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Nasca v. Town of Brookhaven

September 25, 2008

DEAN NASCA, PLAINTIFF,
v.
THE TOWN OF BROOKHAVEN, RICHARD PALAZZOTTO, EDWARD H. MCCARTHY, GEOFFREY H. PFORR, KRAL, CLERKIN, REDMOND, RYAN, PERRY & GIRVAN, LLP, AND JOHN DOES 1-10 SAID NAMES BEING FICTITIOUS AND INTENDING TO REPRESENT EMPLOYEES, AGENTS AND ASSIGNS OF THE TOWN OF BROOKHAVEN, DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Biano, United States District Judge

MEMORANDUM and ORDER

Plaintiff Dean Nasca (hereinafter, "Nasca" or "plaintiff") brings this action against the Town of Brookhaven (hereinafter, "Brookhaven" or the "Town"), and Richard Palazzotto (hereinafter, "Palazzotto"), Edward H. McCarthy, Geoffrey H. Pforr, Kral, Clerkin, Redmon, Ryan, Perry & Grivan, LLP, and John Does 1-10 said names being fictitious and intending to represent employees, agents and assigns of the Town of Brookhaven (hereinafter, collectively, the "defendants"), asserting violations of 42 U.S.C. §§ 1982, 1983, 1985, and 1986, based upon alleged violations of his Fourth, Fifth, and Fourteenth Amendment Rights under the Constitution. Specifically, Nasca alleged in the complaint that Building Inspector Palazzotto's entrance onto his property in October 2003 - namely, his entrance onto his driveway and porch which led to the issuance of a Notice of Violation for, among other things, having an unsafe chimney - constituted an illegal search and seizure in violation of the Fourth Amendment.*fn1 Over the course of this litigation, Nasca has articulated other claims including, among other things, a contention that the Code of the Town of Brookhaven (hereinafter, "the Code") 82-4(A)(1), which makes it unlawful to rent property to a nonimmediate family member without a rental occupancy permit, is unconstitutional.

Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has also cross-moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' motion is granted in its entirety on the federal claims and plaintiff's crossmotion is denied. Finally, given that the federal claims do not survive summary judgment, the Court declines to exercise supplemental jurisdiction over the pendent state law claims.

I. BACKGROUND

A. Facts

The facts described below are taken from the parties' depositions, affidavits, exhibits and the parties' Local Rule 56.1 statement of facts. Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to plaintiff, the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005).

Plaintiff Dean Nasca resides at 89 Gillette Avenue in Bayport, New York ("Gillette Avenue"), and has lived there for the past ten years with his wife and family. (Defs.' 56.1 ¶ 2.) The plaintiff also owned the subject premises located at 23 Plaza Lane, Selden, New York ("Plaza Lane" or the "premises"), with his father, Thomas Nasca. (Defs.' 56.1 ¶ 3.) Nasca and his father purchased the premises in 1989 for $150,000. (Defs.' 56.1 ¶ 4.) Nasca had lived at Plaza Lane from October of 1989 through May of 1995, when he moved to Gillette Avenue. (Defs.' 56.1 ¶ 5.) Nasca's father has never lived at the Plaza Lane property. (Nasca Dep. 11:6-7.) Nasca asserts that, even after moving out of Plaza Lane, he continued to retain a portion of the dwelling. (Nasca Dep. 8:4-7.)

The premises located at Plaza Lane had an accessory apartment on the second floor during the period of time that Nasca resided there. (Defs.' 56.1 ¶ 6.) An "accessory apartment" is defined by § 85-(1)(B) of the Code as a "dwelling unit which is subordinate to a permitted principal one-family residence use in terms of size, location and appearance and is located within the principal structure." Code § 85-201(B)(1) requires owner occupancy of a premises containing an accessory apartment. Section 85-201 of the Code requires that the owner of a premises with an accessory apartment obtain a special permit which is initially valid for a three-year period and thereafter renewable for five-year periods. Pursuant to § 85-201(B)(10) of the Code, the accessory apartment permit terminates upon the death of the owner or the survivor of the owner, upon the transfer of title to the premises, or upon the owner no longer occupying the premises as a principal residence. Pursuant to § 82-4 of the Code, a rental occupancy permit is required for the owner of a dwelling unit to "use, establish, maintenance, operate, let, lease, rent or suffer or permit the occupancy and use thereof as a rental occupancy by someone other than the owner or his immediate family." According to Section 82-1(A) of the Code, the legislative intent of Chapter 82 was to "preserve the aesthetic integrity of our residential neighborhoods, prevent neighborhood blight, protect residential property values, encourage residential property maintenance and enhance the quality of life in our residential neighborhoods."

At the time the plaintiff purchased the Plaza Lane premises in 1989, there was an accessory apartment permit for the second floor which had been transferred to the plaintiff. (Defs.' 56.1 ¶ 13.) Nasca renewed the accessory apartment permit several times during the period of time that he owned the Plaza Lane premises. (Defs.' 56.1 ¶ 14.)

The Certificate of Occupancy for the subject premises was issued on February 1, 1967, for use of the premises as a one-family framed dwelling. (Pforr Aff., Exh. C.) The plaintiff rented the Plaza Lane premises to tenants from May of 1995 until the house was sold in June of 2005. (Defs.' 56.1 ¶ 18.)

On March 31, 1997, Nasca submitted a renewal application for accessory apartment use for the Plaza Lane premises. (Pl.'s 56.1 ¶ 1.) Additionally, Nasca notified the Town of Brookhaven that any previous Inspection Affidavit consent form was revoked and that Nasca no longer consented to periodic inspections of the subject premises without prior written consent of either Dean Nasca or Thomas Nasca. (Pl.'s 56.1 ¶ 2.) The Town received the application, letter, and fee in the amount of $250.00 for renewal of the accessory apartment permit. (Pl.'s 56.1 ¶ 3.) The Town did not approve or deny the renewal application for an accessory permit for the property, but rather failed to act. (Pl.'s 56.1 ¶ 4.)

In 2000, Nasca received a letter from the Town advising him that a rental permit was needed for non-owner occupied dwellings. (Defs.' 56.1 ¶ 15.) In 2000, Nasca did not apply for a rental registration permit because he believed that the legislation requiring the permit was unconstitutional. (Nasca Dep. 18:4-12.)

On June 27, 2000, Building Inspector Carlo Fusco ("Fusco") sent Nasca a Notice of Complaint for an unregistered rental house located at 23 Plaza Lane. In a letter dated July 7, 2000, Nasca responded to Fusco. (Pl.'s 56.1 ¶ 8.) The letter specifically stated that no individual from the Town may enter upon any portion of the Plaza Lane Property prior to receiving written consent from either Dean or Thomas Nasca. (Pl.'s 56.1 ¶ 8.)

Section 82-1 of the Code, entitled "Legislative Intent," provides that Chapter 82 applies to all "dwelling units within the Town of Brookhaven other than property located in the Great South Beach (Fire Island), which will be regulated by § 85-107.1 of the Code of the Town of Brookhaven." (Code of the Town of Brookhaven §82-1.) The Town issued a Legal Notice scheduling a public hearing for October 15, 2002 concerning the amendment of the Code §§ 85-170.1, 170-2, 170.3, and 170.4, pertaining to the seasonal rentals within the Great South Beach on Fire Island. (Pforr Aff. Exh. K.) The plaintiff's former premises located at 23 Plaza Lane is not located on the Great South Beach on Fire Island.

In October of 2003, Nasca received a "Notice of Violation" letter dated October 15, 2003 that was signed by Richard Palazzotto, CCI, Senior Building Inspector for the Town of Brookhaven, informing Nasca that the Plaza Lane premises was in violation of New York State Building Code Section FG503.5.6.3 for having an unsafe chimney and was in violation of the Code of the Town of Brookhaven 82- 4(A)(1) for failing to have a rental permit. (Nasca Dep. 39:21-40:2; Pforr Aff. Exh. C.) Palazzotto went to the Plaza Lane premises and knocked on the door, but no one answered. (Palazzotto Dep. 12:20-25.) As Palazzotto was walking up the driveway, he observed that the chimney, located on the right side of the house, was unsafe in that it was pulling away from the house. (Palazzotto Dep. 20:23-21:13.) Palazzotto believed that Nasca did not live at the premises in October 2003 based on a check of Cole's Directory, which is a reverse phone book that lists the addresses and occupants of residences. (Palazzotto Dep. 20:4-9.) Neither Dean Nasca nor Thomas Nasca ever received any summonses or appearance tickets from the Town, relative to the Plaza Lane premises, (Nasca Dep. 49:7-17), nor did the Town ever commence any litigation against them relative to the Plaza Lane property. (Nasca Dep. 49:18-21.)

In June of 2005, Nasca put the Plaza Lane premises on the market and eventually sold the property for $367,000. (Nasca Dep. 27:7- 11.)

B. Procedural History

Nasca commenced this action on January 10, 2005, alleging violations of his civil rights, pursuant to 42 U.S.C. §§ 1982, 1983, 1985, and 1986. In support of these claims, Nasca alleged violations of his Fourth, Fifth and Fourteenth Amendment rights under the Constitution. On February 8, 2005, defendants answered the complaint. On February 29, 2008, defendants filed a motion for summary judgment. On March 5, 2008, defendants filed an amended motion for summary judgment. On May 30, 2008, plaintiff filed his opposition to defendants' motion for summary judgment and crossmoved for summary judgment. On June 16, 2008, defendants filed their reply and an opposition to plaintiff's cross-motion for summary judgment. On June 30, 2008, plaintiff filed his reply. Oral argument was held on July 25, 2008. The Court has carefully considered all the submissions by the parties.

II. DISCUSSION

A. Summary Judgment Standard

The standards for summary judgment are well-settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 492 F.3d 89, 96 (2d Cir. 2007). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004); see Anderson, 477 U.S. at 248 (holding summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party"); Rivkin v. Century 21 Teran Realty LLC, 494 F.3d 99, 103 (2d Cir. 2007). As such, "if 'there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn, the moving party simply cannot obtain a summary judgment.'" Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (quoting R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997)) (alteration in original).

Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted); Tufariello v. Long Island R.R., 364 F. Supp. 2d 252, 256 (E.D.N.Y. 2005). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).

Moreover, where the plaintiff is proceeding pro se, the Court must "construe the complaint broadly, and interpret it to raise the strongest arguments that it suggests." Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)). Though a pro se litigant's pleadings are afforded wide latitude, a pro se party's "bald assertion," completely unsupported by evidence, is not sufficient to defeat a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). Instead, to overcome a motion for summary judgment, the non-moving party "must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal citations omitted); see also Morris v. Ales Group USA, Inc., No. 04-CV-8239 (PAC), 2007 U.S. Dist. LEXIS 47674 2007 U.S. Dist. LEXIS 47674, at *10 (S.D.N.Y. June 28, 2007) ("[T]o survive summary judgment, plaintiff's facts 'must be ...


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