# Wik v. The Village of Holley

> District Court, W.D. New York · October 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10366561

## Case

- **Court:** District Court, W.D. New York
- **Decided:** October 20, 2023
- **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/10366561

## How later opinions describe it (automated extraction)

- stating that because pretrial detainees have not been convicted of a crime, they “may not be punished in any manner–neither cruelly and unusually nor otherwise”
- describing action as a “proceeding pursuant to CPLR article 78, in effect, to compel the Town of Lewisboro and Joann Vasi, Enforcing Officer of the Town of Lewisboro, to set aside the transfer of a deed to real property previously owned by the plaintiff/petitioner”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
DANIEL JOSEPH WIK,
DECISION AND ORDER
Plaintiff,
22-CV-6414DGL
v.
THE VILLAGE OF HOLLEY, et al.,
Defendants.
___________________________________________
Plaintiff Daniel Joseph Wik, who appears pro se, commenced this action by filing a
complaint on September 9, 2022. Plaintiff has sued the Village of Holley, N.Y. (“Village”), the
Village of Holley Development Corporation (“VHDC”), and nine individual defendants.
Plaintiff asserts claims based on the United States Constitution and New York law, in connection
with certain events concerning real property that plaintiff alleges he purchased in Holley.

The Village and seven of the individual defendants have moved for judgment on the
pleadings dismissing the claims against them pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Plaintiff has filed a response in opposition to the motion.

THE COMPLAINT
The complaint alleges the following facts. On or about October 25, 2017, one April
Wollard (who is alleged to be a citizen and resident of Florida) sold a parcel of property
(“Property”) located at 89 Public Square in Holley to an individual named Freeman Burks, who
acted as trustee for an entity called 89 Public Square Trust. In or about December 2017, 89
Public Square Trust sold the Property to plaintiff. Plaintiff chose not to record the conveyance
with Orleans County. Complaint (Dkt. #1) at 18, ¶¶ 2, 4, 9.
After plaintiff began making repairs to the building on the Property, he was contacted by

Ron Vendetti, who was apparently either an official or an employee of the Village.1 Vendetti
told plaintiff that plaintiff could not work on the building until he had recorded the deed and
obtained a permit from the Village. Id. at 19, ¶¶ 16, 17. Plaintiff alleges that Vendetti also “ran
off all of Claimants labors [sic],” and issued a stop-work order for all work at the Property. Id. at
19 ¶¶ 20, 21.
Plaintiff contacted the Village offices and asked to speak to Brian Sorochty, who also
apparently held some position with the Village.2 He then received a telephone call from one

John Sansone, who also told plaintiff that he had to record his deed to the Property. Plaintiff
informed Sansone that he was not legally required to do so. Id. at 20, ¶¶ 27-30.
In May 2019, plaintiff “served notice to [the Village] for the fees for trespass and land
use.” Id. ¶ 37. The following October, he served James Defillips, Rochelle Moroz, Connie
Nenni and Kevin Lynch with “letters informing them of what was transpiring” with the Property.
Id. ¶ 38.

1 Vendetti’s name is sometimes spelled “Venditti” in the complaint, but it appears that the correct spelling is
“Vendetti.”
2 With Sorochty, Vendetti and most of the other defendants, the complaint simply alleges that they were
acting at all times as agents of the Village and that they were compensated for their services by the Village, without
identifying what specific office or title they held. At one point, however, the complaint does state that Sorochty
“alleged he was the mayor” of Holley. (Complaint at 22, ¶ 60.)
-2-
Plaintiff alleges, “[u]pon knowledge and information,” that at some point Vendetti
traveled to Florida and spoke to Wollard, the former owner of the Property. Even though
Wollard no longer had any legal interest in the Property, Vendetti allegedly pressured her into
deeding the Property to VHDC. Sansone–who apparently was the Village’s attorney–recorded

that deed. Id. at 21, ¶¶ 41-54. At some point thereafter, agents of the Village changed the locks
on the building on the Property, and since then plaintiff has been denied possession and use of
the Property, as well as of some personal property that he had stored in the building.
Plaintiff alleges that all the defendants, acting under color of law, conspired to deprive
him of his property, in violation of his rights. The complaint sets forth ten causes of action, the
first six of which allege violations of plaintiff’s rights under the Constitution: (1) seizure of
plaintiff’s real property and (2) personal property without a warrant and without due process, in

violation of the Fourth and Fifth Amendments; (3) search of plaintiff’s real property and
(4) personal property without a warrant, in violation “of at least” the Fourth Amendment;
(5) cruel and unusual punishment, without due process, in violation of the Fourth and Eighth
Amendments; and (6) deprivation of liberty and property without due process and in violation of
plaintiff’s right to equal protection under the Fifth Amendment. The remaining four claims do
not cite any constitutional provisions, and are apparently based on New York common law: (7) a
claim that plaintiff’s “rights were trespassed upon”; (8) trespass to real property; (9) a claim
(denominated as one for breach of contract) for “fees for trespass and land use”; and (10) a claim

for “common law eject,” alleging that plaintiff “has been denied use, access, and possession” of
the Property. For relief, plaintiff requests “fees for trespass and land use,” damages in an
unspecified amount, and an order of ejectment “against anyone at” the Property.
-3-
The present motion for judgment on the pleadings is brought by defendants the Village of
Holley, Brian Sorochty, Ron Vendetti, John Sansone, James Defillips, Rochelle Moroz, Connie
Nenni, and Kevin Lynch (“Village defendants”). The remaining three defendants, VHDC, Daniel
Schiavone, and April Wollard, have answered the complaint but have not moved against it at this

time.

DISCUSSION
I. Motions for Judgment on the Pleadings under Rule 12(c)
Federal Rule of Civil Procedure 12(c) allows for any party to move for judgment “[a]fter
the pleadings are closed–but early enough not to delay trial.” “The standard for granting a Rule
12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for

failure to state a claim.” Rusis v. Int'l Bus. Machines Corp., 529 F.Supp.3d 178, 190 (S.D.N.Y.
2021) (internal quotation marks and citation omitted). Under that standard, the Court “accept[s]
all factual allegations in the complaint as true and draw[s] all reasonable inferences in
[plaintiff’s] favor.” Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009). The Court then must
assess whether the complaint “contain[s] sufficient factual matter ... to state a claim to relief that
is plausible on its face.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir.
2021) (internal quotation marks and citation omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This “plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has acted
-4-
unlawfully.” Id. (quotations omitted). Moreover, while at this stage the court must accept the
truth of plaintiff’s factual allegations, at the same time, “legal conclusions, deductions or
opinions couched as factual allegations [need not be accorded] a presumption of truthfulness,” In
re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (Sotomayor, J.) (alterations,

brackets, and citation omitted).

II. Nature of Plaintiff’s Claims
Before addressing the specific grounds asserted in defendants’ motion, it is necessary to
consider the nature of the claims presented in the complaint.
As stated, plaintiff’s claims fall into two categories: claims that defendants violated his
rights under the United States Constitution, and claims under New York common law.

Jurisdiction is premised on this Court’s jurisdiction over claims arising under the Constitution,
see Complaint at 3. See also 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States”).
In their motion, defendants construe plaintiff’s constitutional claims as brought pursuant
to 42 U.S.C. § 1983. Defendants contend that the claims are time-barred by the three-year statute
of limitations period for § 1983 claims in New York. See James v. City of Rochester, __
F.Supp.3d __, 2023 WL 3356931, at *10 (W.D.N.Y. 2023).

In response, plaintiff expressly states that he is not asserting any claims under § 1983.
See Dkt. #17-1 at 3 (“as a matter of fact [the complaint] is not a § 1983 Complaint”), 7
(“Claimants claim was not a 42 USC § 1983 action”), 10 (“Claimants Sixth cause of action is not
-5-
based upon 42 USC § 1983”), 11 (“Claimants causes of action are not brought pursuant to 42
USC § 1983”). Instead, he insists that his claims are brought under common law. See id. at 3
(plaintiff “chose to asserted [sic] common law claims pursuant to the common law of the state of
New York”), 11 (“all the causes of action are common law claims”).

If the Court were simply to take plaintiff at his word, the complaint could be dismissed
summarily for lack of jurisdiction. Federal courts generally do not have jurisdiction over claims
arising under state law, except when asserted along with federal claims, or in cases involving
citizens of different states, where the amount in controversy exceeds $75,000. See Lovern v.
Edwards, 190 F.3d 648, 655 (4th Cir.1999) (“the Constitution does not contemplate the federal
judiciary deciding issues of state law among non-diverse litigants”); Marett v. Ades, No.
07-cv-4018, 2008 WL 2381698, at *4 (D.S.C. June 5, 2008) (“Federal courts are allowed to hear

and decide state-law claims only in conjunction with federal-law claims, through the exercise of
‘supplemental jurisdiction’”) (citing Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381,
387 (1998)).3
Despite plaintiff’s insistence that all his claims are brought under the common law, the
fact is that he alleges that defendants violated his rights under the United States Constitution.
Plaintiff may not bring claims against defendants directly under the Constitution, however.
Section 1983 “provides a cause of action against any person who deprives an individual of
federally guaranteed rights ‘under color’ of state law,” Filarsky v. Delia, 566 U.S. 377, 383

3 Although the complaint alleges that plaintiff “is not a citizen or resident of the State of New York,”
Complaint at 5, plaintiff does not allege that he is a citizen of some other state. He alleges that “at all times relevant
to this complaint [he] is living within New York state,” id., and states that he “is one of the ‘people of the state of
New York.’” Id. at 17. Plaintiff does not assert diversity of citizenship as a basis for jurisdiction, and there is
nothing in the record to suggest that such a basis exists.
-6-
(2012) (quoting 42 U.S.C. § 1983), and “when § 1983 provides a remedy, an implied cause of
action grounded on the Constitution is not available.” Pauk v. Bd. of Tr. of City Univ. of New
York, 654 F.2d 856, 865 (2d Cir. 1981). See, e.g., Fenner v. City of New York, 392 F.App’x 892,
894 (2d Cir. 2010) (“because ... a local government like the City can be liable under § 1983 for

violations of the Fourth Amendment, Fenner was required to bring his Fourth Amendment claims
under that statute, and could not proceed directly against the City under the Constitution”) (citing
Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91 (1978)).
Nevertheless, “a court is obliged to construe [pro se] pleadings liberally, particularly
when they allege civil rights violations.” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004). See also Erickson v. Pardus, 551 U.S. 89 (2007) (noting that pro se plaintiffs are entitled
to a more indulgent standard); Buczek v. United States, No. 15-CV-273, 2018 WL 2119587, at *2

(W.D.N.Y. May 8, 2018) (“[c]ognizant of the distinct disadvantages that pro se litigants face,
federal courts routinely read their submissions liberally and interpret them to raise the strongest
arguments they suggest”). Applying that standard here, the Court will read the complaint as
asserting constitutional claims pursuant to § 1983. See Johnson v. City of Shelby, 574 U.S. 10
(2014) (plaintiff’s failure to cite § 1983 was not fatal to complaint alleging violations of
plaintiff’s rights under the Fourteenth Amendment). Plaintiff may believe otherwise, but as
explained, the only other option would be for the Court to dismiss the complaint for lack of
jurisdiction.

-7-
III. Timeliness of the Complaint
The Village defendants contend that all of plaintiff’s claims against them should be
dismissed as time-barred. In addressing this argument, the Court must separately consider
plaintiff’s federal and state law claims.

“[I]n New York, the statute of limitations for Section 1983 claims is New York’s general
statute of limitations for personal injury actions, N.Y. C.P.L.R. § 214(5), which is three years.”
Kane v. Mount Pleasant Central Sch. Dist., __ F.4th __, 2023 WL 5281533, at *4 (2d Cir. 2023)
(citing Owens v. Okure, 488 U.S. 235, 250-51 (1989), and Lucente v. County of Suffolk, 980 F.3d
284, 308 (2d Cir. 2020)). “Section 1983 claims generally accrue when a plaintiff knows or has
reason to know of the injury that is the basis of the claim.” Dunn v. Allen, No. 23-CV-731, 2023
WL 6122714, at *2 (N.D.N.Y. Sept. 19, 2023) (citing Hogan v. Fischer, 738 F.3d 509, 518 (2d

Cir. 2013)).
An additional wrinkle in this case is that at the outset of the COVID-19 pandemic, on
March 20, 2020, then-New York Governor Andrew Cuomo issued Executive Order 202.8,
which, as extended by subsequent orders, tolled New York’s limitations periods from March 20
to November 3, 2020, a total of 228 days. Federal courts in New York have applied that tolling
to claims under § 1983. See, e.g., Bell v. Saunders, No. 20-cv-256, 2022 WL 2064872, at *5 n.6
(N.D.N.Y. June 8, 2022) (“the statute of limitations [on plaintiff’s § 1983 claims], as tolled by
Executive Orders, expired three years plus 228 days after the accrual date”); Rich v. New York,

No. 21 CIV. 3835, 2022 WL 992885, at *8 (S.D.N.Y. Mar. 31, 2022) (“The Court concludes,
therefore, that Executive Order 202.8 tolls the statute of limitations for Plaintiff’s §§ 1983 and
1985 claims, which apply New York’s three-year limitations period”).
-8-
Defendants take the position that plaintiff’s claims accrued when he became aware that
the deed from Wollard to VHDC had been recorded with the Orleans County Clerk. Plaintiff
does not appear to take issue with that assertion. Since the core of plaintiff’s claims is that
defendants “stole” his property from him by procuring a conveyance of the Property from

Wollard–after she had already sold the Property to Burks, who sold it to plaintiff–the Court finds
that the relevant date for limitations purposes is the date on which plaintiff learned that VHDC’s
deed had been filed with the clerk.
Section 291 of New York’s Real Property Law provides that a “conveyance of real
property ... may be recorded in the office of the clerk of the county where such real property is
situated ...,” but it does not require such recording. Under New York law, “title to property vests
upon the execution and delivery of the deed, and the fact that the deed may not be recorded until

a later date–or at all–does not affect the validity of the conveyance.” Tomhannock, LLC v.
Roustabout Resources, LLC, 149 A.D.3d 1219, 1221 (3d Dep’t 2017).
Nevertheless, there can be serious consequences from a failure to record a deed. See
Tomhannock, 149 A.D.3d at 1221 (“prudence would suggest that a grantee record his or her
deed”). Section 291 further provides that “[e]very such conveyance not so recorded is void as
against any person who subsequently purchases ... the same real property or any portion thereof,
... in good faith and for a valuable consideration, from the same vendor or assignor, his
distributees or devisees, and whose conveyance, contract or assignment is first duly recorded.”

Under this “race-notice” statute, then, “an unrecorded conveyance is void ... against a subsequent
purchaser in good faith who has paid valuable consideration and has no knowledge or notice of

-9-
the prior unrecorded conveyance.” 80P2L LLC v. U.S. Bank Trust, N.A., 194 A.D.3d 593, 603
(1st Dep’t 2021) (Renwick, J.P., concurring).
Although plaintiff alleges that the Village defendants knew that plaintiff was, or at least
claimed to be the rightful owner of the Property at the time that they recorded VHDC’s deed

(which would defeat a finding of good faith for purposes of § 291), with respect to the accrual of
his § 1983 claims, plaintiff’s causes of action accrued when he became aware that the VHDC
deed had been filed with the county clerk. It was that act which, according to plaintiff,
established that defendants claimed ownership of the Property, and effected their “stealing” of
the Property from plaintiff.
It is not clear precisely when plaintiff first learned that the deed had been recorded, but it
must have been sometime between February 12, 2019, the date on which the deed was recorded,

see Dkt. #15-3, and May 3, 2019, when plaintiff signed a Notice of Claim in which he referenced
the recording of VHDC’s deed. (Dkt. #15-2 ¶ 18.)
If plaintiff found out about VHDC’s deed the day it was recorded, February 12, 2019, he
would have had three years and 228 days from that date to file a claim, i.e., the three-year
limitations period for § 1983 claims plus the 228 days during which that period was tolled
pursuant to the Governor’s Executive Order. See Bowers v. City of Salamanca, 20-CV-1206,
2021 WL 2917672, at *6 (W.D.N.Y. July 12, 2021) (concluding that plaintiff’s § 1983 claim was
timely because it was filed within 3 years and 228 days of accrual). That would have given

plaintiff until September 28, 2022 to commence this action. The complaint was filed on
September 29, 2022.

-10-
In response to defendants’ motion, plaintiff states that he had no knowledge of the
recording of the VHDC deed on the day it was recorded, but he does not state when he did learn
of that fact. Indeed, throughout the complaint and his other papers, plaintiff provides no dates for
most of the events that he describes. All he states in this regard is that he “did not have

knowledge that a deed had been issued [to VHDC] until at least February 15, 2019.” (Dkt. #17-1
at 4.) If he did find out about the deed on that date, that would have given plaintiff until October
1, 2022 to bring this action, and the action would be timely as to his § 1983 claims.
As the statute of limitations is an affirmative defense, on a motion to dismiss, “the
defendant has the burden of demonstrating, based on the allegations in the complaint, that the
claim is untimely.” Egan v. Kennedy, No. 04-CV-6626, 2008 WL 4647740, at *3 (W.D.N.Y.
Oct. 17, 2008). As noted, the same standards apply to motions for judgment on the pleadings.

See McGrath v. Dunecrest Condominium Ass’n, No. 20-CV-656, 2023 WL 2865370, at *2
(N.D.Ind. Apr. 7, 2023) (“a motion for judgment on the pleadings based on failure to comply
with the statute of limitations should be granted only where ‘the allegations of the complaint
itself set forth everything necessary to satisfy the affirmative defense’”) (quoting United States v.
Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). If the defendant meets that initial burden, the burden
then shifts to the plaintiff to present facts showing that his claim falls within an exception to the
statute of limitations. Rouse v. Elliot Stevens, Ltd., No. 13-CV-1443, 2016 WL 8674688, at *3
(S.D.N.Y. June 24, 2016) (citing Katz v. Goodyear Tire and Rubber Co., 737 F.2d 238, 243 (2nd

Cir. 1984)).
Although plaintiff certainly could have pleaded these matters with more specificity–in
particular, by stating when or how he first found out about the existence and recording of
-11-
VHDC’s deed–I cannot find that the complaint on its face indicates that his federal claims are
untimely. I therefore conclude that defendants have not carried their burden in that regard, and
their motion to dismiss the federal claims as time-barred is denied.
The same is not true of plaintiff’s state-law claims, however. To allege common law tort

claims against a municipality or its employees under New York General Municipal Law, the
claimant must serve a notice of claim upon the municipality within ninety days after the claim
arises, N.Y. Gen. Mun. Law § 50-e(1)(a), and the action must be brought “within one year and
ninety days after the happening of the event upon which the claim is based.” Gen. Mun. L.
§ 50-i(c). See Cain v. County of Niagara, No. 20-CV-1710, 2022 WL 616795, at *4 (W.D.N.Y.
Mar. 2, 2022). The general rule in federal court is that “state notice-of-claim statutes apply to
state-law claims.” Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999)

(citing Felder v. Casey, 487 U.S. 131, 151 (1988)). These provisions “apply not only to claims
against municipalities, but also to suits against officers, agents, or employees whose conduct
caused the alleged injury.” Wilburn v. City of Albany, No. 13-cv-1452, 2014 WL 2532477, at *2
(N.D.N.Y. June 5, 2014); accord Rossy v. City of Buffalo, 17-CV-937, 2023 WL 5725283, at *14
(W.D.N.Y. Sept. 5, 2023).
Here, plaintiff timely filed a notice of claim. The notice of claim states on the signature
page, “Dated May 3, 2019,” but immediately below that it states, “Affirmed to before me [sic]
this 3 day of March, 2019,” followed by the notary’s signature and stamp. (Dkt. #15-2 at 7).

Even if the May date is correct, the notice of claim would have been filed 77 days after the
VHDC deed was recorded.

-12-
Again, plaintiff had one year and 90 days after the recording of the VHDC deed, i.e., until
May 12, 2020, to file a judicial action asserting his tort claims against the Village defendants.
That period was tolled, though, by Executive Order 202.8. As of the effective date of that order,
March 20, 2020, plaintiff had 53 days remaining within which to bring an action. The tolling

effect of that order and its subsequent extensions lasted until November 3, 2020, at which time
the limitations clock resumed running. Fifty-three days later was December 26, 2020. Since that
date fell on a Saturday, plaintiff would have had to file an action no later than the following
Monday, December 28, 2020. His present action, filed in September 2022, was therefore
untimely as to his state-law claims against the Village defendants, and those claims are dismissed
as time-barred.

IV. Plaintiff’s Federal Claims
A. Conspiracy Claims
Throughout the complaint, plaintiff repeatedly alleges that each defendant “conspired
with others” (presumably meaning with each other) to deprive him of his rights. Defendants
assert that plaintiff has not adequately pleaded the existence of a conspiracy.
To analyze this issue, it must again first be determined what type of cognizable claim
plaintiff’s allegations might support, since he has eschewed reliance on any federal statutes.
Among the most salient facts in that regard are that plaintiff alleges that most of the defendants

(including all the Village defendants) were state actors, and that they acted under color of law.
Plaintiff also alleges that defendants conspired to cause him harm, including by violating his
constitutional rights (for example, by taking his property without due process of law).
-13-
Those allegations could conceivably support conspiracy claims under 42 U.S.C. §§ 1983
and 1985. Although plaintiff insists that his claims do not arise under § 1983, there is no other
way in which he could assert a viable conspiracy claim falling within the jurisdiction of this
Court.

Both § 1983 and § 1985 create a right of action for civil rights conspiracies, but there are
differences between the two. To state a claim of conspiracy under 42 U.S.C. § 1983, a plaintiff
must show “[i] an agreement between two or more state actors or between a state actor and a
private entity; [ii] to act in concert to inflict an unconstitutional injury; and [iii] an overt act done
in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999) (citations omitted). “[A]bsent an underlying constitutional violation on which to base a
§ 1983 conspiracy claim, a plaintiff’s conspiracy claim fails as a matter of law.” Bertuglia v. City

of New York, 839 F. Supp. 2d 703, 728 (S.D.N.Y. 2012) (citation omitted).
Section 1985 does not require any of the participants in the conspiracy to have been a
state actor, but it only applies to certain types of conspiracies. Two of those–conspiracy to
prevent a public officer from performing his duties, and conspiring to obstruct justice–plainly do
not apply here. The only aspect of § 1985 that might be relevant is the third category, conspiring
to deprive a person or class of persons of their legal rights or privileges.
To state a claim under § 1985(3), the plaintiff must allege: (1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States. United Bhd. of Carpenters &
-14-
Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983); Mian v. Donaldson, Lufkin & Jenrette Sec.
Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). “As to the first of these elements, a plaintiff ‘must
provide some factual basis supporting a meeting of the minds, such that defendants entered into
an agreement, express or tacit, to achieve the unlawful end.’” Doe v. Fenchel, 837 F.App’x 67,

68 (2d Cir. 2021) (quoting Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003)).
A § 1985(3) conspiracy “must also be motivated by some racial or perhaps otherwise
class-based, invidious discriminatory animus behind the conspirators’ action.” Cine SK8, Inc. v.
Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (quoting Thomas v. Roach, 165 F.3d 137,
146 (2d Cir. 1999)). “Requiring an invidiously discriminatory motive as an element of a
§ 1985(3) conspiracy prevents the statute from acting as a ‘general federal tort law’ applying to
all allegedly tortious conspiratorial interferences with the rights of others.” Jenkins v. Miller, 983

F.Supp.2d 423, 458 (D.Vt. 2013) (citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). See
also Straker v. Metropolitan Transit Auth., No. 03-CV-1756, 2005 WL 3287445, at *3 (E.D.N.Y.
Dec. 5, 2005) (“intentional discrimination must motivate the group” of conspirators).
Most of the allegations of conspiracy in the complaint in this case consist of boilerplate
assertions that each defendant “conspired with others” to cause plaintiff’s injuries. See, e.g.,
Complaint at 8, ¶ 36. Plaintiff also alleges that defendants “have engaged in a conspiracy to
deprive [plaintiff] of Constitutionally secured rights” to his property, and to steal his property,
with full knowledge that he owned or had an interest in the Property and that Wollard had no

transferable interest in the Property at the time she deeded it over to VHDC. Id. at 22, ¶¶ 61-64.
The complaint further states that defendants “have conspired for the purpose of depriving
[plaintiff] and/or others based on the class his nationality [sic] of the equal protection of the laws,
-15-
for the purpose of preventing or hindering the constituted authorities of any State or Territory
from giving or securing to all persons within such State or Territory the equal protection of the
laws.” Id. at 23, ¶ 71.
Outside of that, the complaint simply alleges various discrete actions taken by the

individual defendants. Plaintiff alleges that all the individual Village defendants had some
connection to the Village government, but there are no allegations suggesting that they were
working in concert or that they came to some agreement to work together toward an unlawful
goal. Plaintiff’s allegations are therefore insufficient to state a claim.
“It is well settled that claims of conspiracy containing only conclusory, vague, or general
allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to
dismiss.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (citation and internal quotation

marks omitted). See also Fenchel, 837 F.App’x at 68 (“naked assertions” of conspiracy “devoid
of ‘further factual enhancement’ are insufficient to give rise to a plausible entitlement to relief”)
(quoting Ashcroft v. Iqbal, 556 U.S. 678 (2009)) (additional internal quote omitted); L.K. v.
Sewanhaka Central High Sch. Dist., 641 F.App’x 56, 59 (2d Cir. 2016) (affirming dismissal of
§ 1985 conspiracy claim “because plaintiffs have ... failed to plead facts supporting their
conclusory assertion that defendants had an ‘express understanding or tacit agreement’”).
For that reason, plaintiff’s conspiracy claims, whether construed as § 1983 or § 1985
claims, fail. Plaintiff has liberally sprinkled the words “conspiracy” and “conspired” throughout

the complaint, but it is not enough simply to allege an assortment of individual acts and events,
and to assert that a conspiracy underlay them. Plaintiff must allege some particular facts from
which it could plausibly be inferred that defendants had entered into an agreement to achieve
-16-
unlawful ends. He has not done so. See Fenchel, 837 F.App’x at 68 (“To be sure, [plaintiff]
alleges throughout his amended complaint both that [defendants] conspired to deprive him of his
constitutional rights[,] ... [b]ut he fails to plead any facts in support of these conclusory
allegations”).

Despite plaintiff’s insistence that he has not asserted any claims under § 1983, and his
failure even to mention § 1985, the wording of his allegation that defendants, “being two (2) or
more persons have conspired for the purpose of depriving [him] and/or others based on the class
his nationality of the equal protection of the laws, for the purpose of preventing or hindering the
constituted authorities of any State or Territory from giving or securing to all persons within such
State or Territory the equal protection of the laws” seems to be taken directly from § 1985(3).4
As stated, such claims require an allegation of some class-based animus. The complaint’s

only allegation in that regard is the single reference to plaintiff’s “nationality.” It is not clear
what plaintiff means by that, but regardless of what it means, plaintiff has alleged no facts to
suggest that defendants were motivated in any way by animus toward plaintiff on account of his
nationality, race, or membership in some particular class.5 Even giving his allegations the most

4 Section § 1985(3) provides in part:
If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any
State or Territory from giving or securing to all persons within such State or Territory the equal protection
of the laws; ... the party so injured or deprived may have an action for the recovery of damages occasioned
by such injury or deprivation, against any one or more of the conspirators.
5 Although in his response to defendants’ motion plaintiff takes issue with defendants’ statement that
“Plaintiff defines himself as a sovereign citizen,” see Dkt. #15-4 at 9; Dkt. #17-1 at 7, there are suggestions in the
complaint that he has rather idiosyncratic notions concerning governments and governmental authority. He states,
for example, that although his mailing address is in New York, it “is not a part of the corporation known as: ‘THE
UNITED STATES GOVERNMENT’, and therefore said location cannot be represented by corporate state or federal
-17-
generous constructions, plaintiff has alleged no more than that defendants wrongfully deprived
him of his property. None of his allegations indicate that any class-based animus had anything to
do with that. See Mingo v. Augustyn, No. 19-CV-211, 2021 WL 2446856, at *15 (W.D.N.Y.
June 16, 2021) (concluding that plaintiff’s § 1985(3) conspiracy claim should be dismissed

because plaintiff “failed to offer any evidence that he was targeted because of his race or that
defendants’ conduct was motivated by some racial or perhaps otherwise class-based, invidious
discriminatory animus”) (cleaned up); Jianjun Li v. Village of Saddle Rock, No. 20-cv-2289,
2021 WL 1193618, at *10 n.3 (E.D.N.Y. Mar. 30, 2021) (finding that plaintiff failed to allege a
conspiracy, but adding, “A related issue, unraised by the parties, is a dearth in non-conclusory
allegations that an invidious discriminatory animus motivated the conspirators”); Masri v.
Thorsen, No. 17-CV-4094, 2020 WL 1489799, at *8 (S.D.N.Y. Mar. 27, 2020) (plaintiff’s “mere

assertion” of animus, absent any “fact-specific allegations of a causal link between defendants’
actions and plaintiff’s religion,” was insufficient to support § 1985(3) claim).6
The Court also notes that although plaintiff does not expressly assert a conspiracy claim
under 42 U.S.C. § 1986, to the extent that the complaint could be read as asserting such a claim,
the claim would also fail because a violation of § 1986 may proceed only if a plaintiff is able to

zone locators like, zip codes ... .” Complaint at 4 ¶ 6. He also states that he “is living within New York state, and
has done so for several years,” but that he “is not a citizen or resident of the State of New York.” Id. at 5 ¶ 2. He
further asserts that the Village has no authority over him “unless [he] voluntarily consents.” Id. at 17 ¶ 55. These
statements may offer some insight into what plaintiff means by his “nationality,” but as explained, that is ultimately
of no consequence, because he has not alleged facts indicative of animus on defendants’ part.
6 For similar reasons, there is no basis in plaintiff’s allegations for a substantive equal protection claim.
Plaintiff has not alleged that defendants acted with a discriminatory purpose, or that he was treated differently from
similarly-situated persons. See Reynolds v. Barrett, 685 F.3d 193, 204 (2d Cir. 2012) (“liability for an Equal
Protection Clause violation under § 1983 requires personal involvement by a defendant, who must act with
discriminatory purpose”); Reid v. City of New York, No. 20 Civ. 9243, 2022 WL 2967359, at *17 (S.D.N.Y. July 27,
2022) (“Generally, to state an equal protection claim, a Section 1983 plaintiff must prove that he, compared with
others similarly situated, was selectively treated”) (cleaned up).
-18-
establish a predicate claim under § 1985. See Brown v. City of Oneonta, 221 F.3d 329, 341 (2d
Cir. 2000).

B. Eighth Amendment

Plaintiff’s fifth cause of action alleges that plaintiff “was punished and forced to suffer
mental and emotional cruel and unusual punishment in violation of Claimant’s right to due
process of law secured from government and State violation in direct violation of the Fourth and
Eighth” Amendments. Complaint at 26.
The Eighth Amendment’s proscription of cruel and unusual punishments applies only to
convicted prison inmates. See Graham v. Connor, 490 U.S. 386, 392 n.6 (1989); United States v.
Walsh, 194 F.3d 37, 47 (2d Cir. 1999). Although the Due Process Clause of the Fourteenth

Amendment provides similar protections to persons who have not been convicted of a crime, see
Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977), it still generally applies only to persons in
custody or confinement, such as pretrial detainees; see, e.g., Wimbush v. Conway, 768 F.App’x
958, 968 (11th Cir. 2019); Esmont v. City of New York, 371 F.Supp.2d 202, 217 (E.D.N.Y.
2005). See also Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (stating that because pretrial
detainees have not been convicted of a crime, they “may not be punished in any manner–neither
cruelly and unusually nor otherwise”). Plaintiff does not fall into that category, and he has not
alleged that he was personally subject to any governmental custody in connection with these

events.
In any event, such claims still require a showing of state conduct involving an
unreasonable risk of serious harm to the plaintiff’s health or safety. Darnell, 849 F.3d at 35;
-19-
Murrell v. Sheron, No. 21-CV-6576, 2023 WL 1970487, at *4 (W.D.N.Y. Feb. 13, 2023). No
such facts have been alleged here. Although plaintiff has alleged that defendants took actions
that harmed him in some way, none of those actions even approached the sort of cruelly harsh or
punitive conduct proscribed by the Eighth and Fourteenth Amendments.

C. Due Process
Each of plaintiff’s federal claims alleges that the particular wrongs and deprivations
asserted in those claims were effected without due process of law. Plaintiff alleges that both his
personal and real property were searched and seized without due process of law. He also alleges
that he was deprived of liberty and property without due process.
To state a claim for deprivation of the Fourteenth Amendment right to procedural due

process, a plaintiff must establish that he (1) possessed a protected liberty or property interest and
(2) faced a deprivation of that interest without constitutionally adequate process. See O’Connor
v. Pierson, 426 F.3d 187, 197 (2d Cir. 2005). “In adjudicating due process claims,” therefore,
courts “consider two distinct issues: 1) whether plaintiffs possess a liberty or property interest
protected by the Due Process Clause; and, if so, 2) whether existing state procedures are
constitutionally adequate.” Ford Motor Credit Co. v. N.Y.C. Police Dep’t, 503 F.3d 186, 190 (2d
Cir. 2007) (quoting Kapps v. Wing, 404 F.3d 105, 112 (2d Cir. 2005)).
At the pleading stage, the Court finds that plaintiff has adequately alleged a protected

property interest, inasmuch as he alleges that he had purchased and was the rightful owner of the
real property, and that he had stored some personal property inside the building there. The

-20-
question to be decided, then, is whether he has alleged facts showing that state procedures were
either nonexistent or were constitutionally inadequate.7
In assessing the adequacy of state procedures, the nature of the acts giving rise to the
claim must also be considered. “When reviewing alleged procedural due process violations, the

Supreme Court has distinguished between (a) claims based on established state procedures and
(b) claims based on random, unauthorized acts by state employees.” Hellenic American
Neighborhood Action Committee v. City of New York (“HANAC”), 101 F.3d 877, 880 (2d Cir.
1996) (citing Hudson v. Palmer, 468 U.S. 517, 532 (1984)). “When the state conduct in question
is random and unauthorized, the state satisfies procedural due process requirements so long as it
provides meaningful post-deprivation remedy. In contrast, when the deprivation is pursuant to an
established state procedure, the state can predict when it will occur and is in the position to

provide a pre-deprivation hearing.” Rivera-Powell v. New York City Bd. of Elections, 470 F.3d
458, 465 (2d Cir. 2006) (citation omitted).
Although “[t]he distinction between random and unauthorized conduct and established
state procedures” is not always “clear-cut,” id., ultimately, “[t]he underlying question is ‘whether
the state [was] in a position to provide for pre-deprivation process.’” Polito v. City of New York,
No. 15-CV-2301, 2017 WL 6542457, *2 (E.D.N.Y. Dec. 21, 2017) (quoting Hudson v. Palmer,
468 U.S. 517, 534 (1984)). When a plaintiff alleges that the deprivation of a property interest
resulted not from the application of some prescribed state procedures, but from the unlawful acts

of individual government actors, “there is no reasonable way that the state can provide

7 It is not clear what liberty interest plaintiff asserts, but since he has sufficiently pleaded a protected
property interest, the Court need not decide whether he has also pleaded a protected liberty interest.
-21-
pre-deprivation process.” Grune v. Hernandez, No. 22-CV-857, 2023 WL 6065944, at *5
(N.D.N.Y. Sept. 18, 2023) (quoting Polito, 2017 WL 6542457, at *2).
In the case at bar, although plaintiff alleges that the Village “has a policy and custom
under color of law of seizing property without due process of law,” Complaint at 6, ¶ 14, he does

not allege that defendants’ unlawful seizure of his property was effected pursuant to established
state procedures. Rather, he alleges that the defendants individually, unlawfully and without
legal authority stole his property by recording what was in effect a fraudulent deed. That conduct
can only be described as “random and unauthorized” by the state actors involved.
The Court of Appeals for the Second Circuit “ha[s] held on numerous occasions that an
Article 78 proceeding is a perfectly adequate postdeprivation remedy” in such situations.
HANAC, 101 F.3d at 881 (citing cases). See also Rivera-Powell, 470 F.3d at 466 (when

challenged conduct is random and unauthorized, “the existence of a meaningful post-deprivation
remedy ... would automatically satisfy procedural due process”); Locurto v. Safir, 264 F.3d 154,
175 (2d Cir. 2001) (“An Article 78 proceeding ... constitutes a wholly adequate post-deprivation
hearing for due process purposes”).
In response to defendants’ motion, plaintiff contends that “[a]n Article 78 proceeding has
no application in this instance as there was no administration action or decision to be reviewed.”
(Dkt. #17-1 at 10.) That assertion is belied by plaintiff’s own factual allegations, which allege
discrete acts by Village officials and employees to assert VHDC’s ownership of the Property,

including physically entering the Property and changing the locks on the building, and recording
VHDC’s deed. A review of New York case law indicates that such actions are subject to review
under Article 78. See, e.g., Wilson v. Inc. Village of Hempstead, 173 A.D.3d 1050 (2d Dep’t
-22-
2019) (proceeding pursuant to Article 78 “for a judgment declaring that 14 deeds conveying
certain real property from [one defendant to another] are null and void”); Egloff v. Town of
Lewisboro, 89 A.D.3d 792 (2d Dep’t 2011) (describing action as a “proceeding pursuant to
CPLR article 78, in effect, to compel the Town of Lewisboro and Joann Vasi, Enforcing Officer

of the Town of Lewisboro, to set aside the transfer of a deed to real property previously owned by
the plaintiff/petitioner”); Nick Guttman, Inc. v. Vines, 63 A.D.2d 998 (2d Dep’t 1978)
(proceeding pursuant to Article 78 to, inter alia, “compel the Town of Clarkstown to return to
petitioner the property seized by it and (2) vacate and set aside the town’s recordation of a certain
deed to petitioner’s property”).
Thus, plaintiff did have a post-deprivation remedy available to him. That he did not avail
himself of it is of no moment for due process purposes. See Anemone v. Metro. Transp. Auth.,

629 F.3d 97, 121 (2d Cir. 2011) (“[a]n Article 78 proceeding provides the requisite post-
deprivation process–even if [a plaintiff] failed to pursue it”). Likewise, “[e]ven if an Article 78
proceeding would no longer be available, the fact that it was previously available satisfies the
requirements of due process.” Porter v. Town of Fine, N.Y., No. 18-CV-1289, 2022 WL
4094516, at *6 (N.D.N.Y. Sept. 6, 2022). See also Campo v. New York City Employees’ Ret.
Sys., 843 F.2d 96, 102 n. 6 (2d Cir. 1988) (stating that “the fact that Article 78 may not now be
available” to the plaintiff, because it would be time-barred would not affect the court’s
conclusion that plaintiff was afforded due process, “because [plaintiff] had available an Article

78 remedy whether she timely utilized it or not”).
The same principle applies to plaintiff’s claim that defendants took his personal property
that he had stored inside the building on the Property, without due process of law. As to such
-23-
claims, “a plaintiff may bring a state law claim for negligence, replevin or conversion with the
Court of Claims.” Wahid v. Mogelnicki, 406 F.Supp.3d 247, 249 (E.D.N.Y. May 17, 2017)
(citing Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983)). See also Stegemann v. State, 163
A.D.3d 1302, 1304 (3d Dep’t 2018) (holding that Court of Claims properly dismissed claim for

negligent destruction of property, since claimant failed to raise a triable issue of fact regarding
whether law enforcement officers negligently destroyed his property during search). Thus, an
adequate post-deprivation remedy was available to plaintiff for that alleged deprivation as well.
See Suren v. City of New York, No. 19-CV-2659, 2022 WL 5414377, at *21-*22 (E.D.N.Y. Aug.
8, 2022) (“As Plaintiffs have not alleged that they pursued such adequate post-deprivation
remedies[ such as bringing an action in the Court of Claims], their deprivation of property claims
fail as a matter of law”), Report and Recom. adopted in part and modified on other grounds in

part, 2022 WL 4466098 (E.D.N.Y. Sept. 26, 2022); Alloul v. City of New York, No. 09-CV-7726,
2010 WL 5297215, at *6 (S.D.N.Y. Dec. 21, 2010) (dismissing plaintiff’s due process claim
based on the towing and subsequent destruction of plaintiff’s car because “plaintiff failed to
utilize a constitutionally adequate post-deprivation remedy, i.e., pursue a State court action based
on negligence or conversion”).
Plaintiff also alleges the existence of “a pattern and practice that is condoned by
VILLAGE Board/Council/Trustees to allow VILLAGE to have people who are not titled to
posses [sic] the office pretend to be public officers while obtaining unjust benefit, gain, and

enrichment while attempting to exercise authority that is without VILLAGE and to violate
Constitutionally secured rights in an enterprise of corruption.” Complaint at 24, ¶ 75. The basis
for that assertion is plaintiff’s allegation that “some [defendants] hold out to be public officers
-24-
but have failed meet all the requirements to be entitled to perform the duties of their respective
offices by failing to comply with New York County Law §400(5).” Complaint at 23, ¶ 72.
By its terms, New York’s County Law only applies to counties, not to villages or other
municipalities within a county. See County L. § 2. Thus, the statute relied on by plaintiff (which

relates to the certification of elected or appointed county officials) has no relevance to this case.
In any event, plaintiff’s allegation that some or all of the individual Village defendants are not
legitimate officeholders, or that they “pretend” to be Village officers, does not plausibly allege
any violation of plaintiff’s due process rights.
Finally, to the extent that plaintiff asserts a substantive (as opposed to procedural) due
process claim based upon defendants’ alleged theft of his property, his claim is subject to
dismissal as duplicative of his claims under the Fourth and Fifth Amendments, which are

discussed below. See Albright v. Oliver, 510 U.S. 266, 273 (1994); Ashby v. Murphy, No.
17-CV-1099, 2022 WL 18135242, at *9 (W.D.N.Y. Nov. 28, 2022); Dvortsova v. City of
Philadelphia, 585 F.Supp.3d 723, 731 (E.D.Pa. 2022).
For all the reasons stated above, plaintiff has not stated a facially valid claim for denial of
procedural or substantive due process. All of his due process claims are therefore dismissed.

D. Fourth Amendment
Plaintiff alleges that both his real property and personal property were searched and

seized from him by the Village in violation of the Fourth Amendment. In support of their motion
for judgment on the pleadings, the Village defendants focus on the “search” aspect, asserting that
plaintiff has failed to allege that a search occurred. Plaintiff responds that a search can be
-25-
inferred, since defendants took possession of the Property and presumably have gone through the
interior of the building.
After reviewing the complaint, however, I believe that the “seizure” aspect of the Fourth
Amendment is more significant and relevant to plaintiff’s factual allegations. I also conclude

that, applying the standards applicable to Rule 12(c) motions, plaintiff has sufficiently alleged
that defendants have seized his property to state a claim under the Fourth Amendment.
“A ‘seizure’ of property occurs when there is some meaningful interference with an
individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113
(1984). Although Fourth Amendment issues most often arise in the context of criminal matters,
“[t]he Fourth Amendment applies not only to governmental searches and seizures in criminal
investigations, but also in various civil proceedings.” McCabe v. Life-Line Ambulance Serv., 77

F.3d 540, 544 (1st Cir. 1996) (citing Soldal v. Cook County, Ill., 506 U.S. 56, 69-71 (1992), and
O’Connor v. Ortega, 480 U.S. 709, 715 (1987)). See also City of Ontario, Cal. v. Quon, 560
U.S. 746, 756 (2010) (Fourth Amendment’s guarantees apply “without regard to whether the
government actor is investigating crime or performing another function”).
The touchstone of the Fourth Amendment is reasonableness. See United States v.
Knights, 534 U.S. 112, 118 (2001). A seizure of private property without a warrant, absent
exigent circumstances or probable cause, is “presumptively unreasonable.” United States v.
Place, 462 U.S. 696, 701 (1983). “If a possessory interest is established in the seized property, a

court must then determine whether the seizure was reasonable under the Fourth Amendment by
balancing ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interest alleged to justify the intrusion and determine
-26-
whether the totality of the circumstances justified the particular sort of seizure.’” Newsome v.
Bogan, 617 F.Supp.3d 133, 147-48 (W.D.N.Y. 2022) (citing Carroll v. County of Monroe, 712
F.3d 649, 651 (2d Cir. 2013)).
In many cases, there will be no dispute that the government has seized an individual’s

property; in that instance, the court’s focus will be on whether the seizure was reasonable. In the
case at bar, however, it is not certain that plaintiff’s property was seized, since there appears to be
an underlying dispute about the ownership of the Property. If the Village or VHDC legitimately
purchased the Property from the previous lawful owner, then it is difficult to see how defendants
could be said to have seized plaintiff’s property, or how any such seizure could be deemed
unreasonable. The fact remains, however, that plaintiff alleges that he lawfully purchased the
Property and that at the time Wollard deeded the Property to VHDC, she had no interest in the

Property to convey. On a Rule 12(c) motion, the Court must accept the truth of that allegation.
It also must be borne in mind that a seizure of property occurs within the meaning of the
Fourth Amendment “when there is some meaningful interference with an individual’s possessory
interests in that property.” Jacobsen, 466 U.S. at 113 (1984). Even if plaintiff’s alleged
purchase of the Property from 89 Public Square Trust were somehow invalid or void, he may still
have had a possessory interest in the Property. If so, then defendants’ act of taking possession of
the Property would have deprived plaintiff of his possessory interest, and may have constituted a
seizure for purposes of the Fourth Amendment.

The Court cannot and does not find at this point that plaintiff did have a possessory
interest in the Property, but it bears repeating that this action is still at the pleading stage, and that
in deciding defendants’ Rule 12(c) motion, the Court is obliged to assume the truth of plaintiff’s
-27-
allegations. Plaintiff’s allegations that he had keys to the building, that he stored personal items
inside (which have not been returned to him), and that he had hired workers to begin making
repairs to the structure, if true, would all support plaintiff’s assertion that he had at least a
possessory, if not an ownership interest in the Property. At this juncture, then, the Court finds

that plaintiff has adequately alleged that he had a possessory interest, and that defendants seized
the Property. See Vienphuong Ti Ho v. City of Long Beach, No. 19-cv-9430, 2020 WL 8617674,
at *20 (C.D.Cal. Nov. 10, 2020) (concluding that “Defendants have not shown at the pleading
stage that Plaintiff lacked an interest in the disputed real property such that she cannot bring a
claim under the Fourth Amendment for seizure of the land”), Report and Recom. adopted, 2020
WL 8608522 (C.D.Cal. Nov. 10, 2020). Whether a seizure did occur, and if so whether it
violated plaintiff’s rights under the Fourth Amendment, cannot be determined at this juncture. It

remains to be seen whether this claim can withstand a later challenge based on a more complete
record, but defendants’ motion to dismiss the claim under Rule 12(c) must be denied.

E. Takings Clause of the Fifth Amendment
The Takings Clause of the Fifth Amendment, made applicable to the states through the
Fourteenth Amendment, provides that “private property [shall not] be taken for public use,
without just compensation.” U.S. Const. amends. V, XIV, § 1. That requirement applies to all
physical appropriations of property by the government. See Horne v. Dep’t of Agriculture, 576

U.S. 350, 360 (2015). “When the government effects a physical appropriation of private property
for itself or another–whether by law, regulation, or another means–a per se physical taking has

-28-
occurred.” Comm. Housing Improvement Prog. v. City of New York, 59 F.4th 540, 550 (2d Cir.
2023) (citing Cedar Point Nursery v. Hassid, __ U.S. __, 141 S. Ct. 2063, 2071 (2021)).
“In order to state a claim under the Takings Clause, a plaintiff must sufficiently plead:
(1) a protected property interest; (2) that has been taken under color of state law; (3) without just

compensation.” Martell v. City of St. Albans, Vermont, 441 F.Supp.3d 6, 21 (D.Vt. 2020);
accord Waltz v. Board of Educ. of Hoosick Falls Cent. School Dist., No. 1:12-CV-0507, 2013
WL 4811958, at *6 (N.D.N.Y. Sept. 10, 2013). The plaintiff must also allege facts showing that
the property was taken for a public use. Conyers v. City of Chicago, 10 F.4th 704, 711 (7th Cir.
2021) (citing Kelo v. City of New London, 545 U.S. 469, 477 (2005)). A Fifth Amendment
taking claim may also be pleaded together with a Fourth Amendment seizure claim. See Soldal,
506 U.S. at 70 (“Certain wrongs affect more than a single right and, accordingly, can implicate

more than one of the Constitution’s commands”); VienPhuong Ti Ho, 2020 WL 8617674, at *23
(“the Court’s finding that the [complaint] may state a claim under the Fourth Amendment does
not preclude the Court from finding that the [complaint] states a claim under the Takings
Clause”).
In the instant case, plaintiff alleges that he purchased the Property from 89 Public Square
Trust in 2017, and had a deed to the Property. Although he did not record the deed, the Court
finds that plaintiff has sufficiently alleged that he had a protected property interest. See
Tomhannock, 149 A.D.3d at 1221 (“title to property vests upon the execution and delivery of the

deed”).
Plaintiff also alleges that defendants took the Property. Subsequent to plaintiff’s
purchase, defendants, acting on behalf of VHDC, were deeded the Property by Wollard. They
-29-
recorded that deed and allegedly changed the locks on the building and told plaintiff that he could
not enter the Property or make any changes or repairs to the building. While it is not clear at this
point whose title is superior or whether defendants knew about plaintiff’s alleged prior purchase
of the Property at the time they obtained their deed, accepting the truth of plaintiff’s allegations,

defendants’ actions plainly amounted to a taking. It is equally plain that defendants did not
compensate plaintiff for the Property.
Although the complaint does not allege why defendants obtained the Property, or what
use they intended for it, it is reasonable to infer that it was taken for a public use. The Village
defendants are all in some way connected to the Village government, and VHDC is described in
the complaint as a municipal corporation. Complaint at 6, ¶ 19. Accepting the truth of plaintiff’s
allegations, and drawing all reasonable inferences in his favor, the Court concludes that he has

stated a claim under the Takings Clause, as to the real property. See Tyler v. Hennepin County,
Minn., 598 U.S. 631, 639 (2023) (describing a “classic taking in which the government directly
appropriates private property for its own use”) (internal quote omitted).
Plaintiff also asserts a takings claim as to personal property that he allegedly left inside
the building. Plaintiff alleges that after defendants changed the locks, he was unable to retrieve
the items, which have never been returned to him.
It is at least questionable whether those allegations are enough to state a claim under the
Takings Clause, inasmuch as there is no indication that the items in question were taken for a

public use. Assuming they were taken, that appears to have been merely incidental to
defendants’ taking of the building. See Gauthier v. Kirkpatrick, No. 13-cv-187, 2013 WL
6407716 at *7 n. 8 (D.Vt. Dec. 9, 2013) (concluding that plaintiff had not alleged a cognizable
-30-
takings claim because the plaintiff alleged that his “personal property was stolen, not taken by the
government for ‘public use’”); Rowe v. Bell, No. 08-CV-92, 2009 WL 1766803, at *8 (N.D.Ind.
June 19, 2009) (plaintiff’s allegation that jail where he was being held jail allowed shoes, a
watch, and a necklace that his father had mailed to him to be lost or stolen did not state a takings

claim, since it did not show that plaintiff’s property was put to public use); Kahlily v. Francis,
No. 08 C 1515, 2008 WL 5244596, at *2 (N.D.Ill. Dec. 16, 2008) (allegation that someone,
either the defendant police officer or an unidentified person, stole plaintiff’s cell phone and
money, implied that whoever took the property placed the items in private use, rather than public
use, and therefore did not state a claim under the Takings Clause).
Since plaintiff’s takings claim may proceed with respect to the real property, however, the
Court will permit the claim to go forward with respect to his personal property as well. As with

the Fourth Amendment claim, it remains to be seen whether this claim can survive a dispositive
motion based on a more complete record, but at this juncture the claim may go forward.

F. Claims against the Individual Village Defendants
Although the complaint names seven individual Village defendants, i.e., individuals who
allegedly were officers or employees of the Village, the only two who are actually alleged to have
done anything in connection with the underlying events are Vendetti, who allegedly engineered
the purchase of the Property from Wollard, and Sansone, who recorded VHDC’s deed. As to the

other five individuals–Sorochty, DeFillips, Moroz, Nenni and Lynch–plaintiff simply recites the
same boilerplate allegations as to each of them, to the effect that they were acting as agents of the
Village, that they conspired with others, that acted “without proper oaths,” etc. Plaintiff alleges
-31-
that in October 2019 he sent them letters informing them of what was going on, Complaint at 20
¶ 38, but there is no allegation that they did or should have done anything in response.8
It is well established that to prevail on a claim against a state actor under § 1983, a
plaintiff must allege that individual’s personal involvement in the alleged constitutional

violation. Hughey v. Wagner, No. 23-CV-6270, 2023 WL 6445796, at *2 (W.D.N.Y. Oct. 3,
2023) (citing McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004)). For that matter, any claim,
under § 1983 or otherwise, requires pleading facts plausibly showing that the plaintiff is entitled
to relief; it is not enough simply to name a defendant and tack on a conclusory assertion that he
or she acted unlawfully. Fed. R. Civ. P. 8(a); Twombly, 550 U.S. at 555. Because plaintiff has
not alleged any facts about these five defendants, all his claims against them are dismissed.

CONCLUSION
The motion for judgment on the pleadings (Dkt. #15) by defendants the Village of Holley,
Brian Sorochty, Ron Vendetti, John Sansone, James Defillips, Rochelle Moroz, Connie Nenni,
and Kevin Lynch is granted in part and denied in part.
Plaintiff’s claims against defendants Brian Sorochty, James Defillips, Rochelle Moroz,
Connie Nenni, and Kevin Lynch are dismissed in their entirety.
Plaintiff’s fifth, sixth, seventh, eighth, ninth and tenth causes of action are dismissed as to
defendants Ron Vendetti and John Sansone.

8 I also note that although defendants’ memorandum of law in support of their motion points out the lack of
factual allegations about these five defendants, plaintiff’s response does not address this matter or contain any further
allegations about them.
-32-
Plaintiff's first, second, third and fourth causes of action are dismissed as to defendants
Vendetti and Sansone, except to the extent that they assert claims of: (1) unlawful search and
seizure of plaintiffs real and personal property, in violation of the Fourth Amendment; and (2) a
violation of the Takings Clause of the Fifth Amendment.
In all other respects, defendants’ motion is denied.
IT IS SO ORDERED.

DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 20, 2023

-33-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366561. Public record. Not legal advice.