Posted by: Patricia Salkin | May 15, 2016

Fed. Dist. Court in NY Dismisses Due Process and Equal Protection Claims Arising from Building Permit Denial

Plaintiff Nardiello is the owner and sole director and officer of Plaintiff Two By Four, a dog-walking business formed in 2010 and operated out of her home. As her business grew she received violations from the Town for operating a business out of her home. In 2012, Plaintiff Two By Four leased a premises at 34 South Street, Oyster Bay, NY, in an area zoned for light industry. Plaintiff alleged that in retaliation for Plaintiff refusing Commissioner Ippolito’s advances at her prior job, Ippolito said he was “not giving her a permit.” In December 2012, Plaintiff applied for a building permit to erect a one story prefabricated barn and renovate an existing free-standing building on the Premises. Before getting a response on the permit application, Plaintiff erected the structure that was the subject of the application, “with the full expectation” that Ippolito would issue the permit before the building was complete. The Town issued misdemeanor violations against Two By Four for erecting a building without a permit and occupying the building without a certificate of occupancy. In 2014, still without a ruling on Plaintiffs’ application, the Commissioner issued “Notices of Dangerous Conditions” pursuant to his emergency powers, directing that the Premises by “secured, boarded, fenced, sealed or otherwise made safe,” even though no investigations or reports had been made or filed to warrant such a notice. Plaintiffs alleged this was a conspiracy by Ippolito and other Defendant Town officials to shut down or injure Two By Four.

In 2014, Two By Four initiated an Article 78 proceeding in New York Supreme Court in Nassau County to enjoin the Commissioner from exceeding his authority and to compel him to act on Plaintiffs’ application. The court granted a temporary restraining order and directed that an inspection of the Premises be conducted. The inspection was conducted by Defendant Blanchard, who, Plaintiffs alleged, then conspired with the other Defendants to concoct false allegations. In this case Plaintiffs claimed that Defendants violated their due process and equal protection rights under the Fourteenth Amendment, violated their First Amendment right to petition, and conspired to preclude Plaintiffs from operating its business in violation of 42 U.S.C. §§ 1983 and 1985.

The court first noted that where, as here there is an adequate state post-deprivation procedure such as an Article 78 proceeding to remedy a random, arbitrary deprivation of property or liberty, there is no constitutional violation (and therefore no § 1983 claim). Thus, regardless of whether there was a property interest that was deprived, the court found that the availability of the Article 78 proceeding defeats Plaintiffs’ procedural due process claim. As to the substantive due process claim, the court found there was no “clear entitlement” to the permit, as the Town had to review and make a compliance and safety determination. Thus, there was no federal protected property right in a state or local permit.

Likewise, Plaintiffs’ equal protection claim failed as it did not allege with sufficient specificity how others were treated, who those others were, or how their treatment varied from the treatment Plaintiffs received. Next, even accepting Plaintiffs’ allegations as true, the claim for violation of the First Amendment right of petition also failed, since the complaint itself alleged that Plaintiffs had court review. Plaintiffs initiated an Article 78 proceeding and were granted temporary restraining order enjoining the Commissioner from acting further on the dangerous building notice until an inspection occurred. Finally, the court found that Plaintiffs failed to adequately allege a claim under § 1985(2), as there was insufficient evidence presented that Defendants intended to deny Plaintiffs “equal protection of the laws” or were motivated by “discriminatory ‘racial, ethnic, or class-based animus.”’

Nardiello v. Town of Oyster Bay, 2016 WL 1464557 (EDNY 4/12/2016)


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