The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION AND ORDER
This case arises out of the purchase of residential property located at 59 Larabee Avenue, Oyster Bay, New York, by the plaintiffs, Julie and Justin Lamothe from the defendants Vincent and Diane Aquilino on April 12, 2005. The home is alleged to have a checkered history, to say the least.
The plaintiffs allege that in 1955, the house was substantially flooded as a result of being located "only steps from the Long Island Sound." They further allege that in 1999, the then-owner of the home hired a restoration company to inspect the house, and was informed that the house was "unsalvageable" and would need to be demolished. That same year, Vincent Aquilino, an employee of the Town of Oyster Bay purchased the home for $175,000.
The plaintiffs contend that the defendants were aware that there are fresh water springs located directly under the house, which results in a large amount of water flooding the house in heavy rainfall. The plaintiffs allege that Aquilino purchased the property with the knowledge that water would constantly flood the basement and that the force of the water would, at times, be sufficiently intense to remove mortar and brick and cause the foundation to weaken.
It is further alleged that Aquilino restored the home, including moving the house and setting it on a new, but improper foundation, and building additions and a detached garage. The plaintiffs also allege that due to his employment with the Town, Aquilino was permitted to move the home to this substandard foundation and to sell the home to the plaintiffs without the proper permits, certificates of occupancy, or a "Percolation Test" to determine the ability of the ground to effectively absorb water. In addition, the plaintiffs allege that the house was built with a large basement that would not have been permitted because of the presence of the springs absent Vincent Aquilino's relationship with the Town. Finally, the plaintiff alleges that although the Aquilinos contend that the house was restored by Woodstock Construction, a licensed builder, Vincent Aquilino actually did the work himself without the proper certifications and permits.
The plaintiffs further contend that the Aquilinos sold the home to the plaintiffs as a "new construction" without mentioning the water damage or the flooding that had previously occurred on the property or any of the latent defects. The plaintiffs contend that they experienced a severe flood in October of 2005. Following the flood, Julie Lamothe went to the town to request a copy of the file on her "new" home and found that it was missing a building inspection of soil conditions, inspections for the foundation, waterproofing, membrane, insulating and footing, and inspections of both the sewer and sanitary systems. Julie asked the Town Clerk to identify the signatures on the building inspector's reports for the home, but was simply informed that the person was deceased, without being advised of the name.
It is further alleged that on or about February 9, 2008, Eileen Cannizzaro, a Town of Oyster Bay zoning inspector discovered that Julie's son, Justin, was using as an apartment, the garage attic that was built by the Aquilinos as an addition to the house. The inspector filed an information in the Nassau County District Court charging Julie Lamothe with maintaining an illegal dwelling in violation of the Town Building Code. In addition, the plaintiffs allege that they were harassed by other Town inspectors and that in each instance, the inspectors held Julie in violation of a Town code. The complaint alleges that the filing of the information against Julie was discriminatory and in retaliation for her comment during a telephone call with defendants Jack Libert and Tim Zikes, members of the Department of Planning and Development, that the Town officials were committing "illegal and immoral acts."
In response to the alleged harassment, the plaintiffs instituted this action on May 21, 2008. The first two counts of the complaint, against all defendants, allege unlawful discrimination, harassment, and retaliation, as well as violations of the plaintiffs' Due Process and Equal Protection rights while the defendants were acting under color of state law. The third cause of action alleges fraud and misrepresentation against the Aquilino defendants in connection with the sale of the home. The fourth cause of action alleges that the "Town, its departments and the individual defendants unlawfully participated in, aided, abetted, incited and/or compelled the fraudulent and deceitful practices against the Plaintiffs, and allowed them to perpetuate, without abatement, in violation of Plaintiffs' above-mentioned constitutional and statutory rights, by and through their aforementioned actions." The fifth and final cause of action alleges that the defendants conspired together to defraud the plaintiffs and induce them into purchasing the property.
Presently before the Court is a motion by the Aquilino defendants to dismiss all causes of action as against them pursuant to Federal Rule of Civil Procedure 12(b)(6). The Aquilino defendants initially argue that the first two causes of action are insufficient because the complaint is devoid of any allegation of involvement of either Aquilino in connection with the Town inspections or the prosecution of Julie Lamothe for violation of the Town Building Code. In recognition that the Aquilinos are non-governmental defendants, the plaintiffs concede that only the pendant state law claims for fraud and misrepresentation. Counts three, four, and five apply to the Aquilinos. (See Plaintiff's Brief in Opposition, Dec. 12, 2008, at 1). Accordingly, the Court will deem the first and second cause of action withdrawn as to Vincent and Diane Aquilino.
In addition, the Aquilinos contend that the remaining causes of action should be dismissed because (1) these pendant state law claims fail to satisfy the New York pleading requirements of particularity as set forth in New York CPLR 3016(b); (2) the contract of sale between the plaintiffs and the Aquilinos specifically disclaims any representations made by the seller; and (3) no cause of action for conspiracy to commit fraud exists separate and apart from an independent cause of action for accessorial liability in connection with a fraud.
In considering a Rule 12(b)(6) motion to dismiss, "[t]he appropriate inquiry is not whether a plaintiff is likely to prevail, but whether the plaintiff is entitled to offer evidence to support her claims." Palkovic v. Johnson, 281 Fed. Appx. 63, 66 (2d Cir. 2008) (citing Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005)). A complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Recently, in Ashcroft v. Iqubal, 129 S.Ct. 1937 (2009), the Supreme Court made clear that Twombly's plausibility standard will apply to "all civil actions." Iqbal, 129 S.Ct. at 1953.
The Second Circuit has explained that the Court's inquiry is guided by "'two working principles.'" Harris v. Mills, No. 07CV2283, 2009 WL 1956176, at *4 (2d Cir. July 9, 2009). "First, although 'a court must accept as true all of the allegations contained in the complaint,' that 'tenent' 'is inapplicable to legal conclusions....'" Id. (quoting Iqbal, 129 S.Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do no suffice.")). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. (quoting Iqbal, 129 S.Ct. at 1950). "A claim has facial plausibility when the ...