This post was authored by Sebastian Perez, Esq.

Patrick Lustig (“Plaintiff”) alleged the City violated his constitutional rights under the Fifth and Fourteenth amendments when they determined that no development could be approved on his property and thereby deprived him of all reasonable economic use of his property and amounting to an unlawful taking without compensation. Plaintiff also alleged that the City’s actions constituted denial of equal protection because there were other nearby properties that had been allowed to develop.

Commencing on September 9, 2016 and continuing through August 15, 2021, Plaintiff had sought permission from the Defendant City to construct a single-family residence on Plaintiff’s Property (the “Property”). On September 9, 2016, Plaintiff submitted a plan to the Planning Department of Laguna Beach for a driveway for additional street access. On September 12, 2016, the City denied Plaintiff’s request because the Property was not a “building site” as defined by the City of Laguna Beach Zoning Code (the “Code”). Plaintiff for several years continued to try and have the Property classified as a building site and was last denied on August 16, 2021, when the City alleged their application for a variance was incomplete.

On October 24, 2022, Plaintiff filed suit and alleged five causes of action under 42 U.S.C. Section 1983 (“Section 1983”), which guarantees a federal forum for claims of unconstitutional treatment at the hands of state officials. Defendant moved for a judgment on the pleadings, arguing that Plaintiff’s claims were not ripe for adjudication because the City had not reached a “final decision” on Plaintiff’s proposed plans. To the extent that Plaintiff’s claims were ripe, Defendants argued that Plaintiff’s claims were barred by the 90-Day Statute of Limitations under Section 65009(c)(1). As for Plaintiff’s Equal Protection Claim, Defendant argued it failed because Plaintiff did not identify a “similarly situated” property in “all material respects” where development was permitted by the City. In opposition, Plaintiff argued that the claims were ripe, that the statute of limitations had not run on any of the claims, and that his equal protection claim was adequately pled. Regarding the four takings claims Plaintiff asserted under Section 1983, the Court found that they were not yet ripe for review because the August 16 letter did not qualify as a final decision on the variance application and dismissed the claims for lack of subject matter jurisdiction. The Plaintiff alleged that the City treated them unfairly compared to other property owners, violating the Equal Protection Clause of the Fourteenth Amendment. The claim asserted that Plaintiff was intentionally treated differently without a rational basis. Plaintiff argues that the Property was similar to others in the area but had been subjected to additional requirements by the City.

Despite the defendant’s argument that the Property had unique constraints, the Court found that Plaintiff had sufficiently demonstrated that they were similarly situated to other property owners in all material respects. The Court denied Defendant’s motion regarding the Equal Protection Claim.

Therefore, the Court granted in part and denied in part Defendant’s motion for a judgment on the pleadings.

Lustig v City of Laguna Beach, 2023 WL 6370231 (CD CA 8/10/2023)

This post was authored by Amy Lavine, Esq.

The 2023 case Herman v. Town of Cortlandt, Inc., 2023 U.S. Dist. LEXIS 186603 (SDNY 10/13/23), arose from the demolition of the plaintiffs’ trailer home in the Town of Cortlandt, New York. After they discovered that their trailer was gone, the plaintiffs learned that it had been demolished by an employee of the town’s highway department, Robert Dyckman. The demolition was allegedly carried out at the town’s direction, even though Dyckman told the plaintiffs that he found it unusual that the town had asked him to demolish a secured, winterized, and furnished trailer.

The plaintiffs filed suit in the District Court for the Southern District of New York, asserting Fifth Amendment Takings claims and naming the town and Dyckman as defendants. After several years of litigation, the court became aware that the town’s counsel had a conflict of interest with Defendant Dyckman and new counsel was retained to represent him. The court then granted leave for Defendant Dyckman to make a new motion for  judgment on the pleadings seeking to dismiss Dyckman as a defendant in his individual capacity.

On the merits, the court agreed with Dyckman that the claim against him failed as a matter of law because such a takings claim cannot be brought against a government official in their individual capacity. While there was no controlling precedent on this issue from the Second Circuit Court of Appeals, the court observed that several circuit and district courts have rejected takings claims brought against officials in their individual capacities, and none of the circuit courts have explicitly permitted such claims. In addition, the court noted that at least one district court in the Second Circuit has held that “[o]nly governmental entities, and not individuals, can be liable for takings violations,” citing Katsaros v. Serafino, 2001 WL 789322 (D. Conn. 2/28/2001). The court found that the “absence of case law establishing that Takings claims may be brought against individuals is unsurprising, as ‘[t]he takings clause of the [F]ifth [A]mendment is a limitation on the government.'”  Finding this reasoning persuasive, the court concluded as a matter of law that the plaintiffs could not sustain a takings claim against Defendant Dyckman in his individual capacity. The court therefore granted Defendant Dyckman’s motion for judgment on the pleadings and dismissed the takings claim against him.Herman v. Town of Cortlandt, Inc., 2023 U.S. Dist. LEXIS 186603 (SDNY 10/13/23)

This post was authored by Amy Lavine, Esq.

The Appellate Division, Second Department, upheld the denial of a special use permit for a gas station based on traffic concerns in the 2023 caseMatter of Chestnut Petroleum Dist., Inc. v. Town of Mount Pleasant Planning Bd., 222 A.D.3d 748 (2d Dept 12/13/23).

The case involved an application for a special use permit and site plan approval for the development of a gas station in the Town of Mount Pleasant. The petitioner’s initial proposal included four fueling islands as well as a convenience store and a Dunkin’ Donuts drive-thru, but it revised its application in response to concerns about traffic by reducing the number of fueling islands to three. The revised application also limited circulation so that only right turns would be permitted in and out of the gas station. Despite these revisions to the gas station proposal, however, the planning board ultimately denied approval for the project.

As the court explained, one of the requirements for a “gasoline station convenience store” under the town code was that a “traffic circulation plan shall be provided, demonstrating how the use of the site for both the gas station and the convenience store will not create unsafe conditions or vehicular conflicts.” The planning board’s denial of the application under this provision, the court found, was reasonable and supported by the evidence, and it was also reasonable for the planning board to find that the proposed gas station would create more traffic congestion than a use permitted as-of-right. The court emphasized that even though there was support for the petitioner’s position as well, the planning board’s decision was subject to deference. Accordingly, the court concluded that the denial of the petitioner’s special use permit application was not illegal, arbitrary and capricious, or an abuse of discretion.

Matter of Chestnut Petroleum Dist., Inc. v. Town of Mount Pleasant Planning Bd., 222 A.D.3d 748 (2d Dept 12/13/23)

This post was authored by Amy Lavine, Esq.

The petitioner in Matter of 147-25 N. Assoc., LLC v. New York City Off. of Trials & Hearings, 220 A.D.3d 684 (2d Dept 10/4/23), was the owner of a multiple dwelling in Queens, New York and was issued a summons by the Department of Buildings for allegedly converting dwelling units in the building that were classified as permanent residences into short-term rentals in violation of the city’s administrative code. Following a hearing held before the New York City Office of Administrative Trials and Hearings, the charges were sustained and the petitioner was directed to pay a civil penalty of $1,000 per day for a period of 39 days from November 9, 2019 to December 17, 2019, which was the time period between the date when the summons was issued and the date when the violation was supposedly corrected. The petitioner filed an administrative appeal regarding the amount of the penalty, arguing that the violation was cured almost immediately and that it should only be liable for daily penalties for two days. The Office of Administrative Trials and Hearings rejected the petitioner’s administrative appeal, relying on the sworn certificate of correction filed by the petitioner, which stated that December 17, 2019 was the date that the violation was corrected. This appeal followed.

The Appellate Division, Second Department affirmed the penalty determination on appeal. As the court explained, the “determination directing the petitioner to pay a civil penalty of $1,000 per day for a period of 39 days… was supported by substantial evidence, including the sworn statement by the petitioner’s owner in the certificate of correction identifying December 17, 2019, as the date the violation was corrected. Further, as judicial review of administrative determinations is confined to the facts and record adduced before the agency, the petitioner’s reliance upon evidence that it did not introduce at the hearing is improper.”

Matter of 147-25 N. Assoc., LLC v. New York City Off. of Trials & Hearings, 220 A.D.3d 684 (2d Dept 10/4/23)

This post was authored by Amy Lavine, Esq.

The property owner involved in the 2023 case Lexington Assoc., LLC v. City of New York, 222 A.D.3d 458 (1st Dept 12/12/23), sought to annul an administrative determination that sustained charges against it for the unauthorized transient use of its tenement apartment building in violation of its certificate of occupancy, and for illegally advertising the tenement for transient use. The lower court disagreed with the property owner and granted summary judgment in the city’s favor, however, and the First Department affirmed the ruling against the property owner on appeal.

The building at issue had a 1940 certificate of occupancy that listed its occupancy classification as an “Old Law Tenement” with “Single Room Occupancy” units. As the court explained, “tenements” are classified under the New York State Multiple Dwelling Law as Class A dwellings, which are generally limited to permanent occupancy uses, as opposed to Class B dwellings, which permit transient uses such as hotels and lodging houses. The building’s certificate of occupancy did not include a notation as to whether it was Class A or Class B, but the authorization for single room occupancy use established that it had been converted from under the 1939 Pack Law, which allowed the continuance of then-existing single room occupancy units subject to certain conditions related to safety and sanitary conditions. The court concluded that the building was properly deemed a Class A multiple dwelling, based on a previous case in which it was held that a certificate of occupancy for a tenement building with single room occupancies established “by implication” that the building was also a class A dwelling, “because tenements are Class A multiple dwellings.” The court found that the same  reasoning applied in this case, and because the building was a Class A multiple dwelling, the court found that it was subject to amendments to the Multiple Dwelling Law that prohibited rentals for less than 30 days, and it was also subject to the Class A advertising law, which prohibited advertisements for any transient uses.

The property owner opposed the finding that the building was a Class A multiple dwelling. In its first argument it claimed that the building should be deemed Class B based on its description of the use as “Class B, Single Room Occupancy (Pack Bill)” in the application that was submitted for the 1940 certificate of occupancy. But the court disagreed, noting that there was no provision in Pack Law that authorized conversions to Class B transient occupancy in addition to conversions from full apartments to single room occupancies. Next, the court rejected the property owner’s res judicata and preclusion claim, which was based on a previous administrative determination that dismissed a similar charge of violating the certificate of occupancy and found that the building’s authorization for single room occupancy meant that it also allowed Class B transient uses. The court pointed out that it was unclear whether the previous and current violations arose from the same transaction or series of transactions such that res judicata should apply, but even assuming that there was privity, the court explained that precluding the city from prosecuting the current violation would be inconsistent with its statutory mandate to enforce the Multiple Dwelling Law fairly and uniformly across all buildings in the same class. Moreover, the court explained that res judicata did not preclude relitigating whether the certificate of occupancy allowed any Class B transient occupancy, since this was a “pure question of law.”

Lexington Assoc., LLC v. City of New York, 222 A.D.3d 458 (1st Dept 12/12/23)

This post was authored by Amy Lavine, Esq.

In the 2023 case Chestnut Hill NY, Inc. v. City of Kingston, 2023 U.S. Dist. LEXIS 184157 (NDNY 10/13/23), the District Court for the Northern District of New York dismissed claims that challenged the denial of a special use permit for a boarding home that primarily housed disabled individuals. The court concluded that the plaintiffs failed to establish a likelihood of success on their allegations that the permit denial violated the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA), finding instead that the city’s fire safety concerns were sufficient legitimate and non-discriminatory reasons for denying the special use permit.

The case involved a boarding house for mentally ill and disabled individuals in the City of Kingston, New York. The boarding house had filed a lawsuit against the city several years earlier, where it claimed that a series of zoning disputes with the city had violated its rights under the ADA and the FHA. That case was eventually settled and the boarding house was permitted to continue operations, subject to the requirement that its permit had to be renewed on an annual basis. Over the next few years, the boarding house received a series of code violations for fire safety violations, including problems with the building’s fire alarm system and the structural integrity of its fire escape, and various complaints were also made to the city about overdoses, police activity, and improper oversight at the property. When the time came for the boarding house to renew its special use permit in 2023, the planning board directed it to submit an engineering report certifying the fire escape’s structural soundness, but the boarding house repeatedly failed to do so. After tabling the application for several months, the planning board voted to deny the boarding house’s permit renewal in July 2023. The denial was primarily based on the fire escape issue, but the planning board also discussed other alleged violations at the property, the complaints made by neighbors, and the board members’ own public safety concerns. Following the planning board’s decision, the boarding house then filed a new lawsuit against the city under the ADA and the FHA. The boarding house alleged claims for intentional discrimination, disparate impact, and failure to provide reasonable accommodation, and it sought declaratory and injunctive relief and award of compensatory and punitive damages.

The main issue before the court was whether the boarding house plaintiffs could meet the requirements for preliminary injunctive relief by showing a likelihood of success on their discrimination claims. The court concluded that they could not, because they failed to show that discrimination was a motivating factor for the denial of the boarding house’s special use permit. While the court acknowledged that some of the public comments reflected animus against the residents of the boarding house, none of these comments were made by or could be imputed to the planning board members, who had provided legitimate, non-discriminatory reasons related to fire safety in support of their decision to deny the permit. Similarly, although there was evidence the former mayor and other city officials had expressed disability-based animus against the boarding house during the previous litigation, the plaintiffs failed to present any evidence that the city officials who were involved in that case had any involvement in the current matter. Accordingly, the court found no basis to impute the discriminatory conduct by prior city officials to the officials who were involved in the present case.

The court also found that the boarding house plaintiffs failed to establish a likelihood of success on their reasonable accommodation claims, since they failed to identify what reasonable accommodations they had requested and the city refused to make. And to the extent that the plaintiffs alleged disparate impact violations under the ADA and the FHA, the court dismissed these claims as well because the plaintiffs failed to identify any specific neutral policy they were challenging or explain how that policy resulted in disparate impacts to members of a protected group as compared to similarly situated persons not affected by the policy.

The court agreed with the boarding house plaintiffs that they would suffer irreparable harm without any preliminary injunctive relief, since the boarding house would no longer be allowed to provide housing to disabled residents and would be forced to evict the current residents, but this factor was not enough to outweigh the plaintiffs’ failure to demonstrate a likelihood of success on the merits. And because the failure to demonstrate a likelihood of success on the merits was sufficient to deny injunctive relief, the court did not need not consider the balance of hardships and public interest factors. The court therefore denied the plaintiffs’ motion for a temporary restraining order and preliminary injunction and dismissed the case.Chestnut Hill NY, Inc. v. City of Kingston, 2023 U.S. Dist. LEXIS 184157 (NDNY 10/13/23)

This post was authored by Sebastian Perez, Esq.

Catholic Healthcare International, Inc. (the “Plaintiffs”) commenced an action against The Genoa Charter Township located in the state of Michigan (the “Defendants”) alleging a violation of their rights under the federal and state constitutions as well as the Religious Land Use and Institutional Persons Act (“RLUIPA”) when The United States District Court for the Eastern District of Michigan (the “district court”) dismissed certain claims as unripe and granted in part and denied in part the Plaintiff’s motion for a preliminary injunction. This appeal followed.  

The district court issued two opinions that were appealed: the first opinion adjudicated a motion to dismiss, and dismissed as unripe Plaintiff’s claims arising from the prohibition and removal of Plaintiff’s religiously symbolic structures from the subject property; the second opinion denied in part and granted in part Plaintiff’s motion for a preliminary injunction, specifically, the court declined to enter an injunction allowing Plaintiff’s to restore their religious displays, but the court entered an injunction that allowed Plaintiff’s to hold organized gatherings on their property. The United States Court of Appeals, Sixth Circuit (the “Court”) reviewed the district court’s opinions, of whether to issue a preliminary injunction and were guided by four factors: (1) whether the movant was likely to succeed on the merits of its claim; (2) whether the movant was likely to suffer irreparable harm absent an injunction; (3) the balance of equities; and the public interest, with the likelihood of success on the merits often the dispositive factor in RLUIPA cases. As a threshold matter, where the Court addressed the Plaintiffs’ appeal seeking a preliminary injunction to restore religious elements to their prayer trail, the Court decided to adjudicate based solely on the claim under RLUIPA and avoided addressing the First Amendment claims under constitutional avoidance principles. Defendants argued a lack of jurisdiction to review the district court’s determination that Plaintiffs were unlikely to succeed on their RLUIPA claim, citing 28 U.S.C. § 1292(a)(1). However, the court asserted jurisdiction under § 1292(a)(1) to decide any “predicate issue,” including the ripeness determination that the plaintiffs’ claims were unripe. Next, the district court’s ripeness determination was deemed mistaken, as the claim was considered ripe when the government adopted a “definitive position” on how regulations applied to the specific land, which occurred here. Defendants insisted that Plaintiffs obtain a special land-use permit for religious displays, and their applications were twice refused, which led to the removal of the displays. The Court determined that the district court erred by conflating ripeness and exhaustion by demanding a showing of compliance with administrative processes, contrary to the modest showing required for ripeness in the land-use context. The question then became whether the plaintiffs were likely to succeed on the merits of their RLUIPA claim. RLUIPA prohibits the government from imposing a substantial burden on religious exercise unless it demonstrates a compelling interest and uses the least restrictive means. Defendant’s decision to treat the prayer trail as equivalent to a church building, which would have required a special land-use permit, was argued to impose a substantial burden on the Plaintiffs’ religious exercise, as demonstrated by the significant delay, uncertainty, and expense they faced. The Court suggested that Plaintiffs were likely to succeed on their RLUIPA claim, as Defendant failed to show that its insistence on the permit was narrowly tailored to advance a compelling interest. Additionally, the Court found that other preliminary injunction factors favored Plaintiffs, such as ongoing harm to their religious exercise, negligible harm to others, and public interest in protecting RLUIPA rights. Consequently, the Plaintiffs were entitled to a preliminary injunction allowing them to restore religious displays to their prayer trail. That left the Defendant’s appeal of the district court’s preliminary injunction order, particularly the part that restrained Defendant from enforcing a “prohibition of organized gatherings” on Plaintiffs’ property. Defendant, for two years, enforced a ban on organized gatherings based on an expired driveway permit, which significantly hindered Plaintiff’s religious mission. The Court determined that the ban was subject to strict scrutiny and was likely to be deemed a substantial burden on Plaintiffs’ religious exercise. 

Therefore, the Court affirmed the preliminary injunction order regarding the ban on organized gatherings and reversed it in part, remanding for the entry of a preliminary injunction that allowed the restoration of religious structures to the prayer trail. 

Catholic Healthcare International, Inc. v Genoa Charter Township, 2023 WL 5838792 (6th Cir. CA 9/11/2023).

This post was authored by Sebastian Perez, Esq.

Michael Bermes (“Bermes”) sought relief from a denial of his request to build an ancillary building (the “building”) on a lot he owned over a ridgeline in Summit County (the “County”) where the District Court upheld the Summit County Council’s (the “County”) decision. This appeal followed. 

On appeal to the Court of Appeals of Utah (the “Court”), Bermes argued that the County’s decision was both (1) illegal and (2) arbitrary and capricious. To advance his first argument, Bermes alleged that the County incorrectly relied on Snyderville Code Sec. 10-4-3.C.1.a(3)(A)(iii) (the “Site Grading Provision”) in the review of his request instead of the neighboring provision– Snyderville Code Sec. 10-4-3.C.1.a(4)(A) (the “Landscape Provision”) because the proposed work was to build a barn and not related to site grading. The Court disagreed with Bermes and reasoned that the plain language of the statute, related to the term “site grading”, was sufficiently related to the proposed work by Bermes in the construction of an ancillary building. The application of the Site Grading Provision then barred the proposed work by Bermes because of the site disturbance limitation within the statute which the construction of the proposed ancillary building would have exceeded. To advance his second argument, Bermes alleged that the County did not adequately disclose the steps that led to the rejection of his application and offered ways in which that decision could have been clearer. The Court disagreed and relied on Board of Oil, Gas, & Mining, 2018 UT 22 to point out that a board’s ability to have crafted an order that better explained their reasoning did not translate into a basis for concluding that the board lacked substantial evidence for its decision. The Court determined that the County adequately laid out the reasoning for its decision with an analysis of each factor in Snyderville Code Sec. 10-3-7.B (the “Criteria for Approval”) and reasoning as to why Bermes could not satisfy each requirement. Finally, Bermes argued that the County’s decision was arbitrary and capricious because he had been treated differently than his neighbors and discrepancies between how he was treated when he applied for a variance in 2015 and how he was treated when he applied for a special exception in 2020. The Court disagreed and relied on South Weber City v. Cobblestone Resort LLC, 2022 UT App 63 to point out that a municipality’s failure to enforce zoning for a time does not forfeit the power to enforce, additionally, the Court also highlighted that Bermes’ proposed ancillary building would have been bigger than any other property on the ridgeline. The Court then reconciled the alleged different treatment of Bermes in 2015 compared to 2020 as two different sets of circumstances. For example, in 2015 Bermes’ request to construct was treated more favorably because he was building a home as opposed to an ancillary building in 2020. Secondly, Bermes’ work in 2015 exceeded the scope of the work proposed at the time which was viewed as a concern for a similar outcome in his 2020 proposed work.  

Therefore, the Court affirmed the District Court’s ruling and concluded that the Site Grading Provision applied to Bermes’ construction application, that the provision’s disturbance limitation prohibited the scope of the proposed work, and that the County’s decision was not illegal because it provided the substantive review required under Utah law. The Court also concluded that the County’s denial was not arbitrary and capricious because their decision was specific enough to facilitate appellate review.

Bermes v Summit County, 2023 WL 5439306 (OH App. 8/25/2023).

This post was authored by Amy Lavine, Esq.

InFederman v. Town of Lorraine, 213 A.D.3d 1220 (4th Dept. 2/3/23), the Fourth Department held that lower court erred in granting summary judgment to the town on the plaintiff’s eminent domain cause of action. The case arose from a dispute over maintenance that the town performed on the road leading to plaintiffs’ home, which the plaintiff contended was an unlawful taking of his property. To be entitled to a grant of summary judgment dismissing the eminent domain claim, the town was required to establish that the road qualified as a “public highway by use” under the state highway law, such that the town’s work would have qualified as permissible maintenance rather than an improper widening of the road. However, the court found that the town defendants failed to submit evidence proving that the road met the statutory definition of a public highway by use. As the court explained, the classification required that “for a period of at least 10 years, the road at issue was used by the public and the municipality exercised dominion and control over the road…. Such a showing… requires more than intermittent use by the public and more than occasional road work by the municipality.” The court found that that town’s evidence, which included the plaintiff’s own hearing testimony and the affidavit of the highway superintendent, whose personal knowledge of the facts was limited to the two years that preceded the filing of the motion, was insufficient to prove the town’s case. Although the court reversed the grant of the town’s motion for summary judgment, it held that the lower court properly denied the plaintiff’s cross-motion, since the plaintiff’s evidence did not eliminate all triable issues of fact regarding whether the road was a public highway and whether the town’s maintenance amounted to a taking by widening the road outside the minimum permitted width of a public highway as prescribed by the state highway law. As the court explained, contrary to the plaintiff’s contention, the town was not limited to performing maintenance within the area of the prior public use of the road, because the statute “plainly permits a town to maintain and improve it in furtherance of the public’s right of travel, to the width of ‘at least three rods.'” Because plaintiff failed to show the Town’s maintenance exceeded this minimum permitted width, he did not meet his burden for summary judgment on the eminent domain claim.

Federman v. Town of Lorraine, 213 A.D.3d 1220 (4th Dept. 2/3/23)

This post was authored by Amy Lavine, Esq.

The plaintiffs were issued fines by the New York City Department of Buildings during the course of their drilling and excavation work at a construction sites. They challenged the fines under 42 U.S.C. §§ 1981 and 1983, claiming that city officials had singled them out and discriminated against them and other Asian individuals in the construction industry. The district court ruled in the city’s favor, however, and dismissed the plaintiffs’ claims of race-based and malice-based selective enforcement. In a prior decision, Hu v. City of New York, 927 F.3d 81 (2d Cir. 2019), the Second Circuit had vacated the dismissal of the plaintiffs’ equal protection and selective enforcement claims, finding that their amended complaint “just barely” alleged that were treated differently than their proffered similarly situated comparator. On remand, however, the district court again dismissed the plaintiffs’ claims on the basis that their proffered comparator was not similarly situated enough to support their discrimination claims. The plaintiffs appealed again to the Second Circuit Court of Appeals, and in its second decision in 2023, the court affirmed the dismissal of the plaintiffs’ equal protection claims.

In opposition to the defendants’ motion for summary judgment and in their appeal to the Second Circuit, the plaintiffs emphasized two incidents at one of their jobsites as supporting their selective enforcement claim; on the first date, the building inspector had spoken to a white foreman about several violations but he ultimately declined to issue any fines, while on the second date, when the white foreman was not present, the building inspector did issue fines. As the defendants argued, however, these incidents had not been included in the plaintiffs’ amended complaint, which instead identified a subsequent incident after the date when the violations were issued as the relevant comparator.

The Second Circuit agreed with the defendants and found that the plaintiffs were bound by the allegations in their amended complaint and were barred from raising a new theory of selective enforcement at the summary judgment stage or on appeal. As the court explained: “When a party fails to explain or reconcile inconsistent and contradictory statements between a  party’s complaint and opposition to summary judgment, such statements can ‘transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact to be decided by a jury.'”

As for the proffered comparator in the plaintiffs’ amended complaint, the court agreed with the district court’s finding that the plaintiffs had failed to establish that the circumstances were reasonably similar to the circumstances when the building inspector issued violations to them. The plaintiffs offered no details regarding the relevant jobsite conditions showing that they were materially the same on both occasions, and even if they had shown the circumstances were similar, the court noted that when the building inspector revisited the site after the date when he issued the violations, he could not have issued any additional violations because that visit occurred during the prescribed time period that was allotted for the violations to be cured. The court therefore affirmed the dismissal of the plaintiffs’ selective enforcement claims.

With no federal claims remaining, the court also affirmed the district court’s decision not to exercise supplemental jurisdiction, finding that the district court properly considered that the lengthy pendency of the case and the district court’s familiarity with the issues did not warrant retaining jurisdiction over a lone state claim.

Hu v. City of New York, 2023 U.S. App. LEXIS 12318 (2d Cir. May 19, 2023)