NYTDA, Inc. v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NYTDA, INC., aka NEW YORK TRUCKING &

DELIVERY ASSOCIATION,

MEMORANDUM & ORDER

Plaintiff, 19-CV-6445(EK)(VMS)

-against-

CITY OF NEW YORK; JEFFREY SHEAR;

AGNES RUSIN; AND MARYANN CORDOVA,

Defendants.

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ERIC KOMITEE, United States District Judge:

This case concerns New York City’s administration of

two parking-ticket programs for commercial vehicles. Operators

of commercial-vehicle fleets tend to get lots of parking tickets

in the City, and the programs offer them a bargain: waive your

right to challenge parking tickets, and in return the City will

discount the cost of your tickets across the board. Vehicle

operators pay less in fines; both sides save the cost of

litigating tickets. In principle, at least, everyone wins.

In practice, the Plaintiff — a trade organization

called New York Trucking & Delivery Association — is not feeling

victorious. It says that after its members signed up for the

programs, the City changed its rules and practices to pursue

collection efforts for invalid tickets and to charge fines in

excess of what New York City’s rules permit. Plaintiff says

these actions contravene State law and City regulation and, more

saliently for the instant case, its federal due process rights

(among other rights). Plaintiff brings claims against the City

of New York and certain members of its Department of Finance

(“DoF”) under 42 U.S.C. § 1983 and the New York State

Constitution. Defendants move to dismiss Plaintiff’s claims

under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

For the reasons set forth below, the Court grants the motion and

dismisses Plaintiff’s complaint in its entirety.

Background1

A. Regulatory Scheme

Generally speaking, the City’s parking enforcement

regime affords vehicle owners the opportunity to dispute parking

tickets before Administrative Law Judges in DoF’s Parking

Violations Bureau (“PVB”). If they lose, owners can appeal the

adverse decisions to a three-ALJ panel within the PVB, and then

seek judicial review from New York State courts.

In 2004, the City launched the “Stipulated Fines”

program at issue here by promulgating Section 39-03.1 of the

Rules of the City of New York (“RCNY”). See 19 RCNY 39-03.1. A

limited swath of commercial vehicles — those that “make

1 At the motion to dismiss stage, the Court “must take the facts alleged

in the complaint as true, drawing all reasonable inferences in [Plaintiff’s]

favor.” See In re NYSE Specialists Sec. Litig., 503 F.3d 89, 91 (2d Cir.

2007).

expeditious pick-ups, deliveries and/or service calls” — was

eligible. Id. Section 39-03.1 authorized the Commissioner of

Finance to enter into agreements with fleet owners “for the

payment of stipulated [i.e., reduced] fines for parking

violations,” if the owners agreed in advance “to waive the right

to contest all notices of violation issued against such owner’s

enrolled vehicle during a stated period of time and to pay the

stipulated fines for all such violations.” Id. § 39-03.1(a).

The new rule provided that participation in the program was

voluntary and, importantly, that any participant’s enrollment

was subject to termination “at the discretion of the

Commissioner.” Id. § 39-03.1(d).

Enrollees in the Programs must sign an Enrollment

Agreement. Am. Compl. (“Compl.”) ¶ 30, ECF No. 46.2 The

Enrollment Agreement memorializes enrollees’ explicit agreement

to several of the statutory provisions above: it provides, among

other things, that enrollees “agree to stipulated fines, as

determined by [DoF]”; that DoF “may change any stipulated fine

schedule without providing notice”; and that enrollees waive

“any claims and defenses based thereon.” Enrollment Agreement,

Pl.’s Ex. D (“Enrollment Agreement”) ¶ 2, ECF No. 46-4.

2 Page numbers in citations to record documents (excluding deposition

transcripts) refer to ECF pagination rather than the documents’ native page

numbers.

Enrollees waive procedural, as well as substantive, rights: they

cede “all rights to a hearing” and agree “to accept [DoF’s]

determinations as final.” Id. Summonses issued to enrollees

“may not be challenged, contested or otherwise adjudicated by

any party, for any reason, either administratively or in court.”

Id. ¶ 7. In addition, enrollees agree that “[e]nrollment . . .

is voluntary and may be terminated at any time by either party,

for any reason.” Id. ¶ 8.

As part of the enrollment process, enrollees provide

their vehicle’s license number, “plate type” (such as a

commercial vehicle plate, taxicab plate, trailer plate, etc.),

and other information. Compl. ¶ 38. DoF enters this

information in its database. Id. ¶ 39. When traffic agents

issue tickets, DoF enters the vehicle information into its

system. If the information on the ticket matches the

information for a vehicle enrolled in the Programs, the fine is

reduced to the stipulated amount. Id. ¶¶ 41-42. The City calls

this process “collateralization.” Id. ¶ 42 n.14. As the

tickets are matched and reduced, DoF sends bulk notices to

enrollees via electronic “Fleet Reports.” Id. ¶ 39. For

NYTDA’s members, the Fleet Reports go to NYTDA.

In 2014, DoF added a second (materially identical)

program — the “Commercial Abatement Program” — for commercial

vehicles that were not eligible for the Stipulated Fines

Program. Id. ¶ 26. DoF also implemented a penalty schedule for

late payments in the Stipulated Fines Program; this schedule was

later adapted to the Commercial Abatement Program, as well, in

2019. Id. ¶ 28. The schedule provides that a $10 penalty

accrues forty-five days after DoF entered the violation in its

database; another $20 accrues forty-five days later; and another

$30 accrues forty-days after that. Id. ¶ 66. If the ticket

remains unpaid for an additional seven days (for a total of 142

days following system entry), DoF enters “judgment against the

owner in the original unreduced fine amount . . . , plus the

[above] penalties.” 19 RCNY § 39-03.1(e)(4); see also Compl. ¶

66.

B. Plaintiff’s Claims

NYTDA is a registered “broker” with DoF, which in this

context means that it is authorized to act as a representative

or agent of a vehicle owner. See 19 RCNY § 39-09 (brokerage

rules). Among other services, NYTDA processes and audits

parking tickets for hundreds of enrollees in the Programs.

NYTDA executes the Enrollment Agreement on behalf of its members

(based on a power of attorney), receives Fleet Reports directly

from the City, remits payment to DoF, and then bills its

clients. Compl. ¶¶ 33, 35. As compensation, NYTDA receives

membership dues and a share of the savings its clients receive

through the Programs. Id. ¶ 36.

Plaintiff alleges that “the City, through DoF and its

officials, has two fundamental obligations to Plaintiff” and

enrollees in the programs. Id. ¶ 6. These are, per NYTDA, “(1)

to only pursue parking ticket cases with notices of violations

which comply with New York law and DoF Rules,” and “(2) to

properly calculate fines and penalties for parking ticket

violations in accordance with DoF Rules.” Id. Defendants

violated the first of these obligations, Plaintiff contends,

when it broke with prior practice and began to charge enrollees

for “invalid” tickets — specifically, tickets with missing or

inaccurate “plate type” information — in or about 2019. Id. ¶

47. They violated the second obligation, Plaintiff alleges, by

charging penalties and late fees that are not authorized by the

City’s rules.3 Id. ¶ 69.

1. Invalid Tickets

The Complaint alleges that in June 2019, Defendants

began fining enrollees — retroactively and prospectively — for

“invalid” parking tickets. See Compl. ¶ 47. Because the

enrollees did not timely pay the tickets, the City did so at the

full rates rather than the discounted rates offered under the

3 These two claims form the core of the complaint; NYTDA also alleges in

passing, however, that Defendants are violating its due process and equal

protection rights by refusing “to enter a reasonable payment solution” with

NYTDA to mitigate its damages, Compl. ¶ 131, and by “deliberately refusing to

provide Plaintiff with relevant data concerning DoF’s incorrectly calculated

fines.” See id. ¶ 5(3).

Programs. This practice diverged from the City’s prior practice

of allowing those tickets to, in Plaintiff’s phrase, “age out”

of the system without being collected. Id. ¶ 42. (In the

course of this action, however, DoF has represented — and

Plaintiff has not disputed — that DoF is voluntarily reversing

and refunding the retroactive penalties it assessed.4)

The tickets in question are defective, Plaintiff

claims, because they omit or misstate the subject vehicle’s

“plate type” (commercial, taxi and limousine, etc.). Plaintiff

alleges that this omission not only violates Section 238(2) of

New York State’s Vehicle and Traffic Laws, see VTL 238(2), but

renders the tickets jurisdictionally “invalid” under New York

State law.5

When NYTDA complained about the 2019 shift, defendant

Maryann Cordova, a City parking official, confirmed that these

notices “are being manually placed into the Program.” Compl. ¶

4 See Def. Mem. of Law in Support of Mot. to Dismiss (“Def. Mem. in

Supp.”) 12 n.2, ECF No. 54 (DoF is “proceeding with the dismissals and

refunds of the entire population of parking tickets enforced retroactively,

including those that were issued to plaintiff’s clients”).

5 See Pl. Mem. of Law in Opp. to Mot. to Dismiss (“Pl. Mem. in Opp.”)

13. Plaintiff cites Nestle Waters North America, Inc. v. City of New York,

990 N.Y.S. 2d 512, (App. Div. 2014) (citing Ryder Truck Rental, Inc. v.

Parking Violations Bur., 62 N.Y.2d 667, 676 (1984)) (tickets omitting the

mandatory information cannot “survive a jurisdictional challenge and avoid

dismissal”). Plaintiff also relies on the text of VTL § 238 itself, which

states that “if any information which is required to be inserted on a notice

of violation is omitted from the notice of violation, misdescribed, or

illegible, the violation shall be dismissed upon application of the person

charged with the violation.” Id. 2-a(b).

49. She advised that, going forward, “[s]ummonses issued to New

York registered vehicles will be collateralized based on plate

number and state” (i.e., ignoring the plate type), and that

“your clients have a choice to either accept this practice or

withdraw from the Stipulated Fine Program.” Id. ¶ 50. The DoF

Legal Department maintains that enrollees in the Programs waived

their right to object to this practice. Id. ¶ 56; see also

Enrollment Agreement ¶ 2 (Department of Finance “may change any

stipulated fine schedule without providing notice,” and enrollee

“agree[s] to waive any claims and defenses based thereon”).

The City, according to Plaintiff, tried twice to shift

its collection practice in this manner in the past, but backed

off both times in response to pressure from NYTDA and others.

Id. ¶ 43. When NYTDA brought the same issue to DoF’s attention

in 2009, the presiding Commissioner of Finance promptly stopped

the procedure and refunded NYTDA’s members for the apparent

error. Id. ¶ 44. Likewise, when NYTDA members began receiving

these fines again in 2013, the Association successfully disputed

them, and DoF reversed course. Id. ¶ 45. According to the

complaint, defendant Cordova at the time “confirmed [DoF’s]

policy that a ticket issued with the wrong plate type would not

appear on the fleet reports.” Id. This is no longer true.

2. Excessive Fines

In July 2013, the DoF sent a letter to NYTDA and other

enrollees announcing certain “changes to the terms and

conditions of the Commercial Vehicle Programs.” Letter dated

July 1, 2013 from Defendant Cordova to Plaintiff 2, ECF No. 46-

7. NYTDA’s copy of the letter notes that NYTDA had already, by

that time, amassed an unpaid fines balance of $9,146.23. Id. at

3. DoF advised NYTDA that “[t]o continue with the Stipulated

Fine program, you must bring your account up to date and sign

the attached [revised enrollment] agreement.” Id. at 2.

The letter went on to describe changes to the schedule

of fines and penalties — specifically, that “[f]or newly issued

tickets, payments are due within 45 days of the date of issue”;

and furthermore, that “[t]ickets not paid on time will lose

their reduction” — that is, revert to the unreduced fine amount.

Id. at 2-3. The letter went on to say that “penalties will be

charged every 45 days.” Id. To ensure the new terms were

clearly laid out, the letter provided a sample fine schedule for

a late-paid ticket:

3. Tickets not paid on time will lose their reduction, and penalties will be charged every 45 days and

then will go into judgment if not paid. Penalties apply to all violation codes.

There will be no opportunity to contest the tickets after the reduction is removed as you have

waived your rights to a hearing by participating in this program.

Here is an example of a No-Standing (Hotel Loading) ticket that is not paid on time. The ticket is

issued at $115, but since the vehicle is enrolled in the program, the ticket is reduced to $92

(Tt aad

Dayl i Ticket Issued | $92

Day 45 | Payment due date $92

Saya | Reduction is removed | $115

| ¥ | First penalty is applied $125

| Day 91 | Second penalty is applied | $145

__Day136 —_—__ Third penalty is applied $175

| ™ Day 142 Ticket is placed into judgment = $175+interest

Id. at 3. The letter also stated that if NYTDA “want[ed] to

remain in the program” despite the changes, it would need to

“complete the Response Form, sign the [updated] enrollment

agreement and return both with payment” by a specified date.

Id. DoF concluded: “If we do not receive the signed agreement

and your account is not up to date as of August 15, 2013, your

company and all its registered plates may be removed from the

program . .. .” Id.

DoF has indeed followed this practice since 2013,

despite Plaintiff’s protests. Compl. @ 86 (alleging that as of

the filing date of the operative complaint, Defendants continued

to remove the fine reduction after only 45 days). Plaintiff

contends that the reversion to an unreduced fine amount after

only forty-five days is inconsistent with DoF’s own regulations

— specifically, the plain language of Section 39.03.1, which

provides that the reversion in fine amount will occur after the

10

142-day sequence described above. See 19 RCNY § 39-03.1(c)(3),

(e)(1)-(4).6 Defendants respond that the July 2013 letter

provided clear notice of DoF’s plans and that NYTDA agreed to

that approach in the revised the Enrollment Agreement, which

provided: “Failure to pay timely . . . shall be grounds for

rendering and entering a default judgment in the amount of the

original unreduced fine amount . . . .” Enrollment Agreement

¶ 5 (emphasis added).

3. System Failures

Compounding these issues, NYTDA alleges that DoF

changed its systems in a manner that, in part, caused NYTDA to

experience serious system failures. See Compl. ¶¶ 71-77. Among

other things, in 2014, DoF linked payment to individual vehicles

through DoF’s “Commercial Website,” rather than the “batch”

reporting system it initially implemented. Id. ¶ 73. In

effect, rather than receiving all its members’ fines in one

report and being able to pay them in a batch, NYTDA must now pay

each ticket individually. Id. ¶ 74. The resulting break in

communication caused NYTDA to miss payments on behalf of its

members and, in some cases, pay more than required. Id. ¶ 78.

6 The Schedule was amended in 2014 for the Stipulated Fines Program, and

again in 2018 for the Commercial Abatement Program.

At various points in the complaint, NYTDA acknowledges

that its own programming errors compounded these payment issues.

See Compl. ¶ 70 (conceding that “Plaintiff’s systems error

resulted in multiple simultaneous payment failures”); ¶ 78 (“The

[overpayment] problem was greatly exacerbated following

Plaintiff’s system upgrades beginning in early 2018. Despite

several modifications, Plaintiff’s systems failed to reconcile

thousands of similar ACH payments without timely alerting

Plaintiff to the issue.”); ¶ 131 (discussing “fines against late

payments resulting from inadvertent errors in Plaintiff’s

software and other systems for payments of its members parking

tickets, caused in part by Defendants’ multiple changes in the

City’s software”).

As a result of these issues, NYTDA failed to pay a

large number of its members’ fines, which incurred significant

late fees. NYTDA agreed (voluntarily) to cover these costs at

its own expense, given its role in the missed payments. Id. ¶

76-78. In connection with these efforts, NYTDA requested

additional data on the fine amounts owed and sought a

“reasonable agreement for payment.” Id. ¶ 5(3). Defendants

rejected both requests. Id. ¶¶ 81, 131.

4. Retaliation for Prior Lawsuits

NYTDA alleges on “information and belief” that

Defendants took these actions in retaliation for NYTDA’s prior

lawsuits against the City. Compl. ¶ 94 (“Upon information and

belief, the City has undertaken the unlawful actions against

Plaintiff and its members, at least in part, in relation for the

lawsuits which Plaintiff previously brought against the City.”).

NYTDA has sued Defendants for similar violations twice before.

Id. ¶ 95-96.

In 2011, NYTDA brought a class action alleging that

Defendants directed traffic agents to impose steeper fines on

Stipulated Fines Program members. See NYTDA, Inc. v. City of

New York, No. 11-CV-1836 (E.D.N.Y. 2014). Ruling on a motion

for judgment on the pleadings and separately on a motion to

intervene, Judge Garaufis made two findings relevant here.

First, he found that NYTDA had standing to bring claims on its

own behalf because it suffered injuries of its own, namely, lost

profits and the opportunity costs from “diverting its resources”

to contest these issues with the City. NYTDA, Inc. v. City of

New York, No. 11-CV-1836, 2013 WL 12358241, at *8 (E.D.N.Y. Aug.

28, 2013); see generally Nnebe v. Daus, 644 F.3d 147, 157 (2d

Cir. 2011) (organizations may bring Section 1983 actions on

their own behalf when they demonstrate a “perceptible

impairment” to their activities).7 But the association did not,

7 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations and internal quotation marks.

Judge Garaufis held, have standing based on its execution of the

Enrollment Agreements via the power of attorney. NYTDA, Inc.,

2013 WL 12358241, at *7.

Second, Judge Garaufis concluded that Plaintiff’s

constitutional claims were not all precluded by the enrollees’

agreement not to contest tickets. NYTDA, Inc. v. City of New

York, No. 11-CV-1836, 2014 WL 4274219, at *7 (E.D.N.Y. Aug. 28,

2014).8 He explained that enrollees waived their right “to

contest individual tickets” and certain process rights, but that

it was “unlikely” that they “intentionally waived” their

constitutional rights “with respect to the fair administration

of the program as a whole.” Id. at *6-7. Although Plaintiff

brought due process claims, those claims were not resolved on

the merits. Judge Garaufis certified the class for settlement

purposes and then entered a $14 million judgment pursuant to a

settlement agreement.

In 2014, NYTDA brought a second lawsuit, this time

alleging that Defendants misappropriated NYDTA’s proprietary

information for an online parking ticket adjudication program,

in violation of substantive due process and state law. NYTDA,

Inc. v. City of New York, No. 14-CV-5393, 2016 WL 614685

8 The constitutional claim in that case concerned DoF’s practice of

charging enrollees for for blocking a traffic lane, a type of ticket from

which NYTDA alleged commercial vehicles were exempt. NYTDA, Inc.,2013 WL

12358241, at *3.

(E.D.N.Y. Feb. 16, 2016). There, Judge Chen dismissed

Plaintiff’s constitutional claim and declined to exercise

supplemental jurisdiction over the state-law claims. Id. at *4.

5. NYTDA’s Injuries & Requested Relief

NYTDA alleges that it has “paid substantial sums to

the City for invalid parking ticket fines, unlawfully reverted

fines, and expenses related to towed vehicles and to

registration and license suspensions” issued to its clients, and

has suffered significant reputational harm. Compl. ¶ 89. As a

result, Plaintiff claims it is on the “brink of financial

collapse.” Id. ¶ 79.

NYTDA sues the City of New York; Jeffrey Shear (Deputy

Commissioner at DoF); Agnes Rusin (Director of Parking

Operations at DoF); and Maryann Cordova (who “administers” the

Fleet/Rental Unit at DoF, see Compl. ¶ 15). It seeks

compensatory damages, injunctive relief preventing Defendants

from taking certain adverse actions against its clients for non-

payment (including terminating them from the program or

certifying their vehicles for registration suspensions or non-

renewals) and from enforcing violation judgments against them,

including by towing the vehicles. Id. at 41. Plaintiff also

seeks declaratory relief and an order directing Defendants “to

correct all affected records,” “vacate affected judgments,”

release “booted, impounded, or seized vehicles,” refund all

fines, dismiss outstanding tickets that were tainted by

Defendants’ unlawful actions, and reinstate all affected clients

to the programs. Id. at 41-42.

Procedural History

At the outset of this case, Plaintiff sought the

injunctive relief described above on a preliminary basis. See

Mem. of Law in Support of Pl.’s Mot. for Order to Show Cause 34-

35, ECF No. 14-1. Before that motion was decided, the parties

entered a stipulation, agreeing to stay enforcement of certain

summonses — namely, summonses older than forty-five days, and

allegedly “invalid tickets” issued over the past two years —

during the progress of this case. Agreement and Consent Order ¶

1, ECF No. 25. In return, NYTDA agreed to make monthly payments

of $50,000 against outstanding judgment summonses. Id. ¶ 4.

The agreement provided that “if NYTDA fails to timely pay any

monthly payment, the DoF is released from any and all

obligations under this agreement and all judgment Summonses will

be subject to enforcement, which includes all remedies available

to DoF.” Id. ¶ 7.

On January 27, 2021, Defendants moved to vacate the

stay so that they could enforce the judgment summonses. ECF No.

39. Defendants declared that NYTDA had stopped paying the

monthly sum, in violation of the parties’ agreement. Given that

this order disposes of the case, the stay is vacated, by its own

terms, ten days from the issuance of this order, and Defendants’

motion to vacate is therefore moot. Agreement and Consent Order

2.

Analysis

Defendants moved to dismiss Plaintiff’s due process

claims (both substantive and procedural) on the grounds that

Plaintiff has not alleged the deprivation of a constitutionally-

protected interest. Defendants also asserted that Plaintiff

failed to identify similarly situated comparators for its equal-

protection claim. I granted Plaintiff leave to amend the equal-

protection claim; they filed their amended complaint on March

18, 2021. Defendants now renew their motion to dismiss.

A. Standing

Plaintiff brings this action on its own behalf, Compl.

¶ 11, and Defendants do not challenge its standing. As

discussed above, Judge Garaufis concluded that NYTDA had

standing to bring claims in its own right (as it claims here).

NYTDA, 2013 WL 12358241, at *7; see Nnebe, 644 F.3d at 156

(organizations may bring Section 1983 actions on their own

behalf to redress a “perceptive impairment” to their

activities). NYTDA does not claim standing to bring claims on

behalf of its members (which Judge Garaufis ruled it lacked). I

agree with Judge Garaufis’s ruling that Plaintiff has standing

to bring this suit on its own behalf because it has alleged

injuries sufficient to satisfy the Article III standard

promulgated by the Second Circuit in Nnebe.9 Among other things,

NYTDA alleges that as the registered broker of its members, it

suffered reputational damage and a resulting loss of membership,

and expended additional resources disputing the City’s policy

changes. Compl. ¶ 52. Under my reading of Nnebe, these

allegations suffice at this stage. See Nnebe, 644 F.3d at 156-

158.

B. Due Process

NYTDA alleges that Defendants’ administration of the

Programs violated its procedural and substantive due process

rights. To establish these claims, Plaintiff must allege that

Defendants deprived it of a constitutionally cognizable interest

in life, liberty, or property. E.g., Plaza Health Labs., Inc.

v. Perales, 878 F.2d 577, 581 (2d Cir. 1989); see also DLC Mgmt.

Corp. v. Town of Hyde Park, 163 F.3d 124, 130 (2d Cir. 1998)

(where a plaintiff claims it was deprived of property right in

violation of the substantive due process doctrine, the court

9 The Supreme Court’s subsequent decisions in Spokeo, Inc. v. Robins,

578 U.S. 330 (2016), and TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021),

might be read to call Nnebe’s holding into some question. I am bound by

Second Circuit precedent, however, even when it is in “tension” with

subsequent Supreme Court caselaw. Monsanto v. United States, 348 F.3d 345,

351 (2d Cir. 2003); see also United States v. Diaz, 122 F. Supp. 3d 165, 179

(S.D.N.Y. 2015).

must begin “by determining whether a constitutionally cognizable

property interest is at stake”).

“Liberty and property are broad and majestic terms,”

and “property” extends “well beyond actual ownership of real

estate, chattels, or money.” Bd. of Regents of State Colls. v.

Roth, 408 U.S. 564, 571-72 (1972). Still, when the asserted

property interest is a government benefit, “a person clearly

must have more than an abstract need or desire for it. He must

have more than a unilateral expectation of it. He must,

instead, have a legitimate claim of entitlement to it.” Id. at

577. “A person’s interest in a benefit is a ‘property’ interest

for due process purposes if there are such rules or mutually

explicit understandings that support his claim of entitlement to

the benefit and that he may invoke it at a hearing.” Perry v.

Sindermann, 408 U.S. 593, 601 (1972).

These entitlements may be created, and their contours

defined, under “an independent source such as state law” (or, as

in this case, New York City’s law). Paul v. Davis, 424 U.S.

693, 709 (1976). Federal law, however, determines whether these

interests, once extant, are constitutionally protected. See

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978)

(where recipient of public utility service had property interest

in service where state law required cause for termination, the

Court noted that “[a]lthough the underlying substantive interest

is created by ‘an independent source such as state law,’ federal

constitutional law determines whether that interest rises to the

level of a ‘legitimate claim of entitlement’ protected by the

Due Process Clause”).

NYTDA claims to have been deprived of three property

interests: its interests in (1) “its status as a registered

brokerage company with DoF,” (2) “the fair and transparent

administration of the Programs under New York State law and New

York City Rules,” and (3) “the monies which were unlawfully

appropriated from it by Defendants’ deliberate policies” of

pursuing invalid tickets and excessive fines. Compl. ¶ 130.10

According to Plaintiff, these entitlements “arise from NY and

NYC laws and rules that govern the requirements for valid

parking tickets, calculation of fines and penalties for such

tickets, and the right to payment plans established by DoF.”

Pl. Mem. in Opp. to Mot. to Dismiss (“Pl. Mem. in Opp.”) 23, ECF

No. 56.

10 Plaintiff’s opposition to the motion to dismiss suggests, in a single

sentence, that it has an additional property interest in “a payment

arrangement for late payments.” Pl. Mem. in Opp. to Mot. to Dismiss (“Pl.

Mem. in Opp.”) 23, ECF No. 56. Plaintiff does not mention this property

interest in the amended complaint, nor explain anywhere what it means. Even

if the Court considered this a validly pleaded claim, Plaintiff points to no

authority to support the idea that it has a cognizable property interest in a

payment arrangement. This claim fails for the same reasons as its claim of

entitlement to fair administration of the Programs does: there is no state

law or rule restricting Defendants’ discretion to offer or refuse a payment

plan. Section 39.07(c) merely provides that “upon a showing of good cause, .

. . any additional penalty assessed . . . may be abated in whole or in part.”

And Section 39.10 (“Decisions and Judgments”) imposes no restrictions on

Defendants’ freedom to collect full judgments.

1. Status as a Broker

Plaintiff alleges that Defendants deprived it of its

“status as a registered brokerage company with DoF.” See Compl.

¶¶ 122, 139; see generally 19 RCNY § 39.09 (providing terms for

registration of brokers). Defendants do not dispute that NYTDA

has a constitutionally recognized interest in its brokerage

license, but argue that NYTDA has not been “deprived” of that

interest because it still maintains its status a broker with the

City. Defendants are correct; Plaintiff has failed to establish

the requisite degree of deprivation.

Due process protects the “right of occupational

choice” in some circumstances. Hu v. City of New York, 927 F.3d

81, 102 (2d Cir. 2019). Courts have held that citizens possess

a “property interest” in certain professional licenses, at least

when the government’s power to revoke or suspend the license is

constrained by law or regulation (for instance, when state law

requires “cause” for termination). E.g., Barry v. Barchi, 443

U.S. 55, 64 (1979) (horse-racing license); Spinelli v. City of

New York, 579 F.3d 160, 169 (2d Cir. 2009) (firearm-dealing

license).

To establish a deprivation of their interest in

occupational choice, however, plaintiffs must establish “a

complete prohibition of the right to engage in a calling.” Conn

v. Gabbert, 526 U.S. 286, 292 (1999); United States v. Farhane,

634 F.3d 127, 137 (2d Cir. 2011) (explaining Conn’s holding that

“due process is violated only by complete prohibition of the

right”); Hu, 927 F.3d at 102 (“The Supreme Court, this Circuit,

and the other Circuits addressing the issue have all indicated

that the right of occupational choice is afforded Due Process

protection only when a plaintiff is completely prohibited from

engaging in his or her chosen profession.”). Thus, courts have

concluded that suspensions or revocations of a professional

license must comport with due process. E.g., Barchi, 443 U.S.

55 (suspension); Spinelli, 579 F.3d 169 (revocation); New York

State Trawlers Ass’n v. Jorling, 16 F.3d 1303, 1311 (2d Cir.

1994) (state may not “deny” or “revoke” lobster-trawling permits

without adequate process); Martine’s Serv. Ctr., Inc. v. Town of

Wallkill, 554 F. App’x 32, 34 (2d Cir. 2014) (exclusion from

list of approved towing services).

Here, NYTDA does not allege that Defendants suspended

or revoked its license. Instead, the association argues that

Defendants’ actions have “effectively prevent[ed] Plaintiff’s

[sic] from exercising its rights as a broker.” Pl. Mem. in Opp.

24. The complaint does not, however, come close to plausibly

alleging a constructive suspension or revocation of NYTDA’s

brokerage license or any “complete prohibition” of its

occupational choice. Indeed, by NYTDA’s own admission, it still

is operating, collecting membership dues, and serving its

members. See generally Compl. (passim). Nor does NYTDA cite

any authority showing that a lesser deprivation suffices.11

Because these allegations are insufficient under Conn and its

progeny, Plaintiff’s claims based on the deprivation of its

“status” as a registered broker are dismissed.

2. Fair and Transparent Administration of the Programs

NYTDA next alleges that it “has a property interest .

. . in the fair and transparent administration of the Programs.”

Compl. ¶ 122; see also Pl. Mem. in Opp. 25-26. NYTDA’s brief is

not a model of clarity on how Defendants deprived it of this

right or what specific process it believes was due. Read

generously, however, the complaint suggests that Defendants did

so in three ways: first, by exercising “unfettered discretion to

modify chargeable offenses” in the Programs — presumably a

reference to the decision to enforce tickets with missing or

11 NYTDA does allege that it is on the “brink” of collapse. See Compl.

¶ 79 (“It was this policy [of ‘unlawful fine reversions’] in violation of

clearly prescribed Rules that has ultimately brought Plaintiff to the brink

of financial collapse.”). This phrasing evokes a dictum in Hu, where the

Second Circuit noted that “nothing in the amended complaint plausibly

suggests that the plaintiffs have been driven out of the construction

business, or even that they are on the verge of shutting down.” See 927 F.3d

at 103 (emphasis added). But NYTDA does not plead sufficient factual matter,

accepted as true, to render this a plausible allegation under Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556 U.S.

662, 663 (2009); indeed, NYTDA says nothing more specific than the quoted

language above about the likelihood or timing of any insolvency. And Hu

makes clear, in any event, that “business losses alone do not implicate the

Due Process right of occupational choice.” Id. at 102. Moreover, Second

Circuit caselaw is clear that the due process clause does not “preclude

government actions that adversely affect a business’s profitability.” JWJ

Indus., Inc. v. Oswego Cty, 538 F. App’x 11, 14 (2d Cir. 2013).

inaccurate plate-type information. Pl. Mem. in Opp. 26.

Second, by “disregard[ing] the [applicable] penalty provisions

contrary to State law and its own official Rules.” Id. And

third, by changing its computer systems in ways that caused

NYTDA to miss payments and its clients to incur late fees — late

fees that NYTDA voluntarily absorbed. Compl. ¶¶ 73, 77, 87.

NYTDA cites no authority for the proposition that a

property interest in the fair and transparent administration of

law is cognizable in its own right, and it is not: the due-

process clause is not a general guarantee of the “fair”

administration of state law. Instead, a due-process claim

requires the identification of a separate, identifiable property

interest (like money or a license) that gives rise to the

obligation to administer a regulatory scheme fairly before

depriving the holder of that interest. See, e.g., New York

State Trawler’s Ass’n, 16 F.3d at 1311 (“Constitutional

cognizance of a property interest in a vocational license

requires states to administer licensing schemes fairly.”); Flood

v. Cnty. of Suffolk, 820 F. Supp. 709, 713 (E.D.N.Y. 1993)

(“When determining whether a plaintiff has a property interest

in the fairness of an application process, the Court must look

to the nature of the interest at stake in the proceeding, not

the nature of the proceeding itself.”); cf. Dangler v. Yorktown

Cent. Schs., 771 F. Supp. 625, 628 (S.D.N.Y. 1991) (because

plaintiff lacked property interest in membership in National

Honor Society, plaintiff also lacked property interest “in the

fairness of the selection process” for such membership).

A plaintiff can, in theory, articulate a property

interest in a municipality’s performance of a particular service

in a particular way, but only if (among other things) the

government’s performance of that service is truly non-

discretionary. See Town of Castle Rock v. Gonzales, 545 U.S.

748, 766 (2005) (holding that the recipient of a state-issued

protective order had no property interest in its proper

enforcement). Put differently, “a benefit is not a protected

entitlement if government officials may grant or deny it in

their discretion.” Id. at 756; see also Senape v. Constantino,

936 F.2d 687, 699 (2d Cir. 1991) (“In light of the broad

discretion afforded state officials charged with administering

the Medicaid program, a provider has no reasonable claim of

entitlement to continued enrollment in the program.”); Jenkins

v. N.Y.C. Dep’t of Homeless Servs., 643 F. Supp. 2d 507, 512

(S.D.N.Y. 2009) (no property interest in placement within

state’s homeless shelter program because “broad discretion is

given to local authorities in assigning the homeless to

shelters”).

Missing and Inaccurate Plate-Type Information. Given

this principle, NYTDA cannot show that it (or its members) had a

property interest in a free pass for tickets with missing or

inaccurate plate-type information. Plaintiff is apparently

arguing that because the City used to dismiss such tickets, it

was obligated to do so in perpetuity. See Pl. Mem. in Opp. 13

(“DoF established a policy whereby tickets with incorrect or

missing ‘plate types’ were unenforceable . . . . Beginning in

June 2019, without any notice, Defendants reversed its [sic]

established policy of excluding invalid parking tickets with

incorrect or missing plate types”).

Under the plain and unambiguous language of the

enrollment agreement, however, DoF unquestionably had the

discretion to preclude challenges based on plate-type prior to

2019. See Enrollment Agreement ¶ 7. It may not have enforced

this right, but Plaintiff cites no authority for the proposition

that a municipality’s voluntary under-enforcement creates a

property interest under the Fourteenth Amendment. Cf., e.g.,

Washington Tour Guides Ass’n v. National Park Service, 808 F.

Supp. 877, 882 (D.D.C. 1992) (“Simply put, the government may

not be estopped from enforcing the law, even following an

extended period of no enforcement or underenforcement.”).

Plaintiff’s claim is irreconcilable with both (a) the

cases discussed above, which unmistakably establish that the

government can withdraw a benefit that it provides on a

discretionary basis and that it has stated it may amend or

withdraw at any time; and (b) the concessions Plaintiff made in

enrolling in the programs — that Plaintiff would accept the

City’s determinations on a summons as final and would not seek

to challenge, contest, or otherwise adjudicate that summons,

among other things. Enrollment Agreement ¶ 2. In the most

basic sense, Plaintiff is trying to have it both ways: receiving

an across-the-board discount on all tickets, and still be able

to challenge tickets with missing or inaccurate plate types.12

Plaintiff denies this. It says, instead, that it is

challenging a “fundamental procedural irregularity,” Compl.

¶ 5(1), and that the enrollment agreement’s waiver provision

does not apply to “an arbitrary and irrational course of conduct

without authority under law.” Id. ¶ 7. But sweeping adjectives

cannot mask the fact that Plaintiff is seeking to challenge a

large number of individual, allegedly-deficient tickets by

dressing those challenges up in the language of due process. As

Defendants point out (and Plaintiff does not dispute), to

satisfy NYTDA’s “expectation” that tickets with missing or

inaccurate plate-type information will be dismissed, DoF would

be required to either (a) accept NYTDA’s representations about

12 The City continues to make voluntary concessions to NYTDA and other

enrollees in the program, even post- the initiation of this litigation. See,

e.g., Def. Mem. in Supp. 12 n.2 (“Without admitting any error, DoF is

proceeding with the dismissals and refunds of the entire population of

parking tickets enforced retroactively, including those that were issued to

plaintiff’s clients . . . .”).

which tickets were deficient, or (b) conduct some individual

“review of each ticket to determine if it complies” with the

plate-type requirement. Def. Mem. in Supp. 22 n.9. That

individual review would, of course, be inconsistent with the

fundamental purpose of the Programs. Id. (citing Bolofsky v.

City of New York, No. 100049/2014, at 10 (N.Y. Sup. Ct. Oct. 29,

2014), aff’d 46 N.Y.S.3d 59 (App. Div. 2017)).

Allegedly Excessive Fines and Penalties. Nor can

Plaintiff assert a “fair administration” property interest in

DoF’s penalty schedule remaining unchanged in perpetuity. Under

the terms of the Program, which NYTDA’s members freely join (and

may leave at any time), “[p]ayment of the amount reported must

be made within 45 days of system entry date.” Enrollment

Agreement ¶ 4. More generally, in signing the Agreement,

enrollees “agree to stipulated fines, as determined by Finance.”

Id. ¶ 2. Participation in the program “may be terminated at any

time by either party, for any reason.” Id. ¶ 8; see also 19

RCNY § 39-03.1(d). These provisions reflect DoF’s broad

discretion to implement the penalty schedule it chose in 2013.

See Letter dated July 1, 2013 from Defendant Cordova to

Plaintiff.

Even if NYTDA had a cognizable property interest here,

NYTDA was not deprived of any process due because the City

provided notice — via defendant Cordova’s letter — that fines

would revert to their full amount upon failure to timely pay

fines within forty-five days. Id. at 3. The letter reminded

Plaintiff that it (and its members) could leave the Program at

any point if they did not wish to comply with the new schedule.

Id. And even if there is an inconsistency between the schedule

set out in Cordova’s letter, on the one hand, and the schedule

in Section 39-03.1, on the other, the latter schedule is itself

a DoF pronouncement — one that DoF has the authority to change

as it sees fit.13

Moreover, it is worth noting that Plaintiff has not

alleged direct damages arising from the shift in the City’s

treatment of plate-type challenges or its allegedly excessive

13 This claim therefore is not, for instance, an example of an executive

agency alleged to be applying its rules in a manner that violates a

legislative pronouncement.

In any event, while the fine schedule that Plaintiff complains of

(and as laid out in the 2013 Cordova Letter) is not identical to the fine

schedule set out in 19 RCNY § 39-03.1, it is not contradictory. Section 39-

03.1(e)(4) ‒ the provision on which this specific complaint hinges ‒

discusses the necessary condition triggered when a vehicle owner fails to pay

a stipulated fine: that failure “will result in the entry of a judgment

against the owner in the original unreduced fine amount.” That provision, by

its terms, does not create the only point at which an owner becomes

responsible for the unreduced fine amount. Rather, it describes the details

of the judgment entered after 142 days. This is not inconsistent with the

City’s authority to revert the stipulated fine to the unreduced amount once a

vehicle owner fails to timely pay within forty-five days of the ticket’s

issuance. Such a reading of the regulation is consistent with Plaintiff’s

allegations about the development of the Stipulated Fines program. Plaintiff

alleges that the City has collected “excessive and unauthorized fines and

penalties” since “at least March 6, 2014,” the very date the 2014 revised

version of Section 39-03.1 became effective. Compl. ¶ 69. This is

significant because Plaintiff admits that before the 2014 version of the

regulation came into effect, “the reduced fine reverted to the original

amount upon non-payment and then proceeded to collect late fees.” Id. ¶ 64.

fines and penalties. The Programs are designed for the benefit

of commercial vehicle owners in the City, not an intermediary

such as Plaintiff. To be sure, Plaintiff has found a business

opportunity in efficiently managing parking tickets for owners

of commercial vehicles. That position may confer standing, per

Nnebe, but it does not give Plaintiff a property interest in a

program any more than the general taxpayer possesses a property

interest in the administration of any government program for

purposes of a due process claim. See Harrington v. Cnty of

Suffolk, 607 F.3d 31, 35 (2d Cir. 2010) (no individual property

interest in police investigation because “such universal

benefits are not property interests protected by the Due Process

Clause”). Plaintiff is advancing money to pay tickets it

believes violate due process for their lack of plate-type

information, but it is not liable to pay those tickets and it is

ultimately reimbursed for any payments it makes, notwithstanding

its voluntary choice to pay late fees or penalties for its

members. Compl. ¶ 77-78. And as Defendants point out,

Plaintiff asserts (and has) standing only to sue for its own

injuries, not to invoke the power of attorney to seek to

vindicate the injuries suffered by its members. See Def. Mem.

in Supp. 20 n.7 (citing Compl. ¶ 11; and then citing NYTDA,

Inc., 2013 WL 12358241, at *7).

Computer Systems Changes. Plaintiff’s complaint about

unfair and non-transparent administration of the Programs also

seems to be based on the City’s computer-programming changes,

which NYTDA describes as “chaotic and ad hoc.” See Compl. ¶ 87

(“When [DoF] changes its computer systems and procedures

regarding tickets, it is done without notice and Plaintiff and

its members suffer the consequences.”). To the extent this is

true, Plaintiff has failed to state a plausible claim under

Twombly and Iqbal. Among other things, negligent action cannot

be the basis for a due-process claim, see Shannon v. Jacobowitz,

394 F.3d 90, 94 (2d Cir. 2005), and NYTDA does not allege (at

all, let alone plausibly) that DoF modified its computer systems

with the intent to cause NYTDA to miss payment obligations.

3. Loss of Monies

Plaintiff alleges that it has a property interest in

the money it paid to DoF on behalf of its members. It is

undisputed that vehicle owners have a property interest in money

exacted for parking tickets. See, e.g., Farina v. MTA, 409 F.

Supp. 3d 173, 206 (S.D.N.Y. 2019); Rackley v. City of New York,

186 F. Supp. 3d 486, 480-81 (S.D.N.Y. 2002) (parking fines and

vehicle seizures implicate property interests). But NYTDA is

not a vehicle owner. Its losses derive solely from voluntary

agreements that it reached with its members. Voluntary payments

on behalf of its members such as these do not give rise to

constitutional claims. Cf. Dowd v. DeMarco, 314 F. Supp. 3d

576, 586 (S.D.N.Y. 2018) (no support for claim that “the

voluntary expenditure of attorneys’ fees in one’s own defense .

. . qualifies as deprivation of a protected property right”);

Bonura v. Chiarlitti, No. 8-CV-10190, 2010 WL 11712789, at *13

(S.D.N.Y. Mar. 31, 2010) (“[I]n general, a public employee who

resigns voluntarily may not claim that he or she was deprived of

employment without due process.”). Even if they did, this

adverse effect is more indirect than the one in O’Bannon v. Town

Court Nursing Center, which caused involuntary harm to third

parties, unlike the self-imposed effects Plaintiff suffered

here. 447 U.S. 773, 775 (1980) (nursing home residents had no

property interest in government’s withdrawal of funds from

nursing homes, even though the withdrawal resulted in the

closing of the home and hardship on the residents). The

reasoning in O’Bannon informs my conclusion here: there is a

“simple distinction between government action that directly

affects a citizen’s legal rights, or imposes a direct restraint

on his liberty, and action that is directed against a third

party and affects the citizen only indirectly or incidentally.”

Id. at 788.

NYTDA has not asserted associational standing. It

only claims standing to sue for its own injuries. Compl. ¶ 11

(“Plaintiff has standing to bring this action for its own

financial and reputational injuries.”). Any loss of its own

money is not, under the circumstances, the direct result of

government action. NYTDA proclaims that its “revenues are

derived from its Members.” Pl. Mem. in Opp. 27. These losses

of revenues, even if substantiated, are too removed from the

government action complained of here. See Progressive Credit

Union v. City of New York, 889 F.3d 40, 53 (2d Cir. 2018) (no

property interest in decreased market value of taxi medallions

as a result of loosening of taxi licensing regulations).

Plaintiff’s losses are, instead, a product of its customers

concluding that they are not getting the benefit of the bargain

they had hoped for when signing up with Plaintiff.

Moreover, even assuming that NYTDA has a property

interest in the money it paid on behalf of members, for the same

reasons the Court has outlined above, NYTDA has not been

unconstitutionally deprived of any process due. NYTDA

voluntarily entered into a program with the knowledge that DoF

would set the terms and could even terminate the program at any

point. DoF provided notice through the 2013 Cordova letter that

the fines would revert to the normal amount once payment became

untimely. And DoF had complete discretion to enforce its policy

of collecting fines when plate types were inaccurate or missing

(or, if it chose, to remove Plaintiff from the program for any

reason at any time). Most importantly, Plaintiff voluntarily

waived its right to contest these tickets and penalties.14

* * * *

At bottom, Plaintiff’s claims sound less in due

process protected by the constitution and sound more in the

realm of dissatisfaction about its perceived benefit of the

bargain in its agreements with the City. If NYTDA thinks the

City is violating its obligations under the enrollment agreement

such that the City is in breach of contract, it may find remedy

in state court (as set forth in note 13, supra).15

C. Equal Protection

After oral argument, the Court granted Plaintiff leave

to amend its complaint for the purpose of supplementing its

equal protection claims to add allegations about the specific

14 It may well be that NYTDA believes that DoF’s actions exceeded its

rights under the enrollment agreement. But states and municipalities enter

into thousands of contracts every year, and it is not the case that every

alleged breach of contract may be the subject of a due process claim. See

Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189, 195-97 (2001)

(subcontractor to company contracting with state entity had no due process

claim for alleged breach because “California law affords respondent

sufficient opportunity to pursue that claim in state court”).

15 Plaintiff also purports to bring substantive due process claims on

the same alleged facts as its procedural due process claims. Like a

procedural due process claim, “[t]o establish a substantive due process claim

a plaintiff must demonstrate a deprivation of a protected property interest.”

Knox v. Town of Southeast, 599 Fed. App’x 411, 413 (2d Cir. 2015). The

reasons that Plaintiff’s procedural due process claims fall short apply with

equal force to its substantive due process claims. In addition, a

substantive due process claim requires more: the deprivation of the property

interest must be “so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.” Id. Plaintiff has not established this

prong of a substantive due process claim, given the analysis above.

entities purportedly receiving disparate treatment. See Mem. Of

Law in Supp. of Mot. to Amend Compl. 3, ECF No. 43-3. The

amended complaint alleges that Defendants were treated

unfavorably relative to only one broker identified by name —

Glen Bolofsky (and certain companies he operates). Compl. ¶ 99.

NYTDA alleges (again on “information and belief”) that DoF

favors Bolofsky by allowing him to challenge tickets, not

imposing fines and penalties on his companies, and allowing his

clients to accumulate fines and penalties over many years

without enforcing judgments. Id. ¶¶ 105-108.16 NYTDA admits,

however, that Bolofsky and his clients are not part of the

Programs. See Compl. ¶¶ 107, 113-14, 118; see also Mem. in Opp.

34 (“The comparators are other brokers, specifically Greg

Bolofsky and his companies, and all the other recipients of

parking tickets who are not enrolled in the reduced fines

Programs.”).

For obvious reasons, this dooms NYTDA’s equal

protection claim. See Progressive Credit Union, 889 F.3d at

16 Much of Plaintiff’s equal protection claim is grounded in threadbare

factual recitations made “upon information and belief.” See, e.g., Compl.

¶¶ 98-99, 106, 118. Plaintiff alleges that it is treated differently than

comparators, but provides little in the way of factual allegations as to how

or why the City is selecting it out from its purported comparators. See

Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (“The Twombly

plausibility standard, which applies to all civil actions, does not prevent a

plaintiff from pleading facts alleged ‘upon information and belief’ where the

facts are peculiarly within the possession and control of the defendant or

where the belief is based on factual information that makes the inference of

culpability plausible.”).

50-51 (alleged comparators ‒ “for hire-vehicle” services like

Uber or Lyft ‒ were not “similarly situated” to medallion

taxicabs because they acquire customers in different ways such

that government had basis for different regulatory treatment);

Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59-60

(2d Cir. 2010) (developer of large housing tract not “similarly

situated” to developers of single homes, renovated projects, or

commercial buildings for equal-protection claim involving

municipal permitting process).

Plaintiff does not allege that it is being

discriminated against because of its membership in a protected

class. Instead, NYTDA argues that the City discriminates

against it by “deliberately and selectively enforcing invalid

tickets and imposing unlawful fines” when compared with its

treatment of “other similarly situated parking ticket brokers.”

Compl. ¶ 5(4). Plaintiff goes on to claim that it is a “class

of one” for purposes of its equal protection claim. Id. ¶ 120.

These equal protection theories are judged under the rational-

basis standard. See Progressive Credit Union, 889 F.3d at 49;

Plaza Motors of Brooklyn, Inc. v. Cuomo, No. 20-CV-4851, 2021 WL

222121, at *5 (E.D.N.Y. Jan. 22, 2021).

The Second Circuit recognizes two pathways for

establishing equal protection claims based on alleged selective

enforcement. See Hu, 927 F.3d at 91. While both standards

require a showing that similarly-situated comparators were

treated differently, the level of similarity differs between the

two. (Plaintiff claims that it is not required to identify

comparators in a “class of one” claim at this stage, Pl. Mem. in

Opp. 36-37, but this is incorrect.) Olech (“class-of-one”)

claims,17 which are based solely on disparate treatment between

similarly-situated comparators, require a showing of “extremely

high” similarity, such that “no rational person” could regard

the disparate treatment as reflecting “the basis of a legitimate

government policy” or a “mistake.” Hu 927 F.3d at 94. LeClair

claims18 (for bad-faith selective enforcement), by contrast,

require a lesser showing that the comparators bear a “reasonably

close resemblance,” meaning they are “similarly situated in all

material respects” ‒ but require an additional showing that the

“selective treatment was motivated by an intention to

discriminate on the basis of impermissible considerations, such

as . . . a malicious or bad faith intent to injure the person.”

Id. at 96.

Even assuming Plaintiff has adequately alleged the

second element of a LeClair claim (because it claims Defendants

retaliated against Plaintiff for filing lawsuits), it has not

17 See generally Village of Willowbrook v. Olech, 528 U.S. 562 (2000).

18 See generally LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980).

identified any comparators that are “similarly situated in all

material respects” (LeClair) – let alone ones that exhibit an

“extremely high” degree of similarity (Olech). Nor can it, if

the proposed comparators are those outside the relevant

Programs. Given the chance to amend its complaint to provide

more evidence of comparators, Plaintiff again offered only

examples outside the Programs. See Compl. ¶¶ 107, 113, 118; see

also Pl. Mem. in Opp. 34, 36. Accordingly, Defendants’ motion

to dismiss this claim must be granted.

State-law Claims

Because I have dismissed Plaintiff’s federal claims, I

decline to exercise supplemental jurisdiction over the remaining

state-law claims. See also Oneida Indian Nation of New York v.

Madison Cnty., 665 F.3d 408, 437 (2d Cir. 2011) (“[W]e have

repeatedly said that if a plaintiff's federal claims are

dismissed before trial, the state law claims should be dismissed

as well.”); 28 U.S.C. § 1367(c)(3) (“[D]istrict courts may

decline to exercise supplemental jurisdiction over a claim . . .

if . . . the district court has dismissed all claims over which

it has original jurisdiction.”).

Conclusion

For the reasons stated above, the Court grants

Defendants’ motion in its entirety. The Clerk of the Court is

respectfully directed to enter judgment and close this case.

SO ORDERED.

__/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: March 18, 2022

Brooklyn, New York