# Kincade Enterprises LLC v. Town of Brookhaven

> District Court, E.D. New York · September 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11141819

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 18, 2025
- **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/11141819

## How later opinions describe it (automated extraction)

- affirming district court’s denial of a motion to dismiss made via premotion letter

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KINCADE ENTERPRISES LLC, et al.,
Plaintiffs,
MEMORANDUM
v. AND ORDER
25-CV-0476-SJB-AYS
TOWN OF BROOKHAVEN,
Defendant.
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BULSARA, United States District Judge:
Pending before the Court is Defendant Town of Brookhaven’s (“the Town”)
second motion requesting a premotion conference to dismiss this takings action. (Letter
Mot. for Premotion Conf. dated July 25, 2025 (“Def.’s Second PMC Req.”), Dkt. No. 18).
The Court previously held a premotion conference on the Town’s request, (Letter Mot.
for Premotion Conf. dated Feb. 20, 2025 (“Def.’s First PMC Req.”), Dkt. No. 9), during
which it dismissed the Complaint because the dispute was not ripe, but granted leave to
amend. (Premotion Conf. Tr. dated May 13, 2025 (“PMC Tr.”), at 33:17–34:3); Minute
Entry dated May 13, 2025). Plaintiffs Linda Bodkin, Peter Bodkin, and corporate entity
Kincade Enterprises LLC (collectively “Plaintiffs”) filed an Amended Complaint on July
11, 2025. (Am. Compl. dated July 11, 2025 (“Am. Compl.”), Dkt. No. 16). Plaintiffs filed
an opposition to the Second PMC Request on August 8, 2025. (Pls.’ Letter in Response
dated Aug. 8, 2025 (“Pls.’ Opp’n”), Dkt. No. 19). As explained below, the second
request for a premotion conference is deemed as making the motion for dismissal itself,
and the Court grants the motion. The Amended Complaint is dismissed without
prejudice, once again for lack of standing, and without leave to amend.
FACTUAL BACKGROUND

The following alleged facts are taken from Plaintiffs’ Amended Complaint.
Plaintiffs have owned the subject property (“the Property”) since 1999, some 114,105
square feet in Brookhaven, which they have used to operate a family business. (Am.
Compl. ¶¶ 3, 28). Plaintiffs assert that the Town began implementing a Conservation
and Management Plan (“CMP”) in 2013, (id. ¶¶ 19, 30), that was followed by zoning
changes in January 2015 to further the goals of the CMP. (Id. ¶¶ 20, 23, 33, 34).

Plaintiffs allege they had no notice about these changes. (Id. ¶ 22). The Town
designated the Property as an A-2 Residence District, which requires a lot to be 80,0000
square feet (or roughly two acres) to qualify for a building permit for a single–family
home. (Id. ¶¶ 22, 35). No non-residential use is permitted on an A-2 designated
property, including the subject Property. (Id. ¶ 23).
Plaintiffs have recently had several inquiries from potential buyers of the
Property. (Am. Compl. ¶ 40). Because of these inquiries, the Plaintiffs met with

representatives of the Town sometime in 2024 to discuss whether a commercial
structure could be built on the Property. (Id. ¶¶ 40–41). At that meeting, which was a
“pre-requisite step to the formal application,” Plaintiffs allege that the Town told them
that a permit for a non-residential structure would not be allowed; as a result, a
potential buyer rescinded an offer. (Id. ¶¶ 41–42). There are no further details, such as
a transcript, about what was actually stated during the 2024 meeting, or any other acts
or omissions by the Town alleged in the Complaint.1
Plaintiffs do not allege that their current use of the Property is prohibited or that

the Property cannot be used for residential purposes in the future. Yet, they allege that
because the Property cannot be used for a new commercial use, it “retains no
substantial commercial value.” (E.g., id. ¶¶ 43–44). Therefore, they allege that the
Town has eliminated “any beneficial use” of the Property. (E.g., id. ¶¶ 1, 68).
The Amended Complaint contains three claims under § 1983 pursuant to both
the Fifth and Fourteenth Amendments of the United States Constitution: 1) a violation

of substantive due process; 2) a complete regulatory taking under Lucas v. South Carolina
Coastal Council, 505 U.S. 1003 (1992); and 3) a partial regulatory taking under Penn
Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). (Am. Compl. ¶¶ 45–116).
The Amended Complaint is substantially similar to the original Complaint: none
of the underlying facts alleged have changed. The most significant change is the
addition of a section entitled “Ripeness – Futility,” (id. ¶¶ 11–23), presumably intended
to address the deficiencies that led to the original dismissal. This section adds several

allegations about the legal standard for futility, but does not include any new facts that
were not present in the original Complaint. (Compare id., with Compl. ¶¶ 14–29). In

1 The Amended Complaint repeatedly refers to the Town’s actions of
“prohibit[ing] . . . constructing a commercial structure,” (Am. Compl. ¶ 80), “refusal to
allow the Plaintiffs to develop the Subject Property in any commercial manner,” (id.
¶ 82), and that the Town “single[d] out the Plaintiffs from similarly situated
landowners,” (id. ¶ 89), among other allegations. But these claims are bereft of any
factual details that support drawing such conclusions.
other words, these paragraphs contain what amounts to a legal argument explaining
why it would be futile for the Plaintiffs to apply formally for an exception or variance to
the zoning requirement. (Am. Compl. ¶ 12).

DISCUSSION
The Second Circuit has “occasionally approved the practice of construing
premotion letters as the motions themselves under appropriate circumstances.”
Kowalchuck v. Metro. Transp. Auth., 94 F.4th 210, 217 (2d Cir. 2024) (quotations omitted).
This is such a circumstance. And, although less common than a District Court denying
a dispositive motion, the Second Circuit has also “occasionally affirmed the granting of

dispositive motions without full briefing . . . only when the issues were predominantly
legal and the complaint had ‘substantial deficiencies[.]’” Id. at 217 (quoting Grossman v.
GEICO Cas. Co., No. 21-2789, 2022 WL 1656593, at *4 (2d Cir. May 25, 2022)); e.g.,
Kapitalforeningen Lægernes Inv. v. United Techs. Corp., 779 F. App’x 69 (2d Cir. 2019)
(affirming district court’s dismissal by way of premotion letter construed as a motion to
dismiss); In re Best Payphones, Inc., 450 F. App’x 8, 15 (2d Cir. 2011) (affirming district
court’s denial of a motion to dismiss made via premotion letter). The legal and factual

issues here are straightforward, there are substantial deficiencies in the Amended
Complaint, and the parties have already been heard on the same issues at the
premotion conference held in May. See Schimkewitsch v. New York Inst. of Tech., No. 23–
CV-1022, 2024 WL 3811809, at *2 (2d Cir. Aug. 14, 2024); (e.g., PMC Tr. at 3:21–4:25;
27:19–28:14; 29:12–24). As such, the Town’s Second PMC Motion is deemed as having
made the motion to dismiss, and the Court dismisses the Amended Complaint for lack
of standing.
”[A] district court must generally resolve material factual disputes and establish

that it has federal constitutional jurisdiction, including a determination that the plaintiff
has Article III standing, before deciding a case on the merits.” All. For Env’t Renewal v.
Pyramid Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006). “Article III limits federal judicial
power to ‘Cases’ and ‘Controversies,’ and standing to sue ‘limits the category of
litigants empowered to maintain a lawsuit in federal court to seek redress for a legal
wrong.’” Melito v. Experian Mktg. Sols. 923 F.3d 85, 92 (2d Cir. 2019) (citation omitted)

(quoting Spokeo v. Robins, 578 U.S. 330, 338 (2016)).
To establish standing, a plaintiff “must show that she has suffered, or will suffer,
an injury that is ‘concrete, particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling.’” Murthy v. Missouri, 603 U.S.
43, 57 (2024) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). The
concrete and particularized injury cannot be ‘conjectural’ or ‘hypothetical.’ Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992); see also Spokeo, 578 U.S. at 339. Relevant to

injury in the takings context is the concept of ripeness. “The purpose of the ripeness
requirement . . . [is] ensuring that a dispute has generated injury significant enough to
satisfy the case or controversy requirement of Article III of the U.S. Constitution.”
Sunrise Detox V, LLC v. City of White Plains, 769 F.3d 118, 122 (2d Cir. 2014) (citation
modified). To that end, “landowners bringing zoning challenges must meet the high
burden of proving that [the Court] . . . can look to a final, definitive position from a local
authority to assess precisely how they can use their property.” Id. at 121; see also
Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186
(1985), overruled on other grounds by Knick v. Twp. of Scott, Pa. 588 U.S. 180, 189 (2019).

This requires a plaintiff to “submit[] a meaningful application . . . . The municipal entity
responsible for the relevant zoning laws must also have an opportunity to commit to a
position.” Vill. Green At Sayville, LLC v. Town of Islip, 43 F.4th 287, 297 (2d Cir. 2022).
This final decision requirement extends to takings claims and those couched as
substantive due process violations. Id. at 294.
The Amended Complaint does not cure the deficiencies in the original

Complaint. The Amended Complaint broadly gestures at the same “actions” by the
Town as in the original Complaint, (compare Am. Compl. ¶¶ 67–70; 72–73, with Compl.
¶¶ 105–107), but provides minimal details about these actions—leaving the Court to
presume the Plaintiffs are referring to some combination of the Town’s passing of the
CMP, the zoning ordinance, and the informal meeting with Plaintiffs in 2024, as these
are the only acts alleged as actually taken by the Town. (E.g., Am. Compl. ¶¶ 31–35, 41).
Perhaps more importantly, as in the original Complaint, Plaintiffs again have not

alleged that they actually applied for a permit, made any appeal on any decision
denying such permit, or made any formal request for a variance. Indeed, in the
Amended Complaint, Plaintiffs themselves recognize that they must file “at least one
meaningful application” for the futility exception to apply. (Id. ¶ 17 (quoting Quick Cash
of Westchester Ave. LLC v. Vill. of Port Chester, No. 11-CV-5608, 2013 WL 135216, at *8
(S.D.N.Y. Jan. 10, 2013))). But they never filed such an application.
Nor have Plaintiffs identified any final, definitive position from the Defendants.
The closest Plaintiffs come is the allegations about the meeting with the Town in 2024,
which was also alleged in the original Complaint, (Compl. ¶ 26), but they still do not

claim that this decision was final or definitive. (Am. Compl. ¶¶ 41–42). There is no
indication that the Town has committed to a final decision; and the Town’s letter
request for a second premotion conference suggests the same. (Def.’s Second PMC Req.
at 2 (“Since Plaintiffs never applied for relief (or a permit) of any kind, they were never
denied the same . . . . their allegations amount to nothing more than, at best, a perceived
hostility towards a proposed application.”)).

The dispute is plainly still not ripe for adjudication. “[A]t least one meaningful
application for a variance” is required before the Court may evaluate “whether . . . all
such applications [would] be denied[.]” Sunrise Detox, 769 F.3d at 124. This
final-decision rule is designed to aid courts in understanding exactly how a
litigant is being harmed by a land use designation, and to prevent litigants
from rushing into federal courts when the harm could be avoided through
a local process. [Plaintiff’s] failure to attain a final decision on its
application by availing itself of the local procedure that could remedy its
alleged harm—whatever that may be, since none has yet been articulated—
bars it from litigating this claim in federal court.

Islamic Cmty. Ctr. for Mid Westchester v. City of Yonkers Landmark Pres. Bd., 742 F. App’x
521, 525 (2d Cir. 2018); e.g., Safe Harbor Retreat LLC v. Town of E. Hampton, N.Y., 629 F.
App’x 63, 65 (2d Cir. 2015) (“Safe Harbor’s claims were not ripe because it failed to
apply for the special permit that both the building inspector and Zoning Board
identified as the appropriate avenue for obtaining the town’s permission to operate its
facility on its property.”).
In their opposition, which cites no case law, Plaintiffs made no attempt to argue
that the Amended Complaint adequately cured the futility deficiencies—i.e., the failure
to seek formal Town approval, the absence of any Town denial, and the absence of a

final decision. (See Pls.’ Opp’n). Yet they still attempt to argue futility based on
allegations that are just legal argument dropped into their complaint.2 (See Am. Compl.
¶¶ 11–23). To the extent that the 2024 informal conversations are the factual basis for
the alleged futility of making a formal application, that does not establish a ripe dispute.
BMG Monroe I, LLC v. Vill. of Monroe, 93 F.4th 595, 603 (2d Cir. 2024) (“While the Village
Planning Board might have expressed doubts about BMG’s prospects for receiving a

variance, ‘mere doubt that [a variance] application would be [granted] is insufficient to
establish futility.’” (quoting Dreher v. Doherty, 531 F. App’x 82, 83 (2d Cir. 2013)). And
even if the doubt were more concrete, the failure to submit a single application
forecloses a futility argument. Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 353
& n.7 (2d Cir. 2005).
Having established that Plaintiffs dispute is not ripe, this Court need not—
indeed, may not—evaluate the merits. Accordingly, the Complaint is dismissed

without prejudice, and without leave to amend. Dougherty v. Town of N. Hempstead Bd.
of Zoning Appeals, 282 F.3d 83, 88–89 (2d Cir. 2002) (affirming denial of leave to amend
with respect to takings-related claims because of futility, since there was no record of an
application for a variance), abrogated in part on other grounds by Knick, 588 U.S. at 185.

2 “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Clerk of Court is directed to close this case.

SO ORDERED.

/s/ Sanket J. Bulsara
SANKET J. BULSARA
United States District Judge
Date: September 18, 2025
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11141819. Public record. Not legal advice.