014, increasing the
monetary penalty for a violation from $250 to $1,000. Plaintiff alleges that the Mayor’s purpose
behind proposing the amendment was to put Nicoles out of business. During the Village Board
meeting at which the amendment was proposed, the Mayor purportedly stated that he was
“concerned about the functions that are happening at Nicoles … they’re attracting a large group
from Spring Valley and Newburgh... this is why this [amendment of the Live Entertainment

4

Statute] has happened.” (SAC ¶ 56) (alterations in original). At the same meeting, the Mayor
also stated that he hoped to “fine [Nicoles] or put them in jail” if they held events. (SAC ¶ 57.)
3. The 2 a.m. Curfew
The Live Entertainment Statute prohibits the playing of live music after 2 a.m. in the
Village. Plaintiff was notified orally and in writing by the Defendants that if Plaintiff played
music after 2 a.m., its Live Entertainment Permit would be revoked. Plaintiff alleges that
Nicoles is the only establishment against which the curfew is being enforced and that the White
Establishments often play music past 2 a.m.
4. Police Presence at Nicoles
Plaintiff alleges that as a result of instructions from the Mayor, the Village’s police
department opened a number of baseless investigations into Nicoles. For example, the Mayor
filed one or more police reports related to Nicoles for “suspicious activity.” (SAC ¶ 68.) When
the police investigated, no suspicious activity was found. Plaintiff confronted the Mayor, who
initially denied filing a report, but later admitted to doing so. Similarly, the Mayor instructed the
police to investigate whether Nicoles was involved in illegal activity related to organized gangs
in the surrounding areas. The police investigation found no evidence of illegal activity or any
relationship to gangs. Finally, the Mayor conducted his own personal investigation of Nicoles –
he was seen peering into Nicoles’ windows outside of regular business hours and was known to
keep close tabs on the business, including reviewing Nicoles’ Facebook page for objectionable
material. For instance, the Mayor notified Nicoles of certain purportedly objectionable pictures
posted on its Facebook page, which consisted primarily of “young African American men
smiling while holding up a champagne bottle or other bottle of liquor . . . .” (SAC ¶ 82.) Prior to

5

these investigations, Plaintiff asserts that there were never any police complaints or incidents
involving Nicoles.
In addition, Plaintiff alleges that the Village police department had an unnecessarily large
presence around Nicoles during many of its events. For instance, police cars would park in
Nicoles’ parking lot for up to an hour with their lights on. During Nicoles’ New Year’s Eve
event, the Mayor purportedly ordered half of the Village’s police cars to park outside Nicoles for
the entire evening. According to Plaintiff, the increased police presence deterred customers from
coming to Nicoles and caused Plaintiff to suffer financial damages.
Finally, Plaintiff alleges that there was only one police incident at Nicoles prior to filing
the SAC – an altercation outside of the catering hall in which no weapons were involved and no
arrests were made. Nevertheless, as a result of the altercation, the Defendants sent Plaintiff a
letter warning that its Live Entertainment Permit could be in jeopardy if any future incidents
occurred. The Mayor purportedly notified the New York State Liquor Authority about the
altercation.
Plaintiff contends that there is significantly less police scrutiny of the White
Establishments. Despite many more altercations at those establishments, the Defendants never
issued a warning letter to or contacted the New York State Liquor Authority about the White
Establishments.
STANDARD ON A MOTION TO DISMISS
To survive a motion to dismiss, a complaint must supply “factual allegations sufficient
‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In other words, the complaint must allege “‘enough facts to state a claim to relief that is plausible

6

on its face.’” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir. 2010) (quoting
Twombly, 550 U.S. at 570). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In applying this standard, a
court should accept as true all well-pleaded factual allegations, but should not credit “mere
conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Id.
DISCUSSION
Defendants move to dismiss the SAC on a number of grounds, which the Court addresses
seriatim below.
I.

Standing
Plaintiff alleges that Defendants have deprived it of: (1) “its right to make and enforce

contracts,” in violation of 42 U.S.C. § 1981 (SAC ¶ 131); and (2) “its right to ‘purchase, lease,
sell, hold and convey real and personal property,’” in violation of 42 U.S.C. § 1982. (SAC ¶
134.) Defendants urge this Court to find that Plaintiff either lacks standing to assert these claims
of racial discrimination on behalf of its alleged minority clientele, or, as an LLC, Plaintiff is
barred from bringing an action under § 1982, which is reserved only for citizens of the United
States.
First, relying solely on Hotel St. George Associates v. Morgenstern, 819 F.Supp. 310
(S.D.N.Y. 1993), Defendants argue that Plaintiff, a catering hall, has not been discriminated
against on the basis of race, but instead seeks to assert claims on behalf of its alleged minority
clientele, which is not permitted under §§ 1981 and 1982. In Hotel St. George, “a hotel
association brought an action under §§ 1981 and 1982, on behalf of [its] black and latino HIV
and AIDS infected tenants against individual members of community organizations for civil
rights violations arising from the organizations’ efforts to limit the number of black and latino
7

HIV and AIDS infected individuals who reside[d] on the premises.” Puglisi v. Underhill Park
Taxpayer Ass’n, 947 F.Supp. 673, 684 (S.D.N.Y. 1996). There, this Court found that “as a
matter of law, plaintiff has not been a victim of discrimination within the terms of 42 U.S.C. §§
1981 and 1982. . . . For example, plaintiff in its complaint attempted to assert the rights of Black
and Latino residents and potential residents. This is not permitted under Sections 1981 and
1982.” Hotel St. George, 819 F.Supp. at 318. Importantly, as other courts analyzing Hotel St.
George have noted, “there is no indication that the hotel was alleging injury on its own behalf
but was clearly trying to bring the claim on behalf of its black and latino HIV and AIDS infected
tenants, the direct victims of the alleged discriminatory actions.” Puglisi, 947 F.Supp. at 684
(emphasis in original).
Defendants’ reliance on Hotel St. George is misplaced. As Plaintiff points out, courts
have distinguished Hotel St. George in cases where, as here, the Plaintiff “is suing as the injured
party, discriminated against directly because of [its] contractual relationship with [its] minorit[y]
clientele.” Pisello v. Town of Brookhaven, 933 F.Supp. 202, 216 (E.D.N.Y. 1996) (emphasis in
original); see also Puglisi, 947 F.Supp. at 684-85 (“Here, in plaintiff’s complaint he alleges that
he, himself, as a landlord, is a direct victim of defendant’s actions in that he personally has been
intimidated, attacked, and threatened and is, therefore, best suited to bring the claim.”).
Accepting Plaintiff’s pleadings as true for purposes of this motion, and drawing all reasonable
inferences therefrom, Plaintiff sufficiently alleges that it, rather than its clientele, was
discriminated against as a result of serving its predominately African-American, minority
clientele, and therefore has standing to bring this action under §§ 1981 and 1982.
Second, Defendants contend that 42 U.S.C. § 1982 establishes rights that are available
only to “citizens of the United States,” and Plaintiff, as an LLC, is not a citizen within the

8

meaning of § 1982 and therefore lacks standing to bring this claim. Defendants’ argument relies,
again, on a single case, Comtel Technologies, Inc. v. Paul H. Schwendener, Inc., No. 04 Cv.
3879, 2005 WL 433327 (N.D. Ill. Feb. 22, 2005), in which the Northern District of Illinois held
that § 1982 limits its protection to “‘citizens,’ a category that does not include . . . private
corporations.” Id. at *6. Nevertheless, Defendants fail to acknowledge that the United States
Court of Appeals for the Seventh Circuit – the circuit in which the Northern District of Illinois
sits – noted in 2007 that corporations are citizens under § 1982. See New West, L.P. v. City of
Joliet, 491 F.3d 717, 720 (7th Cir. 2007). In New West, the Seventh Circuit reviewed a Northern
District of Illinois decision that found, without citation to any authority, that New West, as a
corporation, was not a citizen for § 1982 purposes. The Seventh Circuit then recognized the
limited nature of the authority on the subject, likely due to the fact that “the Supreme Court held
163 years ago that a corporation is a citizen . . . .” Id. at 720 (citing Louisville, Cincinnati &
Charleston R.R. v. Letson, 43 U.S. 497 (1844), overruling Bank of the United States v. Deveaux,
9 U.S. 61 (1809)). The court concluded that though “[t]here are scattered exceptions–for
example, a corporation is not a ‘citizen’ for the purpose of the privileges and immunities clause .
. . no court has held that corporations cannot be citizens under § 1982.” Id.
Notwithstanding that Defendants’ cited authority is seriously called into question by the
Seventh Circuit’s decision in New West, Plaintiff is an LLC, not a corporation. Though this
Court is not aware of any cases that have determined whether LLCs are citizens under § 1982,
and neither party cites to any such authority, LLCs are treated like partnerships for purposes of
diversity jurisdiction under 28 U.S.C. § 1332, taking the citizenship of each of its members. See,
e.g., Bayerische Landesbank, New York Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 49
(2d Cir. 2012) (internal citation omitted); see also Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th

9

Cir. 1998) (“Given the resemblance between an LLC and a limited partnership, and what seems
to have crystallized as a principle that members of associations are citizens for diversity purposes
unless Congress provides otherwise (as it has with respect to corporations, in 28 U.S.C. §
1332(c)(1)), we conclude that the citizenship of an LLC for purposes of . . . diversity jurisdiction
is the citizenship of its members.”). Applying the diversity jurisdictional rule to § 1982, the
Seventh Circuit in New West considered the citizenship of the partners of the limited partnership
plaintiff, finding that they were all “citizens” and therefore had rights protected under § 1982.
New West, 491 F.3d at 720. Here, Plaintiff alleges that all of its members are citizens of the
United States. (SAC ¶ 133.) Following the Seventh Circuit’s reasoning, and in light of this
Circuit’s application of the same rule for jurisdictional purposes, see Bayerische Landesbank,
692 F.3d at 49, Plaintiff, through its members, has rights protected by § 1982. 1
II.

Section 1983 Claims
Plaintiff asserts four theories of liability under § 1983: Defendants’ violated its

constitutional rights of freedom of association, equal protection, and due process, as well as its
statutory rights under § 1981. To prevail on any claim under § 1983, a plaintiff must show “(1)
the deprivation of a right secured by the Constitution or laws of the United States, and (2) that
the alleged deprivation was committed under color of state law.” Landon v. Cnty. of Orange,

1
Defendants also state in a footnote in their memorandum of law in support of the instant motion that
Plaintiff does not have standing because it is not the “real party in interest” as required by Fed. R. Civ. P. 17(a).
(Def.’s Mot. to Dismiss at 5 n.2.) Defendants’ argument is based upon a conclusory statement, without citation to
any authority, that Plaintiff is not the owner of the property located at 11 Main Street. Despite Defendants’
contention, Plaintiff alleges that it “owns a catering hall business located at 11 Main Street in the Village of
Highland Falls.” (SAC ¶ 5.) In light of Plaintiff’s allegation, and in the absence of any well-supported statements to
the contrary, the Court cannot grant Defendants’ motion on this basis. Nevertheless, even if Plaintiff was not the
real party in interest, dismissal would not be appropriate at this stage. See Fed. R. Civ. P. 17(a)(3) (“The court may
not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a
reasonable time has been allowed for the real party in interest to . . . be substituted into the action.”). And, in any
event, substitution of plaintiffs under Rule 17(a)(3) is “liberally allowed when the change is merely formal and in no
way alters the original complaint’s factual allegations as to the events or the participants.” Advanced Magnetics,
Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997).

10

No. 08 Cv. 8048 (CS) (LMS), 2009 WL 2191335, at *4 (S.D.N.Y. July 23, 2009); see also
Chambliss v. Rosini, 808 F. Supp. 2d 658, 666 (S.D.N.Y. 2011). “Because the United States
Constitution regulates only the Government, not private parties, a litigant claiming that his
constitutional rights have been violated must first establish that the challenged conduct
constitutes state action.” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (quoting Flagg
v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005)). Individual defendants can be
liable for § 1983 violations only if they were “personally involved” in the alleged constitutional
deprivations. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Rekowicz ex rel. Congemi v.
Sachem Cent. Sch. Dist., No. 11 Cv. 1561 (JS) (ETB), 2012 WL 4172732, at *4 (E.D.N.Y. July
2, 2012).
The Court addresses each of Plaintiff’s theories of liability under § 1983, and
Defendants’ arguments for dismissal, in turn.
A.

Freedom of Association

Plaintiff’s first theory of liability under § 1983 arises from Defendants’ alleged violations
of “the freedom of association clause of the First and Fourteenth amendments.” (SAC ¶ 128.) In
sum, Plaintiff alleges that Defendants’ interfered with its minority clientele’s right to associate at
its catering hall. In its memorandum of law in opposition to the instant motion, Plaintiff also
argues that because it holds weddings at its catering hall, Defendants’ harassment of and attempt
to shut down Plaintiff infringes on its clientele’s “right to freely express their religion at their
marriage celebrations.” (Pl.’s Mot. in Opp. at 20.)
In Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984), the Supreme Court recognized
two types of associational freedoms – “freedom of intimate association” and “freedom of
expressive association.” The former protects one’s right “to enter into and maintain certain
intimate human relationships . . . as a fundamental element of personal liberty,” id. at 618, while
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the latter protects the “right to associate for the purpose of engaging in those activities protected
by the First Amendment–speech, assembly, petition for the redress of grievances, and the
exercise of religion.” Id. The Constitution does not “recognize[] a generalized right of ‘social
association.’” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). Although “[i]t is possible to
find some kernel of expression in almost every activity a person undertakes . . . the activity of . . .
dance-hall patrons – coming together to engage in recreational dancing – is not protected by the
First Amendment . . . [and] qualifies neither as a form of ‘intimate association’ nor as a form of
‘expressive association’ as those terms were described in Roberts.” Id.
Here, Plaintiff operates a catering hall, which holds “weddings, sweet-sixteens, birthdays
and other private parties.” (SAC ¶ 9.) Plaintiff does not allege that any of the events at its
catering hall were held for the purpose of engaging in protected speech, assembly, or to petition
for the redress of grievances, which would warrant First Amendment protection as “expressive
association.” Though Plaintiff argues that Defendants’ actions infringed on its clientele’s rights
to express their religion at their marriage celebrations – allegedly implicating protections for
both expressive and intimate association – Plaintiff’s complaint is devoid of any allegations to
support such a claim. Without more, Plaintiff’s allegations appear to fit squarely within the
types of unprotected association recognized in Roberts and Stanglin – association for
commercial, social, or recreational purposes. See Roberts, 468 U.S. at 620; Stanglin, 490 U.S. at
25. Accordingly, Plaintiff’s First Amendment claim is dismissed.
B.

Equal Protection

Plaintiff’s second theory of liability under § 1983 is premised on the Defendants’ alleged
selective enforcement of the Live Entertainment Statute and its 2 a.m. curfew against Plaintiff
but not against similarly situated White Establishments, in violation of the Equal Protection
Clause of the Fourteenth Amendment.
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The Equal Protection Clause “is essentially a direction that all persons similarly situated
should be treated alike.” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000) (internal
citations and quotation marks omitted). A plaintiff may plead intentional discrimination in
violation of the Equal Protection Clause in a number of ways, including based on theories of
selective enforcement and a “class-of-one.” See Witt v. Vill. of Mamaroneck, No. 12 Cv. 8778
(ER), 2015 WL 1427206, at *4 (S.D.N.Y. Mar. 27, 2015). To succeed on a theory of selective
enforcement, a plaintiff must prove that: “(1) the [plaintiff], compared with others similarly
situated, was selectively treated; and (2) that such selective treatment was based on
impermissible considerations such as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person.” LeClair v. Saunders,
627 F.2d 606, 609-10 (2d Cir. 1980). Similarly, to succeed on a “class-of-one” theory, a plaintiff
must prove: “(1) intentional disparate treatment, (2) from other similarly situated individuals, (3)
without a rational basis for the difference in treatment, and (4) without otherwise claiming
membership in a particular class or group.” Witt, 2015 WL 1427206 at *4 (citing Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Notwithstanding that Plaintiff’s allegations in
the SAC are specifically styled as “selective enforcement” claims, (see, e.g., SAC at 4, 13),
Defendants argue that Plaintiff alleges a “class-of-one” theory. (Def.’s Mot. to Dismiss at 10.)
But Plaintiff’s claim is based upon the race of its clientele – a particular group – and should not
be analyzed under a “class-of-one” theory. The Court therefore analyzes Plaintiff’s equal
protection claim under a theory of selective enforcement.
1.

“Similarly Situated” Analysis

In order to prevail on its selective enforcement theory, Plaintiff must show that
similarly situated establishments were treated differently. There is, however, “disagreement
within the Second Circuit regarding the degree of similarity that a plaintiff must show in order to
13

adequately allege an equal protection claim under the selective enforcement theory.” Witt, 2015
WL 1427206 at *5 (internal citation omitted). Some courts in this Circuit have applied the
“class-of-one” similarly situated standard to selective enforcement claims, requiring a plaintiff to
show 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 government policy; and (ii) the similarity in circumstances and difference in treatment
are sufficient to exclude the possibility that the defendant acted on the basis of a mistake.”
Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 693 (S.D.N.Y. 2011).
Other courts have applied a “slightly less stringent” standard to selective enforcement claims,
requiring a plaintiff to “show that the comparators are ‘similarly situated in all material
respects.’” Witt, 2015 WL 1427206 at *5 (citing Mosdos Chofetz Chaim, 815 F. Supp. 2d at
696). In applying the less stringent standard to a selective enforcement claim, the court in
Mosdos Chofetz Chaim explained:
An extremely high level of similarity is required in the “class of one” context because
plaintiffs asserting those claims are attempting to prove that the government’s treatment
was arbitrary and irrational. However, in the present case, Plaintiffs are not alleging that
Defendants sued them . . . to block the . . . project for no reason at all; instead, they have
specifically and repeatedly alleged that Defendants have targeted their project because [of
their religion]. . . . Accordingly, the Court believes it is appropriate to utilize a less
stringent standard than would apply if Plaintiffs were claiming there was simply no
rational reason for the disparate treatment.
815 F. Supp. 2d at 696-97. For the same reasons, the Court follows Mosdos Chofetz Chaim and
other cases in this Circuit that have applied a less stringent standard to selective enforcement
claims. See, e.g., Walker v. City of New York, No. 05 Cv. 1283 (RER), 2010 WL 5186779, at *7
(E.D.N.Y. Dec. 15, 2010); Abel v. Morabito, No. 04 Cv. 07284 (PGG), 2009 WL 321007, at *4
(S.D.N.Y. Feb. 10, 2009). Therefore, Plaintiff “must identify comparators whom a ‘prudent

14

person would think . . . [were] roughly equivalent.’” Abel, 2009 WL 321007 at *5 (quoting
Estate of Morris v. Dapolito, 297 F. Supp. 2d 680, 686 (S.D.N.Y. 2004)) (alterations in original).
“While a plaintiff is not required to proffer evidence of similarly situated [comparators]
at the motion to dismiss stage, the court still must determine whether, based on a plaintiff's
allegations in the complaint, it is plausible that a jury could ultimately determine that the
comparators are similarly situated.” Vaher v. Town of Orangetown, N.Y., 916 F. Supp. 2d 404,
434 (S.D.N.Y. 2013) (citing Mosdos Chofetz Chaim, 815 F. Supp. 2d at 697-98) (internal
quotation marks omitted). The SAC raises allegations sufficient to satisfy this standard.
Plaintiff’s allegations demonstrate that the White Establishments, five bars located in Highland
Falls, are roughly equivalent to the Plaintiff – each establishment has live entertainment at its
facility from time to time; plays music up to and at times past the 2 a.m. curfew; serves alcohol;
and has a history of altercations on its premises. (See SAC ¶¶ 22, 62, 65, 105, 109.) In all
material respects, Plaintiff and the White Establishments are the same, except for the alleged race
of their respective clienteles. 2 Defendants’ argument that Plaintiff has not shown the extremely
high degree of similarity between itself and the White Establishments is unavailing. As the
Court discussed above, the “class-of-one” standard for comparators is not applicable in this
matter.

2

The SAC appears to suggest that the Mayor’s deejay business would suffice as a comparator. The Court
disagrees, as Plaintiff and a deejay business are not the same in all material respects; for example, a deejay business
does not have a physical structure and does not serve alcohol. Nevertheless, the Court notes that Defendants’
reading of the Live Entertainment Statue as not applicable to an entertainer is fraught with problems. (Compare
Def.’s Mot. to Dismiss at 12 n.4. with Village Code 126-2(B) (“Any person providing live entertainment . . . shall be
required to obtain a permit . . . .”) (emphasis added) and Village Code 126-1 (defining “person” as “any person,
firm, corporation or association” that owns or controls a jukebox, or “in whose place of business” any jukebox is
placed)).

15

2.

Selective Enforcement

Having demonstrated the existence of similarly situated establishments, Plaintiff
mush show:
(1) the [establishment], compared with others similarly situated, was selectively treated,
and (2) the selective treatment was motivated by an intention to discriminate on the basis
of impermissible considerations, such as race or religion, to punish or inhibit the exercise
of constitutional rights, or by a malicious or bad faith intent to injure the person. 3
Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (internal citations omitted).
Satisfying the first prong of the analysis often requires evidence of “the municipality’s
knowledge of the other, unenforced violations” committed by the comparators. Christian v.
Town of Riga, 649 F. Supp. 2d 84, 94 (W.D.N.Y. 2009) (citing LaTrieste Restaurant v. Vill. of
Port Chester, 188 F.3d 65, 69 (2d Cir. 1999)). Nevertheless, the Second Circuit recognized in
LaTrieste that “[i]t is conceivable that selective treatment could be shown where, for example,
proof was offered that a municipality did not know of prior violations because it adhered to a
see-no-evil policy of not enforcing an ordinance, and then abandoned that policy with respect to
a violator engaged in protected activity.” LaTrieste, 188 F.3d at 70 n.1.
Under the first prong of the analysis, Plaintiff has sufficiently alleged that it was treated
differently than the White Establishments. First, Plaintiff was subjected to a uniquely
burdensome Live Entertainment Permit application process. After filing its permit application,
the Chief of Police concluded that Plaintiff was of good moral character and was entitled to
receive a permit. Nevertheless, the Mayor requested that the Chief of Police not approve the
permit “until I tell you to,” (SAC ¶ 41), and the Defendants refused to issue the permit until after

3
Defendants apply the “class-of-one” equal protection test in their memorandum of law in support of the
instant motion, which requires that the alleged facts “plausibly support a claim that [Plaintiff] was ‘intentionally
treated differently from [comparators] without any rational basis.’” (Def.’s Mot. to Dismiss at 11.) Rather than
wholesale disregard Defendants’ arguments for applying the wrong standard, to the extent possible the Court
reviews their arguments under the appropriate selective enforcement test.

16

the Village Board voted on the application. Under the Live Entertainment Statute, neither the
Mayor nor the Village Board has the power to approve or deny the permit. Plaintiff alleges that
it was the only applicant to ever: (1) require a vote of the Village Board to approve its permit; (2)
wait more than three days for approval of its permit; and (3) have the Mayor instruct the Chief of
Police to delay approval of its permit, all of which present alleged disparate treatment compared
to the White Establishments.
Second, Plaintiff was the only establishment threatened with a violation of the 2 a.m.
curfew, 4 despite the fact that, at least during May 2014, a number of the White Establishments
played music in violation of the curfew. Defendants’ lack of actual notice is of no consequence
with respect to the violations of the 2 a.m. curfew, as the SAC includes allegations that the Live
Entertainment Statute, and therefore its curfew, has not been enforced for at least the last 40
years. (See SAC ¶ 29 and Ex. D.) Such allegations fall squarely within the contemplated
exception to the knowledge requirement recognized in LaTrieste. 188 F.3d at 70 n.1.
Moreover, Plaintiff was purportedly subjected to an inordinate amount of police presence
at its establishment, as well as a number of baseless police investigations – some of which were
initiated directly by the Mayor – despite the fact that there were only two altercations at its
establishment during the roughly 16 months Plaintiff operated prior to filing this action, one that
was resolved without issue, and the other that occurred shortly after Plaintiff received its Live
Entertainment Permit. Although the latter incident did not result in any arrests and did not
involve any weapons, the Mayor sent a warning letter to Plaintiff that its permit could be in

4
Defendants appear to contend that Plaintiff lacks standing to bring its equal protection claim based on a
violation of the 2 a.m. curfew because “Plaintiff does not allege that it has been issued a notice for violating this
provision but only that it has been forced to abide by it out of fear of such notice. Defendants’ warning to Plaintiff
does not amount to enforcement.” (Def.’s Mot. to Dismiss at 15.) Nevertheless, Plaintiff need not violate the law in
order to bring its claim. An “imminent” injury is sufficient to confer standing. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992).

17

jeopardy if there were future incidents. (SAC ¶¶ 100-102.) The Mayor never sent warning
letters to the White Establishments, nor did he order a heavy police presence outside of their
locations, even though those establishments had a number of altercations at their locations, some
of which resulted in arrests. (SAC ¶¶ 88-92, 105-108.)
Defendants make much ado about nothing with regard to Plaintiff’s allegations
concerning the history of police incidents at Nicoles. Of the eight police reports included with
Defendants’ instant motion: two were initiated at the behest of the Mayor, both of which were
investigated and revealed no wrongdoing; two were investigations of vehicles in Nicoles’
parking lot, which appear unrelated to anything occurring within the establishment and
ultimately revealed no problems; one involved a noise complaint that was corrected by Nicoles
prior to the arrival of the police; one involved a malfunctioning fire alarm; one involved a small
group of patrons in Nicoles’ parking lot, who were asked to return to the inside of the
establishment and did so “without incident” (see Def.’s Mot. to Dismiss, Burke Aff., Ex. A. at
3); and one involved an altercation, but resulted in no charges being filed. Although Plaintiff’s
counsel is listed under “persons involved” on the reports, even a cursory review of the narratives
included in each report makes clear that Plaintiff’s counsel was never present at, let alone
interviewed in connection with, these events. Police only spoke with an employee of Plaintiff in
connection with two of the reports and never spoke with Plaintiff’s counsel. The first of the two
investigations was initiated by the Mayor and revealed no wrongdoing; the second was quickly
resolved “without incident” according to the police, in full cooperation with Plaintiff. Further,
with the exception of the one altercation that resulted in no charges being filed, about which
Plaintiff and its counsel have stated they were not aware, (Pl.’s Mot. in Opp., Charles Aff. at ¶ 3,
Feigelson Aff. at ¶ 2), the rest of the so-called “incidents” were merely police investigations that

18

resulted in no warnings or charges of any kind. Rather than read the SAC with an eye towards a
common-sense understanding of “police complaints or incidents,” (SAC ¶ 21), as the police
officers apparently do when using the term in their reports (see Def.’s Mot. to Dismiss, Burke
Aff., Ex. A. at 3) (resolving a matter “without incident”), Defendants disingenuously twist the
SAC in an act of gamesmanship to which this Court does not take kindly. It is clear from the
police reports that there was only one “incident” at Nicoles prior to the issuance of the Live
Entertainment Permit violation, and Plaintiff has disclaimed knowledge of it. The Court finds
Defendants’ arguments on this issue unavailing. 5
To the extent that Plaintiff’s equal protection claim is based on the theory that it was the
only establishment to receive a notice for violating the Live Entertainment Statute in the last 40
years, despite the fact that the White Establishments also played live music from time to time,
such allegations on their own are insufficient to state a claim. Plaintiff has not alleged that the
White Establishments were providing live entertainment without the requisite permit at the same
time Plaintiff received its violation notice (or any other time for that matter), and therefore
cannot claim that the other establishments were treated differently by the Defendants. 6 For the

5

“In deciding a motion to dismiss, a court may take judicial notice of public records,” including police
reports like those submitted by Defendants in connection with the instant motion. Fine v. ESPN, Inc., 11 F. Supp.
3d 209, 223 (N.D.N.Y. 2014) (citing Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); Liang v. City of New York,
No. 10 Cv. 3089, 2013 WL 5366394, at *5 (E.D.N.Y. Sept. 24, 2013) (taking judicial notice of police reports and
court filings); Wims v. N.Y.C. Police Dep’t, No. 10 Cv. 6128, 2011 WL 2946369, at *2 (S.D.N.Y. July 20, 2011)
(finding that a district court may take judicial notice of “arrest reports” when deciding a 12(b)(6) motion)).
“However, a court may take judicial notice of such documents ‘only to establish their existence and legal effect, or
to determine what statements [they] contained ... not for the truth of the matters asserted.’” Id. (internal citations
omitted) (emphasis in original). Whether or not the Court takes judicial notice of the police reports is of no
consequence, as the Court does not find Defendants’ arguments with respect to the reports persuasive and they do
not factor into the Court’s decision.
6

The Court notes that the live entertainment permits Plaintiff’s counsel received through a F.O.I.L. request
made to the Village show that the White Establishments had live entertainment permits covering portions of the time
period from January 2009 through December 2013, such that they may have been permissibly providing live
entertainment in the past. (See Def.’s Mot. to Dismiss, Aff. of Regina Taylor at Ex’s A & B.) Nearly all of the
permits were issued for a period of six months, rather than one year. Id. Therefore, Plaintiff’s equal protection
claim based upon the difference in duration of the permits is unavailing, as it has not sufficiently alleged that the
White Establishments received permits longer in duration than Plaintiff.

19

same reasons, Plaintiff’s equal protection claim cannot be based on the amendment to the Live
Entertainment Statute, as the SAC is devoid of allegations that any other establishments were
treated differently after the amendment.
Turning to the second prong of the selective enforcement analysis, “a plaintiff advancing
a selective enforcement claim must demonstrate that a discriminatory purpose was a motivating
factor in the government decision. Discriminatory purpose implies that the decisionmaker
selected or reaffirmed a particular course of action at least in part because of[,] not merely in
spite of[,] its adverse effects upon an identifiable group.” Adler v. Kent Village Housing Co.,
123 F. Supp. 2d 91, 98 (E.D.N.Y. 2000) (internal citations and quotation marks omitted). Here,
accepting Plaintiff’s well-pleaded allegations as true, and drawing all reasonable inferences
therefrom, the SAC contains statements and conduct that, if proven true at trial, could give rise to
an inference of discrimination. Specifically, Plaintiff alleges that Defendants waged an
intentional campaign to harass and ultimately shut down Plaintiff’s catering hall due to the race
of its clientele. Plaintiff alleges that its employees and clientele were predominately AfricanAmerican (SAC ¶¶ 7-9.) When the Mayor spoke with an employee of Plaintiff’s, he stated that
the establishment was “getting the ‘wrong crowd’” and that he did not want “these types of
people infecting Highland Falls.” (SAC ¶ 13.) Moreover, the Mayor stated during a Village
Board meeting that he was concerned about the events happening at Nicoles because “they’re
attracting a large group from Spring Valley and Newburgh.” (SAC ¶ 11.) These communities
are commonly known to include large populations of African-Americans. (SAC ¶ 12.) The
Mayor went as far as proposing an amendment to the Live Entertainment Statute for the stated
purpose of rescinding Plaintiff’s Live Entertainment Permit, fining it, and putting its owners in
jail due to its clientele. (SAC ¶¶ 56-57.) At this stage of the proceedings, Plaintiff is entitled to

20

the reasonable inference that the Mayor’s statements are “code words” for African-Americans,
and that the Defendants’ actions were motivated at least in part by the race of Plaintiff’s
clientele, particularly in light of the disparate treatment that Plaintiff alleges between itself and
the White Establishments.
Accordingly, Plaintiff has sufficiently plead a claim of selective enforcement under the
Equal Protection Clause based on allegations of a disparate permit application process, selective
enforcement of the 2 a.m. curfew, and the inordinate amount of police presence at and
investigation of its establishment. Plaintiff’s claims based on selective enforcement of the Live
Entertainment Permit requirement, amendment of the Live Entertainment Statute, and the
duration of the permit issued to Plaintiff, are dismissed. 7
C.

Due Process

The SAC contains a number of allegations that could form the basis of both procedural
and substantive due process claims. Nevertheless, Plaintiff’s memorandum of law in opposition
to the instant motion identifies only two substantive due process rights at issue: Plaintiff’s
“ability to use and enjoy its real property” and its “liberty right in being prevented from pursuing
its catering and bar business.” (Pl.’s Mot. in Opp. at 19.)
The Due Process Clause of the Fourteenth Amendment requires that no “state . . . deprive
any person of life, liberty, or property, without due process of law.” “In order to succeed on a
due process claim, whether procedural or substantive, plaintiffs must identify a valid liberty or
property interest.” Vlahadamis v. Kiernan, 837 F. Supp. 2d 131, 155 (E.D.N.Y. 2011), amended
No. 08 Cv. 2876 (DRH) (AKT), 2011 WL 5156340 (E.D.N.Y. Oct. 28, 2011) (citing Toussie v.

7

The Court does not address Defendants’ immunity arguments with respect to the equal protection claims
in light of the insufficiency of the allegations concerning the issuance of the permit violation and the amendment of
the Live Entertainment Statute.

21

County of Suffolk, 806 F. Supp. 2d 558, 578-79 (E.D.N.Y. 2011); Local 342, Long Island Pub.
Serv. Emps. v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994); and Harlen Assocs.
v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir. 2001)); see also Zahra, 48 F.3d at 680 (citing
Brady v. Town of Colchester, 863 F.2d 205, 211-12) (requiring a plaintiff to first allege a
property interest). The ownership and use of real property is an interest protected by substantive
due process. See Ferran v. Town of Nassau, 471 F.3d 363, 369 (2d Cir. 2006) (recognizing the
ownership of a parcel of land constitutes a property interest); see also Rittenhouse Entm't, Inc. v.
City of Wilkes-Barre, 861 F. Supp. 2d 470, 486 (M.D. Pa. 2012) (citing DeBlasio v. Zoning Bd.
of Adjustment for Twp. of West Amwell, 53 F.3d 592, 601 (3d Cir. 1995), abrogated on other
grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392 (3d Cir.
2003)). Similarly, “[t]here is a well-established liberty interest in engag[ing] in any of the
common occupations of life.” Vlahadamis, 837 F. Supp. 2d at 156 (citing Donato v. PlainviewOld Bethpage Cent. Sch. Dist., 96 F.3d 623, 632 (2d Cir. 1996)). Nevertheless, “[i]t is well
settled that one must have no ability to practice one’s profession at all in order to state a claim
for deprivation of a liberty interest.” Rodriguez v. Margotta, 71 F. Supp. 2d 289, 296-97
(S.D.N.Y. 1999) aff'd, 225 F.3d 646 (2d Cir. 2000) (citing Bernard v. United Township High
School Dist. No. 30, 5 F.3d 1090 (7th Cir. 1993); LaTessa v. New Jersey Racing Commission,
113 F.3d 1313, 1318 (3d Cir. 1997); Cf. Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994)).
Plaintiff relies on Rittenhouse to support its contention that Defendants have deprived it
of the use and enjoyment of its real property. Rittenhouse is distinguishable from the instant
matter. There, the plaintiffs alleged that the defendants’ “harassment made it financially
impossible for them to operate . . . more than sporadically.” 861 F. Supp. 2d at 486. Plaintiff
makes no such allegations here. Instead, Plaintiff alleges that Defendants’ actions caused it to:

22

“incur[] damages in the form of lost profits and . . . ill will with its customers” (SAC ¶ 48);
“suffer financial damages” (SAC ¶ 94); and incur damages to its “income and income
prospects.” (SAC ¶ 124.) In fact, it appears that Plaintiff only had to cancel two events as a
result of the alleged harassment. (SAC ¶¶ 47-48.) As Plaintiff was still able to maintain its
business despite Defendants’ purported harassment, Plaintiff has not sufficiently plead the
deprivation of any property right. See Rankel v. Town of Somers, 999 F. Supp. 2d 527, 546
(S.D.N.Y. 2014).
Similarly, Plaintiff’s claim based on a deprivation of its liberty interest also fails.
Plaintiff has not alleged that it has been completely prevented from running its business. Instead,
as noted above, Plaintiff has purportedly suffered financial damages and was forced to cancel
only two events. Without more, Plaintiff cannot sustain a due process action based on its liberty
interest.
Nevertheless, Plaintiff notified the Court on January 12, 2015 that, “as a result of
Defendants’ actions, Nicoles has decided to close.” (January 12, 2015 Letter of Jeff Feigelson,
Docket No. 22.) In light of this development, the Court grants Plaintiff the opportunity to amend
the SAC to state a valid claim for a violation of the Due Process Clause in accordance with the
requirements outlined in this Opinion.
D.

Section 1981

Plaintiff’s final theory of liability under § 1983 arises under 42 U.S.C. § 1981, which
states, in pertinent part:
All persons within the jurisdiction of the United States shall have the same right in every
State and Territory to make and enforce contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to no other.

23

42 U.S.C. § 1981(a). In order to survive a motion to dismiss on a § 1981 claim, a plaintiff must
allege: “(1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the
basis of race by the defendant; and (3) the discrimination concerned one or more of the activities
enumerated in the statute . . . .” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085,
1087 (2d Cir. 1993) (internal citation omitted). “The first element has been modified so that a
plaintiff need not be a member of a racial minority so long as the plaintiff has alleged an injury
[derivative] of defendant’s discriminatory actions against a racial minority.” Costello v. Town of
Huntington, No. 14 Cv. 2061 (JS) (GRB), 2015 WL 1396448, at *12 (E.D.N.Y. Mar. 25, 2015)
(citing Puglisi, 947 F.Supp. at 700). As the Court has already determined that Plaintiff has
standing to pursue its § 1981 claim, and its pleadings adequately allege claims under the Equal
Protection Clause concerning an intent to discriminate on the basis of race by Defendants, the
Court turns to the third prong of the analysis – whether the discrimination falls within the
activities enumerated in the statute.
Plaintiff contends that Defendants violated § 1981 by depriving Plaintiff of “equal
protection under the laws” and “its right to make and enforce contracts.” (SAC ¶ 131.) With
respect to the “equal protection” violation, the Court construes this claim as one for a deprivation
of Plaintiff’s right “to the full and equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). To allege such a
claim, Plaintiff must: (1) allege racial animus; (2) “identify a relevant law or proceeding for the
‘security of persons and property;’” and (3) allege “that defendants have deprived them of ‘the
full and equal benefit’ of this law or proceeding.” Phillip v. Univ. of Rochester, 316 F.3d 291,
298 (2d Cir. 2003) (citing 42 U.S.C. § 1981(a)). Although the Second Circuit in Phillip did not
“attempt to define the universe of laws and proceedings for the security of persons and property,

24

believing this task best resolved case by case[,]” the court had “no difficulty categorizing . . . a
criminal investigation . . . as a ‘proceeding for the security of persons and property’ at the Rule
12(b)(6) stage.” Id.
Plaintiff satisfies the first prong of the Phillip test, having already adequately alleged
racial animus in this matter in connection with its other claims. Turning to the second prong of
the test, Defendants contend that Plaintiff has not stated a claim under the “equal benefit” clause
of § 1981 because Plaintiff has not identified a law or proceeding intended for the security of
persons or property. Defendants assert that cases that have analyzed this clause typically sound
in tort and Plaintiff has failed to show how the statutes and restrictions at issue are the type of
laws contemplated by § 1981. See, e.g., Pierre v. J.C. Penney Co., 340 F. Supp. 2d 308, 313
(E.D.N.Y. 2004) (finding that state laws against assault, battery, and false imprisonment were
laws clearly intended for the security of persons). Despite Defendants’ arguments to the
contrary, Plaintiff has identified proceedings for the security of persons and property, to wit, that
the Mayor: (1) ordered the police to issue a violation notice to Plaintiff (SAC ¶ 18); and (2)
instructed the police to conduct a detailed investigation of Plaintiff. (SAC ¶ 75.) Here, like
Phillip, Plaintiff’s “allegations are sufficient because [P]laintiff[’]s claim that [D]efendants
attempted to trigger a legal proceeding against [P]laintiff[] but would not have taken the same
action had white [establishments] engaged in the same conduct.” Phillip, 316 F.3d at 298 (2d
Cir. 2003).
Plaintiff’s second theory under § 1981 – a deprivation of “its right to make and enforce
contracts” – is unable to withstand a motion to dismiss. Plaintiff contends that “Defendants’
actions . . . have deterred individuals from patronizing the Plaintiff’s establishment and thus
entering into contracts for the sale and purchase of goods and services such as catering services,

25

beverages and entertainment.” (Pl.’s Mot. in Opp. at 22.) Nevertheless, “where–as here–a
plaintiff merely alleges possible loss of future opportunities with unnamed persons, rather than
the loss of an identified business relationship that was the subject of interference, the plaintiff
cannot maintain an action under § 1981.” Ginx, Inc. v. Soho Alliance, 720 F. Supp. 2d 342, 360
(S.D.N.Y. 2010), as corrected (Aug. 19, 2010); see also Robledo v. Bond No. 9, 965 F. Supp. 2d
470, 477 (S.D.N.Y. 2013) (dismissing § 1981 claim on the ground that plaintiffs “failed to
identify specific contracts with identified customers which were allegedly impeded by [the
d]efendants’ discriminatory conduct.”); Korova Milk Bar of White Plains, Inc. v. PRE
Properties, LLC, No. 11 Cv. 3327 (ER), 2013 WL 417406, at *13 (S.D.N.Y. Feb. 4, 2013)
(dismissing § 1981 claim on the ground that plaintiff “merely allege[d] that it lost contractual
opportunities with clientele who did and would have frequented [it], without providing specific
details regarding this speculative class.”).
Accordingly, Plaintiff’s § 1981 claim based upon its right to make and enforce contracts
is dismissed. Plaintiff’s § 1981 claim based upon the “equal benefit” clause of the statute
survives the instant motion.
E.

Monell Liability

“Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). It has long been established that a municipality cannot be held vicariously liable under §
1983 unless the “execution of the government’s policy or custom . . . inflicts the injury.” Monell
v. Dep’t of Social Servs. of the City of N.Y., 436 U.S. 658, 694 (1978). Thus, Monell dictates that
any § 1983 claim against a municipal entity must be premised on the theory that the municipal
actor’s allegedly unconstitutional “acts were performed pursuant to a municipal policy or

26

custom.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004); see generally Monell,
436 U.S. at 692-94.
Courts in this Circuit apply a two prong test for § 1983 claims brought against a
municipal entity. Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (internal
citation omitted). First, the plaintiff must “prove the existence of a municipal policy or custom
in order to show that the municipality took some action that caused his injuries beyond merely
employing the misbehaving officer.” Id. (internal citation omitted). Second, the plaintiff must
establish a “‘direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.’” Hayes v. Cnty. of Sullivan, 853 F. Supp. 2d 400, 439 (S.D.N.Y.
2012) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
To satisfy the first requirement, a plaintiff must allege the existence of:
(1) a formal policy which is officially endorsed by the municipality; (2) actions
taken or decisions made by government officials responsible for establishing
municipal policies which caused the alleged violation of the plaintiff’s civil rights;
(3) a practice so persistent and widespread that it constitutes a custom or usage and
implies the constructive knowledge of policy-making officials; or (4) a failure by
official policy-makers to properly train or supervise subordinates to such an extent
that it amounts to deliberate indifference to the rights of those with whom municipal
employees will come into contact.
Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (internal citations and quotation
marks omitted); see also Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y.
2010) (quoting Moray and updating citations to cases). A plaintiff is not required to identify an
express rule or regulation in order to establish a Monell claim, and a court may infer a municipal
policy from acts or omissions of the municipality’s policy makers, but in the absence of other
evidence, a “single incident of errant behavior is an insufficient basis for finding that a municipal
policy caused plaintiff’s injury.” Sarus v. Rotundo, 831 F.2d 397, 402-03 (2d Cir. 1987); see
also DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (“[A] single incident alleged in a complaint,
27

especially if it involved only actors below the policy-making level, does not suffice to show a
municipal policy.”) (quoting Ricciuti v. N.Y. City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)
(internal quotation marks omitted); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 123,
125 (1988) (plurality opinion) (explaining that only municipal officials with “final policymaking
authority” concerning particular activities giving rise to plaintiff’s claims “may by their actions
subject the government to § 1983 liability” (internal citation omitted)). “In the end, therefore, a
plaintiff must demonstrate that, through its deliberate conduct, the municipality was the moving
force behind the alleged injury.” Hayes, 853 F. Supp. 2d at 439 (quoting Roe v. City of
Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)) (internal quotation marks omitted).
In the context of a motion to dismiss, “a plaintiff must make factual allegations that
support a plausible inference that the constitutional violation took place pursuant either to a
formal course of action officially promulgated by the municipality’s governing authority or the
act of a person with policymaking authority for the municipality.” Missel v. Cnty. of Monroe,
351 F. App’x 543, 545 (2d Cir. 2009). See also Twombly, 550 U.S. at 555.
Plaintiff concedes that it is not aware of any formal policy, (see Pl.’s Mot. in Opp. at 9),
but contends that the SAC contains sufficient facts to allege that “the actions taken or decisions
made by government officials responsible for establishing municipal policies caused the alleged
violation of the Plaintiff’s civil rights.” (Pl.’s Mot. in Opp. at 9.) Defendants counter that
Plaintiff merely recites conclusory, boilerplate language in the SAC, and fails to set forth any
facts that support a plausible claim. Moreover, Defendants argue that Plaintiff fails to show that
the alleged policy was established by a final policy maker who had authority to establish policies
for such conduct.

28

As an initial matter, “[m]ayors may be treated as policy-makers without proof of their
specific powers and responsibilities.” Rookard v. Health & Hospitals Corp., 710 F.2d 41, 45 n.4
(2d Cir. 1983) (citing Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 448 (2d Cir.
1980)); accord Doe v. Vill. of Mamaroneck, 462 F. Supp. 2d 520, 560 (S.D.N.Y. 2006).
Accordingly, there is no question that the Mayor qualifies as a policy maker for purposes of the
instant motion.
Turning to Defendants’ other argument, although the specific allegations to which
Defendants direct the Court concerning the existence of a policy are conclusory, (Def.’s Mot. to
Dismiss at 23), Defendants ignore the battery of allegations included elsewhere in the SAC that
support a plausible inference that the alleged constitutional violations occurred pursuant to the
acts of a person with policymaking authority for the municipality, namely the Mayor. Plaintiff
clearly alleges that nearly the entirety of the harassment occurred at the request of, or directly
from the actions of, the Mayor, because he did not want a large population of African-Americans
at Plaintiff’s catering hall and in the Highland Falls area. Therefore, at this stage of the
proceedings, Plaintiff is entitled to the inference that Defendants’ actions were the result of a
municipal policy, practice, or custom.
F.

Qualified Immunity

Defendants claim that the Mayor is entitled to qualified immunity. “In this Circuit, a
defendant may [raise qualified immunity in a pre-answer motion to dismiss], but the defense is
held to a higher standard than if it were asserted in a motion for summary judgment.” Sledge v.
Bernstein, No. 11 Cv. 7450 (PKC) (HBP), 2012 WL 4761582, at *4 (S.D.N.Y. Aug. 2, 2012);
see also McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (a defense of qualified immunity
in a motion to dismiss can only be sustained if plaintiff cannot state any facts that would prevent
the application of qualified immunity). “Qualified immunity shields federal and state officials
29

from money damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011); see also Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (“Government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.”). “If the law was clearly established, the immunity defense ordinarily should fail, since
a reasonably competent public official should know the law governing his conduct.” Harlow,
457 U.S. at 818-19. It is within the Court's discretion to determine the order in which the two
prongs are analyzed. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Having already decided that Plaintiff sufficiently alleges a violation of constitutional
rights, the Court turns to the second prong of the test. It is without question that the rights at
issue, including the right not to be discriminated against on the basis of race, were clearly
established at the time of the alleged conduct. Accordingly, the Mayor is not entitled to qualified
immunity.
III.

Section 1982 Claim
Count Two of the SAC alleges that “Defendants violated 42 U.S.C. § 1982 by depriving

Plaintiff Nicoles of its right to ‘purchase, lease, sell, hold and convey real and personal
property.’” (SAC ¶ 134.) Section 1982 states that “[a]ll citizens of the United States shall have
the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982. “Though
the statute has been interpreted broadly, a plaintiff, to state a claim, must allege interference with
some right involving real or personal property.” Bishop v. Toys "R" Us-NY LLC, 414 F. Supp.
2d 385, 394-95 (S.D.N.Y. 2006) aff'd sub nom. Bishop v. Toys R Us, 385 F. App’x 38 (2d Cir.
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2010). To state a claim under § 1982, like the related provision of 42 U.S.C. § 1981, Plaintiff
must allege: “(1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on
the basis of race by the defendant; and (3) the discrimination concerned one or more of the
activities enumerated in the statute . . . .” Mian, 7 F.3d at 1087 (internal citation omitted).
Having already decided that Plaintiff satisfied the first two prongs of the test in connection with
its § 1981 claim, the Court turns to the question of whether Plaintiff’s alleged discrimination
concerns its ability to purchase, hold, or sell real or personal property.
Plaintiff’s first theory of liability under § 1982, as stated in its memorandum of law in
opposition to the instant motion, is apparently based upon Defendants’ discriminatory actions
adversely affecting Plaintiff’s “use” of its real property. (Pl.’ Mot. in Opp. at 22.) Plaintiff cites
two cases – United States v. Brown, 49 F.3d 1162, 1166 (6th Cir. 1995) and Olzman v. Lake Hills
Swim Club, Inc., 495 F.2d 1333 (2d Cir. 1974) – in support of the proposition that the use of real
property is protected under § 1982, including use by a non-owner of the property. Plaintiff does
not allege its own inability to use its property, and in light of the cases cited by Plaintiff, the
Court construes this theory of liability to relate to Plaintiff’s customers’ ability to use the
property.
Plaintiff’s reliance on these cases is misplaced. Both Brown and Olzman concerned the
rights of members or their invited guests in specific organizations, the former a synagogue, the
latter a swim club. In those cases, the courts held that members and their guests had the right “to
go and come at pleasure,” Brown, 49 F.3d at 1167; Olzman, 495 F.2d at 1339, which constituted
a property interest capable of being held under § 1982. Here, however, Plaintiff’s customers –
past, present, and future – are not members or invited guests of any sort of organization, and
therefore have no recognizable property interest. Plaintiff’s customers, like the customers of a

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restaurant, have no recognizable property interest sufficient to form the basis of a § 1982 claim.
See Perry v. Burger King Corp., 924 F. Supp. 548, 552 (S.D.N.Y. 1996) (holding that the “use of
a restaurant’s bathroom is not a right to ‘inherit, purchase, lease, sell, hold, and convey real and
personal property.’”) To the extent that Plaintiff believes the closure of its establishment now
provides a valid claim under this theory of liability, Plaintiff is granted permission to amend the
SAC.
Second, Plaintiff alleges that Defendants’ actions deterred customers from patronizing its
establishment, thereby interfering with its right to purchase and sell personal property under §
1982. (Pl.’ Mot. in Opp. at 22.) This claim appears to rest on the same set of facts as Plaintiff’s
§ 1981 claim for deprivation of its right to make and enforce contracts. (Id.) Courts that have
considered claims brought under § 1981 and § 1982 have done so in tandem. See, e.g.,
Rittenhouse, 861 F. Supp. 2d at 483; see also Korova, 2013 WL 417406 at *8 (“Sections 1981
and 1982 are generally construed in pari materia.”) (internal citation and quotation marks
omitted). Plaintiff has not directed the Court to any authority, in this Circuit or otherwise, to
support such a claim. As this claim rests on the same set of facts as Plaintiff’s § 1981 contract
claim, the Court sees no reason to depart from the rule in this District that claims based upon the
possible loss of future opportunities with unnamed persons are not actionable. See Section II, D,
supra; Ginx, 720 F. Supp. at 360.
IV.

Disqualification of Counsel
Defendants request that this Court permit them to move to disqualify Mr. Feigelson as

Plaintiff’s counsel, or to consider their request as a motion to disqualify, on the basis that Mr.
Feigelson “is listed as an involved person on all of the police reports and will likely be called to
testify about these incidents.” (Def.’s Mot. to Dismiss at 4 n.1.) The Court accedes to
Defendants’ request to consider this their motion to disqualify, and denies the motion.
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Rule 3.7(a) of the New York Rules of Professional Conduct states that, absent certain
exceptions, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer
is likely to be a witness on a significant issue.” N.Y. R. Prof’l Conduct § 3.7(a). “Rule 3.7 lends
itself to opportunistic abuse. Because courts must guard against the tactical use of motions to
disqualify counsel, they are subject to fairly strict scrutiny, particularly motions under the
witness-advocate rule.” Murray v. Metro. Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009) (citing
Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989)). To succeed on such a motion, the
moving party “bears the burden of demonstrating specifically how and as to what issues in the
case the prejudice may occur and that the likelihood of prejudice occurring [to the witnessadvocate’s client] is substantial.” Id. (alteration in original). “‘Prejudice’ in this context means
testimony that is ‘sufficiently adverse to the factual assertions or account of events offered on
behalf of the client, such that the bar or the client might have an interest in the lawyer’s
independence in discrediting that testimony.’” Id.
Defendants’ argument in support of disqualification rests solely on Plaintiff’s counsel
being listed under “persons involved” on the police reports. Nevertheless, as the Court discussed
supra, even a cursory review of the narratives included in the police reports makes clear that
Plaintiff’s counsel was not involved in any of the so-called incidents. Mr. Feigelson’s
Affirmation, made under the penalty of perjury, confirms the same. As Mr. Feigelson has stated
that he has no knowledge concerning these incidents, the Court finds it would be highly unlikely
he would be called as a witness related to these incidents, and disqualification is therefore
improper on this basis.

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CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and
DENIED in part. Defendants' motion to disqualify counsel is DENIED. Plaintiff shall have
until 30 days from the date of this Order to amend the Second Amended Complaint as to the Due
Process Clause and 42 U.S.C. § 1982 claims as set f01ih in this Opinion. If Plaintiff elects to file
a third amended complaint, Defendants shall have until 30 days from the date of Plaintiffs filing
to move or file responsive pleadings. If Plaintiff does not file a third amended complaint,
Defendants shall have until 60 days from the date of this Order to file responsive pleadings on
the remaining claims. An initial in-person case management and scheduling conference pursuant
to Fed. R. Civ. P. 16 is scheduled for September 11, 2015 at 10:00 a.m., at the United States
Courthouse, 300 Quarropas Street, Comiroom 218, White Plains, New York 10601. The parties
shall confer in accordance with Fed. R. Civ. P. 26(f) at least 21 days prior to the conference and
attempt in good faith to agree upon a proposed discovery plan that will ensure trial readiness
within six months of the conference date. The parties shall also complete a Civil Case Discovery
Plan and Scheduling Order and bring it to the conference. The Comi respectfully directs the
Clerk to terminate the motion at ECF No. 12.
Dated:

July /,~2015
White Plains, New York

SO ORDERED:

NJk;Sem S. ROMAN
United States District Judge

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