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Osborne v. Fernandez

March 31, 2009

GEORGE R. OSBORNE AND PATRISHA S. OSBORNE D/B/A SHERWOOD FOREST, PLAINTIFFS,
v.
GERARDO FERNANDEZ, JOHN ROYALL, ARTHUR FREEHILL, JOHN KEMMERER, JAMES FOUTS, AND ADOPTING REPORT THOMAS ANGELL, INDIVIDUALLY AND AS MEMBERS OF THE AND RECOMMENDATION PLANNING BOARD OF THE TOWN OF STANFORD, DEFENDANTS.



The opinion of the court was delivered by: Seibel, J.

MEMORANDUM DECISION AND ORDER

On May 31, 2006, Plaintiffs George Osborne ("G. Osborne") (now proceeding pro se) and Patrisha Osborne ("P. Osborne") (still proceeding with counsel) filed this lawsuit against Defendant Planning Board Members John Royall, Arthur Freehill, John Kemmerer, James Fouts, and Thomas Angell (collectively, "Board Member Defendants"), and Defendant Planning Board Chairman Gerardo Fernandez. Before the Court is the Report and Recommendation of Magistrate Judge Lisa Margaret Smith dated July 16, 2008 (the "R&R"), in which she recommends that this Court grant Defendants' Motions for Summary Judgment and dismiss Plaintiffs' Complaint in its entirety. For reasons stated herein, the Court adopts the R&R, grants Defendants' Motions, and dismisses Plaintiffs' Complaint.

I. Background

A. Facts & Procedural History

The Court will only briefly discuss the background of the case. Otherwise, I adopt the statement of facts as it is thoroughly set forth in the R&R.*fn1

Plaintiffs own 132 acres of land in the Town of Stanford, New York. Desiring to subdivide this parcel into separate plats of land, Plaintiffs began the subdivision application process by appearing before the Town of Stanford Planning Board ("Planning Board") on September 29, 2004, for a "pre-application conference." Over the next several years, the application process continued, and, to this day, Plaintiffs have not received final approval for their proposed subdivision. Plaintiffs did, however, receive preliminary approval of their application on August 30, 2006, six weeks after this lawsuit was filed.

In their Complaint, Plaintiffs allege that Defendants "engaged and participated in a scheme, beginning in 2004, to deny [P]laintiffs' application for approval of a small residential subdivision." (Compl. ¶ 1.) According to Plaintiffs, Defendants' alleged actions in connection with Plaintiffs' application "were committed in bad faith, and were malicious, intentional, and deliberate." (Id. ¶ 114.)

Plaintiffs' Complaint alleges causes of action pursuant to 42 U.S.C. § 1983 ("Section 1983") -- (1) violation of Plaintiffs' First Amendment rights "by prohibiting plaintiffs from speaking with other applicants and from speaking or communicating with Board-appointed professional consultants assigned to plaintiffs' project" (id. ¶¶ 2, 116-18); (2) violation of Plaintiffs' procedural due process rights "by creating Planning Board operating rules which intentionally and indefinitely delay and defer consideration and determination and eventually lead to the denial of plaintiffs' application" (id. ¶¶ 2, 119-21); (3) violation of Plaintiffs' substantive due process rights "by failing and refusing to make decisions or by reversing decisions, and thereby depriving plaintiffs of valuable property interests" (id. ¶¶ 2, 122-24); and (4) violation of Plaintiffs' rights to equal protection of the law "by unequal application and selective enforcement of the Town Subdivision Law" (id. ¶¶ 2, 125) -- as well as various claims under New York State law: (5) breach of duty of good faith and fair dealing (id. ¶¶ 127-33); (6) deceptive acts and practices in violation of New York General Business Law § 349 (id. ¶¶ 134-38); (7) intentional, knowing, and malicious destruction of rights, property, and future opportunity (id. ¶¶ 139-40); and (8) intentional infliction of emotional distress (id. ¶¶ 141-46).

On August 31, 2007, the Board Member Defendants filed a Motion for Summary Judgment (Doc. 41), and on October 24, 2007, Defendant Fernandez also filed a Motion for Summary Judgment (Doc. 47). The Honorable Charles L. Brieant referred the case to Magistrate Judge Smith for all purposes on February 20, 2007.*fn2 Magistrate Judge Smith issued a report and recommendation with regard to Defendants' Motions on July 16, 2008. (Doc. 71.)

Plaintiffs Patrisha and George Osborne filed objections to the R&R on September 15, 2008, and November 26, 2008, respectively. (Docs. 85, 93.) The Board Member Defendants and Defendant Fernandez responded to Plaintiffs' Objections in letters dated January 9, 2009, and January 11, 2009, respectively.*fn3 (Docs. 95, 96.)

B. Summary of Recommendations

Magistrate Judge Smith has recommended that this Court adopt the following dispositions with respect to Plaintiffs' various pending claims:

(1) grant summary judgment to Defendants on Plaintiffs' due process and equal protection claims on the ground that they are not yet ripe for adjudication;

(2) even if the claims are ripe, grant summary judgment to Defendants on Plaintiffs' due process claims on the ground that Plaintiffs have not established that ...


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