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PISELLO v. TOWN OF BROOKHAVEN

July 10, 1996

PETER PISELLO and RAINBOW PROPERTY MANAGEMENT CORP., Plaintiffs,
v.
TOWN OF BROOKHAVEN, JOHN LAMURA, individually and as Supervisor of the Town of Brookhaven; EDWARD HENNESSEY, both individually and as a member of the Town Board of Brookhaven; and ANDREW DARK, both individually and as Chief Building Inspector for the Town of Brookhaven, Defendants.



The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 This lawsuit arises from the claims of the plaintiffs, Peter Pisello and Rainbow Property Management Corp. ("Rainbow," collectively "Pisello" or the "plaintiff") that the defendants, the Town of Brookhaven (the "Town"), John LaMura ("LaMura"), Edward Hennessey ("Hennessey"), and Andrew Dark ("Dark," collectively the "defendants") violated their constitutional and common law rights. The gravamen of the plaintiff's allegations is that the defendants discriminated against him because of his role in locating minorities in public housing in the Shirley/Mastic area of Suffolk County, New York.

 I. Background

 The following facts are taken from the Amended Complaint. Rainbow Property Management Corp. is a New York corporation which rents offices located at 1402 Montauk Highway in Mastic, New York. Peter Pisello is a resident of Mastic, New York and is an officer, director, and the sole Rainbow shareholder. Rainbow is engaged in the "management and leasing of rental properties in the Shirley/Mastic area located within the Town of Brookhaven." The lion's share of Rainbow's business involves locating African American and Hispanic individuals who receive government assistance in rental housing.

 The defendant Town of Brookhaven, a municipality organized under the laws of the State of New York, is located in Suffolk County. The defendant John LaMura, at all times relevant to this litigation was the Supervisor of the Town of Brookhaven. Edward Hennessey was a member of the Town Council and Andrew Dark was the Town's Chief Building Inspector.

 As stated above, the plaintiff is engaged in the leasing and management of rental properties in the Shirley/Mastic area of the Town of Brookhaven. According to the Amended Complaint, his success resulted in a "strong backlash from the existing, predominately Caucasian, members of the Shirley/Mastic community, and for a number of years certain [local] businesses and individuals . . . have openly expressed contempt for the plaintiff because of his [business]." Part of this "backlash" includes being "blackballed" from the local chamber of commerce, the president of which, Pat Peluso, owns a competing real estate brokerage firm. Moreover, the plaintiff has been the subject of numerous physical threats and harassment by members of the community which culminated in the fire bombing of his offices.

 After the premises were destroyed, the owner, Thomas Brennan ("Brennan") sought to rebuild at the same location. Although Brennan filed the necessary applications, Dark, as the Town's Chief Building Inspector "arbitrarily refused to act" on the applications. The plaintiff pleads upon information and belief that Dark's refusal to process the applications was the result of community policy "adopted and implemented" by the Town Supervisor John LaMura and Councilman Edward Hennessey to curtail the influx of minorities in the Shirley/Mastic area.

 Nevertheless, in December 1994, the building located at 1402 Montauk Highway was reconstructed and the plaintiff was able to resume his business. When this occurred, according to the plaintiff, members of the community sought the aid of defendants LaMura and Hennessey. Specifically, the plaintiff alleges, upon information and belief, that Peluso solicited the aid of Councilman Hennessey, whom he had supported in his bids for elected office, to assist in "forcing [the] plaintiff[] out of business." As a result of this meeting, the defendants conspired against the plaintiff by bringing a civil suit against his landlord for failure to obtain the requisite permits for the leased property. It is alleged that based on that civil suit, the defendants subsequently closed the plaintiff's place of business without notice or a hearing, even though the leased property did not pose a threat to public health or safety.

 According to the Pisello, the defendants further violated his constitutional rights by singling out the minority occupied properties he manages for inspections and by threatening the owners of those properties because they continued to work with the plaintiff. The details of these threats are not identified. On at least one occasion however two properties occupied by African Americans located 125 Patchogue Avenue and 127 Patchogue Avenue in Mastic were singled out for inspection and searched by Town officials including the defendant Hennessey. Although the defendants issued a press release on June 9, 1995 stating that these searches were based on complaints filed with respect to these properties, Pisello alleges that no such complaints were ever made.

 According to the plaintiff, the press release contained the following statement by defendant Hennessey:

 
[Rainbow's] actions in constructing a building and ignoring the Town's permit procedures in the process raises serious questions standards [sic] in their business practices. That is why Rainbow Property Management [sic] are a blight to our communities and a threat to the health and safety of the tenants who are placed there . . . . This action by Rainbow Properties and its principals demonstrate that they conducted their business affairs in complete disregard for the standards of law that are in place, not only to protect social services tenants, but to maintain the integrity of those communities who have endure [sic] slumlord business practices.

 In addition to Hennessey's statement, the same press release contains the following statement by defendant LaMura:

 
Rainbow Properties [sic] Management is the largest property management company for landlords dealing with Social Services clients in the Mastic/Shirley area. For them to represent themselves as experts in this area to their clients while disregarding the Town Code in their own construction project suggests a certain level of contempt for the law.

 According to the Amended Complaint, these statements are false and were made with "malice," "knowledge of their falsity," "reckless disregard for the truth" and "improper motive." Specifically, Pisello alleges that LaMura and Hennessey knew that he was not the owner of the premises located at 1402 Montauk Highway and that he had no connection to that building's construction. In addition, the plaintiff alleges that the defendant Hennessey used his influence to have all social service applications made by minority tenants of the properties managed by Rainbow or other minority applicants using the plaintiff's services forwarded to his office in order to "delay their processing."

 As a result of the defendants' activities, the plaintiff was forced to relocate his business and property owners cancelled their listings and contracts for fear of reprisals with the Town. Pisello seeks $ 660,000 in compensatory damages, $ 2,000,000 in punitive damages and attorneys' fees and costs.

 Based on these facts, the plaintiff alleges constitutional violations of the equal protection clause, substantive and procedural due process, infringement of 42 U.S.C. §§ 1981 and 1985 and a common law claim for defamation. The defendants now move pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings with respect to the entire Amended Complaint. Pisello opposes the defendants motion, arguing that he has adequately alleged his claims and cross moves for leave to serve a Second Amended Complaint to add a cause of action pursuant to the Fair Housing Act, 42 U.S.C. §§ 3604, 3617.

 II. Discussion

 A. The standard for judgment on the pleadings

 Judgment on the pleadings is appropriate where material facts are undisputed and a judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). In considering a motion for judgment on the pleadings, the Court must accept as true all of the non-movant's well pleaded factual allegations, and draw all reasonable inferences therefrom in favor of the non-movant. Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994); DeSantis v. United States, 783 F. Supp. 165, 168 (S.D.N.Y. 1992). Unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle the plaintiff to relief, the court can not grant a defendant's motion for judgment on the pleadings. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.) (when deciding a Rule 12(c) motion, the court applies the same standard as that applicable to a 12(b)(6) motion), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994); George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977).

 In its discretion and upon notice to the parties, a court may consider materials outside the pleadings. If it does so and notice is given to the parties, the motion for judgment on the pleadings is treated as one for summary judgment. Gagliardi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir. 1994); Sellers, 842 F.2d at 642.

 B. The defendants' motion

 The defendants move for judgment on the pleadings with respect to each of the plaintiff's causes of action. For the sake of clarity, the Court will address each argument in turn.

 1. Section 1983 claims

 The defendants make three arguments in support of their motion for judgment on the pleadings with respect to the plaintiff's section 1983 claims. Municipalities are subject to liability under section 1983 for alleged violations of an individual's constitutional rights resulting from a municipal policy or custom. See Monell v. Department of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). This principle applies to the claims against the Town and the individual defendants who are alleged to have acted under color of state law in their official capacities. See Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 361-62, 116 L. Ed. 2d 301 (1991) (distinguishing between suits against municipal officers in their official and individual capacities and recognizing that a suit against individuals in their official capacities "should be treated as a suit against the State").

 The Supreme Court has recognized however, that municipal liability may be based on the single decision where the action at issue is directed by those who establish government policy. Pembaur v. Cincinnati, 475 U.S. 469, 480-81, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986); Weber v. Dell, 804 F.2d 796, 803 (2d Cir. 1986), cert. denied, 483 U.S. 1020, 97 L. Ed. 2d 762, 107 S. Ct. 3263 (1987). While the existence of a policy or custom justifying liability under section 1983 is a question of federal law, whether the official had final policy making authority is a question of state law. Pembaur, 475 U.S. at 483.

 Section 1983 does not impose liability upon a municipality or its supervisory officials solely on the basis of respondeat superior. Monell, 436 U.S. at 694. To establish a municipality's liability on the basis of acts by its lower echelon employees, a violation of constitutional rights based on policy or custom must be demonstrated. Id. at 690, 694. "The inference that a [constitutionally deficient] policy exist[s] may . . . be drawn from circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991).

 Three elements are necessary to state a cause of action for municipal liability, namely, (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right. Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995), quoting, Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Applying these standards, the Court reviews the defendants' motion with respect to Pisello's section 1983 claims.

 a. Failure to plead with sufficient particularity

 Initially, the defendants contend that Pisello's constitutional claims based on equal protection, procedural and substantive due process must be dismissed for failure to allege sufficient facts to support these claims. At the outset the Court notes that section 1983 claims brought against a municipality are not subject to a higher pleading standard than required under Fed. R. Civ. P. 8(a). Leatherman v. Tarrant County Narcotics Intelligence & Coordinate Unit, 507 U.S. 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993); see also Blue v. Koren, 72 F.3d 1075, 1083 n.4 (2d Cir. 1995) (citing Leatherman). Accordingly, to survive the defendants' Rule 12(c) motion, Pisello need only allege "a short and plain statement of the claim[s] showing that the [plaintiff] is entitled to relief." Fed. R. Civ. P. 8(a)(2); Leatherman, 113 S. Ct. at 1163.

 Having recognized the applicable standard for reviewing the plaintiff's claims, the Court now turns to the substantive allegations contained in the Amended Complaint. To state a claim for relief pursuant to 42 U.S.C. § 1983, the plaintiff must allege that the defendants deprived him of "a right secured by the Constitution or laws of the United States and that such deprivation was committed by persons acting under color of state law." Walentas v. Lipper, 862 F.2d 414, 418 (2d Cir. 1988), cert. denied, 490 U.S. 1021, 104 L. Ed. 2d 183, 109 S. Ct. 1747 (1989), quoting, Costello v. Town of Fairfield, 811 F.2d 782, 784 (2d Cir. 1987); see also Gomez v. Toledo, 446 U.S. 635, 638, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980).

 The defendants contend that the allegations contained in the Amended Complaint are "conclusory and vague" and as a result they are entitled to judgment on the pleadings as a matter of law. In support of their position they cite Ostrer v. Aronwald, 567 F.2d 551 (2d Cir. 1977) and this Court's decision in Chow v. Coghlan, 1990 WL 92702 (E.D.N.Y. 1990). In both Ostrer and Chow, the courts held that claims based on "diffuse and expansive allegations" should be rejected "unless amplified by specific instances of misconduct." Ostrer, 567 F.2d at 553; see also Chow at 5-6 (reaching similar conclusion with respect to conspiracy claims).

 The defendants however fail to note a critical development in the law. At the time the Ostrer and Chow decisions were rendered, there was significant authority for the proposition that section 1983 claims were subject to a higher standard of pleading than in other cases. See Martin A. Schwartz & John E. Kirlin, Section 1983 Litigation: Claims, Defenses, and Fees (2d ed. 1991) at 18-19, citing, Alfaro Motors v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) (recognizing authority for imposing a higher pleading standard in section 1983 claims in every circuit). As recognized above, in 1993 the Supreme Court in Leatherman rejected a heightened pleading requirement for section 1983 claims against municipal bodies, and stated that federal courts and their litigants must rely on summary judgment and control of discovery to "weed out" unmeritorious claims. Leatherman, 113 S. Ct. at 1162; Javid v. Scott, 913 F. Supp. 223, 230-31 (S.D.N.Y. 1996) (recognizing the effect of Leatherman on prior case law). This is not to say that the pleading rules in Ostrer and Chow are necessarily invalid. Rather, the Court merely recognizes that the plaintiff need only satisfy the general pleading standards of Fed. R. Civ. P. 8 and nothing more. See Garg v. Albany Indus. Development Agency, 899 F. Supp. 961, 969 (N.D.N.Y. 1995) (recognizing the standard set forth in Leatherman but nevertheless granting the defendants Rule 12(b)(6) and 56(c) motions and dismissing the plaintiffs' section 1983 claims for failure to allege claims with sufficient particularity).

 Reviewing the Amended Complaint pursuant to the criteria set forth above, the Court finds that while Pisello's allegations are somewhat generally pled, they are not so deficient as to warrant judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). As Pisello argues in his opposition papers, the Amended Complaint alleges that "the defendants, with discriminatory intent, adopted a policy to drive plaintiff[] out of business." In support of his position, the plaintiff alleges that:

 
1. The defendant Dark, as Chief building inspector, acting at the request of defendants LaMura and Hennessey refused to process Brennan's permit applications for commercial real property because the plaintiff sought to lease that space;
 
2. The defendants closed the plaintiff's offices without prior notice or hearing and without threat ...

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