A full evidentiary hearing was held, at which plaintiff was
represented by counsel. The court found Mr. Rodriguez guilty of
charges 1, 2, and 4. Mr. Rodriguez was found not guilty of charge
3. He was fined $50 for each of the guilty charges. Shortly
before the decision was rendered by the Village Court, the
plaintiff filed a Notice of Claim against the defendants which
served as the prerequisite to the filing of this action. (This
action was filed on February 19, 1998.)
The apartment building at 85-87 Cortlandt was constructed in
the late 19th Century and has a long history of structural
problems. In 1990, when the building was in imminent danger of
collapse, Mr. Margotta declared the building unfit for human
habitation; the Village ordered the then owner to vacate the
tenants of the building and immediately shore up the building.
Problems with code compliance continued throughout the early
1990s. In May 1998, plaintiff and Mr. Jiminez purchased the
building under the name "Biombo, Inc.," with the intent to
renovate portions of it. They engaged the services of Ron
Turnquist, a local architect, to draw up plans for the
renovation. On May 29, 1998, Mr. Turnquist filed an application
for a building permit with Mr. Margotta. On June 2, 1998, Mr.
Margotta informed Mr. Turnquist that a building permit would not
be issued until 1) a complete set of plans for the building was
prepared, and 2) Mr. Turnquist completed exploratory work
concerning the structural defects in the building that had been
uncovered by earlier engineering reports (reports which Mr.
Margotta made available to Mr. Turnquist).
Upon visiting the site on June 28, 1998, Mr. Margotta
discovered that Mr. Rodriguez and three other men were installing
flooring at the building in violation of the building permit
requirement. At a later date, and after discussions with Mr.
Turnquist about the building permit, Mr. Margotta agreed that he
could approve the plans for a "piecemeal," rather than a
complete, renovation. As is standard in renovations to older
buildings, plaintiff and his father-in-law were required to seek
approval of the Architectural Review Board (ARB) for approval of
stucco work on the facade of the building. The ARB approved
plaintiff's plans. Plaintiff has also received approval from the
Village for the construction of a meat market on the ground floor
of the site.
110 Beekman Avenue: The "Gatell" Job
In the fall of 1997, Mr. Rodriguez was retained by the Gatells
to perform cleanup and substantial renovation work at the
Gatells' premises. Village Plumbing Inspector Gary McLean
performed an unannounced inspection at the work site on May 2,
1998. The plaintiff initially refused entry to Mr. McLean. Mr.
McLean called the Village Police Chief, who arrived on the scene
to support Mr. McLean's claim to right of entry. (The Police
Chief had, in fact, conferred with the Village Attorney to
confirm that Mr. McLean had the right to inspect the premises.)
Mr. McLean inspected the work site. There is some dispute as to
whether Mr. McLean immediately informed Plaintiff that the use of
non-conforming PVC pipe at the project was a violation of the
state building code. In any event, on November 2, 1998, some six
months after the spot inspection, Mr. Gatell was informed by both
Mr. Margotta and Mr., McLean that a final plumbing inspection was
necessary before the issuance of a CO. Plaintiff was informed in
writing on November 3, 1998, that the PVC violated the state
building code. Shortly thereafter, the Gatells terminated
Plaintiff form the project based on their dissatisfaction with
the quality of his work. Plaintiff was paid $400,000 for the work
he had performed on the site up to that date.
139 and 160 Cortlandt Street
At 139 Cortlandt, Mr. Rodriguez and Mr. Jiminez applied for
site plan approval to construct a new building with six
apartments and two retail stores. The new
construction required extensive review by the Village Planning
Board. Site plan approval was issued by the Board, subject to
several requirements, including the demolition of the existing
structure on the property and the creation of an easement for
parking spaces on the property. These requirements were based on
the reports of independent consultants. The Village Fire
Department also reviewed the proposed site plans for 139
Cortlandt and concurred in the recommendation that the existing
structure be demolished prior to commencement of the new
At 160 Cortlandt Street, Mr. Rodriguez performed contracting
work at this building owned by Luis Muniz. During the course of
his work, Mr. Margotta and Mr. McLean, the Village Plumbing
Inspector, inspected the site from five to ten times.
Non-conforming insulation was requested to be removed. Mr.
Rodriguez alleges that the removal of the non-conforming
insulation cost him $6,000.00. He does not dispute that the
different type of insulation was a requirement of the state code.
Alleged Racial Slurs against Mr. Rodriguez
Mr. Rodriguez alleges that Mr. Margotta's actions to enforce
the building codes against Mr. Rodriguez were motivated by
personal and racial animus. In support of this claim, two
witnesses testified that they heard Mr. Margotta, on one
occasion, refer to Rodriguez as a "spic." Also, Mr. Rodriguez
alleges that on one occasion Mr. Margotta proclaimed "You guys
are all full of shit," at a work site where he was discussing the
disposal of asbestos with a group of construction workers; Mr.
Rodriguez concluded that Mr. Margotta could only have meant that
all Hispanics are "full of shit" because only Hispanic men were
present. In addition, one witness testified that he has also
heard Larry McLean, the plumbing inspector, refer to Mr.
Rodriguez as a "spic" on several occasions. Several witnesses
also testified to the fact that there is personal tension between
Mr. Margotta and the plaintiff.
Standards for Summary Judgment
Summary judgment is appropriate where there are no genuine
issues of material fact and the movant is entitled to judgment as
a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). A genuine issue for trial exists if, based on the
record as a whole, a reasonable jury could find in favor of the
non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
In making its determination, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the
non-movant. See id. at 255, 106 S.Ct. 2505. To defeat summary
judgment, the non-moving party must go beyond the pleadings and
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986).
Selective Enforcement Claim: Fourteenth Amendment
The Plaintiff does not dispute that Mr. Margotta is charged
with enforcing the local and state building codes as they apply
to construction projects in Sleepy Hollow. Nor does plaintiff
dispute that the building codes apply to him in his capacities as
a building contractor, tenant, and property owner in the village.
The fact that Mr. Rodriguez is the busiest building contractor in
the Village is also undisputed. The fact that Mr. Rodriguez has
been guilty of criminal violations of the local building
ordinances is a matter of public record. (See Margotta Aff.Ex.
R.). It is also undisputed in the record that Mr. Rodriguez has
been in violation of local, state and national building codes and
standards on numerous occasions at several of his work sites in
The Plaintiff also does not allege that he has ever been
permanently denied any permits or certificates by Mr. Margotta or
the Village. Rather, Plaintiff claims that Mr. Margotta singled
him out for enforcement
of the codes in a manner different from his treatment of other
A claim of selective enforcement in violation of equal
protection arises where:
(1) the person, compared with others similarly
situated, was selectively treated; and
(2) that such selective treatment was based on
impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of
constitutional rights, or malicious bad faith intent
to injure a person. LaTrieste Restaurant & Cabaret
Inc. v. Village of Port Chester, 40 F.3d 587, 590
(2d Cir. 1994) (citing LeClair v. Saunders,
627 F.2d 606 (2d Cir. 1980)).
Under the first prong, the question is whether there is any
evidence from which it could be inferred that Mr. Margotta
treated similarly situated non-Hispanic contractors differently.
Mr. Rodriguez fails to provide any evidence that could lead a
jury to conclude that Mr. Margotta enforced the building code
requirements against Mr. Rodriguez and not against other,
non-Hispanic building contractors in Sleepy Hollow. Indeed, the
evidence provided by the Plaintiff himself merely points to the
fact that other contractors — Hispanic and non-Hispanic alike —
have had to deal with Mr. Margotta's office in obtaining the same
permits, certificates and variances for which Mr. Rodriguez
complains he has been singled out. (Miranda Decl.Ex. F at p. 13).
Plaintiff's own architect testified that as Building Inspector,
Mr. Margotta scrutinized all the construction projects in the
village. Id. (Miranda Decl.Ex. G: Turnquist Dep. at pp. 68-69).
During the years 1997 and 1998, the record indicates that Mr.
Margotta inspected 186 different construction sites in the
village; that he cited violations in approximately one-third of
the inspections. (Margotta Aff.Ex. AP).
Mr. Rodriguez's plumber on the Chester Chicken site testified
that Mr. Margotta and other village representatives intended to
"make an example" out of Mr. Rodriguez in connection with his
violations of the Village electrical code (Tompkins Dep. at p.
13). There is no evidence from which it can be inferred, however,
that Mr. Margotta's vigorous prosecution of Mr. Rodriguez's
numerous violations of the building codes, or his close scrutiny
of Mr. Rodriguez's building projects were any different from his
oversight of projects in the Village being carried out by other
contractors. On the contrary, the evidence points to a pattern of
close oversight and vigorous prosecutions — including criminal
prosecutions — of code compliance at different construction sites
in the village, including those of non-Hispanic contractors.
(See Miranda Reply Dec.Ex. E) The evidence shows that Mr.
Margotta is aggressive in carrying out his responsibilities and
that he has frequently clashed and argued with local architects
and building contractors over the years. (Margotta Aff.Ex. AC;
Turnquist Dep. at pp. 147-149; McCarthy Dep. at pp. 67-69.)
The opinion of Village Justice John Lewis in response to Mr.
Rodriguez's selective prosecution claim at the hearing of his
criminal violation of the electricity codes addressed this point:
"Defendant makes unsupported assumptions about this
Court's own `docket' (i.e., that the Court generally
seeks only compliance and not criminal sanctions in
[building] code cases) which are not credited by the
Court. The undersigned has been Village Justice for
six months (during which other code violators, of
non-Hispanic ethnicities, have in fact been
vigorously prosecuted) . . ." (Margotta Aff.Ex. R at
p. 10) (emphasis added).
While Judge Lewis' opinion in this regard is inadmissable
hearsay, and is not relied on by the Court (only the absence of
any evidence of selective enforcement is relied on), I cite it to
demonstrate that a sister court heard the same arguments and
dismissed them as specious.
There is thus no evidence in the record that could lead a jury
to conclude that Mr. Margotta's treatment of Rodriguez or his
adversarial relationship with Rodriguez reflects anything other
than the usual and predictable tension between a regulator and
the business being regulated. Drawing all inferences from the
evidence in favor of the Plaintiff, it could be said that the
relationship between Mr. Margotta and Mr. Rodriguez is one of
intense mutual dislike. (Muniz Dep. pp. 10-12, 28). Nevertheless,
from the evidence in this record, no finding of disparate
treatment could be made.
Because Plaintiff fails to satisfy the first prong of the
two-part test, the second prong is irrelevant. However, I note
that Mr. Rodriguez offers only his own speculation that Mr.
Margotta is motivated by either racial or personal animus. Even
Plaintiff's own architects testified that the personal animosity
between Margotta and Rodriguez is a result of the natural tension
between contractors and building inspectors, not racial animus.
(McCarthy Dep. pp. 67-69). Building inspectors seek to enforce
the code, regardless of costs; contractors look to get the job
done at the lowest possible cost. Id. In a selective
enforcement claim, mere "conjecture and speculation" are
insufficient to withstand defendant's motion for summary
judgment. Lisa's Party City v. Town of Henrietta, 185 F.3d 12
(2d Cir. 1999) (citing Kerzer v. Kingly Mfg., 156 F.3d 396, 400
(2d Cir. 1998)).
Substantive Due Process Claims
Plaintiff's argument that unannounced building inspections
constitute a violation of his Fourth Amendment and substantive
due process rights has no basis in law. In order to prevail on a
substantive due process claim under § 1983, Plaintiff must (1)
demonstrate that he has a constitutionally protected property
right in the government benefit at issue; (2) suffer a
deprivation of that right as a result of government action; and
(3) prove that he was deprived of that right without due process
of law. Greene v. Town of Blooming Grove, 935 F.2d 507, 509-510
(2d Cir. 1991).
In a recent case, the Second Circuit held that there is no
protected property right in the procedures relating to obtaining
building inspections or in the procedures themselves:
The mere existence of procedures for obtaining a
permit or certificate do not, in and of themselves,
create constitutional property interests. Were we to
hold otherwise, aggrieved property owners would be
empowered to bring constitutional challenges at
virtually every stage of the building process in
municipalities. We expressly decline to announce a
rule that would obligate federal courts to consider
endless numbers of alleged property interests arising
not from the benefits themselves, but as extensions
of existing or sought property interests. Zahra v.
Town of Southold, 48 F.3d 674, 682 (2d Cir. 1995).
Plaintiff therefore had no property right to the inspections in
question. Furthermore, on the evidence, the Plaintiff has
suffered no deprivation. All the permits and certificates of
occupancy he requested were granted, once compliance with the
village and state codes had been shown.
Plaintiff's claim that a "liberty interest" is implicated by
the refusal to grant a building permit where a contractor has not
complied with the law is similarly without merit. There is simply
no "liberty interest" under the Fourteenth Amendment that would
be adversely affected by the requirement that Plaintiff carry out
construction work in accordance with a law applied equally to all
contractors in the Village. It is well settled that one must have
no ability to practice one's profession at all in order to state
a claim for deprivation of a liberty interest. Bernard v. United
Township High School Dist. No. 30, 5 F.3d 1090 (7th Cir. 1993);
LaTessa v. New Jersey Racing Commission, 113 F.3d 1313, 1318
(3d Cir. 1997). Cf. Valmonte v.
Bane, 18 F.3d 992, (2d Cir. 1994). Here, the Plaintiff's claim
of a liberty interest is not cognizable since the evidence is
undisputed that he has at all times continued to do business in
Procedural Due Process Claim under "Stigma Plus"
Plaintiff further alleges that Margotta defamed him, causing
injury to his livelihood when he told Mr. Nabil Sayegh that
Rodriguez would only do a "patch-up job" on Mr. Sayegh's proposed
construction project. (Stevens Aff., Ex. 83, pp. 34-36). After
his conversation with Mr. Margotta, Sayegh decided not to hire
Mr. Rodriguez to perform the work on his building. Id.
Plaintiff's pleadings attempt to transform this state defamation
claim into a procedural due process claim by arguing that Mr.
Margotta's criticism of Mr. Rodriguez's abilities as a contractor
caused Mr. Rodriguez to suffer a loss of business thus depriving
him of a cognizable liberty interest.
Under the "stigma plus" test applied by the Supreme Court in §
1983 cases, damage to a person's reputation is not "by itself
sufficient to invoke the procedural protection of the Due Process
Clause." Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47
L.Ed.2d 405 (1976). In order to make a claim that defamation
implicated a plaintiff's liberty interest, "loss of reputation
must be coupled with some other tangible element." Valmonte,
18 F.3d 992, 999 (citing Paul v. Davis, 424 U.S. 693, 701, 96
S.Ct. 1155, 47 L.Ed.2d 405).
Even assuming that Mr. Margotta's alleged statement to Mr.
Sayegh was defamatory, Plaintiff has failed to provide any
evidence of the "plus." Mr. Rodriguez has shown no harm to his
carrying out business in Sleepy Hollow. By his own testimony as
well as the testimony of his own architect, Mr. Rodriguez is the
"busiest contractor in Sleepy Hollow." (Margotta Aff.Ex. AC:
Turnquist Dep. at p. 156). It is thus not necessary to reach the
question of whether Mr. Margotta's statements constituted
First Amendment Political Retaliation Claim
Plaintiff has presented no evidence in support of the
allegation of retaliation on the basis of either Plaintiff's
speech or political association. The legal standard requires
plaintiff to show how that defendant's actions and/or statements
have impaired plaintiff's rights under the First Amendment. See
Spear v. Town of West Hartford, 954 F.2d 63, 67 (2d Cir. 1992).
Allegations of a subjective chilling of First Amendment rights
"are not an adequate substitute for a claim of specific present
objective harm or a threat of a specific future harm." Laird v.
Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972).
Plaintiff's allegation of political retaliation is not even
logical: In February 1996, the time frame in which he claims the
town Republicans retaliated against him for his posting of a sign
supporting a Democratic candidate, the Republicans were not in
power in the Village, and therefore could not retaliate against
Claim Against the Village of Sleepy Hollow
The claim against defendant Village of Sleepy Hollow's is
dismissed as a matter of law. To prevail at summary judgment on a
§ 1983 claim, plaintiff must show that the Village has a policy
or custom which cause the deprivation of his civil rights. See
City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989). Under § 1983, a municipality cannot be held
liable solely on a theory of respondeat superior liability.
Monell v. Department of Social Services, 436 U.S. 658, 694-95,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiff must demonstrate
"a direct causal link between a municipal policy or custom, and
the alleged constitutional deprivation." City of Canton v.
Harris, 489 U.S. at 385, 109 S.Ct. 1197. Plaintiff
must show that the municipal policy was the "moving force
[behind] the constitutional violation." City of Canton v.
Harris, 489 U.S. at 389, 109 S.Ct. 1197 (quoting Monell, 436
U.S. at 694, 98 S.Ct. 2018 and Polk County v. Dodson,
454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981)). "The mere
assertion . . . that a municipality has such a custom or policy
is insufficient in the absence of allegations of fact tending to
support, at least circumstantially, such an inference." Zahra v.
Town of Southold, 48 F.3d 674, 685 (1995) (Quoting Dwares v.
City of New York, 985 F.2d 94, 100 (2d Cir. 1993)).
Plaintiff does not present any evidence addressing municipal
policy or custom in support of his claim. Furthermore, plaintiff
has not presented any evidence of anti-Hispanic animus on the
part of the Village. The fact that Hispanics — including the
plaintiff's father-in-law — have served on the ZBA and that one
currently serves on the Village Board of Trustees are evidence
pointing to the contrary conclusion. The evidence further shows
that Mr. Margotta's decisions have, on occasion, been overruled
by the ZBA.
Plaintiff's alternative argument that Margotta, as a part-time
building inspector, serves as a policymaker in the Village is
similarly without merit. Mr. Margotta is not empowered to write
the building code, set policy for enforcement of the code, or to
bring about prosecutions under the code. The Planning Board and
the ZBA are, for the purposes of the building code, the policy
makers in the Village, and, as noted earlier, there is no
evidence presented to suggest that either of these entities has
acted with animus toward the Plaintiff.
Because plaintiff has failed to make a showing of harm
sufficient to overcome summary judgment, it is not necessary to
reach the question of whether Mr. Margotta may be entitled to
State Defamation Claim
Plaintiff alleges in his complaint that defendant Margotta and
Plumbing Inspector McLean (who is not a named defendant in this
action) defamed him when he discouraged third parties from using
his services as a contractor. This state claim of defamation is
insufficient because it lacks of specificity and for failure to
allege financial harm. Under New York law, plaintiff must allege
the time, manner and person to whom publication of the defamatory
remarks were made. Geddes v. Princess Properties, 88 A.D.2d 835,
451 N.Y.S.2d 150 (1st Dep't 1982). Furthermore, the exact
words of the defamation must be spelled out in the complaint.
See N.Y.C.P.L.R. § 3016(a). Neither of these two threshold
requirements are met. However, in order to dismiss on this
ground, I would be required to grant Plaintiff leave to replead
to cure this defect. See N.Y.C.P.L.R. §§ 3014, 3025(b). As I am
not prepared to entertain a state claim where there is no basis
of federal jurisdiction, I elect to dismiss on the ground that I
lack jurisdiction. It is thus not necessary to reach whether Mr.
Margotta's statements were privileged opinion.