Posted by: Patricia Salkin | April 15, 2015

Fed. District Court in New York Denies Motion to Dismiss Retaliation Claim Against Town Based on Evidence Plaintiff was Singled Out and Being Suffocated with Red Tape, but Dismisses Other Claims

Steven Sherman, a real estate developer, initially filed this suit on January 12, 2012, in the Supreme Court for Orange County, New York, alleging that for over the previous decade, the Town wrongfully obstructed his efforts to develop MareBrook, a 398 acre parcel of land he purchased in 2001. Plaintiff claimed that by implementing a series of amendments to the local zoning laws that specifically targeted his project, and otherwise engaging in conduct that frustrated his ability to even begin development, the Town violated his rights to freedom of religion, freedom to petition, substantive due process, procedural due process, equal protection, and his right not to have his property taken without just compensation under the federal and New York state constitutions. Pending before the Court in this case was the Town’s renewed motion to dismiss following the Second Circuit’s reversal of this Court’s determination that Sherman’s federal takings claim was unripe.

As a preliminary matter, the Court noted that Sherman incorrectly relied on the Second Circuit’s conclusion that his takings claim constitutes a continuing violation. Under the continuing violation doctrine, where a plaintiff can demonstrate an ongoing or continuing violation of his federally protected rights, the plaintiff is entitled to bring suit challenging all conduct that was part of the violation, even conduct that occurred outside the limitations period. Under federal law, a claim arising under § 1983 accrues when the plaintiff knows or has reason to know of the injury which is the basis of his action. The court found that in order for Sherman to be entitled to the benefit of the tolling provision of § 1367(d), Sherman I must have been dismissed pursuant to § 1367(c). Since there was no dispute that Sherman I was voluntarily dismissed pursuant to Fed.R.Civ.P. 41(a)(1) (A)(i), a circumstance not contemplated by § 1367(c), Sherman’s federal constitutional claims must have accrued on or after January 12, 2009. 

As to the retaliation claim, the Circuit Court’s opinion that the Town “singled out Sherman’s development, suffocating him with red tape” over the course of a decade to “make sure he could never succeed in developing MareBrook,” was sufficient to show that the defendants’ conduct was motivated by or substantially caused by [the plaintiff’s] exercise of speech. Evidence that Village repeatedly refused the plaintiffs’ requests to enforce zoning codes and ordinances over a nine-year period was sufficient to constitute a continuing violation. Conversely, Sherman’s due process claims did not constitute a continuing violation because they were based on discrete acts by the Town that were readily discerned by Sherman at the time the acts were taken. Finally, because Sherman’s complaints concerned the exercise of discretionary acts, the Town was entitled to immunity from his state law claims. Therefore, Defendants’ motion to dismiss was granted in part and denied in part.

 Sherman v Town of Chester, 2015 WL 1473430 (SDNY 3/31/2015)

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