Posted by: Patricia Salkin | December 3, 2016

Fed. Dist. Court in NY Dismisses of Discrimination Claims Against Town

Plaintiff Ovadia Avraham filed a civil rights action alleging that defendants were participants in a decades-long conspiracy whose primary object had been to prevent plaintiff from developing a parcel of waterfront land situated adjacent to the Lakeshore Yacht and Country Club (the “LYCC” or the “Club”) in Cicero, New York. Avraham’s initial seventy-six page complaint sought injunctive relief as well as millions of dollars in compensatory and punitive damages. The same day he instituted this lawsuit, plaintiff also filed two requests to “Remove/Transfer” certain pending state court actions in which he was a named defendant in an effort to consolidate those state actions as part of this federal one. A few days later, plaintiff filed two emergency motions seeking preliminary injunctive relief. On November 9, 2015, a Decision and Order was issued denying all four of Avraham’s pending motions, and concluding that plaintiff’s removal petitions were procedurally defective and that his requests for injunctive relief lacked the requisite supporting documentation. On April 21, 2016, Avraham moved to amend his complaint, submitting a fifty-six page proposed amended pleading along with seven short exhibits. Finally, on May 17, 2016, Avraham further supported his request for leave to amend with a sixty-eight page affirmation that described in greater detail the allegedly unlawful conduct on which his proposed amended complaint was based.

Avraham’s proposed amended complaint indicated that his civil RICO claims were based on mail and/or wire fraud. However, the vast majority of conduct Avraham described in his proposed pleadings, as well as in his affirmation, was time-barred by the four-year statute of limitations applicable to civil RICO claims. Additionally, Rule 9(b) requires allegations of fraud, such as those surrounding the acts on which Avraham’s proposed RICO claims were based, to be “stated with particularity.” As plaintiff’s RICO claims were only stated in conclusory fashion, the court dismissed them. Avraham’s proposed amended complaint also alleged defendants “engaged in hate crimes” in violation of New York Penal Law; however, the court noted that “plaintiff has no private right of action to enforce state criminal statutes and lacks the authority to institute a criminal investigation.”

The court next found that the municipal defendants who may have been empowered to interfere with Avraham’s milling supplier were not the defendants responsible for the racial and ethnic slurs that were directed toward plaintiff in the late 1990s or early 2000s. The court held that these instances of racial or ethnic animus, which occurred over a period of almost twenty years and are attributed to various identified and unidentified Club members, were not sufficiently connected to these municipal defendants to give rise to a plausible inference of animus. Accordingly, plaintiff’s § 1981 claims were also dismissed.

Avraham also alleged claims brought pursuant to 42 U.S.C. § 1983 based on the Equal Protection and Due Process clauses of the Fourteenth Amendment. As with his prior claims, the court found that plaintiff failed to identify which conduct was attributable to one or more of the six different defendants named in his proposed pleading, or how one or more of these defendants singled plaintiff out for this treatment without a rational basis on which to do so. Thus, plaintiff’s equal protection claims were dismissed. Moreover, without any additional evidence, the court found that “the fact that the permit could have been denied on non-arbitrary grounds defeats the federal due process claim.” Lastly, Avraham’s permit-related claims focused on allegedly improper conduct by Town of Cicero officials and were not sufficiently connected to any alleged agreement to act in concert with LYCC members. Therefore, his claim based on a conspiracy to violate plaintiff’s constitutional rights was also dismissed.

Because none of these filings were sufficient to state a claim, the court held that permitting another opportunity to amend was unlikely to be productive. Accordingly, leave to replead was not granted.

Avraham v Lakeshore Yacht & Country Club, 2016 WL 6585589 (NDNY 11/7/2016)


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