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August 16, 1997

DEEPWELLS ESTATES INC. and NICHOLAS PETERVARY, Plaintiffs, against INCORPORATED VILLAGE OF HEAD OF THE HARBOR, EDWARD W. HOFFMAN, DANIEL J. SHYBUNKO, GLEN G. WILLIAMS, BARBARA VAN LIEW, DAVID SAYRE, FRANK ZINGALE, MARIE D. WIESE, each in their individual capacities and in their official capacities as members of the Board of Trustees of the INCORPORATED VILLAGE OF HEAD OF THE HARBOR and WILLIAM C. MILLER and RICHARD WIEDERSUM, both in their individual capacities and as Chairman of the Planning Board of the INCORPORATED VILLAGE OF HEAD OF THE HARBOR, HELEN KYCIA, in her individual capacity and as Chairman of the Architecture Board, and JERRY HARRIS, in his individual capacity and as Building Inspector for the INCORPORATED VILLAGE OF HEAD OF THE HARBOR and OTHER UNKNOWN DEFENDANTS, Defendants.

Hon. Arthur D. Spatt, United States District Judge.

The opinion of the court was delivered by: SPATT

SPATT, District Judge.

 This action arises from the claims of the plaintiffs, Nicholas Petervary ("Petervary") and his real estate developing company, Deepwells Estates Inc. ("Deepwells", collectively, the "plaintiffs"), pursuant to 42 U.S.C. §§ 1983 and 1985, that the defendants, the Incorporated Village of Head of the Harbor (the "Village"), and various officials and board members of the Village, in their individual and official capacities (collectively, the "defendants"), discriminated against the plaintiffs and caused the taking of Petervary's property without just compensation, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States. In addition, the plaintiffs allege deprivation of their property rights without due process, in violation of the Fourteenth Amendment. Presently before the Court is the defendants' motion to dismiss the plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted.


 According to the complaint, the plaintiffs commissioned an engineer to draft a set of plans and a map which conformed to the zoning requirements of the Village. In July 1986, Petervary submitted a building application to the Village in order to build a subdivision of exclusive homes. Thereafter, in 1986, Petervary purchased a tract of land, consisting of 31.55 acres located within the Village which he and his corporation, Deepwells, intended to develop. In order to purchase the property, Petervary obtained a $ 1.3 million mortgage from the European American Bank. The relevant zoning requirements have not changed since the submission of the application. Upon information and belief, the building application has never been approved or denied.

 Further, according to the complaint, after the passage of more than six years during which time the Village requested many verbal and a few written requests for modifications of the submitted plans, a meeting was held on February 28, 1992, in the basement of the house of the then Mayor, Edward W. Hoffman ("Hoffman"), which at that time was being utilized as the Village Hall. At this meeting attended by Petervary, Hoffman, and the Chairman of the Planning Board, William C. Miller ("Miller"), Petervary was advised that the Village was aware of his poor financial condition resulting from the large mortgage on his property. An ultimatum was then issued by the Village. Petervary was to convey to the Village approximately 4.68 acres of certain land and the small building which stood on that property, for no compensation and on Hoffman's terms, or Petervary could wait until "the cows come home to get an approval on the subdivision map." The Village agreed to waive a small amount of application fees in exchange for this coerced donation. At this meeting, Miller allegedly stated that Petervary had no choice and should comply with Hoffman's demands.

 After several months of stalling, during which time he was harassed by the Village and by its police department, Petervary delivered the requested deed for the 4.68 acres of land, which included the building, to the Village. The deed was ultimately accepted by the Village in or about August 1992 and recorded on September 10, 1992.

 In or about August 1993, the Village approved and filed its own proposed map (the "Village map") which provided for twenty-six mismatched lots ranging in size from one-half acre to six acres each, rather than the subdivision map proposed by Petervary which delineated twenty-seven evenly spaced lots comprising of one or two acres each. Shortly thereafter, the Village built a Village Hall on the 4.68 acres of land received from Petervary and utilized the remainder of the property for municipal purposes.


 The plaintiff did not learn of the above additional paragraph to the Village map until the beginning of 1994.

 During 1993, the Village demanded that Petervary grant the Village an additional parcel of land adjacent to the parcel conveyed to the Village in 1992. The plaintiffs attempted to stall the Village for several months. However, the Village refused to approve the framing, plumbing and insulation of these homes until Petervary orally promised to convey the additional parcel of property.

 Petervary attempted to avoid the transfer of this additional parcel, but after months of harassment by the Village and by its police department, he relented and transferred said second deed dated April 2, 1993, to the Village. On or after December 4, 1993, the Village, without further inspection, approved the plumbing and insulation of these homes.

 Subsequent to the acceptance of the second deed, the plaintiffs received "a small hiatus from the harassment" during which time the Village approved the certificates of occupancy on seven homes. Thereafter, the Village placed a moratorium on the plaintiffs' property by "demanding the impossible" and refused to issue any other certificates of occupancy.

 During these years the plaintiffs were allegedly harassed by various Village officials. Helen Kycia ("Kycia"), the chairman of the Architecture Board, allegedly used her position to harass the plaintiffs into making unnecessary changes on the homes built by the plaintiffs, attempted to require the plaintiffs to perform illegal tasks for which they were not bonded and attempted to require the plaintiffs to make changes to homes which were built and were being occupied. Kycia was motivated by her alleged desire to increase the value of her own property, which was located less than one mile from the plaintiffs' property and was to be developed. Richard Wiedersum ("Wiedersum"), the Chairman of the Planning Board, harassed the plaintiffs by requesting that they perform impossible tasks within unreasonable time constraints and by placing a moratorium on the grants of certificates of occupancy on the plaintiffs' property for over one and one-half years. Jerry Harris ("Harris"), the Building Inspector appointed by the Village, failed to approve work in progress and failed to inspect the homes being constructed by the plaintiffs during the moratorium, although all relevant requirements set forth by the Village were satisfied. Glen G. Williams ("Williams"), Barbara Van Liew ("Liew"), David Sayre ("Sayre"), Daniel J. Shybunko ("Shybunko"), Frank Zingale ("Zingale") and Marie D. Weiss ("Weiss"), all Trustees of the Village, furthered the conspiracies of Hoffman and Miller by: (1) causing unnecessary delays to the approval or denial of the plaintiffs' building applications; (2) taking private property without payment of just compensation; (3) requiring illegal tasks to be performed by the plaintiffs; and (4) placing a moratorium on the plaintiffs' property which was not promptly removed upon the plaintiffs' successful completion of the tasks requested.

 During November 1996, Shybunko, the present Mayor of the Village, verbally requested the "donation" of another 1.09 acres to the Village. This request occurred contemporaneously with the Village's agreement to inspect two homes for certificates of occupancy for the first time in over one and one-half years. Concurrent with Petervary's refusal to deed the property to the Village, his certificates of occupancy were denied upon inspection on November 23, 1996.

 The plaintiffs allege four causes of action, which are as follows:

 2. The defendants, acting under color of law, engaged in a concerted course of conduct to deprive the plaintiffs of his Constitutional and Civil Rights by attempting to, and taking, the plaintiffs' property for public use without just compensation and delaying the approval or denial of the plaintiffs' building application;

 3. The defendants, collectively and individually, were negligent in failing to either approve or deny the plaintiffs' building application in a timely manner, negligently cluster zoning the subdivision and negligently deprived the plaintiffs of their Constitutional and Civil Rights; and

 4. The Village and the individual defendants, in their official and individual capacity, are liable to the plaintiffs for punitive damages.


 A. Fed. R. Civ. P. 12(b)(6) standard

 On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) 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". Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994). The Second Circuit stated that in deciding a Rule 12(b)(6) motion, a court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Rent Stabilization Ass'n of the City of New York v. Dinkins, 5 F.3d 591, 593-94 (2d Cir. 1993) (citing Samuels, 992 F.2d at 15).

 It is not the Court's function to weigh the evidence that might be presented at a trial; the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the Court must accept the allegations of the complaint as true, see Leeds v. Meltz, 85 F.3d 51 (2d Cir. 1996); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 110 S. Ct. 723, 107 L. Ed. 2d 743 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Leeds, supra, 85 F.3d at 51; Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 109 S. Ct. 1642, 104 L. Ed. 2d 158 (1989).

 The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief", Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice," Fed. R. Civ. P. 8(f).

 The issue before the Court on a Rule 12(b)(6) motion "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, U.S. , 117 S. Ct. 50, 136 L. Ed. 2d 14 (1996) (citing Scheuer, supra, 416 U.S. at 235-36). Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal under Rule 12(b)(6). Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (citing Scheuer, 416 U.S. at 236).

 It is within this framework that the Court addresses the present motion to dismiss.

 B. Standing

 One of the constitutional requirements for standing is that a party "show he personally has suffered some actual or threatened injury." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). According to the complaint and the exhibits attached thereto, the property located in the Village is owned by Petervary. Unable to decipher from the complaint Deepwells' alleged injury, the Court inquired of the plaintiffs during oral argument, the nature of Deepwells' standing to bring this action. The Court directed the plaintiffs to investigate this issue and advise the Court as to whether Deepwells would withdraw as a plaintiff.

 C. First Cause of Action

 The defendants move to dismiss the first cause of action, wherein the plaintiffs allege inverse condemnation and denial of due process, claiming that it is barred by the statute of limitations and/or that the action fails to state a claim upon which relief can be granted. An inverse condemnation claim under the Fifth Amendment, as made applicable to the States through the Fourteenth Amendment, see First English Evangelist Lutheran Church v. Los Angeles City, 482 U.S. 304, 107 S. Ct. 2378, 2382, 96 L. Ed. 2d 250 (1987), is predicated on the proposition that a Fifth Amendment "taking" may occur even though there has been no formal exercise of the government's eminent domain power. An inverse condemnation suit is the manner in which a landowner recovers just compensation for a taking of his property where there has been no formal condemnation proceeding. United States v. Clarke, 445 U.S. 253, 257, 100 S. Ct. 1127, 63 L. Ed. 2d 373 (1980).

 1. Statute of Limitations

 Since 42 U.S.C. § 1983 ("Section 1983") does not contain a statute of limitations, a federal court applies the period of limitations of the state in which the action is brought. Wilson v. Garcia, 471 U.S. 261, 268-69, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985). In Wilson, the Supreme Court held that for the purpose of selecting the proper state limitations period, all Section 1983 actions should be characterized as actions for personal injuries. Id. at 268-69. As a result, a federal court must adopt the state limitations period applicable to personal injury actions.

 Pursuant to N.Y. C.P.L.R. 214(2), the appropriate statute of limitations period is three years for "an action to recover upon a liability, penalty or forfeiture created or imposed by statute." See Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 582, 102 L. Ed. 2d 594 (1989); see also Murphy v. Lynn, 53 F.3d 547, 549 (2d Cir. 1995); 423 South Salina Street, Inc. v. City of Syracuse, 68 N.Y.2d 474, 503 N.E.2d 63, 510 N.Y.S.2d 507, cert. denied, 481 U.S. 1008, 107 S. Ct. 1880, 95 L. Ed. 2d 488 (1987). While New York law is applied to determine the applicable limitations period and its tolling, if any, federal law governs to ascertain when a cause of action under Section 1983 accrues. Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980), cert. denied, 451 U.S. 908, 101 S. Ct. 1975, 68 L. Ed. 2d 295 (1981); Eagleston v. Guido, 41 F.3d 865 (2d Cir. 1994), cert. denied, 516 U.S. 808, 116 S. Ct. 53, 133 L. Ed. 2d 18 (1995). An action ...

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