Reus v. Arthur

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

FREDERICK REUS and CECILE REUS,

Plaintiffs, 8:19-cv-01327 (BKS/DJS)

v.

WILLIAM ARTHUR, MICHAEL TETREAULT,

and TOWN OF CHAZY,

Defendants.

Appearances:

For Plaintiffs:

Alan Weinraub

Alan Weinraub P.A.

11 Clark Road

Champlain, NY 12919

For Defendants:

Corey A. Ruggiero

Johnson & Laws, LLC

648 Plank Road, Suite 204

Clifton Park, NY 12065

Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs Frederick Reus and Cecile Reus bring this action under 42 U.S.C. § 1983

against Defendants Town of Chazy, William Arthur, the Town Supervisor, and Michael

Tetreault, the Town Building Code and Zoning Officer. (Dkt. No. 1). Plaintiffs allege that

Defendants deprived them of procedural due process and equal protection, in violation of the

Fourteenth Amendment, “libeled and slandered” them, and “conspired to do said damages.” (Id.

at 1). Presently before the Court are: (1) Defendants’ motion to dismiss the Complaint under

Federal Rules of Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and

failure to state a claim, (Dkt. No. 4), and (2) Plaintiffs’ cross-motion to amend the Complaint

under Rule 15 to add Gray Gables Corporation as a Plaintiff, (Dkt. No. 10). Having considered

the parties’ submissions,1 the Court grants Defendants’ motion to dismiss under Rule 12(b)(1)

and denies Plaintiffs’ cross-motion to amend.

II. CROSS-MOTION TO AMEND – Fed. R. Civ. P. 15

With their cross-motion to amend, (Dkt. No. 9, at 5), Plaintiffs have submitted a proposed

Amended Complaint adding Gray Gables Corporation as a Plaintiff. (Dkt. No. 10). Plaintiffs

assert that they “have as a matter of right, the ability to file an Amended Complaint.” (Dkt. No.

13). Defendants argue that the time for filing an amended pleading as of right has passed and that

any amendment would be futile.2 (Dkt. No. 11, at 6–10).

Federal Rule of Civil Procedure 15(a)(1) provides that: “A party may amend its pleading

once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to

which a responsive pleading is required, 21 days after service of a responsive pleading or 21

days after service of a motion under Rule 12(b) . . . whichever is earlier.” Plaintiffs filed their

proposed Amended Complaint on December 19, 2019—more than 21 days after Defendants’

November 25, 2019 filing and service of their motion to dismiss. (Dkt. No. 4). Thus, as Plaintiffs

1 In opposition to Defendants’ motion to dismiss and support of their motion to amend, Plaintiffs filed two memoranda

of law. (Dkt. Nos. 6, 9). The first memorandum of law does not contain a table of contents. (Dkt. No. 6). Plaintiffs

appear to have attempted to correct this by filing a separate table of contents. (See Dkt. No. 7 (table of contents

mislabeled on the docket as a memorandum of law)). The second memorandum of law contains a table of contents.

(Dkt. No. 9). As the memoranda of law are otherwise identical, the Court cites to the second memorandum of law,

(Dkt. No. 9), for convenience.

2 Defendants also argue that Plaintiffs failed to comply with Local Rule 7.1(4), which requires the moving party to

attach “an unsigned copy of the proposed amended pleading to its motion papers.” (Dkt. No. 11, at 6–9). Indeed,

Plaintiffs did not include a proposed amended pleading to their initial opposition to Defendants’ motion to dismiss,

which they asserted was “a cross-motion to add the corporation Gray Gables Corporation as party Plaintiff by

amending the complaint.” (Dkt. No. 6, at 4). As Plaintiffs subsequently filed an Amended Complaint on December

19, 2019, the Court concludes they have satisfied Local Rule 7.1(4). The Court notes, however, that Plaintiffs

improperly filed it as a signed and operative pleading, without obtaining Defendants’ consent or the Court’s leave.

cannot file the proposed Amended Complaint “as a matter of course,” and do not have

Defendants’ “written consent,” they “may amend [their] pleading only with the . . . court’s

leave.” Fed. R. Civ. P. 15(a)(2).

In general, leave to amend should be freely given “when justice so requires.” Fed. R. Civ.

P. 15(a)(2). “Where plaintiffs seek to amend their complaint while a motion to dismiss is

pending, a court ‘has a variety of ways in which it may deal with the pending motion to dismiss,

from denying the motion as moot to considering the merits of the motion in light of the amended

complaint.’” Haag v. MVP Health Care, 866 F. Supp. 2d 137, 140 (N.D.N.Y. 2012) (quoting

Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F. Supp. 2d 376, 384 (D. Conn.

2008)). Since Defendants have had a full opportunity to respond to the proposed amendments

and the primary claims remain the same, the Court considers the merits of the motions to dismiss

in light of the proposed Amended Complaint. If the claims in the proposed Amended Complaint

cannot survive the motions to dismiss, then Plaintiffs’ cross-motion to amend will be denied as

futile. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.

2002) (“An amendment to a pleading will be futile if a proposed claim could not withstand a

motion to dismiss pursuant to Rule 12(b)(6).”).

III. FACTS3

Plaintiffs Frederick and Cecile Reus own 100 percent of Gray Gables Corporation and

are its “officers and directors.” (Dkt. No. 10, at 3). Gray Gables Corporation owns the property at

3 The facts are drawn from the proposed Amended Complaint and its exhibits. The Court assumes the truth of, and

draws reasonable inferences from, the well-pleaded factual allegations. Faber v. Metro. Life Ins. Co., 648 F.3d 98,

104 (2d Cir. 2011). On the ground that they are outside the pleadings, the Court has not considered the following

additional facts asserted in Plaintiffs’ memorandum of law: (1) “Under the pressure of the complaints and upon

information and belief, [Defendants] closed Gray Gables because it rents to people who are just out of jail,

mentally\challenged [sic] or poor and have no other place to live,” (Dkt. No. 9, at 4); (2) Plaintiffs are currently in

litigation with “ETC Corporation in Supreme Court of New York, Clinton County, Index # 18-1669,” wherein they

allege “ETC improperly complained to Defendants herein and . . . had others do the same in order to convert Plaintiff’s

tenants to their own,” (id.); (3) “Officers of ETC have written letters to Defendants wrongfully describing Plaintiff’s

issue in this case—9627/9629 Route 9 in the Town of Chazy, New York. (Id. at 2–3). There are

two apartment buildings (“Gray Gables Apartments”) on 9627 Route 9. (Id. at 10).

In a letter dated July 7, 2019, Defendant Town “Code/Zoning” Officer Michael Tetreault

advised the Reuses that “9627 Rt.9, ‘Gray Gables’” had been deemed “Unsafe/Uninhabitable”:

Upon receiving complaints from persons residing at 9627 Rt. 9 as

well as inquiries from Legal Aid Society, Clinton County Health

Department and the NY State Office of Oversight and my personal

inspection of the above referenced property the following action is

taken:

The structure known as “Gray Gables” apartments

consisting of two buildings, is [sic] located at 9627 Rt. 9 of which

you are the owner/responsible person in charge is hereby deemed

“STRUCTURE UNFIT FOR HUMAN OCCUPANCY,” per NY

State Property Maintenance Code Section 101.2.7.4.3., as well as

Chazy Local Law #3 of 1994 Section 11.

At this time all persons occupying the structure shall vacate

the premises’ [sic] by July 22, 2019. The building shall remain

vacant until such time as you the owner of the property have an

Engineering report completed detailing all deficiencies at the

property and required repairs to bring the structure’s [sic] into

compliance with the NY State Building Code.

(Id.).

At a Town Board meeting on July 8, 2019, Defendant Tetreault “told the Board that he

ha[d] written a letter to Grey [sic] Gables owner Fred Reus informing him that he will be posting

a notice on the door that all tenants must be out by July 22nd” and “recommended that the Board

take action immediately as detailed in Section 11 of Town of Chazy Local Law #3 of 1994.”4

property as uninhabitable,” (id.); and (4) “No court of law has ever upon information and belief found that Gray Gables

is or was uninhabitable,” (id.). See Friedl v. City of New York, 210 F.3d 79, 83–84 (2d Cir. 2000) (“[A] district court

errs when it considers affidavits and exhibits submitted by defendants or relies on factual allegations contained in

legal briefs or memoranda in ruling on a 12(b)(6) motion to dismiss.” (internal alterations, quotations and citations

omitted)).

4 Section 11 of Town of Chazy Local Law # 3 governs “Emergency Cases” and provides:

Where it reasonably appears that there is present a clear and imminent danger to

the life, safety or health of any person or property, unless an unsafe building is

immediately repaired and secured or demolished, the Town Board may, by

resolution, authorize the Building Inspector to immediately cause the repair or

(Id. at 13). The meeting minutes from the July 8, 2019 meeting do not indicate that the Board

took any action with respect to Gray Gables Apartments at that time. (Id. at 11–29).

The Town Board met again on July 16, 2019. (Id. at 30–33). Plaintiffs’ attorney, Alan

Weinraub, and “F. Reus” were present. (Id. at 30). During the “public comment” portion of the

meeting, Mr. Weinraub “asked for a chance to speak after the resolutions are passed.” (Id.).

Town Councilor Cathy Devins made a motion to pass a “resolution with respect to the condition

of the structures located at 9627/9629 NYS Route 9.” (Id. at 32).

WHEREAS, the Town Board needs to take action with,

respect to the reports of the Building Inspector/Codes Enforcement

Officer, and

THEREFORE BE IT RESOLVED, that pursuant to Section

11 “Emergency Cases” of the above-referenced Local Law the

Town Board is directing that all tenants at the property . . . be

removed from the property by July 22, 2019 since the condition of

the subject property presents a clear and imminent danger to life,

safety, and health of the current tenants at said property.

BE IT FURTHER RESOLVED, that the Town Board will

consider its other options with respect to the subject property

pursuant to the above Local Law.

(Id. at 32–33). The meeting minutes indicate that before voting on this resolution, there was a

discussion and it was determined: “Yes, serious ramifications to Town if [Gray Gables

Apartments are] not closed.” (Id. at 33). The Town Board then passed the resolution. (Id.).

Plaintiffs’ attorney objected to the passing of the second resolution and “asked the Board to

consider withdrawing the resolution.” (Id.).

According to Plaintiffs, neither Defendant Tetreault nor Defendant Town Supervisor

William Arthur, who voted in favor of the above resolution, (Id.), “gave notice to the plaintiff

demolition of such unsafe building. The expenses of such repair or demolition

shall be a charge against the land on which it is located.

(Dkt. No. 10, at 8).

about any repairs needing to be made to Gray Gables [Apartments] before condemning the

property under color of State and local law.” (Id. at 2). At some point, however, the “Town”

“provided” a “list” of deficiencies to Plaintiffs containing “many items,” but “very few, if any

could be considered to present a ‘clear and imminent danger to life, safety or health of any

person or property.’” (Id.). Plaintiffs do not identify any “item” on the list. Plaintiffs further

assert that Defendants failed to conduct an inspection, issue a “Town order” or “notice,” or serve

and record notice in accordance with “Section[s] 4–8” of Local Law #3.5 (Id.). Plaintiffs contend

5 Local Law #3 provides in relevant part:

Section 4. Investigation and Report. When, in the Building Inspector’s own

opinion or upon receipt of information that a building (1) is or may become

dangerous or unsafe to the general public, (2) is open at the doorways and

windows making it accessible to and an object of attraction to minors under

eighteen years of age, as well as to vagrants and other trespassers, (3) is or may

become a place of rodent infestation, (4) presents any other danger to the health,

safety, morals and general welfare of the public or (5) is unfit for the purposes for

which it may lawfully be used, the Building Inspector shall cause or make an

inspection thereof and report in writing to the Town Board his findings and

recommendations in regard to its repair or demolition and removal.

Section 5. Town Board Order. The Town Board shall thereafter consider such

report and by resolution determine, if in its opinion the report so warrants, that

such building is unsafe and dangerous and order its repair if the same can be safely

repaired or its demolition and removal, and further order that a notice be served

upon the persons and in the manner provided herein.

Section 6. Notice; Contents. The notice shall contain the following: (1) a

description of the premises; (2) a statement of the particulars in which the building

is unsafe or dangerous; (3) an order outlining the manner in which the building is

to be made safe and secure, or demolished and removed; (4) a statement that the

securing or removal of such building shall commence within thirty (30) days of

the service of the notice and shall be completed within sixty (60) days thereafter,

unless for good cause shown such time shall be extended; (5) a date, time and

place for a hearing before the Town Board in relation to such dangerous or unsafe

building, which hearing shall be scheduled not less than five (5) business days

from date service the notice; and (6) a statement that in the event of neglect or

refusal to comply with the order to secure or demolish and remove the building;

the Town Board is authorized to provide for its demolition and removal, to assess

all expenses thereof against the land on which it is located and to institute a special

proceeding to collect the costs of demolition, including legal expenses.

Section 7. Service of Notice. The said notice shall be served by serving and

posting copies thereof as follows: (1) by personal service of a copy thereof upon

the owner, executor, administrator, agent, lessee or any person having a vested or

contingent interest in such unsafe building as shown by the records of the receiver

of taxes or of the county clerk; [2] or if no such person can be reasonably found

by mailing such owner by registered mail a copy of such notice by personal

Defendants “used different pieces of their ordinance” to justify condemning Gray Gables

Apartments, including Section 11 for “Emergency Cases,” and “did not follow the process steps

described.” (Id. at 3). Plaintiffs allege that, as a result of Defendants’ actions, they have “lost all

income [including rents] from ownership of their apartment building and employment by Gray

Gables Corporation, which was wrongfully shut down and condemned.” (Id. at 3–4). Plaintiffs

further assert that their injuries include “diminished property values.” (Id. at 4). Plaintiffs also

claim that Defendants defamed, slandered, and libeled them. (Id. at 3).

IV. MOTION TO DISMISS – Fed. R. Civ. P. 12(b)(1)

A. Standard of Review

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). A lack of standing “may be addressed through a

Rule 12(b)(1) motion.” Lyons v. Litton Loan Servicing LP, 158 F. Supp. 3d 211, 218 (S.D.N.Y.

2016). “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all

uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in

favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc.,

752 F.3d 239, 243 (2d Cir. 2014). A defendant may make “a fact-based Rule 12(b)(1) motion,

proffering evidence beyond the complaint and its exhibits.” Nicholas v. Trump, No. 18-cv-8828,

service of a copy of such notice upon any adult person residing in or occupying

said premises if such person can be reasonably found; and (3) by securely affixing

a copy of such notice upon the unsafe building.

Section 8. A copy of the notice served as provided herein shall be filed in the

office of the County Clerk of the County of Clinton.

(Dkt. No. 10, at 7–8).

2020 WL 209274, at *3, 2020 U.S. Dist. LEXIS 6427, at *8 (S.D.N.Y. Jan. 14, 2020) (quoting

Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016)). A plaintiff must then “come

forward with evidence of their own to controvert that presented by the defendant, or may instead

rely on the allegations in the[ir p]leading if the evidence proffered by the defendant is immaterial

because it does not contradict plausible allegations that are themselves sufficient to show

standing.” Id. (quoting Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 119 (2d Cir. 2017)).

B. Analysis

Defendants assert that Frederick and Cecile Reus fail to allege “injury-in-fact” because

any alleged injury was to Gray Gables Corporation as owner of Gray Gables Apartments, and

that the Reuses themselves therefore lack standing. (Dkt. No. 4-1, at 10). The Reuses attempt to

overcome this by moving to amend the complaint to add Gray Gables Corporation as a Plaintiff

but do not otherwise contest Defendants’ argument that they lack standing. (Dkt. No. 9, at 5).

“Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and

‘Controversies.’” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “‘One element of the

case-or-controversy requirement’ is that plaintiffs ‘must establish they have standing to sue.’” Id.

(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). To establish standing, (1) “the plaintiff must

have suffered an ‘injury in fact’—an invasion of a legally protected interest,” (2) “there must be

a causal connection between the injury and the conduct complained of,” and (3) “it must be

likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). (citations and internal

quotation marks omitted). “The party invoking federal jurisdiction bears the burden of

establishing these elements.” Whalen v. Michael Stores Inc., 153 F. Supp. 3d 577, 580 (E.D.N.Y.

2015) (quoting Lujan, 504 U.S. at 561), aff’d, 689 F. App’x 89 (2d Cir. 2017). “A plaintiff

suffers an injury-in-fact where he [or she] has been injured in a ‘personal and individual way.’”

Costello v. Town of Huntington, No. 14-cv-2061, 2015 WL 1396448, at *4, 2015 U.S. Dist.

LEXIS 38059, at *9 (E.D.N.Y. Mar. 25, 2015) (quoting Lujan, 504 U.S at 560 n.1). For this

reason, “whether a plaintiff has standing ‘depends considerably upon whether the plaintiff is

himself an object of the action (or forgone action) at issue.’” Id. at *4, 2015 U.S. Dist. LEXIS

38059, at*9 (quoting Lujan, 504 U.S. at 561).

The property at 9627/9629 Route 9 is owned by Gray Gables Corporation, “which is

100% owned by [the Reuses], and of which [the Reuses] are officers and directors.” (Dkt. No.

10, at 3). The Reuses allege that as a result of the condemnation of the property, they “lost all

income from ownership of [the] property and employment by Gray Gables Corporation.” (Id.).

As the property’s legal owner, however, Gray Gables Corporation, is the entity that suffered the

alleged injury directly. Baker v. Bzydra, No. 3:18-cv-01792, 2019 WL 6619348, at *1, 2019 U.S.

Dist. LEXIS 213486, at *5 (D. Conn. Dec. 5, 2019) (finding the plaintiff, who was the “ex-

president and owner” of CT 102 LLC, lacked standing to assert a Fourteenth Amendment

violation stemming from an allegedly fraudulent hearing regarding a complaint filed against CT

102 LLC with the Connecticut Department of Motor Vehicles, explaining that “to the extent the

complaint alleges an injury at all, it alleges that the injury was incurred by CT 102 LLC, not

Plaintiff”); Costello, 2015 WL 1396448, at *4, 2015 U.S. Dist. LEXIS 38059, at *9–10 (finding

the sole owner of corporation lacked standing where “the rights that the Town allegedly

infringed belong[ed] to” the corporation itself as the “owner of the [p]roperty” at issue and the

complaint was “devoid of any allegations that the Town took action against [owner of the

corporation] independently,” instead alleging the individual plaintiff was “‘injured only as a

result of the injury to’” the corporation (quoting Bingham v. Zolt, 66 F.3d 553, 562 (2d Cir.

1995)); Blakely v. Cardozo, No. 07-cv-3951, 2007 WL 2702241, at *3, 2007 U.S. Dist. LEXIS

68398, at *6 (S.D.N.Y. Sept. 17, 2007) (“Because the property at 477 West 142nd Street is the

object of the City’s in rem foreclosure action, only the property’s legal owner, the HDFC

[corporation], can be alleged to have suffered the requisite injury to confer standing.”).

Because the Reuses allege they were “injured only a result of the injury to another,”

Bingham, 66 F.3d at 562, they fail to allege “[i]njury in a ‘personal and individual way,’ as

Article III requires.” Costello, 2015 WL 1396448, at *4, 2015 U.S. Dist. LEXIS 38059, at *10

(quoting Lujan, 504 U.S. at 560 n.1). See also Caravella v. City of New York, 79 F. App’x 452,

453 (2d Cir. 2003) (finding the plaintiff lacked standing to bring civil rights action under 42

U.S.C. § 1983 because “[t]he injuries to plaintiff as alleged were indirectly caused by harm to

DVS and therefore are not ‘distinct’ from those of the corporation.” (citing Audio Odyssey, Ltd.

v. Brenton First Nat’l Bank, 245 F.3d 721, 729 (8th Cir. 2001)). Accordingly, Defendants’

motion to dismiss the Complaint filed by Frederick and Cecile Reus for lack of standing is

granted and as any amendment that includes Frederick or Cecile Reus as plaintiffs would be

futile, Plaintiffs’ cross-motion to amend with respect to the Reuses is denied.

V. MOTION TO DISMISS – Fed. R. Civ. P. 12(b)(6)

A. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a

complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’”

Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations

sufficient “to raise a right to relief above the speculative level.” Id. (quoting Twombly, 550 U.S.

at 555). The court must accept as true all factual allegations in the complaint and draw all

reasonable inferences in the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir.

2014) (citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)).

However, “the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

B. Analysis

1. Procedural Due Process

In the Amended Complaint, Plaintiff Gray Gables Corporation6 asserts Defendants

“wrongfully shut down and condemned” Gray Gables Apartments and that “Defendants failed to

give plaintiffs due process of law in the deprivation of their property rights, equal protection of

the 14th Amendment, and libeled and slandered plaintiffs, and conspired to do said damages.”

(Dkt. No. 10, at 1, 3).

Defendants assert that the allegation that they failed to provide notice identifying the

repairs necessary to render Gray Gables Apartments safe for habitation and avoid condemnation

is conclusory, and that the Amended Complaint fails to allege “facts which would support the

relief requested.” (Dkt. No. 4-1, at 14).

“The Fourteenth Amendment prohibits a state from ‘depriv[ing] any person of life,

liberty, or property, without due process of law.’” WWBITV, Inc. v. Vill. of Rouses Point, 589

F.3d 46, 50 (2d Cir. 2009) (citing U.S. Const. amend. XIV, § 1). The Fourteenth Amendment’s

Due Process Clause contains both a procedural component and a substantive component.

Zinermon v. Burch, 494 U.S. 113, 125 (1990). The procedural component applies where there is

an alleged deprivation by government action of a constitutionally protected interest without

sufficient procedural safeguards, such as notice and a hearing. Id. at 127.

Review of a procedural due process question involves a “two-step inquiry;” the Court

“must determine (1) whether [the plaintiff] possessed a liberty or property interest and, if so, (2)

6 As Plaintiffs Frederick and Cecile Reus are dismissed for lack of standing, the Court considers the remainder of the

motion to dismiss only as to Plaintiff Gray Gables Corporation.

what process [the plaintiff] was due before [the plaintiff] could be deprived of that interest.”

Ciambriello v. Cty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002). It is well-settled that “although

notice and a predeprivation hearing are generally required, in certain circumstances, the lack of

such predeprivation process will not offend the constitutional guarantee of due process, provided

there is sufficient postdeprivation process.” Catanzaro v. Weiden, 188 F.3d 56, 61 (2d Cir. 1999)

(citing Parratt v. Taylor, 451 U.S. 527, 538 (1981)), overruled in part by Daniels v. Williams,

474 U.S. 327, 330–31 (1986)). “[E]ither the necessity of quick action by the State or the

impracticality of providing any meaningful predeprivation process, when coupled with the

availability of some meaningful means by which to assess the propriety of the State’s action at

some time after the initial taking, can satisfy the requirements of procedural due process.” Id.

(quoting Parratt, 451 U.S. at 539).

Here, the Amended Complaint alleges that Tetreault notified Plaintiff in a letter dated

July 7, 2019 that Gray Gables Apartments had been deemed “unfit for human occupancy” in

accord with NY State Property Maintenance Code and Section 11 of the Local Law governing

emergency cases. The letter, which is attached to the Amended Complaint, directed that “all

persons occupying the structure” must “vacate the premises’ [sic] by July 22, 2019.” (Dkt. No.

10, at 10). The letter directs that the building remain vacant until Plaintiff has “an Engineering

report completed detailing all deficiencies at the property and required repairs to bring the

structure’s [sic] into compliance with the NY State Building Code.” (Id.). The letter does not

identify the structure’s deficiencies or the code violations. (Id.). Further, it appears from the July

16, 2019 meeting minutes, that Plaintiff’s counsel was present at the hearing where the Town

Board adopted the resolution directing that the property be vacated by July 22, 2019. It appears

from the minutes that, at the outset of the meeting Plaintiff’s counsel “asked for a chance to

speak after the resolutions are passed,” and that after the resolutions had passed, Plaintiff’s

counsel objected to the passing of the second resolution and asked the Board to consider

withdrawing the resolution. (Id. at 30, 33).

On this record Plaintiff has failed to plausibly allege a due process violation. See

WWBITV, 589 F.3d at 50 (explaining that in “emergency situations a state may satisfy the

requirements of procedural due process merely by making available ‘some meaningful means by

which to assess the propriety of the State’s action at some time after the initial taking’” (quoting

Parratt, 451 U.S. at 539)). Accordingly, the cross-motion to amend is denied with respect to the

Fourteenth Amendment procedural due process claim.

2. Equal Protection

To establish a “violation of equal protection by selective enforcement,” the plaintiff must

show that “compared with others similarly situated, [it] was selectively treated; and . . . such

selective treatment was based on impermissible considerations such as race, religion, intent to

inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a

person.” Crowley v. Courville, 76 F.3d 47, 52–53 (2d Cir. 1996) (quoting LaTrieste Rest.&

Cabaret Inc. v. Vill. of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994)). For a “class of one” equal

protection claim, “the plaintiff must plausibly allege that he or she has been intentionally treated

differently from others similarly situated and no rational basis exists for that different treatment.”

Progressive Credit Union v. City of New York, 889 F.3d 40, 49 (2d Cir. 2018) (citing Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000)); see also Ruston v. Town Bd. for Town of

Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (“[C]lass-of-one plaintiffs must show an extremely

high degree of similarity between themselves and the persons to whom they compare

themselves.” (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)). The

Amended Complaint alleges only that Defendants violated equal protection; it contains no facts

that would allow an inference that Defendants intentionally treated Plaintiff differently. See

Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.”). Accordingly, the cross-motion to

amend to assert an equal protection claim is denied as futile.7

3. Monell8 Claim

Defendants assert that Plaintiff has “not sufficiently pled . . . a claim against the Town

under Monell.” (Dkt. No. 4-1, at 17). The Court agrees. Under Monell, liability is extended “to a

municipal organization where that organization’s failure to train, or the policies or customs that it

has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459

F.3d 207, 219 (2d Cir. 2006). As Plaintiff fails to plausibly allege any underlying constitutional

violations, its Monell claim necessarily fails as well. E.g., id. at 219 (“Because the district court

properly found no underlying constitutional violation, its decision not to address the municipal

defendants’ liability under Monell was entirely correct.”).

Accordingly, the cross-motion to amend with respect to the Monell claim is denied as

futile.

4. State Law Claim

Having dismissed Plaintiff’s federal claims, 9 the Court declines, in its discretion, to

retain supplemental jurisdiction over Plaintiffs’ state-law defamation claim. See 28 U.S.C.

7 Having concluded the Amended Complaint fails to allege a due process or equal protection claim, the Court does

not consider Defendants’ arguments regarding personal involvement or qualified immunity in connection with this

claim.

8 Monell v Dep’t of Soc. Servs., 436 U.S. 658 (1978)

9 In its memorandum of law, Plaintiff refers to the Fifth Amendment in connection with the alleged deprivation of

their property and asserts that “Defendants suppressed Plaintiffs’ speech not allowing them or their counsel to speak

before the board voted to condemn Plaintiffs’ property and evict all the tenants.” (Dkt. No. 9, at 5–6). From these

references, the Court concludes that Plaintiff may intend to assert a Fifth Amendment takings claim and a First

Amendment speech claim. The Amended Complaint, however, contains no allegations in support of such claims.

§ 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (‘[I]n the usual

case in which all federal-law claims are eliminated before trial, the balance of factors to be

considered under the pendent jurisdiction doctrine . . . will point toward declining to exercise

jurisdiction over the remaining state-law claims.”). As the federal claims have been dismissed

prior to the investment of significant judicial resources, the “traditional ‘values of judicial

economy, convenience, fairness and comity’” weigh in favor of declining to exercise

supplemental jurisdiction. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.

2006) (quoting Cohill, 484 U.S. at 350).

Accordingly, the cross-motion to amend the Complaint with respect to a state law

defamation claim is denied as futile.

VI. CONCLUSION

For these reasons, it is hereby

ORDERED that Defendants’ motion to dismiss (Dkt. No. 4) under Rule 12(b)(1) is

GRANTED; and it is further

ORDERED that the Complaint (Dkt. No. 1) is DISMISSED without prejudice; and it

is further

ORDERED that Plaintiffs’ cross-motion to amend (Dkt. No. 6) with respect to the

proposed Amended Complaint (Dkt. No. 10) is DENIED as futile.'®

IT IS SO ORDERED.

Dated: August 31, 2020 breorardak nannies

Syracuse, New York —

Brenda K. Sannes

U.S. District Judge

10 Plaintiffs sought amendment only with respect to the standing issue and have not sought to amend the Complaint to

include additional factual allegations.

15