The Harenton Hotel, Inc. et al v. Village of Warsaw et al

Filing 73

DECISION AND ORDER GRANTING Defendants' 54 Motion for Summary Judgment as to Plaintiffs' federal claims; DENYING Plaintiffs' state claims, which are dismissed without prejudice under 28 U.S.C. § 1367 (c)(3); DENYING AS MOOT Plaintiffs' 64 Motion to Amend; VACATING the recent mediation-related 71 72 orders; DIRECTING the Clerk of Court to CLOSE this case. Signed by William M. Skretny, United States District Judge on 9/20/2017. (MEAL)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THE HARENTON HOTEL, INC. and
RANDY M. HARE,
Plaintiffs,
v.

DECISION AND ORDER
12-CV-235S

VILLAGE OF WARSAW, DANIEL HURLBURT,
and VALERIE DUELL,
Defendants.

I. INTRODUCTION
In this action, The Harenton Hotel, Inc., and Randy M. Hare assert a variety of
federal and state claims against the Village of Warsaw and two of its municipal employees
arising from a failed commercial construction project, including claims under the First and
Fourteenth Amendments to the United States Constitution. 1 Defendants have moved for
summary judgment and Plaintiffs have cross-moved to amend their complaint. (Docket
Nos. 54, 64.) For the reasons that follow, Defendants’ motion is granted in part and
denied in part, and Plaintiffs’ motion is denied as moot.

1 There is insufficient evidence of The Harenton Hotel, Inc.’s standing. Hare formed this corporate entity
to eventually own and operate The Harenton Hotel, which was never completed. (Deposition of Randy
M. Hare, November 28, 2011, Docket No. 54-8, pp. 6-8.) No evidence has been presented that the
corporate entity ever acquired any ownership or other rights in the Harenton Hotel project or that it ever
suffered any injury attributable to Defendants. Consequently, any claims brought by The Harenton Hotel,
Inc. are dismissed for lack of standing. See Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717,
1723,109 L. Ed. 2d 135 (1990) (“To establish an Article III case or controversy, a litigant first must clearly
demonstrate that he has suffered an ‘injury in fact.’”); Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340,
344 (2d Cir. 1998).

1

II. BACKGROUND 2
Randy M. Hare is a real estate developer. (Declaration of Randy M. Hare (“Hare
Decl.”), Docket No. 61, ¶ 1.) At some point in 2007, Hare entered a purchase agreement
with E-Properties for a former nursing home located at 283 North Main Street, Warsaw,
N.Y. 3 (Hare Decl., ¶ 1; Deposition of Randy M. Hare (“Hare Dep.”), November 28, 2011,
Docket No. 54-8, pp. 6-8; § 50-h Examination Transcript (“§ 50-h Transcript”), Docket No.
59-5, p. 4.) Hare’s intention was to remodel the nursing home into a 50-room luxury
hotel. (Hare Decl., ¶ 1; Hare Dep., p. 8; Hare Presentation Package, Docket No. 54-5.)
A.

Oversight of the Harenton Hotel Project by Donald Williams
On May 1, 2007, after public hearings by the Village of Warsaw Planning Board,

the Village of Warsaw Zoning Board of Appeals, and input from other agencies and
entities, the Village of Warsaw Planning Board approved Hare’s request to convert the
nursing home at 283 North Main Street into a hotel, including the addition of a carport. 4
(Hare Decl., ¶¶ 4, 5; Affidavit of Donald Williams (“Williams Aff.”), Docket No. 60-4, ¶ 3.)
The Zoning Board granted several variances for the project, including a “use variance” to

2 This section is drawn from the record evidence submitted by the parties. But for paragraphs 1, 6, 7, 9,
19, and 20, this Court has not considered Defendants’ “Statement of Stipulated Facts” (Docket No. 54-2),
because it fails to include the required citations to admissible evidence. See Rule 56 (a)(1) of the Local
Rules of Civil Procedure for the Western District of New York (requiring that each statement of fact “be
followed by citation to admissible evidence as required by Fed. R. Civ. P. 56 (c)(1)(A)”). The same is
true for several paragraphs in the Affidavit of Gerald E. O’Connor, Docket No. 54-1.
3 Hare purports to bring this action both individually and as an agent for E. Properties. (Amended
Complaint, ¶¶ 1, 8, 9.) Hare has not, however, submitted any evidence establishing that he has proper
authority to act as E. Properties’ agent. He is therefore not considered as such.
4 In his declaration, Hare states that he received approval on May 1, 2006. (Hare Decl., ¶ 5.) That date
appears to be incorrect, since Hare earlier stated that he took no action on the project before securing the
purchase agreement from E. Properties in 2007 (§ 50-h Transcript, pp. 5-6) and Williams issued the
building permit in 2007 (Williams Aff., ¶ 3).

2

convert the nursing home into a hotel and three “area variances,” which pertained to
building height, setback for a carport, and parking. (Hare Presentation Package, Docket
No. 54-5.)
On September 14, 2007, Donald Williams, the Building Inspector and Code
Enforcement Officer for the Village of Warsaw, issued Hare a building permit.
(Application for Building Permit, Docket No. 54-6; Williams Aff., ¶¶ 1, 2, 3.)

Hare

immediately began construction. (Hare Decl., ¶ 6.)
For the next two years or so, Hare continued demolition and construction. The
parties dispute the progress of construction, with Hare maintaining that he worked on
construction “as intended” between 2007 and 2009, and Defendants maintaining that
construction stalled before significant progress was completed.

(Hare Decl., ¶ 6;

Affidavit of Gerald E. O’Connor, Docket No. 54-1, ¶ 11.) Regardless of the progress,
Williams believed that the work Hare completed after he issued the permit was performed
in accordance with the approved architectural and engineering drawings and the permit
requirements. (Williams Aff., ¶ 4.)
It was Williams’s understanding that the approved permit authorized Hare to
construct a hotel, restaurant, and one apartment.

(Williams Aff., ¶ 5.)

In addition,

Williams permitted Hare to occupy the apartment on the property during construction,
which Williams attests was consistent with the permit and provided a security benefit.
(Williams Aff., ¶ 5.) But this permission appears to be in contravention of the permit
application, which provides that “[n]o building shall be occupied or used in whole or in part
for any purpose whatever until an application is made for and a Certificate of Occupancy
3

shall have been granted by the Building Department.” (Building Permit Application, p.
1.)
On October 15, 2008, Williams granted Hare a one-year extension of his original
permit. (Hare Decl., ¶ 7; Williams Aff., ¶ 7.) According to Williams, it was the Village of
Warsaw’s policy to routinely grant extensions of an original permit without requiring further
approval from the Planning Board or Zoning Board of Appeals. (Williams Aff., ¶ 7.) In
Williams’s experience over his 23-year career, an extension of a building permit included
the extension of any prior approvals from the Planning Board and Zoning Board of
Appeals, including approval of site-development plans. (Williams Aff., ¶ 8.) The Village
of Warsaw also never deemed a previously approved site plan expired after one year
when there was a pending permit and extensions to the permit. (Williams Aff., ¶ 9.) In
his deposition, however, Williams admitted that he had never worked on a project as large
as the Harenton Hotel project and that he had never handled a project involving multiple
applications for extension of a building permit. (Deposition of Donald Williams (“Williams
Dep.”), January 13, 2015, Docket No. 54-26, p. 41.)
Williams retired in May 2009.

(Williams Aff., ¶ 2.)

At that time, it was his

understanding that Hare had abandoned the Harenton Hotel project. (Williams Dep., p.
44.) But before that time, Williams’s impression was that all of Hare’s work on the
Harenton Hotel project was consistent with the building permit. (Williams Aff., ¶ 10.)
Williams maintains that he left all records of his inspections in his desk at the Inspector’s
Office in the Village of Warsaw when he retired. (Williams Aff., ¶ 6.)

4

B.

Oversight of the Harenton Hotel Project by Daniel Hurlburt
In October 2009, the Village of Warsaw appointed Daniel Hurlburt to replace

Williams as Code Enforcement Officer. (Hare Decl., ¶ 8.) On October 5, 2009, Hare
timely applied to Hurlburt for another extension of his building permit. (Hare Decl., ¶ 9;
§ 50-h Transcript, p. 10.)

Hurlburt denied Hare’s application for an extension and

advised him that he had no record of the Harenton Hotel project. (Hare Decl., ¶ 9.)
Hurlburt further advised Hare that Williams, the prior inspector, “had done everything
wrong” and that Hare would have to start the process anew because his prior applications
were incomplete. (§ 50-h Transcript, pp. 10-11.) Hurlburt therefore directed Hare to resubmit his permit application and documentation related to the Harenton Hotel project.
(Hare Decl., ¶ 10.)
While Hurlburt was considering the permit extension application, he issued a “Stop
Work” order and directed Hare to vacate the property, where Hare had been living for two
years. (Hare Decl., ¶ 11.) When Hare inquired further about his application, the Village
Attorney, David DiMatteo, further advised Hare that his building permit had expired and
that he would have to start the entire permit application process over. (Hare Decl., ¶ 12.)
In November 2009, Hare brought a set of prints to the Village Hall to show Hurlburt
what had already been submitted to the Village. (§ 50-h Transcript, p. 11.) Hurlburt
advised Hare at that time that he had to further investigate what would be permitted on
the project. (§ 50-h Transcript, p. 11.)
Since Hare was having no success with Hurlburt and the Village of Warsaw
building department, he contacted the New York State Code Enforcement Office for
5

guidance on how to get his project started again. (Hare Decl., ¶ 13.) He was referred
to Kumar Vijaykumar, a New York State Code Enforcement Officer, who arranged a
meeting on February 23, 2010, between himself, Hurlburt, and Hare’s engineer, John
Schenne. (Hare Decl., ¶ 14.) According to Hare, Vijaykumar told Hurlburt during the
meeting that if Hare provided all documentation discussed during the meeting, Hurlburt
should grant a permit and allow Hare to continue with his project. (Hare Decl., ¶ 15.)
Hare maintains that he provided all documentation discussed at the February 23, 2010
meeting and further documentation that Hurlburt requested on March 9, 2010. (Hare
Decl., ¶ 16.)
It is at this point that Hare maintains Hurlburt began retaliating against him for
contacting the New York State Code Enforcement Office. (Hare Decl., ¶ 17.) On May
17, 2010, Hurlburt sent Hare a letter advising him that his previous building permit and
variances had expired and that he would need to complete a new application and reinitiate site-plan and variance proceedings before the Village Planning Board. (May 17,
2010 Letter, Docket No. 54-10.) Hare claims that Hurlburt also sent him several other
letters requesting additional documents that Hare had already provided multiple times.
(Hare Decl., ¶ 17.) Hare further claims that Hurlburt required him to modify his plans to
meet new changes in the building code, despite Hare’s position that his project should
have been grandfathered. (Hare Decl., ¶ 18.)
On July 6, 2010, Hare filed an Article 78 petition against the Village of Warsaw in
New York State Supreme Court challenging the Village’s refusal to renew his original
building permit. (Hare Decl., ¶ 19.) Hare maintains that he was retaliated against for
6

that action as well. (Hare Decl., ¶ 20.)
On August 31, 2010, Village Attorney DiMatteo sent Hare’s lawyer a proposal to
possibly resolve the Article 78 proceeding, wherein he identified information that the
Village required for the project to move forward, including development of a construction
schedule and submission of engineer certifications. (August 31, 2010 Letter, Docket No.
54-13.) The parties further discussed DiMatteo’s proposal at an Article 78 meeting on
September 30, 2010. (Article 78 Meeting Minutes, Docket No. 54-14.)
On March 30, 2011, Hare applied for a new building permit. (March 30, 2011
Application for Building Permit, Docket No. 54-17.) On April 5, 2011, Hurlburt wrote to
Hare and advised him that he was denying his building permit application because it was
incomplete. (April 5, 2011 Letter, Docket No. 54-18.) Hurlburt further advised Hare that
his application would be reconsidered if he submitted documentation concerning five
areas identified in the letter. (April 5, 2011 Letter, Docket No. 54-18.)
On April 28, 2011, Hare submitted a new application for a building permit. (April
28, 2011 Application for Building Permit, Docket No. 54-19.) Hare also applied for siteplan approval. (Application for Site Plan Approval, Docket No. 54-23.)
Thereafter, Hurlburt continued to request additional information relative to the
Harenton Hotel project. For example, on May 10, 2011, Hurlburt requested that Hare
provide his resume, work experience, and education background, along with the same
information for his contractors, which Hare maintains is an “unusual and unprecedented”
request. (Hare Decl., ¶ 20.) And according to at least one member of the Zoning Board
of Appeals, Kevin Miller, this request was unusual: Miller had never seen an application
7

come before the zoning board with resumes for contractors. (Deposition of Kevin Miller
(“Miller Dep.”), Docket No. 60-1, pp. 32-33.)
On July 21, 2011, the Zoning Board of Appeals held a public hearing to address
whether Hare’s building permit application was complete. (July 21, 2011 Zoning Board
of Appeals Minutes, Docket No. 54-16.) After hearing from Hurlburt, DiMatteo, Hare, and
others, including the public, the Board identified deficiencies in Hare’s application and
unanimously determined that it was incomplete. (July 21, 2011 Zoning Board of Appeals
Minutes, Docket No. 54-16.)
During that meeting, Board member Valerie Duell, one of five board members,
spoke out against Hare’s project. Duell said that she did not want to see the Harenton
Hotel project continue, that she would vote against the project, and that she thought Hare
was only using the project to defraud elderly investors. (Hare Decl., ¶ 21; Miller Dep.,
pp. 27, 28; Deposition of Valerie Duell (“Duell Dep.”), Docket No. 60-2, pp. 15, 16; Zoning
Board Transcript, Docket No. 60-3, pp. 2, 3.)
Hare maintains that Duell had previously spread false information about him and
the project due to personal ill will from an unrelated business matter. (Hare Decl., ¶ 22.)
For example, Duell had previously contacted Hare’s investors and lenders and told them
that Hare was abandoning the project and that it would not go forward, which caused
Hare to lose support. (Hare Decl., ¶¶ 23-25.)
One such investor, Arthur Crater, testified that Duell approached him and asked
whether he was involved with Hare’s project.

(Deposition of Arthur Crater (“Crater

Dep.”), July 14, 2014, Docket No. 59-6, p. 6.) When he confirmed that he was, Duell
8

said, “Well, it’s never going to happen.” (Crater Dep., pp. 6-7.) Crater further testified
that he also once discussed the Harenton Hotel project with DiMatteo. (Crater Dep., p.
7.)

When Crater inquired about the status of the project, DiMatteo said, “Danny’s

[referring to Hurlburt] never going to let it happen.

It’s not going to go anywhere.”

(Crater Dep., pp. 7-8.) When Crater pressed DiMatteo for a fuller explanation, DiMatteo
simply reiterated that Hurlburt was not going to let the project happen. (Crater Dep., pp.
8, 9.)
Tom Englerth testified that Hare had “a lot of enemies here in Warsaw,” which
made it hard for him to “fight the system.” (Deposition of Thomas Englerth (“Englerth
Dep.”), Docket No. 59-7, pp. 10-11.) Englerth confirmed one such enemy as Duell, who
owned a lumber or building supply store in Warsaw. (Englerth Dep., pp. 9-12, 28.)
According to Englerth, Duell “hates” Hare because Hare allegedly “gypped” her out of
money in a previous business transaction.

(Englerth Dep., pp. 10, 28.)

Englerth

testified that Duell “couldn’t stand” Hare and that she had pledged to “do whatever she
could to make sure he didn’t succeed” and that she would be “glad when he doesn’t.”
(Englerth Dep., p. 11.)
On September 26, 2011, Hare served a Notice of Claim on the Village of Warsaw
and Hurlburt, under N.Y. Gen. Mun. L. § 50-h. (Notice of Claim, Docket No. 59-3.) An
examination relative to Hare’s Notice of Claim was held on November 28, 2011. (§ 50h Examination Transcript, Docket No. 59-5.) The claim has not been approved or paid.
(Affirmation of Alan J. Knauf, Docket No. 59, ¶ 7.)
On January 23, 2012, the Village Planning Board directed Hare to submit new
9

building plans by January 30, 2012, which he did. (Hare Decl., ¶ 32.)
On February 6, 2012, the Wyoming County Planning Board disapproved Hare’s
site plan. (Wyoming County Planning Board Action, Docket No. 54-24.)
After determining that further efforts to obtain approval would be futile and
economically unfeasible, Hare filed the instant action on March 24, 2012. (Docket No.
1.)
III. DISCUSSION
Hare asserts five causes of action. His first two assert federal claims: retaliation
in violation of the First Amendment and denial of equal protection under the Fourteenth
Amendment. Hare’s remaining causes of action assert state claims: intentional infliction
of emotional distress; negligent infliction of emotional distress; and tortious interference
with business contract. Defendants seek summary judgment on each claim.
A.

Summary Judgment Standard
Summary judgment is appropriate if “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” 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 and Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609,
10

26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import
of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d
Cir. 1991). Indeed, “[i]f, as to the issue on which summary judgment is sought, there is
any evidence in the record from which a reasonable inference could be drawn in favor of
the opposing party, summary judgment is improper.” Sec. Ins. Co. of Hartford v. Old
Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004) (citations omitted).
But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat
summary judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than
cast a “metaphysical doubt” as to the material facts; it must “offer some hard evidence
showing that its version of the events is not wholly fanciful.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986);
D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998). That is, there must be
evidence from which the jury could reasonably find for the non-moving party. Anderson,
477 U.S. at 252.
In the end, 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. In doing so, the court must be mindful that “[a]ssessments
of credibility and choices between conflicting versions of the events are matters for the
jury, not for the court on summary judgment.” Rule v. Brine, Inc., 85 F.3d 1002, 1011
(2d Cir. 1996).

B.

42 U.S.C. ' 1983
11

Civil liability is imposed under 42 U.S.C. ' 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. To prove a cause of action under
§ 1983, a plaintiff must establish that the challenged conduct “(1) was attributable to a
person acting under color of state law, and (2) deprived the plaintiff of a right, privilege,
or immunity secured by the Constitution or laws of the United States.” Wharen v. County
of Fulton, 126 F.3d 400, 405 (2d Cir. 1997); Hubbard v. J.C. Penney Dep’t Store, 05-CV6042, 2005 WL 1490304, at *1 (W.D.N.Y. June 14, 2005).
Personal involvement in the deprivation of a federal constitutional right is the sine
qua non of liability under § 1983. See Haygood v. City of New York, 64 F. Supp. 2d 275,
280 (S.D.N.Y. 1999).

It is well settled in this circuit that personal involvement by

defendants in cases alleging constitutional deprivations is a prerequisite to an award of
damages under § 1983. See McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977);
Richardson v. Coughlin, 101 F. Supp. 2d 127, 129 (W.D.N.Y. 2000); Pritchett v. Artuz,
No. 99 Civ. 3957 (SAS), 2000 WL 4157, at *5 (S.D.N.Y. Jan. 3, 2000).
The Second Circuit construes personal involvement in this context to mean “direct
participation, or failure to remedy the alleged wrong after learning of it, or creation of a
policy or custom under which unconstitutional practices occurred, or gross negligence in
managing subordinates.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Personal involvement need not be
active participation. It can be found “when an official has actual or constructive notice of
unconstitutional practices and demonstrates gross negligence or deliberate indifference
12

by failing to act.” See Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989).
Thus, personal involvement can be established by showing that
(1) the defendant participated directly in the alleged
constitutional violation; (2) the defendant, after being
informed of the violation through a report or appeal,
failed to remedy the wrong; (3) the defendant created a
policy or custom under which unconstitutional practices
occurred, or allowed the continuance of such a policy or
custom; (4) the defendant was grossly negligent in
supervising subordinates who committed the wrongful
acts; or (5) the defendant exhibited deliberate
indifference to others’ rights by failing to act on
information indicating that constitutional acts were
occurring.
Liner v. Goord, 582 F. Supp. 2d 431, 433 (W.D.N.Y. 2008) (citing Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995)); Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d
Cir. 2003).
On its own, ' 1983 does not provide a source of substantive rights, but rather, a
method for 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, 104 L. Ed.
2d 443 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 145 n.3, 99 S. Ct. 2689, 61 L.
Ed. 2d 433 (1979)). Accordingly, as a threshold matter in reviewing claims brought
pursuant to ' 1983, it is necessary to precisely identify the constitutional violations
alleged. See Baker, 443 U.S. at 140. Here, Hare=s federal claims are grounded in the
First and Fourteenth Amendments.

C.

Hare’s Federal Claims
13

1.

First Amendment Retaliation Claim

To establish a First Amendment retaliation claim under § 1983, a plaintiff must
prove 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.” Dorsett v. County of Nassau, 732 F.3d
157, 160 (2d Cir. 2013); see Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,
282 F.3d 83, 91 (2d Cir. 2002).
Hare has presented sufficient evidence that he engaged in conduct protected by
the First Amendment when he contacted Vijaykumar to intervene with Village of Warsaw
employees and then subsequently filed an Article 78 proceeding.

This conduct is

protected by the First Amendment, and Defendants do not argue otherwise.

See

Dougherty, 282 F.3d at 91 (citing Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988)) (“The
rights to complain to public officials and to seek administrative and judicial relief from their
actions are protected by the First Amendment.”); see also United Mine Workers v. Illinois
State Bar Ass’n., 389 U.S. 217, 222, 88 S. Ct. 353, 19 L. Ed. 2d 426 (1967) (describing
the right to petition the government for redress of grievances as “among the most precious
of the liberties safeguarded by the Bill of Rights” and is “intimately connected . . . with the
other First Amendment rights of free speech and free press”)). Consequently, there is
sufficient evidence in the record from which a finder of fact could conclude that Hare
engaged in conduct protected by the First Amendment.
There is not, however, sufficient evidence that Defendants retaliated against Hare
because he contacted Vijaykumar or filed the Article 78 proceeding. It is well settled that
14

protected activity must precede any purported retaliation to establish a First Amendment
retaliation claim. Parkash v. Town of Southeast, No. 10-CV-8098, 2011 WL 5142669, at
*7 (S.D.N.Y. Sept. 30, 2011). And while there is no bright-line rule identifying the point
at which a temporal relationship between protected activity and retaliatory conduct is too
attenuated to support causation, courts have found a limit of two or three months to be
reasonable. Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cty., 252 F.3d
545, 554 (2d Cir. 2001); Adams v. Ellis, No. 09-CV-1329, 2012 WL 693568, at *16
(S.D.N.Y. Mar. 2, 2012).
The retaliation alleged here is a “multi-year delay of further permit extensions.”
(Plaintiffs’ Memorandum of Law, Docket No. 63, p. 9; see also Amended Complaint, ¶
132 (alleging that the defendants “unduly delayed” Hare’s permit renewal); Amended
Complaint, ¶ 134 (alleging “inordinate delay of the granting of Plaintiff’s permit request”).)
But the undisputed record evidence shows that Hare’s efforts to secure a permit extension
or new permit were already in process and being “delayed” before he contacted
Vijaykumar or filed the Article 78 proceeding.
Hare applied for the permit extension at issue on October 5, 2009. (Hare Decl., ¶
9; § 50-h Transcript, p. 10.) Shortly thereafter, Hurlburt denied Hare’s application and
informed him that (1) he would have to re-apply for his building permit because there was
no record of his project, (2) Williams “had done everything wrong,” and (3) his prior
applications were incomplete.

(Hare Decl., ¶¶ 9, 10; § 50-h Transcript, pp. 10-11.)

Hurlburt subsequently issued a “Stop Work” order and the Village Attorney again advised
Hare that he would have to start the permit application process over again if he wanted
15

to continue with his project. (Hare Decl., ¶¶ 11, 12.) In November 2009, Hare brought
Hurlburt a set of prints, but Hurlburt again advised Hare that further investigation and
documentation would be required before the project could proceed, resulting in further
delay. (§ 50-h Transcript, p. 11.)
It was not until February 2010—some three months later—that Hare contacted the
New York State Code Enforcement Office and arranged a meeting with Vijaykumar.
(Hare Decl., ¶¶ 13, 14.) While Hare contends that Hurlburt began retaliating against him
after the meeting with Vijaykumar by requesting additional documents and requiring him
to modify his plans to meet new building code requirements, there is no evidence that
Hurlburt treated Hare any differently after the meeting than he had before it. (Hare Decl.,
¶¶ 17, 18.)
Long before the meeting, Hurlburt was requesting documents from Hare and telling
him that his permit applications would have to be in order before a permit could issue.
The Village Attorney advised him similarly. The meeting with Vijaykumar then confirmed
what Hurlburt had been telling Hare all along: Hare’s permit applications were incomplete
and further documentation would be needed before a new permit could be issued. (Hare
Decl., ¶¶ 15, 16; Deposition of Kumar Vijaykumar (“Vijaykumar Dep.”), August 8, 2014,
Docket No. 54-9, pp. 12, 13, 15.)
Each of Hurlburt’s actions taken before and after the Vijaykumar meeting were the
natural outgrowth of his initial determination that Hare would have to supplement his
building permit application until it was complete. Hurlburt remained consistent in this
position both before and after Hare contacted Vijaykumar.
16

There is simply no

evidence—and Plaintiffs point to none—that Hurlburt treated Hare differently, let alone in
a retaliatory manner, after Hare contacted Vijaykumar. Consequently, no reasonable
juror could find that Hurlburt or any of the defendants retaliated against Hare because he
contacted the New York State Code Enforcement Office. Put simply, the treatment that
Hare contends is retaliatory started before he engaged in protected activity, thereby
foreclosing his First Amendment retaliation claim.
The same is true for Hare’s filing of an Article 78 proceeding on July 6, 2010.
(Hare Decl., ¶ 19.) Hare maintains that Defendants retaliated against him for filing the
Article 78 proceeding when Hurlburt required unusual documentation from him in May
2011 (e.g., resume, work experience, and background information) and Duell began
speaking out against the project and casting aspersions on his character in July 2011.
(Hare Decl., ¶¶ 20, 21, 22; Miller Dep., pp. 27, 28, 32-33; Zoning Board Transcript, pp. 2,
3.)
But even assuming that Hurlburt required unusual documentation and that Duell
spoke ill of Hare and his project, there is no evidence that these actions were in any way
connected to Hare’s filing of an Article 78 proceeding. First, Hurlburt was requiring Hare
to provide extensive documentation long before the Article 78 proceeding, as noted
above. Second, Hare concedes that Duell’s contempt for him and his project was not
due to the Article 78 proceeding, but rather, “was motivated by personal ill will that Ms.
Duell bore toward me from an unrelated business matter.” (Hare Decl., ¶ 22.) Third,
the temporal proximity between Hare filing his Article 78 proceeding on July 6, 2010, and
Hurlburt requiring documentation 10 months later, and Duell speaking out 12 months
17

later, does not support an inference of retaliation. See Adams, 2012 WL 693568, at *16
(noting that courts have found a “limit of two or three months” to be reasonable).
Consequently, because the undisputed evidence establishes that the actions Hare
contends are retaliatory either began before he engaged in protected activity or lack
sufficient temporal proximity to support an inference of retaliation, Defendants are entitled
to summary judgment on Hare’s First Amendment retaliation claim.

See Musco

Propane, LLP v. Town of Wolcott Planning & Zoning Comm’n, 536 F.App’x 35, 39-40 (2d
Cir. 2013) (summary order) (“[W]e would be hard-pressed to find a rational juror who
could infer that a course of action begun before [the plaintiff’s] protected speech could be
caused by retaliation for that First Amendment activity.”); see Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (finding that adverse actions
begun before the plaintiff engaged in protected activity do not give rise to an inference of
retaliation); see Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2011) (causal
connection established where “protected activity [is] closely followed in time by the
adverse action”).
2.

Fourteenth Amendment Class-of-One Claim

“The Equal Protection Clause [of the Fourteenth Amendment] requires that the
government treat all similarly situated people alike.”

Harlen Assocs. v. Inc. Vill. of

Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (citing City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)). When an individual who
is not a member of a constitutionally protected class claims that he or she has been
treated differently, that individual may pursue an equal protection claim on either a
18

selective-enforcement or class-of-one theory. Cobb v. Pozzi, 363 F.3d 89, 109-10 (2d
Cir. 2004).
Hare asserts a class-of-one equal protection claim. (Amended Complaint, ¶¶
138-143.) To prevail on a class-of-one claim, “a plaintiff must establish that (i) no rational
person could regard the circumstances of the plaintiff to differ from those of a comparator
to a degree that would justify the differential treatment on the basis of a legitimate
government policy; and (ii) the similarity in circumstances and difference in treatment are
sufficient to exclude the possibility that the defendants acted on the basis of a mistake.”
Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (quoting
Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)); see Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (per curiam)
(“successful equal protection claims [may be] brought by a ‘class of one,’ where the
plaintiff alleges that she has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment”). That is, a
class-of-one plaintiff must prove that he or she “was intentionally singled out for reasons
that so lack any reasonable nexus with a legitimate governmental policy” that an improper
purpose could be the only motivation. Clubside, 468 F.3d at 159.
To establish a class-of-one equal protection claim, a plaintiff “must provide
evidence that he was treated differently from others ‘similarly situated’ and [that] the
people who are similarly situated are similar ‘in all material respects’ and ‘engaged in
comparable conduct.’” Komondy v. Gioco, No. 3:12-CV-250 (CSH), 2017 WL 2290148,
at *9 (D. Conn. May 25, 2017) (quoting Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir.
19

2005) and Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997)). The
degree of similarity between the class-of-one plaintiff and the comparator must be
extremely high, such that the comparator is “prima facie identical in all relevant respects.”
Neilson, 409 F.3d at 104 (citing Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th
Cir. 2002)); Ruston, 610 F.3d at 59 (“plaintiffs must show an extremely high degree of
similarity between themselves and the persons to whom they compare themselves”). In
the land-use context, “[t]he ‘similarly situated’ requirement must be enforced with
particular rigor . . . because zoning decisions ‘will often, perhaps almost always, treat one
landowner differently from another.’” Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.
2007) (quoting Olech, 528 U.S. at 565). This high degree of similarity is necessary
because “[t]he similarity and equal protection inquiries are . . . virtually one and the same
in . . . a ‘class of one case.’” Neilson, 409 F.3d at 105.
The similarity inquiry is fact-intensive. Clubside, 468 F.3d at 159; Harlen Assocs.,
273 F.3d at 499 (“As a general rule, whether items are similarly situated is a factual issue
that should be submitted to the jury.”). But a court may grant summary judgment in the
defendant’s favor “where no reasonable jury could find that the persons to whom the
plaintiff compares itself are similarly situated.” Clubside, 468 F.3d at 159; Cruz v. Coach
Stores, 202 F.3d 560, 568 (2d Cir. 2000). Such is the case here.
Hare baldly claims that three projects in the Village of Warsaw were similarly
situated to his, and that Defendants permitted those developers to complete their projects
without opposition: (1) a chemical dependency clinic project entitled “Office Conversion”
located at 20 and 22 North Main Street; (2) a chemical dependency clinic project located
20

at 58 West Buffalo Street; and (3) the DiMartino restaurant located at 425 North Main
Street. (Hare Decl., ¶¶ 28, 29; Amended Complaint, ¶ 82.) Hare also states, without
elaboration or supporting evidence, that “[t]he Village allowed, as a matter of routine
practice, other applicants to get extensions of building permits for projects that were only
partly finished.” (Hare Decl., ¶ 27.)
In light of the strict similarity standard applicable to comparators in a class-of-one
claim, Hare’s showing is woefully inadequate. Hare presents no evidence whatsoever
to support his claim that the three projects identified above are substantially similar, or
indeed, “prima facie identical in all relevant respects” to the Harenton Hotel project.
Neilson, 409 F.3d at 104. In fact, the record evidence supports the opposite conclusion:
that there were no similarly situated projects.
It is undisputed that the Harenton Hotel project was a planned multi-million dollar
conversion of a 31,000 square foot nursing home into a 50-room luxury hotel with
conference space. (§ 50-h Transcript, pp. 4, 5, 7; Hare Presentation Package, Docket
No. 54-5.)

The project involved not only converting the existing structure but also

building two additions and constructing an apartment and carport. (§ 50-h Transcript,
pp. 4, 9; Hare Decl., ¶ 4.) In contrast, the only evidence submitted concerning the three
comparator projects indisputably reveals that they were starkly dissimilar.

The two

chemical dependency projects involved remodeling office space and remodeling a small
garage. (Deposition of Daniel Hurlburt (“Hurlburt Dep.”), June 12, 2014, Docket No. 5425, p. 161.) And the DiMartino restaurant project took less than one year to complete
and did not involve any permit extension requests.
21

(Hurlburt Dep., pp. 165, 166.)

Moreover, Williams, the former building inspector, testified that he could not recall a
project of similar magnitude to the Harenton Hotel project nor could he recall any project
that involved multiple building permit extension requests. (Williams Dep., p. 41.) And
Miller, the Zoning Board Member, testified that he could not recall any other project where
the developer requested an extension of a permit or a site plan, as Hare had done for the
Harenton Hotel project. (Miller Dep., p. 35.)
Consequently, this Court finds insufficient evidence from which a reasonable juror
could conclude that any of the three projects identified above are sufficiently similarly
situated to the Harenton Hotel project such that Hare’s class-of-one equal protection claim
could succeed.

Defendants are therefore entitled to summary judgment. 5

See

5 In their motion papers, Plaintiffs reference “substantive due process claims.” (Plaintiffs’ Memorandum
of Law, Docket No. 63, pp. 12-13; Plaintiffs’ Memorandum of Law, Docket No. 70, p. 7.) No such claims,
however, appear in the amended complaint, and Defendants do not recognize any such claims in their
motion. While the bare terms “procedural due process” and “due process” appear in the opening
paragraphs of the amended complaint (see Amended Complaint, ¶¶ 1, 2), the only federal constitutional
claims pleaded are a First Amendment retaliation claim (see Amended Complaint, ¶¶ 129-137) and a
Fourteenth Amendment class-of-one equal protection claim (see Amended Complaint, ¶¶ 138-143).
Consequently, this Court finds that Plaintiffs have not properly asserted a substantive due process claim
in this action.
There is, however, passing reference to “substantive rights under the Fourteenth Amendment” in
Plaintiffs’ discussion of their class-of-one equal protection claim. (Amended Complaint, ¶ 140.) Even
assuming that this adequately raises a substantive due process claim, which this Court does not believe it
does, Defendants would be entitled to summary judgment.
Substantive due process “protects the individual against certain government actions regardless of the
fairness of the procedures used to implement them.” McClary v. O’Hare, 786 F.2d 83, 88 (2d Cir. 1986).
Where, as here, a plaintiff contends that government action infringed on his or her property rights, the
plaintiff must show “a valid property interest” and that “defendants infringed on the property right in an
arbitrary or irrational manner.” 49 WB, LLC v. Vill. of Haverstraw, 511 Fed.Appx. 33, 34 (2d Cir. Feb. 4,
2013). To be actionable, government action must be “arbitrary, conscience-shocking, or oppressive in
the constitutional sense, not merely incorrect or ill-advised.” Ferran v. Town of Nassau, 471 F.3d 363,
370 (2d Cir. 2006) (citation and internal quotation marks omitted).
Here, Hare has failed to demonstrate that he held protected property rights in his expired permits and
variances. But even more problematic, Hare has failed to set forth any evidence from which a
reasonable trier of fact could conclude that Defendants acted in an arbitrary, conscience-shocking, or

22

Clubside, 468 F.3d at 159; Cruz v. Coach Stores, 202 F.3d 560, 568 (2d Cir. 2000).
D.

Hare’s State Claims
Having disposed of Plaintiffs’ federal claims, this Court finds it appropriate to

decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims for intentional
infliction of emotional distress, negligent infliction of emotional distress, and tortious
interference with business contract. See 28 U.S.C. § 1367 (c)(3).
The United States Supreme Court has instructed that courts should ordinarily
decline to exercise supplemental jurisdiction in the absence of federal claims.

See

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S. Ct. 614, 98 L. Ed. 2d 720
(1988) (noting that in the usual case where all federal claims are eliminated before trial,
the relevant factors informing the decision of whether to exercise supplemental
jurisdiction will “point towards declining to exercise jurisdiction over the remaining statelaw claims”); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130,
16 L. Ed. 2d 218 (1966) (“Certainly, if the federal claims are dismissed before trial, . . .
the state claims should be dismissed as well.”).
The Second Circuit shares this view: where “federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Valencia ex rel.

oppressive manner. There can be little dispute that each of Hurlburt’s and the Village’s decisions
concerning his permit applications were grounded in local law and building code requirements. Even
assuming that Hurlburt’s conclusions about what the code and local law required were wrong, as Hare
maintains, that is not enough to establish a substantive due process claim. See Ferran, 471 F.3d at 370.
Consequently, this Court finds that Defendants would be entitled to summary judgment on Plaintiffs’
substantive due process claim, if such a claim could be gleaned from the amended complaint.

23

Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003); see also Marcus v. AT&T Corp., 138
F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal claims are dismissed before
trial the state claims should be dismissed as well.”)
This Court finds this guidance particularly appropriate here, where the parties
dispute the sufficiency of Plaintiff’s § 50-h Notice of Claim (a state procedural device) and
there is a pending motion to amend the complaint that pertains solely to the state claims.
Accordingly, this Court declines to exercise supplemental jurisdiction over Plaintiffs’ state
law claims and they are instead dismissed without prejudice under 28 U.S.C. § 1367
(c)(3).
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted
in part and denied in part. Defendant’s motion is granted as to Plaintiffs’ federal claims
and denied as to Plaintiffs’ state claims, which are dismissed without prejudice under 28
U.S.C. § 1367 (c)(3). Plaintiffs’ Motion to Amend, which pertains only to their state
claims, is denied as moot.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Motion for Summary Judgment
(Docket No. 54) is GRANTED as to Plaintiffs’ federal claims and DENIED as to Plaintiffs’
state claims, which are dismissed without prejudice under 28 U.S.C. § 1367 (c)(3).
FURTHER, that Plaintiffs’ Motion to Amend (Docket No. 64) is DENIED AS MOOT.
FURTHER, that the recent mediation-related orders (Docket Nos. 71, 72) are
VACATED.
24

FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated:

September 20, 2017
Buffalo, New York

/s/William M.Skretny
WILLIAM M. SKRETNY
United States District Judge

25