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YAMAN v. D'ANGELO

April 30, 2002

ERSIN YAMAN,[FN1] PLAINTIFF, VS. LOUIS S. D'ANGELO INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE CITY OF ROCHESTER, DAN R. MAGIL INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE CITY OF ROCHESTER, THOMAS RUTHERFORD INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE CITY OF ROCHESTER, OFFICER NOBLE INDIVIDUALLY AND IN HIS CAPACITY AS AN EMPLOYEE OF THE CITY OF ROCHESTER, AND THE CITY OF ROCHESTER, DEFENDANTS.


The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge.

This is an action pursuant to 42 U.S.C. § 1983, in which plaintiff claims that the individual defendant police officers, acting pursuant to policies of the City of Rochester, violated his constitutional rights by denying him a license to operate his retail jewelry business, without due process, and by subsequently forcing him, through a campaign of harassment, to close his business. He further alleges that Section 96 of the Rochester Municipal Code, which controls the issuance of licenses for the sale of used merchandise, is unconstitutionally vague and overbroad. Now before the Court is defendants' motion to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), on the ground that the action is barred by the relevant statute of limitations, and plaintiff's cross-motion for an extension of time in which to serve the complaint. For the reasons that follow, defendants' motion is granted in part and denied in part, and plaintiff's cross-motion is denied.

BACKGROUND

In this action, plaintiff, Ersin Yaman, alleges that, between 1988 and 1999, he operated a retail jewelry store in the City of Rochester, known as "Ace of Diamonds," from which he sold both new and second-hand jewelry. Pursuant to the Rochester Municipal Code, any person engaged in the sale of second-hand jewelry, gold, or silver, is required to obtain a license, which must be renewed each year. (Rochester Municipal Code, § 96-3). Applications for such licenses are processed and reviewed by the City's Director of Zoning and the Chief of Police. (Id., § 96-2).

The Code further provides that

the Chief of Police shall cause an inspection to be made of the applicant's business premises to determine whether public safety problems exist, and the Chief of Police shall cause an investigation to be made of the background of the owner and operator of the business. Before the issuance of a license, the Chief of Police and his representatives shall have the right to enter upon such premises during normal business hours for the purpose of making inspections. . . . The owner, operator and employees of any secondhand business shall be of good moral character. . . . The Chief of Police may promulgate rules and regulations to govern the operation of secondhand businesses. . . .

(Id., § 96-2(B)-(D)). The Code further provides that the Chief of Police

may deny a license or deny the renewal of a license to any applicant who is not of good moral character, who is not a fit and proper person to hold a license issued under this chapter or who makes a material misrepresentation on the license application. The Chief of Police shall give the applicant written notification of the reasons for the denial of a license. . . . The Chief of Police shall have the power to investigate and inquire into license applicants under this chapter and to require and enforce by subpoena the attendance of witnesses at such investigations.

Id., § 96-9).

Plaintiff indicates that, until 1996, he had no difficulty obtaining such a license from the City of Rochester. However, he alleges that, beginning in 1996, "[d]efendants began creating problems for [him] in retaliation for an incident which occurred in May 1996." (Complaint, ¶ 8). More specifically, he states:

Sometime in May 1996, Defendant [Officer] Rutherford came to Plaintiff's business and ordered the clerk to remove a car which was parked in front of the building next door, because allegedly it was parked illegally. . . . When the clerk informed Defendant Rutherford that he could not move the car because it was not his, [Rutherford] told the clerk that he would have to move his own car because the parking on the street was meant to be used by patrons of businesses in the area. . . . The [c]lerk and the owner of the vehicle explained to . . . Rutherford that because there were no driveways and no parking areas there was no choice but to park on the street, yet . . . Rutherford threatened to tow the cars if they were not moved. . . . The cars were not moved, nor were they towed away, nor were they ticketed. However, after this incident, Defendants started to harass Plaintiff's clerk, business, and Plaintiff's customers.

Further, plaintiff alleges that on May 14, 1998, another officer came to his store, demanding to see his license. When plaintiff was again unable to produce a license, the officer issued him another ticket. Plaintiff eventually applied for a new license, however, the Chief of Police denied the application, on the grounds that he "was not of good moral character and was not a fit and proper person to hold a second hand dealer license." (Id., ¶ 32). Subsequently, the Chief of Police also denied plaintiff's request for hearing.

As a result, plaintiff was forced to cease dealing in second hand jewelry, although he continued to buy and sell new jewelry. Nonetheless, he claims that defendants continued to harass him, by informing his wholesale suppliers that he was engaged in illegal activities. He further alleges that in October 1998, Officer Rutherford went to his store and told him that he could not have customers in his store, "even for appraisals, referrals, or sale of new jewelry." (Id., ¶ 40). According to plaintiff, Rutherford told him, "I live to put you out of business." (Id., ¶ 41). Finally, he alleges that, some time "[a]fter July 1998," Rutherford went to plaintiff's store, and "forcibly removed a ring from Plaintiff's mother's finger alleging it was stolen." (Id., ¶ 42).

On June 28, 2001, plaintiff commenced this action in New York State Supreme Court, Monroe County, by filing a summons with notice. Plaintiff served the defendants with the summons on October 23, 2001. On October 31, 2001, defendants served a demand for a complaint on plaintiff's counsel, pursuant to CPLR § 3012(b). On November 7, 2001, defendants removed the action to the United States District Court for the Western District of New York. On December 7, 2001, plaintiff served the complaint on defendants.

On January 2, 2002, defendants filed the subject motion to dismiss, on the grounds that plaintiff failed to serve the complaint within 20 days after their demand, as required by CPLR § 3012(b). (MacAulay Affidavit, ¶ 4). Defendants also contend that, although the complaint's second cause purports to state a cause of action for intentional and/or negligent infliction of emotional distress, as a matter of law, it fails to state a claim upon which relief can be granted. Further, defendants maintain that plaintiff's claims pursuant to 42 U.S.C. § 1983 are time-barred, under the applicable three-year statute of ...


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