# Kelly v. Town Of Southold

> District Court, E.D. New York · September 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10768220

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding that it is not “the district court’s job either to do the [parties’] homework or to take heroic measures aimed at salvaging the [parties] from the predictable consequences of self-indulgent lassitude”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
FRANCIS J. KELLY and ELIZABETH G. KELLY,

Plaintiffs, REPORT AND
RECOMMENDATION
v.
2:21-CV-3215 (JMA) (LGD)
TOWN OF SOUTHOLD, and DOES 1-10,
all individually and in their official capacity,

Defendants.
-------------------------------------------------------------X
LEE G. DUNST, Magistrate Judge:
Presently before the Court is the latest motion to dismiss (“Motion”) by Defendant Town
of Southold (“Defendant” or “Southold”). See Electronic Case File Number (“ECF No.”) 86.
On August 12, 2024, District Judge Joan M. Azrack referred the Motion to the undersigned for a
Report and Recommendation. See August 12, 2024 Order.
This action stems from Southold’s multiple denials of a trailer permit application
submitted by Plaintiffs Francis Kelly and Elizabeth Kelly (together, “Plaintiffs”). Relevant to
the present Motion, Plaintiffs bring the following claims in the Seconded Amended Complaint
(“SAC”) (see ECF No. 77): (1) failure to provide a reasonable accommodation, in violation of
Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131, et seq. (“Count
I”); (2) disability discrimination, in violation of the Fourteenth Amendment’s Equal Protection
Clause, 42 U.S.C. § 1983 (“Section 1983”) (“Count II”); (3) deprivation of substantive due
process, in violation of the Fourteenth Amendment (“Count III”); and (4) facial constitutional
challenges to certain provisions of the Southold Town Zoning Code (§§ 280-155, 280-81, 280-
115) (“Count V”).1

1 Following a pre-motion conference on Defendant’s Motion on April 17, 2024, Judge Azrack dismissed
For the reasons set forth below, the undersigned respectfully recommends that the Motion
be granted in part and denied in part.
I. BACKGROUND2
A. Factual Background3
Since June 14, 2014, Plaintiffs have owned a commercial marina located on a triangular-

shaped lot of less than an acre in Southold. See SAC ¶ 10. Since 1983, the property has been
zoned as “M-1,” which allows for commercial use for a marina property in close proximity to the
water. See id. ¶ 11. Southold’s Zoning Board of Appeals (“ZBA”) has determined that the
property was approved for use as a marina with parking permitted on the property. See id. ¶ 13.
Specifically, the property was approved for “11 slip small watercraft marina (maximum length of
watercraft 20 feet) and gravel parking lot without building structures.” Id.
Plaintiffs allege that they each have disabilities that require certain accommodations at
the Southold location. Mr. Kelly suffers from diabetes with neuropathy and osteoarthritis, which

the following claims alleged in the SAC: (1) all Section 1983 and ADA claims predicated on the June 2018 trailer
permit denial; (2) Count IV asserting that a state court judgment imposing fines violates the Eighth Amendment; and
(3) Count V asserting, in part, that New York Municipal Home Rule § 10, which authorized those fines, violates
Plaintiffs’ Due Process rights. See April 17, 2024 Order. Judge Azrack also ordered briefing on Plaintiffs’ facial
challenge to Municipal Home Rule § 10 (Count V). See id. While Defendant briefed the facial challenge in Count
V, Plaintiffs failed to respond to this argument. See generally ECF No. 86-21 (“Pl. Mem.”). Thus, the undersigned
respectfully recommends that the Court find that Plaintiffs abandoned that portion of Count V regarding the
constitutionality of Municipal Home Rule § 10. See Malik v. City of New York, 841 F. App’x 281, 284 (2d Cir.
2021) (“[W]hen a party fails adequately to present arguments in a brief, a court may properly consider those
arguments abandoned.”) (internal quotations and citations omitted).

2 The facts herein are taken from the SAC (ECF No. 77) and documents incorporated by reference therein
and are accepted as true for the purposes of this Motion. See Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 462
(2d Cir. 2019) (accepting as true all well-pleaded allegations for purposes of a motion to dismiss); see also
Vengalattore v. Cornell Univ., 36 F.4th 87, 102 (2d Cir. 2022) (considering documents incorporated into the
complaint by reference for purposes of a motion to dismiss).

3 In Kelly v. Town of Southold, No. 21-CV-3215 (JMA) (LGD), 2023 WL 6050494, at *1-4 (E.D.N.Y. June
7, 2023), report and recommendation adopted, No. 21-CV-3215 (JMA) (LGD), 2023 WL 6050288 (E.D.N.Y. Sept.
15, 2023) (“Kelly I”), the undersigned summarized the background of the parties and the claims with respect to the
First Amended Complaint (ECF No. 49). Nevertheless, the undersigned will summarize the factual allegations with
respect to the SAC, as the SAC alleges new dates and new claims.
allegedly requires him to have access to a bathroom at all times. See id. ¶¶ 16-17. Ms. Kelly
suffers from degenerative arthritis, which also allegedly requires her to have access to a
bathroom at all times and to a bed to utilize during moments of flare ups with her medical
condition. See id. Plaintiffs have handicap license plates for their recreational vehicle and a

handicap parking permit. See id. ¶¶ 14-15.
In order to accommodate their disabilities, Plaintiffs have applied five times since 2018
for a trailer parking permit to allow their recreational vehicle to be parked on their marina
property. Southold denied each application on the following dates: June 6, 2018, July 30, 2020,
September 9, 2020, April 12, 2021, and October 3, 2023. See id. ¶¶ 19, 23, 26, 29, 32. Plaintiffs
allege that at no point did Southold seek information to evaluate the need and feasibility of the
requests or provide a specific reason or justification for their denial of the requests. See id. ¶ 20.
B. Procedural Background
On June 7, 2021, Plaintiffs filed their original complaint against multiple Defendants,
including the Town of Southold itself, the Town’s attorneys, members of the Town’s police
department, other Town officials, the Town justices, the Town trustees, Suffolk County, and

members of the Suffolk County Police Department. See ECF No. 1. On July 7, 2022, Plaintiffs
filed the First Amended Complaint (“FAC”), against only the Town of Southold, the Town
Board, two Town Ordinance Inspectors, and the Trustees, while omitting the other original
defendants. See ECF No. 49.
On June 7, 2023, the undersigned recommended to Judge Azrack that Defendants’
motion to dismiss the FAC be granted in its entirety as follows: dismissing sua sponte with
prejudice the claims against the Board and the Trustees, dismissing with prejudice the claims
predicated on the June 6, 2018 permit denial as time barred, and dismissing without prejudice the
remaining claims. See Kelly I, 2023 WL 6050494, at *14. On September 15, 2023, Judge
Azrack adopted the undersigned’s Report and Recommendation in its entirety. See Kelly v.
Town of Southold, No. 21-CV-3215, 2023 WL 6050288 (E.D.N.Y. Sept. 15, 2023).
On January 31, 2024, Plaintiffs filed the SAC against only the Town itself citing four
additional times after 2018 when Southold rejected their trailer permit application in 2020, 2021,

and 2023. In the SAC, Plaintiffs assert violations of the ADA, the Fourteenth Amendment’s
Equal Protection Clause and Substantive Due Process rights, the Eighth Amendment’s Excessive
Fines Clause, and assert that certain provisions of Southold’s Town Zoning Code and New York
Municipal Home Rule § 10 are facially unconstitutional.4 On August 9, 2024, Defendant filed
their fully briefed Motion presently before the Court. See ECF No. 86. On August 12, 2024,
Judge Azrack referred the Motion to the undersigned for a Report and Recommendation. See
August 12, 2024 Order.
II. LEGAL STANDARD
Courts evaluate motions to dismiss under Rule 12(b)(6) by determining whether the
complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). That standard requires the Court to accept as true all well-
pled factual allegations in the SAC and consider attachments to and documents incorporated by
reference in the SAC. See Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 462 (2d Cir. 2019).
While the Court accepts the SAC’s well-pled allegations as true, “[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; see also Gamm, 944 F.3d at 462 (explaining that a complaint must contain

4 As stated above, Count IV regarding the Eighth Amendment violations and parts of Count V regarding
the constitutionality of New York Municipal Home Rule § 10 have already been dismissed by Judge Azrack or
recommended herein by the undersigned that they be found abandoned by Plaintiffs. See supra n.1.
“more than an unadorned, the defendant-unlawfully-harmed-me accusation”). Determining
whether the SAC states a plausible claim for relief is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
III. DISCUSSION
A. Count I: ADA Claims
Defendant advances several arguments in its attempt to dismiss Plaintiffs’ ADA claims.

At the outset, Defendant argues that the ADA is inapplicable because the “‘accommodation’
Plaintiff is requesting does not relate to a governmental program or service, as the underlying use
and operation of the marina is not a government program or service.” See ECF No. 86-1 (“Def.
Mem.”) at 8. Defendant also argues that Plaintiffs have not pled a qualifying disability. See
ECF No. 86-24 (“Def. Repl.”) at 1. As to the merits of the claim, Defendant argues that allowing
Plaintiffs a trailer on their property would not be a reasonable accommodation. See Def. Mem.
at 9. Defendant further argues that there are no allegations in the SAC to suggest discriminatory
motive. See id. at 9-10. The Court will address each of these arguments in turn.
1. ADA Applicability
Title II of the ADA provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. To establish a claim under this provision of the ADA, “a plaintiff
must demonstrate (1) that she is a qualified individual with a disability; (2) that she was excluded
from participation in a public entity’s services, programs or activities or was otherwise
discriminated against by a public entity; and (3) that such exclusion or discrimination was due to
her disability.” Kane v. City of New York, No. 22-CV-1339, 2022 WL 17553307, at *4
(E.D.N.Y. Dec. 9, 2022).
Courts have consistently found that Title II of the ADA is applicable to municipal zoning
decisions, and thus, the Court rejects Defendant’s argument that Plaintiffs’ allegations are not
cognizable under the ADA. See, e.g., Forest City Daly Hous., Inc. v. Town of N. Hempstead,
175 F.3d 144, 151 (2d Cir. 1999) (denial of special use permit); Chestnut Hill NY, Inc. v. City of

Kingston, No. 23-CV-1024, 2024 WL 3415116, at *9 (N.D.N.Y. July 15, 2024) (denial of a
special use permit); Rehab. Support Servs., Inc. v. City of Albany, No. 14-CV-499, 2015 WL
4067066, at *8 (N.D.N.Y. July 2, 2015) (challenging a city zoning ordinance).
2. Qualifying Disability
Regarding whether Plaintiffs have pled a qualifying disability, the ADA defines
“disability” as “a physical or mental impairment that substantially limits one or more major life
activities” or “being regarded as having such an impairment.” 42 U.S.C. § 12102(1). Under the
ADA, “[a] qualifying disability must limit a major life activity and the limitation must be
substantial.” Langella v. Mahopac Cent. Sch. Dist., No. 18-CV-10023, 2023 WL 2529780, at *3
(S.D.N.Y. Mar. 15, 2023) (internal quotations omitted). The Second Circuit, however, has made
clear that the standard to establish a disability that substantially limits a major life activity “is not

an exacting one.” Hamilton v. Westchester Cnty., 3 F.4th 86, 92 (2d Cir. 2021). Further, the
ADA includes “the operation of a major bodily function, including but not limited to . . .
digestive, bowel, bladder.” 42 U.S.C. § 12102(2)(B).
Plaintiffs allege that Mr. Kelly has “diabetes with neuropathy and osteoarthritis” and Ms.
Kelly has “degenerative arthritis,” which require both of them to have “access to a bathroom at
all times” and Ms. Kelly “to have access to a bed to lay in during moments of flare up.” See
SAC ¶¶ 16-17. These allegations, while vague, are sufficient enough at this stage to establish
disability for purposes of withstanding the motion to dismiss. See Blair v. SUNY Univ. at
Buffalo, No. 17-CV-1317S, 2020 WL 695870, at *6 (W.D.N.Y. Feb. 11, 2020) (explaining that
“frequent visits to the bathroom” to manage a disease was sufficient to establish disability);
Hensel v. City of Utica, No. 15-CV-374, 2017 WL 2589355, at *4 (N.D.N.Y. June 14, 2017)
(“Given [the ADA Amendments Act of 2008’s] changes to the ADA’s definition of disability,
diabetes is now nearly always a ‘disability’ under the ADA.”) (internal quotations omitted); see

also Harris v. N.Y.C. Hum. Res. Admin., No. 20-CV-2011, 2024 WL 1348714, at *7 (S.D.N.Y.
Mar. 29, 2024) (at summary judgment, finding that “there is at the very least a genuine dispute of
material fact as to whether [plaintiff’s] arthritis substantially limits” a major life activity).
Regarding the merits of the ADA claim, there generally are three available theories to
establish discrimination: “(1) intentional discrimination (disparate treatment); (2) disparate
impact; and (3) failure to make a reasonable accommodation.” Chestnut Hill NY, Inc., 2024 WL
3415116, at *9. Plaintiffs are pursuing two theories—(1) intentional discrimination and (2)
failure to make a reasonable accommodation. See ECF No. 86-21 (“Pl. Mem.”) at 3. Defendant
argues that the SAC contains no allegations to suggest discriminatory motive and that the
accommodations Plaintiffs seek are not reasonable. See Def. Mem. at 9-10.

3. Disparate Treatment
Regarding Plaintiffs’ disparate treatment or intentional discrimination theory, the Court
agrees with Defendant that this claim cannot survive dismissal. “To show disparate treatment, a
plaintiff must allege facts allowing a plausible inference ‘that animus against the protected group
was a significant factor in the position taken by the municipal decision-makers themselves or by
those to whom the decision-makers were knowingly responsive.’” Chestnut Hill NY, Inc., 2024
WL 3415116, at *9 (quoting Mhany Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581, 606 (2d Cir.
2016)). “A bare assertion of discriminatory animus, without any specific factual support, is not
sufficient to state a claim under the ADA.” Moore v. City of New York, No. 15-CV-6600, 2017
WL 35450, at *19 (S.D.N.Y. Jan. 3, 2017), report and recommendation adopted, No. 15-CV-
6600, 2017 WL 1064714 (S.D.N.Y. Mar. 20, 2017). As such, a plaintiff must point to
“individual comparators or other specific evidence of disparate treatment.” Sakon v. Connecticut
et al, No. 23-CV-602, 2024 WL 4041305, at *8 (D. Conn. Sept. 4, 2024).
Here, the SAC contains no allegations of intentional discrimination. See generally SAC.

Plaintiffs do not describe in any detail any discriminatory animus by Southold officials (i.e.,
comments by officials or reasons for denial of applications) other than the vague assertion that
“[n]o reason or justification for the denial [of the permit application] was provided” and that
such denials were “arbitrary and capricious.” See id. ¶¶ 31, 37; cf. Chestnut Hill NY, Inc., 2024
WL 3415116, at *10 (finding that it was “plausible to infer disability bias from disability-based
comments by individuals at the public hearing”). Further, Plaintiffs do not assert any allegations
of sufficient comparators. Plaintiffs claim that Southold has allowed parking of vehicles such as
“roadworthy trailer, mobile homes, mobile offices, mobile toilets, and RVs” on other “marina
property” including at the “Price [sic] of Egypt marina and the Goldsmith’s marina.” See SAC
¶ 33. However, beyond the mere mentioning of those two marinas, Plaintiffs provide no other

details of what specific structures were allowed on these properties, when or why they were
allowed these structures, and how these properties are similar to Plaintiffs’ situation. See
Santucci v. Levine, No. 17-CV-10204, 2021 WL 76337, at *5 (S.D.N.Y. Jan. 8, 2021) (“[O]n a
Rule 12(b)(6) motion the Court must determine whether, based on a plaintiff’s allegations in the
complaint, it is plausible that a jury could ultimately determine that the comparators are similarly
situated.”) (internal quotations omitted). These threadbare allegations cannot support a plausible
inference of disability discrimination in order to survive a motion to dismiss. See Moore, 2017
WL 35450, at *19 (finding plaintiff failed to plead inference of discrimination where plaintiff did
“not plead a single fact about individual comparators or other specific evidence of disparate
treatment”).
4. Failure to Accommodate
Regarding Plaintiffs’ failure to accommodate theory, the Court agrees with Plaintiffs that
this claim should not be dismissed at this stage of the case. “In order to prove a failure-to-
accommodate claim, a plaintiff must show (1) that the plaintiff or a person who would live with

the plaintiff had a handicap within the meaning of § 3602(h); (2) that the defendant knew or
reasonably should have been expected to know of the handicap; (3) that the accommodation was
likely necessary to afford the handicapped person an equal opportunity to use and enjoy the
dwelling; (4) that the accommodation requested was reasonable; and (5) that the defendant
refused to make the requested accommodation.” Chestnut Hill NY, Inc., 2024 WL 3415116, at
*11 (quoting Olsen v. Stark Homes, Inc., 759 F.3d 140, 156 (2d Cir. 2014)). “An
accommodation is reasonable if it does not cause any undue hardship or fiscal or administrative
burdens on the municipality, or does not undermine the basic purpose that the zoning ordinance
seeks to achieve.” Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 239
(S.D.N.Y. 1996), aff’d in part, 117 F.3d 37 (2d Cir. 1997).

Here, Plaintiffs claim that they requested permission to maintain a recreational trailer on
their commercial property because of their claimed disabilities. See SAC ¶ 51. They allege that
they applied for a trailer permit, pursuant to Southold’s code, and were denied five times (once in
2018, twice in 2020, once in 2022, and once in 2023). See id. ¶¶ 19, 23, 26, 29, 32.5 Defendant
argues that granting the trailer permit and allowing this accommodation is not reasonable
because the trailer “may trigger a requirement for Plaintiffs – not the Town – to make the marina
ADA-compliant and remove architectural barriers to the extent readily achievable.” See Def.

5 As stated above, claims predicated on the 2018 denial have been found to be time barred. See supra n.1.
Mem. at 9. They also argue that “disregarding the Town’s trailer policy and laws regarding
alteration of pre-existing non-conforming uses to make an exception for Plaintiffs is not a
reasonable request.” See Def. Repl. at 6.
The Court however is not convinced by Defendant’s hypothetical and summary

arguments at this stage of the litigation. Defendant’s argument that if it was to permit a trailer on
Plaintiffs’ property “that may trigger a requirement” to make the property more ADA-compliant
is unavailing because it is unclear how, why, or under what ADA provision would a trailer make
the property less ADA-compliant. Further, Defendant admits that this would be Plaintiffs’
problem – not the Town’s concern. See Def. Mem. at 9 (“If Plaintiffs were to make an alteration
to the marina, including potentially adding a house trailer, that may trigger a requirement for
Plaintiffs – not the Town – to make the marina ADA-compliant…”) (emphasis added).
Additionally, Defendant presents no argument why disregarding its policy on trailers or allowing
an exception for Plaintiffs would be unreasonable. See Def. Repl. at 6. This is clearly a question
of fact that cannot be resolved at the motion to dismiss stage. See Innovative Health Sys., Inc.,

931 F. Supp. at 239 (“In considering whether a proposed accommodation or modification is
mandated by the ADA or the Rehabilitation Act, the Court must balance the plaintiffs’ interest in
operating from the South Broadway site against the defendants’ interest in the integrity of its
zoning scheme. Whether an accommodation or modification allowing HIS’ use is ‘reasonable’ is
clearly a question of fact that cannot be resolved on this motion to dismiss for failure to state a
claim.”).
Therefore, for the reasons stated above, the Court respectfully recommends denying the
Motion to dismiss Count I.
B. Count II: Equal Protection
Defendant argues that Plaintiffs’ Equal Protection claim fails because they have not
sufficiently identified prima facie comparators. See Def. Mem. at 10. Plaintiffs argue that the
SAC cites “other marinas were allowed parking of such vehicles even though they do not meet
the Town’s criteria for being granted a permit.” Pl. Mem. at 7. The Court disagrees with
Plaintiffs on this point.

“The Equal Protection Clause . . . is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985). One way to bring an Equal Protection claim is to challenge the “selective enforcement”
of a law against a plaintiff. See Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000).
To establish a selective enforcement claim, a plaintiff must allege that: “(1) the [plaintiff],
compared with others similarly situated, was selectively treated; and (2) that such selective
treatment was based on impermissible considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.”
Id. Contrary to Plaintiffs’ assertions in their briefs (and as stated above, see Part III.A.3), the
SAC does not allege what structures were allowed on other marinas, what permits (if any) were

approved, or even how these marinas are similar to Plaintiffs’ property. See SAC ¶¶ 33, 64, 66.
Accordingly, Plaintiffs have failed to sufficiently allege comparators, and thus cannot establish
an equal protection claim. See Close v. Bedford Cent. Sch. Dist., No. 23-CV-4595, 2024 WL
3427213, at *8 (S.D.N.Y. July 16, 2024) (finding that failure to identify similarly situated
comparators is “fatal” to an Equal Protection claim); Witt v. Vill. of Mamaroneck, No. 12-CV-
8778, 2015 WL 1427206, at *8 (S.D.N.Y. Mar. 27, 2015) (dismissing Equal Protection claim
where plaintiffs failed “to proffer the necessary combination of facts” showing similarly situated
comparators), aff’d sub nom. Witt v. Vill. of Mamaroneck, N.Y., 639 F. App’x 44 (2d Cir. 2016).
Therefore, for the reasons stated above, the Court respectfully recommends granting
Defendant’s Motion to dismiss Count II.
C. Count III: Substantive Due Process
Defendant argues that Plaintiffs have not alleged a vested property right and have not
alleged egregious government conduct. See Def. Mem. at 12-13. Plaintiffs counter that they
adequately alleged the existence of a federally protectable property right and that Southold

infringed on that right in an arbitrary or irrational manner. See Pl. Mem. at 9-11. The
undersigned is unconvinced by Plaintiffs’ arguments.
To state a claim for a violation of substantive due process, a plaintiff must allege “1) a
valid property interest in a constitutionally-protected benefit; and 2) deprivation of that interest
in a manner that is arbitrary, conscience-shocking, or oppressive in the constitutional sense.”
Chestnut Hill NY, Inc., 2024 WL 3415116, at *12. To establish the first prong, a plaintiff must
show a “clear entitlement” to the request. Id. “Usually, entitlement turns on whether the issuing
authority lacks discretion to deny the permit, i.e., is required to issue it upon ascertainment that
certain objectively ascertainable criteria have been met.” Id. (quoting Natale v. Town of
Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999)). As for the second prong, regarding the

government conduct, “[m]ere irrationality is not enough: only the most egregious official
conduct, conduct that shocks the conscience, will subject the government to liability for a
substantive due process violation based on [the officer’s] action[s].” Lewis v. Franklin Cnty, No.
23-CV-1647, 2024 WL 1888169, at *13 (N.D.N.Y. Apr. 30, 2024) (internal quotations omitted),
report and recommendation adopted, No. 23-CV-1647, 2024 WL 3354920 (N.D.N.Y. July 10,
2024); see also Medley v. Garland, 71 F.4th 35, 49 (2d Cir. 2023) (noting that “conscience-
shocking or egregious, [] is, by definition, extreme, rare, and obvious”) (internal quotations
omitted).
Here, Plaintiffs allege that they were “entitled to the permit to accommodate their
disability” and that Defendant’s denials of the permit were “arbitrary, capricious and/or
outrageous.” See SAC ¶¶ 73-74. However, the Court finds these barebones allegations
insufficient to establish a substantive due process claim. Regarding the second prong, Plaintiffs
fail to establish, outside of the summary allegations in the SAC, why Defendant’s conduct in

denying the trailer permit applications was even irrational, let alone egregious. Plaintiffs do not
allege that their trailer application complied with Southold’s Code (because it admittedly did not)
or that they were unfairly forced to submit applications inconsistent with Southold’s Code. Cf.
545 Halsey Lane Properties, LLC v. Town of Southampton, 39 F. Supp. 3d 326, 341 (E.D.N.Y.
2014) (denying motion to dismiss substantive due process claim where plaintiffs allege, among
other things, that the town “arbitrarily and without explanation required the Plaintiff to submit to
a site plan approval; refused to permit the Plaintiff to erect structures permissible under the Grant
which complied with the Town Code’s dimensional requirements”). Furthermore, it is unclear to
the Court whether Plaintiffs have even established the first prong (their entitlement to the special
trailer permit) considering that Southold has discretion in granting special use permits for

trailers. See ECF No. 86-8 (“1996 Trailer Policy”) (“[I]t is the policy of the Town Board to issue
such permits only upon an adequate showing of necessity and hardship, subject to such
conditions relating to permit term and use as the Board shall deem appropriate.”). Thus,
Plaintiffs have failed to establish their substantive due process claim. See Chestnut Hill NY, Inc.,
2024 WL 3415116, at *13 (dismissing substantive due process claim where city had discretion to
determine compliance with conditions stated in the city code); Dean v. Town of Hempstead, 527
F. Supp. 3d 347, 424–25 (E.D.N.Y. 2021) (“Plaintiffs were not constitutionally deprived of the
variances and permits because they did not meet the Town’s requirements for receiving
approvals and, even if they did, the Board and Department of Buildings have discretion to deny
Plaintiffs’ applications.”).
Therefore, for the reasons stated above, the Court respectfully recommends granting
Defendant’s Motion to dismiss Count III.
D. Count V: Facial Challenges
Plaintiffs allege that Southold Town Code § 280-155 is facially unconstitutional because

it violates the Eighth Amendment’s Excessive Fines Clause and supersedes New York’s Town
Law § 268, which sets forth maximum penalties for violations. See SAC ¶¶ 105, 110; Pl. Mem.
at 12. In its Motion, Defendant does not address Plaintiffs’ allegation that Section 280-155 is
facially unconstitutional because it violates the Eighth Amendment’s Excessive Fines Clause.
See Def. Mem. at 13-15; Def. Repl. at 9-10. Instead, Defendant argues that New York’s
Municipal Home Rule § 10 allows local authorities to supersede the maximum penalties for
violations in New York Town Law § 268, yet cites no case law for this and instead points to a
New York State Attorney General Informal Opinion from 2005. See Def. Mem. at 13-14. In any
event, Plaintiffs do not respond to this argument about Municipal Home Rule § 10, and instead,
reiterate that New York’s Town Law § 268 preempts Section 280-155. See Pl. Mem. at 11-14.

In addition to challenging Section 280-155, Plaintiffs also assert facial challenges to other
provisions of Southold’s Town Zoning Code, including (1) the 1996 trailer parking policy (see
SAC ¶¶ 113-16), (2) Southold Town Zoning Code § 280-81 (see id. ¶ 117), and (3) Southold
Town Zoning Code § 280-115 (see id. ¶ 118). Defendant, however, does not mention any of
these challenges in its briefing (nor do Plaintiffs). See generally Def. Mem.; Def. Repl.; Pl.
Mem.
Because Defendant does not address Plaintiffs’ facial challenges to the applicable
provisions of the Southold Town Zoning Code, the Court should deem Defendant waived its
right to move to dismiss those claims. See Malik v. City of New York, 841 F. App’x 281, 284 (2d
Cir. 2021) (“[W]hen a party fails adequately to present arguments in a brief, a court may
properly consider those arguments abandoned.”) (internal quotations and citations omitted); see
also Restivo v. Hessemann, 846 F.3d 547, 592 (2d Cir. 2017) (holding that it is not “the district
court’s job either to do the [parties’] homework or to take heroic measures aimed at salvaging the

[parties] from the predictable consequences of self-indulgent lassitude”). Similarly, the Court
should also deem that Plaintiffs waived their right to challenge the constitutionality of New York
Municipal Home Rule § 10. See supra n.1.
Therefore, for the reasons described above, the Court respectfully recommends denying
Defendant’s Motion regarding the facial challenges to all the provisions of the Southold Town
Zoning Code and granting Defendant’s Motion regarding the facial challenge to New York’s
Municipal Home Rule § 10.6
IV. CONCLUSION
For the reasons stated above, the Court respectfully recommends: (1) denying the Motion
as to Count I, (2) granting the Motion as to Counts II and III, and (3) granting in part and

denying in part the Motion as to Count V. Accordingly, Counts II, III, and part of Count V
should be dismissed with prejudice.7
V. OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days from service of this Report and

6 As stated above, the as-applied challenges to (1) New York’s Municipal Home Rule § 10 and (2) the
enforcement of Southold Town Code § 280-155 resulting in the imposition of fines against Plaintiffs have already
been dismissed. See Kelly I, 2023 WL 6050494, at *7 (finding that the Court lacked subject matter jurisdiction to
hear claims that Southold’s Town Justice Court imposed excessive fines); Judge Azrack’s April 17, 2024 Order
(dismissing Count IV and the as-applied constitutional challenge to New York’s Municipal Home Rule § 10).

7 Dismissal of the aforementioned claims should be appropriate with prejudice because further amendment
could not remedy the relevant deficiencies identified above. See Melendez v. Sirius XM Radio, Inc., 50 F.4th 294,
297 (2d Cir. 2022) (affirming dismissal of futile claim with prejudice).
Recommendation to file written objections. See also Fed. R. Civ. P. 6(a) & (d) (addressing
computation of days). Any requests for an extension of time for filing objections must be
directed to Judge Azrack. FAILURE TO FILE TIMELY OBJECTIONS SHALL CONSTITUTE A WAIVER OF
THOSE OBJECTIONS BOTH IN THE DISTRICT COURT AND ON LATER APPEAL TO THE UNITED STATES

COURT OF APPEALS. See Thomas v. Arn, 474 U.S. 140, 154-55 (1985); Frydman v. Experian
Info. Sols., Inc., 743 F. App’x 486, 487 (2d Cir. 2018); McConnell v. ABC-Amega, Inc., 338 F.
App’x 24, 26 (2d Cir. 2009); F.D.I.C. v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995).

SO ORDERED:
Dated: Central Islip
September 26, 2024 s/ Lee G. Dunst

LEE G. DUNST
United State Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10768220. Public record. Not legal advice.