DiSanto

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_________________________________________ ________________

Patrick DiSanto

Plaintiff,

1:25-CV-01329

v. (AJB/MJK)

Ulster County Family Court

Defendant.

__________________________________________________________

Patrick DiSanto, Plaintiff, pro se

Mitchell J. Katz, United States Magistrate Judge

To the Honorable Anthony J. Brindisi, U.S. District Judge

ORDER and REPORT-RECOMMENDATION

DiSanto commenced this action on September 19, 2025, by filing

what was docketed by the Clerk’s Office as a Complaint, but titled

“Memorandum Of Law & Request For Evidentiary Hearing.” (“Compl.,”

Dkt. No. 1). DiSanto also filed an application to proceed in forma

pauperis. (“IFP”) (Dkt. 2). On September 23, 2025, DiSanto filed what

was docketed by the Clerk’s Office as an Amended Complaint, but titled

“Memorandum Of Law & Request For Evidentiary Hearing.” (“Am.

Compl.,” Dkt. No. 4). On September 24, 2025, DiSanto filed a motion to

seal. (Dkt. 5). On October 20, 2025, DiSanto filed the following: (a) a

motion for a protective order (Dkt. 8); (b) a petition to perpetuate

testimony pursuant to Rule 27(a) (Dkt. 10); (c) a motion to vacate

judgment for fraud on the court (Dkt. 11); and (d) a motion to seal

respondent list (Dkt. 12) (Dkts. 8, 10, 11, 12 are collectively referred to

as the “October 20, 2025 Motions.”).

On November 5, 2025, this Court issued an Order and Report

Recommendation: (1) granting DiSanto’s IFP application; (2) dismissing

the Amended Complaint without prejudice and with leave to amend

except for the following claims which were dismissed with prejudice and

without leave to amend: (i) claims for negligence or medical malpractice

arising out of DiSanto’s purported “hypoglycemic event” over which the

Court lacks subject matter jurisdiction and which are nevertheless time

barred; (ii) claims for false arrest, excessive force, or both which are

time barred under Section 1983 and Bivens; (iii) claims against the

Ulster Family Court which are barred by the Eleventh Amendment;

and (iv) claims against Judge Cahill and Judge Lalor which are

precluded by the Eleventh Amendment and/or the doctrine of judicial

immunity; (3) denying DiSanto’s motion to seal without prejudice (Dkt.

5, 5-1); and (4) denying the October 20, 2025 Motions without prejudice.

(Dkt. 13).

On December 9, 2025, United States District Court Judge

Anthony J. Brindisi accepted the Order and Report-Recommendation.

(Dkt. 15). Judge Brindisi afforded DiSanto 30 days to file a second

amended complaint. (Id.). On January 22, 2026, the Court sua sponte

granted DiSanto an additional 30 day to file a second amended

complaint. (Dkt. 19).

DiSanto filed a Second Amended Complaint on January 22, 2026.

(Dkt. 20). On January 26, 2026, DiSanto filed a Memorandum of Law

and Request With Exhibits (Dkt. 21), identical to the document he filed

on September 19, 2025 which was docketed as a Complaint. And on

March 3, 2026, DiSanto filed a motion for leave to file a Third Amended

Complaint. (Dkt. 23). Because DiSanto filed his motion for leave to file a

Third Amended Complaint before the Court had an opportunity to

review the Second Amended Complaint, the Court will grant the

DiSanto’s motion and review the sufficiency of the Third Amended

Complaint. For the reasons discussed below, the Court recommends

that the Third Amended Complaint be dismissed with prejudice and

without leave to amend.

I. STANDARD OF REVIEW

The Court must consider the sufficiency of the allegations set forth

in the Second Amended Complaint considering 28 U.S.C. § 1915, which

provides that a Court shall dismiss the case at any time if it determines

that the action is (i) frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief. See 28 U.S.C. § 1915

(e)(2)(B)(i)-(iii).

In determining whether an action is frivolous, the Court must

consider whether the Complaint lacks an arguable basis in law or in

fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on

other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28

U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent

abuses of Court process as well as to discourage the waste of judicial

resources. See Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge,

505 F.2d 802, 804 (8th Cir. 1974). Although the Court has a duty to

show liberality toward pro se litigants and must use extreme caution in

ordering sua sponte dismissal of a pro se Complaint before the adverse

party has been served and has had an opportunity to respond, the Court

still has a responsibility to determine that a claim is not frivolous before

permitting a plaintiff to proceed. See Fitzgerald v. First E. Seventh St.

Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district

court may dismiss a frivolous complaint sua sponte even when plaintiff

has paid the filing fee).

To survive dismissal for failure to state a claim, the Complaint

must contain sufficient factual matter, accepted as true, to state a claim

that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 570). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).

In addition, Fed. R. Civ. P. 8(a)(2) requires that a pleading contain

a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Although Rule 8 does not require detailed factual

allegations, it does “demand[] more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-

1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016)

(quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations

that “‘are so vague as to fail to give the defendants adequate notice of

the claims against them’ is subject to dismissal.” Id. (citing Sheehy v.

Brown, 335 F. App’x 102, 104 (2d Cir. 2009)).

The Court will now consider the sufficiency of DiSanto’s Third

Amended Complaint, under the above standards.

I. FACTS

On October 11, 2013, DiSanto alleges that the Kingston Police

Department confiscated his personal property and created a property

inventory. (Third Amended Complaint, ¶¶ 13, 14). The seized property

included research materials, personal documents, medical records, and

personal property. (Third Amended Complaint, ¶ 16). The confiscated

items were taken control of by the Ulster County Sheriff’s Office and

transferred to a storage unit in Ulster County. (Third Amended

Complaint, ¶¶ 16, 17). DiSanto alleges that he did not “receive a

constitutionally adequate post-deprivation hearing” regarding his

property and did not “receive meaningful notice providing an

opportunity to contest disposition prior to sale.” (Third Amended

Complaint, ¶¶ 20, 21). A Sheriff’s Notice of Sale was issued on May 4,

2018. (Third Amended Complaint, ¶ 22).

DiSanto also alleges that he sustained a traumatic brain injury

causing “cognitive impairment and personality change.” (Third

Amended Complaint, ¶ 27). Because of his neurological impairment,

DiSanto requested reasonable accommodations for court proceedings,

which he claims were either denied or ignored. (Third Amended

Complaint, ¶¶ 20, 31).

DiSanto seeks relief under 42 U.S.C § 1983 and 42 U.S.C. § 12132.

II. DISCUSSION

A. DiSanto’s claims are time barred

The Cour recommends that the District Court dismiss the Third

Amended Complaint with prejudice and without leave to amend

because DiSanto’s claims are all time barred.

The statute of limitations for Section 1983 claims is New York’s

general statute of limitations for personal injury actions, N.Y. C.P.L.R.

§ 214(5), which is three years. See Lucente v. County of Suffolk, 980

F.3d 284, 308 (2d Cir. 2020) (citation omitted); see also Corsini v. City of

New York, No. 20-CV-05459, 2023 WL 4420113, at *4 (E.D.N.Y. Jul. 10,

2023) (three year statute of limitations for procedural due process

claims); Keitt v. New York City, 882 F. Supp. 2d 412, 425 (S.D.N.Y.

2011) (three year statute of limitations for ADA claims).

The genesis of DiSanto’s claims is the October 11, 2013

confiscation of his personal property by the Kingston Police Department

followed by the issuance of the Sheriff’s May 4, 2018 Notice of Sale and

attendant court proceeding for which DiSanto requested

accommodations because of his neurological impairments. See generally

(Third Amended Complaint). The events that DiSanto complains about

occurred between 2013-2018, more than a decade ago and well beyond

the three year statute of limitations. DiSanto’s claims are therefore all

time barred and the Court recommends that the Third Amended

Complaint be dismissed with prejudice and without leave to amend.1

III. OPPORTUNITY TO AMEND

Generally, before the court dismisses a pro se complaint or any

part of the complaint sua sponte, the court should afford a plaintiff the

opportunity to amend at least once; however, leave to re-plead may be

1 Because the Court is recommending dismissal based on the statute of limitations,

it is not addressing the sufficiency of DiSantos’ claims as pleaded.

denied where any amendment would be futile. See Ruffolo v.

Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present

when the problem with plaintiff’s causes of action is substantive such

that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d

99, 112 (2d Cir. 2000) (citation omitted). Any amendment in this case

would be futile because DiSanto cannot allege any additional facts that

would resurrect his time barred claims.

WHEREFORE, based on the findings above, it is hereby

ORDERED, that DiSanto’s motion for leave to file a Third

Amended Complaint is GRANTED, and it is further

RECOMMENDED that the Third Amended Complaint be

DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO

AMEND, and it is further

ORDERED that the Clerk provide DiSanto with a copy of this

Report-Recommendation and Order, along with copies of the

unpublished decisions cited herein in accordance with the Second

Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per

curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)

days within which to file written objections to the foregoing report.?

Such objections shall be filed with the Clerk of the Court. FAILURE

TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS

WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984

F.2d 85 (2d Cir. 1998) (citing Small v. Sec’y of Health and Human

Servus., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

72.

Dated: March 23, 2026.

Hon. Mitchell J. Katz

U.S. Magistrate Judge

2 Tf you are proceeding pro se and are served with this Report-Recommendation and

Order by mail, three additional days will be added to the fourteen-day period,

meaning that you have seventeen days from the date the Report-Recommendation

and Order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the

last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then

the deadline is extended until the end of the next day that is not a Saturday,

Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

10

2023 WL 4420113 before a City tribunal and instead must be paid immediately.

Only the Westlaw citation is currently available.

United States District Court, E.D. New York. Plaintiff alleges that the DOB has an enforcement unit that

prosecutes violations of the City's building code before the

Joseph CORSINI, Plaintiff, Office of Administrative Trials and Hearings (“OATH”),

v. which “is the central administrative tribunal for the City.”

CITY OF NEW YORK, Defendant. ECF No. 32 ¶¶ 19, 21. When the DOB discovers a violation

of the building code that it decides to enforce, it issues

20-CV-05459 (HG) (MMH) a “Notice of Violation and a Hearing” to the property

| owner, which “initiates the enforcement process,” including

Signed July 10, 2023 by scheduling a hearing date before OATH. Id. ¶ 40; ECF

No. 39-1.1 Plaintiff's complaint refers to these notices of

Attorneys and Law Firms

violations that culminate in an administrative hearing before

William R. Maurer, Pro Hac Vice, Institute for Justice, Seattle, a neutral tribunal, albeit a tribunal also set up by the City, as

WA, Diana K. Simpson, Pro Hac Vice, Jaba Tsitsuashvili, Pro “reviewable violations.” ECF No. 32 ¶ 39.

Hac Vice, Institute for Justice, Arlington, VA, Jaime Lathrop,

Law Offices of Jaime Lathrop PC, Brooklyn, NY, for Plaintiff. 1 Plaintiff's operative complaint refers to all of

the documents that he received from the City

Darren Michael Trotter, Kerri Ann Devine, NYC Law as “notices of violations.” See generally ECF

Department Office of the Corporation Counsel, New York, No. 32. However, Defendant has provided the

NY, for Defendant. actual documents that Plaintiff received from the

City notifying him of these violations, which

are incorporated by reference into Plaintiff's

MEMORANDUM & ORDER complaint. See ECF No. 39. Those documents

demonstrate that the documents that Plaintiff refers

HECTOR GONZALEZ, United States District Judge:

to as “reviewable violations” were each entitled

*1 Plaintiff asserts that the City of New York deprived “Notice of Violation and Hearing,” whereas the

him of his due process rights secured by the Fourteenth documents that Plaintiff refers to as “unreviewable

Amendment and 42 U.S.C. § 1983. ECF No. 32. Defendant violations” were entitled simply “Notice of

has moved to dismiss those claims. The Court grants Violation.” See, e.g., ECF Nos. 39-1 & 39-9. In

Defendant's motion to dismiss in full for the reasons set forth this decision, the Court will primarily use the

below. ECF No. 38. Part of Plaintiff's procedural due process nomenclature that Plaintiff uses in his complaint

claim is barred by the statute of limitations, and the remainder because of the length and similarity of the names

of his procedural claim fails on the merits. Any substantive that the City assigns to these different types of

due process claim that Plaintiff might attempt to assert would documents.

also fail on the merits. OATH contains a division in which a property owner—or

the City if the City is the losing party during the initial

OATH hearing—may file an administrative appeal. Id. ¶ 74.

Generally, if the property owner was the losing party at the

FACTUAL BACKGROUND

initial hearing, then he must pay any fines imposed while

This case arises from Plaintiff's construction of a pigeon the administrative appeal is pending, unless he successfully

coop on the roof of his home and penalties imposed by the applies for a waiver of the immediate payment requirement.

City's Department of Buildings (“DOB”), which Plaintiff paid Id. ¶ 75. Plaintiff alleges that whether to grant a waiver

after receiving administrative hearings before a City tribunal pending appeal falls within the “sole discretion” of OATH's

related to some of those penalties. The essence of Plaintiff's Chief Administrative Law Judge or “her designee” and

claim is that some of these penalties, which he refers to as that “[t]here are no standards in any City ordinance, code

“unreviewable violations,” violate his constitutional right to provision, or rule to guide the Chief Judge or her designee

division rules in favor of the property owner, it has the impose. Id. ¶ 114. After Plaintiff's initial OATH hearing in

authority to order the City to pay back any penalties paid by January 2017, OATH conducted two more hearings, the last

the property owner while the appeal was pending, although of which occurred on November 21, 2017. Id. ¶¶ 115–16.

Plaintiff alleges that “[t]here is no requirement that the City While that process was pending, the DOB issued Plaintiff two

pay interest on any funds it repays.” Id. ¶¶ 78–79. A property more reviewable violations related to his failure to bring the

owner may further appeal a decision by OATH's appeals pigeon coop into compliance with the building code—one on

division by filing a proceeding in New York state court February 2, 2017, and another on April 5, 2017. Id. ¶ 117; see

pursuant to Article 78 of New York's Civil Practice Law and also ECF Nos. 39-5 & 39-6.

Rules, which “proceedings provide for limited judicial review

of final administrative decisions.” Id. ¶¶ 81–82. Throughout the hearing process, OATH issued six separate

decisions, one corresponding to each of the six reviewable

*2 Plaintiff was thrust into the DOB's administrative violations, and the last of which was issued on November

enforcement process because, as mentioned above, he built a 21, 2017. ECF Nos. 39-2, 39-4, 39-7, 39-8. These decisions

pigeon coop on the roof of his home in Queens. ECF No. 32 ¶ collectively reduced any of Plaintiff's Class 1 penalties to

94. After a neighbor complained to the DOB about the coop, Class 2 penalties, meaning that they each carried a penalty

a DOB inspector visited Plaintiff's property, and the DOB of $800 per violation, which amounted to a total penalty of

issued to Plaintiff two Notices of Violation and a Hearing on $4,800. ECF No. 32 ¶¶ 115–16. Plaintiff declined to appeal

September 20, 2016, i.e., the type of violations that Plaintiff the decisions to OATH's appeals division, which would have

calls “reviewable violations.” Id. ¶ 97. The DOB classified preserved his ability to bring an Article 78 proceeding in state

Plaintiff's violations as Class 1, which carried a “standard court, because Plaintiff faced the prospect of the decision

penalty” of $1,600 at that time. Id. ¶¶ 97–98. The DOB issued becoming less favorable to him on appeal and potentially

two reviewable violations for the same pigeon coop because having the penalties increased back to the Class 1 amount.

the coop spanned both units of Plaintiff's duplex, and the Id. ¶¶ 121–22. The fact that Plaintiff would have needed

DOB therefore determined that the coop made two properties to pay the reduced penalties while the appeal was pending

noncompliant with the building code. Id. ¶ 100. —assuming that he did not successfully obtain a waiver—

made an appeal even less palatable to him. Id. ¶¶ 122–23.

The DOB's initial notices of these reviewable violations Plaintiff also believed that obtaining a waiver was unlikely

scheduled a hearing before OATH that was eventually set for and reached the conclusion that he was “not rich enough to

January 2017. Id. Plaintiff alleges that, during the intervening bear the entire penalty without real financial pain, but not poor

period, he hired an architect and attempted to work with enough to qualify for a hardship exception.” Id. ¶ 124.

the City to bring his pigeon coop into compliance with

the building code, but that the City was not cooperative In the midst of the notices of reviewable violations, hearings,

in explaining how the coop could be made compliant. Id. and administrative decisions described above, the City sent

¶ 101. During this period, on November 19, 2016, the Plaintiff two more documents entitled “Notice of Violation”

DOB inspected Plaintiff's property again and issued two on December 14, 2016, one for each of Plaintiff's properties

more reviewable violations. Id. ¶ 103. These new reviewable affected by the pigeon coop. ECF No. 32 ¶ 106; ECF No.

violations were based on Plaintiff's failure to certify that he 39-9. Each of these imposed a penalty of $1,500, meaning

had brought his property into compliance following the first a total penalty of $3,000. ECF No. 39-9. The documents

set of reviewable violations. Id. This second set of reviewable informed Plaintiff that these penalties were “in addition to any

violations also scheduled a hearing before OATH in January penalties imposed as a result of a hearing at [OATH] and any

2017. Id. other D.O.B. civil penalties associated with the underlying

violation.” Id. The documents did not expressly set an OATH

Plaintiff ultimately decided to dismantle his pigeon coop hearing date for Plaintiff to challenge the penalties. Id.

rather than to bring it into compliance with the City's building Plaintiff alleges that these notices were different from the

code because doing so would have been “prohibitively others he received and purportedly imposed “unreviewable

expensive,” particularly because it would have required violations” that could not be defeated through an OATH

Plaintiff to install sprinklers on the coop. ECF No. 32 ¶ hearing. ECF No. 32 ¶ 106. However, Plaintiff alleges that he

108. He hired an attorney to represent him at his OATH did not understand the unreviewable nature of these violations

that these penalties “would be adjudicated together with the 1. After the parties exchanged pre-motion letters regarding

violations he received in September and November 2016, at a proposed motion to dismiss by the City, Judge Brodie,

the ECB/OATH hearing that was scheduled for January 3, who previously presided over this case, permitted Plaintiff to

2017.” Id. Plaintiff asserts that it was not until he received his amend his complaint. See ECF Nos. 14, 15, 17, 18; ECF Order

final OATH hearing decision on November 21, 2017, that he dated Feb. 18, 2021. The City then moved to dismiss that

learned that “he had not, and would never, receive a hearing” amended complaint, and Judge Brodie granted that motion,

for these purportedly “unreviewable violations.” Id. ¶ 119. finding that Plaintiff's claim was barred by the statute of

limitations. ECF No. 31. She held that Plaintiff's due process

*3 The City, on the other hand, offers a different claim accrued when the City issued its first pair of so-

characterization of the “Notice of Violation” documents sent called reviewable violations on September 20, 2016, and that

to Plaintiff in December 2016. The City says that these Plaintiff failed to commence his lawsuit within three years

documents imposed “civil penalties” authorized by the City's of that date. Corsini v. City of New York, No. 20-cv-5459,

administrative code for Class 1 violations that a property 2021 WL 5999631, at *9 (E.D.N.Y. Dec. 20, 2021). Judge

owner fails to remedy. ECF No. 40 at 5. Although a property Brodie rejected Plaintiff's argument that each day that the City

owner does not receive a separate OATH hearing to contest failed to provide him with an OATH hearing to contest the

these civil penalties, the City claims that they must be tied pair of purportedly “unreviewable violations” that the City

to a viable notice of violation related to a Class 1 violation had issued on December 14, 2016, represented a continuing

and that, if a property owner defeats an underlying Class violation that rendered his due process claim timely. Id. at *9–

1 violation during an OATH hearing, the civil penalties are 10.

“rendered unenforceable.” Id. The City says this is exactly

what happened to Plaintiff—that OATH reduced his total However, Judge Brodie permitted Plaintiff to amend his

penalties by reducing all of his Class 1 violations to Class complaint yet again to attempt to allege a due process

2 violations, which rendered unenforceable the separate civil violation that occurred within the statute of limitations period.

penalties imposed in December 2016. Id. Plaintiff, however, Corsini, 2021 WL 5999631, at *10. She explained that

alleges that he paid the City in 2018, after the conclusion of Plaintiff's second amended complaint “must allege that the

his OATH hearing process, a total of $7,800—i.e., $4,800 for City's failure to provide a hearing [on the unreviewable

the penalties reduced by the OATH decisions plus the $3,000 violations] compounded Plaintiff's injury following the

imposed by the purportedly “unreviewable violations.” ECF issuance of the initial notices or that the continuing violation

No. 32 ¶ 120. doctrine otherwise applies.” Id. Plaintiff responded by filing

a second amended complaint, which added allegations

Plaintiff's complaint contains only one cause of action, a explaining that he did not understand until his OATH hearings

claim pursuant to 42 U.S.C. § 1983 that the City's process concluded in November 2017 that he would not be permitted

for imposing and adjudicating violations of its building to contest the validity of the unreviewable violations at those

code deprived Plaintiff of his due process rights under the hearings and would instead be permitted to challenge only

Fourteenth Amendment. Id. ¶¶ 139–40. Plaintiff has brought the reviewable violations. See ECF No. 32 ¶¶ 8, 106–07,

this claim solely against the City, rather than any individual 113, 115–20, 130, 146, 160; see also ECF No. 43 at 5

defendants, pursuant to Monell v. Department of Social (Plaintiff's brief explaining that these paragraphs contain his

Services, 436 U.S. 658 (1978). Id. ¶ 145. Although Plaintiff's new allegations). The City has moved to dismiss that second

complaint appears to focus predominantly on violations of his amended complaint. ECF No. 38.

rights to procedural due process, it also includes an allegation

that the City's policy for handling building code violations

“was arbitrary and shocking to the conscience and was so

LEGAL STANDARD

brutal and offensive as to not comport with traditional ideas of

fair play and decency,” which suggests that he is also asserting *4 A complaint must plead “enough facts to state a claim to

a substantive due process claim. Id. ¶ 153. relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007).2 “A claim is plausible ‘when the

Plaintiff commenced this case by filing his initial complaint

plaintiff pleads factual content that allows the court to draw

on November 10, 2020, barely less than three years after

63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, due process claim was “one of federal law”). “The statute of

678 (2009)). Although all allegations contained in a complaint limitations applicable to § 1983 claims in New York is three

are assumed to be true, this tenet is “inapplicable to legal years,” including for procedural due process claims. Pulte

conclusions.” Iqbal, 556 U.S. at 678. Homes of N.Y. LLC v. Town of Carmel, 736 F. App'x 291, 293

(2d Cir. 2018) (affirming dismissal of procedural due process

2 Unless noted, case law quotations in this order claims brought pursuant to Section 1983).

accept all alterations and omit internal quotation

At the motion to dismiss stage, the Court must assume that

marks, citations, and footnotes.

Plaintiff accurately alleges that the unreviewable violations

When deciding a motion to dismiss, the Court “may consider he received in December 2016 were, in fact, unreviewable

the facts alleged in the complaint, documents attached to through an OATH hearing or any other administrative

the complaint as exhibits, and documents incorporated by proceeding. The Court, therefore, disregards the City's

reference in the complaint.” United States ex rel. Foreman contrary assertions that Plaintiff could (and did) defeat

v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021). The Court may the penalties associated with the unreviewable violations

therefore consider the notices of building code violations by using his OATH proceedings on the corresponding

that Plaintiff received from the City, along with the OATH reviewable violations to have his Class 1 penalties reduced to

hearing decisions disposing of those violations, because, Class 2 penalties. See ECF No. 40 at 5. The administrative

although Defendant was the party that provided copies of rules cited by the City do not unambiguously compel this

those documents as part of its motion to dismiss, Plaintiff conclusion, and Plaintiff alleges that he paid the penalties

incorporated the documents by reference into his operative associated with the unreviewable violations. Id.; ECF No. 32

complaint. ¶ 120. The question of what process the City provides to

challenge the so-called unreviewable violations issued by the

DOB is therefore a disputed issue of fact.

DISCUSSION

*5 But assuming that the December 2016 Notices of

Plaintiff's claim that the so-called unreviewable violations Violations were unreviewable, as Plaintiff alleges, means that

that he received in December 2016 violated his right to the statute of limitations defeats his claim. The Supreme Court

due process because they could not be challenged through has recently clarified that a Section 1983 due process claim

an administrative hearing or other process fails because the “is not complete when the deprivation occurs” but instead is

claim is barred by the statute of limitations. To the extent “complete only when the State fails to provide due process.”

Plaintiff makes a procedural due process challenge to the so- Reed, 143 S. Ct. at 961. Since Plaintiff alleges that the City did

called reviewable violations, for which he received hearings not provide any further process once the monetary penalties

before OATH, that challenge fails on the merits because the associated with the unreviewable violations were imposed in

additional procedural safeguards that Plaintiff demands were December 2016, his Section 1983 claim accrued immediately

not required to satisfy the Fourteenth Amendment. Finally, and expired in December 2019, approximately eleven months

the deprivation of money and unfettered use of his home to before he filed this lawsuit.

which Plaintiff was subjected does not shock the conscience,

so the substantive due process claim alluded to in Plaintiff's Plaintiff incorrectly contends that his “challenge to the City's

complaint also fails. failure to provide hearings for its unreviewable violations did

not fully accrue until the City concluded its administrative

proceedings and failed to provide him with a hearing.” ECF

I. The Statute of Limitations Bars Plaintiff's Claims No. 43 at 1. The Second Circuit has held that “claims brought

Based on the Purportedly “Unreviewable Violations” under [Section] 1983 ... typically accrue when the plaintiff

The length of the statute of limitations for a Section 1983 knows or has reason to know of the injury which is the

claim is determined by state law, but federal law governs

basis of his action.” Barnes, 68 F.4th at 127. “[A] plaintiff's

when a Section 1983 claim accrues—i.e., when the statute knowledge is sufficient to trigger accrual when [he] know[s]

of limitations begins to run. Barnes v. City of New York, 68 enough of the critical facts of injury and causation to protect

F.4th 123, 127 (2d Cir. 2023); see also Reed v. Goertz, 143 himself by seeking legal advice.” Abdel-Fakhara v. Vermont,

17, 2023) (affirming dismissal of procedural due process procedural due process challenge to the unreviewable

claim). Even if this standard is not purely objective, and violations issued in December 2016. The continuing violation

instead allows the Court to inquire into Plaintiff's subjective doctrine is “an exception to the normal knew-or-should-have-

knowledge, Plaintiff's claims would still be time barred. known accrual date rule,” and it “treats a series of separate

acts that collectively constitute one unlawful practice as a

The Notices of Violations that Plaintiff contends were single composite entity when the resulting claims by their

unreviewable expressly indicated that they were related to nature accrue only after the plaintiff has been subjected to

the reviewable violations that the DOB had already issued some threshold amount of mistreatment.” DeSuze v. Ammon,

to Plaintiff in September 2016; each unreviewable violation 990 F.3d 264, 271 (2d Cir. 2021) (affirming dismissal of

referred to the same unique identifying number assigned Section 1983 procedural due process claims). Although the

to each of the earlier, reviewable violations. Compare ECF continuing violation doctrine can apply to Section 1983

No. 39-1, with ECF No. 39-9. Plaintiff received decisions claims, it does not apply when “plaintiffs complain of discrete

from OATH rejecting his challenges to the underlying acts separated in time.” Id. at 272.

reviewable violations in January 2017, during which time

he was represented by an attorney. See ECF No. 39-2 Plaintiff's allegation that the City imposed penalties that

(decisions reflecting that Plaintiff's attorney was present at the he was not permitted to challenge through an OATH

OATH hearings); see also ECF No. 32 ¶ 115 (alleging that hearing or any other procedural mechanism was a discrete

Plaintiff was “[r]epresented by his attorney” during the OATH act that occurred in December 2016 when the supposedly

hearings). unreviewable violations were imposed. The fact that the City

still has not made any administrative review process available

Accordingly, even if Plaintiff, as a non-lawyer, could not to Plaintiff does not render his claim timely because “a

reasonably have known in December 2016, immediately upon continuing violation cannot be established merely because

receiving the supposedly unreviewable violations, that the the claimant continues to feel the effects of a time-barred

$3,000 in penalties that they imposed were unreviewable, act.” DeSuze, 990 F.3d at 272 (holding that continuing

he should have known that no later than January 2017. violation doctrine did not apply to rent increases approved

At that later point, Plaintiff's penalties for the underlying outside statute of limitations period even though plaintiffs

reviewable violations had been decided, and the City, continued to pay those increased rents during the limitations

according to Plaintiff, had not given him an opportunity period); see also Gonzalez v. Hasty, 802 F.3d 212, 223 (2d

to challenge the additional penalties attributable to the Cir. 2015) (continuing violation doctrine did not apply to

unreviewable violations. The fact that Plaintiff continued to procedural due process Bivens claim based on prisoner's

participate in proceedings before OATH in March 2017 and detainment in special housing unit without receiving proper

November 2017 to contest additional, reviewable violations notice even though prisoner continued to be detained there

does not change that outcome. Those additional proceedings, during limitations period). If Plaintiff's continuing violation

which were related to different violations, could not have argument were taken to its logical endpoint, then the statute

impacted whether Plaintiff reasonably believed he would of limitations for a procedural due process claim would never

receive further opportunities to challenge the December 2016 expire because every day that a plaintiff does not receive the

violations, especially since Plaintiff had a lawyer, with whom particular form of due process he desires would constitute a

Plaintiff could easily have conferred “to protect himself continuing violation.

by seeking legal advice.” See Abdel-Fakhara, 2023 WL

3486236, at *1. Nor does it matter that Plaintiff did not pay

any of the penalties until February 2018, after the conclusion II. The City Provided Adequate Procedural Due

of all his hearings. See ECF No. 32 ¶ 120; Pulte Homes, 736 Process for Plaintiff to Challenge the “Reviewable

F. App'x at 294 (holding that Section 1983 procedural due Violations”

process claim accrued when town passed resolution imposing Plaintiff's complaint alleges that the City's imposition of

fees related to construction project, not when plaintiff actually penalties associated with the so-called reviewable violations

paid the fees at a later date). did not provide him with the procedural due process required

by the Constitution because the City's OATH hearings entail

a variety of procedural deficiencies. ECF No. 32 ¶ 146. In

rules of evidence, requiring him to pay any penalty imposed OATH hearing officer”). The fact that Plaintiff alleges that, as

during an OATH hearing pending an appeal, and supposedly a result of the OATH proceedings, some of his penalties were

prohibiting him from asserting constitutional challenges in reduced, further demonstrates the procedural adequacy of the

any Article 78 proceeding commenced in state court. Id. Since proceedings. See Nestle Waters N. Am., Inc. v. City of New

at least one of the City's reviewable violations was imposed York, 689 F. App'x 87, 88 (2d Cir. 2017) (explaining that “[t]he

after an OATH hearing that occurred in November 2017, less most persuasive fact” justifying dismissal of procedural due

than three years before Plaintiff filed his original complaint, process claims “[was] that [plaintiff] successfully overturned

Plaintiff's challenge to that reviewable violation is not barred 38 summonses through the [Parking Violations Bureau]/

by the statute of limitations. However, it fails on the merits Article 78 review procedures”). Judge Brodie has already

because the procedural protections provided to Plaintiff were rejected Plaintiff's argument that requiring a party to pay a

adequate. penalty while an appeal is pending violates due process, and

the Court agrees with her conclusion. See Corsini, 2021 WL

The parties agree that “the existence of a procedural due 5999631, at *9 n.14 (citing Sheng v. City of New York, No.

process right is guided by the three-factor balancing test 05-cv-1118, 2009 WL 6871132, at *10 (E.D.N.Y. June 26,

enunciated in Mathews v. Eldridge, 424 U.S. 319 (1976).” 2009), report and recommendation adopted in full, 2010 WL

Liberian Cmty. Ass'n of Conn. v. Lamont, 970 F.3d 174, 191 3744428 (E.D.N.Y. Sept. 20, 2010) (dismissing Section 1983

(2d Cir. 2020); see ECF No. 40 at 14 (Defendant's brief claims on summary judgment)).

applying the Mathews test); ECF No. 43 at 17 (Plaintiff's brief

applying the Mathews test). That balancing test requires the Plaintiff's ability to bring an Article 78 proceeding in state

Court to consider the following factors: court to challenge OATH's decision further counsels against

requiring OATH to adopt additional procedural protections

prior to depriving Plaintiff of money or other property

*7 First, the private interest that rights. The City need only provide a “minimal” hearing prior

will be affected by the official action; to depriving a person of their property or liberty interest,

second, the risk of an erroneous so long as the aggrieved person may take advantage of

deprivation of such interest through “the availability of a full post-deprivation hearing” provided

the procedures used, and the probable through an Article 78 proceeding. Locurto v. Safir, 264 F.3d

value, if any, of additional or substitute 154, 173–74 (2d Cir. 2001) (granting summary judgment

procedural safeguards; and finally, dismissing procedural due process claim); see also King v.

the Government's interest, including City of New York, No. 22-231-cv, 2023 WL 2398679, at

the function involved and the fiscal *3 (2d Cir. Mar. 8, 2023) (confirming continued validity of

and administrative burdens that the Locurto and affirming dismissal of procedural due process

additional or substitute procedural claim, pursuant to Rule 12(b)(6), because plaintiff “had the

requirement would entail. opportunity to seek post-deprivation relief in New York state

court under Article 78 of the New York Civil Practice Law

and Rules”). Even if the penalties imposed on Plaintiff were

Doolen v. Wormuth, 5 F.4th 125, 134 (2d Cir. 2021) (affirming sufficiently small that pursuing an Article 78 proceeding

dismissal of procedural due process claims). would not make financial sense, the availability of OATH's

“written appeal process,” which Plaintiff declined to pursue,

After balancing these factors, the Court finds that the City “in addition to the availability of the Article 78 proceeding[,]

did not violate Plaintiff's due process rights by failing to reduce[d] the risk of erroneous deprivation such that the

include in its OATH hearings the additional procedural Mathews test does not require additional procedures.” Bens

safeguards that Plaintiff demands. The administrative hearing BBQ, Inc. v. Cty. of Suffolk, 858 F. App'x 4, 7 (2d Cir. 2021)

that Plaintiff received before OATH did not violate due (affirming dismissal of procedural due process claim).

process even though the CPLR and New York's rules of

evidence did not apply during the hearing. See Union Square *8 Plaintiff's arguments that an Article 78 proceeding is

Supply Inc. v. De Blasio, 572 F. Supp. 3d 15, 24 (S.D.N.Y. an inadequate post-deprivation vehicle for challenging the

City's actions cannot rehabilitate his otherwise defective due

occasions that an Article 78 proceeding is a perfectly adequate

post-deprivation remedy.” Gentleman v. State Univ. of N.Y. III. Plaintiff's Substantive Due Process Claim Fails

Stony Brook, No. 21-1102-cv, 2022 WL 1447381, at *2 (2d Plaintiff's complaint refers in passing to the City's conduct

Cir. May 9, 2022) (affirming grant of motion to dismiss as “shocking to the conscience,” “brutal,” and “offensive,”

procedural due process claim). Accordingly, the Second which is typically language that courts use when dealing with

Circuit frequently affirms the dismissal of procedural due substantive due process claims. ECF No. 32 ¶ 153. To allege a

process claims brought by plaintiffs who had an Article 78 substantive due process claim, a plaintiff “must demonstrate

proceeding available to them. See, e.g., Attallah v. N.Y. Coll. that the state action was so egregious, so outrageous, that

of Osteopathic Med., 643 F. App'x 7, 10 (2d Cir. 2016) it may fairly be said to shock the contemporary conscience.

(affirming dismissal of Section 1983 procedural due process The interference with the plaintiff's protected right must be

claim based upon expulsion from medical school); Morgan so shocking, arbitrary, and egregious that the Due Process

v. Cty. of Warren, No. 22-345-cv, 2022 WL 13691731, at Clause would not countenance it even were it accompanied

*2 (2d Cir. Oct. 24, 2022) (affirming dismissal of Section by full procedural protection.” Hurd v. Fredenburgh, 984 F.3d

1983 procedural due process claim brought by terminated 1075, 1087 (2d Cir. 2021). To the extent Plaintiff is asserting

civil service employee). Plaintiff's assertion that he could not a substantive due process claim, it borders on frivolous and

have used an Article 78 proceeding to raise a constitutional fails on the merits.

challenge to the process that the City provided him is legally

inaccurate; “[i]ndividuals who bring Article 78 proceedings Although the penalty Plaintiff paid was significant, its amount

to challenge determinations against them are free to raise was not shocking, and the City's attempt to regulate the

constitutional claims in such proceedings.” Pascazi v. Rivera, manner in which Plaintiff built a pigeon coop on his property

No. 13-cv-9029, 2015 WL 845839, at *5 (S.D.N.Y. Feb. was not offensive, as Plaintiff contends. The Second Circuit

26, 2015) (dismissing Section 1983 procedural due process has held in recent years that even greater deprivations of a

claim). As the New York Court of Appeals has explained, person's liberty do not shock the conscience and, therefore,

plaintiffs are not entitled to commence Article 78 proceedings do not give rise to substantive due process claims. See

to challenge a “law or statute of general applicability,” Dabah v. Franklin, No. 22-845-cv, 2023 WL 3577872, at *2

but if a plaintiff has a particular law applied to him (2d Cir. May 22, 2023) (affirming dismissal of substantive

through an administrative proceeding, he may challenge the due process claim based on loss of parent's visitation

constitutionality of that law in any ensuing Article 78 review rights, along with his rights to “ma[k]e decisions about the

of the administrative proceeding. Solnick v. Whalen, 401 medical treatment, education, and religious instruction of

N.E.2d 190, 195 (N.Y. 1980); see also Walton v. N.Y. State [his] children”); Salem v. City of New York, 811 F. App'x 678,

Dep't of Corr. Servs., 863 N.E.2d 1001, 1005 (N.Y. 2007) 683 (2d Cir. 2020) (dismissing substantive due process claims

(holding that petitioners’ “constitutional claims ... could have based on corrections officers’ continued custody of plaintiff

been resolved in an article 78 proceeding”). because they had no duty to inform him that his bail had been

reduced to one dollar); Horton v. Westling, 765 F. App'x 531,

For the reasons described in this section, the administrative 532, 533 (2d Cir. 2019) (affirming dismissal of substantive

proceedings available to Plaintiff appropriately guarded due process claim based on student's suspension “for most of

against the erroneous deprivation of his rights, and the his senior year of high school,” which was allegedly achieved

additional protections for which Plaintiff advocates would through biased process that favored school officials).

provide little additional value, so that the second factor of

the Mathews test weighs heavily against Plaintiff. Even if the

Court were to reject Defendant's characterization of Plaintiff's CONCLUSION

property rights at issue as “minimal” and ignore Defendant's

assertion that it would cost the City “millions of dollars *9 For the reasons set forth above, the Court GRANTS in

of taxpayer funds” to provide the additional protections full Defendant's motion to dismiss Plaintiff's second amended

Plaintiff seeks, see ECF No. 40 at 15–17, the latter being an complaint with prejudice. ECF No. 38.

unsupported question of fact at this stage, the Court would still

conclude that the procedural due process afforded to Plaintiff SO ORDERED.

was constitutionally adequate.

Not Reported in Fed. Supp., 2023 WL 4420113

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

Title PDF Court Date Type

1. Reply Brief of Appellant — C.A.2 Nov. 14, 2023 Brief

Joseph CORSINI, Plaintiff - Appellant, v. CITY OF NEW

YORK, Defendant - Appellee.

2023 WL 8018236

2. Brief for Appellee — C.A.2 Oct. 31, 2023 Brief

Joseph CORSINI, Plaintiff-Appellant, v. CITY OF NEW

YORK, Defendant-Appellee.

2023 WL 7320537

3. Brief of Appellant — C.A.2 Sep. 26, 2023 Brief

Joseph CORSINI, Plaintiff - Appellant, v. CITY OF NEW

YORK, Defendant - Appellee.

2023 WL 6461256

4. Docket 23-1065 — C.A.2 July 20, 2023 Docket

Corsini v. City of New York

5. Docket 1:20-CV-05459 — E.D.N.Y. Nov. 10, 2020 Docket

Corsini v. City of New York

Direct History (2)

1. Corsini v. City of New York

2023 WL 4420113 , E.D.N.Y. , July 10, 2023

Affirmed by

2. Corsini v. City of New York

2024 WL 2270130 , 2nd Cir.(N.Y.) , May 20, 2024

Related References (1)

3. Corsini v. City of New York

2021 WL 5999631 , E.D.N.Y. , Dec. 20, 2021