in the prior action and is decisive of the present action, and (2) there was a full and fair opportunity to litigate the decision said to be controlling. Id., citing, Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969); Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995). The moving party has the burden of demonstrating the identity of the issues and the opposing party has the burden of showing lack of full and fair opportunity to litigate the issue in the prior action. Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 588, 482 N.E.2d 63 (1985).
According to Equus, "the State Court determined that Equus had a right to the sought after construction permit, that the Town Board had no discretion to deny Equus' application in light of the proposed agricultural use for the permit and the Property, that the Town Board's denial was contrary to existing law and without basis and was, in fact, politically motivated." Pl. Mem. of Law at 18-19. The Court disagrees.
In the Court's view, the plaintiff has established the identity of parties and a full and fair opportunity to litigate all issues appropriately before the state court. However, Equus has failed to demonstrate an identity of issues. The state court action arose in the context of an Article 78 proceeding. The standard of review in such cases regarding the issuance of a permit is whether the petitioner, namely Equus, can demonstrate that the respondent's determination was "arbitrary, capricious or an abuse of discretion." Burger King Corp. v. County of Suffolk, 121 A.D.2d 494, 503 N.Y.S.2d 157, 158 (2d Dep't 1986), citing, Token Carpentry, Inc. v. Hornik, 92 A.D.2d 868, 459 N.Y.S.2d 831 (2d Dep't 1983). Accordingly, the issue before the Second Department in Equus was whether the defendants abused their discretion or acted in an arbitrary and capricious manner when they determined that the plaintiff's proposed use of its leased property, namely to raise, train and sell polo ponies, did not constitute "agricultural production" within the meaning of Agriculture and Markets Law § 301. See Equus, 615 N.Y.S.2d at 714.
The threshold inquiry with respect to a substantive due process analysis however, is not whether the defendants abused their discretion. Rather, the plaintiff must demonstrate that the defendants had virtually no discretion at all, see, e.g., Zahra, 48 F.3d at 680, an issue never addressed by the state court. Accordingly, while the Court acknowledges that the Second Department's decision in Equus is entitled to full faith and credit, it does not entitle the plaintiff to summary judgment with respect to liability in its substantive due process claim.
C. Qualified immunity
The defendants further move for summary judgment on the basis of qualified immunity. Government actors who perform discretionary functions are protected from liability for civil damages where their conduct does not violate a clearly established constitutional right of which a reasonable person would have known. Doe v. Marsh, 105 F.3d 106, 109 (2d Cir. 1997); Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996); Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). Even where the plaintiff's rights and the scope of the officials' permissible conduct are clearly established, the qualified immunity defense protects a governmental actor if it was "objectively reasonable" for the actor to believe that his actions were lawful at the time of the alleged unlawful conduct. Marsh, 105 F.3d at 109-10; Lennon, 66 F.3d at 420.
At the outset, the Court recognizes that "the defense of qualified immunity protects only individual defendants sued in their individual capacity, not governmental entities. . . ." Rodriguez v. City of New York, 72 F.3d 1051, 1065 (2d Cir. 1995), citing, Hafer v. Melo, 502 U.S. 21, 25, 116 L. Ed. 2d 301, 112 S. Ct. 358 (1991). Although it is not entirely clear from the plaintiff's papers, it appears that the individual defendants are being sued in their individual capacities Nevertheless, for the sake of a complete record, the Court notes that to the extent that the defendants attempt to invoke the doctrine of qualified immunity to protect the Town, the Town Board, or the individual defendants acting in their official capacities, from civil liability for damages, their motion is denied.
The issue with respect to the claims against the Board members acting in their individual capacities is more complicated. Given that the Court has already determined that the Town Board does maintain a certain amount of discretion with respect to the issuance of construction permits, it would appear that invocation of the qualified immunity defense might be appropriate. However, according to the Second Department, the Board's original decision to deny Equus the permit was at least, in part, political in nature. Equus, 615 N.Y.S.2d at 716. In the Court's view, if the plaintiff were able to demonstrate at trial that the Board's decision was so political as to constitute a violation of its First Amendment rights, application of the qualified immunity defense may be inappropriate. Accordingly, the Court finds that the better approach would be to revisit this issue at the end of the plaintiff's case at trial rather than on a motion for summary judgment. As a result, the defendant's motion for summary judgment with respect to the Board members acting in their individual capacities is denied without prejudice and with leave to resubmit. See DiMarco v. Rome Hosp. & Murphy Memorial Hosp., 952 F.2d 661, 665 (2d Cir. 1992) (recognizing that resolution of a qualified immunity issue may be better left for trial where the factual underpinnings of the defense are in dispute); see Martin A. Schwartz & John E. Kirkin, 1B Section 1983 Litigation § 9.34 (3d ed. 1997).
Finally, the Court notes that defendant Patrick Heaney, Sr. is deceased. Accordingly, the plaintiff must amend his complaint to either moves against a representative of Heaney's estate, or to remove him as a named defendant.
Having reviewed the parties' submissions, and the court file, and the for the reasons set forth above, it is hereby
ORDERED, that the plaintiff's motion for summary judgment with respect to the liability on its substantive due process claim pursuant to Fed. R. Civ. P. 56, is denied; it is further
ORDERED, that the defendants' motion for summary judgment with respect to the plaintiff's substantive due process claim is granted pursuant to Fed. R. Civ. P. 56, and is denied with respect to qualified immunity without prejudice and with leave to resubmit at the end of the plaintiff's case; it is further
ORDERED, that the plaintiff is granted leave to file a Second Amended Complaint within 30 days from the date of this memorandum of decision and order to either delete Patrick Heaney, Sr. as a named defendant or to move against a representative of his estate; and it is further
ORDERED, that the parties are directed to appear on Wednesday, September 10, 1997 at 9:00 a.m. for a status conference.
Dated: Uniondale, New York
August 27, 1997
Hon. Arthur D. Spatt
United States District Judge
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