Posted by: Patricia Salkin | December 13, 2014

Fed. Dist. Court in NY Permits Retaliation Claim to Continue Following Posting of YouTube Video Criticizing Proposed Housing Project

In protracted litigation, Plaintiffs John and Jennifer LaVertu alleged that defendant Town of Huntington retaliated against them by ticketing them for violating the Town’s building code after plaintiffs posted a YouTube video criticizing defendant’s proposed Avalon Bay housing project. By Report and Recommendation Magistrate Judge Wall recommended that defendant’s motion be granted as to plaintiffs’ First Amendment and Due Process claims, denied as to their Monell and Equal Protection claims, and that plaintiffs be granted leave to amend their complaint.

For the First Amendment Claim, the court found that the amended claim was not futile. The Plaintiffs sufficiently alleges that they engaged in protected free speech when they criticized various Town officials by means of a YouTube video, and adequately pled that the adverse conduct they experienced in terms of receiving various violations on their home from the Town was motivated by retaliatory intent: the Town’s revocation of the Letter–in–Lieu and Declaration of Delinquency. As to the due process claim, because Plaintiffs’ failed to properly allege facts sufficient to confer standing was after the Court’s prior analysis of the issue, it was found to be “repeated” within the meaning of Fed.R.Civ.P. 15 and the denial of leave to replead was found to be with prejudice. Plaintiff’s motion to amend the complaint was therefore granted in part and denied in part.

LaVertu v Town of Huntington, 2014 WL 6682262 (EDNY 11/24/2014)

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