Posted by: Patricia Salkin | August 21, 2019

Fed. Dist. Court in NY Denies Motion to Vacate Due to Failure to Identify Any Similarly Situated Comparators in Alleged Discrimination Case

This post was authored by Matthew Loeser, Esq.

In 2015, Plaintiffs TAL Properties of Pomona, LLC, and Avrohom Manes purchased a residential home. In January 2016, Plaintiffs made repairs to the property, and Village Building Inspector Louis Zummo inspected it and advised Plaintiffs that the repairs were done in accordance with applicable building codes and regulations. Despite Plaintiffs’ compliance, and despite Zummo’s comments that a certificate of occupancy (“CO”) would be issued, Defendants Yagel and Ulman directed Zummo to not issue the CO. Yagel, acting by and through Ulman, claimed that a prior owner of the Property owed the Village $6,379.34, and demanded payment from Plaintiffs in exchange for the CO. Additionally, following the sale of the property, the Village allegedly threatened to withdraw the CO unless Plaintiffs signed an agreement acknowledging that the road accessing the property was not a Village road and that maintenance of the road was the sole responsibility of the property owner. Plaintiffs further alleged that the Village did not require other property owners to sign similar agreements.

Plaintiffs next contended that evidence newly-revealed in the Human Rights Report, revealed evidence of discrimination against Jewish residents of Pomona that existed at the time their SAC was dismissed. Defendants did not dispute this assertion; however, despite all of the newly discovered evidence that Plaintiffs offered, the court found they failed to identify any similarly situated comparators or any substantial burdens on their free exercise of religion. Accordingly, judge CATHY SEIBEL denied Plaintiffs’ motion to vacate her previous judgment or reopen the case under Rule 60(b)(2).

Plaintiffs next argued that the court should grant them relief from judgment under Rule 60(b)(3) based on Defendants’ failure to provide public land and building records in response to Plaintiffs’ FOIL requests, which they claimed prevented them from gathering information on potential comparators. The court found there was no failure to provide discovery here, however, as the case was dismissed before any discovery occurred. While the court noted it was wrong for Defendants to wait until the fifth day to respond to FOIL requests that they could have fulfilled on the spot, that short delay did not substantially imped Plaintiffs’ ability to present their case. Accordingly, Plaintiffs’ motion to vacate judgment and reopen the case was denied.

TAL Properties of Pomona v Village of Pomona, 2019 WL 3287983 (SDNY 7/22/2019)


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