Green Materials of Westchester et al v. The Town of Cortlandt et al
Filing
18
OPINION AND ORDER re: 3 MOTION to Dismiss . filed by Town of Cortlandt Planning Board, Linda Puglisi, John Klarl, Town of Cortlandt Department of Technical Services, Town of Cortlandt Zoning Board of Appeals, James Flandreau, An n Lindau, Town of Cortlandt Department of Law, Richard Becker, The Town of Cortlandt, Frank Farrell, Ken Hoch, John Sloan, Edward Vergano, Thomas Wood. Defendants' motion to dismiss is GRANTED. Plaintiffs' claims are dismissed with prejudice. The Clerk is instructed to terminate the motion (Doc. #3) and close this case. (Signed by Judge Vincent L. Briccetti on 12/21/2015) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GREEN MATERIALS OF WESTCHESTER,
:
JAMES MEANEY, and GEORGE LIASKOS,
:
Plaintiffs,
:
:
v.
:
:
THE TOWN OF CORTLANDT, LINDA
:
PUGLISI, JOHN SLOAN, FRANK FARRELL, :
RICHARD BECKER, ANN LINDAU, TOWN
:
OF CORTLANDT ZONING BOARD OF
:
APPEALS, TOWN OF CORTLANDT
:
PLANNING BOARD, TOWN OF
:
CORTLANDT DEPARTMENT OF
:
TECHNICAL SERVICES, KEN HOCH,
:
:
EDWARD VERGANO, JAMES
:
FLANDREAU, TOWN OF CORTLANDT
DEPARTMENT OF LAW, JOHN KLARL, and :
THOMAS WOOD,
:
Defendants.
:
--------------------------------------------------------------x
OPINION AND ORDER
15 CV 3257 (VB)
Briccetti, J.:
Plaintiffs Green Materials of Westchester, James Meaney, and George Liaskos bring this
civil rights action against the Town of Cortlandt, Linda Puglisi, John Sloan, Frank Farrell,
Richard Becker, Ann Lindau, the Town of Cortlandt Zoning Board of Appeals, the Town of
Cortlandt Planning Board, the Town of Cortlandt Department of Technical Services, Ken Hoch,
Edward Vergano, James Flandreau, the Town of Cortlandt Department of Law, John Klarl, and
Thomas Wood, claiming violations of their First and Fourteenth Amendment rights.
Defendants have moved to dismiss the complaint invoking the doctrines of RookerFeldman and res judicata. (Doc. #3).
For the following reasons, the motion is GRANTED.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
1
BACKGROUND
For purposes of deciding the pending motion, the Court accepts as true all well-pleaded
allegations in the complaint and draws all reasonable inferences in plaintiffs’ favor.
Plaintiff James Meaney is the principal of co-plaintiff Green Materials of Westchester
(“Green Materials”). On June 3, 2008, Meaney leased property in the Town of Cortlandt (the
“Town”) from co-plaintiff George Liaskos to use the parcel as a “Specialty Trade Contractor,” a
permitted use under the Town’s applicable zoning ordinance. (Compl. at 6). Meaney sought to
engage in concrete recycling activities on the property.
I.
Proceedings Before the Town of Cortlandt
On August 6, 2008, Meaney applied to the Town’s Zoning Board of Appeals (“ZBA”) for
a determination that Green Materials’s concrete recycling would be an appropriate “specialty
trade contractor” use under the applicable zoning ordinance. After receiving a favorable decision
from the ZBA, Meaney applied to the Town’s Planning Board for site plan approval on August
22, 2008.
Plaintiffs allege the Planning Board refused to consider their site plan application for
several months based on (i) “personal and political bias against” plaintiffs (Compl. at 12); (ii)
confusion about whether Green Materials would be crushing raw materials, such as rock; and
(iii) the Town Board’s preference that a hotel be built on the property. On April 7, 2009, the
Planning Board held a public hearing on plaintiffs’ site plan application to recycle concrete and
adjourned consideration of the application.
One week later, the Town Board enacted a one-year moratorium on the processing of
applications for site plan approvals for certain uses, including specialty contractor yards.
Plaintiffs allege defendants “targeted” their site plan application for denial because the Planning
2
Board processed and approved site plan applications for other contractor yards during the
moratorium. (Compl. at 16).
On July 20, 2010, the Town Board adopted a local law requiring that specialty trade
contractors obtain special use permits. The definition of “specialty trade contractors” was
limited to include certain types of activities, including “manufacturing operations that do not
require the processing of raw materials.” Town of Cortlandt Town Code § 307-4.
In March 2011, plaintiffs appeared before the Planning Board and their site plan
application was denied. Plaintiffs allege certain defendants falsely stated the site plan
application required the processing of raw material. Defendant John Klarl, counsel for the ZBA
and Planning Board, suggested plaintiffs re-apply to the ZBA.
Plaintiffs submitted a new site plan application. At the public hearing on the new
application, certain ZBA members “indicate[d] that as long as the Plaintiff limit[ed] his
activities” to those found in plaintiffs’ prior application, plaintiffs have “an approved use to
appear before the Planning Board and obtain approval.” (Compl. at 20). Nonetheless, on April
23, 2012, the ZBA denied the new application, finding plaintiffs “cannot apply to the planning
Board for a Special Permit for a Specialty Trade Contractor where the applicant’s activities
require the processing of raw materials.” (Id.).
II.
Proceedings in New York State Court
On May 23, 2012, Green Materials and Meaney commenced a combined Article 78 and
declaratory judgment action in Supreme Court, Westchester County, against the Town, the ZBA
members, the Planning Board members, and the Town’s building officials, seeking (i) reversal of
the ZBA’s April 23, 2012, determination, and (ii) declaratory relief pursuant to C.P.L.R. § 3001
determining the applicability of various land use statutes as they apply to plaintiffs’ rights. On
3
May 7, 2013, the court (Hon. Lester B. Adler) granted the Article 78 petition nullifying the
ZBA’s April 23, 2012, determination. 1 The court severed the claim for declaratory relief.
Green Materials and Meaney sought leave pursuant to C.P.L.R. § 3025(b) to amend their
complaint to add causes of action pursuant to 42 U.S.C. §§ 1983 and 1988, alleging violations of
their First Amendment rights to freedom of speech and association, as well as their Fourteenth
Amendment rights to due process and equal protection.
On October 8, 2014, Justice Adler denied the motion for leave to amend. As to the First
Amendment claim, the court held, “Plaintiff has not alleged that the Defendants’ actions actually
chilled his exercise of his First Amendment rights and thus has not stated a cause of action for
violation of First Amendment rights.” (Svensson Decl. Ex. D at 4) (quotations and alterations
omitted). Similarly, Justice Adler found Green Materials and Meaney “failed to state [an]
element of a substantive due process claim,” and “failed to state an equal protection claim.” Id.
at 5-6.
Green Materials and Meaney moved a second time for leave to amend their complaint.
They included new factual allegations in their second proposed amended complaint. In addition
to the claims asserted in their first proposed amended complaint, Green Materials and Meaney
attempted to add a conspiracy claim under 42 U.S.C. § 1985. They also sought to add Liaskos,
the property owner, as a plaintiff, and to add James Flandreau, a Town employee, Tom Wood,
the head of the Town’s Department of Law, and John Klarl as defendants.
1
Defendants appealed the Supreme Court’s grant of the Article 78 petition. The Appellate
Division, Second Department, held the “Supreme Court properly concluded that the ZBA’s
determination was not supported by the evidence in the record and lacked a rational basis and,
hence, was arbitrary and capricious.” In re Green Materials of Westchester v. Cortlandt, 132
A.D.3d 868 (2d Dep’t 2015).
4
On March 25, 2015, Justice Adler denied Green Materials’s and Meaney’s second motion
to amend their complaint. The court held:
[t]his Court has already determined that plaintiffs’ proposed claims
under 42 U.S.C. §§ 1983 and 1988 have no merit. The new factual
allegations do not make the claims any more viable. Since the
claims that defendants deprived plaintiffs of their federal rights fail,
so does the claim under 42 U.S.C. § 1985 that defendants conspired
to deprive plaintiffs of their rights.
(Svensson Decl. Ex F at 3). Justice Adler denied the portion of the motion seeking to add parties
without prejudice. 2
Approximately one month later, plaintiffs filed a complaint in federal court substantially
similar to the second proposed amended complaint denied by Justice Adler. Plaintiffs’ federal
complaint includes the constitutional violations Justice Adler rejected as meritless and additional
parties.
DISCUSSION
I.
Legal Standards
A.
Rule 12(b)(1) Standard
“[F]ederal courts are courts of limited jurisdiction and lack the power to disregard such
limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston,
Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (internal quotation
marks omitted). “A case is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.”
Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation marks omitted).
2
The court stated, “[t]hat branch of the motion which seeks to add a plaintiff and three
defendants is denied, but without prejudice to plaintiffs moving for leave to add the parties to
this action as it is set forth in the existing complaint.” (Svensson Decl. Ex F at 3).
5
The party invoking the Court’s jurisdiction bears the burden of establishing jurisdiction exists.
Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009).
When, as here, the case is at the pleading stage, in deciding a motion to dismiss under
Rule 12(b)(1), the Court “must accept as true all material facts alleged in the complaint and draw
all reasonable inferences in the plaintiff’s favor.” Conyers v. Rossides, 558 F.3d at 143.
“However, argumentative inferences favorable to the party asserting jurisdiction should not be
drawn.” Buday v. N.Y. Yankees P’ship, 486 Fed. Appx. 894, 895 (2d Cir. 2012) (summary
order) (quoting Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir.
1992)) (internal quotation marks omitted). When a factual challenge to the Court’s jurisdiction
has been raised, “the court may resolve [any] disputed jurisdictional fact issues by referring to
evidence outside of the pleadings.” Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215
F.3d 247, 253 (2d Cir. 2000).
B.
Rule 12(b)(6) Standard
Although defendants have moved to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction, res judicata is an affirmative defense and not a jurisdictional matter. See
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005) (citing Fed. R. Civ. P.
8(c)). A motion to dismiss on the basis of res judicata should be made under Rule 12(b)(6).
Mejia v. New York City Health & Hosps. Corp., 2014 WL 2115109, at *2 (S.D.N.Y. May 19,
2014) aff’d sub nom. Mejia v. New York City Health & Hosps. Corp., 2015 WL 8237867 (2d
Cir. Dec. 9, 2015).
The Court will consider defendants’ motion with respect to res judicata under Rule
12(b)(6) for failure to state a cause of action for which relief can be granted. See Rosse v.
United States, 2015 WL 2453477, at *7 (N.D.N.Y. May 22, 2015) (construing statute of
6
limitations issue as a 12(b)(6) motion although defendant moved under 12(b)(1) because the
parties adequately discussed the issue in their briefings); Zebrowski v. Denckla, 630 F. Supp.
1307, 1309 n.1 (E.D.N.Y. 1986) (“[A] motion to dismiss for lack of jurisdiction . . . [may be]
treated as a 12(b)(6) motion when the memoranda submitted by the parties adequately discuss
the sufficiency of the claim despite the erroneous designation of the ground for the motion.”).
Because the parties adequately briefed res judicata, the Court applies the Rule 12(b)(6) standard
here.
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative
complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” are not entitled
to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Id. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is
facially plausible “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. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id.
7
II.
Rooker-Feldman
Defendants moved to dismiss the complaint under Rule 12(b)(1) pursuant to the Rooker-
Feldman doctrine. “Rooker-Feldman directs federal courts to abstain from considering claims
when four requirements are met: (1) the plaintiff lost in state court, (2) the plaintiff complains of
injuries caused by the state court judgment, (3) the plaintiff invites district court review of that
judgment, and (4) the state court judgment was entered before the plaintiff’s federal suit
commenced.” McKithen v. Brown, 626 F.3d 143, 154 (2d Cir. 2010). The applicability of the
Rooker-Feldman doctrine “turns not on the similarity of between a party’s state court and
federal-court claims (which is, generally speaking, the focus of ordinary preclusion law), but
rather on the causal relationship between the state-court judgment and the injury of which the
party complains in federal court.” McKithen v. Brown, 481 F.3d 89, 97-98 (2d Cir. 2007)
(emphasis in original).
Here, the Town and Town officials allegedly violated plaintiffs’ constitutional rights;
plaintiffs’ injuries were not caused by the state court judgment. See Hoblock v. Albany Cty. Bd.
of Elections, 422 F.3d 77, 88 (2d Cir. 2005) (“[A] federal suit complains of injury from a statecourt judgment, even if it appears to complain only of a third party’s actions, when the third
party’s actions are produced by a state-court judgment and not simply ratified, acquiesced in, or
left unpunished by it.”). Thus, the Rooker-Feldman doctrine is inapplicable.
III.
Res Judicata
Res judicata refers to two different doctrines: claim preclusion and issue preclusion.
Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Under the doctrine of claim preclusion, “a final
judgment forecloses successive litigation of the very same claim, whether or not relitigation of
the claim raises the same issues as the earlier suit.” Id. (internal quotation marks omitted). “The
8
doctrine precludes not only litigation of claims raised and adjudicated in a prior litigation
between the parties (and their privies), but also of claims that might have been raised in the prior
litigation but were not.” Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d
102, 108 (2d Cir. 2015).
A federal court must give the same preclusive effect to a state court decision as the state’s
law would give it. See 28 U.S.C. § 1738; Migra v. Warren City Sch. Dist. Bd. of Educ., 465
U.S. 75, 81 (1984). Therefore, New York law governs the res judicata analysis here. 3
Under New York law, “res judicata will bar litigation of a claim that was either raised, or
could have been raised, in a prior action provided that the party to be barred had a full and fair
opportunity to litigate any cause of action arising out of the same transaction and the prior
disposition was a final judgment on the merits.” Pope v. Enzo Biochem, Inc., 432 F. App’x 7, 9
(2d Cir. 2011) (summary order) (quoting Kinsman v. Turetsky, 21 A.D.3d 1246, 1246 (3d Dep’t
2005)) (alterations omitted). Res judicata thus bars litigation between the same parties, or those
in privity with them, on the same cause of action. Ferris v. Cuevas, 118 F.3d 122, 126 (2d Cir.
1997).
Plaintiffs dispute (i) whether the state court’s denials of their motions to amend were
adjudications on the merits; (ii) whether certain parties here are in privity with the parties in the
state court action; and (iii) whether the claims here were or could have been raised in the state
court action. For the reasons addressed below, the Court finds each element of claim preclusion
satisfied. Accordingly, plaintiffs’ claims are barred as a matter of law.
3
The Court notes, however, “there is no discernible difference between federal and New
York law concerning res judicata.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.
2002); see also Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997). Accordingly, the
Court relies on both New York and federal law in deciding this motion.
9
A.
Adjudications on the Merits
Plaintiffs first argue the state court’s denials of their motions to amend were not
adjudications on the merits. The Court finds otherwise.
Denial of leave to amend may constitute an adjudication on the merits and bar later
claims relating to the same transaction or event. See N. Assur. Co. of Am. v. Square D. Co., 201
F.3d 84, 87-88 (2d Cir. 2000) (“Where the plaintiff is seeking to add additional claims against
the same defendant and leave to amend is denied, claim preclusion is appropriate.”); EFCO
Corp. v. U.W. Marx, Inc., 124 F.3d 394, 398-400 (2d Cir. 1997) (plaintiff sought leave to amend
to add additional claims in state court, the court denied leave, and the Second Circuit held claim
preclusion “applies to the claims sought to be added in the proposed amended complaint”)
(applying New York law).
When denial of leave to amend is on the merits, courts consistently hold the denial has
preclusive effect. See Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000) (“Only denial
of leave to amend on the merits precludes subsequent litigation of the claims in the proposed
amended complaint.”) (emphasis in original); Carter v. City of New York, 2012 WL 1034914, at
*3 (S.D.N.Y. Mar. 23, 2012) (“A denial of leave to amend on grounds of futility, based on an
evaluation that the new allegations could not survive a motion to dismiss, is a judgment on the
merits.”); Yaba v. Roosevelt, 961 F. Supp. 611, 621 (S.D.N.Y. 1997) (“The denial of a motion to
amend is a final judgment on the merits for the purposes of res judicata.”).
Here, Justice Adler denied Green Materials’s and Meaney’s motion to amend their
complaint to add constitutional claims because they failed to state certain elements of each claim.
After plaintiffs alleged new facts and moved for a second time to add the exact same claims as
10
they allege here, the court affirmed its previous finding that the claims “have no merit.”
(Svensson Decl. Ex F at 3).
Thus, Justice Adler’s decisions denying plaintiffs’ motions to amend their complaint are
adjudications on the merits with preclusive effect.
B.
Same Parties or Those in Privity with Them
1.
Plaintiff George Liaskos
Plaintiffs next argue “George Liaskos is a different party . . . without privity to anyone in
the complaint.” (Pls.’ Br. at 9). The Court disagrees.
“[A] judgment in a prior action is binding not only on the parties to that action, but on
those in privity with them.” Burberry Ltd. v. Horowitz, 534 F. App’x 41, 46 n.1 (2d Cir. 2013)
(summary order) (citing Green v. Santa Fe Indus., 70 N.Y.2d 244, 253 (1987)). New York law
provides for a finding of privity in flexible situations involving a wide array of relationships.
Ferris v. Cuevas, 118 F.3d at 127 n.6. It is of course true Liaskos did not personally litigate his
claims against the defendants in the state court action. Nonetheless, plaintiffs Green Materials
and Meaney, as lessees of Liaskos’s property, are in privity with Liaskos. There is no allegation
or indication Liaskos’s interests are different from Green Materials’s or that Liaskos was not
adequately represented in the state court action. See Pope v. Enzo Biochem, Inc., 432 F. App’x
at 9-10.
Thus, Liaskos is in privity with Green Materials and Meaney, and his interests were
adequately represented in the state court action.
2.
Defendants
Plaintiffs also argue res judicata does not apply here because they have included new
defendants and sue certain defendants individually instead of in their official capacities.
11
As noted above, privity in the res judicata context “eschews strict reliance on formal
representative relationships in favor of a more flexible consideration of whether all of the facts
and circumstances of the party’s and nonparty’s actual relationship, their mutuality of interests
and the manner in which the nonparty’s interests were represented in the prior litigation
establishes a functional representation.” Mario Valente Collezioni, Ltd. v. AAK Ltd., 2004 WL
724690, at *8 (S.D.N.Y. Mar. 26, 2004) (quoting Slocum on Behalf of Nathan A v. Joseph B,
183 A.D.2d 102, 104 (3d Dep’t 1992); see Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera
Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995) (“In its modern form, the principle of privity bars
relitigation of the same cause of action against a new defendant known by a plaintiff at the time
of the first suit where the new defendant has a sufficiently close relationship to the original
defendant to justify preclusion.”).
In the state court action, Green Materials and Meaney initially sued the Town, the Town
Board’s members, the ZBA’s members, the Planning Board’s members, and other Town
officials. Green Materials and Meaney then moved for leave to add three more Town employees
– James Flandreau, John Klarl, and Thomas Wood – which Justice Adler denied without
prejudice to plaintiffs’ moving for leave to add the three new defendants to the original
complaint. In the instant federal action, plaintiffs added four additional defendants: the ZBA
itself, the Planning Board itself, the Town’s Department of Technical Services, and the Town’s
Department of Law. Although plaintiffs do add new defendants, each of the defendants in the
present case is a Town official or division of the Town sued in the prior case. All defendants are
linked by their association with the Town’s governance. Thus the defendants here have a
12
sufficiently close relationship and alignment of interest with the defendants in the state court
action to justify preclusion. 4
Plaintiffs’ argument that preclusion cannot apply to defendants now sued individually is
similarly unpersuasive. While a party who litigates in one capacity is usually not affected by a
judgment in subsequent litigation in which the party litigates in another capacity, see e.g.,
Specialized Realty Servs., LLC v. Maikisch, 123 A.D.3d 801, 802 (2d Dep’t 2014), that principle
applies when “a party who occupies both individual and representative capacities may have
conflicting interests with respect to the conduct of litigation.” Hirschfeld v. Spanakos, 871 F.
Supp. 190, 193 n.3 (S.D.N.Y. 1994) (concluding prior suit had res judicata effect on defendants
in both their official and individual capacities); see Waldman v. Vill. of Kiryas Joel, 39 F. Supp.
2d 370, 382 (S.D.N.Y. 1999), aff’d, 207 F.3d 105 (2d Cir. 2000) (holding res judicata barred
litigation of a claim against government officials subsequently sued in their individual
capacities). Here, there is no indication or allegation the Town officials have individual interests
conflicting with their interests as Town officials, nor is there any allegation the Town officials
acted outside of their capacity as Town officials. Under these circumstances, plaintiffs cannot
avoid res judicata merely by suing the same officials again in their individual capacities.
In sum, the parties here are the same or in privity with the parties in the state court action,
satisfying this element of claim preclusion.
4
Moreover, plaintiffs alleged no new facts as to any defendants compared to Green
Materials’s and Meaney’s second proposed amended complaint in the state court action. The
events giving rise to the allegations as to each of the defendants here were known to plaintiffs at
the time of their state court action and plaintiffs could have brought suit against them then.
13
C.
Claims Were or Could Have Been Raised in the Prior Action
Finally, plaintiffs assert the claims in the instant case were not and could not have been
raised in the prior action.
The Court finds otherwise.
First, plaintiffs argue that because their state court action involved an Article 78
proceeding, they could not have raised constitutional claims and received an adjudication on the
merits. While claim preclusion may not apply when an Article 78 plaintiff subsequently seeks
Section 1983 relief in federal court, that is only true “if the initial forum did not have the power
to award the full measure of relief sought in the later litigation.” Johns v. Rampe, 333 F. App’x
644, 646 (2d Cir. 2009) (summary order) (citing Davidson v. Capuano, 792 F.2d 275, 278 (2d
Cir. 1986)). Here, however, Green Materials and Meaney initially brought a “hybrid” Article 78
action accompanied by a declaratory judgment claim, and thus could also have brought
constitutional claims. See, e.g., Coleman ex rel. Coleman v. Daines, 19 N.Y.3d 1087, 1089
(2012); Upstate Land & Props., LLC v. Town of Bethel, 74 A.D.3d 1450, 1452 (3d Dep’t 2010).
Moreover, Green Materials and Meaney sought to add constitutional claims to their complaint
after the Article 78 cause of action had already been decided in their favor. Therefore, the state
court did not lack to power to award relief stemming from their constitutional claims. Instead,
Justice Adler analyzed the sufficiency of the constitutional claims and concluded they were
meritless.
Second, plaintiffs assert the present complaint alleges new facts not included in the state
action. Specifically, plaintiffs now allege defendants “entered into an agreement as to an
enforcement issue with a nearby property owner to allow the same activities as the [plaintiffs]
are herein requesting in their site plan application.” (Pls.’ Br. at 10). This new allegation is
14
insufficient to avoid the application of res judicata. “Even if there are variations in the facts
alleged . . . if the actions are grounded on the same gravamen of the wrong res judicata applies.”
Yeiser v. GMAC Mortgage Corp., 535 F. Supp. 2d 413, 422 (S.D.N.Y. 2008) (citing Marinelli
Assocs. v. Helmsley-Noyes Co., 265 A.D.2d 1, 5 (1st Dep’t 2000)); see Waldman v. Vill. of
Kiryas Joel, 207 F.3d 105, 112-14 (2d Cir. 2000) (applying claim preclusion when some of the
events post-dated the first action, but the new facts did not amount to a new claim). In the state
court action, Green Materials and Meaney alleged the Town treated two contractors’ applications
more favorably than their application. Now plaintiffs allege a third application was treated
differently. Although a new event, this is a variation of the facts previously alleged and is
grounded on the gravamen of the claim that Justice Adler considered and found meritless. Thus,
plaintiffs cannot avoid the preclusive effect of the state court decisions based on this new factual
allegation.
Third, plaintiffs argue their current constitutional claims could not have been brought in
the prior action because they allege “constitutional violations are ongoing and each day is a new
violation as the complaint alleges that Defendants-Planning Board refuse to render any decision
calculated to prevent proper judicial review.” (Pls.’ Br. at 10). Although it is true that when “a
claim over ‘ongoing conduct’ . . . relies on facts that occurred both before and after the earlier
action commenced, claim preclusion will not bar a suit,” TechnoMarine SA v. Giftports, Inc.,
758 F.3d 493, 501 (2d Cir. 2014), the “ongoing conduct” rule requires “legally significant acts
occurring after the filing of a prior suit.” Waldman v. Vill. of Kiryas Joel, 207 F.3d at 113.
15
Here, plaintiffs do not allege defendants took any actions depriving them of their
constitutional rights since the state court decisions. 5 Thus, because plaintiffs merely offer the
bare assertion of “ongoing” violations without new factual allegations, the Court finds the claims
asserted here are the same as those raised in the prior action. (Pls.’ Br. at 10).
In sum, plaintiffs’ arguments that their claims in the present case could not have been
brought in the state court action are unpersuasive. Plainly, plaintiffs are seeking relief in federal
court based on the same series of transactions involved in the state court action. Justice Adler
expressly found – twice – that plaintiffs’ constitutional claims are meritless. Since all elements
of res judicata are satisfied, the complaint must be dismissed.
CONCLUSION
Defendants’ motion to dismiss is GRANTED. Plaintiffs’ claims are dismissed with
prejudice.
The Clerk is instructed to terminate the motion (Doc. #3) and close this case.
Dated: December 21, 2015
White Plains, NY
SO ORDERED:
____________________________
Vincent L. Briccetti
United States District Judge
5
In fact, plaintiffs recently won a favorable decision from the Second Department
affirming their Article 78 relief. See In re Green Materials of Westchester v. Cortlandt, 132
A.D.3d 868 (2d Dep’t 2015).
16
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