Opposition Brief — LaTrieste Restaurant & Cabaret, Inc. v. Village of Port Chester

Supreme Cm prone

October Term, 1999 ZS anette ca

Liv {i J juay

LaTRIESTE RESTAURANT & CABARET, “ghee THE CLERK

d/b/a THE DIAMOND CLUB, REME COURT, U.S.

Petitioner,

ee against és

VILLAGE OF PORT CHESTER, et al.,

Respondents.

Petition for a Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

————EEEEEEEEEEEEEEEEEEEE————————ee

BRIEF IN OPPOSITION

JOSEPH A. MARIA (0209)

Counsel of Record

JOSEPH A. MARIA, P.C.

Counsel for Respondents

301 Old Tarrytown Road

White Plains, New York 10603

(914) 684-0333

Appeal Press - (914) 761-3600 (212) 267-6602 (516) 872-1110 (4234)

QUESTION PRESENTED

Whether the Second Circuit properly reversed the

limited declaratory judgment that the Village selectively

enforced the 10:00 p.m. restriction from May 1993 until the

late summer of 1993 where plaintiff failed to demonstrate

that it was selectively treated as compared to similarly

Situated entities?

Whether the Second Circuit properly upheld the denial

of petitioner’s application for attorney’s fees pursuant to 42

U.S.C. sec. 1988 where plaintiff was not a “prevailing

party”?

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TABLE OF CONTENTS

Page

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eM °C OUTS. 965 5 CS 1

Re MC Ce ee ee 1

Reasons for Denying the Writ............ 3

RMI oe 0G ee 7

Appendix:

District Court Decision (July 22, een Sess la

ili

TABLE OF AUTHORITIES

Page

LeClair v. Saunders,

627 F.2d 606 (2d Cir. 1980) ........ 5

Lisa’s Party City, Inc. v. Town of Henrietta,

Se Ce Oe ee eae ees 3

Lopresti v. Terwilziger,

126 F.3d 34, (2d Cir. 1997) ........ 2

Norton v. Sam’s Club,

145 F.3d 114, (2d Cir. 1998). 2... 4

United States v. Armstrong,

517 U.S. 456, 116 S.Ct 1480,

5G Li BS OST CIS) ESE 6

Zahra v. Town of Southold,

48 F.3d 674 (2d Cir. 1995) ......... 4

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OPINIONS BELOW

The opinion of the United States District Court for the

Southern District of New York, rendered by Magistrate

Judge Fox on July 22, 1998, is not officially reported, but is

reported in the appendix hereto, (1a) infra.

STATEMENT OF THE CASE

A. The Bench Trial

At the bench trial held before Hon. Magistrate Mark

D. Fox, the central issue was whether the Village had

selectively enforced the 10:00 p.m. time restriction in

violation of The Diamond Club’s Equal Protection Rights. !

Magistrate Judge Fox, as the trier-of-fact, determined

that “The Diamond Club’s proof at trial was not sufficient to

establish by a preponderance of the evidence that the Village

had knowledge of violations of the 10:00 p.m. restriction

by... prior occupants of the premises,” i.e., those entities

“similarly situated”, (App. 14). Petitioner did not challenge

that finding on appeal.

Even though Judge Fox found that the Town had no

knowledge of prior violations by those entities “similarly

situated” he still, determined that the Village, through its

' Petitioner advised Magistrate Fox at trial that he was not

Claiming that any other conduct, such as sign violations, fire

inspections, and reporting of violations to the State Liquor Authority

constituted selective enforcement, (App.2). In addition, Magistrate Fox

determined that the Village preferred reasonable explanations for its

conduct and that plaintiff failed to provide sufficient evidence to

demonstrate that any such conduct was done with intent to inhibit or

punish protected speech, (App.22).

2

Mayor at the time, selectively enforced the 10:00 p.m.

restriction from May, 1993 to the late summer of 1993.

(App. 24). Judge Fox further found that petitioner had failed

to demonstrate an intent to discriminate on the part of any

other Village official, besides the Mayor, or any selective

enforcement of the 10:00 p.m. restriction by the Village after

the late summer of 1993, (App. 22,24). Petitioner did not

challenge either of these findings on appeal.

After the decision was rendered by the Magistrate

Judge, by Memorandum Order dated July. 22, 1998, the

Court denied that application. Petitioner applied to the

District Court for an award of attorney’s fees pursuant to 42

U.S.C. sec. 1988. That application was denied in its entirety

based on petitioner not being a “prevailing party” as required

under sec. 1988, (App. 49).

B. The Appeals

Respondents appealed from that portion of the

Decision which found that the Village engaged in selective

enforcement from the period of May 1993 to the late summer

of 1993.

Petitioner cross-appealed solely from the July 22,

1998 Memorandum Order which denied petitioner’s

application for attorney’s fees.

C. The Second Circuit Ruling

On Appeal from the bench trial, the district court’s

findings of fact were reviewed by the Second Circuit for

clear error and its conclusions of law were reviewed de

novo. See Lopresti v. Terwilliger, 126 F.3d 34, 39 (2d Cir.

1997) (App. 7).

3

By Decision dated August 11, 1999 the Second

Circuit reversed the limited declaratory judgment in favor of

petitioner and affirmed the denial of petitioner’s application

for attorney’s fees. (App. 1).

In reviewing the District Court’s finding of selective

enforcement, the Second Circuit followed the well-established

test in the Second Circuit. That test was set forth as follows

(App. 7):

“In order to establish a violation of equal

protection based on selective enforcement, the

plaintiff must ordinarily show (1) the person,

compared with others similarly situated, was

selectively treated; and (2) that such selective

treatment was based on _ impermissible

considerations such as ... intent to inhibit or

punish the exercise of constitutional rights.”

Lisa’s Party City, Inc. v. Town of Henrietta,

185 F.3d 12, 15-17 (2d Cir. 1999) (quotations

and Citations omitted), (App. 7).

In applying this test, the Second Circuit concluded

that petitioner failed to establish the first element of its

selective enforcement claim that the Village selectively

treated the Diamond Club when compared to “similarly

situated” establishments, (App. 8).

In reaching this conclusion, the Court made clear that

under the test in the Second Circuit, knowledge of other

violations is not required in every case. (App. 8). However,

the Court determined that under the specific facts of this

case, petitioner failed to provide proof supporting any

alternative theory of selective treatment wherein knowledge

is not required. (App. 8). As stated by the Court:

4

A petitioner generally must satisfy both

elements to establish a claim of selective

enforcement, see Zahra v. Town of Southold,

48 F.3d 674, 684 (2d Cir. 1995), and

knowledge is ordinarily required to establish

the first element. We do not hold that

knowledge will be required in every case. It

is conceivable that selective treatment could

be shown where, for example, proof was

offered that a municipality did not know of

prior violations because it adhered to a see-no-

evil policy of not enforcing an ordinance, and

then abandoned that policy with respect to a

violator engaged in protected activity. In this

case, however, LaTrieste has not explicitly

called our attention to @roof supporting this,

or any other such alternative theory of

selective treatment. Accordingly, any such

alternative arguments are waived. (emphasis

added). See Norton v. Sam’s Club, 145 F.3d

114, 177 (2d Cir. 1998), (App. 8).

Based on the unchallenged finding that the Village

did not know of any prior violations of the 10:00 p.m.

restriction and on petitioner’s failure to point to any

alternative proof of discriminatory enforcement, the Second

Circuit determined that the Magistrate Judge’s conclusion

that the Village selectively treated similarly situated entities

could not stand, (App. 9).

REASON FOR DENYING THE WRIT

No basis for granting the instant petition exists in this

case. The Second Circuit’s Decision that petitioner failed to

make out a selective enforcement claim was based on

petitioner’s failure to sufficiently support its contention that

5

it was selectively treated when compared to similarly situated

entities.

On appeal, petitioner did not challenge the Magistrate

Judge’s finding that the Village did not know about other

violations of the 10:00 p.m. restriction. Petitioner also failed

to point to any alternative proof of discriminatory

enforcement. Absent such proof, the Second Circuit

properly determined that petitioner failed to establish the first

element of its selective enforcement claim - that the Diamond

Club was selectively treated when compared to similarly

situated establishments.

The Second Circuit’s Decision was in no way “novel”

or “dubious” as asserted by petitioner. To the contrary, the

Decision simply follows the well-settled rule in the Second

Circuit, that a petitioner must demonstrate that he was

selectively treated compared with others similarly

situated in order to establish a violation of equal protection

based on selective enforcement. See Lisa’s Party City, Inc.

v. Town of Henrietta, 185 F.3d 12, 15-17 (2d Cir. 1999); Le

Clair v. Saunders, 627 F.2d 606 (2d Cir. 1980). The

reversal by the Second Circuit of the finding of selective

enforcement was based on petitioner’s failure to demonstrate.

such selective treatment.

By this petition, petitioner is simply attempting to

circumvent the Second Circuit’s finding that plaintiff failed

to prove that it was selectively treated. In so doing,

petitioner essentially argues that it does not have to show that

it was selectively treated as compared to similarly situated

establishments in order to prove selective .enforcement in

violation of the Equal Protection Clause. This position itself

is “dubious” as it flies directly in the face of well-established

precedent that requires proof of selective treatment in order

for selective enforcement to be proper. As stated by the

6

Supreme Court and cited by the Second Circuit below

“Selective prosecution implies that a selection has taken

place.” United States v. Armstrong, 517 U.S. 456, 469, 116

S.Ct. 1480, 134 L.Ed.2d 687 (1996). No such selection has

been shown here. Petitioner also provides no case law in

support of such an alleged “exception” to the well settled

rule governing selective enforcement cases.

It is also noted that petitioner never took the position

below that a “harassment exception” to a normal “selective

enforcement” claim should be found. To the contrary,

petitioner’s position below, as stated by the Second Circuit,

was “that selective treatment is established simply by

demonstrating that the zoning restriction was not enforced

against the Diamond Club’s predecessor’s and this, without

regard to whether the Village knew about the other

violations.” (App. 9). Petitioner’s position on this petition,

that a “harassment exception” should have been found, was

not raised below and is argued for the first time to this

Court. Since petitioner did not argue a “harassment

exception” below, any such argument was waived and should

not be considered herein.

Finally, the petition should be denied because

petitioner’s claim that the Village orchestrated a series of

harassing techniques directed solely at the prospective or

ongoing “topless dancing” was found by the Magistrate

Judge in his decision, not to have been proven. The

Magistrate Judge specifically determined that the Village

offered reasonable explanations for most of its conduct and

that petitioner failed to provide evidence that the treatment

afforded the Diamond Club concerning code violations

anomalous, (App. 21-22). Petitioner also failed to

demonstrate that the Village Officers who enforced the

building code violations acted with discriminatory intent,

(App. 23-24). Petitioner did not appeal any of these

findings. There was also no proof at trial concerning the

Village allegedly “organizing public picket lines to block the

entrance of the Diamond Club” as asserted in the petition.

Since petitioner failed to prove its claim that a “series of

harassing techniques” was undertaken, its claim that a

“harassment exception” should have been created is without

merit.

CONCLUSION

FOR THE FOREGOING REASONS, the Petitioner

for Writ of Certiorari should be denied.

Respectfully submitted;

rs.

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mae

Joseph A. Maria (0209)

Counsel of Record

JOSEPH A. MARIA, P.C.

Counsel for Respondents

301 Old Tarrytown Road

White Plains, NY 10603

(914) 684-0333)

File No. 30-0854

la

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LATRIESTE RESTAURANT AND

CABARET, INC.,

d/b/a THE DIAMOND CLUB,

Plaintiff,

MEMORANDUM ORDER

- against - 94 CIV 0252 (BDP)(MDF)

THE VILLAGE OF PORT CHESTER,

JOHN BRANCA, ANTHONY FONTANA,

CARL VERRASTRO and JOHN BELFATTO,

Defendants

MARK D. FOX, United States Magistrate Judge

The parties consented to trial before me pursuant to 28

U,S.C. §636(c) on October 17, 1996. After a bench trial, I

rendered a decision on January 23, 1998. LaTrieste

Restaurant and Cabaret, Inc. ("LaTrieste"), through its

attorneys, the law firm of Tashjian & Padian, has applied for

attorneys’ fees in the amount of $214,761.02.' For the

reasons that follow, the application for attorneys’ fees is

denied.

LaTrieste, which operates a topless cabaret called the

Diamond Club at 140 Midland Avenue in the Village of Port

' Plaintiff originally requested $267,205.12 in attorneys’ fees but, in

its reply papers, decreased the amount of the application in response to

certain arguments made by Defendant

2a

Chester ("Village"), brought this action pursuant to 42

U.S.C. §1983, alleging that the Village selectively enforced

a use restriction on the premises in an attempt to inhibit or

punish the exercise of Plaintiff's First Amendment rights.

140 Midland Avenue is located in a commercial zone in

which cabaret entertainment is not allowed. A prior

occupant of the premises had obtained a special exception

allowing cabaret entertainment between 10:00 p m. and 2:00

a.m, and it was the enforcement of this restriction that

Plaintiff challenged.

An understanding of the procedural history of this case

is necessary to evaluate Plaintiff's claim that it is a prevailing

party (who is) entitled to attorneys’ fees. LaTrieste

commenced this action on January 18, 1994 and sought a

temporary restraining order and/or preliminary injunction

enjoining the Village from revoking LaTrieste’s certificate of

occupancy or otherwise interfering with topless dancing at

the Diamond Club. The request for temporary relief was

resolved by a stipulation that the Village would not attempt

to revoke the Diamond Club’s certificate of occupancy until

the state court decided an Article 78 proceeding brought by

LaTrieste challenging the Village’s decision not to grant a

variance from the 10:00 p.m. restriction. On February 18,

1994, after a decision adverse to LaTrieste had been

rendered in the Article 78 proceeding, LaTrieste again

requested interim relief enjoining revocation of its certificate

of occupancy and interference with topless dancing at the

Diamond Club. This matter was also resolved by a

stipulation in which the Village agreed not to take action

until the Honorable Charles L. Brieant, to whom the case

was then assigned, decided the Village’s motion for summary

judgment. Judge Brieant granted the summary judgment

motion on April 29, 1994 and refused to issue a stay pending

appeal to the Second Circuit Court of Appeals. The Court

of Appeals issued a stay and vacated Judge Brieant’s decision

on November 11, 1994, LaTrieste Restaurant & Cabaret, Inc

3a

y. Village of Port Chester, 40 F.3d 587 (2d Cir. 1994). The

Village then agreed before the Honorable Barrington D.

Parker, Jr., to whom the case had been reassigned, to hold

its prosecution of LaTrieste in abeyance pending settlement

discussions. On March 15, 1996, the Village notified

LaTrieste that it would no longer hold the prosecution in

abeyance. LaTrieste again sought a temporary restraining

order and/or preliminary injunction. On March 29, 1996,

Judge Parker denied interim relief to LaTrieste, finding that

it had not shown a likelihood of success on the merits.

Despite this ruling, the Village apparently took no further

action against LaTrieste prior to the completion of testimony

in the bench trial.

Judge Parker granted qualified immunity to the

individual defendants, thus precluding LaTrieste from

claiming punitive damages. Plaintiff then withdrew its claim

for damages, leaving only its claims for a declaratory

judgment and injunctive relief.

I conducted a bench trial that concluded on November

20, 1997. In my decision of January 23, 1998, I found that

prior occupants of 140 Midland Avenue provided cabaret

entertainment prior to 10:00 p.m. and that the 10:00 p.m.

restriction was unenforced prior to the opening of the

Diamond Club. The restriction was enforced for the first.

time on the Diamond Club’s opening night, and the Village

thereafter issued LaTrieste several notices of violation for

failure to comply with the 10:00 p.m. restriction. I

concluded that the attempts to enforce the restriction during

the summer of 1993, when the Diamond Club was a source

of considerable controversy in the Village, were made with

the intent to inhibit or punish the exercise of Plaintiffs First

Amendment rights. In doing so, I considered comments

made by then Mayor John Branca, which included statements

made to constituents that he would do everything legally

possible to stop topless dancing in the Village. 3

I found that LaTrieste had not proven that any Village

4a

officials other than Branca intended to inhibit or punish the

exercise of LaTrieste’s rights. I also found that LaTrieste

failed to prove that attempts by the Village after the summer

of 1993 to enforce the restriction were motivated by an intent

to inhibit or punish the exercise of Plaintiff's First

Amendment rights I determined only that "the Village

engaged in unconstitutional selective enforcement from the

period of May 1993 to the late summer of 1993 when the

Diamond Club began temporarily complying with the 10:00

p.m. restriction.”

Plaintiff requested that the Village be enjoined from

pursuing both pending administrative proceedings, stemming

from a January 1994 notice of violation, to revoke

LaTrieste’s certificate of occupancy and "quasi-criminal

proceedings" pending in village court based on a May 1994

notice of violation. Assuming for the purposes of the

decision that I could enjoin such proceedings, I declined to

grant injunctive relief for a number of reasons, including the

fact that LaTrieste had offered no evidence about the status

of either of these proceedings; the fact that Mayor Branca,

who was the only Village official proven to have acted with

impermissible intent, was not proven to have any connection

to these proceedings; and the fact that Plaintiff had failed to

prove that the particular citizen complaints that gave rise to

these enforcement efforts were motivated by an intent to

inhibit or punish Plaintiffs First Amendment rights.

Plaintiff also requested an injunction preventing the

Village from engaging in selective enforcement of the 10:00

p.m. restriction. I denied this request because Plaintiff

demonstrated no necessity for injunctive relief given that

Mayor Branca, the only individual shown to have acted with

intent to inhibit or punish Plaintiffs exercise of its

constitutional rights, left office in 1995. I also indicated that

I would have denied injunctive relief in any event on an

unclean hands theory given that Plaintiff had continued up

until trial to operate in violation of a restriction that was held

Sa

valid in an Article 78 proceeding in January 1995.

Judgment was entered on February 4, 1999 and read in

part "that the plaintiff have declaratory judgment declaring

that the Village of Port Chester selectively enforced the 10:

00 p.m. zoning restriction against plaintiff in accordance with

the January 23, 1998 Decision, from the period of May,

1993 to the late summer of 1993"

In an action claiming a violation of 42 U.S.C. §1983,

the Court, in its discretion, may award attorneys’ fees to the

prevailing party. 42 U.S.C. §1988. Generally speaking, a

litigant is a prevailing party under 42 U.S.C. §1988 when he

or she has "prevailed on the merits of at least some of his

claims." Hanrahan v. Hampton, 446 U.S. 754, 757 (1980)

(per curiam). Prevailing on the merits requires the receipt

of some kind of relief Hewitt v. Helms, 482 U.S. 755, 760

(1987) ("Respect for ordinary language requires that a

plaintiff receive at least some relief on the merits of his

claim before he can be said to prevail. ") "In all civil

litigation, the judicial decree is not the end but the means.

At the end of the rainbow lies not a judgment, but some

action (or cessation of action) by the defendant that the

judgment produces." Id. at 761.

Whether a declaratory judgment can render a party

prevailing depends on the circumstances. In Rhodes v.

Stewart, 488 U.S. 1 (1989), the Court reviewed a grant of

attorneys’ fees in a case in which two plaintiffs obtained a

declaratory judgment stating that prison officials had applied

incorrect procedural and substantive standards in denying

plaintiffs permission to subscribe to a magazine. By the time

the district court made this decision, one of the plaintiffs was

dead and the other had been paroled. The Court reversed the

grant of attorneys’ fees, saying that the judgment obviously

benefitted neither plaintiff and observing that, "A declaratory

judgment ... is no different from any other judgment. It will

constitute relief, for purposes of §1988 if, and only if, it

affects the behavior of the defendant toward the plaintiff."

6a

Id. at 4

The formulation of the prevailing party test upon which

both parties rely is found in Farrar v. Hobby, 506 U.S. 103,

111-12 (1992). In that case, which addressed an award of

nominal damages, the Court held that "A plaintiff ‘prevails’

when actual relief on the merits of his claim materially alters

the legal relationship between the parties by modifying the

defendant’s behavior in a way that directly benefits the

plaintiff." See also Texas State Teachers Ass’n v. Garland

Independent Sch. Dist., 489 U.S. 782 (1989); Coalition for

a Liveable West Side, Inc. v. N Y.C. Dep’t Env. Prot., No.

92 CIV 9011, 1998 WL 299938 (S.D.N.Y. June 9, 1998).

Plaintiff takes the position that the legal relationship

between the parties has been materially altered by my

determination that the Village selectively enforced the 10:00

p.m. restriction and by my statement that the Village is not

entitled to enforce the restriction with the intent to inhibit or

punish the exercise of Plaintiffs First Amendment rights.”

This statement is a simple summary of governing law

rather than an edict. Neither this statement nor the

declaratory judgment awarded Plaintiff materially alters the

parties’ legal relationship. The Village was not entitled to

enforce the 10:00 p.m. restriction with an intent to inhibit or

punish the exercise of First Amendment rights before,

during, or after this litigation. Both parties find themselves

in the same legal position they occupied prior to

? Plaintiff also claims that its legal relationship to the Village has

been materially altered because, in future actions, the burden will be on

the Village to prove that its enforcement of the restriction is not

motivated by a desire to inhibit or punish protected speech. Although

Plaintiff made this argument in its post-trial brief, I did not decide this

issue. Putting aside the fact that I have reservations about the legal merit

of this argument, it was neither necessary nor desirable for me to decide

the burden of proof in potential future litigation that might well take place

before another court.

7a

commencement of this case. Plaintiff failed to obtain

injunctive relief that would have materially altered the

parties’ legal relationship. See - Vv

Fletcher,---- F.3d ----, 1998 WL 248641 (S.D.N.Y May 13,

1998).

I also note that the declaratory judgment in this case was

narrow. Plaintiff proved only that the Village engaged in

selective enforcement during the summer of 1993. I held that

Plaintiff had not proven that enforcement efforts in 1994

were unconstitutionally motivated. Thus the declaratory

judgment did not apply to pending enforcement attempts.

There was no indication that unconstitutional conduct was

likely to recur. See LaGrange Trading Co. v. Broussard,

No. A 90-2306, 1993 WL 188672 (E.D.La. May 25, 1993)

(adult bookstore not entitled to attorneys’ fees when Court

held that amendment to zoning ordinance was constitutional

with the exception of a special permit requirement. The City

was entitled to, and did, force Plaintiff to relocate under

the valid provisions of the law.) Cf. Putnan v. Davies, 960

F. Supp. 1268 (S.D. Ohio 1997), affd ---- F.3d ----- 1998

WL 344075 (6th Cir. May 26, 1998) (awarding attorneys’

fees when plaintiffs obtained declaratory judgment alone.

The Court declined to issue a permanent injunction solely

because it assumed that law enforcement personnel would not

attempt to enforce a statute that had been held

unconstitutional).°

Plaintiff also argues that I should at least award it

attorneys’ fees for obtaining settlements of its repeated

preliminary injunction applications. These agreements were

in effect between January 1994 and March 1996. LaTrieste

> Had Plaintiff not withdrawn its claim for damages, it likely would

have been entitled to nominal damages. Under such circumstances, the

only reasonable fee would have been no fee. Farrar v. Hobby, 506 U.S.

103 (1992).

8a

correctly observes that attorneys’ fees are available for

obtaining a preliminary injunction under certain

circumstances. The question of whether the settlement of a

request for a preliminary injunction entitles a party to

attorneys’ fees is a different question altogether.

Obtaining temporary relief entities a party to attorneys’

fees under 42 U.S.C. §1988 only when the decision to grant

such relief is made on the merits. See Haley v. Pataki, 106

F.3d 478 (2d Cir. 1997). Interim relief that serves only to

maintain the status quo, such as a temporary restraining

order, does not render a litigant a prevailing party. Smith v.

Thomas, 687 F.2d 113 (Sth Cir. 1982). This principle

applies even when the delay occasioned by the temporary

relief leads to a desirable outcome for plaintiff LaRouche v.

Kezer, 20 F.3d 68 (2d Cir. 1994) (plaintiffs granted

injunction pending appeal to the Second Circuit Court of

Appeals were not prevailing parties despite the fact that

during the pendency of the appeal plaintiffs were, as they had

demanded, placed on the ballot).‘

The stipulations entered into by the Village plainly do

not amount to a determination on the merits. In fact, when

the Village would no longer stipulate to hold the proceedings

in abeyance, Judge Parker denied LaTrieste’s preliminary

* The instant case differs from the usual application for attorneys’

fees based on obtaining interim relief insofar as here Plaintiff ultimately

obtained a declaratory judgment. However, the events that formed the

basis for the declaratory judgment were not proven by LaTrieste to be

related to the actions that LaTrieste sought to enjoin from 1994 to 1996.

As I have observed, LaTrieste failed to prove that intent to inhibit or

punish the exercise of First Amendment rights animated the Village’s

enforcement attempts after the summer of 1993. I reject the theory that

plaintiff should be awarded attorney’s fees because it obtained two types

of relief - a declaratory judgment and a temporary cessation of

enforcement efforts-either of which standing alone would be insufficient

to render it a prevailing party.

9a

injunction request on the grounds that it had not shown a

likelihood of success on the merits.

I have considered and rejected the argument that Plaintiff

can recover attorneys’ fees for the settlements of its requests

for temporary relief under a catalyst theory. Attorneys’ fees

are available under a catalyst theory when a defendant

changes his or her conduct under pressure of a lawsuit.

Marbley_v. Bane, 57 F.3d 224, 234 (2d Cir. 1995).

Specifically, attorneys’ fees are warranted when there is a

causal connection between the lawsuit and voluntary relief

provided by the defendant, provided that the defendant acted

as it did because of the threat of victory rather than the threat

of nuisance and expense. Id. This theory is commonly

employed when a lawsuit induces a defendant to alter

regulations that were the subject of the litigation. Plaintiff

has pointed to no case in which attorneys’ fees have been

granted because a plaintiff obtained a settlement that

promised an explicitly temporary cessation of enforcement

efforts. In the absence of precedent for such a use for the

catalyst theory, I decline to apply it in this case.*

As the foregoing makes clear, the procedural history of

this case is unique. Furthermore, the determination as to

whether Plaintiff is a prevailing party is complicated by the

nature of a selective enforcement action, which by definition.

involves a valid regulation. Here, Plaintiff has

acknowledged that the Village is entitled to enforce the 10:00

p.m. restriction unless it does so with the intent to inhibit or

punish the exercise of constitutional rights. Plaintiff has

> 1 also note that the Second Circuit Court of Appeals’ reversal of

Judge Brieant’s grant of summary judgment does not render Plaintiff a

prevailing party. A denial of summary judgment obviously indicates only

that genuine issues of material fact exist and does not determine the

merits of a case. See Hanrahan v. Hampton, 446 U.S. 754 (1980) (per

curiam) (reversal of directed verdict does not make one a prevailing

party)

10a

been aware of this principle since the state court decided

against LaTrieste in the Article 79 proceeding in 1995 and,

in fact, Plaintiff represented in writing prior to the opening

of the Diamond Club that it would abide by the 10:00 p.m.

restriction. Vincent Sorrano, one of LaTrieste’s principals,

acknowledged at trial that after a short period of compliance

with the restriction in 1993 the Diamond Club resumed

operating before 10:00 p.m. because it could not survive

financially if it did not do so. At the time of trial, the

Diamond Club was opening at noon Monday through Friday

and at 5:00 p.m. on weekends. The fact is that Plaintiff

erred in locating its cabaret in a zone that prohibited cabaret

entertainment. Ironically, were it not for the restriction

imposed by the special exception about which Plaintiff

complained, the Diamond Club would be prohibited from

offering topless dancing altogether by virtue of its location in

a zone that does not allow cabaret entertainment.

As it happened, the Village chose not to enforce the

restriction during the time that this action was pending.

During that time, Plaintiff operated in violation of a valid

restriction that it found to be financially onerous and made

significant profits in the process. Although Plaintiff thereby

achieved its goal of avoiding enforcement of the restriction

for as long as possible, this outcome has not materially

altered the parties’ legal relationship. Accordingly, Plaintiffs

application for attorneys’ fees pursuant to 42 U.S. C. §1988

is denied.

SO ORDERED.

Dated. July 22, 1998

White Plains, New York

MARK D. FOX

UNITED STATES MAGISTRATE JUDGE