The opinion of the court was delivered by: LEISURE
LEISURE, District Judge :
Plaintiff, the Port Chester Yacht Club, Inc. (hereinafter the "Yacht Club") commenced this action (Club v. Iasillo) in federal court against the Village of Port Chester (hereinafter the "Village"), its Mayor, Trustees, Manager, Corporation Counsel and Attorney in their official and individual capacities, seeking injunctive and monetary relief. The Yacht Club alleges that defendants deprived it of certain civil rights secured under the First, Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States in violation of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, 1986. The complaint also alleges pendent state tort and breach of contract claims against the defendants. Jurisdiction is based on both federal question jurisdiction 28 U.S.C. § 1331, and civil rights jurisdiction, 28 U.S.C. § 1343.
This is the Yacht Club's second attempt to litigate in federal court its objections to the Village's Harbor Redevelopment Plan (hereinafter the "Plan"). Previously, in Village of Port Chester v. Port Chester Yacht Club, Inc., 598 F. Supp. 663 (S.D.N.Y. 1984) (Village v. Club), the Yacht Club unsuccessfully tried to remove to federal court a state summary proceeding action. The underlying facts and dispute of both Village v. Club and Club v. Iasillo are ostensibly the same.
The Yacht Club was incorporated in 1938 under N.Y. State's Membership Corporation Law and has leased from the Village four acres of land adjacent to Long Island Sound in the Village of Port Chester for approximately fifty-five years. During this time the Club made numerous capital improvements on the property, including the construction of buildings and a launching ramp, installation of a retaining wall and driving piles, and dredging a portion of Port Chester harbor. Since 1975, the Yacht Club has occupied the property pursuant to a lease that is due to expire by its terms in 1995.
In May 1981, the Village's Board of Trustees commissioned the preparation of an Urban Renewal Plan for the Harbor Redevelopment Area. The area of the redevelopment plan includes the property leased to the Yacht Club. Between May 1981 and March 1983, the Village conducted studies to investigate the Plan's impact on the Village and its inhabitants. In addition, the Village conducted several public hearings in which residents, including members of the Yacht Club, expressed their opposition to the Plan. Nevertheless, the Board of Trustees adopted the Plan at a public hearing in March 1983.
On October 26, 1984, one week after the commencement of Club v. Iasillo, the Village commenced a summary eviction proceeding (Village v. Club) in the Town of Rye Justice Court, County of Westchester pursuant to Article 7 of the New York Real Property Actions and Proceedings Law, seeking to evict the Yacht Club from the property. The Village alleges as a grounds for eviction that the lease agreement, dated April 12, 1979
, is illegal, void and of no effect; that the Yacht Club is a mere licensee whose license has been revoked; and that the Yacht Club has refused to vacate the property after receiving a notice dated October 9, 1984 that the Village had revoked its consent to occupy the premises. Village of Port Chester v. Port Chester Yacht Club, Inc., 598 F. Supp. at 664. Furthermore, the Village contends that even if the lease is valid, the Village still has a right to the property under its power of eminent domain.
The Yacht Club maintains, inter alia, that the lease is valid and the Village has no right to exercise its eminent domain power because the redevelopment plan is really a private, not a public use.
The Yacht Club timely removed Village v. Club to this court hoping to consolidate Village v. Club and Club v. Iasillo into one judicial proceeding. this request was refused and Village v. Club was remanded to state court where it is presently being litigated. 598 F. Supp. at 666.
The Village has moved to dismiss the remaining action, Club v. Iasillo, pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and Rule 56 for summary judgment. Each side has submitted affidavits, legal memoranda and other documents supporting their respective positions. Discovery has not been conducted. Due to the numerous factual disputes, defendant's request for summary judgment is denied. However, based on the papers submitted, the constitutional and civil rights claims alleged in counts I, II and III are dismissed without prejudice, for failure to state claims upon which relief may be granted, and the pendent state tort and breach of contract claims alleged in counts IV though X are dismissed for lack of subject matter jurisdiction.
On a defendant's motion to dismiss a complaint pursuant to Rule 12(b)(6), the court must accept the allegations of the complaint as true and should not grant the motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975) (applying principle to suit brought pursuant to §§ 1983, 1985)
The Yacht Club's alleged deprivation of its First and Fourth Amendment rights are unsupported in the complaint and accompanying affidavits and therefore are dismissed. However, the complaint does discuss in broad language that the Yacht Club was deprived of its rights secured by the Fifth Amendment of the Constitution.
Apparently, the Yacht Club is claiming that it is being deprived of its property without due process of law and without just compensation. Since the property interest protected by the Fifth Amendment applies to the State through the Fourteenth Amendment, Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 66 L. Ed. 2d 358, 101 S. Ct. 446 (1980), Penn Central Transportation Co. v. New York City, 438 U.S. 104, 122,57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978), Chicago B. & Q. Railroad Co. v. Chicago, 166 U.S. 226, 239, 41 L. Ed. 979, 17 S. Ct. 581 (1897), the Yacht Club asserts that the complaint states a cause of action under § 1983.
In this case, plaintiff must show three elements to support a claim of an unconstitutional taking in violation of the Fourteenth Amendment and § 1983: (1) a property interest (2) that has been taken under the color of state law (3) without due process or just compensation. See Parratt v. Taylor, 451 U.S. 527, 535-37, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Kohlasch v. New York State Thruway Authority, 460 F. Supp. 956, 960 (S.D.N.Y. 1978) (Weinfeld, J.). The first two requirements are met in this case. Unquestionably, the Village is acting under the color of state law, and for the purposes of this motion the Club's allegations of possessing a valid ...