The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JEROME NORTON,
Plaintiff,
MEMORANDUM AND ORDER
-against- 13-CV-3520 (JMA) (AYS)
TOWN OF BROOKHAVEN, COUNTY OF
SUFFOLK, ROBERT QUINLAN, DAVID J.
MORAN, JENNIFER LUTZER, JUSTIN
FOLBER, WILLIAM POWELL, and VALERIE
BISCARDI, all individually and in their official
capacity,
Defendants.
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AZRACK, United States District Judge:
Plaintiff, Jerome Norton (“Plaintiff”), commenced this action on June 20, 2013, against the
Town of Brookhaven and various officers and employees of the Town (collectively, the “Town”)
pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2201, and New York State law. (Compl., ECF No. 1.)
After extensive settlement negotiations, all claims alleged in the Third Amended Complaint were
settled by the stipulation dated October 18, 2017, except for two aspects of the Tenth Cause of
Action for a declaratory judgment against the Town: (1) that the fire and safety provisions in
Chapter 82 of the Town Code are more restrictive than the State’s Uniform Code and thus require
further state approval prior to becoming effective (the “Uniform Code Claim”); and (2) that
Chapter 82 is a zoning ordinance that required referral to the Suffolk County Planning Commission
(“SCPC”) for review and recommendation under Section 239-m of the New York General
Municipal Law prior to being enacted (the “Section 239 Claim”).
On June 2, 2021, the Town moved for judgment on the pleadings and for summary
judgment to dismiss Plaintiff’s remaining declaratory judgment claims. (ECF No. 153.) On
October 22, 2021, the Court referred the motion to Magistrate Judge Anne Y. Shields for a Report
and Recommendation (“R&R”). (Electronic Order, 10/22/2021.) Judge Shields issued an R&R
dated January 27, 2022, which recommends that Town’s motion be treated as a motion for
judgment on the pleadings – not as one for summary judgment – and that, as such, the motion be
denied with respect to the argument that the Court lacks subject matter jurisdiction over the action,
but granted overall because (1) the Uniform Code Claim is deemed abandoned; and (2) the Section
239-m claim is time-barred. (ECF No. 156.)
Plaintiff filed timely objections to the R&R, to which Defendant filed a response in
opposition. (ECF Nos. 158, 159.) After conducting a review of the full record (including the
motion papers, R&R, and objections,) and applicable law, the Court adopts Judge Shields’s R&R
in its entirety as the opinion of the Court.
In reviewing a magistrate judge’s report and recommendation, a court must “make
a de novo determination of those portions of the report or . . . recommendations to which
objection[s] [are] made.” 28 U.S.C. § 636(b)(1)(C); see also Brown v. Ebert, No. 5-CV-5579,
2006 WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006). The Court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C). Those portions of a report and recommendation to which there is no specific
reasoned objection are reviewed for clear error. See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48,
51 (E.D.N.Y. 2008).
The Court finds no clear error in the portions of Judge Shields’s R&R to which there are
no specific objections. In particular, Judge Shields recommended the Town’s motion be treated
as a motion for judgment on the pleadings and that the motion be denied with respect to the
argument that the Court lacks subject matter jurisdiction over the action. Applying clear error
review, the Court adopts Judge Shields’s recommendations on these issues.
I next address the portions of the R&R to which the parties have objected. For the
objections, I have undertaken a de novo review of the record, the R&R, the objections, and the
opposition. For the reasons stated below, the Court denies those objections and adopts the R&R.
First, Plaintiff argues that his Section 239-m claim is not time-barred. Judge Shields
already addressed Plaintiff’s arguments regarding the statute of limitations. The Court agrees with
Judge Shields’s well-reasoned analysis of this issue. Plaintiff also argues that the Town is estopped
from arguing that this claim is barred by the statute of limitations because the stipulation entered
into by the parties states that: “Plaintiff shall be entitled to, but is not required to, submit to the
Court a motion for a declaratory judgment seeking a determination of the issue of the extent to
which Town Code Ch. 82: constitutes a lawful exercise by the Town of the Town’s powers
pursuant to the requirements of New York General Municipal Law §239-m.” (Stipulation at ¶
7(c), ECF No. 89.) While the stipulation allows Plaintiff to bring a motion for a declaratory
judgment regarding this claim, it does not limit, in any fashion, the defenses or arguments that the
Town could make. Accordingly, the Court finds that the Town was not estopped from raising its
argument regarding the statute of limitations. Finally, with respect to Plaintiff’s argument that he
should be allowed to challenge certain portions of Chapter 82 that were amended after its
enactment in 1999 because they are not time-barred, the Court finds this argument is without merit.
The portions of the code that Plaintiff challenged in his third amended complaint were enacted in
1999. To the extent, Plaintiff attempts to add new allegations regarding other portions of the code,
the Court declines to consider them.
Second, with respect to the Uniform Code claim, Plaintiff admits that he did not challenge
the Town’s argument as to this claim in his opposition. (Pl. Obj. at 22.) Accordingly, the Court
agrees that this claim is abandoned. To the extent, Plaintiff alleges an estoppel argument regarding
this claim, it also fails.
Based on the foregoing, the Court adopts Judge Shields’s R&R in its entirety as the
opinion of this Court. Accordingly, the Court grants Defendant's motion for judgment on the
pleadings. The Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: March 31, 2022
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE