Posted by: Patricia Salkin | October 5, 2020

Fed. Dist. Court in NY Grants Motion to Dismiss of Claims Arising from Building Without a Permit and Town Code Violation Criminal Summonses

This post was authored by Matthew Loescher, Esq. 

Plaintiff purchased a property comprised of one residential home, which plaintiff improved over time with a side addition, and five apartments on the property to be used for low-income housing. Non-party John Fenton, a Town Code Enforcement Officer at the time, served plaintiff with a criminal summonses for plaintiff’s alleged failure to remedy a Town zoning law violation for converting a structure from an approved use, a two-family dwelling, to a prohibited use—a multi-family dwelling. A second criminal summons was issued for a Town code violation for open storage of rubbish and debris. One year later, Town Code Enforcement Officer Segelken served plaintiff with two additional criminal summonses for two Town code violations for building without a building permit and another Town code violation for open storage of rubbish and debris. Justice Moore issued a judgment of conviction, which ordered plaintiff to pay several fines and remedy the Town code and zoning law violations by November 21, 2017.

 On December 31, 2018, Justice Moore adjudged plaintiff in willful disobedience of the judgment of conviction and order of conditional discharge. On January 28, 2019, Justice Moore sentenced plaintiff to thirty days in jail for criminal contempt. In this case, Plaintiff alleged that he received this jail sentence after Segelken served him with a notice to appear in court, and also after Segelken prosecuted him “without any corroborating witnesses until plaintiff was found in criminal contempt.”

 Defendants first contended that plaintiff failed plausibly to allege a First Amendment claim because the complaint did not mention any protected speech or expression or how defendants’ conduct chilled plaintiff’s exercise of such activity. In his opposition, plaintiff neither responded to defendants’ First Amendment arguments nor set forth any arguments supporting the complaint’s conclusory allegations respecting his First Amendment rights. Accordingly, the court found plaintiff had abandoned his First Amendment claims.

 Defendants next argued that plaintiff failed plausibly to state a claim because the U.N. Charter did not confer an individual right to sue. In his opposition, plaintiff failed to address this argument. Accordingly, the court held that plaintiff abandoned any claims respecting the U.N. Charter. Similarly – as plaintiff did not contest defendants’ argument that he failed to plausibly allege defendants discriminated against him on account of his race or ethnicity, or interfered with his ability to make or enforce contracts – plaintiff was likewise found to have abandoned any potential Section 1981 claim.

 As to the equal protection claim, plaintiff’s criminal proceeding was initiated because of his failure to comply with certain Town code and zoning laws. The court noted, however, that plaintiff did not receive a thirty-jail sentence as a result of his failure to comply with Town law, but as a direct result of his failure to comply with Justice Moore’s order of conditional discharge, which required plaintiff to redress the Town code and zoning violations. Therefore, plaintiff’s failure to comply with a court order was what prompted his jail sentence. Accordingly, plaintiff’s allegation that he was imprisoned for violations of Town law was dismissed.

 Plaintiff’s remaining causes of action failed for being conclusory, and the court declined to exercise supplemental jurisdiction over plaintiff’s state law claims. Consequently, the Town’s motion to dismiss was granted.

 Bonadies v Town of Amenia, 2020 WL 5209510 (NDNY 9/31/2020)

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