20 Dogwood LLC v. Village of Roslyn Harbor

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

20 DOGWOOD LLC, ABOLFAZLE ZADE, and NASRIN

BESHARATI,

Plaintiffs,

22-CV-4047 (ARR) (LGD)

-against-

NOT FOR ELECTRONIC

VILLAGE OF ROSLYN HARBOR; STEVEN R. OR PRINT PUBLICATION

FELLMAN, Individually and as Building Inspector for the

Village of Roslyn Harbor; and MARLA WOLFSON, OPINION & ORDER

Individually and as Village Clerk for the Village of Roslyn

Harbor,

Defendants.

ROSS, United States District Judge:

Plaintiffs, 20 Dogwood LLC, Abolfazle Zade, and Nasrin Besharati, bring this action

alleging violations of federal and state law against the Village of Roslyn Harbor (the “Village”),

Steven R. Fellman, and Marla Wolfson (collectively, “defendants”). Plaintiffs principally allege

that their rights were violated when defendants harassed them and used construction permitting

enforcement to drive them from Roslyn Harbor. Before me is defendants’ motion to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons that follow,

the motion to dismiss is granted.

BACKGROUND

The following facts are drawn from plaintiffs’ amended complaint and presumed to be true.

Abolfazle Zade and Nasrin Besharati (the “Zades”) are a married couple who resided in a house

located at 20 Dogwood Avenue in Roslyn Harbor (the “residence” or the “property”) during the

time relevant to this suit. Am. Compl. ¶¶ 1, 4, ECF No. 13. The residence was owned by plaintiff

20 Dogwood LLC (the “LLC”). Id. ¶ 1.

The Zades, an elderly couple originally from Iran, moved into the residence when it was

acquired by the LLC in 2018. Id. ¶¶ 10, 12. Over time, the Zades obtained various building permits,

including a May 2018 permit to renovate the interior, an August 2018 permit to build a front entry

and enclose a rear porch, and a September 2019 permit to build a retaining wall. Id. ¶¶ 13, 14, 17.

The conflict with defendants began in September 2018, when trees on the property fell during a

hurricane. Id. ¶ 15. Marla Wolfson, the Roslyn Harbor Village Clerk, accused plaintiffs of

unlawfully removing the trees, though the Zades were able to provide photographic evidence that

the trees fell in the storm. Id. ¶ 16. In May 2020, plaintiffs applied for a permit to remove five

additional trees, which were either dead or dangerously close to their home. Id. ¶ 18. Wolfson

denied the application to remove two trees close to the home but approved the removal of the other

three trees. Id. Plaintiffs unsuccessfully appealed the denied permit to the Village Board, and then

appealed a second time. Id. ¶¶ 19–20. A permit to remove the five trees was eventually issued

when the Village Board overturned Wolfson’s denial in August 2020. Id. ¶¶ 21–23.

Plaintiffs’ successful appeal of the tree removal permit apparently angered Roslyn Harbor

Building Inspector Steven Fellman, who embarked on a two-year campaign of harassment against

the Zades––a campaign allegedly motivated by the Zades’ age and ethnicity. Id. ¶ 24. First, when

plaintiffs were trying to bring in soil to fill the holes left by the removed trees, Fellman came to

the property, yelled at Besharati, mocked her accent, and issued a stop work order and ticket for

doing construction without a building permit. Id. ¶¶ 27–28; Decl. of Steven C. Stern (“Stern

Decl.”), Ex. C, ECF No. 19-3. Fellman filed a corresponding information with the Village Justice

Court stating that he observed site grading and filling without a permit in violation of the Village

Code. Stern Decl., Ex. D, ECF No. 19-4.1 Fellman also accused plaintiffs of building a retaining

wall and deck without permits and insisted that the retaining wall and deck were too long, even

though plaintiffs had received permits for the work that did not specify the length of the wall or

deck. Id. ¶¶ 29–30. Defendants proceeded to wrongfully insist on payment of additional fees: for

a topical survey, for topsoil review by the Village engineer, and for renewed deck and retaining

wall permits. Id. ¶¶ 31, 32, 36. Finally, defendants imposed a fine on plaintiffs for not renewing

the permits. Id. ¶ 37.

Though plaintiffs eventually paid to renew the permits, their “nightmare” continued when

Fellman stated that plaintiffs’ proposed topsoil addition would impact storm water drainage.

Id. ¶¶ 38–40. In response to questions about his assessment, Fellman “became very angry” and

refused to allow Zade to enter the Building Department to see his permit application, ridiculing

Zade’s accent in the process. Id. ¶¶ 41–43. When plaintiffs eventually obtained their permit file,

they found that defendants had “illegally altered it by drawing in a retaining wall and attaching it

to the permit application.” Id. ¶ 44. Plaintiffs complained to the Roslyn Harbor mayor about

Fellman’s conduct, but no action was taken. Id. ¶¶ 45–46. As a result, plaintiffs decided to sell

their home. Id. ¶ 47. Plaintiffs located a potential buyer, who backed out of the sale after Wolfson,

in consultation with Fellman, told the buyer that the property had open violations and needed

extensive repairs. Id. ¶¶ 48–49. In January 2022, Fellman issued another ticket for construction

without a permit, with no basis except to interfere with the sale of the property. Id. ¶¶ 52–54. When

Fellman admitted there was no basis for the second ticket because the summons was based on the

1 The amended complaint only mentions the stop work order, but I take judicial notice that a ticket

was issued summonsing 20 Dogwood LLC to appear in Roslyn Harbor Village Justice Court for

allegedly violating the Village Code and that an information was filed regarding that ticket. See

Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991). (“[C]ourts routinely take judicial

notice of documents filed in other courts . . . .”).

previously adjudicated violation, the case was dismissed. Id. ¶ 54. Plaintiffs eventually sold the

property for a lower price than the original potential buyer had agreed to pay. Id. ¶ 55.

Plaintiffs filed suit in July 2022. Their amended complaint brings an equal protection claim,

a procedural due process claim, and a substantive due process claim, all pursuant to 42 U.S.C.

§ 1983, a 42 U.S.C. § 1985 conspiracy claim, a defamation claim, and an unspecified state

constitutional claim. Am. Compl. ¶¶ 56–79. Defendants moved to dismiss. Notice of Mot., ECF

No. 18.

LEGAL STANDARD

Defendants argue that the case must be dismissed for lack of subject matter jurisdiction

and failure to state a claim. Fed. R. Civ. P. 12(b)(1), 12(b)(6). The principal difference between

the 12(b)(1) and 12(b)(6) analysis is the extent I can look beyond the pleadings. In reviewing a

complaint for lack of subject matter jurisdiction under Rule 12(b)(1), I must “accept[] as true all

material [factual] allegations of the complaint” and “draw[] all reasonable inferences in favor of

the plaintiff,” but I also may consider evidence outside the pleadings submitted by either party.

Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016) (citation and internal quotation

marks omitted).

In deciding a motion to dismiss under Rule 12(b)(6), I must also accept all factual

allegations as true and must draw all reasonable inferences in plaintiff’s favor, Lundy v. Catholic

Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013), but may only consider the “facts

stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the

complaint by reference” and “matters of which judicial notice may be taken,” Kramer, 937 F.2d

at 773. To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation marks omitted). A claim is facially

plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.

DISCUSSION

I. Plaintiffs Have Standing.

To satisfy the requirements of Article III standing, a “plaintiff must have (1) suffered an

injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016). “To establish an injury in fact, a plaintiff must show that he or she suffered an

invasion of a legally protected interest that is concrete and particularized and actual or imminent,

not conjectural or hypothetical.” Id. at 1548 (quotations omitted). These elements “are not mere

pleading requirements but rather an indispensable part of the plaintiff’s case.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992). At the pleading stage, the plaintiff, who bears the burden of

establishing the elements of standing, “must clearly allege facts demonstrating each element.”

Spokeo, Inc., 136 S. Ct. at 1547 (quotation and alteration omitted). “[G]eneral factual allegations

of injury resulting from the defendant’s conduct may suffice,” because on a motion to dismiss it is

“presum[ed] that general allegations embrace those specific facts that are necessary to support the

claim.” Lujan, 504 U.S. at 561 (quotation omitted).

Defendants argue that the Zades lack standing to sue because 20 Dogwood LLC suffered

the only cognizable injury—the loss of value to the property it owned. Though defendants may be

correct as a general matter that “a corporate officer or shareholder . . . cannot prosecute his

corporation’s section 1983 claims,” Sterngrass v. Bowman, 563 F. Supp. 456, 459 (S.D.N.Y.

1983), the suit cannot be dismissed for lack of standing. First, 20 Dogwood LLC is a named

plaintiff, so the suit would survive even if the individual plaintiffs lacked standing to bring some

or all of the claims. Second, defendants incorrectly assume that the only possible injury was the

alleged loss of value to the property. The amended complaint plausibly alleges injuries to the

individual plaintiffs that are fairly traceable to defendants’ actions—plaintiffs allege, among other

things, that defendants’ conduct effectively forced them to move out of Roslyn Harbor. Am.

Compl. ¶ 47. Plaintiffs also allege that unwarranted fines were levied against them, and in at least

one instance the Village initiated code enforcement against Abolfazle Zade directly. Am. Compl.

¶ 37; Stern Decl., Ex. F, ECF No. 19-6 (ticket listing Zade as defendant). The Second Circuit has

held that plaintiffs have standing in these circumstances, and defendants’ additional arguments

about standing are really arguments about the merits of plaintiffs’ claims. See Hu v. City of New

York, 927 F.3d 81, 89 (2d Cir. 2019) (finding standing where defendants’ enforcement activities

imposed financial burdens upon plaintiffs); Defs.’ Reply Mem. of L. (“Defs.’ Reply”), 2–3, ECF

No. 22 (arguing that plaintiffs lack standing because they fail to state a claim). Because I find

plaintiffs’ allegations sufficient to establish standing at the pleadings stage, I will turn to the merits.

II. Plaintiffs Fail to State an Equal Protection Claim.

Plaintiffs’ complaint can be construed as alleging two equal protection claims for

discrimination based on the enforcement of Roslyn Harbor’s building codes. See Mem. of L. in

Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Opp’n”) 14–15, ECF No. 21. The first, for selective

enforcement, alleges that defendants treated plaintiffs differently from others similarly situated on

the basis of racial animus against Iranians and personal animus against the Zades. The second, a

“class of one” theory, alleges that defendants’ treatment of plaintiffs violated the Equal Protection

Clause because it was irrational and arbitrary.

The selective enforcement and class of one claims both require a showing that plaintiffs

were treated differently from a similarly situated comparator, but the degree of similarity required

differs. To state a class of one claim, plaintiffs must allege that they have “been intentionally

treated differently from others similarly situated and that there is no rational basis for the difference

in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Unlike a selective

enforcement claim, a class of one claim “does not require proof of a defendant’s subjective ill will

towards the plaintiff,” but it does require a higher degree of similarity. Hu, 927 F.3d at 94. The

standard requires a plaintiff to prove 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 defendant acted on the

basis of a mistake.” Id. (quotation omitted).

To state a selective enforcement claim, plaintiffs must plead facts that allow the court to

reasonably infer that “(1) the person, compared with others similarly situated, was selectively

treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis

of impermissible considerations, such as race or religion, to punish or inhibit the exercise of

constitutional rights, or by a malicious or bad faith intent to injure the person.” Zahra v. Town of

Southold, 48 F.3d 674, 683 (2d Cir. 1995) (quotation omitted); see also LeClair v. Saunders, 627

F.2d 606, 609–10 (2d Cir. 1980) (first articulating selective enforcement theory). Because a

selective enforcement claim requires proof of malice, the similarity standard is lower than that

required to prove a class of one claim. Hu, 927 F.3d at 95. The plaintiff and the comparator need

not be “identical.” Id. at 96 (quotation omitted). Rather, the plaintiff and the comparator “must

bear a reasonably close resemblance . . . in all material respects.” Id. (quotations omitted).

The Second Circuit has recognized that “[t]here is no precise formula to determine whether

an individual is similarly situated to comparators” and has “cautioned against deciding whether

two comparators are similarly situated on a motion to dismiss.” Id. at 97 (quoting McDonald v.

Village of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004)). However, the “rule is not absolute,”

Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001), and

“dismissal is appropriate where it is not plausible that a jury could ultimately determine that the

comparators are similarly situated,” Joglo Realties, Inc. v. Seggos, 229 F. Supp. 3d 146, 153–54

(E.D.N.Y. 2017) (quotation omitted).

The amended complaint alleges that “[o]ther similarly situated property owners and

residents of the Village have not been treated as plaintiffs have,” including “the owners of the

properties located at 10 Dogwood Avenue and 25 Dogwood Avenue who were not of Iranian

descent and had undertaken similar construction at their properties without harassment by the

defendants.” Am. Compl. ¶¶ 58–59. Thus, the proffered comparators consist of two neighbors on

plaintiffs’ street who are not Iranian but had performed “similar construction at their properties.”

Id. ¶ 59.

The amended complaint’s vague assertion fails to meet the similarity standard of either

equal protection theory. Plaintiffs principally allege that the village and its employees singled them

out by issuing a stop work order and two tickets for doing construction without a building permit.

Am. Compl. ¶¶ 28, 52. It is impossible to determine whether plaintiffs were similarly situated in

all material respects to the comparators absent any allegations as to the nature of the construction

performed by the neighbors or the status of the permitting for that construction. “Similar

construction” is a generic allegation that could cover any number of activities. For example,

plaintiffs state that they undertook various projects, including renovating the interior, constructing

a front entry and portico, and enclosing a rear porch. Am. Compl. ¶¶ 13–14. However, the town’s

enforcement activity apparently focused only on unpermitted site grading and filling and the

construction of a retaining wall and deck. See Stern Decl., Ex. D, ECF No. 19-4. Further, the

selective enforcement theory is missing a crucial allegation—that the comparators were also at

least arguably in violation of town codes. As I have stated in a prior case, plaintiffs alleging

selective enforcement of town ordinance violations not only need to allege that the comparators

were committing similar violations, but also need to “plead facts allowing the court to infer that

the manner and extent of the violations is similar.” Joglo Realties, Inc., 229 F. Supp. 3d at 156.2

Because plaintiffs have failed to plausibly allege that they were treated differently from a similarly

situated comparator, the equal protection claims are dismissed.

III. Plaintiffs Fail to State a Due Process Claim.

The Due Process Clause of the Fifth Amendment provides in relevant part that no person

shall “be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.

To prevail on a procedural due process claim, a plaintiff must prove that they (1) possess a

protected liberty or property interest, and (2) were deprived of that interest without constitutionally

adequate process. O’Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005). Whether process is

constitutionally adequate depends on: “(1) the private interest at stake; (2) the risk of an erroneous

deprivation of that interest through the procedures used and the probable value (if any) of

alternative procedures; [and] (3) the government’s interest, including the possible burdens of

alternative procedures.” Id. at 197 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Pre-

2 Though plaintiffs might contest that they were in violation of the town code, they do not allege

in the complaint that they had a permit to do the post-tree removal grading and filling work. See

Am. Compl. ¶¶ 25–28.

deprivation procedures may be warranted in some cases, and any pre-deprivation process should

include, “at a minimum, notice and the opportunity to respond.” Id. at 197–98.

Plaintiffs argue that defendants violated their procedural due process rights by issuing the

stop work order, barring Zade from entering a public building, altering plaintiffs’ building

application, issuing a ticket based on an information that had already been adjudicated, and lying

to a prospective homebuyer to interfere with the sale of the property. Pls.’ Opp’n 15. Though all

of this alleged conduct is certainly objectionable, plaintiffs’ claims fail on the first prong of the

due process inquiry—the complaint does not adequately allege that plaintiffs were deprived of a

protected liberty or property interest.

First, plaintiffs have not plausibly alleged that the issuance of the stop work order deprived

them of a protected interest. Plaintiffs’ only support for its stop-work-order theory is a citation to

Tri County Industries, Inc. v. District of Columbia, 104 F.3d 455 (D.C. Cir. 1997). But Tri County

is readily distinguishable. In that case, a potentially indefinite stop work order deprived the

plaintiffs of a building permit in which (as the defendants conceded) they had a protected property

right. Id. at 458, 461. Here, plaintiffs have not identified a deprivation of any protected interest

through issuance of the apparently temporary stop work order. The present case has more in

common with Cathedral Church of the Intercessor v. Incorporated Village of Malverne, 353 F.

Supp. 2d 375, 386 (E.D.N.Y. 2005), where the court found no deprivation of a property interest

due to the issuance of a temporary stop work order from which the plaintiffs could get relief by

satisfying the municipality’s conditions.

Second, plaintiffs have not shown that there is a protected interest in gaining admittance to

the Roslyn Harbor village hall. Plaintiffs do not specify the source of the purported right to enter

the village hall, but the Second Circuit has held that the due process right to intrastate travel does

not guarantee access to a specific government building, Williams v. Town of Greenburgh, 535 F.3d

71, 76 (2d Cir. 2008), and plaintiffs do not identify (and I am not aware of) a right to enter the

building arising from New York state law. Third, it is unclear how the alleged alteration of the

building application effectuated a deprivation of any kind––let alone a deprivation of a protected

right––and plaintiffs do not plausibly allege that it did. Fourth, the issuance of a summons does

not constitute a deprivation of a protected interest. Indeed, a summons is notice––one of the

fundamental requirements of pre-deprivation process. As the amended complaint concedes, the

summons in fact led to an opportunity to be heard, and the case was dismissed. Am. Compl. ¶ 54.

Fifth and finally, the alleged lie to a prospective homebuyer does not constitute a

procedural due process deprivation. Plaintiffs claim that a “false statement with specific injury is

cognizable as a due process violation.” Pls.’ Opp’n 16. The case plaintiffs cite for this proposition,

Velez v. Levy, 401 F.3d 75 (2d Cir. 2005), demonstrates why plaintiffs’ argument fails.

“Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional

deprivation.” Siegert v. Gilley, 500 U.S. 226, 233 (1991).3 For a false statement to constitute a

constitutional deprivation, a plaintiff must prove a “stigma plus” claim, which requires showing

that “(1) the utterance of a statement about [plaintiff] that is injurious to [plaintiff’s] reputation,

that is capable of being proved false, and that [plaintiff] claims is false, and (2) some tangible and

material state-imposed burden in addition to the stigmatizing statement.” Velez, 401 F.3d at 87

(quotation and alteration omitted). Here, plaintiffs allege that a government employee, Wolfson,

made a defamatory statement to a prospective homebuyer, causing the buyer to decline to purchase

the property. Because this theory fails to allege any burden imposed by a state actor, such as loss

3 Plaintiffs have also alleged that defendants’ statements about the property constitute the tort of

defamation. Am. Compl. ¶¶ 72–75.

of employment or “termination or alteration of some other legal right or status,” id. at 87–88

(quotation omitted), Wolfson’s statements cannot support a procedural due process claim.

Plaintiffs’ substantive due process claim fares no better. To state a substantive due process

claim, a complaint must allege governmental conduct that is “so egregious, so outrageous, that it

may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523

U.S. 833, 847 n.8 (1998). However, “where another provision of the Constitution provides an

explicit textual source of constitutional protection, a court must assess a plaintiff’s claims under

that explicit provision and not the more generalized notion of ‘substantive due process.’” Conn v.

Gabbert, 526 U.S. 286, 293 (1999) (quotations omitted). Here, plaintiffs argue that defendants

violated substantive due process by engaging in conduct “that was discriminatory against the Zades

because of their ethnic background in violation of their equal protection right”; retaliating against

them “for exercising their First Amendment rights”; “depriv[ing] them of a liberty interest in

gaining access to a public building”; and “improperly issuing stop work orders and summons.”

Pls.’ Opp’n 12. Because the state action that purportedly constitutes a substantive due process

claim would, if it were indeed a constitutional violation, be prohibited by the Equal Protection

Clause, the procedural component of the Due Process Clause, or the First Amendment, plaintiffs’

substantive due process claim is subsumed by the more particularized allegations and must be

dismissed.

IV. Plaintiffs Fail to State a Section 1985 Claim.

Plaintiff’s next cause of action arises under 42 U.S.C. § 1985. To state a valid cause of

action under the conspiracy clause of § 1985, plaintiffs must allege: “(1) a conspiracy (2) for the

purpose of depriving a person or class of persons of the equal protection of the laws, or the equal

privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4)

an injury to the plaintiff’s person or property, or a deprivation of a right or privilege of a citizen of

the United States.” Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999); 42 U.S.C. § 1985(3). In

the amended complaint, plaintiffs allege that Fellman and Wolfson met on March 7, 2022, and

“decided on a course of conduct to drive the individual plaintiffs from” Roslyn Harbor in violation

of § 1985. Am. Compl. ¶¶ 68–70.

Defendants argue that that the § 1985 conspiracy claim must be dismissed because it is

barred by the intracorporate conspiracy doctrine. Mem. of L. in Support Defs.’ Mot. to Dismiss

(“Defs.’ Mot.”) 21, ECF No. 20. In opposition, plaintiffs argue in a largely conclusory fashion that

they have stated a conspiracy claim but do not address the intracorporate conspiracy doctrine. Pls.’

Opp’n 14. If plaintiffs’ silence on this point constitutes an implicit concession, it is for good

reason—defendants are correct. “Under the intracorporate conspiracy doctrine, employees of a

single corporate or municipal entity, each acting within the scope of his or her employment, are

legally incapable of conspiring together.” K.D. ex rel. Duncan v. White Plains School Dist., 921

F. Supp. 2d 197, 210 (S.D.N.Y. 2013). There is no question that Fellman and Wolfson are

employees of the same municipal entity, and plaintiffs do not allege that an exception to the

doctrine applies in this case. Quinn v. Nassau Cnty. Police Dep’t, 53 F. Supp. 2d 347, 360

(E.D.N.Y. 1999) (noting an exception to the intracorporate conspiracy doctrine where individuals

within an entity are “pursuing personal interests wholly separate and apart from the entity”). As a

result, the § 1985 claim is dismissed.

V. Plaintiffs’ State Law Claims are Dismissed.

Plaintiffs final two claims arise under state law. The first alleges that defendants defamed

plaintiffs and caused the property to sell at a lower price than it would have otherwise, and the

second alleges a deprivation of rights under the New York Constitution related to the Village’s

failure to discipline Fellman or prevent his conduct. Am. Compl. ¶¶ 73–74, 77–78.

At the outset, defendants argue that I lack subject matter jurisdiction over the state law

claims because plaintiffs’ failure to serve Roslyn Harbor with a Notice of Claim presents a

fundamental jurisdictional defect. Defs.’ Mot. 23–24. Defendants also argue that plaintiffs failed

to state a defamation claim and that the state constitutional claim is subsumed by adequate

available remedies under § 1983. Id. at 25–27. In response, plaintiffs address only the final

argument about adequate remedies. Pls.’ Opp’n 16. Again, plaintiffs’ silence is telling.

Under New York law, “a plaintiff asserting state tort law claims against a municipal entity

or its employees must plead in the complaint that: (1) the Notice of Claim was timely served within

ninety days after such claim arose; (2) at least thirty days have elapsed since the Notice of Claim

was filed and before the complaint was filed; and (3) the defendant failed to satisfy the claim in

that time.” Matthews v. City of New York, 889 F. Supp. 2d 418, 448 (E.D.N.Y. 2012); see N.Y.

Gen. Mun. Law §§ 50-e(1), 50-i(1). Federal courts must apply the Notice of Claim requirements—

which are strictly construed by New York state courts—when exercising supplemental jurisdiction

over state law claims. Matthews, 889 F. Supp. 2d at 448. Failure to plead compliance with the

Notice of Claim requirements, respond to a Notice of Claim argument, or offer any evidence

regarding a Notice of Claim, is reason to bar a state law tort claim. Petway v. City of New York,

No. 10-CV-1048 (ARR) (LB), 2012 WL 2254246, at *8 (E.D.N.Y. June 14, 2012). Accordingly,

plaintiffs’ state law claims are dismissed.

VI. Plaintiffs’ Monell Claim.

Finally, I address plaintiffs’ claims against the Village of Roslyn Harbor, brought pursuant

to Monell v. Department of Social Services, 436 U.S. 658 (1978). Because I dismiss the amended

complaint on the grounds discussed above, I discuss the Monell arguments briefly only to guide

further briefing on the issue if plaintiffs seek leave to amend.

In Monell, the Supreme Court held that a municipality may be found liable for

constitutional violations brought under § 1983 only where the municipality itself caused the

constitutional violation through “action pursuant to official municipal policy.” 436 U.S. at 691. To

state a Monell claim, plaintiffs must demonstrate “(1) a municipal policy or custom that (2) causes

the plaintiff to be subjected to (3) the deprivation of a constitutional right.” Agosto v. New York

City Dep’t of Educ., 982 F.3d 86, 97 (2d Cir. 2020). “Official municipal policy includes the

decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so

persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S.

51, 61 (2011). Here, plaintiffs allege that the acts of a single official “may fairly be said to represent

official policy” for the entire municipality. Monell, 436 U.S. at 694. The authority to make policy

“necessarily” means “the authority to make final policy.” City of St. Louis v. Praprotnik, 485 U.S.

112, 127 (1988). To be a “final policymaker” for Monell purposes, an official must be “sufficiently

high up in the municipal hierarchy that he was responsible under state law for making policy in

that area of the municipality’s business.” Agosto, 982 F.3d at 98 (quotations and citation omitted).

Starting with the easier case, it seems clear that Wolfson is not a final policymaker for the

purpose of Monell liability. New York Village Law states that the village clerk role is largely

administrative, principally requiring record keeping duties on behalf of the village board of

trustees. N.Y. Village Law § 4-402. Nothing in the amended complaint suggests that Wolfson had

policymaking authority. Even assuming that Wolfson denied the Zades’ tree removal permit,4 the

4 Defendants contend that a decision of the Village’s Tree Committee was erroneously attributed

to Wolfson. Defs.’ Mot. 6.

denial was not a final policy decision as it was later overturned on appeal. Am. Compl. ¶ 22.

Indeed, the amended complaint does not even allege that Wolfson is a policymaker. See id. ¶ 9.

Fellman presents a harder case. Defendants argue that he is not a final policymaker because

the building inspector lacks authority to legislate the town code and his enforcement decisions can

be appealed to the Village’s Zoning Board of Appeals. Defs.’ Mot. 6. However, courts in this

Circuit have split on the question of whether a building inspector is a final policymaker. In Dellutri

v. Village of Elmsford, 895 F. Supp. 2d 555, 568 (S.D.N.Y. 2012), the court held that the plaintiffs

failed to state a Monell claim where they merely alleged that a building inspector and his assistant

issued a notice of violation. Likewise, in Rodriguez v. Margotta, 71 F. Supp. 2d 289, 298 (S.D.N.Y.

1999), the court found that a part-time building inspector who lacked power to “write the building

code, set policy for enforcement of the code, or to bring about prosecutions under the code” was

not a final policymaker. But Rodriguez suggests that the power “to bring about prosecutions under

the code” may qualify an official as a final policymaker, and plaintiffs argue that Fellman exercised

that power in this case.

Indeed, in Rodrigues v. Incorporated Village of Mineola, No. 16-CV-1275 (JFB) (GRB),

2017 WL 2616937 (E.D.N.Y. June 16, 17), Judge Bianco observed that courts “routinely hold that

an official with final enforcement authority qualifies as a ‘final policymaker’ for Monell purposes.”

Id. at *9. The court found as much in Rodrigues, reasoning that the plaintiffs met their burden

under Monell where they alleged that the inspector “has the final say in whether summonses shall

issue for certain violations of the [Village’s Municipal] Code.” Id. The court’s conclusion was

buttressed by the fact that nothing suggested the building inspector’s enforcement decisions could

be appealed to the village’s board. Id. However, the holding did not depend on non-appealability—

the court also relied on New Creation Fellowship of Buffalo v. Town of Cheektowaga, No. 99-CV-

460A(F), 2004 WL 1498190 (W.D.N.Y. July 2, 2004), where a building inspector was found to

be a final policymaker because the relevant town ordinance delegated to its building inspector

“sole responsibility for enforcement” even though the inspector’s decisions could be appealed to

the town board. Id. at *64.

Defendants counter that the Second Circuit’s recent decision in Agosto v. New York City

Dep’t of Education clarifies that enforcement authority is not sufficient to confer final

policymaking status. Defs.’ Reply 3–5. But Agosto does not purport to clarify the principles of

Monell liability in any meaningful way. Rather, the Agosto court applied existing principles to a

relatively straightforward question: whether a school principal’s issuance of disciplinary letters

and negative evaluations to a teacher was an act of final policymaking under state law. 982 F.3d

at 100–01. Finding that New York law vests the Department of Education chancellor with final

policymaking authority regarding teacher discipline and evaluations, the court answered in the

negative. Id. at 101.

Ultimately, because plaintiffs’ claims must be dismissed for other reasons, it is unnecessary

determine whether Fellman’s actions are sufficient to sustain a Monell claim against Roslyn

Harbor, and I decline to decide the issue at this point.

CONCLUSION

The amended complaint is dismissed for failure to state a claim. Specifically, I dismiss the

due process and § 1985 claims with prejudice and the equal protection and state law claims without

prejudice. Plaintiffs may seek leave within twenty-one days to file an amended complaint as to the

claims dismissed without prejudice. Any motion for leave to amend should explain why leave to

amend should be granted and include as an exhibit a proposed amended complaint correcting the

deficiencies identified in this Opinion and Order. The case is stayed for twenty-one days. Should

plaintiffs fail to file a motion to amend within twenty-one days, the case will be dismissed and the

Clerk of Court will enter judgment accordingly.

SO ORDERED.

/s/

Allyne R. Ross

United States District Judge

Dated: May 19, 2023

Brooklyn, New York