The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PHILIP G. POTTER,
Plaintiff,
-against- MEMORANDUM OF
DECISION AND ORDER
Civil Action No. 23-6456 (GRB)(ARL)
INCORPORATED VILLAGE OF OCEAN
BEACH, et al.
Defendants.
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GARY R. BROWN, United States District Judge:
Sisyphean (adj) - Of or relating to Sisyphus, in Greek mythology a king of Corinth
who was condemned in Hades endlessly to roll a heavy stone up a hill only for it to
roll down again as he reached the top; resembling Sisyphus or that of Sisyphus;
spec. (of labour, a task, etc.) resembling the fruitless toil of Sisyphus; endless,
laborious, and ineffective.
- Oxford English Dictionary1
The allegations in this action, charging purported constitutional violations against the
defendant Village of Ocean Beach (the “Village”) and several of its officials, comprise a tale that
is nothing short of Sisyphean. The amended complaint painstakingly recounts the story of the
Village’s issuance and subsequent revocation of a Certificate of Occupancy, institution and
dismissal of criminal proceedings related thereto, convention of a revocation hearing, rejection of
rental permits based upon the absence of a Certificate of Occupancy and plaintiff’s successful
prosecution of a declaratory judgment action in state court. Unfortunately for plaintiff, however,
this story, like the tale of Sisyphus, is an ancient one, and falls well outside the statute of
limitations. Thus, the matter must be dismissed.
1 Sisyphean, Oxford English Dictionary, https://www.oed.com/dictionary/sisyphean_adj (last visited July 9, 2024).
Procedural History
Growing out of the 2011 revocation of the subject Certificate of Occupancy by defendants,
this action was commenced in this Court in August 2023 by the filing of a complaint. Docket
Entry (“DE”) 1. Defendants moved for a pre-motion conference in connection with an anticipated
Rule 12 motion, and the parties filed letter briefs and presented arguments on January 3, 2024. DE
13. After argument, the Court deemed the motion made, and recognizing “a fundamental statute
of limitations problem,” the absence of allegations to support a continuing violation theory, and
looming ripeness issues, dismissed the complaint, granting leave to refile within 60 days. DE 14
at 7, 15.
Plaintiff filed an amended complaint. DE 15. Defendants moved to dismiss for failure to
state a claim, which has now been fully briefed. DE 19. This opinion follows.
Factual Background
The allegations of the amended complaint, assumed true for the purpose of this motion
(though the conduct of the Village, as established through publicly accessible documents, is at
times truly difficult to believe), include the following:
Plaintiff, a New York City resident, acquired a seasonal residence on Fire Island within the
confines of the Village in 2009. DE 15 ¶¶ 22, 31. After obtaining a permit, he demolished the
existing structure and commenced construction of a two-story wood structure that same year. Id.
¶¶ 32, 33. In July 2010, the Village issued a Permanent Certificate of Occupancy for the new
residence. Id. ¶ 40.
From there, the story takes a troubling turn. The complaint alleges that in 2011, well after
the issuance of the Certificate of Occupancy, the Village, at times acting through its Building
Inspector:
- Falsely indicated that a final survey had not been provided until July 2011,
- Stated that the survey revealed violations of the Village’s building code and
required the removal of a deck,
- Altered the original Certificate of Occupancy maintained in its files by adding a
handwritten “X” through the word permanent and adding the words “Void as of
July 15, 2011,” and
- Issued a letter indicating that the Village had revoked the Certificate of Occupancy
and noted additional violations.
Id. ¶¶ 44-51. Then, in 2012, the Village “doubled down,” issuing eight criminal informations, a
criminal summons and a bench warrant for plaintiff returnable before its Village Justice Court for
zoning and building violations. Id. ¶¶ 55-60. Faced with a motion to dismiss the charges, the
Village prosecutor stated he could not, in good faith oppose that motion because “[t]he Village of
Ocean Beach did issue a Certificate of Occupancy”; in 2014, Village Justice William Wexler
dismissed the criminal charges, finding that the plaintiff “had a C of O.” Id. ¶¶ 62, 63 (emphasis
removed).
In June 2014, the Village commenced a “revocation hearing” concerning the subject
Certificate of Occupancy, yielding a recommendation by a hearing officer that the certificate be
revoked for noncompliant zoning. Id. ¶¶ 65-70. In 2015, that matter was “tabled subject to recall”
by the Village’s Board of Trustees. Id. ¶¶ 71-72. In 2016, 2017 and 2018, the Village denied
plaintiff rental permits based upon purported zoning issues, thus denying him “potentially lucrative
rental income from the property.” Id. ¶ 77. These allegations all occurred well outside the relevant
limitations period.
In 2019, plaintiff brought a declaratory judgment action in state court challenging the
failure to issue a Certificate of Occupancy and arguing that the Village had validated the CO issued
on July 2, 2010. DE 15-14 at 2. Notably, according to a decision issued in that matter, plaintiff
argued, at that time, that defendants “failed to act in this matter for over five years.” Id. In 2020,
the state court dismissed the action based upon plaintiff’s failure to comply with the notice of claim
requirement. Id. A second such action, filed the following year, was dismissed in 2021 as
premature based upon “the Village Board having not made a decision as to the revocation of the
petitioners’ CO at this time.” DE 15-15 at 3. The state court remanded the decision to the Village
Board for a further determination. Id.
Following the dismissal of plaintiff’s initial complaint in this action, plaintiff caused to be
conducted a Certificate of Occupancy search, the report from which is annexed to the amended
complaint. See DE 15-16. According to the allegations of the amended complaint, in response to
the 2024 Certificate of Occupancy search, “the Village, on or about January 25, 2024, revoked the
Certificate of Occupancy.” DE 15 ¶ 88. Yet the report, annexed to the amended complaint, does
not so indicate. Rather, the report contains an email from the current building inspector that states
as follows:
Though it appears there were several [temporary certificates of occupancy] issued
and than [sic] a [permanent certificate of occupancy] issued from the multiple page
document previously attached; this is a moot issue since the attached CO revocation
letter dated July 15, 2011, revokes any CO that may have been issued.
DE 15-16 at 4; see also DE 15 ¶ 89 (repeating this text verbatim).
Based upon these allegations, plaintiff purports to set forth causes of action predicated upon
violations of procedural and substantive due process in violation of 42 U.S.C. § 1983, municipal
liability under Monell, and civil conspiracy to violate constitutional rights under 42 U.S.C. § 1985.
Standard of Review
The oft-repeated and well-understood standard of review for a motion to dismiss under
Fed. R. Civ. P. 12(b)(6) has changed little from the first decade of this century when the Supreme
Court issued its decisions in Iqbal and Twombly. My learned colleague Judge Louis Scarcella
recently set forth a nuanced reiteration of the standard, which follows:
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) “does not
require detailed factual allegations, but it demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S.Ct.
1937. A defendant may move to dismiss a complaint under Rule 12(b)(6) for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “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.” Id. To meet this standard, a plaintiff must allege sufficient facts to show
“more than a sheer possibility that a defendant has acted unlawfully.” Id. The
allegations “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
In ruling on a Rule 12(b)(6) motion, “the duty of a court is merely to assess the
legal feasibility of the complaint, not to assay the weight of the evidence which
might be offered in support thereof.” DiFolco v. MSNBC Cable LLC, 622 F.3d 104,
113 (2d Cir. 2010) (internal citation and quotation marks omitted). Where a plaintiff
has not “nudged [its] claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
“Applying this plausibility standard is ‘a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.’” McCall v.
Chesapeake Energy Corp., 817 F. Supp. 2d 307, 312 (S.D.N.Y. 2011) (quoting
Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). Although all well-pleaded factual
allegations in the complaint are assumed true for purposes of a motion to dismiss,
see Koch, 699 F.3d at 145, this principle is “inapplicable to legal conclusions,” and
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The
Court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209
(1986).
In re Molina, 657 B.R. 172, 181 (Bankr. E.D.N.Y. 2023). In short, assuming the allegations of the
complaint to be true and drawing inferences in favor of the plaintiff, the factual matter asserted
must contain claims that are facially plausible.
Discussion
With respect to § 1983 claims, this Court must apply the state statute of limitations for
personal injury actions, which is three years under New York C.P.L.R. § 214(5). Kane v. Mount
Pleasant Cent. Sch. Dist., 80 F.4th 101, 107 (2d Cir. 2023) (citation omitted). To be actionable,
the matters complained of must have accrued within three years prior to the filing of this action.
With respect to the 2011 revocation of the Certificate of Occupancy, the seemingly ill-considered
criminal charges in 2012 and the denial of rental permits in 2016 through 2018, all of these actions
occurred well outside the limitations period. Though federal law provides that a claim does not
accrue in absence of notice, none of the allegations suggest that the plaintiff was unaware of any
of the defendants’ actions for any appreciable period of time; indeed, the litigative record suggests
precisely the opposite.
Thus, the only theories requiring analysis are the due process claims arising from the
alleged failure of defendants to act following the 2021 state court remand to the Village to conduct
a hearing as to the propriety of the revocation of the Certificate of Occupancy. To press such a
claim, however, the plaintiff must allege an entitlement to right claimed. As a general matter,
“federal courts should not become zoning boards of appeal to review nonconstitutional land-use
determinations by the Circuit’s many local legislative and administrative agencies.” Zahra v.
Town of Southold, 48 F.3d 674, 679–80 (2d Cir. 1995) (citation and internal marks omitted). As
the Second Circuit explained:
When an unsuccessful applicant for a governmental permit claims that an official
or regulatory body has violated due process, the framework for evaluating the claim
is the well-developed property interest analysis, which has its origins in the
Supreme Court's decision in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct.
2701, 2709, 33 L.Ed.2d 548 (1972). The focus of this analysis is on the nature of
the applicant's interest in the approval being sought, specifically whether the
applicant has a clear entitlement to the approval sought from the government
official or administrative body. See, e.g., RRI Realty Corp. v. Incorporated Village
of Southampton, 870 F.2d 911 (2d Cir.) (analyzing whether applicant possessed
property interest in building permit), cert. denied, 493 U.S. 893, 110 S.Ct. 240, 107
L.Ed.2d 191 (1989); Sullivan v. Town of Salem, 805 F.2d 81, 84–85 (2d Cir.1986)
(analyzing whether applicant possessed property interest in certificate of
occupancy); Yale Auto Parts v. Johnson, 758 F.2d 54, 58–60 (2d Cir.1985)
(analyzing whether applicant possessed property interest in permit to use property
as automobile junkyard).
In Yale Auto Parts, 758 F.2d at 59, we stated that a “legitimate claim of entitlement”
exists where, “absent the alleged denial of due process, there is either a certainty or
a very strong likelihood that the application would have been granted.” This test
focuses on the amount of discretion committed to the issuing authority, not the
estimated probability that the authority would act favorably in a particular case. See
RRI Realty, 870 F.2d at 918. As we observed in RRI Realty, “[t]he ‘strong
likelihood’ aspect of Yale Auto Parts comes into play only when the discretion of
the issuing agency is so narrowly circumscribed that approval of a proper
application is virtually assured; an entitlement does not arise simply because it is
likely that broad discretion will be favorably exercised.” Id. Put another way, “[t]he
fact that the permit could have been denied on non-arbitrary grounds defeats the
federal due process claim.” Id.
Walz v. Town of Smithtown, 46 F.3d 162, 167–68 (2d Cir. 1995).
Here, the Court is not faced with a question of, for example, the propriety of the filing of
criminal charges against plaintiff (about which there has already been a significant judicial
finding); rather, the issue turns on the discretion afforded the Village in the matter remanded to it
in the 2021 state court decision. That discretion is described in the state court order: the matter
was not remanded with directions for a particular outcome. Rather, the state court left the Village
with substantial discretion in making a determination, holding only that “the matter is remitted for
a public hearing before the Village Board . . . on the revocation of the CO at issue.” DE 15-15 at
3.
That leaves plaintiff solely with a complaint of the failure of the Village to hold the directed
hearing since the state court remand in 2021. Importantly:
The mere existence of procedures for obtaining a permit or certificate do not, in
and of themselves, create constitutional “property interests.” Were we to hold
otherwise, aggrieved property owners would be empowered to bring constitutional
challenges at virtually every stage of the building process in municipalities. We
expressly decline to announce a rule that would obligate federal courts to consider
endless numbers of alleged “property interests” arising not from the benefits
themselves, but as extensions of existing or sought property interests.
Zahra, 48 F.3d at 681. Thus, the alleged failure of the Village to hold the hearing as directed
cannot provide the basis for a due process claim. And undoubtedly plaintiff has alternative avenues
to enforce his rights through the state court system.
Conclusion
As the amended complaint contains solely claims that are barred by the statute of
limitations or are otherwise unactionable, the motion to dismiss is GRANTED. The Clerk shall
close the case.
SO ORDERED.
Dated: July 9, 2024
Central Islip, New York
/s/ Gary R. Brown
GARY R. BROWN
UNITED STATES DISTRICT JUDGE