# Wirth v. The City of Rochester, New York

> District Court, W.D. New York · July 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10363995

## Case

- **Court:** District Court, W.D. New York
- **Decided:** July 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10363995

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ALEX WIRTH, Individually and on behalf of
Vagabond Properties, LLC,

Plaintiff,
Case # 17-CV-6347-FPG
v.
DECISION AND ORDER

CITY OF ROCHESTER, et al.,

Defendants.

INTRODUCTION
Plaintiff Alex Wirth, individually and on behalf of Vagabond Properties, LLC
(“Vagabond”), brings this civil-rights action against Defendants City of Rochester and Daniel
Arena, both individually and in his official capacity as Neighborhood Conservation Officer for the
Neighborhood Service Center of the City of Rochester. ECF No. 1. Plaintiff’s claims arise from
the process to obtain a Certificate of Occupancy for a residential rental property under the City’s
property code.
On September 30, 2020, the Court issued a Decision and Order (1) granting Defendants’
motion for summary judgment on Count III (Fourth Amendment Violations), Count IV (New York
State Constitution, Article I, § 12 Violations), Count V (New York Civil Rights Law § 8
Violations), and Count VII (Declaratory Judgment); (2) dismissing Counts I and II as withdrawn
by Plaintiff; and (3) directing Plaintiff to submit supplemental memoranda explaining whether he
would maintain his Count VI (Eighth & Fourteenth Amendments Violations, and New York
Constitution Article I, § 5 and New York Civil Rights Law § 11 Violations) claims in light of the
disposition of his other causes of action, and requesting Plaintiff explain his theory with respect to
those claims moving forward. See ECF No. 53 at 14.
On November 30, 2020, Plaintiff moved for summary judgment on Count VI, ECF No. 56,
and Plaintiff filed a separate motion asking the Court “to reconsider the dismissal of Plaintiff

Vagabond Properties, LLC’s claims for violations of its rights under the Fourth Amendment,
article 1 section 12 of the New York Constitution, and Civil Rights Law section 8, pursuant to
Local Rule 7 and Fed. R. Civ. P. 60(b),” ECF No. 57 at 1. Defendants responded in opposition to
those motions, ECF Nos. 60, 61, and Plaintiff replied, ECF Nos. 62, 63.
DISCUSSION
The Court assumes the parties’ familiarity with the underlying facts, which were set out in
the Court’s September 30, 2020 Decision and Order, ECF No. 53, and the full record of prior
proceedings in this matter. The Court considers first Plaintiff’s motion for summary judgment,
ECF No. 56, before turning to Plaintiff’s motion for reconsideration, ECF No. 57.
I. Summary Judgment

Summary judgment is appropriate when the record shows that there is “no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material
facts are genuine where the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether
genuine issues of material fact exist, the court construes all facts in a light most favorable to the
non-moving party and draws all reasonable inferences in the non-moving party’s favor. See
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). However, the non-moving party
“may not rely on conclusory allegations or unsubstantiated speculation.” F.D.I.C. v. Great Am.
Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted).
Count VI of Plaintiff’s Complaint alleges violations of the Eighth and Fourteenth
Amendments of the United States Constitution, violations of the New York Constitution Article I,

§ 5, and violations of New York Civil Rights Law § 11.
A. Eighth Amendment
“The Eighth Amendment provides that ‘[e]xcessive bail shall not be required, nor excessive
fines imposed.’” United States v. Davis, 648 F.3d 85, 96 (2d Cir. 2011) (quoting U.S. Const.
amend. VIII). “A fine refers to ‘a payment to a sovereign as punishment for some offense.’” Davis,
648 F.3d 85, 96 (quoting Browning–Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 265
(1989)).
Here, the Court considers two possible underpinnings for Plaintiff’s Eighth Amendment
claim: (1) the attorney fees Plaintiff incurred defending the City’s prosecution; and (2) the ticket
the City issued to Vagabond under RMC section 90-16A(1) for “[f]ailure to obtain a Certificate of

Occupancy for the subject property,” which carried a fine of $150.00. See ECF No. 37-1 at 3; ECF
No. 47-8 at 1.
To the extent Plaintiff’s Eighth Amendment claim is premised on the fact that the “City . .
. prosecuted Vagabond . . . causing Vagabond to incur $2,315 in legal fees,” such claim fails. Legal
fees are not “a payment to a sovereign as punishment for some offense,” see Davis, 648 F.3d at
96, thus they cannot form the basis for an Eighth Amendment claim.
With respect to the $150 ticket, Plaintiff fares no better. At a hearing before the City’s
Municipal Code Violations Bureau, Vagabond was found “not guilty” and the adjudicated fine
amount was adjusted to $0.00.1 There is no dispute that Plaintiff did not actually pay a fine to
resolve this matter. Accordingly, any Eighth Amendment claim premised on the $150 ticket issued
to Plaintiff fails as a matter of law. See Farina v. Metro. Transp. Auth., 409 F. Supp. 3d 173, 200
(S.D.N.Y. 2019) (“With no allegation as to the amount of fines actually paid by [plaintiff], it is not

possible to undertake the four-factor analysis of whether his fines were ‘grossly disproportional’
to the underlying offense and therefore a plausible violation of the Eighth Amendment.”) (citing
United States v. Viloski, 814 F.3d 104, 111 (2d Cir. 2016)). The Court therefore GRANTS
summary judgment to Defendants as to violations of the Eighth Amendment under Count VI.
B. New York Constitution Article I, § 5
“New York’s Excessive Fines clause requires the same analysis as the federal, and provides
no greater protection.” Grinberg v. Safir, 694 N.Y.S.2d 316, 327 (N.Y. Sup. Ct. 1999); see also
Nassau Cty. v. Bigler, Index No. 25915/99, 2001 WL 34378415, at *5 (N.Y. Sup. Ct. Nov. 13,
2001) (“The Eighth Amendment to the United States Constitution, and the parallel section of the
New York State Constitution, article I, § 5, provide that ‘excessive fines’ shall not be imposed by

the government.”). Therefore, under the same analysis above, the Court GRANTS summary
judgment in favor of Defendants on Plaintiff’s claim under New York Constitution Article I, § 5.
C. New York Civil Rights Law § 11
Plaintiff also seeks summary judgment under Count VI of his Complaint for violations of
New York Civil Rights Law § 11. Plaintiff asserts that “[c]ase law examining Civil Rights Law
section 11 in New York is sparse,” and requests that “the Court . . . remand this action to the New
York State Supreme Court” to consider any “novel questions of New York law that count VI

1 As noted by the Court in its September 30, 2020 Decision and Order, ECF No. 53, Defendants assert that the City
Law Department voided the ticket before it was adjudged “not guilty,” suggesting that the ultimate adjudication was
superfluous. See ECF No. 53 at 5 n.1 (citing ECF No. 47-13 at 4). Regardless, Plaintiff does not contend that Vagabond
actually paid a fine.
raises.” ECF No. 56 at 10. Defendants argue that any claims arising under New York Civil Rights
Law Section 11 “cannot be considered because there was no fine or amercement of the Plaintiffs,”
but they concede that “there is no case law in New York State which addresses this section of the
Civil Rights Law since 1962.” ECF No. 60-1 at 5.

In light of the dismissal of Plaintiff’s Eighth Amendment claim, and in light of the lack of
clear guidance in New York case law on the viability of a distinct claim under New York Civil
Rights Law § 11, “the Court declines to exercise supplemental jurisdiction over the state law claims
for violation of New York Civil Rights Law § 11.” See Buttaro v. Affiliated Comput. Servs., Inc.,
No. CV 14-353 (LDW) (SIL), 2016 WL 8711058, at *3 (E.D.N.Y. Dec. 2, 2016). Accordingly,
such claims are REMANDED to New York State Supreme Court for adjudication. See Riano v.
Town of Schroeppel ex rel. Town Bd. of Town of Schroeppel, No. 5:13–cv–352 (MAD/TWD),
2013 WL 5702263, at *10 (N.D.N.Y. Oct. 18, 2013).
II. Reconsideration
Federal Rule of Civil Procedure 60 governs relief from a court judgment or order, and

therefore applies to Plaintiff’s reconsideration motion. See Fed. R. Civ. P. 60(b); see also Barnes
v. Alves, 10 F. Supp. 3d 391, 392 (W.D.N.Y. 2014) (“Because Defendants are requesting the
reconsideration of an order, the Court construes their motion for reconsideration as a motion
pursuant to Rule 60(b).”). “The applicable standard is stringent.” Bausch & Lomb Inc. v. Vitamin
Health, Inc., No. 13-CV-6498, 2015 WL 13574357, at *1 (W.D.N.Y. Sept. 29, 2015).
As noted by the Second Circuit, the standard for granting a motion for
reconsideration is strict, and reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked—
matters, in other words, that might reasonably be expected to alter the conclusion
reached by the court. The major grounds justifying reconsideration are an
intervening change of controlling law, the availability of new evidence, or the need
to correct a clear error or prevent a manifest injustice. With respect to the third of
these criteria, to justify review of a decision, the Court must have a clear conviction
of error on a point of law that is certain to recur. These criteria are strictly construed
against the moving party so as to avoid repetitive arguments on issues that have
been considered fully by the court.

Id. (quoting Barnes, 10 F. Supp. 3d at 393-94) (alterations in original); see also Kolel Beth Yechiel
Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (“A motion for
reconsideration should be granted only when the [party] identifies an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.”) (citation and internal quotation marks omitted); Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995).
Accordingly, on a motion for reconsideration, a party may not merely offer the same
“arguments already briefed, considered and decided” or “advance new facts, issues or arguments
not previously presented to the Court.” Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y.
1990). Ultimately, “[t]he decision to grant or deny a motion for reconsideration is within the sound
discretion of the district court.” U.S. ex rel. Kolchinsky v. Moody’s Corp., No. 12-CV-1399, 2017
WL 3841866, at *1 (Sept. 1, 2017) (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
Plaintiff seeks reconsideration of this Court’s Order dismissing Vagabond’s claims for
violations of its rights under the Fourth Amendment of the U.S. Constitution, Article I, § 12 of the
New York Constitution, and New York Civil Rights Law § 8 (Counts III, IV, and V of the
Amended Complaint). ECF No. 57. More specifically, Plaintiff argues that (1) that Plaintiff has
Article III Standing to bring his Count III, IV, and V claims; (2) Vagabond satisfied the criteria
for third-party standing to assert its tenants’ Fourth Amendment rights; (3) Defendant City’s
“mistake” defense does not defeat Plaintiff’s standing; and (4) Plaintiff has standing under Article
I, § 12 of the New York Constitution. ECF No. 57-4 at 10-28.
The Court considered these issues in its prior Decision and Order and is unpersuaded that
Plaintiff meets the stringent standard applicable to review on reconsideration. See Barnes, 10 F.
Supp. 3d at 394 (“[The moving party] bear[s] the burden to demonstrate that this Court made a
clear error . . . .”). Notably, reconsideration “is not a mechanism to allow parties to relitigate

contentions and arguments already briefed, considered and decided.” Johnson v. Ricks, No. 9:02-
CV-1366 (NPM), 2008 WL 2097164, at *2 (N.D.N.Y. May 19, 2008) (citation omitted).
Accordingly, Plaintiff’s motion for reconsideration is DENIED in so far as it requests that the
Court revisit its dismissal of Counts III, IV, and V for lack of Article III standing.
III. Appropriate Remedy
Finally, Plaintiff argues that remand, not dismissal, is the appropriate remedy as to
Plaintiff’s Count III, IV, and V claims where the Court dismisses such claims for lack of Article
III standing. “Where a court finds that it lacks subject matter jurisdiction over only some, but not
all, claims in a case removed from state court, the appropriate course of action is less
straightforward” than where a district court determines it lacks jurisdiction over the entire case.

See Zanotti v. Invention Submission Corp., No. 18-cv-5893 (NSR), 2020 WL 2857304, at *11
(S.D.N.Y. June 2, 2020).
“Plaintiffs have not presented any argument that they would be foreclosed from
commencing a new action in state court against [Defendants] if the Court were to dismiss their
claims without prejudice rather than remand them.” Id. at *13. Nonetheless, because the Court is
remanding Plaintiff’s New York Civil Rights § 11 claim, as discussed above, judicial economy
favors remanding Plaintiff’s Count III, IV, and V claims to New York State Supreme Court rather
than dismissing such claims without prejudice. Accordingly, in so far as Plaintiff’s motion for
reconsideration requests remand instead of dismissal of Plaintiff’s Count II, IV, and V claims, his
motion is GRANTED and such claims are REMANDED to New York State Supreme Court.
CONCLUSION
For the foregoing reasons, Plaintiffs motion for summary judgment on Count VI, ECF No.
56, is DENIED; Defendants’ motion for summary judgment on Count VI, ECF No. 60, is
GRANTED IN PART as to the claims arising under the Eighth Amendment and the New York
Constitution Article I, § 5, and DENIED IN PART as to the claims arising under New York Civil
Rights Law § 11 which are REMANDED to New York State Supreme Court, Monroe County, for
adjudication pursuant to 28 U.S.C. § 1367(c)(1). See Riano, 2013 WL 5702263, at *10.
Plaintiffs motion for reconsideration, ECF No. 57, is GRANTED IN PART and DENIED
IN PART, and Plaintiff's Count III, IV, and V claims are REMANDED to the New York State
Supreme Court, Monroe County.
IT IS SO ORDERED.
Dated: July 30, 2021
Rochester, New York
be FRANK P. JR.
United States DistrictJudge
Western District of New York

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10363995. Public record. Not legal advice.