Ercolani v. Mousso et al
DECISION AND ORDER granting 6 Motion to Dismiss. Defendants' motion [#6] to dismiss is granted, and Plaintiff's cross-motion to amend [#9] is denied. Plaintiff has not specifically requested a further opportunity to amend. However, the Court does not believe that a further opportunity to amend is warranted. Plaintiff has already made three unsuccessful attempts to state a claim. Moreover, Plaintiff's submissions establish that he cannot presently make a plausible showing th at he is similarly situated, let alone to an extremely high degree, to the persons (comparators) who may have complained to the Town about the conditions at 198 Luddington Lane, 50 Castle Grove Drive, 114 Emberglow Lane and 16 Parham Drive. Instead, his submissions show, at most, the mere possibility of such similarity, which he hopes to establish through discovery. However, "Twombly rejected th[at] approach." Biro v. Conde Nast, 807 F.3d 541, 546 (2d Cir. 2015) (citation omitted). Consequently, there is no reason to believe that further amendment would be productive, and the action is dismissed with prejudice. The Clerk of the Court is directed to close this action.Signed by Hon. Charles J. Siragusa on 3/20/17. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID B. ERCOLANI,
DECISION and ORDER
PAUL MOUSSO, Code Compliance Officer,
Town of Greece, CHERYL M. ROZZI, Town Clerk,
Town of Greece, BILL REILICH, Supervisor,
Town of Greece,
David Ercolani (“Plaintiff”) filed an Amended Complaint (Docket No. [#3]) pursuant
to 42 U.S.C. § 1983, alleging a “class-of-one” equal protection claim under the Fourteenth
Amendment to the United States Constitution. In particular, Plaintiff, a resident of the
Town of Greece, New York (“the Town”), maintains that the defendants, who are employed
by the Town, improperly ignored his complaints that a neighbor’s swimming pool was
leaking, and causing water to flow into his basement.
Now before the Court are
Defendants' motion [#6] to dismiss the Amended Complaint pursuant to Federal Rule of
Procedure (“Fed. R. Civ. P.”) 12 (b)(6), and Plaintiff’s cross-motion [#9] to file a Second
Amended complaint pursuant to Fed. R. Civ. P. 15. For reasons detailed below, Plaintiffs'
cross-motion to amend is denied, and Defendants' motion to dismiss is granted.
Unless otherwise noted, the following facts are taken from the Amended Complaint
and the proposed Second Amended Complaint, and are accepted as true for purposes of
this Decision and Order. Plaintiff resides in the Town of Greece, and his next-door
neighbor has an in-ground swimming pool. In or about 2013, water began accumulating
in Plaintiff’s basement. Plaintiff suspected that the water was emanating from the pool of
the neighbor, who had previously mentioned that his pool was leaking. After determining
that the water was not coming from his own water service line, Plaintiff complained to
officials at the Town that the water was leaking from the neighbor’s pool. In September
2013, Plaintiff wrote to the Town’s code enforcement officer, defendant Paul Mousso
(“Mousso”), and asked “that action be taken by the Town of Greece on his behalf,” but
Mousso allegedly “took no action.”1 In June 2014, Plaintiff wrote to the Town Supervisor,
defendant Bill Reilich (“Reilich”), asking that action be taken on his behalf, but Reilich
allegedly took no action.2
That same month Plaintiff mentioned the problem again to
Mousso, who allegedly indicated that he would take some action, but did not do so. In
September 2014, Plaintiff wrote to the Town Clerk, defendant Cheryl Rozzi (“Rozzi”), about
various “concerns,” including his belief that the neighbor’s pool was leaking into his
basement, after which Rozzi responded to Plaintiff’s “other concerns,” but took no action
concerning the neighbor’s pool.3 In November 2014, Plaintiff again wrote to Rozzi about
the alleged leaking pool, but she took no action. In June 2015, Plaintiff again wrote to
Rozzi about the situation, and Rozzi responded that the matter had been referred to the
Health Department. Finally, in August 2015, Plaintiff again spoke with Mousso, who made
an appointment to meet with Plaintiff about the matter, but failed to keep the appointment
and then did not contact Plaintiff.
Amended Complaint at ¶ ¶ 20-21.
Amended Complaint at ¶ ¶ 24-25.
Amended Complaint at ¶ ¶ 30-31.
On August 7, 2016, Plaintiff commenced this action against Mousso and Rozzi in
their individual capacities, alleging a class-of-one equal protection violation. On August 16,
2016, Plaintiff filed an Amended Complaint [#3], adding Reilich as a defendant in his
individual capacity.4 In an effort to plead that Plaintiff had been treated differently than
similarly-situated individuals, the Amended Complaint states, upon information and belief,
four instances in which “the Town of Greece” “took action” against residents whose
swimming pools were “leaking onto” neighbors’ properties.5 The Amended Complaint does
not explain how these “leaking pool” problems were brought to the Town’s attention, but
assumes that complaints were made by neighbors whose property was affected by the
leaking pool water, and who were therefore “similarly situated” to Plaintiff. In each of these
four instances, the Amended Complaint alleges that the Town took some action against
the offending landowners pursuant to Town Code § § “184-7 and/or 184-10.”6 Further, the
Amended Complaint alleges that “Defendants intentionally and purposefully treated Plaintiff
disparately as a class-of-one in its application of Town of Greece codes, 184-7 and/or
184-10,” inasmuch as it did not take similar action against Plaintiff’s neighbor.7
On September 26, 2016, Defendants filed the subject motion to dismiss [#6],
pursuant to Fed. R. Civ. P. 12(b)(6), in lieu of filing an answer to the Amended Complaint.
Defendants’ motion indicates that Greece Town Code § § 184-7 and 184-10 were repealed
in 2010, and therefore were not in effect when Plaintiff allegedly complained to the
Although Defendants have not moved to dismiss on this basis, it seems quite unlikely that Plaintiff
has plausibly alleged personal involvement by Reilich under Section 1983. Amended Complaint at ¶ ¶ 24-25.
Amended Complaint at ¶ 41.
Amended Complaint at ¶ 41.
Amended Complaint at ¶ 46.
Defendants between 2013 and 2015. Consequently, Defendants maintain, the Amended
Complaint does not state a class-of-one equal protection claim, since Plaintiff is not
similarly situated to the unidentified persons whose complaints, he assumes, led to the four
instances alleged in the Amended Complaint, wherein the Town took action against
landowners for draining their pools onto adjacent properties.8
In response to Defendants’ motion, Plaintiff admits that the Amended Complaint is
deficient, and contends that he was unaware that Code § § 184-7 and 184-10 had been
repealed. However, on November 1, 2016, Plaintiff filed the subject cross-motion [#9] for
leave to file a Second Amended Complaint. The proposed amended pleading omits
references to Town Code § § 184-7 and 184-10, and instead refers to Town Code § 11412.1(A) “Swimming Pools,” which, Plaintiff maintains, replaced Code sections 184-7 and
184-10. The proposed amended pleading also purports to lists four alternative instances
in which the Town took action against landowners for draining their swimming pools onto
adjacent properties, pursuant to Code § 114-12.1(A). Specifically, the proposed pleading
alleges, upon information and belief only, that unidentified “neighbors” complained about
four properties – 198 Luddington Lane, 50 Castle Grove Drive, 114 Emberglow Lane and
16 Parham Drive – with swimming pools leaking onto their properties, and that the Town
“took action” in response to the complaints.9
On November 17, 2016, Defendants filed their opposition [#11] to the cross-motion
See, Defs. Memo of Law [#5-5] at p. 3 (“The comparators alleged in the Plaintiff’s Amended
Complaint in the instant case were not similarly situated as a matter of law with the Plaintiff because their
complaints wereexamined in terms of a local law that had repealed approximately 3 years before the time of
the Plaintiffs complaints.”).
Proposed Second Amended Complaint at ¶ 41.
to amend, contending that the proposed amendment would be futile since the proposed
pleading still does not plausibly indicate that Plaintiff is similarly situated to the persons to
whom he compares himself.10 In support of this argument, Defendants have submitted an
affidavit [#11-1] from Mousso, in which he indicates that the four instances described in the
proposed Second Amended Complaint are not similar to the situation at Plaintiff’s property.
In that regard, Mousso indicates, first, that he is personally familiar with the incidents at 50
Castle Grove Drive and 114 Emberglow Lane, and neither involved water leaking from an
in-ground pool into a neighbor’s basement; instead, both incidents involved landowners
“discharging water from off of the pool covers covering their pools onto adjacent
properties,” apparently over the surface of the ground.11 Mousso issued citations to the
offending landowners, but under Code § 157-5(a) (“Property Maintenance - Exterior
Property Areas”), and not § 114-12.1(A), as Plaintiff supposes.12 As for the incidents at
198 Luddington Lane and 16 Parham Drive, Mousso indicates that he made a diligent
search of the Town’s records, and can “find no record of any complaints made with respect
to those [properties].”13 Mousso also indicates that Plaintiff is incorrect in asserting that he
was discriminated against; rather, Mousso states that he investigated Plaintiff’s complaint
and was unable to verify that the water in Plaintiff’s basement was coming from the
neighbor’s pool, and therefore did not have an adequate basis to take action against the
See, Rizzo Affirmation [#11] at ¶ 12 (“Plaintiff’s equal protection claim . . . fails on its face to
demonstrate how other similarly situated persons were treated differently by the Defendants.”).
Mousso Aff. [#11-1] at ¶ 5.
Mousso Aff. [#11-1] at ¶ 5.
Mousso Aff. [#11-1] at ¶ 4.
adjacent landowner under Town Code § 114-12.1(A) or any other provision of the Town
On November 22, 2016, Plaintiff made a letter request for permission to file a surreply. The Court granted the application. Additionally, because Defendants had submitted
materials outside of the pleadings (e.g., Mousso’s affidavit), the Court specifically notified
the parties that it might treat the pending applications as cross-motions for summary
judgment. See, Letter Order [#12] (“The Parties are further advised that pursuant to
Federal Rule of Civil Procedure 12(d), the Court may treat the pending applications as
cross-motions for summary judgment.”).
On December 13, 2016, Plaintiff filed a “reply/response” [#13], consisting of an
affirmation from Plaintiff’s counsel and an affidavit from Plaintiff [#13-1]. Plaintiff’s affidavit
apparently disputes Mousso’s contention that he lacked a sufficient basis to issue a citation
to Plaintiff’s neighbor.
In that regard, Plaintiff’s affidavit essentially reiterates the
allegations in the pleadings concerning his contacts with Mousso about the problem,
amplified by assertions that he told Mousso the following: 1) testing by the Monroe County
Health Department and Water Authority “indicat[ed] that the water accumulating on [his]
property was likely a result of [the] neighbor’s swimming pool leaking water”;15 2) the
neighbor admitted that his swimming pool was leaking water.16
Mousso Aff. [#11-1] at ¶ 2.
In fact though, the email that Plaintiff supplied from the Monroe County Health Department indicated
that testing was inconclusive as to the source of the water. Docket No. [#13-1] at p. 6. Indeed, the
documentary evidence that Plaintiff has provided from these agencies does not indicate that it was “likely” that
the water in his basement was from the neighbor’s pool.
Plaintiff also admittedly told Mousso, though, that the neighbor had recently replaced his pool liner,
and had tested his water supply lines to the pool and had found no leak. Docket No. [#13-1] at p. 5.
affirmation, on the other hand, purports to explain how he identified the four incidents in
the proposed Second Amended Complaint as being “similarly situated” to Plaintiff’s
situation. In particular, counsel made a freedom of information law (“FOIL”) request to the
Town for records pertaining to notices/citations that had been issued over the past twenty
years relating to failures to properly maintain swimming pools. In response to that FOIL
request, the Town sent counsel a 110-page spreadsheet document, listing 1,650 instances
involving pools. Plaintiff’s counsel reviewed the document and found four instances
involving pool water draining onto an adjacent property (198 Luddington Lane - “Draining
pool water to neighboring property”; 50 Castle Grove Drive - “Draining pool onto neighbor’s
property”; 114 Emberglow Lane - “Discharging water to neighboring property”; and 16
Parham Drive - “Pool drainage into neighboring property.”), which he included in the
proposed Second Amended Complaint. Plaintiff further indicated that if the Court were
inclined to treat the motions as being for summary judgment, he would like an opportunity
to conduct discovery.
On March 16, 2017, counsel for the parties appeared before the undersigned for
oral argument. Having thoroughly considered the matter, the Court will not convert the
matter to a summary judgment motion, and will restrict its consideration to the Amended
Complaint and proposed Second Amended Complaint.
STANDARDS OF LAW
Motion to Dismiss
Defendants have moved to dismiss the Amended Complaint for failure to state a
claim, and the standard for such motions is well settled:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order
to give the defendant fair notice of what the claim is and the grounds upon
which it rests. While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir.2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his
claim rests through factual allegations sufficient ‘to raise a right to relief above the
speculative level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).
When applying this “plausibility standard,” the Court is guided by “two working
First, although a court must accept as true all of the allegations contained in
a complaint,17 that tenet is inapplicable to legal conclusions, and threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss, and determining whether a
complaint states a plausible claim for relief will be a context-specific task that
requires the reviewing court to draw on its judicial experience and common
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks
omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the
The Court must accept the allegations contained in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), cert. den. 531
U.S. 1052, 121 S.Ct. 657 (2000).
mere possibility of misconduct, the complaint has alleged—but it has not shown—that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950
(2009) (citation omitted).
Cross-Motion to Amend
Federal Rule of Civil Procedure 15 provides, in relevant part that “a party may
amend its pleading ... with ... the court's leave,” and that “[t]he court should freely give
leave when justice so requires.” Fed R. Civ. P. 15 (a)(2). However, amendment may be
denied where it would be futile. See, e.g., Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir. 1993) (“[W]here it appears that granting leave to amend is unlikely to be
productive ... it is not an abuse of discretion to deny leave to amend.”). A proposed
amendment is futile if it “would be subject to ‘immediate dismissal’ for failure to state claim
or on some other ground.” Singh v. N.Y.S. Dept. of Tax & Fin., 2011 WL 3273465, at *35
(W.D.N.Y. 2011) (citing Jones v. New York Div. of Military & Naval Affairs, 166 F.3d 45, 55
(2d Cir. 1999)).
Section 1983 “is not itself a source of a substantive rights, but merely provides a
method for vindication of federal rights elsewhere conferred.” Long v. Crowley, No.
09–CV–00456A(F), 2012 WL 1202181 (W.D.N.Y. Mar. 22, 2012) (citations and internal
quotation marks omitted). To establish individual liability under Section 1983, a plaintiff
must show that the defendant acted under color of state law and caused the plaintiff to be
deprived of a constitutional right. 42 U.S.C. § 1983.
Fourteenth Amended Equal Protection “Class of One” Claim
Plaintiff asserts a “class-of-one” equal protection claim, and the standard for such
a claim is clear:
[A] class-of-one claim exists where the plaintiff alleges that he has been
intentionally treated differently from others similarly situated and that there
is no rational basis for the difference in treatment. Under this theory, the
plaintiff bears the burden of showing: (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. Class-of-one plaintiffs must show an extremely
high degree of similarity between themselves and the persons to whom they
Beard v. Town of Monroe, 16-44-cv, 666 F. App'x 62, 65 (2d Cir. Dec. 9, 2016) (citations
and internal quotation marks omitted); see also, Renato Pistolesi, Alltow, Inc. v. Calabrese,
15–2049–cv, 666 F. App'x 55, 58 n. 2 (2d Cir. Dec. 1, 2016) (“In class-of-one claims, a
plaintiff is required to identify comparators that are ‘prima facie identical’ in order to provide
an inference that the plaintiff was intentionally singled out for reasons that so lack any
reasonable nexus with a legitimate governmental policy that an improper purpose is all but
certain.”) (citation and internal quotation marks omitted). In the context of a motion to
dismiss a class-of-one claim under Rule 12(b)(6), dismissal is required where the pleading
fails to identify a similarly-situated comparator. See, Finn v. Anderson, No. 13–4020, 592
F. App'x 16, 19–20 (2d Cir. Nov. 14, 2014) (Affirming dismissal of class-of-one claim,
stating: “Because Finn fails so much as to identify any similarly situated individuals against
whom Anderson's alleged interference in her matrimonial proceedings may be compared,
she cannot state an equal protection claim sufficiently plausible to survive a 12(b)(6)
Plaintiff admits that the Amended Complaint is deficient, because it is based on
statutes that were repealed in 2010, before his claim arose. Consequently, the issue is
whether Plaintiff’s request to file the proposed Second Amended Complaint would be futile,
as Defendants maintain. The Court finds that the amendment would be futile, because the
proposed pleading fails to plausibly allege that Plaintiff was treated differently than any
The essence of Plaintiff’s proposed claim is that the Town took action against the
property owners at 198 Luddington Lane, 50 Castle Grove Drive, 114 Emberglow Lane and
16 Parham Drive, but refused to take action against his neighbor, due to an intent to
discriminate against him. Plaintiff does not dispute that in order to state a class-of-one
equal protection claim, he must plausibly allege that he is similarly situated, to an extremely
high degree, to the persons who complained to the Town about water coming onto their
properties from 198 Luddington Lane, 50 Castle Grove Drive, 114 Emberglow Lane and
16 Parham Drive. However, Plaintiff has clearly failed to do so.
The proposed pleading provides absolutely no information about these comparators,
i.e., the persons who complained about water flowing onto their properties from 198
Luddington Lane, 50 Castle Grove Drive, 114 Emberglow Lane and 16 Parham Drive.
Indeed, the proposed pleading does not attempt to identify such persons; rather, it merely
assumes that the Town took action in regard to each of those properties based on the
complaint of some adjacent landowner. While it may be a reasonable inference that the
Town took action in response to the complaint of an affected neighbor in each of those
cases, it would not be a reasonable inference that those affected neighbors were similarly
situated to Plaintiff.
In that regard, the mere fact that each of the landowners may have been affected
by water emanating from a swimming pool does not make them similarly situated. Indeed,
the face of the proposed pleading suggests that the circumstances between the events at
Plaintiff’s property and the other four properties are dissimilar. That is, the reasonable
inference from the proposed pleading is that the incidents at 198 Luddington Lane, 50
Castle Grove Drive, 114 Emberglow Lane and 16 Parham Drive involved pool water that
was flowing across the ground to an adjacent property’s lawn. At least, there is no
indication that those incidents involved water flowing underground into a basement.
Presumably, then, in those situations one could visually determine the source of the water.
Plaintiff’s situation is much different, and more complex, since it would admittedly require
scientific or other testing to confirm the source of the water in Plaintiff’s basement. Such
a distinction could easily explain why a municipal official might reasonably approach the
situations differently, negating any inference of intentional discrimination. Nor has Plaintiff
offered any reason why Defendants might single him out for intentional discrimination,
other than the fact that he made several complaints about the neighbor’s pool, which the
Court does not find convincing. On the other hand, Plaintiff admits that Rozzi addressed
other contemporaneous complaints that he made, which undercuts a suggestion of
discriminatory animus.18 For these reasons the proposed pleading fails to plausibly allege
a class-of-one equal protection claim.
See, proposed Second Amended Complaint at ¶ 31 (Stating that Rozzi responded to Plaintiff’s
“other concerns,” but took no action concerning the neighbor’s pool.).
Defendants' motion [#6] to dismiss is granted, and Plaintiff’s cross-motion to amend
[#9] is denied. Plaintiff has not specifically requested a further opportunity to amend.
However, the Court does not believe that a further opportunity to amend is warranted.
Plaintiff has already made three unsuccessful attempts to state a claim. Moreover,
Plaintiff’s submissions establish that he cannot presently make a plausible showing that
he is similarly situated, let alone to an extremely high degree, to the persons (comparators)
who may have complained to the Town about the conditions at 198 Luddington Lane, 50
Castle Grove Drive, 114 Emberglow Lane and 16 Parham Drive. Instead, his submissions
show, at most, the mere possibility of such similarity, which he hopes to establish through
discovery. However, “Twombly rejected th[at] approach.” Biro v. Conde Nast, 807 F.3d
541, 546 (2d Cir. 2015) (citation omitted). Consequently, there is no reason to believe that
further amendment would be productive, and the action is dismissed with prejudice. The
Clerk of the Court is directed to close this action.
Rochester, New York
March 20, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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