Marom v. Town of Greenburgh

MICHAEL MAROM, Plaintiff, v. TOWN OF GREENBURGH; PAUL FEINER, Defendants.

18 Civ. 7637 (JCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 28, 2020

OPINION & ORDER

Plaintiff pro se Michael Marom ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 1983 alleging that Defendants the Town of Greenburgh ("Town") and Paul Feiner (collectively "Defendants"): (1) discriminatorily enforced the Town's building code against his property, (Docket No. 54 ¶¶ 41-56); (2) arbitrarily refused to extend a building permit, (id. ¶¶ 57-59, 82-99); (3) defamed him, (id. ¶¶ 24-38); (4) committed tort by conversion, (id. ¶¶ 60-65); (5) violated the "ex parte communications rule," (id. ¶¶ 66-77); and (6) breached a contract, (id. ¶¶ 78-81). Plaintiff also seeks injunctive relief. (Id. ¶¶ 100-127). On March 1, 2019, Defendants moved to dismiss the Second Amended Complaint ("SAC") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket Nos. 61 and 62). Plaintiff filed Opposition to Defendants' Motion to Dismiss on March 29, 2019, (Docket No. 65),¹ and Defendants filed a Reply Memorandum of Law on April 18, 2019, (Docket No. 68).

For the following reasons, Defendants' Motion to Dismiss is granted in its entirety, and Plaintiff's SAC is dismissed.

I. BACKGROUND

A. Factual Allegations

For purposes of resolving the instant motion, the Court accepts as true the facts as stated in Plaintiff's SAC.²

The facts that give rise to the instant lawsuit stem from a dispute between Plaintiff and the Gordons, Plaintiff's former³ next-door neighbors. (Docket No. 54 ¶¶ 7-8). Plaintiff, a self-described "professional builder," purchased a vacant lot adjacent to the Gordon's home with the intention of constructing a "dream home for his family." (Id. ¶ 16). Prior to purchasing the property, a driveway - which bisected Plaintiff's lot - had been constructed to allow the Gordons access to the street. (Id. ¶ 8). After commencing construction on his home, Plaintiff claims that the Gordons initiated a legal proceeding seeking to claim adverse possession over the driveway. (Id.). This litigation concluded with what Plaintiff describes as a "so ordered" stipulation, but the parties' contentious relationship continued. (Id.). Plaintiff maintains that the Gordons "violated the stipulation by not constructing a retaining wall," which he claims prevented him from obtaining a Certificate of Completion ("C.O.") for his home. (Id. ¶ 10).⁴ Plaintiff contends that without the C.O. there was "no economic sense to continue construction" on his home. (Id.).⁵

Plaintiff alleges that he received a telephone call on November 26, 2016 from Timothy Lewis, the Town Attorney for the Town of Greenburgh, who informed him that the Gordons had "enlisted the political power of the Town's Supervisor, Paul Finer [sic]" to initiate proceedings to demolish Plaintiff's home because it was an "eye sour [sic]." (Docket No. 54 ¶ 11). Not long after this phone call, Robert Dam, the Town of Greenburgh Building Inspector, (hereinafter "Building Inspector Dam"), issued over half a dozen summonses against Plaintiff's property for violations concerning, among other things, "debris" on the property. (Id. ¶¶ 12, 17, 63). Plaintiff alleges upon information and belief that Defendant Feiner directed these summonses to be issued in an effort to demolish Plaintiff's home. (Id. ¶ 12). Plaintiff claims that two other developers on the same street were not issued summonses, despite also having building debris on their properties. (Id. ¶ 43). In addition, the Gordons were not issued any summonses despite having "full-size[d] cinder blocks piled" on their property. (Id. ¶ 44).

On April 18, 2017, after the summonses had been issued, Plaintiff contends that the Gordons appeared at a Greenburgh Town Board meeting where Defendant Feiner was present, and made the following false and defamatory statements about Plaintiff: (1) "he has threatened to kill me;" (2) "[h]e's presently before Judge Grafley in a criminal matter;" (3) "he attacked my wife;" (4) "[he] also attacked a neighbor across the street;" (5) "he has $121,000 judgment from worker's comp [sic];" (6) "he didn't have worker's comp [sic] insurance;" (7) "he is in violation of his set back;" (8) "they're afraid of falling into a 40 x 25-foot ditch on the driveway that this man dug;" (9) "he is vicious manipulative [inaudible];" (10) "there is garbage spewed all over the property;" (11) "there are animals living in it;" (12) "there are birds flying in through the eves;" (13) "there's chipmunks breeding in it;" (14) "there are mice running in and out;" (15) "there is [a] smell that comes out of the house as well;" and (16) "he's got retaining wallsbetween 8 and 14 feet all around the house." (Id. ¶¶ 12-13, 25, 28). The Town subsequently published a recording of the April 18, 2017 Greenburgh Town Board meeting ("April 18, 2017 Town Board Meeting") on its website, which included the alleged defamatory statements. (Id. ¶¶ 13-14). Plaintiff also claims that Defendant Feiner referred to Plaintiff's house as a "big eyesore," discussed "the strategy to be used...[to] demolish[]" Plaintiff's home, and questioned how best to expedite a trial to adjudicate the summonses issued for Plaintiff's property violations during the April 18, 2017 Town Board Meeting. (Id. ¶¶ 12-14).

On or about August 22, 2017, Plaintiff reached an agreement with the Town to remedy the summonses that had been issued by Building Inspector Dam, and this agreement was memorialized in a "stipulation." (Docket No. 54 ¶¶ 18, 67). Plaintiff maintains that he complied with the stipulation, but the Town disagreed, and brought the dispute before Justice Dolores Brathwaite of the Town of Greenburgh Town Court. (Id. ¶¶ 18-19).⁶ On or about October 4, 2017, Plaintiff and the Town Attorney had a conference before Justice Brathwaite to discuss the status of the stipulation. (Id. ¶ 71). Following the conference, Justice Brathwaite concluded that Plaintiff had not complied with the stipulation, and ordered a trial to adjudicate the summonses issued for Plaintiff's property violations. (Id. ¶¶ 19-20, 76). On October 24, 2017, Plaintiff filed a motion seeking to dismiss the summonses and for Justice Brathwaite to recuse herself. (Docket No. 62-2).⁷ Justice Brathwaite held a bench trial on November 6, 2017, January 10, 2018, March12, 2018, and March 23, 2018. (Docket No. 64 at 2-3).⁸ On March 8, 2019, Justice Brathwaite issued a decision, finding Plaintiff guilty of violating: (1) Section 301.3 of the International Property Maintenance Code ("IPMC"); (2) Section 285-36F of the Town of Greenburgh Zoning Regulation; (3) Section 410-4A of the Town Ordinance; and (4) Section 285-47A of the Zoning Regulations. (Id. at 10).

B. Procedural History

On January 24, 2018, Plaintiff commenced this action in the Eastern District of North Carolina against Defendants Feiner and the Town of Greenburgh. (Docket No. 1). On February 20, 2018, the Defendants moved to dismiss the complaint on the ground that the North Carolina District Court lacked personal jurisdiction over the Defendants and that venue was improper. (Docket No. 10). On July 16, 2018, the Honorable Louse W. Flanagan of the Eastern District of North Carolina granted Defendants' motion to dismiss for lack of personal jurisdiction and declined to rule on the argument concerning venue. (Docket No. 16).

On July 24, 2018, Plaintiff moved to transfer venue to the Southern District of New York. (Docket No. 20). On August 20, 2018, Judge Flanagan granted Plaintiff's motion, and ordered the transfer of the case to the Southern District of New York. (Docket No. 25). On September 11, 2018, Plaintiff filed an Amended Complaint, again naming Feiner and the Town of Greenburgh as defendants, but also adding Mark Gordon and Audrey Pierot as Defendants. (Docket No. 33). On December 14, 2018, Plaintiff filed the SAC, dropping Pierot and Gordon as defendants. (Docket No. 54). On the same day, Plaintiff also filed an Order to Show Cause, requesting that the Court grant the injunctive relief requested in the SAC, (Docket No. 54 ¶¶100-127), and granting him leave to file a late notice of claim. (Docket No. 53). On December 21, 2018, the Court denied Plaintiff's request for injunctive relief and found that the Court lacked authority to grant leave to serve a late notice of claim. (Docket No. 57).

On March 1, 2019, Defendants moved to dismiss the SAC. (Docket Nos. 61-63). On March 11, 2019, Defendants filed a letter informing the Court that Justice Brathwaite issued a decision after trial regarding Plaintiff's property violations. (Docket No. 64). Plaintiff filed opposition to Defendants' motion on March 29, 2019, (Docket No. 65), and Defendants filed a Reply Memorandum of Law on April 18, 2019, (Docket No. 68). On February 14, 2020, Defendants submitted the appellate briefs filed in Plaintiff's appeal from Justice Brathwaite's decision after trial. (Docket No. 69).

II. MOTION TO DISMISS STANDARD

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A court deciding a motion to dismiss must accept all of the factual allegations in the complaint as true, and draw all reasonable inferences in favor of the non-moving party. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'") (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) ("On a motion to dismiss . . . we must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor.") (citations and internal quotation marks omitted)). The facts alleged must be more than legal conclusions. Iqb...