# Schachtler Stone Products, LLC v. Town of Marshall

> District Court, N.D. New York · September 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10660146

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 3, 2024
- **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/10660146

## How later opinions describe it (automated extraction)

- noting that the district court “may retain jurisdiction” following reversal of a decision relied upon for res judicata effect
- finding “despite the additional relief sought in the Article 78 proceeding, we conclude that the declaratory judgment exception should apply” and refusing to apply res judicata

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

SCHACHTLER STONE PRODUCTS, LLC,
SHACHTLER FAMILY TRUST, ERIC T.
SCHACHTLER and PJK PROPERTIES, LLC,

Plaintiffs, 6:21-cv-001100 (AMN/MJK)

v.

TOWN OF MARSHALL, TOWN BOARD OF
THE TOWN OF MARSHALL, ZONING BOARD
OF APPEALS OF THE TOWN OF MARSHALL,
and DANIEL J. FORD,

Defendants.

APPEARANCES: OF COUNSEL:

FOGEL & BROWN, P.C. MICHAEL A. FOGEL
120 Madison Street
Syracuse, New York 13057
Attorneys for Plaintiffs Schachtler Stone
Products, LLC, Schachtler Family Trust,
Eric T. Schachtler and PJK Properties, LLC

FITZGERALD MORRIS BAKER FIRTH, P.C. JOHN D. ASPLAND, ESQ.
68 Warren Street COREY A. RUGGIERO, ESQ.
Glens Falls, NY 12801
Attorneys for Defendants Town of Marshall,
Town Board of the Town of Marshall, Zoning
Board of Appeals of the Town of Marshall
and Daniel J. Ford

Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On July 7, 2021, Plaintiffs Schachtler Stone Products, LLC (“Schachtler Stone”),
Schachtler Family Trust (the “Family Trust”), Eric T. Schachtler, and PJK Properties, LLC
(collectively, “Plaintiffs”) commenced this action in New York Supreme Court, Oneida County
pursuant to 42 U.S.C. § 1983 (“§ 1983”) and § 1985 (“§ 1985”) against Defendants Daniel J. Ford
(“Defendant Ford”), the Town Board of the Town of Marshall (the “Town Board”), the Town of
Marshall (the “Town”), and the Zoning Board of Appeals of the Town of Marshall (the “ZBA”)
(collectively, the “Defendants”), asserting violations of their constitutional rights to due process

and equal protection based on the alleged hinderance of Plaintiffs’ mining activities. Dkt. No. 2.
On October 5, 2021, Defendants filed a Notice of Removal to the Northern District of New York.
Dkt. No. 1.1 On August 21, 2023, Plaintiffs filed an Amended Complaint. Dkt. No. 31. Now
pending before the Court is Defendants’ motion to dismiss Plaintiffs’ Amended Complaint. Dkt.
Nos. 39 (the “Motion”). For the reasons that follow, the motion is granted in part and denied in
part. Plaintiffs’ claim based on substantive due process is dismissed in its entirety. Plaintiffs’
claim based on a “class of one” theory of equal protection is dismissed. Plaintiffs’ claim based on
a selective enforcement theory of equal protection is dismissed against the Town Board and the
ZBA.

II. BACKGROUND
The following facts are drawn from the Amended Complaint and the exhibits attached the
Amended Complaint unless otherwise noted and are assumed to be true for purposes of ruling on
the Motion. See Div. 1181 Amalg. Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of
Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam); see also Chambers v. Time Warner, Inc., 282
F.3d 147, 153 (2d Cir. 2002) (“On a motion to dismiss, a court may consider documents attached
to the complaint as an exhibit”) (quotation omitted).
Plaintiffs PJK Properties, LLC and the Family Trust own property located on Shanley Road

1 On January 19, 2023, the case was reassigned to the undersigned. Dkt. No. 17.
in the Town of Marshall, New York, which is located in Oneida County. Dkt. No. 31 at ¶ 22.
Plaintiffs own and operate a quarry at the property (the “Schachtler Quarry”). Id. Defendant
Ford, who is the Town’s Code Enforcement Officer, owns property with a boundary approximately
500 feet from the Schachtler Quarry. Id. at ¶ 39. On April 10, 2013, the ZBA granted Plaintiffs a
Special Use Permit (“SUP”), which was required by the Town’s zoning ordinance to conduct

mining activities at the Schachtler Quarry. Dkt. No. 31 Exhibit A at 4-5.2 After obtaining the
Town’s approval, Plaintiffs sought approval from New York State. On October 19, 2018, the New
York State Department of Environment Conservation (“DEC”) granted Plaintiffs a Mining Permit
after conducting an environmental review pursuant to state law. Dkt. No. 31 at ¶ 25. During the
required environmental review, Plaintiff’s application for the DEC Mining Permit was subject to
public comment, and Defendant Ford provided comment. Id. at ¶ 28. After obtaining the SUP
and the DEC Mining Permit, Plaintiffs were free to mine at the Schachtler Quarry, and Plaintiffs
incurred expenses to prepare their mining operation. Id. at ¶¶ 24, 30, 31.
In April 2019, Plaintiffs applied for a modification of their DEC Mining Permit to allow

blasting as an extraction method. Id. at ¶ 32. In response to Plaintiffs’ modification application,
the DEC conducted another environmental review which included another opportunity for public
comment. Id. at ¶ 33. The Town did not comment on the application, and indeed, participated in
the environmental review. Id. at ¶ 34. Plaintiffs allege Defendant Ford requested additional time
to provide comment during the environmental review, delaying the ultimate determination of the
application by the DEC. Id. at ¶ 37. The Amended Complaint also alleges, directly and by
reference, that Defendant Ford sent letters to both the Town and the DEC expressing his opposition

2 Where it exists, citations to docket entries utilize the pagination generation by CM/ECF, the
Court’s electronic filing system. Where such pagination does not exist, citations utilize the docket
entry’s internal page numbers.
to mining at the Schachtler Quarry. Id. at ¶¶ 46, 47.3 On February 6, 2020, the DEC approved the
modification application. Id. at ¶ 38.
After receiving approval for the modification, Plaintiffs sent a notice to the Schachtler
Quarry’s neighboring property owners, including Defendant Ford. Id. at ¶ 39. Shortly after
receiving notice, the Amended Complaint alleges Defendants took actions that hindered and

prevented Plaintiffs’ mining activities at the Schachtler Quarry. Id. at ¶ 3. First, the Amended
Complaint alleges Defendant Ford issued a Notice of Violation, dated April 9, 2020, with the goal
of halting mining activities at the Schachtler Quarry. Id. at ¶ 40. Second, Plaintiffs allege
Defendant Ford issued a Stop Work Order, dated April 11, 2020, which threatened Plaintiffs with
civil and criminal penalties and imprisonment. Id. at ¶ 41. Third, the Amended Complaint alleges
Defendant Ford issued a Certification, dated April 30, 2020, in response to Plaintiffs’ appeal of
the Notice of Violation and Stop Work Order. Id. at ¶ 43. Finally, Plaintiffs allege the ZBA passed
a resolution, dated October 14, 2020, which denied their appeal and upheld the enforcement actions
issued by Defendant Ford, effectively prohibiting mining activity at the Schachtler Quarry (the

“ZBA Resolution”). Id. at ¶ 66. The Amended Complaint also alleges the Town shared counsel
with Defendant Ford during these proceedings. Id. at ¶ 99. The exhibits to the Amended
Complaint clarify these actions were premised on the Town’s notion that Plaintiffs did not hold a

3 See also Schactler Stone Products, LLC et al. v. Town of Marshall et al., Index No. EFCA2020-
001052 (Sup. Ct. Oneida Cnty.), Dkt. 134 at ¶ 174. While the docket entries of the state court
proceeding are arguably referenced in the Amended Complaint and its attached exhibits, the court
may consider documents that are “integral” to the pleadings even if they are neither physically
attached to, nor incorporated by reference into, the pleadings. See Mangiafico v. Blumenthal, 471
F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d
Cir. 2002)). Here, as evidenced by the Amended Complaint’s heavy reliance on the Article 78
proceeding’s “effect” in rendering the alleged enforcement actions invalid, the docket in that case
is integral to the Plaintiffs’ allegations. Id. Regardless, “dockets sheets are public records of which
the court c[an] take judicial notice” on a motion to dismiss. Id.
valid SUP. Dkt. No. 31 Exhibit A at 25. Plaintiffs allege each of these acts were “invalid,” Dkt.
No. 31 at ¶ 9, and constituted a “deliberate abuse of authority,” id. at ¶ 5, by Defendants for the
purpose of protecting Defendant Ford’s “demonstrated financial interest” in preventing mining at
the Schachtler Quarry, id. at ¶ 120. Plaintiffs allege these actions have caused, and continue to
cause, damage to Plaintiffs in the form of loss of sales and profits, interference with the Plaintiffs’

mining business, and attorneys’ fees incurred in opposing the actions. Id.
Plaintiffs sued in the New York Supreme Court, Oneida County pursuant to the New York
Civil Practice Law and Rules (“CPLR”) Article 78, which permits challenges to official
determinations by administrative agencies and public bodies (the “state court proceedings”). Id.
at ¶ 4. Plaintiffs also brought a claim for declaratory relief. Id. There, the court determined the
Town and Defendant Ford’s actions were baseless and a “deliberate abuse of authority” and
rendered the Notice of Violation, Stop Work Order, Certification, and ZBA Resolution void. Id.
On appeal, the Appellate Division, Fourth Department affirmed the findings of the New York
Supreme Court but vacated the trial court’s granting of declaratory relief on procedural grounds.

Id. at ¶ 70; see also Schachtler Stone Products, LLC v. Town of Marshal, 209 A.D.3d 1316, 1319
(4th Dept. 2022).
Plaintiffs allege that Defendants’ actions violated their Fourteenth Amendment rights to
substantive due process and equal protection and seek relief pursuant to § 1983. Dkt. No. 31 at ¶¶
74-127. Plaintiffs also allege that Defendants conspired to violate their rights and cause injury and
seek relief pursuant to § 1985.
III. STANDARD OF REVIEW
A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is
properly granted “when the court lacks statutory or constitutional authority to adjudicate it.”
Cayuga Indian Nation of New York v. Vill. of Union Springs, 293 F. Supp. 2d 183, 187 (N.D.N.Y.
2003) (citing Luckett v. Bure, 290 F.3d 493, 496 (2d Cir. 2002)). To resolve such a motion, the
court “accepts as true all the factual allegations in the complaint and must draw all reasonable
inferences in favor of the plaintiff.” Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)
(citing Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir.

1997)). As relevant here, “federal question jurisdiction exists where ‘a well-pleaded complaint
establishes either that federal law creates the cause of action or that the plaintiff’s right to relief
necessarily depends on resolution of a substantial question of federal law.’” Union Springs, 293
F. Supp. 2d at 188 (quoting Perpetual Sec. v. Tang, 290 F.3d 132, 137 (2d Cir. 2002)).
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal
sufficiency of a party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007).
In considering legal sufficiency, a court must accept as true all well-pled facts in the complaint
and draw all reasonable inferences in the pleader’s favor. See ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption, however, does not

extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court’s review of a motion to dismiss is generally limited to the facts presented in the
pleadings, the court may consider documents that are “integral” to the pleadings even if they are
neither physically attached to, nor incorporated by reference into, the pleadings. See Mangiafico,
471 F.3d at 398 (quoting Chambers, 282 F.3d at 152-53).
To survive a motion to dismiss, a party need only plead “a short and plain statement of the
claim,” FED. R. CIV. P. 8(a)(2), with sufficient factual “heft to show that the pleader is entitled to
relief,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this
standard, a pleading’s “[f]actual allegations must be enough to raise a right of relief above the
speculative level,” id. at 555 (citation omitted), and present claims that are “plausible on [their]
face,” id. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(citation omitted). “Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”

Id. (quoting Twombly, 550 U.S. at 557). Ultimately, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, or where a plaintiff
has “not nudged [its] claims across the line from conceivable to plausible, the . . . complaint must
be dismissed.” Id. at 570.
IV. DISCUSSION
In support of the Motion, Defendants assert several defenses and arguments which vary in
scope. See generally Dkt. No. 39-2. The Court addresses Defendants’ arguments as follows: (1)
those which would preclude the claims in their entirety, (2) those which would warrant the
dismissal of claims against particular Defendants, and (3) those which address the merits of

Plaintiffs’ claims.
A. Standing
First, Defendants challenge Plaintiffs’ standing to bring their claims, arguing that the
Amended Complaint fails to demonstrate each Plaintiff’s individual standing to bring this suit.
Dkt. No. 39-2 at 14-19; Dkt. No. 45 at 2 (citing Seife v. United States HHS, 440 F. Supp. 3d 254,
272 (S.D.N.Y. 2020) and Monaco v. Stone, No. CV-98-3386, 2002 WL 32984617, at *18
(E.D.N.Y. Dec. 20, 2002)). The Court “address[es] the issue of standing first because ‘standing is
jurisdictional under Article III’ and is thus ‘a threshold issue in all cases.’” Saba Capital Master
Fund, LTD. V. Blackrock ESG Capital Allocation Trust, 23-8104 (L), 2024 WL 3174971, at *1
(2d Cir. June 26, 2024) (quoting Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 117
(2d Cir. 1991)).
To establish standing, a plaintiff must demonstrate (1) an injury in fact that is concrete and
particularized, (2) that the injury is traceable to the alleged actions of the defendant, and (3)
redressability. See Wang v. Bethlehem Cent. Sch. Dist., 1:21-cv-1023 (LEK/DJS), 2022 WL

3154142, at *4 (N.D.N.Y. Aug. 8, 2022) (citing Hollingsworth v. Perry, 570 U.S. 693, 704 (2013)).
Plaintiffs must also establish they “ha[ve] been injured ‘in a personal and individual way.’” U.S.
v. $179,710 in U.S. Currency, 1:20-CV-1607 (GTS/TWD), 2021 WL 5961312, at *2 (N.D.N.Y.
Nov. 2, 2021) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)). Defendants
seemingly challenge whether Plaintiffs have alleged an injury in fact, whether that injury is
traceable, and whether that injury is sufficiently individualized.4 Specifically, Defendants argue
Plaintiffs fail to identify “(1) which individually named Plaintiff allegedly suffered harm; (2) the
nature of the harm suffered by each individually named Plaintiff; or (3) to which of the four
individually named Defendants each alleged harm may be traceable and on what basis.” Dkt. No.

39-2 at 17 (emphasis removed). However, the Court finds that Plaintiffs “allege facts that
affirmatively and plausibly suggest that they [each] have standing to sue.” Step by Step, Inc. v.
City of Ogdensburg, 176 F. Supp. 3d 112, 123 n.3 (N.D.N.Y. 2016) (citation omitted).
First, it is indisputable that Plaintiffs have alleged the general existence of “an injury in fact
that is concrete and particularized.” Wang, 2022 WL 3154142, at *4. The Amended Complaint
details harm through “loss of sales and profits from the Schachtler Quarry, interference with
Schachtler’s mining business and attorneys’ fees being incurred by Schachtler to address the

4 Defendants do not appear to contest redressability. See Dkt. No. 39-2 at 8 (merely defining
redressability without addressing whether the alleged injury could be remedied by the requested
relief).
unlawful and unconstitutional actions by Defendants.” Dkt. No. 31 at ¶ 3. Plaintiffs also allege
that they incurred expenses preparing the property for mining operations. Id. at ¶¶ 29, 30. These
types of harm are sufficient to establish Article III standing. See Sykes v. Mel Harris and Assocs.,
LLC, 757 F. Supp. 2d 413, 427-28 (S.D.N.Y. 2010) (finding the “incurring of legal costs” to defend
against Defendant’s actions constitutes sufficient injury); Boyer Works USA, LLC v. Spin Master

Products, 21 Civ. 7468 (AKH), 2022 WL 1266090 at *4 (S.D.N.Y. Apr. 28, 2022) (finding injury
in fact through a loss of business); Anderson Group, LLC v. City of Saratoga Springs, 805 F.3d
34, 46 (2d Cir. 2015) (finding expenditures on planned project constitute “injuries for standing
purposes”).
Second, the Amended Complaint explicitly ties those losses to the actions of each
Defendant so that they are “traceable.” Plaintiffs allege Defendant Ford issued the Notice of
Violation, the Stop Work Order, and the Certification, in response to which Plaintiffs were forced
to incur expenses to defend themselves before the Zoning Board of Appeals and the New York
Supreme Court, Oneida County. Dkt. No. 31 ¶ 40, 41, 43. Further, the Zoning Board of Appeals

allegedly issued the 2020 ZBA Resolution which constituted the Town’s final determination on
the status of Plaintiffs’ SUP and similarly forced Plaintiffs to incur expenses defending their right
to mine. Id. at ¶ 66. The Amended Complaint also alleges that Defendant Ford and the Town
purposefully delayed the approval of Plaintiffs’ mining permit and caused lost business. Id. at ¶
37 (alleging delay caused by Defendant Ford’s actions), ¶ 72 (alleging the Town’s actions resulted
in undue delay, which had a “negative impact on the business of the Schachtler Quarry”).
Especially when considered with the Court’s decision to dismiss the claims against the ZBA and
the Town Board as redundant with those against the Town, the Amended Complaint sufficiently
traces the alleged harms to each remaining Defendant. See supra Section IV. C.
Arguably murkier on the face of the Amended Complaint, however, is whether Plaintiffs
have identified which of the Plaintiffs experienced each of the harms sufficient to establish
standing, and thus, whether Plaintiffs have each demonstrated “a personal and individual” injury.
$179,710 in U.S. Currency, 2021 WL 5961312, at *2. Defendants take issue with the Amended
Complaint’s defining of “Schachtler” to repeatedly refer to the Plaintiffs collectively. Dkt. No.

39-2 at 17. But Defendants seemingly ignore the most obvious reading of the Amended
Complaint: when using the collective “Schachtler,” Plaintiffs are truly indicating that each of the
Plaintiffs engaged in the described activity or experienced the described loss. For example,
reading the Amended Complaint plainly, Plaintiffs’ allegations that Defendants’ activities caused
“Schachtler” to incur attorneys’ fees must be read to indicate that Schachter Stone Products, LLC,
the Family Trust, Eric T. Shachtler, and PJK Properties, LLC all incurred attorneys’ fees. Dkt.
No. 31 at ¶ 3. Similarly, the Amended Complaint must be read to mean that each of the Plaintiffs
“incurred expenses in connection with preparing the Property for mining.” Id. at ¶ 30. While the
Court is skeptical that every use of the collective “Schachtler” truly indicates that all the Plaintiffs

engaged in the described activity in their individual capacity, this Court must read the Amended
Complaint in the light most favorable to Plaintiffs. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). Regardless, on the allegations that matter for
purposes of standing, the Court notes it is plausible that each of the Plaintiffs would have incurred
legal fees defending themselves, or incurred expenses in reliance on the SUP, both of which are
injuries in fact that can be traced to the Defendants. Thus, Plaintiffs have alleged sufficient facts
to establish personal standing for each Plaintiff.5

5 Defendants over-interpret the requirement that Plaintiffs must allege a personal and individual
injury. “[S]tanding is not to be denied simply because many people suffer the same injury.”
United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687
In any event, even if the Court were not required to take the collective “Schachtler” at face
value, the Court finds sufficient individualized allegations and support in both the Amended
Complaint and relevant supporting materials to avoid dismissal for each Plaintiff. The Amended
Complaint itself alleges the Schachtler Quarry “is located on property owned by the Schachtler
Family Trust and PJK Properties, LLC,” and that Eric T. Schachtler is the trustee of the Family

Trust. Dkt. No. 31 at ¶¶ 12, 22. As owners of the property in question, the Family Trust and PJK
Properties, LLC were the “direct subjects of the government action[s]” taking enforcement
measures, and thus, “Plaintiffs have plausibly alleged the existence of sufficient injury to warrant
judicial intervention” as to those three plaintiffs. Dean v. Town of Hempstead, 527 F. Supp. 3d
347, 398 (E.D.N.Y. 2021). Separately, “the denial of an entity’s special use permit application . .
. is an injury sufficient in itself to confer standing.” Anderson Group, LLC v. City of Saratoga
Springs, 805 F.3d 34, 46 (2d Cir. 2015) (citing Reg’l Econ. Cmty. Action Program, Inc. v. City of
Middletown, 294 F.3d 35, 46 n. 2 (2d Cir. 2002), superseded by statute on other grounds, ADA
Amendments of 2008, Pub. L. No. 110–325, 122 Stat. 3553, as recognized in McCulloch v. Town

of Milan, 559 Fed. Appx. 96, 98 (2d Cir. 2014) (unpublished decision)). Here, the Court sees no
reason to draw a distinction between “the denial” of an SUP and the alleged attempted invalidation
of an SUP for purposes of establishing injury. Therefore, the Amended Complaint alleges
sufficiently individualized harm against the PJK Properties, LLC, the Family Trust, and Eric T.

(1972). Here, though the Amended Complaint alleges Plaintiffs each suffered similar injuries (i.e.,
paying legal costs, incurring preparation expenses), those injuries are personal to each Plaintiff so
long as they were experienced by each Plaintiff. Instead, the doctrine of prudential standing warns
against the inclusion of Plaintiffs “raising another person’s legal rights” and asserting “generalized
grievances.” Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir. 2015). Read favorably, that
is not the case for the Amended Complaint.
Schachtler as trustee.6
A review of the materials attached to and referenced within the Amended Complaint
confirms Schachtler Stone Products, LLC, the remaining plaintiff, has standing to sue. The New
York Appellate Division, Fourth Department described the Plaintiffs collectively as the “owners
or operators” of the mining operation at the Schachtler Quarry. See Schachtler Stone Products,

LLC v. Town of Marshall, 209 A.D.3d 1316, 1317 (4th Dept. 2022). Additionally, the amended
complaint in the related state court proceedings reveals that the DEC describes the mine at the
Schachtler Quarry as the “Schachtler Stone Products Mine” and that the Notice of Violation issued
by Defendant Ford was addressed to both Eric Schachtler and Schachtler Stone Products, LLC.
See Schactler Stone Products, LLC et al. v. Town of Marshall et al., Index No. EFCA2020-001052
(Sup. Ct. Oneida Cnty.), Dkt. 134 ¶¶ 47, 72.7 These details, coupled with the Court’s duty to afford
Plaintiffs every “favorable inference[]” from the Amended Complaint, compel the Court to
conclude Schachtler Stone Products, LLC is the business entity which operates the mine at the
Schachtler Quarry and experienced losses in profit and sales. See In re DDAVP Direct Purchaser

Antitrust Litigation, 585 F.3d 677, 693 (2d Cir. 2009). Therefore, the pleadings and supporting
materials sufficiently demonstrate that each of the Plaintiffs, whether through partial ownership of
the property, operating the mine, or through holding the relevant SUP, experienced an injury in
fact that is traceable and redressable. Therefore, Plaintiffs have alleged facts sufficient to establish
their standing at this stage.8

6 The Court agrees with Plaintiffs that so long as both Eric T. Schachtler and the Family Trust are
Plaintiffs, there is no capacity concern despite the Family Trust’s inability to sue or be sued. See
Dkt. No. 42 at 5 (citing Federal Rule of Civil Procedure 17(b)).
7 The Court may consider the docket entries in the state court proceedings. See supra fn. 3.
8 “While Plaintiffs’ allegations can fairly be described as thin, dismissal under Rule 12(b)(1) at
this early stage of the litigation is unwarranted.” Shugars v. Masonite Corp., 3:22-cv-1237, 2023
WL 7280902, at *5 (N.D.N.Y. Nov. 3, 2023) (citing Elhassa v. Hallmark Aviation Servs., L.P.,
B. Res Judicata
Defendants also assert that res judicata bars all of Plaintiffs’ claims because, they argue,
the claims could have been brought in the state court proceedings. Dkt. No. 39-2 at 37. In the
state court proceedings, Plaintiffs brought both claims pursuant to Article 78 and a request for
declaratory relief. Dkt. No. 31 Exhibit A at 2 (the “State Court Decision”). Pursuant to recent

guidance from the Second Circuit, see Whitfield v. City of New York, 96 F.4th 504 (2d Cir. 2024),
this Court finds that the state court proceedings do not preclude Plaintiffs’ claims, and thus,
dismissal on grounds of res judicata is unwarranted.
In New York,9 to justify preclusion on a motion to dismiss under the doctrine of res
judicata, Defendants must establish several factors: “(1) the previous action involved an
adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with
them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the
prior action.” TAL Properties of Pomona, LLC v. Village of Pomona, 22-1826, 2023 WL 2924571,
at *2 (2d Cir. Apr. 13, 2023) (citing Monahan v. New York City Dept. of Corrections, 214 F.3d

275, 285 (2d Cir. 2000)). The prior action must also result in a “final judgment on the merits.”
Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (detailing both New York and
federal law). Important here, where a portion of a decision has been vacated, the vacated decision

No. 21-cv-9768, 2022 WL 563264, *2 (S.D.N.Y. Feb. 24, 2022)). In so finding, the Court notes
that “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice.” Shugars, 2023 WL 7280902, at *5 (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992)).
9 “In considering the preclusive effect of a state-court judgment in a subsequent federal lawsuit,
federal courts look to the law of the state in which the earlier judgment was rendered.” In re
Aurora Commercial Corp., No. 21-1164, 2022 WL 1925939, at *1 (2d Cir. June 6, 2022) (citing
Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985)). However, “there is
no discernible difference between federal and New York law concerning res judicata.” Marvel
Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002).
cannot provide the basis for preclusion under res judicata “as there is no ‘final judgment on the
merits.’” Williams v. New York City Housing Authority, 211 Fed. Appx. 22, 23 (2d Cir. 2006)
(citation omitted); see also Petrella v. Siegel, 843 F.2d 87, 90 (2d Cir. 1988) (noting that the district
court “may retain jurisdiction” following reversal of a decision relied upon for res judicata effect);
see also Ali-Hasan v. Constantino, 2024 WL 1073639, at *3 (N.D.N.Y. Mar. 12, 2024) (finding

that should plaintiff successfully appeal an adverse state court decision and have the decision
vacated, plaintiff may attempt to reopen a federal court case which was precluded on res judicata
grounds).
Rather than focus on these factors, the parties dispute the applicability of two exceptions
to the application of res judicata. Dkt. No. 39-2 at 40-44; Dkt. No. 42 at 14-17. First, in general,
Article 78 proceedings in New York do not preclude subsequent § 1983 actions (the “Article 78
Exception”). See Whitfield, 96 F.4th at 524 (“it can’t reasonably be disputed that a judgment in a
‘pure’ Article 78 proceeding does not preclude, under the doctrine of res judicata, a later section
1983 damages claim based on the same set of facts”). However, whether this exception applies

depends on whether the state court proceedings were “pure” or “hybrid” Article 78 proceedings.
See 5055 Northern Boulevard LLC v. Incorporated Village of Old Brookville, 848 Fed. Appx. 49,
50 (2d Cir. 2021). Second, when the prior action involved only a request for declaratory relief,
the prior action does not warrant the application of res judicata to a subsequent action seeking
other forms of relief (the “Declaratory Relief Exception”). Duane Reade, Inc. v. St. Paul Fire and
Marine Ins. Co., 600 F.3d 190, 196 (2d Cir. 2010)).
Primarily, the parties disagree on whether the state court proceeding at issue, which
included a petition under Article 78 as well as an additional claim for a declaratory judgment and
requested injunctive relief against Defendants, constitutes a “hybrid” proceeding which falls
outside the bounds of the Article 78 Exception to res judicata. Dkt. 39-2 at 42; Dkt. No. 42 at 14-
16; Dkt. 45 at 7. Whitfield provides the operative framework: “judgment in a prior Article 78
proceeding will preclude future damages claims only if the petitioner sought relief that could not
be awarded in a pure Article 78 proceeding and the state court took affirmative action
demonstrating that it adjudicated the proceeding as a hybrid one.” 96 F.4th at 527 (emphasis in

original).
First, Defendants argue Plaintiffs sought “relief that could not be awarded in a pure Article
78 proceeding,” id. at 527, by requesting injunctive relief and a declaratory judgment, Dkt. No. 31
Exhibit A at 2. However, taking these forms of relief in turn, the request for injunctive relief does
not preclude application of the Article 78 Exception. In the state court proceedings, Plaintiffs
requested that the court “stay, restrain and declare invalid” the Notice of Violation, Stop Work
Order, and Certification. Dkt. No. 31 Exhibit A at 13. Indeed, the state court granted that request,
ordering that respondents were “permanently restrained from regulating or prohibiting mining
operations at the Schachtler Quarry.” Dkt. No. 31 Exhibit A at 44. While such relief may fairly

be described as injunctive, it is “relief that could [] be awarded in a pure Article 78 proceeding”
and thus, cannot warrant preclusion. Whitfield, 96 F.4th at 527. The New York Civil Practice
Law and Rules (“CPLR”) § 7801 dictates Article 78 petitioners may obtain relief in the form of
“mandamus, prohibition, and certiorari.” See Whitfield, 96 F.4th at 520. A ruling on an Article 78
petition “may annul or confirm the [administrative] determination in whole or in part, or modify
it, and may direct or prohibit specified action by the respondent.” CPLR § 7806 (emphasis added).
That Plaintiffs sought, and the state court granted, injunctive relief fits squarely within the forms
of relief permitted by New York law pursuant to an Article 78 Claim. Dkt. No. 31 Exhibit A at
44. Indeed, binding precedent requires that “[a] New York plaintiff is not barred from seeking
damages in federal court, on civil rights claims by reason of a prior judgment on the same
underlying facts in an Article 78 proceeding requesting injunctive or affirmative relief.” Davis v.
Halpern, 813 F.2d 37, 39 (2d Cir. 1987) (emphasis added).
Second, though the declaratory judgment cause of action in the state court proceedings,
“sought relief that could not be awarded in a pure Article 78 proceeding,” see Whitfield, 96 F.4th

at 527, the request for a declaratory judgment does not warrant preclusion as that portion of the
state court proceedings has been vacated on appeal. See Schachtler Stone Products, LLC v. Town
of Marshall, 209 A.D.3d 1316, 1319 (4th Dept. 2022). Thus, there is no “final judgment on the
merits” which addresses the declaratory relief action and the Court “may retain jurisdiction” over
claims which could have been brought alongside the declaratory judgment action. Petrella, 843
F.2d at 90.10
In the alternative, ignoring the effects of the appeal, the Declaratory Judgment Exception
arguably moots the impact of the additional request for declaratory relief on the Whitfield analysis.
See Duane Reade, Inc., 600 F.3d at 196. Where the two relevant exceptions to res judicata overlap,

meaning where a previous action brought claims under Article 78 and a request for declaratory
relief, both exceptions have been given force by at least one court in this circuit. See Umhey v.

10 By arguing that the Appellate Division, Fourth Department’s ruling does not matter because
Plaintiffs “initiated” a declaratory judgment action, and thus, the Article 78 Exception should not
apply, Defendants miss the forest for the trees. Dkt. No. 45 at 8. Even if the Article 78 Exception
were defeated by the initiation of a declaratory judgment action, Defendants could not successfully
demonstrate that the prior proceeding resulted in a “final judgment on the merits” (or any form of
determination) for the declaratory judgment action. See Maharaj, 128 F.3d at 97 (2d Cir.1997).
Therefore, res judicata would not apply. Defendants also marshal case law for the inapplicable
proposition that “the preclusive effect of a judgment is immediate, notwithstanding a pending
appeal.” Dkt. No. 45 at 8 n.10 (citing Palmer-Williams v. United States, 699 Fed. Appx. 1, 3 (2d
Cir. 2017)). Here, there is no “pending appeal”; the appeal has been decided. That it was decided
after the initiation of this action has no effect on the current application of res judicata. See, e.g.,
Petrella, 843 F.2d at 90.
County of Orange, N.Y., 957 F. Supp 525, 530 (S.D.N.Y. 1997) (finding “despite the additional
relief sought in the Article 78 proceeding, we conclude that the declaratory judgment exception
should apply” and refusing to apply res judicata). However, the Declaratory Judgment Exception
applies only where the prior action sought solely a declaratory judgment and not “coercive relief.”
Dkt. No. 45 at 6 (citing Duane Reade, Inc., 600 F.3d at 196). Here, beyond a declaratory judgment,

the only additional requested relief was that pursuant to an Article 78 proceeding. Dkt. No. 31
Exhibit A. Though “coercive relief” has not been clearly defined, and the relevant case law is
sparse, Article 78 relief is generally not considered “coercive” because it “d[oes] not require the
payment of any monies by the [Town], nor d[oes] it order the [Town] to change the law or even
enjoin the county from enforcing the law against others.” Umhey, 957 F. Supp. at 530. However,
as Defendants note, injunctive relief is generally considered coercive. Id.; see also Giannone v.
York Tape & Label, Inc., 548 F.3d 191, 194 (2d Cir. 2008); Dkt. No. 45 at 6 n.8.
Therefore, the Court is faced with a seemingly novel question: whether a prior action
seeking injunctive relief through an Article 78 proceeding alongside a declaratory judgment action

is subject to the Declaratory Judgment Exception. Given the Court’s determination that the
Appellate Division’s decision defeats Defendants’ res judicata defense, the Court need not address
this issue. However, the Court makes two observations. First, it is not convinced that the
injunctive relief in the state court proceedings, which might normally be considered coercive,
constitutes any more than the natural consequences which flow from the decidedly non-coercive
forms of relief granted. Given the State Court Decision’s determination that any local conditions
on Plaintiffs’ mining operation are necessarily unlawful, it is inconceivable that Defendants could
ever “regulat[e] or prohibit[] mining operations at the Schachtler Quarry” even absent the State
Court Decision’s explicit permanent restriction. Dkt. No. 31 Exhibit A at 41. This close alignment
between the forms of relief may warrant an application of the Declaratory Judgment Exception
despite the technical presence of injunctive relief. Second, in a context where both the Article 78
and the Declaratory Judgment Exceptions to res judicata might apply, prior requests for coercive
relief are subject to unique limitations which might justify applying both exceptions. Requests for
coercive relief generally defeat the Declaratory Judgment Exception to res judicata because, in a

more typical case, requesting any form of coercive relief means “[n]othing prevented plaintiff from
joining his claims for damages . . . with his claim for equitable relief against them in the prior
action.” See Giannone, 548 F.3d at 191 (quoting Gross v. Tannen, 251 A.D.2d 255 (1st Dep’t
1998)). That is not the case here, where Plaintiffs requested injunctive relief pursuant to Article
78, which limits a state court’s ability to grant other forms of coercive relief such as damages. See
Whitfield, 96 F.4th at 520. Therefore, to deprive Plaintiffs of the benefits of the Declaratory
Judgment Exception due to a request for injunctive relief under Article 78 would be to prioritize
form over substance.
Even if petitioners had sought “relief that could not be awarded in a pure Article 78

proceeding” that was capable of precluding Plaintiffs’ claims, satisfying the first prong under
Whitfield, the state court did not take “affirmative action demonstrating that it adjudicated the
proceeding as a hybrid one.” 96 F.4th at 527. Therefore, preclusion would still be unwarranted
under the second prong. “New York law calls for doubts to be resolved against imposing claim
preclusion . . . [and] claim preclusion should apply only if it is clear that the state court treated the
prior proceeding as one in which plenary relief was available.” Whitfield, 96 F.4th at 529 (citing
Buechel v. Bain, 97 N.Y.2d 295, 305 (2001)). Far from making “clear” it treated the prior action
as one in which plenary relief was available, here, the state court proceedings took several actions
that caution against the application of preclusion.
First, on appeal, the Appellate Division, Fourth Department vacated the portions of the
State Court Decision which granted declaratory relief. Schachtler Stone Products, LLC v. Town
of Marshall, 209 A.D.3d 1316, 1319 (4th Dept. 2022). In doing so, the state court found “this
purported hybrid declaratory judgment action and CPLR article 78 proceeding ‘is properly only a

proceeding pursuant to CPLR article 78.’” Id. (citing Matter of Barker Cent. School Dist. v.
Niagara County Indus. Dev. Agency, 62 A.D.3d 1239, 1240 (4th Dept. 2009)).11 Therefore, the
state court did not ultimately “treat[] the prior proceeding as one” in which Plaintiffs could have
sought the damages they seek here. Whitfield, 96 F.4th at 529 (citation omitted).
The Whitfield framework also endorses a “holistic analysis of the state court record” to
determine how the state court proceedings treated Plaintiffs’ claims. Id. Even without considering
the Appellate Division, Fourth Department’s determination, that holistic analysis fails to offer
convincing evidence the prior trial court proceeding “was in fact adjudicated” as a hybrid
proceeding. Id. (emphasis added).

This Court takes note of three aspects of the state court proceeding’s record which
influence its analysis. First, and most importantly, the bulk of the trial court’s discussion applied
the standard of review associated with an Article 78 claim, which mandates “[c]ourts cannot
interfere unless there is no rational basis for the exercise of discretion, or the action complained of
is arbitrary and capricious.” See Dkt. No. 31 Exhibit A at 39-40 (citing Matter of Pell v. Bd. Of
Educ., 34 N.Y.2d 222 (1974); see Whitfield, 96 F.4th at 529, n.26 (listing “the standard of review

11 Under Whitfield, it is proper to examine the Appellate Division’s assessment and view of the
state court proceedings for purposes of analyzing preclusion. 96 F.4th at 530 (“[j]udging from the
language of its opinion, the Appellate Division seems also to have understood the Supreme Court
to have conducted a pure Article 78 proceeding”).
applied by the state court” as a relevant consideration).12 The State Court Decision did not simply
list the applicable Article 78 standard; it repeatedly framed its findings through the standard’s
terms. Id. at 40 (finding the Town’s arguments were “certainly not based on substantial evidence,
or any evidence”), 43 (describing Defendants’ actions as “arbitrary and capricious”). That the
State Court Decision “took pains to clarify” an exacting standard of review, and that it applied that

standard to reach the ultimate determinations, constitutes evidence that preclusion should not
apply. Whitfield, 96 F.4th at 531. Second, however, the Court notes that the trial court describes
the case as a “combined” Article 78 and declaratory judgment case. Dkt. No. 31 Exhibit A at 2.
Third, and relatedly, the trial court describes the present Plaintiffs as “Plaintiffs-Petitioners.” Id.
at 3. These details, though formalistic, weigh in favor of preclusion, as they indicate the trial court
approached the state court proceedings as “hybrid.” Whitfield, 96 F.4th at 530. In total, the Court
finds the evidence from the record (excluding the Appellate Division’s decision) is mixed.
Therefore, it is not “clear” that the state court proceedings were treated as hybrid proceedings, and
the Court should avoid imposing preclusion. Id. at 529 (citing Buechel, 97 N.Y.2d at 305).

In sum, the Court finds the state court proceedings cannot justify the total preclusion of their
claims here. First, while the state court proceedings arguably sought relief unattainable in an
Article 78 action in the form of a declaratory judgment, there was no “final judgment” on the
declaratory judgment action capable of precluding Plaintiffs claims. And besides, the declaratory
judgment action is subject to its own exemption from preclusion which arguably applies and
preserves the application of the Article 78 Exception. Second, there can be no doubt that the appeal
clarifies the state court proceedings were ultimately “treat[ed]” as a pure Article 78 action. Even

12 “It is proper to consider public documents on a motion to dismiss to determine whether claims
are barred by prior litigation.” Bal v. New York City Loft Bd., 2000 WL 890199, at *2 (S.D.N.Y.
2000) (citing Day v. Moscow, 955 F.2d 807, 811 (2d Cir.1992)).
without considering the appeal, the trial court’s treatment of the state court proceedings was mixed
at best, which weighs against preclusion. Any one of these findings would, and do, prevent the
application of res judicata. In so ruling, the Court is mindful that “since the doctrine of [res
judicata] poses a danger of placing termination of the litigation ahead of the correct result, it is
narrowly applied.” Chartier v. Marlin Mgmt., LLC, 202 F.3d 89, 94 (2d Cir.2000).

C. Defendant-Specific Arguments
Next, Defendants make a variety of arguments they assert warrant dismissal of the claims
against some, or all, of the Defendants. First, Defendants argue “Plaintiffs have failed to allege
any facts from which it may reasonably be inferred that [Defendant Ford] was personally involved
in any constitutional deprivation,” and thus, the causes of action against Defendant Ford “must be
dismissed as a matter of law.” Dkt. No. 39-2 at 19.13 In response, Plaintiffs primarily point to the
findings of the State Court Decision.14 Dkt. No. 42 at 8-9. But Plaintiffs need not rely on the State
Court Decision; the Amended Complaint itself alleges Defendant Ford’s personal involvement in
the alleged constitutional deprivation.

The Amended Complaint alleges “CEO Ford issued the . . . Notice of violation in an effort
to prohibit Schachtler from mining at the Schachtler Quarry.” Dkt. No. 31 at ¶ 40. It goes on to
allege that Defendant Ford also issued both the Stop Work Order and the Certification at issue. Id.
at ¶ ¶ 41, 43. Therefore, Plaintiffs have alleged Defendant Ford was directly involved in three of
the four actions central to their claims of unconstitutional treatment.
Second, The Town Board and the ZBA argue that they are “non-suable administrative arms

13 Plaintiffs sue Defendant Ford in his individual capacity. See Dkt. No. 42 at 10.
14 The Court may consider “documents incorporated within the complaint by reference.” Taylor
v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir. 2002). Here, Plaintiffs not only reference the
court’s findings in the State Court Decision but attach a copy of the decision to the Amended
Complaint.
and/or departments of the Town [of Marshall],” and therefore, are inappropriately named as
defendants. Dkt. No. 39-2 at 21. In their opposition to the Motion, Plaintiffs fail to address this
argument. Dkt. No. 42. “In the Northern District, where a plaintiff . . . fails to oppose . . .
arguments by a defendant in its motion to dismiss, ‘the movant’s burden is lightened such that, in
order to succeed, the movant need only show facial merit in support of its motion.’” Baldwin v.

United States, No. 1:20-CV-214 (GLS/CFH), 2021 WL 431145, at *2 (N.D.N.Y. Feb. 8, 2021)
(quoting Breezee v. Colvin, No. 5:14-CV-1114 GTS, 2015 WL 5725083, at *2 (N.D.N.Y. Sept.
28, 2015)); see also Wilson v. Cnty. of Ulster, 1:20-CV-00104, 2022 WL 813958, at *2 (N.D.N.Y.
Mar. 17, 2022). Defendants have met this burden.
“Under New York law,15 departments which are merely administrative arms of a
municipality do not have a legal identity separate and apart from the municipality and cannot sue
or be sued.” Town and Country Adult Living, Inc. v. Village/Town of Mount Kisco, 17-CV-8586
(CS), 2019 WL 1368560, at *13 (S.D.N.Y. Mar. 26, 2019) (citing Hall v. City of White Plains,
185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002)); see also Baker v. Willett, 42 F.Supp.2d 192, 198

(N.D.N.Y. 1999) (dismissing claims against the Warren County Sheriff’s Department as
“redundant” with claims against Warren County). “The only proper defendant in a lawsuit against
an agency of a municipality is the municipality itself, not the agency through which the
municipality acted.” Omnipoint Comms., Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552
(S.D.N.Y. 2009) (collecting cases). Accordingly, Plaintiffs’ claims against the Town Board and
the ZBA are dismissed as redundant with those against the Town. See Crown Castle Fiber LLC
v. Town of Oyster Bay, 21-cv-6305, 2024 WL 1051171, at *1 n.1 (E.D.N.Y. Jan. 19, 2024)

15 An entity is suable in federal court only if it would be suable under the laws of the state where
it was created. See FRCP 17(b).
(dismissing claims against the relevant town board and zoning board of appeals as redundant).
Finally, Defendants argue the Amended Complaint indulges in “impermissible group
pleading by failing to differentiate between the Town Defendants” and thus “must be dismissed in
its entirety.” Dkt. No. 39-2 at 24. The Court finds Defendants overstate the Amended Complaint’s
deficiencies, especially considering the Court’s decision to dismiss the claims against the ZBA

and the Town Board.
While the Amended Complaint does frequently refer to Defendants collectively, it more than
sufficiently alleges the two remaining Defendants, Defendant Ford and the Town, were “involved
in the alleged constitutional deprivations, and how they were involved.” Little v. Soulia, 9:19-CV-
0263 (TJM/TWD), 2019 WL 13378467, at *10 (N.D.N.Y. Apr. 17, 2019). For example, the
Amended Complaint specifically alleges that Defendant Ford (1) issued the Notice of Violation,
Stop Work Order and Certification, and (2) asked for more time to comment on the modification
of the DEC permit to “delay and interfere with Schachtler’s rights.” Dkt. No. 31 at ¶¶ 37, 40, 41,
43. And the Amended Complaint alleges the Town (1) issued the 2020 ZBA Resolution, (2) hired

a conflicted attorney to enforce the Stop Work Order, and (3) failed to provide Plaintiffs with
notice of special ZBA meetings on October 5, 6, 7, and 10, 2020. Id. at ¶¶ 44, 61-66. As such,
the Amended Complaint adequately informs the remaining Defendants of the claims against them.
D. Official Policy or Custom
Defendants also argue that Plaintiffs fail to state claims against the Town by “fail[ing] to
allege any facts plausibly suggesting the existence of any relevant Town policy or custom which
caused Plaintiff to suffer any constitutional deprivation.” Dkt. No. 39-2 at 22. In their opposition,
Plaintiffs argue that for purposes of the Town’s liability, they have properly alleged “a course of
action tailored to a particular situation” which constitutes a “policy” of the Town. Dkt. No. 42 at
12. The Court agrees with Plaintiffs.
Municipalities are not liable under § 1983 “unless action pursuant to official municipal
policy of some nature causes a constitutional tort.” Glassman v. City of New York, 557 Fed. Appx.
97, 98 (2d Cir. 2014) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). An
official municipal policy can take several forms, including “1) a formal policy, officially

promulgated by the municipality . . .; 2) action taken by the official responsible for establishing
policy with respect to a particular issue . . .; 3) unlawful practices by subordinate officials so
permanent and widespread as to practically have the force of law . . .; or 4) a failure to train or
supervise that amounts to ‘deliberate indifference’ to the rights of those with whom the
municipality’s employees interact.” Smith v. City of Syracuse, 5:19-cv-00997 (BKS/ATB), 2020
WL 1937411, at *3 (N.D.N.Y. Apr. 21, 2020) (citations omitted); see also Porter v. Town of Fine,
8:18-CV-1289, 2022 WL 4094516, at *31 (N.D.N.Y. Sep. 6, 2022).
Read plainly, the Amended Complaint alleges liability under the second form of an official
policy: “a decision to adopt a particular course of action . . . directed by those who establish

governmental policy.” Pembaur v. City of Cincinnati, 475 U.S. 469, 470 (1986). Put differently,
“[w]hen ‘an official has final authority over significant matters involving the exercise of discretion,
the choices he makes represent government policy.’” Nagle v. Marron, 663 F.3d 100, 116 (2d Cir.
2011) (quoting Clue v. Johnson, 179 F.3d 57, 62 (2d Cir. 1999)). Therefore, “municipal liability
may be imposed for a single decision by municipal policymakers.” Pembaur, 475 U.S. at 480.
However, the official or entity must “ha[ve] final policymaking authority in the particular area
involved . . . [i]t does not suffice . . . that the official has been granted discretion in the performance
of his duties,” to subject the government to § 1983 liability. Jeffes v. Barnes, 208 F.3d 49, 57 (2d
Cir. 2000) (citing Jett v. Dallas Independent School District, 491 U.S. 701, 737 (1989)). Whether
an official has final policymaking authority “is to be answered on the basis of state law.” Id. (citing
McMillian v. Monroe County, 520 U.S. 781, 786 (1997)).
Here, there can be no doubt that the Town Board and the ZBA, whose conduct is
attributable to the Town, have final policymaking authority regarding the enforcement of the
Town’s land use and zoning laws and regulations. Indeed, the April 9, 2020, Notice of Violation

sent by Defendant Ford explicitly states “the [ZBA] will be reviewing violations and making the
final decision.” Dkt. No. 31 Exhibit A at 39. And the Amended Complaint describes the Town
Board as the “legislative body” for the Town. Dkt. No. 31 at ¶ 15; see also Weinberg v. Village of
Clayton, New York, 5:17-cv-00021 (BKS/ATB), 2018 WL 5777292, at *9 (N.D.N.Y. Nov. 2,
2018) (finding that a village’s Board has final policymaking authority as to the enforcement of
village code); Clark v. City of Oswego, No. 03-cv-202, 2007 WL 925724, at *8 (N.D.N.Y. Mar.
26, 2007) (finding a city’s “legislative body” has final policymaking authority for the city).
Therefore, for purposes of establishing municipal liability under § 1983, the Town Board and the
ZBA are final policymakers capable of imputing liability on the Town. As such, their actions,

including the issuance of the 2020 ZBA Resolution and opposition to the Schachtler Quarry at
various Town meetings on baseless grounds, constitutes official policy.
Defendants’ arguments to the contrary miss the mark. First, in their opening brief,
Defendants insist Plaintiffs wrongly seek liability against the Town on a theory of respondeat
superior by alleging “a single instance of unconstitutional conduct by a mere employee of the
municipality,” presumably Defendant Ford. Dkt. No. 39-2 at 22-23 (citing Smith, 2020 WL
1937411, at *3).16 In doing so, Defendants ignore that official policy can be established by the

16 Defendants also misconstrue Smith, 2020 WL 1937411. There, the Court did not address the
possibility of establishing an official policy through the acts of a final policymaker. Instead, in
asserting “a ‘custom or policy cannot be shown by pointing to a single instance of unconstitutional
Defendants’ actions so long as the Defendants hold final policymaking authority, and instead,
attempt to inappropriately narrow the scope of Plaintiffs’ allegations to the actions taken by
Defendant Ford. See, e.g., Pembaur, 475 U.S. at 480. In their reply, Defendants acknowledge
Plaintiffs “appear to argue” Defendants were final policymakers for purposes of establishing
municipal liability. Dkt. No. 45 at 14.

Pivoting, Defendants put forward a new argument: that the ZBA’s “ratification” of
Defendant Ford’s acts is insufficient because Plaintiffs do not allege “repeated unconstitutional
acts[.]” Id. (citing King v. Vill. of Brewster, 22 CV 8105 (VB), 2023 WL 2692360, at *8 (S.D.N.Y.
Mar. 29, 2023) and Donovan v. Norwich City Sch. Dist., 3:19-CV-1638, 2022 WL 623904, at *14
(N.D.N.Y. Mar. 3, 2022)). But Plaintiffs do not rely on a theory of ratification for establishing
liability against the Town. Instead, the Amended Complaint alleges that the ZBA itself, by issuing
the 2020 ZBA Resolution, directly deprived Plaintiffs of their constitutional rights. See Dkt. No.
31 at ¶ 66 (alleging the ZBA itself “issued the . . . [r]esolution”). Indeed, Defendants appear to
conflate final policymaker liability with ratification, which instead involves “senior personnel

[with] knowledge of a pattern of constitutionally offensive acts by their subordinates.” Donovan,
2022 WL 623904, at *14 (quoting Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir. 1980) (assessing
whether a police chief ratified the acts of his subordinates)). Here, as alleged, the Town did not
just have knowledge of Defendants Ford’s allegedly unconstitutional acts, but instead, acted
directly through its administrative bodies. Dkt. No. 31 at ¶ 66.
Even if Plaintiffs did rely on a theory of ratification, the Amended Complaint is sufficient.
Plaintiffs allege the Town endorsed and furthered Defendant Ford’s acts through the hiring of

conduct by a mere employee,’” the court was describing the limits of claims alleging an official
policy “based on inadequate training.” Id. at *3 (citation omitted).
Defendant Ford’s attorney to represent the Town, instituting inadequate notice procedures for
relevant meetings, and through the issuance of the 2020 ZBA Resolution. Dkt. No. 31 at ¶¶ 44,
55, 61-67. As alleged, the Town was aware of Defendant Ford’s conflict of interest when it took
each of these actions, and it was aware that the actions were premised on a faulty theory that the
SUP was invalid. Id.; Dkt. No. 31 Exhibit A at 28-29. These allegations detail not just “inaction”

but “tacit encouragement” of Defendant Ford’s pattern of allegedly baseless enforcement actions.
See Wilson v. County of Ulster, 2022 WL 813958, at *15 (N.D.N.Y. Mar. 17, 2022) (quoting
Turpin, 619 F.2d at 201). Therefore, there is more than a “single instance of ratification,” Dkt.
No. 45 at 15 (quoting Donovan, 2022 WL 623904, at *14), and the Town’s ratification of
Defendant Ford’s actions constitutes official policy.
E. Plaintiffs’ Conspiracy Claims
Moving on to the merits of the claims asserted by Plaintiffs, the claims of conspiracy
pursuant to 42 U.S.C. § 1985(3) are dismissed. To state a cause of action under 42 U.S.C. §
1985(3), Plaintiffs 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.” Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (citing Britt v. Garcia, 457
F.3d 264, 269 n. 4 (2d Cir.2006)). “The conspiracy must also be “motivated by some racial or
perhaps otherwise class-based, invidious discriminatory animus.” Id. (citing Cine SK8, Inc. v.
Town of Henrietta, 507 F.3d 778, 791 (2d Cir.2007)). Here, even read in a light most favorable to
Plaintiffs, the Amended Complaint alleges no such “class-based” animus. Instead, the Amended
Complaint seems to suggest that the Defendants’ alleged conspiracy was motivated by Defendant
Ford’s “demonstrated financial interest in halting mine operations.” See Dkt. No. 31 at ¶ 141. The
allegations reveal no purported class based on “the type of inherited or immutable characteristics
sufficient to satisfy the class-based animus requirement.” Dolan, 794 F.3d at 296. As such,
Plaintiffs’ claim must be dismissed; to hold otherwise would enable “innumerable tort plaintiffs .
. . to assert causes of action under § 1985(3) by simply defining the aggrieved class as those seeking

to engage in the activity the defendant has interfered with.” Town of W. Hartford v. Operation
Rescue, 991 F.2d 1039, 1046 (2d Cir.1993); see also Griffin v. Breckenridge, 403 U.S. 88, 101
(1971) (finding § 1985(3) was not “intended to apply to all tortious, conspiratorial interferences
with the rights of others” but instead requires “invidiously discriminatory motivation”).
F. Substantive Due Process
Next, Defendants argue “Plaintiff’s [sic] Fourteenth Amendment substantive due process
claim . . . must be dismissed” because “the same is subsumed by and/or duplicative of their
Fourteenth Amendment equal protection claim.” Dkt. No. 39-2 at 25. It is “well established” that
“[w]here another provision of the Constitution provides an explicit textual source of constitutional

protection, a court must assess a plaintiff’s claims under that explicit provision and not the more
generalized notion of substantive due process.” Hu v. City of New York, 927 F.3d 81, 104 (2d Cir.
2019) (citing Southerland v. City of New York, 680 F.3d 127, 142-42 (2d Cir. 2012) (citations
omitted)); see also Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005) (holding that the plaintiff's
substantive due process claim was subsumed by the alleged First Amendment and equal protection
violations); Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1351 n.8 (2d Cir. 1994)
(dismissing a plaintiff's substantive Due Process claim because it was duplicative of the plaintiff's
equal protection claim); Dayes v. Watertown City School Dist., 5:20-cv-964 (GLS/ML), 2021 WL
4407385, at *9 (N.D.N.Y. Sep. 27, 2021). Indeed, the Second Circuit has held that where a
substantive due process claim is based on “enforcement actions” which allegedly constitute
“systematic and intentional harassment in an attempt to drive the plaintiff out of business,” the
substantive due process claim must be dismissed in favor of an equal protection claim based on
the same set of facts. Hu, 927 F.3d at 103. Moreover, the substantive due process claim must be
dismissed on subsummation grounds even if its twin equal protection claim is dismissed on the

merits. See 20 Dogwood LLC v. Village of Roslyn Harbor, No. 23-930, 2024 WL 1597642, at *2
(2d Cir. Apr. 12, 2024) (summary order).
Here, Plaintiffs do not contest that their substantive due process and equal protection claims
are based on the same set of facts, Dkt. No. 42 at 21-22, nor could they. At base, both claims rest
on the same set of core allegations: that “[t]he Notice of Violation, Stop Work Order, Certification
and 2020 ZBA Resolution,” which were issued wrongfully, caused “the unconstitutional
deprivation of Plaintiffs’ rights” by delaying and hindering the mining activities at the Schachtler
Quarry. Dkt. No. 31 at ¶ 73. Instead, Plaintiffs make a cursory argument that the subsummation
rule does not apply “in the land use context” because there, claims for equal protection are “distinct

claim[s] of selective enforcement.” Dkt. No. 42 at 21-22. But binding precedent thwarts this
interpretation of the rule: that an equal protection claim is based on “selective enforcement” is not
sufficient to establish the claim is “distinct” from a simultaneous substantive due process claim.
Hu, 927 F.3d at 104.
Moreover, Plaintiffs’ cases do not support their interpretation of the rule in the land use
context. In Zahra v. Town of Southold, 48 F.3d 674 (2d Cir. 1995), the substantive due process
claim before the court was rooted in the town’s withholding of an insulation inspection from a
local property owner, whereas the equal protection claim was based on allegations that the town
“selectively enforced the Town Code” against Plaintiff’s other properties. Id. at 679, 683. And
that the New York Court of Appeals failed to consider the overlap between plaintiff’s substantive
due process and equal protection claim does not alter the binding authority demanding this Court
engage with such considerations. See Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617 (2004).
Finally, in Missere v. Gross, plaintiff’s substantive due process claim was based solely on the
failure of defendants to grant a variance and its decision that plaintiff’s restaurant fell outside a

particular zoning area. 826 F. Supp. 2d 542, 553-54 (S.D.N.Y. 2011). In contrast, plaintiff’s equal
protection claim was based on additional facts regarding the building of a fence, the requirements
for outdoor dining, and allegedly unfair inspections. Id. at 562. Therefore, Plaintiffs can point to
no binding authority exempting their claims from subsummation, and their claim based on
substantive due process must be dismissed. The Court need not delve into whether Defendants’
conduct is “conscience-shocking.” Dkt. No. 39-2 at 28 (citation omitted).
G. Plaintiffs’ Equal Protection Claim
Finally, Defendants argue the Amended Complaint “fails to identify any comparators
similarly situated to [Plaintiffs]” and thus “fails as a matter of law” to state an equal protection

claim. Dkt. No. 39-2 at 30. However, drawing all inferences in favor of Plaintiffs, this Court finds
the Amended Complaint properly asserts an equal protection claim against the remaining
Defendants.
“[T]he Equal Protection Clause ‘is essentially a direction that all persons similarly situated
should be treated alike.’” Bill & Ted’s Riviera, Inc. v. Cuomo, 494 F. Supp. 3d 238, 245 (N.D.N.Y.
2020) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Relevant here,
“‘the equal protection guarantee ... extends to individuals who allege no specific class membership
but are nonetheless subjected to invidious discrimination at the hands of government officials.’”
Id. (citing Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)); see Dkt. No.
31 at ¶ 126 (failing to allege class membership). Plaintiffs may proceed under two theories: “1)
selective enforcement, or (2) class of one.” Id. (quotation omitted). The Amended Complaint
pursues liability through both theories. Dkt. No. 31 at ¶¶ 118, 126.
To plead selective enforcement, Plaintiffs must allege “that ‘(1) the [Plaintiffs], compared
with others similarly situated, w[ere] selectively treated, and (2) the selective treatment was

motivated by an intention to discriminate on the basis of impermissible considerations, such as
race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad
faith intent to injure the [Plaintiffs].’” Hu, 927 F.3d at 91 (quoting Zahra, 48 F.3d at 683); see
also Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004). To satisfy the first
prong, Plaintiffs must show their circumstances “bear a reasonably close resemblance” to the
comparators, but they need not show their circumstances are “identical.” Hu, 927 F.3d at 96 (citing
Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)). “As a general rule, whether items
are similarly situated is a factual issue that should be submitted to the jury.” Harlen Assocs. V.
Inc. Village of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001); see also Graham v. Long Island

R.R., 230 F.3d 34, 39 (2d Cir. 2000) (“[w]hether two employees are similarly situated ordinarily
presents a question of fact for the jury”); Kirschner v. Zoning Bd. Of Appeals of Valley Stream,
924 F. Supp. 385, 394 (E.D.N.Y. 1996) (question of whether parties are similarly situated is
“classic” issue of fact precluding summary judgment, let alone a dismissal).
Here, the Court is satisfied that Plaintiffs have shown their circumstances are similar in “all
material respects” to the proposed comparator, Williams Fence. Hu, 927 F.3d at 96. The Amended
Complaint alleges two key facts regarding Williams Fence: (1) that Williams Fence is a “business”
subject to the Town of Marshall’s authority, and (2) Williams Fence faces “continued
neighborhood opposition.” Dkt. No. 31 at ¶ 117. Drawing all inferences in favor of Plaintiffs, the
Court infers that Williams Fence was similarly required to apply for and received permission from
the Town to operate its business. These facts are sufficient to establish Williams Fence faced
materially similar circumstances to Plaintiffs. The Amended Complaint suggests that even though
both parties faced similar neighborhood opposition, and even though the Town was similarly
responsible for permitting both businesses, only the Plaintiffs were arbitrarily deprived of their

permit and faced invalid enforcement actions. While far from thorough, the Amended Complaint
“need not contain detailed factual allegations[.]” Hu, 927 F.3d at 97 (quoting Matson v. Bd. of
Educ. of City Sch. Dist. of New York, 631 F.3d 57, 63 (2d Cir. 2011) (quotation omitted)).
“Discovery in this case may ultimately . . . render the resemblance between” Plaintiffs and
Williams Fence less reasonably close, but “[a]t this early stage in the litigation . . . plaintiffs’ failure
to plead such fact-specific details should not bar their [selective enforcement] claims.” Id. (quoting
Graham, 230 F.3d at 40).17
The Amended Complaint also sufficiently alleges that the differential treatment was
motivated by Defendants’ “animus” and their “bad faith intent to injure” Plaintiffs. Id. at 91. The

Amended Complaint directly states the Town “allowed CEO Ford, an individual with a
demonstrated financial interest in halting mine operations, known public opposition and animosity
toward the Schachtler Quarry, to take these unwarranted actions[.]” Dkt. No. 31 at ¶ 6 (quoting
the State Court Decision). Indeed, the Amended Complaint repeatedly alleges Defendants’ actions

17 That Plaintiffs’ allegations of neighborhood opposition are pled on information and belief is no
matter because Plaintiffs identify a specific comparator in Williams Fence. See Lopez v.
Advantage Plumbing & Mechanical Corp., 15-CV-4507, 2016 WL 1268274, at *4 (S.D.N.Y. Mar.
31, 2016) (finding allegations on information and belief about the particulars of a comparator are
permitted at this stage so long as a specific comparator is identified) (citing Barrett v. Forest
Laboratories, Inc., 39 F.Supp.3d 407, 432 (S.D.N.Y. 2014)); see also O’Connor v. New York State
Dep’t. of Fin. Servs., 1:21-cv-00828 (BKS/ATB), 2022 WL 3998099, at *5 (N.D.N.Y. Sep. 1,
2022) (citing the same standard).
were motivated by improper considerations of Defendant Ford’s financial interest. Id. at ¶¶ 47
(alleging the attorney hired both by the Town and Defendant Ford sent a letter to DEC referencing
“potential financial injury to property owned by CEO Ford”), 119, 120, 123, 125. These
allegations are supported by the findings of the State Court Decision after a detailed review of the
relevant documents. See generally Dkt. No. 31 Exhibit A. As such, Plaintiffs have pled a selective

enforcement claim.
Less convincing, however, is Plaintiffs’ attempt to plead a class of one equal protection
claim. A class of one equal protection claim, unlike a selective enforcement claim, does not require
a finding of Defendants’ animus towards Plaintiffs. Hu, 927 F.3d at 94. However, to succeed,
Plaintiffs must meet an “extremely high” similarity standard which requires proof that “no rational
person could regard the circumstances of the plaintiff to differ from those of a comparator to a
degree that would justify the differential treatment on the basis of a legitimate government policy.”
Hu, 927 F.3d at 94 (citing Neilson v. D’Angelis, 409 F.3d 100, 104-05 (2d Cir. 2005) overruled on
other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008)). Put differently, Plaintiffs must

show they are “prima facie identical” with Williams Fence. Id. The pleadings in the Amended
Complaint, even when read in the context of the attached State Court Decision, cannot meet this
burden. First, while the Amended Complaint alleges both Williams Fence and Plaintiffs faced
“neighborhood opposition” it does not provide any details as to the degree, timing, or reasons for
the opposition to Williams Fence. Dkt. No. 31 at ¶ 117. Without these details, the Court cannot
conclude Williams Fence and Plaintiffs are “identical”: the Town could have acted more leniently
towards Williams Fence for a host of reasons, including less fervent opposition. The Amended
Complaint also does not speak directly to the nature of the Town’s authority over Williams Fence,
such as whether Williams Fence’s ability to conduct business was originally conditioned on
requirements like those relied upon by the Town (perhaps, in bad faith) in their attempt to halt
mining at the Schachtler Quarry. See Dkt. No. 31 Exhibit A at 17. Given these shortcomings, the
Court dismisses the class of one claim.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendants’ motion to dismiss, Dkt. No. 39, is GRANTED to the extent it
seeks to dismiss the claims against the Town Board of the Town of Marshall and the Zoning Board
of Appeals; and the Court further
ORDERS that Defendants’ motion to dismiss, Dkt. No. 39, is GRANTED to the extent it
seeks to dismiss the claims made pursuant to § 1985 against all Defendants; and the Court further
ORDERS that Defendants’ motion to dismiss, Dkt. No. 39, is GRANTED to the extent it
seeks to dismiss Plaintiffs’ claims based on substantive due process and a class of one theory of
equal protection pursuant to § 1983; and the Court further
ORDERS that Defendants’ motion to dismiss, Dkt. No. 39, is DENIED to the extent it
seeks to dismiss Plaintiffs’ claims based on a selective enforcement theory of equal protection
pursuant to § 1983; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: September 3, 2024 Ounce] |. Jaraa’ CCL
Albany, New York Anne M. Nardacci
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10660146. Public record. Not legal advice.