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RODRIGUES v. VILLAGE OF LARCHMONT

May 7, 1985

JOHN RODRIGUES d/b/a; TONY'S NURSERIES, Plaintiff, against THE VILLAGE OF LARCHMONT, NEW YORK; MARTIN S. QUIGLEY; RICHARD M. McCARTHY; MARGARET PICCONE; MIRIAM CURNIN; MARK SCHEFFLER; FREDERICK KELLOGG, JR.; LEWELL ROSENTHAL; JOSEPH P. BOHAN, JR.; ALAN W. KATZENSTEIN; EDWARD T. BURNS; JANE BRAUS, and LAWRENCE LOWY, Defendants


The opinion of the court was delivered by: EDELSTEIN

OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiff, John Rodrigues ("Rodrigues"), brought this civil action against the Village of Larchmont (the "Village") and a number of Village officials. *fn1" The poorly drafted complaint *fn2" alleges a number of constitutional deprivations including a violation of "plaintiff's constitutional and common law right to due process of law and equal protection of the law," a violation of plaintiff's fifth and fourteenth amendment rights to due process of law and equal protection, a conspiracy to deny him the rights guaranteed to him under the Constitution and laws of the United States, and a violation of the privileges and immunities clause of the United States Constitution.

 Defendants moved for summary judgment contending that plaintiff had failed to state a claim for relief under 42 U.S.C. ยงยง 1981, 1982, 1983 and 1985(3) and that defenses were applicable should the court find a claim to be present. Plaintiff has specifically abandoned any claim asserted under Sections 1981 and 1982. Plaintiff failed to respond to defendants' contentions regarding the Section 1985(3) claim and these allegations shall also be considered to have been abandoned. Thus, only the claim under Section 1983 remains.

 BACKGROUND

 Rodrigues is a caucasion male of Portuguese ancestry who owns and operates Tony's Nurseries ("Tony's"), a tree and plant nursery in Larchmont, New York. Plaintiff's Section 1983 claim centers around the treatment of his business by the Village and its officials over a twenty year period. These claims will be set forth in the footnote *fn3" and referred to by number throughout this opinion to facilitate the analysis of defendants' motion.

 DISCUSSION

 Defendants contend that plaintiff has failed to state a claim under Section 1983, that defendants are immune from liability for the acts alleged by plaintiff, that relief for a number of plaintiff's allegations is barred by the statute of limitations, and that the Village is not liable for punitive damages.

 A two step analysis will be used to resolve this motion. The first step is to determine whether the facts set forth by plaintiff state a claim under Section 1983; and the second step is to determine whether any of these claims are subject to the defenses asserted by defendants.

 I. STANDARD APPLIED TO A MOTION FOR SUMMARY JUDGMENT.

 Summary judgment may be granted only where there are no genuine issues of material fact. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962). All evidence submitted to the court must be viewed in the light most favorable to the plaintiff. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). *fn4" The standard is strictly construed in this circuit. United States v. United Scenic Artists Local 829 of the Brotherhood of Painters, Decorators & Paperhangers of America, 27 F.R.D. 499, 501 (S.D.N.Y. 1961). The court finds that partial summary judgment is appropriate because accepting the plaintiff's statements of fact as true, defendants are entitled to judgment as a matter of law on all but one of plaintiff's claims.

 II. THE CLAIMS.

 Plaintiff makes a number of allegations regarding the conduct of the Village and its officials. In order to succeed on a Section 1983 claim, "plaintiffs must prove both 1) deprivation of a federal constitutional or legal right . . . which 2) resulted from 'the sort of abuse of government power that is necessary to raise an ordinary tort by a government agent to the stature of a violation of the Constitution.'" Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980), cert. denied, 451 U.S. 1019, 101 S. Ct. 3009, 69 L. Ed. 2d 391 (1981) (quoting Turpin v. Mailet, 579 F.2d 152, 169 (2d Cir.) (en banc) (Oakes, J., concurring), cert. denied, 439 U.S. 988, 99 S. Ct. 586, 58 L. Ed. 2d 662 (1978)).

 A. OBVIOUS STATE LAW ACTIONS

 Plaintiff claims that defendants have refused to honor bids (claim 1); have mixed glass into top soil (claim 2); have advocated a boycott of plaintiff's business (claim 8); have refused to do any other business with plaintiff (claim 11). The mere fact that a legally cognizable injury is inflicted by a state official acting under color of state law does not establish a constitutional violation so as to authorize a claim under Section 1983. Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). These claims are ...


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