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Javino v. Town of Brookhaven

March 4, 2008

DALE ROBERT JAVINO, PLAINTIFF,
v.
TOWN OF BROOKHAVEN, BRIAN X. FOLEY, TOWN SUPERVISOR, TWO UNKNOWN BROOKHAVEN ENFORCEMENT OFFICIALS ONE NAMED MACCABEE, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, MARK E. SIMMONS, MASTIC BEACH PROPERTY OWNERS ASSOCIATION AND ALL THEIR MEMBERS AND OTHERS WHO WILL BE GLEANED THROUGH DISCOVERY, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

INTRODUCTION

On March 27, 2007, this Court dismissed Dale Robert Javino's ("Plaintiff") Complaint with leave to file an Amended Complaint addressing the jurisdictional deficiencies noted in the original Complaint. Plaintiff filed an Amended Complaint on May 15, 2007, alleging essentially the same claims as in his original Complaint. Pending before the Court are two motions to dismiss. One is brought by John Turner ("Turner"), Director of the Department of Environmental Protection for the Town of Brookhaven, Brian X. Foley ("Foley"), Town Supervisor for the Town of Brookhaven, Walter Maresco ("Maresco") and Kevin Maccabee ("Maccabee"), Brookhaven Senior Inspectors, and the other is brought by Denise M. Sheehan ("Sheehan") and Alexander Pete Grannis ("Grannis"), past and present Commissioners of the New York State Department of Environmental Conservation ("DEC"), and Mark E. Simmons, DEC Officer (collectively, the "DEC Defendants"). For the reasons below, the Court GRANTS Defendants' motions to dismiss.

BACKGROUND

The facts of this case are discussed in detail in the Court's March Order. In brief, Plaintiff owns residential land in the town of Brookhaven. (Complaint "Compl." ¶ 1.) On March 16, 2006, Plaintiff and a friend delivered a truckload of beans to a public roadway adjoining Plaintiff's property. At some point, a group of local residents surrounded Plaintiff's truck to demand an explanation of what Plaintiff and his friend were doing. Plaintiff explained that he was unloading his truck so he could plant the beans on his property the next day.

Shortly thereafter, the police arrived and told Plaintiff to move the beans off the dirt road and onto Plaintiff's property. Plaintiff protested, claiming that part of the dirt road belonged to him, but the police again told Plaintiff to move the bean bags. (Id. ¶ 11.) Later that evening, Simmons arrived and issued two notices of hearings to Plaintiff. The first notice stated that Plaintiff deposited an "unwholesome substance on a highway," and the other stated that Plaintiff conducted regulated activity on a "tidal wet land without a permit." (Id. ¶ 12.)

At around 7:30 p.m., Foley arrived with a television crew. The crew filmed the scene and discussed it as an illegal nighttime dumping. Plaintiff asserts that people constantly ridicule him because of the television footage. (Id. ¶ 13.)

Inspectors Maccabee and Maresco eventually arrived at the scene. Inspector Maccabee issued nine appearance tickets to both Plaintiff and his friend for: (1) not having a certificate of occupancy of a waste transfer facility, (2) litter, (3) litter, (4) causing a public safety condition, (5) no wet land permit, (6) no site plan, (7) obstruction, (8) private disposal area, and (9) dumping. Plaintiff claims these violations were improperly issued because his property is not described as a wetland and is zoned for residential occupancy. Plaintiff contends that he did not need a permit to grow beans.

Plaintiff commenced this action on March 20, 2006 alleging a Section 1983 claim for regulatory taking and a common law defamation claim against Foley. On March 27, 2007, this Court dismissed the Complaint in its entirety and held that the Court did not have jurisdiction over Plaintiff's regulatory taking claim because Plaintiff failed to obtain a decision from a local land use authority and failed to exhaust his administrative remedies. Because Plaintiff's federal claim was not ripe, this Court declined to exercise supplemental jurisdiction over the state law claim. Recognizing that Plaintiff was proceeding pro se, this Court granted Plaintiff an opportunity to amend his Complaint to address the jurisdictional defects noted in the original Complaint. Plaintiff filed an Amended Complaint on May 15, 2007, but did not allege any facts in the new Complaint establishing that Plaintiff attempted to comply with jurisdictional prerequisites. Although Plaintiff's Complaint is difficult to decipher, it appears to allege a "regulatory taking" cause of action against Turner, a defamation claim against Foley, an unknown cause of action against Maccabee and Maresco for "prevent[ing] the innocent usage of simply planting beans on [Plaintiff's] property," a deprivation of civil rights claim against Sheehan and Grannis, a constitutional claim against Simmons seeking injunctive relief from issuing any further violation notices, an unknown cause of action for punitive damages against the Mastic Beach Property Owners Association for making statements that "attack[ed] [Plaintiff] personally," and a claim of defamation against Cablevision.

STANDARD OF REVIEW

I. Rule 12(b)(1)

Under Rule 12(b)(1), a defendant can facially attack a complaint and contest the sufficiency of the pleadings, or can factually attack the complaint and assert that the court lacks jurisdiction based on the facts as alleged. See Tasini v. N.Y. Times Co., Inc., 184 F. Supp. 2d 350, 353 (S.D.N.Y. 2002) (citing Sniado v. Bank Austria AG, 00-CV-9123, 2001 WL 812236, at *1 (S.D.N.Y. Jul. 18, 2001)); see also Greater N.Y. Hosp. Assoc. v. United States, 98-CV-2741, 1999 WL 1021561, at *4 (S.D.N.Y. Nov. 9, 1999). The material a court may review depends upon the type of attack being made. Harriman v. I.R.S., 233 F. Supp. 2d 451, 456 (E.D.N.Y. 2002). When a defendant claims a plaintiff failed to allege facts required for jurisdiction, a "court should review the complaint, deeming all averments as true, for sufficiency." Id. at 457. If a defendant factually challenges the allegations in a complaint, a court "may consider affidavits and other material beyond the pleadings to resolve the jurisdictional question." Id.; see also Araujo v. John Hancock Life Ins. Co., 206 F. Supp. 2d 377 (E.D.N.Y. 2002) (citing Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir. 2001)). Truth of the allegations in the complaint is not presumed, but "rather, the burden is on the plaintiff to satisfy the Court, as fact-finder, of the jurisdictional facts." Tasini, 184 F. Supp. 2d at 353-54 (quoting Guadagno v. Wallack Ader Levithan Assoc., 932 F. Supp. 94, 95 (S.D.N.Y. 1996), aff'd, 125 F.3d 844 (2d Cir. 1997) (citations omitted)).

II. Rule 12(b)(6)

In Bell Atl. Corp. v. Twombly, --- U.S. ---, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007), the Supreme Court disavowed the half-century old standard set forth in Conley v. Gibson that "a complaint should not be dismissed for failure to state a claim 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 v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957), (overruled by Bell Atl. Corp., 127 S.Ct. 1955 (2007). Holding that "Conley's 'no set of facts' language has been questioned, criticized, and explained away long enough," the Supreme Court expressly rejected the standard in favor of a requirement that the plaintiff plead enough facts "to state a claim for ...


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