Posted by: Patricia Salkin | August 26, 2015

Fed. Dist. Court in NY Dismisses Allegations that the Mayor and Village of Highland Falls Discriminated Against the Clientele of a Catering Hall in Enforcement

Plaintiff, Tower Properties LLC, a limited liability company organized under the laws of the State of New York, operated Nicoles catering hall located in Highland Falls, New York. Plaintiff brought an action pursuant to 42 U.S.C. §§ 1982 and 1983 against Defendants Village of Highland Falls and Mayor Patrick Flynn, individually and in his official capacity, asserting violations of its First and Fourteenth Amendment rights, as well as its rights to make and enforce contracts, and to purchase, lease, sell, hold and convey real and personal property. Plaintiff alleged that the Village and the Mayor “intentionally embarked on a continuous policy and practice … to harass and shut down Nicoles because of the race of those who came to Nicoles.” Plaintiff asserted four theories of liability under § 1983: Defendants’ violated its constitutional rights of freedom of association, equal protection, and due process, as well as its statutory rights under § 1981. Defendants made a motion to dismiss the Second Amended Complaint and to disqualify Plaintiff’s counsel.

Plaintiff first alleged that Defendants’ interfered with its minority clientele’s right to associate at its catering hall. However, Plaintiff did not allege that any of the events at its catering hall were held for the purpose of engaging in protected speech, assembly, or to petition for the redress of grievances, which would warrant First Amendment protection as “expressive association.” Although Plaintiff argued that Defendants’ actions infringed on its clientele’s rights to express their religion at their marriage celebrations-allegedly implicating protections for both expressive and intimate association, Plaintiff’s complaint was devoid of any allegations to support such a claim. As such, the freedom of association claim was dismissed.

Plaintiff’s second theory of liability under § 1983 was premised on the Defendants’ alleged selective enforcement of the Live Entertainment Statute and its 2 a.m. curfew against Plaintiff but not against similarly situated White Establishments, in violation of the Equal Protection Clause of the Fourteenth Amendment. Here, the class-of-one standard was met because the SAC raised allegations sufficient to satisfy this standard. Plaintiff’s allegations demonstrated that the White Establishments, five bars located in Highland Falls, are roughly equivalent to the Plaintiff-each establishment has live entertainment at its facility from time to time; plays music up to and at times past the 2 a.m. curfew; serves alcohol; and has a history of altercations on its premises. However, the claim was based upon the race of its clientele, a particular group, and was therefore not be analyzed under a “class-of-one” theory. Under a theory of selective enforcement, the court found that Plaintiff had not alleged that the White Establishments were providing live entertainment without the requisite permit at the same time Plaintiff received its violation notice, and therefore could not claim that the other establishments were treated differently by the Defendants.

In its due process claim, Plaintiff’s alleged interference with its “ability to use and enjoy its real property” and its “liberty right in being prevented from pursuing its catering and bar business.” However, because Plaintiff was still able to maintain its business despite Defendants’ purported harassment, Plaintiff had not sufficiently plead the deprivation of any property right. Despite this, because the Plaintiff alleged that is closed Nicoles as a result of this discrimination, the court granted Plaintiff the opportunity to amend the SAC to state a valid claim for a violation of the Due Process Clause. The claims under § 1981 and § 1982, were likewise dismissed since plaintiff merely alleged possible loss of future opportunities with unnamed persons, rather than the loss of an identified business relationship that was the subject of interference.

Finally, Defendants moved to disqualify Mr. Feigelson as Plaintiff’s counsel on the basis that Mr. Feigelson “is listed as an involved person on all of the police reports and will likely be called to testify about these incidents.” This motion failed because Mr. Feigelson stated that he has no knowledge concerning these incidents, and the court found it would be highly unlikely he would be called as a witness related to these incidents. His disqualification was therefore improper on this basis.

Tower Properties LLC v Village of Highland Falls, 2015 WL 4124499 (SDNY 7/7/2015)
The opinion can be accessed at:

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