June of 1998 revealed that ESY continued its illegal dumping activities.
The inspectors noted large amounts of C & D debris, oily runoff
entering surface waters, and contaminated soil. Environmental testing
revealed elevated levels of cadmium, chromium, copper, lead, mercury,
zinc, and PCB's on and around ESY's property. However, the site was never
As a result of ESY's continued violations, two Consent Orders were
entered into between the owners of ESY and the DEC. In the first one,
entered into in January 1995, the owners of ESY agreed to make a
preliminary assessment of the site and recommend remediation. In the
second Consent Order, entered into in May of 1997, the owners agreed to
remove all illegal waste by September 1, 1997 and pay a $2,500.00 fine.
Neither order was complied with. Finally, on April 29, 1998, after
another inspection revealed continued dumping at ESY and no efforts to
clean up the site, the DEC sent a notice of violations to the owners of
ESY. On August 28, 1998, the New York State Supreme Court, County of
Ulster issued a temporary restraining order closing ESY and prohibiting
further receipt of waste.
During this time, the plaintiffs called Ellenville officials several
times to complain about the problems at ESY and to request that ESY be
shut down. Plaintiffs were told that the ESY situation was the DEC's
problem and they had no authority to take any action. The illegal dumping
continued and the Ellenville defendants took no steps to remedy the
situation or close the site. To date, no cleanup has ever occurred at
Plaintiffs claim that the Ellenville defendants violated their due
process rights under the Fourteenth Amendment by failing to enforce the
Village of Ellenville Zoning Code ("Zoning Code"). The Ellenville
defendants contend that plaintiffs' Fourteenth Amendment claim must be
dismissed because the plaintiffs have no constitutionally protected
property interest. The Ellenville defendants further claim that
plaintiffs' claims against the Village should be dismissed because the
plaintiffs have failed to demonstrate municipal liability in this case.
The individual Ellenville defendants assert that they are protected from
liability under the doctrine of qualified immunity. Finally, the
Ellenville defendants seek dismissal of plaintiffs' negligence claim.
Each of these arguments will be addressed seriatim below.
A. Motion To Dismiss Standard
A cause of action shall not be dismissed for failure to state a claim
under Fed. R.Civ.P. 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." Conley, 355 U.S. at 45-46, 78 S.Ct. 99. In
considering a motion brought pursuant to Fed.R.Civ.P. 12(b), the court
must assume all of the allegations in the complaint are true, and draw
all reasonable inferences in plaintiffs favor. See Stuto v. Fleishman,
164 F.3d 820, 824-25 (2d Cir. 1999). In reviewing the sufficiency of a
complaint at the pleading stage, "[t]he issue is not whether a plaintiff
will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974). A dismissal under Rule 12(b)(6) may be
made where "it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim that would entitle him to relief."
Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992) (citing
Austern v. Chicago Bd. Options Exch., Inc., 898 F.2d 882, 885 (2d Cir.),
cert. denied, 498 U.S. 850, 111 S.Ct. 141, 112 L.Ed.2d 107 (1990)). Where
a motion to dismiss is made prior to any discovery or the filing of an
answer, the court is loath to dismiss the complaint, regardless of
whether the plaintiff is unlikely to prevail, unless the defendant can
demonstrate that plaintiff is unable to prove facts which would entitle
relief. See Wade v. Johnson Controls, Inc., 693 F.2d 19, 22 (2d Cir.
1982); see also Egelston v. State Univ. College, 535 F.2d 752, 754 (2d
B. Fourteenth Amendment Claim
The Ellenville defendants argue that the plaintiffs have no
constitutionally protected right to enforcement of zoning laws against a
third party. In addition, the Ellenville defendants contend that the
Village has discretion regarding whether to enforce the Zoning Code, and
therefore, the plaintiffs do not have a constitutionally protected right
to challenge discretionary enforcement decisions. However, the
defendants' arguments misinterpret plaintiffs' claims.
A claim based on a violation of due process must involve the
deprivation of a recognized life, liberty, or property interest. See
DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195-96,
109 S.Ct. 998, 103 L.Ed.2d 249 (1989). "Property interests . . . are not
created by the Constitution. Rather, they are created and their
dimensions are defined by existing rules or understanding that stem from
an independent source such as state law." Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972); Gotkin v. Miller, 514 F.2d 125, 128 (2d Cir. 1975). Further, to
have a property interest in a benefit, a plaintiff must have a legitimate
claim of entitlement to it. Roth, 408 U.S. at 577, 92 S.Ct. 2701.
The due process clause of the Fourteenth Amendment protects property
owners from government actions which substantially eliminate the value of
their property. R.I.S.E., Inc. v. Kay, 768 F. Supp. 1141, 1144 (E.D.Va.
1991) (citing United States v. General Motors Corp., 323 U.S. 373, 378,
65 S.Ct. 357, 89 L.Ed. 311 (1945); Pennsylvania Coal Co. v. Mahon,
260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). In addition, the Zoning
Code provides that the zoning requirements "shall be enforced by the
Building Inspector . . . ." (Murphy AffEx. D.)*fn2
Reading the complaint in a light most favorable to the plaintiffs, it
appears that their contention is that, from March 1987 to the present, no
abatement or enforcement action was taken by the Ellenville defendants.
Thus, a liberal reading of the complaint reveals that the plaintiffs are
not seeking to challenge discretionary actions taken by the Ellenville
defendants. Rather, the plaintiffs are claiming that these defendants
took no action at all to prevent and abate the pollution occurring at ESY
despite a duty, pursuant to the Zoning Code, to do so. If the plaintiffs
can demonstrate that the Ellenville defendants did not make any effort to
enforce the Zoning Code over the approximately
thirteen year span from March 1987 to the present, they may be able to
state a claim under § 1983 for due process violations. Consequently,
at this stage in the proceedings, it is premature to dismiss plaintiffs'
Fourteenth Amendment claim.
C. Municipal Liability
Municipalities are included among those persons to whom § 1983
applies. Monell v. Department of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). Under New York law, a village is a municipal
corporation capable of bringing suit and being sued. See N.Y.Gen.Mun.Law
§ 2 (McKinney 1999). "A police department is an administrative arm of
the municipal corporation." Baker v. Willett, 42 F. Supp.2d 192, 198
(N.D.N.Y. 1999) (citing Loria v. Town of Irondequoit, 775 F. Supp. 599,
606 (W.D.N.Y. 1990); Willard v. Town of Hamburg, No. 96-CV-0187E(H), 1996
WL 607100, at *1 (W.D.N.Y. Sept. 30, 1996)). "A police department cannot
sue or be sued because it does not exist separate and apart from the
municipality and does not have its own legal identity." Id. (citing
Loria, 775 F. Supp. at 606; East Coast Novelty Co. v. City of New York,
781 F. Supp. 999, 1010 (S.D.N.Y. 1992); Wilson v. City of New York,
800 F. Supp. 1098, 1101 (E.D.N.Y. 1992)); see also Clayton v. City of
Kingston, 44 F. Supp.2d 177, 183 (N.D.N.Y. 1999).
Plaintiffs' claims against the Village t)f Ellenville Police Department
and the Village of Ellenville are redundant. Since the police department
is merely an administrative arm of the Village, and the Village is the
real party in interest here, the claims asserted against the Village of
Ellenville Police Department are dismissed. See Baker, 42 F. Supp.2d at
198. Accordingly, the remainder of this opinion addresses plaintiffs'
municipal liability claims with respect to the Village only.
In an action pursuant to § 1983, a municipality may not be held
liable on a theory of respondeat superior. See Thomas v. Roach,
165 F.3d 137, 145 (2d Cir. 1999) (citing Monell, 436 U.S. at 694, 98
S.Ct. 2018). However, a municipality may be held liable if the conduct
that caused the unconstitutional deprivation was undertaken pursuant to
a policy[,] statement, ordinance, regulation, or
decision officially adopted and promulgated by that
body's officers[,] . . . [or] pursuant to governmental
"custom' even though such a custom has not received
formal approval through the body's official
Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. Some unlawful practices of
officials are "so permanent and well settled as to constitute a `custom
or usage' with the force of law." Id. at 691, 98 S.Ct. 2018.
A municipality may be held liable for failure to train its employees
"only where the failure to train amounts to deliberate indifference" to
the constitutional rights of the municipality's citizens. City of Canton
c. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The
failure to train must "reflect a `deliberate' or `conscious' choice by
a municipality. Id. at 389, 109 S.Ct. 1197. Thus, a municipality may be
liable on a claim for failure to train only where "the need for more or
different training is so obvious, and the inadequacy so likely to result
in the violation of constitutional rights." Id. at 390, 109 S.Ct. 1197.
In the present case, the plaintiffs have not alleged a widespread
custom or policy of ignoring zoning violations; they have merely alleged
that the Ellenville defendants ignored their complaints concerning the
illegal dumping at ESY. However, plaintiffs' failure to train claim can
survive defendants' motion to dismiss. Liberally construing plaintiffs'
complaint, they allege that the Village failed to properly train
employees on the Zoning Code and their ability to enforce its
provisions, thus leading to the incorrect statements made to the
plaintiffs that they could do nothing to remedy the situation at ESY.
Assuming the truth of these allegations, the complaint sufficiently
states a claim against the Village for failure to train.
D. Qualified Immunity
The doctrine of qualified immunity "shields government officials
performing discretionary functions from being held liable for civil
damages arising from their actions which do "not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.'" P.C. v. McLaughlin, 913 F.2d 1033, 1039 (2d
Cir. 1990) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982)). Qualified immunity "affords protection to a
government official only from suits in his individual capacity." Id. A
decision in favor of a public official based on qualified immunity is
appropriate if: (1) the conduct attributed to him is not prohibited by
federal law, or, if such conduct is so prohibited; (2) if the plaintiffs
right not to be subjected to such conduct was not clearly established at
the time of the defendant's actions; or (3) if it was not objectively
reasonable for the official to know that his conduct violated that
right. See X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir.
In the instant case, the Zoning Code mandated enforcement of the
Village of Ellenville's zoning laws. In light of this mandate, it was not
objectively reasonable for the individual Ellenville defendants to
believe that since the DEC was purportedly handling the situation at
ESY, they were not required to take any action on their own.
Consequently, the individual Ellenville defendants are not entitled to
E. Plaintiffs' Negligence Claim
"It is settled law that a municipality cannot be held liable for
negligently exercising its governmental functions unless there is proof
of the existence of a special duty owing to the persons injured in
contrast to a duty owed to the general public." Bargy v. Sienkiewicz,
207 A.D.2d 606, 608, 615 N.Y.S.2d 520, 522 (3d Dep't 1994) (citing
Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253, 261, 447 N.E.2d 717, 721,
460 N.Y.S.2d 774, 778 (1983); Florence v. Goldberg, 44 N.Y.2d 189,
195-96, 375 N.E.2d 763, 766, 404 N.Y.S.2d 583, 586 (1978); Sanchez v.
Village of Liberty, 42 N.Y.2d 876, 366 N.E.2d 870, 397 N.Y.S.2d 782
(1977); Helman v. County of Warren, 111 A.D.2d 560, 489 N.Y.S.2d 430 (3d
Dep't 1985), aff'd, 67 N.Y.2d 799, 492 N.E.2d 398, 501 N.Y.S.2d 325
(1986)). This special duty can be found "when a special relationship
exists between the municipality and an individual or class of persons,
warranting the imposition of a duty to use reasonable care for those
persons' benefit." Garrett, 58 N.Y.2d at 261, 447 N.E.2d at 721, 460
N.Y.S.2d at 778. Establishment of the requisite special relationship
required plaintiff to demonstrate four things: (1) that the municipality
assumed, through promise or actions, an affirmative duty to act on behalf
of the injured party; (2) knowledge on the part of the municipality's
agents that inaction could lead to harm; (3) some form of direct contact
between the municipality's agents and the injured party; and (4) the
injured party's justifiable reliance on the municipality's affirmative
undertaking. See Cuffy v. City of New York, 69 N.Y.2d 255, 260,
505 N.E.2d 937, 940, 513 N.Y.S.2d 372, 375 (1987); Garrett, 58 N.Y.2d at
262, 447 N.E.2d at 721, 460 N.Y.S.2d at 778.
Plaintiffs' negligence claim against the Ellenville defendants rests on
the allegations that these defendants failed to enforce the Zoning Code
against ESY. However, the plaintiffs fail to allege that the Village of
Ellenville owed them a special duty to enforce the Zoning Code or that
the Village assumed such a duty.
Plaintiffs claim that there are two bases to support their negligence
claim. In the first situation, the plaintiffs rely upon Garrett, 58
N.Y.2d at 262-63, 447 N.E.2d at 721-22, 460 N.Y.S.2d at 778-79,
for the proposition that a special relationship exists where the
municipality made active misrepresentations which the injured party
relies upon. However, Garrett is distinguishable from this case. Garrett
involved a suit against a motel and the municipality by motel guests
injured or killed in a fire. In the decision cited by the plaintiffs,*fn3
the motel sought contribution from the town on the basis that the town
issued a certificate of occupancy despite knowledge of fire and safety
code violations. The New York State Court of Appeals held that, despite
the absence of a special duty owed by the municipality directly to the
injured plaintiffs, the municipality may be held liable to the motel for
its proportionate share of damages. Id. at 263, 447 N.E.2d at 722, 460
N.Y.S.2d at 779. The Court of Appeals stated
If, as is alleged in the complaints, known, blatant,
and dangerous violations existed on these premises,
but the town affirmatively certified the premises as
safe, upon which representations appellants
justifiably relied in their dealings with the
premises, then a proper basis for imposing liability
on the town may well have been demonstrated.
Id. at 262, 447 N.E.2d at 721, 460 N.Y.S.2d at 779. In the present case,
the plaintiffs do not allege that the Ellenville defendants made active
misrepresentations as to their ability to remedy the violations at ESY.
Rather, the plaintiffs complaint alleges that, due to improper training,
the Ellenville defendants did not know they had the authority to
investigate and enforce the Zoning Code. Therefore, the plaintiffs' first
argument to extend liability to the municipality is rejected.
The second scenario which the plaintiffs proffer concerns a
municipality's failure to inspect and repair a known dangerous
condition. See DeWitt Properties, Inc. v. City of New York, 44 N.Y.2d 417,
377 N.E.2d 461, 406 N.Y.S.2d 16 (1978). However, a careful reading of the
cases cited by the plaintiffs reveals that the municipality may be liable
in this situation only when it owned the premises where the dangerous
condition existed. Accordingly, plaintiffs' second argument in support of
holding the Village liable for negligence is also rejected, and
therefore, plaintiffs' negligence claim against the Ellenville defendants
must be dismissed.
Accordingly, it is
1. The motion to dismiss by defendants Village of Ellenville, Raymond
Younger, Michael Mills, Joseph Straub, and the Village of Ellenville
Police Department is GRANTED in part and DENIED in part;
2. The defendants' motion is GRANTED to the extent that plaintiffs'
RCRA and negligence claims against these defendants, as well as all
claims against the Village of Ellenville Police Department, are
3. The defendants' motion is DENIED in all other respects.
IT IS SO ORDERED.