Posted by: Patricia Salkin | February 26, 2014

Fed Dist Ct in NY Dismisses Section 1983 Claim of Selective Enforcement Due to Insufficient Evidence of “Deliberate Indifference” Over Home Occupation

Plaintiff Robin Hall owned and operated a taxi which she used to drive for the Checker Cab Company. Hall received a notice that an inspection was completed on March 22, 2010, and that she was found to be in violation of an “un-permitted home use.” Plaintiff further alleged that she is the “sole female homeowner in the Town of Brighton who owns a clearly marked vehicle located in her driveway in plain sight.” She identified three individuals that she alleged were male homeowners in Brighton which had clearly marked business vehicles parked in their driveways in plain sight. The Complaint alleges these individuals were similarly situated but were not subject to the same treatment by Brighton or Fire Marshal Roth.

The court found that the plaintiff failed to plead any substantial facts indicating that Brighton’s alleged failure to properly train or supervise its employees was so egregious as to amount to “deliberate indifference” to the rights of the plaintiff. Even though Hall contended that Fire Marshal Roth’s activity was so evident that compliance could be thought of as a policy or custom, there were insufficient facts to support this conclusion. Mere assertions without allegations of fact to at least infer a custom or policy are insufficient to withstand a motion to dismiss. Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.1993).

Hall v. Town of Brighton, 2014 WL 340106 (W.D.N.Y. 1/30/2014)

The opinion can be accessed at: http://docs.justia.com/cases/federal/district-courts/new-york/nywdce/6:2013cv06155/93425/20/0.pdf?1391230831


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