Santucci et al v. Levine et al
MEMORANDUM OPINION AND ORDER re: 59 MOTION to Dismiss Plaintiffs' Second Amended Complaint pursuant to FRCP 12(b)(6). filed by Town of Southeast, NY, Tony Hay, Willis Stephens, Michael Levine. Based upon the foregoing, D efendants' motion to dismiss is GRANTED in part. The first, second, third, and fourth claims for relief, along with the fifth claim for relief insofar as it is pressed against Hay in his official capacity, are DISMISSED. Plaintiffs' fift h claim for relief, to the extent that it is stated against the Town and Hay in his individual capacity, shall proceed to discovery. Defendants are directed to file an Answer to the SAC within fourteen (14) days of the date of this Memorandum Opi nion and Order. The Court will issue an Initial Pretrial Conference Order and set a conference date in short order. The Clerk of the Court is directed to terminate motion sequence pending at Doc. 59. SO ORDERED. (Signed by Judge Philip M. Halpern on 1/8/2021) (ks)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DENNIS SANTUCCI, et al.,
-againstMICHAEL LEVINE, individually and as
Building Inspector for the Town of Southeast,
New York, et al.,
PHILIP M. HALPERN, United States District Judge:
Plaintiffs Dennis Santucci (“Santucci”) and Kimberley Santucci (collectively “Plaintiffs”),
residents of the Town of Southeast (the “Town”), bring this action under 42 U.S.C. § 1983 against
the Town, Town Building Inspector Michael Levine (“Levine”), Town Attorney Willis Stephens
(“Stephens”), and Town Supervisor Tony Hay (“Hay” and collectively “Defendants”) for various
violations of Plaintiffs’ constitutional rights.
Plaintiffs filed their Complaint on December 29, 2017. (Doc. 1). The Complaint asserted
two (2) claims for relief against all Defendants: (1) First Amendment retaliation; and (2)
Fourteenth Amendment selective enforcement. (Id. ¶¶ 53-56). On August 10, 2018, Defendants
moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). (See Docs. 3035). Approximately one month later, on September 25, 2018, the parties filed a stipulation by
which they agreed: (1) that Defendants’ pending motion to dismiss was withdrawn; (2) that
Plaintiffs could file their First Amended Complaint (“FAC”) on or before October 5, 2018; and (3)
to a briefing schedule for an anticipated motion to dismiss the FAC. (Doc. 36). Judge Román “So
Ordered” the stipulation on October 2, 2018. (Doc. 39).
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Plaintiffs filed the FAC on October 2, 2018. (Doc. 40, “FAC”). The revised pleading again
pressed two (2) claims for relief: (1) First Amendment retaliation against Hay and the Town, only;
and (2) Fourteenth Amendment selective enforcement against all Defendants. (Id. ¶¶ 52-55).
Defendants moved to dismiss the FAC under Rule 12(b)(6); that motion was fully briefed and filed
on January 7, 2019. (See Docs. 41, 43-50).
On August 8, 2019, Judge Román issued an Opinion & Order (“Prior Order”) granting
Defendants’ motion and dismissing certain claims with and without prejudice. (Doc. 52, “Prior
Ord.”).1 Judge Román advised that Plaintiffs:
shall have until September 12, 2019 to file a second amended
complaint concerning those claims dismissed without prejudice.
Otherwise said claims shall be deemed dismissed with prejudice.
(Id. at 26). Plaintiffs attempted to file their Second Amended Complaint (“SAC”) on September
12, 2019, but the Clerk’s Office noted that the filing contained a number of errors. (See Doc. 53;
Sept. 13, 2019 Entry (notice to counsel explaining that the filing was “deficient” because, inter
alia, the wrong ECF event type was chosen by the filer)). Plaintiffs attempted to file the SAC again
on October 9, 2019, but there were still a variety of errors with the filing. (See Doc. 54, “SAC;”
Oct. 10, 2019 Entry). Based upon a review of the docket, it does not appear that Plaintiffs ever
rectified the errors identified by the Clerk’s Office. Nevertheless, Defendants sought leave to file
a motion to dismiss the SAC under Rule 12(b)(6) and Plaintiffs opposed that request. (Docs. 5557). On April 3, 2020, this matter was reassigned to me, and on that day I set a briefing schedule
for the instant motion. (Doc. 58).
The SAC presents five (5) claims for relief under 42 U.S.C. § 1983: (1) Fourteenth
Amendment selective enforcement against Stephens and Levine; (2) Fourteenth Amendment
While the Prior Order is available on commercial databases, see Santucci v. Levine, No. 17-CV-10204,
2019 WL 3742286 (S.D.N.Y. Aug. 8, 2019), citations to that decision correspond to the copy on the docket.
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selective enforcement against the Town; (3) First Amendment retaliation against Stephens and
Levine; (4) First Amendment retaliation against the Town; and (5) First Amendment free speech
against Hay and the Town. (SAC ¶¶ 197-209). Defendants moved to dismiss the SAC under
Federal Rule of Civil Procedure 12(b)(6) on May 4, 2020. (See Doc. 59; Doc. 62 “Def. Br.”).
Plaintiffs opposed the motion on May 18, 2020 (Doc. 65, “Opp. Br.”), and it was fully briefed with
the filing of Defendants’ reply brief on May 29, 2020 (Doc. 68, “Reply Br.”).
For the reasons set forth below, Defendants’ motion to dismiss is GRANTED in part.
While the FAC consisted of fifty-five (55) paragraphs and pressed two (2) claims for relief
over fourteen (14) pages, the SAC presents two hundred nine (209) paragraphs and asserts five (5)
claims for relief over thirty-five (35) pages. (Compare FAC, with SAC). The Court assumes the
parties’ familiarity with the factual allegations as laid out in the Prior Order (Prior Ord. at 1-7) and
incorporates the SAC’s new factual allegations where appropriate infra.
STANDARD OF REVIEW
A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “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. (citing Twombly, 550 U.S. at 556). The factual allegations pled “must
be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.
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“When there are well-ple[d] factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences
are drawn and viewed in a light most favorable to the plaintiff.” Leeds v. Meltz, 85 F.3d 51, 53
(2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal conclusions,’ and
‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556
U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and
conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
On a Rule 12(b)(6) motion, “the Court is entitled to consider facts alleged in the complaint
and documents attached to it or incorporated in it by reference, documents ‘integral’ to the
complaint and relied upon in it, and facts of which judicial notice may properly be taken under
Rule 201 of the Federal Rules of Evidence.” Heckman v. Town of Hempstead, 568 F. App’x 41,
43 (2d Cir. 2014); see also Manley v. Utzinger, No. 10-CV-2210, 2011 WL 2947008, at *1 n.1
(S.D.N.Y. July 21, 2011) (“The Court may consider . . . documents incorporated into the complaint
by reference, and documents possessed by or known to the plaintiff and upon which plaintiff relied
in bringing the suit.”). Still, even if a document is not incorporated by reference into the complaint,
the Court may consider a document “where the complaint ‘relies heavily upon its terms and effect,’
thereby rendering the document ‘integral’ to the complaint.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010).
Defendants submitted six (6) documents for the Court’s consideration on this motion.
Annexed to Defendants “Exhibit List” were: (1) the SAC (Doc. 63-1, “List Ex. A”); (2) a
December 12, 2014 letter and appearance ticket for the wetlands violation (Doc. 63-2, “List Ex.
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B”); (3) a December 20, 2006 memorandum and letter regarding the conclusion that Eric
Heinecke’s (“Heinecke”) motocross racetrack (“racetrack”) was a prior, non-conforming use (Doc.
63-3, “List Ex. C”); (4) a July 12, 2017 letter from Levine to Hay concluding that the racetrack
was a permitted land use (Doc. 63-4, “List Ex. D”); (5) a description of Plaintiffs’ property (Doc.
63-5, “List Ex. E”); and (6) the July 15, 2013 deed to Plaintiff’s property (Doc. 63-6, “List Ex.
F”). The Court considers the December 20, 2006 memorandum and letter (List Ex. C) and the July
12, 2017 letter from Levine (List Ex. D) as the SAC either references, or Plaintiffs were aware of,
these documents, and they are records of which judicial notice may be taken. (See SAC ¶¶ 33, 9293, 99, 119, 167; Prior Ord. at 3 n.2 (concluding that the same documents could be considered on
the motion to dismiss the FAC)); see also Heckman, 568 F. App’x at 43; Manley, 2011 WL
2947008, at *1 n.1; Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011).
Although Defendants’ presentation of these documents violates Local Civil Rule 7.1(a)(3)
of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts
of New York, because Plaintiffs do not object to their authenticity, the Court may and does
consider them. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“A district court
has broad discretion to determine whether to overlook a party’s failure to comply with local court
rules.”); Bonadies v. Town of Amenia, No. 19-CV-10890, 2020 WL 5209510, at *3 (S.D.N.Y.
Aug. 31, 2020); cf. G.C.W. ex rel. Rivera v. United States, No. 15-CV-294, 2017 WL 933098, at
*5 n.10 (S.D.N.Y. Mar. 8, 2017) (concluding on summary judgment that, violating Local Civil
Rule 7.1(a)(3), the documents would be considered because opposing counsel did not object or
challenge the authenticity of the exhibits). The remaining documents are not considered because:
(1) Judge Román ruled that the wetlands violation was outside the statute of limitations (Prior Ord.
at 16-17); and (2) the property description and deed would have no impact on the analysis herein.
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Section 1983 Is a Mechanism for Vindicating Constitutional Rights
At the outset of the analysis, it bears noting that each of the five claims for relief contained
in the SAC are brought under 42 U.S.C. § 1983. (See SAC ¶¶ 197-209). That law provides, in
pertinent part, that “[e]very person who, under color of any statute . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured . . . .” 42
U.S.C. § 1983. As recognized in the Prior Order, this language does not create substantive rights;
rather, it creates a mechanism by which individuals can vindicate the violation of rights secured
elsewhere. (Prior Ord. at 10 (quoting Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993))). As such,
Plaintiffs must plead facts “demonstrat[ing]: ‘(1) a right secured by the Constitution or laws of the
United States was violated, and (2) the right was violated by a person acting under color of state
law, or a state actor.’” (Id. (quoting Town & Country Adult Living, Inc. v. Vill./Town of Mount
Kisco, No. 17-CV-8586, 2019 WL 1368560, at *17 (S.D.N.Y. Mar. 26, 2019) (alteration added)).
In this case, Plaintiffs have invoked § 1983 in order to state claims against Stephens, Levine, Hay,
and the Town for violating First and Fourteenth Amendment rights. (See SAC ¶¶ 197-209).
Consideration of Allegations Outside the Statute of Limitations
Turning to the substance of the parties’ dispute, the Court must address first the parties’
competing positions on whether allegations outside the applicable statute of limitations may be
considered in ruling on this motion. Judge Román explained previously that “the applicable statute
of limitations for Section 1983 claims arising in New York is three years,” so those claims
“accruing before December 29, 2014 . . . fall outside of the statute of limitations.” (Prior Ord. at
16). Defendants posit that this determination sets the boundaries of allegations that the Court may
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consider and means that “all allegations contained in ¶¶ 45-75 of the Plaintiffs’ SAC, which the
Plaintiffs admit occurred prior to December 29, 2014,” are immaterial. (Def. Br. at 12). Plaintiffs,
on the other hand, insist that those allegations are “relevant to demonstrating the existence of
intentional selective enforcement which continued during the limitations period.” (Opp. Br. at 20).
Although conduct outside the statute of limitations is not actionable generally as
Defendants suggest, it may be relevant to explaining the relationship between the parties and how
actionable conduct materialized. See generally Levine v. McCabe, 357 F. Supp. 2d 608, 616
(E.D.N.Y. 2005) (“A statute of limitations does not generally bar the introduction of evidence that
predates the commencement of the limitations period but is relevant to events during that period.”).
As such, the Court considers those pre-December 29, 2014 allegations for the purpose of providing
context and background to those timely claims for relief.
The First and Second Claims for Relief: Fourteenth Amendment Selective Enforcement
The first claim for relief complains that Stephens and Levine “engag[ed] in the selective
enforcement of the town zoning code and building laws,” thereby violating Plaintiffs’ Fourteenth
Amendment right to equal protection; the second claim for relief identifies the same wrong but
proceeds against the Town as a Monell claim based on the theory that Stephens and Levine were
policymakers. 2 (SAC ¶¶ 197-200). The crux of these equal protection claims for relief is that
Stephens and Levine cited and prosecuted Plaintiffs for violating local zoning ordinances but failed
to prosecute Plaintiffs’ neighbor, Heinecke, for similar (if not worse) violations. The different
A municipality may be held liable for violating an individual’s constitutional rights only where the
violation resulted from “a municipal policy or custom.” Dipinto v. Westchester Cty., No. 18-CV-793, 2020
WL 6135902, at *9 (S.D.N.Y. Oct. 19, 2020). As neither party has addressed whether Plaintiffs alleged
plausibly the existence of a municipal policy or custom, the Court evaluates the viability of the Monell
claims on the basis of whether Plaintiffs pled a constitutional violation. (See Prior Ord. at 8 n.12 (citing
Dodson v. Bd. of Educ. of the Valley Stream Union Free Sch. Dist., 44 F. Supp. 3d 240, 247 (E.D.N.Y.
2014))); see also Ventillo v. Falco, No. 19-CV-3664, 2020 WL 7496294, at *14 (S.D.N.Y. Dec. 18, 2020)
(dismissing Monell claims because the plaintiff did not plead an underlying constitutional violation).
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treatment, according to Plaintiffs, stems from the fact that Heinecke had personal relationships
with both Stephens and Levine; in fact, Plaintiffs allege that Stephens is Heinecke’s “childhood
friend” as well as Heinecke’s attorney. (SAC ¶ 3; see also id. ¶¶ 16, 19, 20, 27, 29, 57).
The Fourteenth Amendment provides, in relevant part, that “[n]o State shall . . . deny to
any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
This provision “is essentially a direction that all persons similarly situated should be treated alike.”
(Prior Ord. at 12 (quoting Thomas v. Town of Southeast, 336 F. Supp. 3d 317, 331 (S.D.N.Y.
2018))). To state a claim that their right to equal protection was violated on a theory of selective
enforcement of laws, “Plaintiffs must plausibly allege that any selective treatment they
experienced ‘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 injury [them].’” Lilakos v. New York City, 808 F. App’x 4, 8
(2d Cir. 2020) (quoting Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (alteration in
original)); see also Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007) (quoting
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)).
Although the question of “whether two comparators are similarly situated is [generally] a
factual issue that should be submitted to the jury,” Marom v. Town of Greenburgh, No. 18-CV7637, 2020 WL 978514, at *6 (S.D.N.Y. Feb. 28, 2020) (quoting LTTR Home Care, LLC v. City
of Mount Vernon Indus. Dev. Agency, No. 17-CV-9885, 2019 WL 4274375, at *12 (S.D.N.Y. Sept.
10, 2019) (alteration in original)), on a Rule 12(b)(6) motion the Court “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) (quoting Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley
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Hills, 815 F. Supp. 2d 679, 697-98 (S.D.N.Y. 2011)). “To satisfy this standard, the plaintiff’s and
comparator’s circumstances must bear a reasonably close resemblance.” Hu v. City of New York,
927 F.3d 81, 96 (2d Cir. 2019) (internal quotation marks omitted). While the circumstances need
not be “identical,” Plaintiffs must establish that they were “similarly situated in all material
respects to the [comparators] with whom [they] seek to compare” themselves. Id. (internal
quotation marks omitted); see also Bonadies, 2020 WL 5209510, at *5 (“Courts in this circuit have
required plaintiffs alleging selective enforcement claims to plausibly allege that . . . comparators
were similarly situated in all material respects, or that a prudent person, looking objectively at the
incidents, would think them roughly equivalent.” (internal quotation marks omitted)).
In the prior round of motion practice regarding the FAC, Judge Román concluded that “[i]t
is simply not plausible, on the facts alleged, for a jury to find that Plaintiffs’ property is similarly
situated to Heinecke’s property.” (Prior Ord. at 14). Defendants argue inter alia that the SAC, like
its predecessor, suffers from this same shortcoming. The Court agrees.3 (Def. Br. at 13-16).
Plaintiffs argue, without citation to the SAC, that they stated their claims for relief because
they pled “that the properties were similar in all material respects” and that, while both properties
were in violation of specific provisions of the zoning law, only Plaintiffs faced repercussions for
their transgressions. (Opp. Br. at 21). While the SAC is more robust than its predecessor, the Court
cannot conjure allegations where none exist. The only similarities Plaintiffs allege between their
property and Heinecke’s property are that: (1) the properties are adjacent to each other (SAC ¶¶ 3,
Plaintiffs argued also that these claims should be dismissed because: (1) Plaintiffs have no right to force
municipal actors to prosecute others (Def. Br. at 12-13); and (2) Plaintiffs failed to plead an improper motive
for the different treatment (id. at 16-18). While the Court notes that the former argument mischaracterizes
Plaintiffs’ claims for relief—the actionable conduct would be Defendants’ decision to enforce ordinances
against Plaintiffs, not their failure to enforce ordinances against Heinecke—given the conclusion that
Plaintiffs failed to allege facts that would permit a jury to conclude that Plaintiffs’ property was similarly
situated to Heinecke’s property, the Court need not and does not reach these arguments.
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24); (2) the properties are located in the same type of zoning district (id. ¶¶ 10, 26, 28); and (3)
both properties may have been in violation of local ordinances governing grading and filling of
property after December 29, 2014 (id. ¶¶ 43-44, 107, 110-11, 113, 127, 168, 176).4 “[T]hat is
where the similarities end.” (Prior Ord. at 14). Such allegations describe only the general contours
of the parcels and are insufficient to allege plausibly that the properties were similarly situated.
See Panzella v. City of Newburgh, 231 F. Supp. 3d 1, 9 (S.D.N.Y. 2017); New Page at 63 Main,
LLC v. Inc. Vill. of Sag Harbor, No. 15-CV-2433, 2016 WL 8653493, at *21 (E.D.N.Y. Mar. 19,
2016); Witt v. Vill. of Mamaroneck, No. 12-CV-8778, 2015 WL 1427206, at *5 (S.D.N.Y. Mar.
27, 2015), aff’d sub nom. Witt v. Vill. of Mamaroneck, N.Y., 639 F. App’x 44 (2d Cir. 2016)
Moreover, far from pleading substantially similar aspects between the properties, Plaintiffs
pled at least two significant differences between the parcels. First, to the extent that Plaintiffs
complain about how Defendants responded to Heinecke’s grading and filling violations, those
violations were apparently tied to the racetrack. (See SAC ¶¶ 22-24, 51). To that end, while
Plaintiffs dispute the propriety of the decision—an issue which, as recognized by Judge Román,
falls outside the statute of limitations—the parties do not dispute that the Town, through its Zoning
Enforcement Officer, concluded that the racetrack was “a pre-existing nonconforming use” in
Plaintiffs argue without citation that “the SAC amply alleges that . . . Levine and Stephens . . . erroneously
enforce[d] town laws concerning setbacks, grading and filling, [and] fence height against them, while
ignoring actual violations of these provisions by” Heinecke. (Opp. Br. at 21). The different treatment visà-vis grading and filling is addressed above. However, there is no indication that the properties were
similarly situated as to the remaining violations. Plaintiffs were cited for ordinances governing fence height,
but there is no indication that Heinecke violated that ordinance; likewise, Heinecke violated the setback
ordinance for having the racetrack within one hundred feet of his property line, but there is no allegation
that Plaintiffs committed a similar violation. (See SAC ¶¶ 45, 47, 62, 68, 70-71, 76, 82-83, 87, 106, 123,
130-31 (allegations regarding Plaintiffs’ stone wall/fencing); id. ¶¶ 22, 24-25, 28, 30-31, 100, 113, 167
(references to Heinecke’s operation of the racetrack within one hundred feet of the property line)).
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2006.5 (SAC ¶¶ 88, 93; see also List Ex. C; List Ex. D). The fact that Heinecke’s property had a
pre-existing use designation not provided to Plaintiffs’ property belies the argument that the
parcels were similarly situated. See Merry Charters, LLC v. Town of Stonington, 342 F. Supp. 2d
69, 76 (D. Conn. 2004) (observing that the comparator had “a pre-existing nonconforming use”
the plaintiff did not have and, as such, “was in an entirely different situation”); cf. Panzella, 231
F. Supp. 3d at 9 (dismissing selective enforcement claim based on the municipality’s violation of
a contract where the plaintiffs did not identify a comparator with a similar contractual relationship);
Missere v. Gross, 826 F. Supp. 2d 542, 562-63 (S.D.N.Y. 2011) (two restaurants were not similarly
situated because, inter alia, the comparator had an approved site plan that the plaintiff lacked
(citing Merry Charters, LLC, 342 F. Supp. 2d at 70,76)). Second, Plaintiffs complain that Heinecke
operated the racetrack on his 1.86-acre parcel, constructed a “watchtower” so “spectators could
watch races,” and operated an “illegal” car repair shop out of his garage. (SAC ¶¶ 28, 108, 175;
see also id. ¶¶ 20, 37-38, 129). Plaintiffs, in contrast, were cited “for having too many chickens on
their lands and for storing a commercial construction vehicle in a residential zone” and for
installing an “above-ground pool” on their 5-acre parcel. (Id. ¶¶ 10, 97, 152). Keeping chickens6
and operating a racetrack—which Plaintiffs describe as “an ongoing private nuisance, replete with
obnoxious noise and substantial dust” (id. ¶ 26)—suggest two vastly different uses of land.
Plaintiffs insist that the 2006 conclusion was incorrect and presumably challenge that determination. (See
generally SAC ¶¶ 28, 88, 93, 99, 119). Indeed, Plaintiffs allege that they secured “[a]ffidavits from the prior
residents” of their property “demonstrating that the [racetrack] did not exist when they lived there . . . .”
(Id. ¶ 99). That may be true, but any claim stemming from “the propriety of that 2006 decision” is outside
the statute of limitations and will not be revisited. (Prior Ord. at 17 n.17).
The Court notes that, with respect to the “violation for having too many chickens on their lands and for
storing a commercial construction vehicle,” Plaintiffs allege that the “violation was factually baseless . . .
[and] the deputy building inspector confirmed that it lacked any factual basis.” (SAC ¶¶ 97-98). Plaintiffs
do not allege that the violation was dismissed or specify how the violation was baseless. Conspicuously,
Plaintiffs do not deny the presence of illegal poultry.
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Upon review of the SAC, and granting Plaintiffs every possible inference, the first claim
for relief is dismissed because they have failed to allege facts that would plausibly permit a jury to
conclude that Plaintiff’s property was similarly situated to Heinecke’s property. As a natural result
of that conclusion, the second claim for relief—a Monell claim against the Town founded on that
same unpled constitutional violation—is dismissed as well.
The Third and Fourth Claims for Relief: First Amendment Retaliation
The third claim for relief asserts that Stephens and Levine, in response to Plaintiffs’
complaints “about . . . conflicts of interest and uneven application of the law,” retaliated against
Plaintiffs by “imposing notice of violations, stop work orders and repetitive site visits . . . caus[ing]
. . . hundreds of thousands of dollars” in expenses; the fourth claim for relief identifies the same
wrong but proceeds against the Town as a Monell claim. (SAC ¶¶ 201-06). These claims for relief
allege, in sum, that when Plaintiffs complained about Heinecke, Stephens, or Levine, they faced
enforcement proceedings for violating local zoning ordinances.
“The First Amendment, applicable to the States through the Fourteenth Amendment,
provides that ‘Congress shall make no law . . . abridging the freedom of speech.’” Virginia v.
Black, 538 U.S. 343, 358 (2003) (quoting U.S. Const. amend. I). “A plaintiff asserting a First
Amendment retaliation claim ‘must show [that]: (1) he has a right protected by the First
Amendment; (2) the defendant’s actions were motivated or substantially caused by his exercise of
that right; and (3) the defendant’s actions caused him some injury.’” Harenton Hotel, Inc. v. Vill.
of Warsaw, 749 F. App’x 17, 18 (2d Cir. 2018) (quoting Dorsett v. Cty. of Nassau, 732 F.3d 157,
160 (2d Cir. 2013)). The parties do not dispute the first or third element; rather, Defendants argue
that Plaintiffs have not pled facts establishing the second element because any actionable conduct
took place before Plaintiffs engaged in protected conduct. (Def. Br. at 19-23). The Court agrees.
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The sequence of a First Amendment retaliation claim is straightforward: a plaintiff must
engage in a protected activity and a defendant’s actions—whatever they are—must be motivated
by the plaintiff’s protected activity. Phrased a different way, “[a]t the most basic level, defendants’
allegedly retaliatory actions must occur later in time than plaintiffs’ protected speech.” Parkash v.
Town of Southeast, No. 10-CV-8098, 2011 WL 5142669, at *7 (S.D.N.Y. Sept. 30, 2011), aff’d
468 F. App’x 80 (2d Cir. 2012); see also Harenton Hotel, Inc. v. Vill. of Warsaw, No. 12-CV-235,
2017 WL 4169342, at *7 (W.D.N.Y. Sept. 20, 2017) (“It is well settled that protected activity must
precede any purported retaliation to establish a First Amendment retaliation claim.”), aff’d 749 F.
App’x 17 (2d Cir. 2018); Rankel v. Town of Somers, 999 F. Supp. 2d 527, 541-42 (S.D.N.Y. 2014).
Plaintiffs pled that the tension between themselves and Defendants over the ordinances regarding
Plaintiffs’ fencing/stone wall and their grading and filling began in March 2014 when—outside
the statute of limitations, after a different neighbor complained about Plaintiffs’ violations—
Plaintiffs received “a notice of violation and a stop work order.” (SAC ¶¶ 45-51). It was only after
those events took place that Plaintiffs observed similar violations on Heinecke’s property and
“questioned the apparently unequal enforcement of the town’s zoning ordinance.” (Id. ¶¶ 51-52).
These enforcement proceedings cannot be linked plausibly to Plaintiffs’ after-the-fact complaints.7
The only other violations identified concern “having too many chickens . . . and . . . storing a commercial
construction vehicle in a residential zone” and having an “above-ground pool in their backyard.” (SAC ¶¶
97, 152). Defendants argue that these violations cannot support the retaliation claim; Plaintiffs do not
respond to this argument. (Compare Def. Br. at 22-23, with Opp. Br. at 22-25). By failing to respond,
Plaintiffs “effectively concede[d]” the argument. Ventillo, 2020 WL 7496294, at *12 (alteration in original,
internal quotation marks omitted). Nevertheless, even if that were not the case, these violations would not
support a retaliation claim. As to the former, Plaintiffs suggest that Stephens and Levine cited them because
Plaintiffs complained to the Town’s special counsel about selective enforcement. (Id. ¶¶ 94-97). Plaintiffs
do not allege, however, that Stephens or Levine were aware of that communication (see id.), so the violation
cannot be retaliatory. See Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d 357,
372 (S.D.N.Y. 2011). As to the latter, Plaintiffs concede that they installed the pool and do not dispute that
its presence constitutes a violation. (SAC ¶ 152). In such a scenario, Plaintiffs cannot state a First
Amendment retaliation claim because Defendants “would have taken the same action in the absence of the
allegedly improper reason.” Holmes v. Poskanzer, 342 F. App’x 651, 653 (2d Cir. 2009).
Case 7:17-cv-10204-PMH Document 69 Filed 01/08/21 Page 14 of 19
Plaintiffs concede tacitly that Defendants’ decisions regarding violation enforcement
preceded Plaintiffs’ protected activity but argue that “the SAC makes clear that . . . Stephens and
Hay escalated their selective enforcement efforts against [P]laintiffs after . . . Santucci raised his
grievances concerning their unconstitutional conduct to the Town Board and the Planning Board
and enlisted counsel and experts to advocate against this activity.” (Opp. Br. at 24 (emphasis
added)).8 To support this theory, Plaintiffs rely solely on Judge Karas’ decision in Olivier v. Cty.
of Rockland, No. 15-CV-8337, 2019 WL 2502349 (S.D.N.Y. June 17, 2019). (Opp. Br. at 24).
This argument is unavailing for two separate reasons.
First, the Court concludes that the facts, procedural posture, and claims for relief in this
case are distinguishable from those in Oilvier. The plaintiff in that case—represented by Plaintiffs’
counsel here—sued his former employer for Title VII retaliation. Denying the employer’s motion
for summary judgment, Judge Karas concluded that while the employer may not have known that
the plaintiff filed an EEOC charge in making the initial decision regarding the plaintiff’s leave
status, the employer knew about the protected activity in making subsequent decisions as to
plaintiff’s status. Olivier, 2019 WL 2502349, at *24. The instant case, however, does not concern
a claim of Title VII retaliation; and an employer’s decision regarding their employee’s leave status
is distinguishable from a municipal officer’s decision to prosecute local zoning law violations.
Second, even if the Court were inclined to apply the principle to this case, it would not do
so because the SAC does not suggest that enforcement “escalated . . . after . . . Santucci”
complained “to the Town Board and the Planning Board and enlisted counsel and experts,” as their
uncited argument insists. (Opp. Br. at 24). Looking to the SAC, there are no allegations suggesting
that continued or escalated prosecution was caused by Plaintiffs’ complaints to municipal entities
The Court presumes Plaintiffs meant to name Levine as opposed to Hay, as the latter is not identified in
the third or fourth claims for relief. (See SAC ¶¶ 201-06).
Case 7:17-cv-10204-PMH Document 69 Filed 01/08/21 Page 15 of 19
or retention of counsel and experts. For example, Plaintiffs pled that they hired counsel “to study
inequities in zoning enforcement” and that those attorneys concluded that the Town engaged in
such conduct, but Plaintiffs link those allegations to the fact that Levine “noted violations” of
unspecified violations on a neighbor’s property and took no action. (SAC ¶¶ 85-87, 91). That is
not retaliatory conduct aimed at Plaintiffs. Plaintiffs pled also that Santucci complained to the
Town Board on December 10, 2015 and days later the Town’s special counsel “requested an
inspection of Santucci’s property based on neighbor complaints concerning the height of his fence
. . . .” (Id. ¶¶ 119, 123). This inspection was caused by an unspecified neighbor’s complaints about
Plaintiffs, not because of Plaintiffs’ complaints to Defendants. Plaintiffs allege likewise that,
sometime in April 2016, Santucci appeared at a Planning Board meeting regarding whether he
needed a “special permit” and the Planning Board eventually determined that no “special permit”
was required. (SAC ¶¶ 139, 151). Apparently, that complaint resulted in a determination favorable
to Plaintiffs. In short, Plaintiffs have neither pled nor specified any facts that would suggest
plausibly that “escalated” enforcement actions were motivated by protected conduct. See Parkash,
2011 WL 5142669, at *7 (rejecting plaintiffs’ argument that the Town’s continued prosecution for
zoning violations was motived by protected speech).
Mirroring the Court’s conclusions as to the first and second claims for relief, the third claim
for relief is dismissed because the allegedly retaliatory actions preceded the protected conduct (and
therefore cannot be the impetus for the conduct about which Plaintiffs complain); and the fourth
claim for relief, a Monell claim based on the retaliation referencing in the third claim for relief, is
dismissed as well.
Case 7:17-cv-10204-PMH Document 69 Filed 01/08/21 Page 16 of 19
The Fifth Claim for Relief: First Amendment Free Speech
The final claim for relief complains that Hay prevented Santucci “from speaking at a public
meeting at which there were no such restrictions as to content imposed upon others” and that this
“censorship and prior restraint violates the First Amendment.” (SAC ¶¶ 208-209). This single
claim for relief seeks redress against both Hay and the Town as a result of Santucci’s interaction
with Hay during a Town Board meeting on November 15, 2017. (Id. ¶¶ 185, 209). On that date
Santucci “attempted to address selective enforcement of the . . . zoning code during the public
comment portion” of the Town Board meeting. (Id. ¶ 185). “The Town Board did not impose any
content restriction on what . . . the public could speak about during . . . public comment” and
“members of the public were routinely permitted to speak and did speak about implementation and
enforcement of . . . zoning ordinance[s] . . . .” (Id. ¶¶ 186-87). These “meetings are regularly
televised and covered in print media” for residents. (Id. ¶ 191). Plaintiffs assert that when Santucci
“made clear” that he intended to criticize Town officials and their allegedly selective zoning
enforcement—and before Santucci’s allotted time expired—Hay cut him off, “proclaiming, ‘[T]his
comment is over.’” (Id. ¶¶ 185, 188-90). Plaintiffs allege that Hay silenced Santucci “to suppress
the publication of [Santucci’s] grievances” about “the Town and its enforcement of its zoning
ordinance[s] . . . .” (Id. ¶ 193).
“A violation [of the First Amendment] occurs only when constitutionally protected speech
is restricted, and the government’s justification for the restriction is insufficient.” Endemann v.
City of Oneida, N.Y., No. 19-CV-1444, 2020 WL 1674255, at *4 (N.D.N.Y. Apr. 6, 2020) (quoting
Frisby v. Schultz, 487 U.S. 474, 479 (1988) (alteration in original)). As noted previously by Judge
Román, the Town Board meeting constituted a limited public forum and, consequently, any
restrictions on speech had to be “viewpoint neutral and reasonable in relation to the forum’s
Case 7:17-cv-10204-PMH Document 69 Filed 01/08/21 Page 17 of 19
purpose.” (Prior Ord. at 19 (quoting Hotel Emps. & Rest. Emps. Union, Local 100 of N.Y. v. City
of New York Dep’t of Parks & Recreation, 311 F.3d 534, 546 (2d Cir. 2002)); Def. Br. at 19; Opp.
Br. at 23); see also Smith v. City of Middletown, No. 09-CV-1431, 2011 WL 3859738, at *4 (D.
Conn. Sept. 1, 2011) (observing that “[n]umerous courts have held that city council meetings
which have been opened to the public are limited public fora,” and that the public comment period
is specifically “a limited public forum”), aff’d sub nom. Smith v. Santangelo, 518 F. App’x 16 (2d
Cir. 2013); Malta v. Slagle, No. 05-CV-342, 2007 WL 952045, at *3 (W.D.N.Y. Mar. 29, 2007).
The question here is whether Plaintiffs have alleged that Hay’s restriction was not viewpoint
neutral. Defendants insist that, as pled, Hay’s decision to silence Dennis was, indeed, viewpoint
neutral. (Def. Br. at 19). The Court disagrees.
Plaintiffs alleged that the Town Board meetings were open to the public, that the meetings’
content was shared through television and print media, that Town residents (and non-residents)
were permitted to speak regularly on public issues (including zoning), and that there were no
content restrictions. (SAC ¶¶ 177-78, 186-87, 191). However, when Santucci tried to speak and it
became clear that he intended to criticize Town officials, he was silenced. (Id. ¶¶ 185, 188-90,
193). These allegations state plausibly a claim for violation of Santucci’s First Amendment right
of free speech. While the Town Board could “exclude certain types of speech, once express
activities of a certain genre were allowed, others of the same genre could not be prohibited.”
Endemann, 2020 WL 1674255, at *5 (citing Hotel Emps., 311 F.3d at 545-46). What’s more, the
speech allegedly silenced here—that of a private citizen criticizing his government—is a species
that “‘lies at the heart’” of the First Amendment. Id. (quoting Morris v. Lindau, 196 F.3d 102, 111
(2d Cir. 1999)).
Consequently, Defendants’ motion to dismiss the fifth claim for relief is denied.
Case 7:17-cv-10204-PMH Document 69 Filed 01/08/21 Page 18 of 19
The Duplicity of Official Capacity Claims
The last issue for consideration is Defendants’ argument that the claim for relief against
Hay in his official capacity should be dismissed as duplicative of the claim against the Town.9
(Def. Br. at 24-25). This premise is correct. “[I]n the Second Circuit, where a plaintiff names both
the municipal entity and an official in his or her official capacity, district courts have consistently
dismissed the official capacity claims as redundant.” Jackson v. Cty. of Erie, No. 17-CV-396, 2020
WL 5642277, at *4 (W.D.N.Y. Sept. 22, 2020) (quoting Phillips v. Cty. of Orange, 894 F. Supp.
2d 345, 385 (S.D.N.Y. 2012) (alteration in original)); see also Taylor v. NYC, No. 20-CV-5036,
2020 WL 4369602, at *3 (S.D.N.Y. July 30, 2020) (explaining that the claims “against Mayor
DeBlasio in his official capacity are dismissed as redundant of . . . claims against the City of New
York”); Sandoz v. Doe, No. 17-CV-5447, 2020 WL 3318262, at *9 (S.D.N.Y. June 18, 2020)
(noting that “[a]n official-capacity suit is to be treated as a suit ‘against [the] entity of which [the]
officer is an agent’” (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (alterations in
original))). As such, to the extent the fifth claim for relief is pressed against the Town and Hay in
his official capacity, the latter portion of the claim is dismissed as redundant.
This conclusion does not, however, dismiss Hay from this case. Plaintiffs have not
specified whether the fifth claim for relief was pressed against Hay in both his official and
individual capacities or only one. (SAC ¶¶ 208-09). When a complaint is silent as to whether a
defendant is named in their individual or official capacity, the Court assumes that actor is named
in their individual capacity. Kravstov v. Town of Greenburgh, No. 10-CV-3142, 2012 WL
2719663, at *24 (S.D.N.Y. July 9, 2012); see also Davis v. Cty. of Nassau, 355 F. Supp. 2d 668,
Defendants also make this argument regarding Levine and Stephens, but as the claims for relief associated
with those actors have been dismissed, the Court does not address the argument as to them.
Case 7:17-cv-10204-PMH Document 69 Filed 01/08/21 Page 19 of 19
675-76 (E.D.N.Y. 2005). Strengthening the conclusion that the fifth claim for relief is alleged
against Hay in his individual capacity as well, Plaintiffs seek punitive damages—relief generally
unavailable in 42 U.S.C. § 1983 actions unless asserted against actors in their individual capacities.
Tenemille v. Town of Ramapo, No. 18-CV-724, 2020 WL 5731964, at *17 (S.D.N.Y. Sept. 24,
2020) (explaining that “the law is clear that municipal defendants may not be held liable for
punitive damages”). Consequently, the fifth claim for relief may proceed against Hay in his
Based upon the foregoing, Defendants’ motion to dismiss is GRANTED in part. The first,
second, third, and fourth claims for relief, along with the fifth claim for relief insofar as it is pressed
against Hay in his official capacity, are DISMISSED. Plaintiffs’ fifth claim for relief, to the extent
that it is stated against the Town and Hay in his individual capacity, shall proceed to discovery.
Defendants are directed to file an Answer to the SAC within fourteen (14) days of the date of this
Memorandum Opinion and Order. The Court will issue an Initial Pretrial Conference Order and
set a conference date in short order.
The Clerk of the Court is directed to terminate motion sequence pending at Doc. 59.
New York, New York
January 8, 2021
PHILIP M. HALPERN
United States District Judge
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