Melanie Nardiello & Two By Four N.Y., Corp. v. Town of Oyster Bay

MELANIE NARDIELLO and TWO BY FOUR NEW YORK, CORPORATION, Plaintiff, v. THE TOWN OF OYSTER BAY, FREDERICK P. IPPOLITO, TIMOTHY R. SIKE,DIANA S. AQUAIR and GARY BLANCHARD, Defendants.

CV 15-292

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

April 12, 2016

MEMORANDUM AND ORDER

(Wexler, J.)

APPEARANCES:

HUTCHINSON & HUTCHINSON, P.C.

By: Richard L. Hutchinson, Esq.

127 South Street, Suite 2

Oyster Bay, NY 11771

Attorneys for Plaintiff

GOLBERG SEGALLA LLP

By: Christopher Kendric, Esq.

200 Garden City Plaza, Suite 520

Garden City, NY 11530

Attorneys for Defendants

OFFICE OF THE TOWN ATTORNEY

LEONARD GENOVA, TOWN OF OYSTER BAY

By: Matthew M. Rozea, Esq.

54 Audrey Avenue

Oyster Bay, NY 11771

Attorneys for Defendants

WEXLER, District Judge:

Plaintiffs Melanie Nardiello ("Nardiello" or "Plaintiff") and Two by Four New York, Corporation, ("Two By Four") (collectively, "Plaintiffs") bring this action against the Defendants -- namely, the Town of Oyster Bay, New York, (the "Town"), Frederick P. Ippolito, the Town's Commissioner of the Department of Planning and Development ("Ippolito" or "Commissioner"), Timothy R. Zike, the Deputy Commissioner of the Department of Planning and Development ("Zike"), Diana S. Aquiar, the Deputy Commissioner of Code Compliance ("Acquiar"), and Gary Blanchard, the Chief Building Inspector ("Blanchard") (collectively, "Defendants"). Plaintiffs bring claims under 42 U.S.C. § 1983, 1985 and 1986, claiming that Defendants have violated due process and equal protection rights under the Fourteenth Amendment, the First Amendment right to petition, and conspired to preclude Two By Four from operating its business in violation of 42 U.S.C. §§ 1983 and 1985. Defendants move to dismiss the complaint in its entirety pursuant to Federal Rules of Civil Procedure ("Fed.R.Civ.P."), Rule 12(b)(6). For the reasons that follow, Defendants' motion is granted.

BACKGROUND

I. Plaintiffs' Complaint

The following facts are taken from Plaintiffs' complaint, unless otherwise noted. Plaintiff Nardiello is the owner and sole director and officer of Plaintiff Two By Four, a dog-walking business formed in 2010 and operated out of her home. Complaint ("Cmplt."), ¶ 27. Her business grew and in time, she received violations from the Town for operating a business out of her home. Cmplt. ¶ 31. Nardiello sought a more appropriate location for the business and in 2012, Plaintiff Two By Four leased a premises at 34 South Street, Oyster Bay, NY, in an area zoned for light industry. Cmplt. ¶¶ 32-33.

In October 2012, Nardiello had a meeting, scheduled by Defendant Aquiar, with Defendant Ippolito to "get the Commissioner's blessing" for the operation of Plaintiff's businessat 34 South Street (the "Premises"). Cmplt. ¶¶ 36-37. At that meeting, Plaintiff Nardiello realized that she was previously acquainted with Defendant Ippolito in her role as a wine salesperson to Christiano's, a restaurant in Syosset, New York owned by Ippolito. Cmplt. ¶ 38. Plaintiff alleges that in two meetings at that restaurant, Ippolito solicited Plaintiff to perform sexual acts, which Plaintiff refused. Cmplt. ¶ 39.¹ At the October 2012 meeting concerning the Premises, Plaintiff asked Ippolito if he remembered Plaintiff and he said he did not. Cmplt. ¶ 40. Plaintiff alleges that in retaliation for Plaintiff refusing Ippolito's advances, Ippolito said he was "not giving her a permit." Cmplt. ¶ 41.

In December 2012, Plaintiff applied for a building permit to erect a one story prefabricated barn and renovate an existing free-standing building on the Premises. Cmplt. ¶ 44. Plaintiff "took matters into her own hands," and before getting a response on the permit application, erected the structure that was the subject of the application, "with the full expectation" that Ippolito would issue the permit before the building was complete. Cmplt. ¶ 45. The Commissioner failed to issue a permit or reject the application. Cmplt. ¶ 47. The Town Code ("Code"), at § 93-19(a), states that an application is to be examined "within a reasonable time after filing," and "if it appears that the work will be in compliance," the application will be approved and a building permit issued. Cmplt. ¶ 48.

On or about May 23, 2013, the Town issued misdemeanor violations against Two By Four for erecting a building without a permit and occupying the building without a certificate of occupancy. Cmplt. ¶ 50. Plaintiffs allege that the practice of the Department of Planning andDevelopment was to issue violations to compel the alleged code violators to file for a permit, which Plaintiffs had already done. Cmplt. ¶ 51. On October 23, 2013, without having acted on the application, the Town, by order of Commissioner Ippolito, issued a second set of violations, for the same violations. Cmplt. ¶ 52.

On January 23, 2014, still without a ruling on Plaintiffs' application, the Commissioner issued "Notices of Dangerous Conditions" pursuant to his emergency powers, directing that the Premises by "secured, boarded, fenced, sealed or otherwise made safe," even though no investigations or reports had been made or filed to warrant such a notice. Cmplt. ¶ 54, 58. Plaintiffs allege this was a conspiracy by Ippolito and other Defendant Town officials to shut down or injure Two By Four. Cmplt. ¶ 56. Plaintiffs allege such acts were taken in retaliation for Plaintiff Nardiello's refusal to perform the sex acts Ippolito solicited. Cmplt. ¶ 59.

In 2014, Two By Four initiated an Article 78 proceeding in New York Supreme Court in Nassau County to enjoin the Commissioner from exceeding his authority and to compel him to act on Plaintiffs' application. Cmplt. ¶ 60. The Court there granted a temporary restraining order and directed that an inspection of the Premises be conducted. Cmplt. ¶ 61-63.

The inspection was conducted by Defendant Blanchard, who, Plaintiffs allege, then conspired with the other Defendants to concoct false allegations that the newly constructed wiring and the newly constructed above-ground waste lines were not in compliance with Code and had to be removed. Cmplt. ¶ 64.

On March 4, 2014, the Commissioner issued another "dangerous building letter" directing that the building on the Premises be "secured, boarded, fenced, sealed or otherwise made safe." Cmplt. ¶ 68. Plaintiff then instituted a contempt proceeding against theCommissioner. Cmplt. ¶ 69. A request for a hearing before the Town Board was ignored. Cmplt. ¶ 70-71.

Plaintiffs' Article 78 proceeding is still pending. Cmplt. ¶ 80. According to Plaintiffs, in that context, Defendants retaliated against Plaintiffs' engineer witness, Nicholas DeSantis, hired in connection with that proceeding. Plaintiffs allege that Defendants have locked DeSantis' files away, even those not related to Plaintiffs' matter, and that Commissioner Ippolito directed the other Town employees to not process any applications submitted by DeSantis, in violation of 42 U.S.C. § 1985(b). Cmplt. ¶ 84-86.

Plaintiffs claim that Defendants violated their due process and equal protection rights under the Fourteenth Amendment, violated their First Amendment right to petition, and conspired to preclude Plaintiffs from operating its business in violation of 42 U.S.C. §§ 1983 and 1985. Defendants move to dismiss the complaint in its entirety, and for the following reasons, that motion is granted.

DISCUSSION

I. Standards on Motion to Dismiss

The standards on a motion to dismiss are well-settled. In considering a motion to dismiss made pursuant to Rule 12(b)(6), the court must accept the factual allegations in the complaints as true and draw all reasonable inferences in favor of the plaintiff. Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013) (citations omitted); Martine's Service Center, Inc. v. Town of Wallkill, 2014 WL 321943, *1 (2d Cir. 2014) (citations omitted); Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 58-59 (2d Cir. 2010). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court rejected the standard setforth in Conley v. Gibson, 355 U.S. 41 (1957) that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46. The Supreme Court discarded the "no set of facts" language in favor of the requirement that plaintiff plead enough facts "to state a claim for relief that is plausible on its face." Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The "short and plain" pleading standard of Rule 8 of the Fed.R.Civ.P. does not require "'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678, quoting Twombley, 550 U.S. at 555 (other citations omitted). Twombley holds that a "formulaic recitation of cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Twombley, 550 U.S. at 555.

"Determining whether a complaint states a plausible claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. Reciting bare legal conclusions is insufficient, and "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. A pleading that does nothing more than recite bare legal conclusions is insufficient to "unlock the doors of discovery." Iqbal, 556 U.S. at 678-679.

II. Fourteenth Amendment Due Process Claims

The gravamen of Plaintiffs' due process claim is that Defendants violated those rights by not acting on, and denying Plaintiffs the permit necessary to operate the business of Two By Four. Nardiello alleges Ippolito's failure to act was in retaliation for her refusal of his sexualadvances and solicitations some...