Michaelidis et al v. Michaelidis et al
Filing
50
DECISION AND ORDER GRANTING Defendants' 37 Motion for Summary Judgment as to the Plaintiffs' federal law claims; DECLINING to exercise supplemental jurisdiction over Plaintiffs' state law claim; DISMISSING Plaintiffs' state law claim under 28 U.S.C. § 1367(c)(3); DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge U.S.D.C. on 12/12/2011. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GEORGE MICHAELIDIS, ALEXANDER
MICHAELIDIS, and LAKE PRESPA, LTD.,
Plaintiffs,
v.
DECISION AND ORDER
08-CV-805S
DONNA BERRY and BRIAN C. DAVIS,
Defendants.
I. INTRODUCTION
Plaintiffs George and Alexander Michaelidis, and Lake Prespa, Ltd. commenced this
civil rights action by filing a Complaint in the District Court for the Western District of New
York. (Docket No. 1.) Therein, they allege that Defendants Donna Berry and Brian C.
Davis violated their civil rights to make and enforce contracts in violation of 42 U.S.C. §
1981, freely associate in violation of 42 U.S.C. § 1983, and due process in violation of state
and local law. Plaintiffs also allege that Defendants conspired to interfere with their civil
rights in violation of 42 U.S.C. § 1985.
Plaintiffs finally allege that Defendants
discriminated against them on the basis of race in violation of New York State Human
Rights Law (“NYHRL”), New York Executive Law §§ 291(2), 296(2), 296(2-a) and 296(6).
Presently before this Court is Defendants’ Motion for Summary Judgment seeking
dismissal of the Complaint in its entirety.1 (Docket No. 37.) Plaintiffs oppose the motion.2
1
In support of their Motion for Sum m ary Judgm ent, Defendants filed the Affidavit of Charles J.
Schneider, with Exhibits; the Affidavit of Mary Kathryn Schneider; a Statem ent of Undisputed Facts; the
Affidavit of Tim othy A. Ball, Esq., with Exhibits; a Mem orandum of Law; and the Reply Affidavit of Tim othy
A. Ball, Esq. (Docket Nos. 37, 38, 39, 49.)
2
In opposition to Defendants’ m otion, Plaintiffs filed a Mem orandum of Law; the Affidavit of
George Michaelidis; the Affidavit of Alexander Michaelidis; and Objections to Defendants’ Statem ent of
Undisputed Facts. (Docket No. 44.)
1
For the reasons stated below, Defendants’ motion is granted.
II. BACKGROUND
A.
Facts
Plaintiff Alexander Michaelidis (“Alexander”) is the sole owner of Lake Prespa, Ltd.,
a closely held New York corporation, and the son of co-plaintiff George Michaelidis
(“George”). (Complaint (“Comp.”), Docket No. 1, ¶¶ 4, 5.) Defendant Donna Berry was,
at all relevant times, a district police chief with the Buffalo Police Department. (Id. ¶ 7.)
Defendant Brian C. Davis was, at all relevant times, the Ellicott District Representative on
the City of Buffalo’s Common Council. (Id. ¶ 8.)
This matter arises out of Alexander’s leasing of space at 439 Delaware Avenue in
the City of Buffalo. (Statement of Undisputed Facts (“Defs.’ Stmt.”), Docket No. 37, ¶ 1.)
On August 30, 2003 Alexander entered into a leasing agreement with 427 Delaware
Holdings, LLC (“Delaware Holdings”), a limited liability company owned in part, but
operated and managed exclusively, by Gregory Paul Koessler and Charles J. Schneider.
(Id. ¶ 4.)
Pursuant to this leasing agreement, Alexander’s lease was to run from
September 1, 2003 to August 30, 2008, with an option to renew. (Id. ¶ 3.) Alexander and
Delaware Holdings entered the lease agreement with the understanding that a
restaurant/lounge business would be opened at the leased location. (Id. ¶¶ 1, 5.)
Alexander did indeed open a restaurant and lounge, known as Prespa, in April 2004, with
financial support from his father, George. (Id. ¶¶ 6, 9.)
On August 16, 2005, Delaware Holdings, through its managers Koessler and
2
Schneider, executed a Lease Amendment with Alexander. This Amendment expanded the
leased space from 2,400 to 2,705.83 square feet, prohibited patrons from entering
common areas in the back of the building, required removal of any accumulated debris,
and made the rear exit to the building an emergency exit. (Defs.’ Stmt. ¶ 8.) The
Amendment also provided for default in the event Prespa’s patrons caused a nuisance or
otherwise acted unruly or indecently, though Plaintiffs contend that this was not one of the
reasons for which the amendment became necessary. (Id.; Plaintiffs’ Objections to
Defendants’ Statement of Undisputed Facts (“Pls.’ Stmt.”). Docket No. 44, ¶ 9.)
Starting in summer 2007, Alexander, as a result of falling profits, hired Sean M.
Spurlock, an African American, as an independent contractor to promote Prespa and
improve its business. (See Defs.’ Stmt. ¶ 12.) Owing to Mr. Spurlock’s efforts, revenues
did increase.
(Comp. ¶ 31.)
At the same time, Prespa’s clientele changed from
predominantly Caucasian, to mostly African-American. (¶ 32.) Also during this time,
Defendant Davis’ office began receiving anonymous complaints regarding Prespa. (Defs.’
Stmt. ¶ 14.) In addition, local members of the community allegedly heard rumors of drug
use on Prespa’s premises, leading Schneider’s wife, Mary Kathryn Schneider, who
operated a photography studio owned by Delaware Holdings, to contact the Buffalo Police
Department. (Affidavit of Mary Kathryn Schneider (“Schneider Aff.”), Docket No. 37, ¶¶ 5,
6.) Ms. Schneider was put in contact with district police chief, and defendant, Donna Berry.
(Id. ¶ 7.) Ms. Schneider would go on to contact Defendant Berry at least six more times
regarding Prespa. (Id.) In addition, Ms. Schneider also contacted Defendant Davis to
further express her fears about the effect Prespa was having on the neighborhood,
including the discovery of liquor store receipts near Prespa, and the parking of cars so as
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to block Prespa’s rear exit. (Id. ¶¶ 8, 9.)
In August 2007 George met with Defendant Davis at the latter’s request. Also in
attendance was Defendant Berry. (Affidavit of George Michaelidis (“George Aff.”), Docket
No. 44, ¶¶ 18, 19.) During that meeting, Defendants asserted that Spurlock, Prespa’s
promoter, was a criminal engaging in the illegal sale of drugs. (Id. ¶ 19.) Defendants told
George that Spurlock should be removed from any activities relating to Prespa. (Id.) In
response to these allegations, George asked Defendants to provide him with Spurlock’s
arrest record or other evidence of his illegal activities. (Id. ¶ 20.) Defendants failed to do
so, despite George’s repeated attempts to get that information. (Id. ¶ 21.) The only
documentation received by Plaintiffs relating to Spurlock was a letter sent by Defendant
Davis on October 16, 2007, which stated that his office had received “numerous,
anonymous complaints regarding alleged nuisance activity” at Prespa. (Defs.’ Stmt. ¶ 19.)
On September 27, 2007 the police closed Prespa’s for one evening for operating
without a live music license. (Id. ¶ 18.) Plaintiffs did not have the requisite license, but
were able to acquire it within 24 hours. (Pls.’ Stmt. ¶ 18.) However, after this incident,
Plaintiffs never again had a live band on their premises. (Id.)
On April 11, 2008, Delaware Holdings received notice from the State of New York
Division of Alcoholic Beverage Control that charged Plaintiffs with selling alcohol not
purchased from a registered dealer and for permitting Spurlock to act as an owner or
operator of Prespa. (Id. ¶ 24; Pls.’ Stmt. ¶ 24.) Plaintiffs’ license was ultimately not
suspended. (Pls.’ Stmt. ¶ 20.) During the same time period, Alexander met with Schneider
and was informed that Spurlock had to be terminated and removed from the premises.
(Affidavit of Alexander Michaelidis (“Michaelidis Aff.”), Docket No. 44, ¶ 35.) Schneider
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explained that he did not want to be hassled by the police and Defendant Davis. (Id.)
On May 15, 2008, Delaware Holdings informed Alexander that his lease would not
be renewed. The landlords’ stated reason for non-renewal was the receipt of notices of
insurance cancellations, late rent payments, dissatisfaction with the bar business, and
doubts regarding future plans for the site. (Deposition of Gregory Paul Koessler (“Koessler
Dep.”), Docket No. 38, 67:16 - 68:5.) Schneider specifically disliked what Prespa had
evolved into over the course of its tenancy, referring to the late payment of bills and the
incident involving the New York Liquor Authority. (Id. at 68:19 - 69:4; 69:13-23.) Plaintiffs,
by contrast, allege that Defendants’ actions led Schneider and Koessler not to renew the
lease.
Following the decision not to renew the lease, Plaintiffs explored alternative
business possibilities excluding Spurlock, but Plaintiffs’ former landlords refused to
reconsider. (See Comp. ¶¶ 68, 69.) Although Schneider originally said that no new bar
or restaurant would be put in Prespa’s place, following Plaintiffs’ departure in July 2008,
their former landlords did exactly that. (Plaintiffs’ Memorandum of Law in Opposition to the
Motion for Summary Judgment (“Pls.’ Mem.”), Docket No. 44, 7.)
B.
Procedural History
Plaintiffs filed a Complaint in the Western District of New York on October 31, 2008.
(Docket No. 1.) Defendants filed an Answer thereto on January 23, 2009. (Docket No. 2.)
This case was referred to the Honorable H. Kenneth Schroeder, Jr., United States
Magistrate Judge, for all non-dispositive and procedural matters on January 27, 2009.
(Docket No. 4.) Following various extensions and mediation efforts, Defendants filed the
instant Motion for Summary Judgment on October 28, 2010. (Docket No. 37.) Briefing on
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this motion concluded on January 28, 2011, at which time this Court took this matter under
advisement without oral argument
III. DISCUSSION AND ANALYSIS
A.
Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment is warranted
where “the pleadings, the discovery and disclosure material on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A "genuine issue" exists "if the
evidence is such that a reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d
202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing
law." Id.
In deciding a motion for summary judgment, the evidence and the inferences drawn
from the evidence must be "viewed in the light most favorable to the party opposing the
motion." Addickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609, 26 L.
Ed.2d 142 (1970). Summary judgment is proper "only when reasonable minds could not
differ as to the import of evidence." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
The function of the court is not “to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
B.
Plaintiffs’ 42 U.S.C. § 1981 Claim
§ 1981 “outlaws discrimination with respect to the enjoyment of benefits, privileges,
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terms, and conditions of a contractual relationship.” Patterson v. County of Oneida, N.Y.,
375 F.3d 206, 224 (2d Cir. 2004); Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 477,
126 S. Ct. 1246, 163 L. Ed. 2d 1069 (2006) (observing that Congress, in 1991, amended
§ 1981 to encompass race discrimination in the performance of contracts). To establish
a § 1981 claim, a plaintiff must demonstrate (1) that he is a member of racial minority; (2)
that there was an intent to discriminate on the basis of race by the defendants; and (3) that
the discrimination concerned one or more of the activities enumerated in the statute. See
Brown v. City of Oneonta, N.Y., 221 F.3d 329, 339 (2d Cir. 2000).
Plaintiffs argue that Defendants Berry and Davis interfered with Plaintiffs’ right to
make and enforce contracts with Delaware Holdings on the basis of Spurlock’s race and
the race of the customers he brought to Prespa. Plaintiff’s further argue that there is no
evidence that Spurlock engaged in criminal activities. Despite this fact, Defendants are
alleged to have informed others, including Schneider’s wife, that Spurlock was a criminal.
This prevented Plaintiffs from renewing their lease or opening a new business. Defendants
respond that Plaintiffs have offered nothing more than conclusory allegations that
Defendants’ discriminated on the basis of race, that there is no factual proof that any
measures taken were the result of racial animus towards African Americans, and that the
uncontroverted evidence shows that Defendants had no contact with Plaintiffs’ landlords.
Because this Court finds that Plaintiffs’ have not satisfied the second element,
showing a discriminatory intent, this Court need not further consider the remaining
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elements.3 In evaluating whether there was an intent to discriminate on the basis of race,
courts apply the familiar burden-shifting framework articulated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973); Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010); Rowe Entm’t,
Inc. v. William Morris Agency, Inc., 167 Fed. Appx. 227, 229 (2d Cir. 2005). The burdenshifting test first requires that the plaintiff establish a prima facie case of discrimination.
If the plaintiff meets this initial burden, a rebuttable presumption of discrimination arises,
and the burden then shifts to the defendant to articulate a legitimate, non-discriminatory
reason for the discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254,
101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the defendant succeeds in making this
showing, “the presumption of discrimination arising with the establishment of the prima
facie case drops from the picture.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
2000) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S. Ct. 2742, 125
L. Ed.2d 407 (1993)). Assuming that the defendant meets its burden at the second stage,
the burden returns to the plaintiff to prove that the defendant’s discrimination was
intentional.
In the present case, Plaintiffs fail to make out even a prima facie case of
3
Neither party seriously challenges that, although Plaintiffs are white, they could still satisfy the
first elem ent on the theory that a plaintiff m ay bring a § 1981 claim on the basis of racial anim us directed
towards a third party. Lieberm an v. Fine, Olin & Anderm an, P.C., No. 00 CIV. 6533(JGK), 2002 W L
142198, at *3 n.1 (Jan. 31, 2002) (citing DeMatteis v. Eastm an Kodak Co., 511 F.2d 306, modified on
other grounds, 520 F.2d 409 (2d Cir. 1975)); Cox v. Onondaga County Sherrif’s Dep’t, No. 5:08-CV00387, 2009 W L 910046, at *4 (N.D.N.Y. Apr. 2, 2009) (noting that Second Circuit has held that whites
punished for attem pting to vindicate rights of m inorities have standing to sue); see also Jowers v. DME
Interactive Holdings, Inc., No. 00Civ.4735(LTS)(KNF), 2003 W L 230739, at *3 n.1 (S.D.N.Y. 2003)
(discussing viability of § 1981 claim can by white persons alleged to have been victim s of discrim ination
due to anim osity directed towards m em ber of m inority race).
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discrimination. Meeting the initial burden of showing a prima facie case requires a plaintiff
to identify circumstances giving rise to an inference of discrimination. See Better Env’t v.
ITT Hartford Ins. Group, 96 F. Supp. 2d 162, 169-70 (N.D.N.Y. 2000). Plaintiffs fail for two
reasons. First, Plaintiffs fail to show how, practically, Defendants actually influenced
Plaintiffs’ landowners into not renewing the lease or in not agreeing to a new venture.
Second, Plaintiffs fail to show that Defendants had the requisite intent.
“In order to make out a claim for individual liability under § 1981, a plaintiff must
demonstrate ‘some affirmative link to causally connect the actor with the discriminatory
action.’” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)
(quoting Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991)). The
deposition testimony of Koessler and Schneider’s affidavit make clear that neither had
contact with either Defendant. (Koessler Dep. 54:2-13; Schneider Aff. ¶¶ 23, 24.)
Plaintiffs’ themselves concede that “Schneider may not have had direct contact with the
Defendants in this matter,” and rely on the fact that Schneider’s wife did have contact with
Defendants, and must have influenced her husband, who then influenced his co-landlord.
However, it was Ms. Schneider who initiated contact with the police and who went on to
repeatedly contact Defendant Berry, as well as share her concerns with Defendant Davis.
That Ms. Schneider first contacted Defendants, and continued to contact them, does not
support an inference that Defendants sought to influence her in such a way as to
negatively affect Plaintiffs.
Plaintiffs only other ground on which to allege that Defendants influenced Plaintiffs’
landlords is that Alexander allegedly met with Schneider and that during this meeting
Schneider said he did not want to be hassled by “them,” and identified them as “the police
9
and Mr. Davis.” (Alexander Aff. ¶ 35.) There is no further clarification as to what kind of
hassling Schneider was subjected to, especially in light of the fact that there appears to
have been no actual contact between him and Defendants. Further, testimony from both
managing landlords shows that the actual reasons why Plaintiffs’ lease was not renewed
were tardy rent payments, failure to keep insurance policies, and concerns over
investigations by the New York State Division of Alcoholic Beverage Control. Without
more, Plaintiffs cannot show the necessary causal connection between Defendants’ and
the landlords’ actions.
However, even assuming that Schneider had been contacted by Defendants,
Plaintiffs still need to establish that Defendants were acting out of a discriminatory motive.
In considering a plaintiff’s § 1981 claim, “[t]he court must examine the entire record to
determine if plaintiffs meet their ultimate burden of persuading the fact-finder of a central
element of a 1981 claim: namely, that defendants intentionally discriminated against them
on the basis of their race.” Lizardo v. Denny’s, Inc., 270 F.3d 94, 103 (2d Cir. 2001).
Plaintiffs have submitted testimony showing that Ms. Schneider stated that there was
concern about Prespa’s predominantly African-American clientele and that she and her
husband were treated like slumlords. (Plaintiffs’ Memorandum of Law in Opposition to the
Motion for Summary Judgment, Docket No. 44, 11.) But this shows, at most, that Plaintiffs’
landlords had a discriminatory motive. However, neither Schneider nor Koessler are
parties to the present action, and Ms. Schneider’s comment reveals nothing concerning
Defendant Berry or Davis’ intent.
As to the actual defendants in this case, the record only reflects that they met with
George and identified Spurlock as a criminal and drug dealer, whose involvement in
10
Prespa’s affairs had to end. This, in itself, does not show that Defendants discriminated
on the basis of race. Even assuming that Defendants did not provide George with
evidence of Spurlock’s criminal character, as he requested, Defendants are not shown to
thereby harbor racist intentions. If, as Plaintiffs allege, Defendants failed to provide
incriminating evidence, this only demonstrates that they either lacked such evidence or
were mistaken about it in the first place. It does not show that either of them meant to
discriminate against Spurlock because he was an African American. See Lizardo, 270
F.3d at 102 (“Although mistreatment by defendants is not irrelevant in assessing the
strength of plaintiffs’ circumstantial evidence of race-based animus, it is certainly not
sufficient to establish it.”). Similarly, the mere fact that Spurlock brought in a predominantly
African-American customer-base does not mean that Defendants were discriminating
against Prespa’s customers on the basis of race.
Given this, Plaintiffs’ claim fails at the first stage, and thus it is not necessary for
Defendants to provide further reasons explaining why they may have discouraged
interaction with Spurlock. See Rowe Entm’t, Inc., 167 Fed. Appx. at 229 (“As to the § 1981
claims against all defendants, appellants have put forth no facts on which a reasonable
juror could conclude that racial discrimination interfered with a contractual relationship.”).4
Even if this Court were to follow Plaintiffs’ reasoning that the allegations concerning
Spurlock’s criminal background were pretextual, Plaintiffs “ha[ve] not offered any evidence
4
The Court notes that, in reviewing the record, Plaintiffs suggest various other grounds for
discrim ination. For exam ple, one affidavit states that “one or both Defendants inform ed the police and
targeted Prespa for m ore detailed observation then [sic] other sim ilar bar/restaurants. (Alexander Aff. ¶
24.) However, these brief deviations from a record otherwise barren of evidence showing Defendants
acting on the basis of race, are left unexplored in Plaintiffs’ briefs, and this Court will not further expand or
speculate on argum ents Plaintiffs should, them selves, have raised.
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that the [defendants’] justifications, even if pretextual served as a pretext for [race]
discrimination.” Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001); Lizardo,
270 F.3d at 104 (noting that even if defendants exaggerated or lied about plaintiffs’
behavior, the record did not otherwise support a finding that this was to mask racial
discrimination).
Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiffs’ § 1981
claim will be granted.
C.
Plaintiffs’ 42 U.S.C. § 1983 Claim
Civil liability is imposed under § 1983 only upon persons who, acting under color of
state law, deprive an individual of rights, privileges, or immunities secured by the
Constitution and laws. See 42 U.S.C. § 1983. § 1983, on its own, does not provide a
source of substantive rights. Rather, § 1983 is a method of vindicating federal rights
conferred elsewhere in the federal statutes and Constitution. See Graham v. Connor, 490
U.S. 386, 393-94, 109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989) (quoting Baker v.
McCollan, 443 U.S. 137, 145 n. 3, 99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433 (1979)). A
plaintiff making a § 1983 claim must satisfy two elements: (1) the defendant acted under
color of state law; and (2) as a result of the defendant’s actions, the plaintiff suffered a
denial of her federal statutory rights, or her constitutional rights or privileges. Annis v.
county of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). “The Supreme Court has
recognized a right of association with two distinct components- an individual’s right to
associate with others in intimate relationships and a right to associate with others for
purposes of engaging in activities traditionally protected by the First Amendment, such as
speech and other expressive conduct.” Adler v. Pataki, 185 F.3d 35, 42 (2d Cir. 1999)
12
(citing Roberts v. U.S. Jaycess, 468 U.S. 609, 617-18, 104 S. Ct. 3244, 82 L. Ed. 2d 462
(1984).
Plaintiffs’ claim clearly falls into the second category. Plaintiffs allege that they were
discriminated against in their business involvement with Spurlock and with their AfricanAmerican patrons, on the basis of race. However, Plaintiffs again fail to show that
Defendants’ actions were motivated by racial considerations.
Plaintiffs argue that
Defendants and their landlords told them to end Spurlock’s involvement. Plaintiffs further
argue that Defendants stated that they would never permit Spurlock to purchase Prespa,
and that Spurlock was bringing in undesirable elements, including “gangsters” and rappers.
As before, this is insufficient to show an intent to discriminate based on race. This Court
first notes that, in making this argument, Plaintiffs cite liberally to their Complaint. A
complaint is not admissible evidence for defeating a motion for summary judgment. See
Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996). A review of the affidavits Plaintiffs
offer in support of their opposition shows only that Schneider “was concerned about black
clientele.” (George Aff. ¶ 34.) However, “§ 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999). Plaintiffs do not submit
anything revealing similar sentiments were harbored by Defendants.
Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiffs’ § 1983
claim will be granted.
D.
Plaintiffs’ Due Process Claim
“In order to sustain an action for deprivation of property without due process of law,
a plaintiff must first identify a property right, second show that the state has deprived him
13
of that right, and third show that the deprivation was effected without due process.” Local
342, Long Island Pub. Serv. Emps, UMD, ILA, AFL-CIO v. Town Bd. of Huntington, 31 F.3d
1191, 1194 (2d Cir. 1994) (citation and quotation marks omitted, emphasis in original).
Plaintiffs’ Complaint alleges that police closed Prespa the night of September 27, 2007 for
operating without a live music license. However, it is undisputed that Prespa was playing
live music that night. Further, it is also undisputed that Prespa lacked the necessary
license for such an event. (Defs.’ Stmt. ¶ 18.) Nor is it disputed that Plaintiffs thereafter
were able to acquire a live music license. (Pls.’ Stmt. ¶ 18.) Consequently, Plaintiffs’ due
process claim as to the September 27, 2007 incident cannot be maintained absent any
allegation that Plaintiffs were improperly denied something to which they had a property
right.
Plaintiffs also argue, relying on their Complaint, that Defendant Berry visited Prespa
in Spring of 2008 and stated that she had received complaints about Spurlock’s presence
at Prespa, that Spurlock had brought “a certain element” to the business, and that he
should not be working there. Further, Plaintiffs allege that Defendant Berry informed
George that, had George been present that night, she would not have shut down the
restaurant. From this, Plaintiffs assert that it is clear “that the Defendant Berry had in fact
admitted to George Michaelidis that she had ordered the restaurant shut down and would
not have done so if George Michaelidis was present but because Sean Spurlock was
present she shut it down based on the race of Mr. Spurlock and the element of
predominantly African Americans into the restaurant.” (Pls.’ Mem. 12-13.) This Court has
difficulty following Plaintiffs’ reasoning but concludes that Plaintiffs have inadequately
supported their due process claim. Even assuming the truth of Plaintiffs’ assertions,
14
Plaintiffs have not shown that they were denied a license before, or after, the evening of
September 27, 2007.
Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiffs’ due
process claim will be granted.
E.
Plaintiffs’ 42 U.S.C. § 1985 Claim
Pursuant to § 1985(3) a plaintiff must allege “(1) a conspiracy; (2) for the purpose
of depriving, either directly or indirectly, any person or class of persons of equal protection
of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance
of the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right of the citizens of the United States.” Adams v. Smith, No. 08:07-CV0452 (LEK/RFT), 2007 WL 2323435, at *2 (N.D.N.Y. 2007) (quoting Fox v. City of New
York, No. 03 Civ. 2268, 2004 WL 856299, at *9 (S.D.N.Y. Apr. 20, 2004)).
Plaintiffs rely on previously discussed evidence to make their § 1985 claim. A claim
under § 1985(3) will only be successful where a plaintiff shows a causal link between the
alleged discriminatory conduct and the plaintiff’s membership in a protected class. See
Pabon v. New York City Transit Auth., 703 F. Supp. 2d 188, 202 (E.D.N.Y. 2010). Again,
Plaintiffs’ evidence is insufficient for a reasonable juror to conclude that Defendants
discriminated on the basis of race.
Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiffs’ § 1985
claim will be granted.
F.
Plaintiffs’ NYHRL Claim
Having found that summary judgment should be granted in favor of Defendants’ as
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to Plaintiffs’ federal claims, this Court will decline to exercise jurisdiction over Plaintiffs’
state law claims. See Marcus v. AT&T Corp., 138 F.2d 46, 57 (2d Cir. 1998) (“In general,
where the federal claims are dismissed before trial, the state claims should be dismissed
as well.”).
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Motion for Summary Judgment
(Docket No. 37) as to Plaintiffs’ federal law claims is GRANTED.
FURTHER, that this Court declines to exercise supplemental jurisdiction over
Plaintiffs’ state law claim, which is hereby dismissed under 28 U.S.C. § 1367(c)(3).
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: December 12, 2011
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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