Posted by: Patricia Salkin | November 10, 2019

Fed. Dist. Court in NY Finds Questions of Fact Existed in Procedural Due Process and Conspiracy Claims Brought by Restaurant Against Town Officials

This post was authored by Matthew Loeser, Esq.

Plaintiffs Sandra Leung and Hsaio Chun Wu were owners and landlords of Al Dente restaurant located at Two Spring Street, Oyster Bay, New York, which was located across the street from Town Hall. The town employees made up approximately 75 percent of Al Dente’s lunch crowd, and attended Al Dente for office parties and other group celebrations. Commissioner of the Department of Planning and Development Frederick P. Ippolito allegedly barred employees from dining there and sent the other individual Defendants to the Premises to again falsely cite the Premises for Town Code violations and issued an “Emergency Safeguard Notification” as a false pretext for shutting down Al Dente. The Plaintiffs also claimed that the eventual padlocking of Al Dente forced the restaurant out of business: costing them $4,300 in monthly rent.

In February 2014, Al Dente and Morizio sued the Defendants in an action before Judge Leonard D. Wexler, raising a procedural due process claim, a substantive due process claim, and an equal protection claim. The jury found that Ippolito violated the Al Dente Plaintiffs’ procedural due process rights; that Ippolito and Blanchard violated their substantive due process rights; that Al Dente had proven a claim for municipal liability against Ippolito; that they had proven that Ippolito was the final policy maker of the Town; and that he directly committed or commanded a constitutional violation. In this case, Plaintiffs raised three claims: a Fourteenth Amendment procedural due process claim, a Fourteenth Amendment substantive due process claim, and a claim that the Defendants conspired to violate their civil rights.

As to the procedural due process claim, the parties did not dispute that the Plaintiffs had a property interest in the Premises. As to the September 2013 Citations, the Defendants did not contest that the Town failed to provide the Plaintiffs with a post-deprivation hearing after the Plaintiffs had requested one. The court found that this lack of a post-deprivation proceeding could constitute a denial of due process, and therefore denied the Defendants’ motion for summary judgment as to the September 2013 Citations.

Plaintiffs next claimed that they had raised genuine issues of fact as to substantive due process because they possessed a property interest—the enjoyment and ownership of the subject premises—and they demonstrated that the Defendants’ “unlawful, arbitrary and capricious conduct” was unrelated to any Town Code violations. In response, Defendants presented sworn statements that the premises contained violations of the Town Code, violations that the Town recorded as part of the May 2012 Citations, and violations that remained largely uncorrected at the time of the September 2013 Citations. The court determined that these ongoing Town Code violations made it uncertain that the Plaintiffs were entitled to the benefit of collecting rent. Accordingly, the Defendants’ motion for summary judgment was granted as to the substantive due process claim, due to Plaintiffs’ failure to allege a sufficient property interest.

The court also denied the Plaintiffs’ summary judgment motion as to the conspiracy claim. Plaintiffs submitted evidence that Town employees were not acting in accordance with their official duties. Specifically, they presented testimony that the dangerous conditions at the premises had not been remedied at the time the Town removed the padlocks, and that Town employees did not inspect the upstairs apartment on the premises to see what dangerous conditions, if any, existed there. This testimony by a Town employee directly conflicted with his affidavit, in which he stated that it would be a dereliction of duty not to consider the safety of the upstairs tenant, or to let safety issues at Al Dente go unchecked. As such, the court found that questions of fact remained as to the Defendants’ motives in padlocking Al Dente.

Lastly, the court held that because there were questions as to whether the Defendants had an improper motive, it would be inappropriate to grant qualified immunity at this stage in the proceedings.

Leung v Town of Oyster Bay, 2019 WL 5309995 (EDNY 10/21/2019)

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