Segreto v. Town of Islip

ANTHONY J. SEGRETO and LINDA M. SEGRETO, Plaintiffs, v. THE TOWN OF ISLIP, THE COUNTY OF SUFFOLK, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PETER A. SCULLY as director of NYSDEC Region 1 PETER A. SCULLY, individually, VERNON RAIL, as attorney for NYSDEC Region 1, and VERNON RAIL, individually, Defendants.

12-CV-1961(JS)(WDW)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: February 12, 2013

MEMORANDUM & ORDER

APPEARANCES

For Plaintiffs: Anthony J. Segreto, prose

Linda M. Segreto, pro se

For Defendant Town: John Ryan DiCioccio, Esq.

Islip Town Attorney's Office

For Defendant County: Leonard G. Kapsalis, Esq.

Suffolk County Department of Law

For Defendants DEC,

Scully, and Rail: Issac C. Cheng, Esq.

N.Y.S. Attorney General's Office

SEYBERT, District Judge:

Pro se Plaintiffs Anthony J. Segreto and Linda M. Segreto (collectively "Plaintiffs") bring this action against the Town of Islip (the "Town"), the County of Suffolk (the "County"), New York State Department of Environmental Conservation ("DEC"), Peter A. Scully in his individual and official capacity as DEC Region 1 Director ("Scully" or "Director"), and Vernon Rail ("Rail" and together with the DEC and Scully the "State Defendants") in his individual and official capacity as counsel for DEC Region 1 seeking relief under 42 U.S.C. §§ 1983 and 1985 and the Racketeer Influenced and Corrupt Organizations Act of 1970 ("RICO"), as codified by 18 U.S.C. § 1961 et seq. The Town, the County, and the State Defendants (collectively "Defendants") have each moved to dismiss the Complaint for lack of jurisdiction and failure to state a claim. For the reasons that follow, Defendants' motions are GRANTED.

BACKGROUND¹

On February 14, 2006, Plaintiffs purchased a home and approximately 3.2 acres² of surrounding water-front property at135 Bluepoint Road in Oakdale, New York (the "Property"). (Compl. ¶ 9.) Plaintiffs allege that for about the last seven years, the Town has been flooding the Property with contaminated cesspool water and toxic liquids causing pollution and erosion. (Compl. ¶¶ 11-13.) Slow but steady erosion eventually culminated in a "washout" during a heavy rainfall in October 2005. (Id. ¶ 31.) Now, saltwater tides also have accelerated the erosion. (Id.)

Furthermore, Plaintiffs claim that the Town "created" a parcel of land ("Parcel #37" or "Deer Lake") and then improperly exercised ownership over it. Plaintiffs allege that under the "Patent Law of August 26, 1930 - Liber 1524" a non-buildable lot contained within surrounding buildable lots properly belongs to the owners of the buildable lots. (Id. ¶ 24.) A map from 1909 shows that Deer Lake was a 1/3-acre non-buildable lot surrounded by eight buildable lots of the Property. (Id. ¶ 32.) In 1977, the Town named Deer Lake "Parcel #37," determined that the parcel was un-owned, and transferred ownership to the County in contravention of the Patent Law. (Id. ¶ 50.)

Moreover, the County has also contributed to flooding through its creation of a toxic recharge basin which emptiesonto the Property. (Id. ¶ 14.) The recharge basin consists of a five-pond ecosystem created by the County which, rather than filtering out toxins, essentially spreads water and directs toxic recharge water directly onto Plaintiff's land. (Id. ¶ 25.) The Town and the County refuse to sample the soil, and Plaintiffs believe that the toxins may be carcinogenic. (Id. ¶¶ 27-28.)

Plaintiffs further allege that due to the continual state of flooding, the DEC has determined that portions of the Property are "wetlands" under the New York Tidal Wetlands Act. This, they claim, is erroneous, as the land is not "wetlands," but instead the Town and the County have artificially created a state of perpetually wet land on the Property. (Compl. ¶ 17.)

As a result of the DEC's determination that the Property is "wetlands," it will not permit Plaintiffs to repair . . . bulkheads and Defendant Scully has "held up the Plaintiffs' bulkhead permit for 7 years." (Id. ¶ 39.) The bulkheads were permitted to fall into disrepair by the elderly former owners of the Property. (Id. ¶ 16.) Rather than understanding that the former owners were unable to remedy the situation and maintain the bulkheads, the DEC has discriminated against the former owners and continued this pattern of wrongdoing against Plaintiffs. (Id. ¶ 52.)

In addition, Plaintiffs must now apply for permits to take particular actions on the Property, and the DEC has issued various violations against Plaintiffs for "putting a shovel in the soil" and filling in land where trees uprooted. (Id. ¶ 51.) In fact, as more fully described below, the DEC brought suit against Plaintiffs in an administrative action for violating the New York State Tidal Wetlands Act. (Id.; Cheng Decl. Ex. A.) In the process of prosecuting these claims, the State Defendants have denied Plaintiffs' hearings (Compl. ¶ 57), Scully has made every effort to deny Plaintiffs their day in court (id. ¶ 59), and Rail has repeatedly moved to forego a hearing (id. ¶ 60). Plaintiffs also allege that the DEC has conducted several illegal searches of the Property and on one occasion the "NYSDEC CEO" entered the Property, conducted a search, and issued a citation for putting wood chips down. (Id. ¶ 55.) In conducting these actions, the State Defendants have acted in an arbitrary and capricious manner, singling out Plaintiffs' Property while allowing similarly situated neighbors permits. (Id. ¶ 64.)

Finally, Plaintiffs allege that Defendants have conspired to violate their constitutional rights (id. ¶ 34) and that the State Defendants' actions demonstrate a RICO operation requiring this Court to order an investigation (id. ¶¶ 47, 61-63).

PROCEDURAL PROCESS

There have been several actions and proceedings in various courts pertaining to the Property and the parties which bear particular relevance to Plaintiffs' claims in the case at bar. First, the DEC commenced an administrative action against Plaintiffs in 2007 charging Plaintiffs with violating the New York State Tidal Wetlands Act by clearing vegetation and causing "the placement of fill." (Cheng. Decl. Ex. A.) The DEC sought an order without a hearing, pursuant to 6 N.Y.C.R.R. 622.12, which the Commissioner of the DEC granted on February 1, 2008. (Id.)

Plaintiffs then commenced an action in the Supreme Court of the State of New York, County of Suffolk pursuant to N.Y.C.P.L.R. Article 78 against the Town, the County, Scully and Rail on February 15, 2008. (DiCioccio Decl. Ex. B.) In that action, Plaintiffs sought to obtain "relief from flooding of their property which they contend has been caused by actions of the Respondents" and to challenge the DEC's decisions to enforce the wetlands regulations. (Id.) The Supreme Court dismissed the action, finding that Article 78 was not the proper proceeding for the relief sought and that "the Petitioners have failed to identify any basis to disturb" the DEC's determination. (Id. Ex. C.)

On February 4, 2009, Plaintiffs commenced a similar action, again in the New York State Supreme Court, Suffolk County, this time against the Town and the County only. (Id. Ex. D.) Plaintiffs re-alleged their claims regarding flooding of the property, including flooding from saltwater, and claimed that the County was artificially diverting water onto the Property through a faulty sewer drainage system. (Id.) Plaintiffs also alleged that the Town and the County had committed theft by claiming ownership of Deer Lake. (Id.)

The Town and the County separately moved for summary judgment. The Supreme Court granted summary judgment in favor of the County on March 14, 2011, finding that Mr. Segreto's deposition testimony in that case and the County's submissions established that Plaintiffs did not have any cognizable claims against the County. (Id. Ex. E.) In that same Order, the Supreme Court also denied Plaintiffs' motion for declaratory judgment in which it declared that the Plaintiffs own Deer Lake because their deed at the time of purchase did not include said parcel. (Id.)

On November 11, 2011, the Supreme Court granted summary judgment in favor of the Town, holding that the Town was immune from claims regarding negligent design of the sewer system, that claims regarding flooding from saltwater were time-barred, and that Plaintiffs' claims with respect to Deer Lakewere without merit because Plaintiffs did not have an ownership interest in it.³ (Id. Ex. F.)

DISCUSSION

Liberally construing the Complaint, Plaintiffs have alleged: (1) injury by the state court; (2) the Town and the County violated the Takings Clause by wrongfully flooding the property and transferring ownership of Deer Lake; (3) the State Defendants violated the Takings Clause by wrongfully flooding the property, denying Plaintiffs of procedural due process, and acting arbitrarily and capriciously in regulating Plaintiffs' Property; (4) the State Defendants have conducted illegal searches on the Property; (5) the State Defendants have engaged in age discrimination; (6) the State Defendants have potentially violated RICO and thus the Court should order an investigation; and (7) the Defendants have conspired to violate Plaintiffs' constitutional rights.

Defendants have each moved to dismiss the Complaint, arguing that this Court lacks jurisdiction; that Plaintiffs' claims are barred by the Eleventh Amendment and the doctrines of res judicata and collateral estoppel; and that Plaintiffs have otherwise failed to state a claim. The Court will first addressthe standards of review before turning to the jurisdictional and substantive claims.⁴

I. Standards of Review

A. Standard of Review under Rule 12(b)(1)

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a motion to dismiss for lack of subject matter...