United States District Court, Eastern District of New York
November 1, 2002
DEBRA J. PUCCIO, PLAINTIFF,
TOWN OF OYSTER BAY, LEONARD KUNZIG, GARY BLANCHARD, AND KENNETH BOYCE, DEFENDANTS.
The opinion of the court was delivered by: Spatt, District Judge.
DECISION AND ORDER
This case involves allegations by Debra Puccio ("Puccio" or the
"plaintiff") that the Town of Oyster Bay (the "Town"), Leonard Kunzig
("Kunzig"), Gary Blanchard ("Blanchard"), and Kenneth Boyce ("Boyce")
(collectively, the "defendants") violated her equal protection rights by
issuing a certificate of occupancy without properly inspecting the house
she purchased. Presently before the Court are the following motions:
(1) a motion by Kunzig to dismiss the complaint for lack of personal
jurisdiction; (2) a motion by the
Town to dismiss the complaint for
failure to state a claim upon which relief can be granted; (3) a motion
by the Town to dismiss the complaint against Kunzig, Boyce and Blanchard
on the basis of qualified immunity; and (4) motions by Kunzig and the
Town for Rule 11 sanctions.
The following facts are taken from the complaint. In July 1998, the
plaintiff's real estate agent took the plaintiff and her husband to see a
recently refurbished home located at 32 Midway Drive (the "house") in
Plainview, New York. At that time, the house had undergone major
renovations which were nearly completed. After the plaintiff and her
husband made an inspection of the house, they made a verbal bid to their
real estate agent, who then relayed that bid to Kunzig, the seller's
broker. The sellers of the house accepted their bid.
On the following day, the plaintiff and her husband returned to the
house to sign a binder and to leave a "good faith" check. During that
visit, the plaintiff alleges that for the first time, she and her husband
noticed that the basement smelled damp and the floor and walls appeared
wet. They told their real estate agent that they wanted the basement
waterproofed prior to the sale. The agent informed the couple that the
sellers had refused their request to waterproof the basement and that,
consequently, the sellers had accepted a second offer on the house. The
agent suggested that the plaintiff and her husband contact Kunzig
directly to further convey their interest in the house.
Shortly thereafter, the plaintiff's husband telephoned Kunzig. During
the conversation, Kunzig allegedly informed the plaintiff's husband that
the Town's building inspector inspected the house on several occasions
and assured him that the house was properly built and in conformance with
building codes and regulations. At that time, neither the plaintiff nor
her husband were aware that Kunzig was the Assistant Controller of the
Town and that Kunzig had promised the builder of the house that he would
make sure that the paperwork for the house "got pushed through" the
Town's Planning and Development Department.
The plaintiff alleges that the Town's files revealed that the
Town-approved blueprint for the house did not conform with the actual
layout of the house. Further, the plaintiff alleges that an inspection
of the house revealed that (1) support beams were not secured and
improperly spaced; (2) the chimney was too short causing carbon monoxide
to back into the house; and (3) a room in the basement was filled with
building debris, including asbestos. The plaintiff claims that Blanchard
was the Town building inspector assigned to inspect the house. Also, the
plaintiff alleges that no documents were in the Town's files that
demonstrated that a plumbing permit was ever issued for the house.
According to the complaint, the Town employed Boyce as a plumbing
inspector to inspect and perform the plumbing work on the house.
The plaintiff asserts that the individual defendants are members of the
local republican party and that they are all life-long friends. The
complaint indicates that Kunzig was instrumental in helping Boyce obtain
his position as a plumbing inspector for the Town and in helping him
obtain the plumbing contract on the house. Further, the plaintiff claims
that Kunzig used his position as a Town official and was paid a sum of
$2,000 to "expedite plans and permits" for the house.
On August 26, 1998, the Town issued a certificate of occupancy based on
Blanchard's inspections. The plaintiff claims that
certificate was issued without properly inspecting the house, she
purchased the house at a much higher price than its actual value. As a
result of the improperly issued certificate, the plaintiff alleges that
the defendants violated her Section 1983 equal protection rights. In
particular, Puccio contends that Kunzig used his position in the Town and
his political connections with Boyce and Blanchard so that the
certificate of occupancy would be issued regardless of whether the house
conformed with certain codes and regulations, thereby violating her right
to equal protection of the law.
A. Personal Jurisdiction over Kunzig
Kunzig contends that this Court never obtained jurisdiction over him
because a summons was not mailed to him at his actual place of business
or residence. An individual may be served pursuant to the law of the
forum state. Fed.R.Civ.P. 4(e)(1). In New York, service upon a natural
person is governed by Section 308 of the New York Civil Practice Law and
Rules which provides, in pertinent part, that:
Personal service upon a natural person shall be made
. . . by delivering the summons within the state to a
person of suitable age and discretion at the actual
place of business . . . of the person to be served
and by mailing the summons to the person to be served
at his or her last known residence or by mailing the
summons by first class mail to the person to be served
at his or her actual place of business . . ., such
delivery and mailing to be effected within twenty days
of each other . . . .
N.Y.C.P.L.R. § 308(2) (McKinney 2000) (emphasis added). Both the
delivery and the mailing are required. Id. In the present case,
although a summons and complaint was delivered to a person of suitable
age and discretion at Kunzig's place of employment, the affidavit of
service does not indicate that a subsequent mailing occurred. In
addition, Puccio does not allege that the summons was mailed.
Accordingly, Kunzig's motion to dismiss for lack of personal jurisdiction
B. Equal Protection Claim
The Town argues that the plaintiff has failed to state a claim upon
which relief can be granted and moves to dismiss the plaintiff's
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. On a motion to dismiss for failure to state a claim, the
Court should dismiss the complaint pursuant to Rule 12(b)(6) only if it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his complaint which would entitle him to relief. See King v.
Simpson, 189 F.3d 284, 286 (2d Cir. 1999); Bernheim v. Litt, 79 F.3d 318,
321 (2d Cir. 1996). The Court must confine its consideration "to facts
stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters
of which judicial notice may be taken." Leonard F. v. Israel Discount
Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999); Hayden v. County of
Nassau, 180 F.3d 42, 54 (2d Cir. 1999). The Court must accept all
factual allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. See Koppel v. 4987 Corp.,
167 F.3d 125, 127 (2d Cir. 1999); Jaghory v. New York State Dep't of
Educ., 131 F.3d 326, 329 (2d Cir. 1997). The issue to consider is not
whether a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims. See Villager Pond,
Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995). Indeed, it is
not the Court's function to weigh the evidence
that might be presented at
trial; instead, the Court must merely determine whether the complaint
itself is legally sufficient. See Villager Pond, at 378.
Puccio commenced the instant action pursuant to Section 1983, claiming
that the defendants violated her equal protection rights when they issued
a certificate of occupancy without undertaking proper inspection. The
plaintiff claims that the deviation from the customary inspections was due
to the defendants' political connections and Kunzig's monetary
motivation. Further, the plaintiff contends that she was treated
differently from other homeowners who obtained a certificate of occupancy
only after a proper inspection was made.
In order to bring an action under the Equal Protection Clause, the
plaintiff must show that: (1) she was selectively treated compared with
others similarly situated, and (2) the selective treatment was based on
impermissible considerations, such as membership in a suspect class,
intent to inhibit or punish the exercise of a constitutional right, or
malicious or bad faith intent to injure. Crowley v. Courville, 76 F.3d 47,
52-53 (2d Cir. 1996); LaTrieste Restaurant & Cabaret v. Village of
Port Chester, 40 F.3d 587, 590 (2d Cir. 1994). Failure to satisfy either
prong of the test requires dismissal of the plaintiff's claim. Penlyn
Development Corp. v. The Incorporated Village of Lloyd Harbor,
51 F. Supp.2d 255, 264 (E.D.N.Y. 1999).
Nowhere in the complaint does the plaintiff support her assertion that
she was personally treated differently by the defendants. Puccio relies
on Bletter v. Incorporated Village of Westhampton Beach, 88 F. Supp.2d 21,
25 (E.D.N.Y. 2000) to support her equal protection claim. However,
Bletter provides no such support. In Bletter, the plaintiff alleged an
equal protection violation against the defendant village for issuing a
certificate of occupancy without an adequate inspection. The plaintiff
claimed that the sellers of the house were able to obtain a certificate
of occupancy, despite their failure to comply with certain regulations,
because their attorney was well-connected to the political party in power
in the village. In granting summary judgment for the village, the court
held that the plaintiff failed to prove that she personally was treated
differently from other homeowners. Further, the court noted that the
sellers of the house, not the plaintiff, were the ones who received
preferential treatment since the sellers owned the house when the
certificate was issued. The facts from Blesser are indistinguishable
from the facts in the present case. Here, the complaint could be read to
allege that the Town gave preferential treatment to the sellers, not the
plaintiff, due to Kunzig's political influence.
Even if Puccio could demonstrate that she was treated differently, she
fails to allege how such treatment was based on an impermissible
consideration. While plaintiff claims that the defendants issued the
certificate with malicious intent or bad faith to injure her, she does
not include any allegations tending to support that the defendants
intended to injure her. Indeed, the complaint implies that the plaintiff
did not even own the house at the time the certificate was issued;
therefore, it is difficult to comprehend how the Town could have had
animus or malicious intent toward her. Accordingly, because the
plaintiff's complaint provides no set of facts in support of an equal
protection violation, the Court grants the Town's motion to dismiss.
C. Qualified Immunity
The Town moves to dismiss the complaint against Kunzig, Blanchard and
Boyce on the basis of qualified immunity. Because the Town has not filed
on behalf of the individual defendants, the Court declines
to address the issue of qualified immunity. However, where it is clear
that a plaintiff could not have prevailed on the facts alleged in the
complaint, as in the present case, the Court has discretion to address
claims sua sponte pursuant to Rule 12(b)(6). Citadel Mgmt., Inc. v.
Telesis Trust, Inc., 123 F. Supp.2d 133, 145 (S.D.N.Y. 2000); Fizgerald
v. Feinberg, 1999 U.S. Dist. LEXIS 12584, at *16 (S.D.N.Y. Aug. 16,
1999). Suo sponte dismissal is appropriate for failure to state a claim
where the plaintiff is given notice and opportunity to be heard. Id.
(citing Wachter v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994);
Humphreys v. Nager, 962 F. Supp. 347, 353 (E.D.N.Y. 1997).
Here, the Town has moved to dismiss the complaint in its entirety
pursuant to Rule 12(b)(6), and the plaintiff has fully responded. The
plaintiff is therefore on notice, and the Rule 12(b)(6) motion may be
considered with regard to Kunzig, Blanchard and Boyce. Because the Court
concludes that Puccio fails to provide any allegations supporting her
equal protection claim, the Court sua sponte dismisses her claims against
Kunzig, Blanchard and Boyce.
Kunzig and the Town move for sanctions against the plaintiff and her
counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure.
Kunzig and the Town argue that if the plaintiff's counsel had conducted a
reasonable investigation of the facts and the law prior to filing the
complaint, she would have realized that her client's claims were
frivolous and without merit. For Rule 11 sanctions to be warranted, "it
must be clear under existing precedents that there is no chance of
success." Shafii v. British Airways, PLC, 83 F.3d 566, 570 (2d Cir.
1996) (quoting Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990)). In
determining whether Rule 11 sanctions are appropriate, the Court must
apply the "objectively reasonable" test. See MacDraw, Inc. v. The Cit
Group Equip. Fin., 73 F.3d 1253, 1257 (2d Cir. 1996). The imposition of
Rule 11 sanctions is within the discretion of the court and should be
done with caution. See Caisse Nationale De Credit Agricole-CNCA v.
Valcorp., 28 F.3d 259, 264 (2d Cir. 1994).
As an initial matter, Rule 11(c) provides a safe harbor of twenty-one
days during which factual or legal contentions may be withdrawn or
appropriately corrected in order to avoid sanctions. Fed.R.Civ.P.
11(c)(1)(A). Thus, a motion for sanctions may not be filed until
twenty-one days after the motion is served upon the opposing party. The
safe harbor period begins to run only upon service of the motion. See
Siegel v. Pro-Ex Securities, 2002 U.S. Dist. LEXIS 9960, at *8 (S.D.N.Y.
2002). In addition, parties must move for sanctions "separately from
other motions or requests." Fed.R.Civ.P. 11(c)(1)(A).
In the present case, on May 14, 2002, Kunzig filed his motion to
dismiss for lack of personal jurisdiction along with his motion for
sanctions. Thus, he failed to move for sanctions separately from his
motion to dismiss as required under Rule 11. In addition, on April 1,
2002, the Town's Rule 11 motion was served on Puccio, and on the
following day, April 2, 2002, the Town filed the motion with the Court.
Therefore, the Town deprived Puccio of the "safe-harbor" period that
Rule 11 mandates. Although the Town asserts that it warned Puccio that it
would make this motion, the Second Circuit strictly construes the safe
harbor provision under Rule 11. See Hadges v. Yonkers Racing Corp.,
48 F.3d 1320, 1328 (2d Cir. 1995).
Therefore, the defendants'
noncompliance with this provision requires the denial of the motion for
Rule 11 sanctions. Furthermore, even if Kunzig and the Town had properly
filed their motion for sanctions, the Court finds that sanctions would
not be appropriate. Accordingly, the Court declines to impose sanctions
on the plaintiff and her counsel.
Based on the foregoing, it is hereby
ORDERED, that Kunzig's motion to dismiss the complaint for lack of
personal jurisdiction is GRANTED; and it is further
ORDERED, that the Town's motion to dismiss the complaint pursuant to
Rule 12(b) of the Federal Rules of Civil Procedure is GRANTED; and it is
ORDERED, that the complaint against Kunzig, Blanchard and Boyce is
DISMISSED; and it is further
ORDERED, that the motions for Rule 11 sanctions by Kunzig and the Town
are DENIED; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
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