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.
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., §
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
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
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.
(Id., ¶¶ 9-12). Plaintiff alleges that, "a short time after" the
incident described above, Officer Rutherford returned to the
store and asked to see
plaintiff's license, and when he was unable to produce a license,
Rutherford issued him three tickets for operating without a license. A
short time later, plaintiff was issued additional tickets for dealing in
second-hand jewelry without a license. Plaintiff indicates that he had
applied for a license, but that the defendants delayed the processing of
his application. Plaintiff eventually pled guilty to the charges, in
exchange for the police department's promise that it would approve his
application. Although plaintiff subsequently received a license, he claims
that defendants continued to harass his customers, and further accused
him of buying stolen jewelry, and that, "[t]his harassment continued into
1999." (Id., ¶ 24).
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 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 ...