Posted by: Patricia Salkin | October 10, 2018

Second Circuit Court of Appeals Denies Retaliation and Fourteenth Amendment Claims Arising from the Denial of a Hotel’s Renovation Permit

This post was authored by Matthew Loeser, Esq.

Plaintiffs Harenton Hotel, Inc., Randy M. Hare, and E. Properties, LLC appealed from a final judgment awarding summary judgment in favor of defendants on plaintiffs’ federal claims and dismissing their state law claims without prejudice. The case arose from Appellants’ attempt to renovate a 50-room luxury hotel a building in the Village of Warsaw, NY that had served as a nursing home. Although plaintiffs were initially granted a building permit and several variances for the nursing home, that permit expired and Appellants were not granted an extension or a new building permit. After determining that further efforts to obtain approval for the project would be futile, Appellants filed the suit, asserting claims under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment, for denial of equal protection in violation of the Fourteenth Amendment, and asserting state law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and tortious interference with business relationship.
None of the parties disputed that Hare engaged in speech protected by the First Amendment by contacting the New York State Code Enforcement Office for assistance with getting the project permitted, filing an Article 78 proceeding in New York State Supreme Court, and speaking out against defendants at public hearings. However, plaintiffs failed to introduce any evidence that defendants’ actions were motivated or caused by Hare’s protected speech. The record reflected that Hare’s protected speech was a reaction to an ongoing pattern of the Warsaw Attorney and defendant Code Enforcement Officer Daniel Hurlburt requesting more information from Hare, preventing further work on the project, and denying Hare an extension to his existing building permit or a new building permit. Moreover, by Hare’s own admission, defendant Valerie Duell was motivated to act against Hare due to ill will fostered unrelated to Hare’s relevant protected speech taking place.
In their Fourteenth Amendment equal protection class-of-one claim, plaintiffs pointed to three other projects in Warsaw which they contended were similarly situated to the project. The court rejected this claim, finding that plaintiffs failed to set forth any evidence or argument as to how they were similarly situated to the other projects they identified, all of which were significantly smaller and less complex than the 50-room luxury hotel, and all of which were completed within a year without need to extend a building permit. As the aforementioned federal claims were dismissed, the court held that the district court did not abuse its discretion by declining to exercise jurisdiction over the remaining state law claims.
Harenton Hotel, Inc. v Village of Warsaw, 2018 WL 4293328 (2nd Cir.10/10/2018)

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