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Christian v. Town of Riga

August 17, 2009


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff Valentin Christian ("Christian" and/or "plaintiff"), brings this action alleging various counts against numerous defendants*fn1 including the tort of trespass, common law fraud, mail fraud under 18 U.S.C. § 1341, wire fraud under 18 U.S.C. § 1343, Official Misconduct claims under New York Penal Law § 195, Conspiracy claims under 18 U.S.C. § 241, denial of right under color of law pursuant to 18 U.S.C. § 242, denial of due process and equal protection rights under 42 U.S.C. § 1983, false advertising in violation of New York State Penal Law § 190.20 and RICO claims under 18 U.S.C. §§ 1961-1968. In twenty-four causes of action, plaintiff alleges that defendants engaged in various acts of illegal behavior. Defendants now move to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim or alternatively for a more definite statement under Rule 12(e). Plaintiff moves to amend his Amended Complaint. For the reasons set forth below, defendants' motion to dismiss is granted and plaintiff's motion to amend is denied as moot. Accordingly, plaintiff's Amended Complaint is dismissed.


Unless otherwise noted, the facts as set forth in this Decision and Order are drawn from plaintiff's Amended Complaint, as is appropriate on consideration of a Rule 12(b)(6) motion to dismiss, including documents incorporated by reference or upon which plaintiff relied in drafting the complaint, as well as from public documents. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993) (When determining sufficiency of plaintiff's claim for Rule 12(b)(6) purposes, consideration is limited to factual allegations in amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff's possession or of which plaintiff had knowledge and relied on in bringing); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 511 (S.D.N.Y.1997).

On or about December 7, 2005, plaintiff submitted an application for a permit to build a 149 foot tall tower on his property with a wind turbine and antenna attached to general electricity to his residence and radio waves to his ham radio located therein. See Am. Comp., Statement of Claim, ¶ 10. The proposed location for this tower was on farmland adjacent to plaintiff's residence. See id. Later that same day, plaintiff met with Building Inspector Timothy McElligott ("McElligott") who expressed several concerns regarding the application including the fact that windmills and wind turbines are controversial, the proposed site for the wind turbine tower was on a parcel separate from plaintiff's residential lot and that McElligot's reading of the Riga Town Zoning Code did not explicitly permit electricity generating wind turbines or windmills. See id., ¶ 11. On December 9, 2005 plaintiff submitted a second application for a permit. See id., ¶ 12. This application was different from the first in that it specified the tower's location to be on the residential parcel of land. See id.

Following discussions with plaintiff, McElligot determined that a special use permit was required and denied the application for that reason in a letter dated December 19, 2005 and subsequently December 29, 2005. See id., ¶¶ 13-15. According to the Amended Complaint, McElligot determined that the wind turbine was a "utility" that required a special use permit. See id., ¶ 15. Plaintiff appealed McElligot's December 19, 2005 decision on February 17, 2006 to the Town of Riga Zoning Board of Appeals ("ZBA") of which he was a member, and requested an interpretation. See id., ¶ 18. In essence, plaintiff appealed McElligot's interpretation that the law required a special use permit before the issuance of a building permit. On March 2, 2006, the ZBA accepted plaintiff's appeal at its hearing and adjourned the application to May 4, 2006 with knowledge of an impending proposed Public Law moratorium on all wind turbine towers, which moratorium would be considered at the next Town Board meeting to be held on March 14, 2006. See id., ¶¶ 19-27.*fn2

On March 10, 2006, plaintiff made four additional applications for similar towers which differed in size, cost, location and foundation. See id., ¶ 28. Building Inspector Stephen Trenton ("Trenton") indicated by phone to the plaintiff that he would not be responding to any permit requests until after the ZBA ruled on the matter. See id., ¶ 29. However, plaintiff's four new applications were denied by Trenton on March 17, 2006 for the same reason as the original application. See id., ¶ 34. On March 14, 2006, prior to plaintiff's hearing date of May 4, 2006 (which was the adjourned date set by the ZBA), the Town Board passed a local law declaring a moratorium effective immediately on the filing or issuance of permits for turbine towers in the Town of Riga. See id., ¶ 32. On May 4, 2006 a public hearing was held before the ZBA wherein the ZBA reversed the Building Inspector's interpretation and declared that a special use permit was not required for the issuance of the plaintiff's requested building permit to construct a tower with a combined wind turbine and antenna. See id., ¶ 39-40.

According to the Amended Complaint, the Town Board of Riga at a meeting held on August 8, 2006 extended the moratorium for an additional 120 days effective August 22, 2006. See id., ¶¶ 49-50. Plaintiff did not file any further permits until December 21, 2006. See id., ¶ 53.*fn3 On that day plaintiff submitted a letter to Building Inspector Matthew Chapman ("Chapman") noting the expiration of the moratorium and requesting issuance of the building permit which plaintiff initially applied for in December 2005. See id., ¶ 53. On December 21, 2006, acting upon plaintiff's demand for a permit during the lapse of the moratorium, Chapman issued via fax and mail a denial of the permit until he received additional information including requirements for site plan distance, soil certifications, insurance coverage during construction and architectural approval, which had not been contained in the original application, nor previously requested by the prior Building Inspectors, and not stated as a basis for the prior denial. See id., ¶ 54.

Plaintiff alleges that on December 26, 2006, Chapman issued an additional letter citing applicable town code and/or state standards upon which the Building Inspector relied and stating that "the construction of the wind and antenna towers require that a building permit be obtained." See id., ¶ 55. As previously mentioned, on December 28, 2006, the Town Board reinstated the moratorium for an additional sixty days until February 28, 2007. On January 16, 2007, plaintiff sought relief as an aggrieved person from the moratorium by appealing to the Town Board pursuant to Article V, Section 401 and which plaintiff entitled "Appeal per Wind Moratoria Local Law of 2006." See id., ¶ 60.*fn4 Article V, Section IV states that the application process and time for hearing such appeal was to be "in conformance with the procedural requirements and standards of the Town Zoning Ordinance." See id., ¶ 56. However, no action was taken on plaintiff's application i.e. the Riga Town Board failed to respond to the appeal. See id., ¶ 61. On January 11, 2008, plaintiff submitted a letter to the Riga Town Board requesting a response regarding his appeal. See id., ¶ 62. Plaintiff received no response to his letter. See id., ¶ 63. Plaintiff submitted another letter on February 22, 2008 and again received no response. See id., ¶¶ 64-65. Accordingly, it was approximately one year (January 11, 2008 and February 22, 2008) after the February 28, 2007 moratorium date had expired that the plaintiff demanded that the Town Board of Riga act on his prior application.


I. Motion To Dismiss Standard

Defendants have moved to dismiss plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A complaint generally need only contain a "short and plain statement of the claim showing that the plaintiff is entitled to relief" to satisfy federal notice pleading requirements. See Fed.R.Civ.P. 8(a); Gregory v. Daly, 243 F.3d 687, 692 (2d Cir.2001). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court's belief or disbelief in a complaint's factual allegations or its belief that a "recovery is very remote and unlikely" does not factor into a decision under Rule 12(b)(6). See id. Furthermore, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (citation omitted). Therefore, the Court must read plaintiff's Amended Complaint liberally. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (as plaintiff is proceeding pro se , the Court must read his pleadings liberally to state the strongest claims they suggest).

To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007)). In considering a Rule 12(b)(6) motion to dismiss, the Court "'must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.'" See Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008) (quoting Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir.2007)). However, the court may disregard a plaintiff's "legal conclusions, deductions or opinions couched as factual allegations." See, e.g., In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007) (citation omitted). The court is also not required to credit conclusory statements unsupported by factual allegations. See, e.g., Otor, S.A. v. Credit Lyonnais, S.A., 2006 WL 2613775, at *2 (S.D.N.Y.2006); see also Davey v. Jones, 2007 WL 1378428, at *2 (S.D.N.Y.2007) (citation omitted) ("[B]ald contentions, unsupported characterizations, and legal conclusions are not well-pleaded allegations, and will not suffice to defeat a motion to dismiss.")

II. Criminal Statutes Under 18 U.S.C. §§ 1341, 1343, 241 and 242

Plaintiff's recitation of Sections 241, 242, 1341 and 1343 of the United States Criminal Code in Counts 3, 4, 6 [second count 6], 7 (to the extent alleging a violation of 18 U.S.C. § 242), 15, 16, 21 and 23 of his Amended Complaint is unavailing. Each of the statutory provisions under Title 18 identified by plaintiff are criminal statutes. Generally, violations of the Criminal Code may not serve as the basis for a civil cause of action unless the statute includes an express or implied private right of action. See Cort v. Ash, 422 U.S. 66, 79 (1975); Hill v. Didio, 191 Fed.Appx. 13, 14 (2d Cir.2006) ("A private individual may bring suit under a federal [criminal] statute only when Congress specifically intended to create a private right of action"); see also Seabury v. City of New York, 2006 WL 1367396 (E.D.N.Y.2006) (holding that most sections of the Criminal Code may only be prosecuted by the government).

None of the provisions plaintiff cites includes an express private right of action, nor may such a right be implied from the language of the statutes. See e.g. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir.1994) (holding that 18 U.S.C. §§ 242 is a criminal statute and does not provide a private cause of action); Tsabbar v. Booth, 293 F.Supp.2d 328, 335 (S.D.N.Y.2003) (finding that the civil rights provisions of Title 18 of the U.S. Code do not allow private rights of action); Ammann v. Connecticut, 2005 WL 465401, at *5 (D.Conn.2005) (holding that no private cause of action exists under 18 U.S.C. §§241, 242). Insofar as the Amended Complaint attempts to assert a criminal cause of action premised on one of the sections of Title 18 of the United States Code mentioned above, it must be dismissed since those sections are federal criminal statutes and do not create a private right of action for any of the varied forms of relief plaintiff seeks. Accordingly, the Court dismisses plaintiff's claims under 18 U.S.C. §§ 241, 242, 1341 and 1343. Because plaintiff lacks standing to maintain a cause of action under any of these statutes, Counts 3, 4, 6 [second count 6], 7 (to the extent alleging a violation of 18 U.S.C. § 242), 15, 16, 21 and 23 are dismissed with prejudice.

III . New York State Penal Law Claims

Insofar as the Amended Complaint attempts to assert violations of the New York State Penal Law premised on Penal Law § 195 (Counts 5, 6 and 19), Penal law § 190 (Counts 10, 12 and 14), Penal Law § 190.25 (Count 14) and Penal Law § 190.20 (Count 20), those claims must be dismissed. Those sections of the Penal Law do not create a private right of action for any of the varied forms of relief plaintiff seeks. See Tourge v. City of Albany, 285 A.D.2d 785, 787 (3d Dept.2001) (setting forth test for determining if private right of action exists and holding that there is no private right of action under § 195.00 of the Penal Law);*fn5 see also Scott v. AOL Time Warner, 109 Fed. Appx. 480, 481 (2d Cir.2004); Moore v. New York City Dep't of Educ., 2004 WL 691523, at *5 (S.D.N.Y. 2004) ("plaintiff has set forth no authority to support his claim that a private right of action to enforce rights allegedly created by these provisions exists"); Ware v. City Univ. of N.Y., 2002 WL 1343752, at *3 (S.D.N.Y.2002) (no private right of action created by criminal statute).

Here, plaintiff's claims must be dismissed because plaintiff has set forth no authority to support his claim that a private right of action to enforce rights allegedly created by these provisions exists. See Casey Systems, Inc. v. Firecom, Inc., 1995 WL 704964 (S.D.N.Y.) (stating the general rule that "when a statute is contained solely within the Penal Law Section, the legislature intended it as a police regulation to be enforced only by a court of criminal jurisdiction"). Accordingly, defendants' motion to dismiss plaintiff's claims is granted to the extent they are premised on the state Penal Law, as a criminal charge cannot be prosecuted by a private person. Therefore, plaintiff's New York State Penal law claims including Penal Law § 195 (Counts 5, 6 and 19), Penal law § 190 (Counts 10, 12 and 14 [second count 14]), Penal Law § 190.25 (Count 14 [second count 14]) and Penal Law § 190.20 (Count 20) are dismissed with prejudice.

IV. Plaintiff's State Tort Law Claims

New York General Municipal Law § 50-e requires that a plaintiff must file a notice of claim prior to the commencement of an action against a municipality, and must serve the notice of claim within ninety (90) days after the claim arises. See N.Y. Gen. Mun. Law § 50-e. Under New York law, a notice of claim is a condition precedent to bringing certain tort actions against municipalities such as the Town of Riga for damages sustained by reason of the negligence or wrongful act of the municipality or its officers, agents or employees whose conduct caused the alleged injury. See N.Y. Gen. Mun. Law § 50-i;*fn6 Hardy v. New York City Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir.1999). "[T]he general rule [is] that in a federal court, state notice-of-claim statutes apply to state-law claims." Id. (citing Felder v. Casey, 487 U.S. 131, 151 (1988)). Moreover, the law is clear that "[t]he notice of claim requirements apply equally to state tort claims brought as pendent claims in a federal civil rights action." See Warner v. Village of Goshen Police Dept., 256 F.Supp.2d 171, 175 (S.D.N.Y.2003). Accord Jones v. Nassau County Sheriff Dept., 285 F.Supp.2d 322, 327 (E.D.N.Y.2003). The burden is on the plaintiff to plead and prove compliance with the requirements of § 50-i. See Panzeca Inc. v. Bd. of Ed. Union Free Sch. Dist. No. 6, 29 N.Y.2d 508 (1971); Stoetzel v. Wappingers Cent. Sch. Dist., 166 A.D.2d 643, 644 (2d Dept.1990). Here, plaintiff's Amended Complaint alleges trespass (Counts 1, 13 and 18); common law fraud (Counts 2 and 14 [second count 14]); official misconduct (Counts 5, 6, 10, 12, 14 [second count 14] and 19); false advertising (Count 20); and criminal impersonation of a public official (Count 14 [second count 14]). However, plaintiff has not pled compliance with the notice of claim requirement i.e. that he has served a notice of claim as required by § 50-i of the General Municipal Law. Nor does he allege that the notice of claim requirement was met and the omission was one of failing to plead compliance. Having failed to plead or prove compliance with the notice of claim provision, plaintiff's state tort law claims must be dismissed. See Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 61-62 (1984) ("Failure to comply with provisions requiring notice and presentment of claims prior to commencement of litigation ordinarily requires dismissal"); Donnelly v. McLellan, 889 F.Supp. 136, 139 (D.Vt.1995); see also Perez v. County of Nassau, 294 F.Supp.2d 386, 391 (E.D.N.Y.2003). Thus, defendants' motion to dismiss the state tort law claims is granted and Counts 1, 13, 18, 2, 14 [second count 14], 5, 6, 10, 12, 19 and 20 are dismissed.*fn7

V. State Law Trespass and Fraud Claims

A. Trespass Claims

Defendants argue that plaintiff does not state a cause of action for trespass in Counts 1, 13 and 18 of the Amended Complaint because plaintiff does not explicitly allege that defendants were on his property without permission. Counts 1 and 13 allege trespass based on defendants' failure to issue building permits to plaintiff and count 18 alleges defendants' failure to hear plaintiff's appeal under a moratorium. See Am. Comp., Counts 1, 13 and 18. However, a cause of action for trespass requires an intrusion upon the property of another without permission. See Curwin v. Verizon Communications (LEC), 35 A.D.3d 645 (2d Dept. 2006) ("Entering upon the land of another without permission, even if innocently or by mistake, constitutes trespass"); Burger v. Singh, 28 A.D.3d 695, 698 (2d Dept. 2006); see also 55 Motor Ave. Co. v. Liberty Indus. Finishing Corp., 885 F.Supp. 410 (E.D.N.Y. 1994) ("An actionable trespass must involve a wrongful or unjustifiable entry upon the land of another") (citing Malerba v. Warren, 438 N.Y.S.2d 936, 940 (Sup.Ct.1981)). "While physical entry by the trespasser upon another's land is not necessary, the trespasser must have at least caused or directed another person to trespass." See Golonka v. Plaza at Latham LLC, 270 A.D.2d 667, 669 (3d Dept 2000).

In determining the sufficiency of pleadings, whatever can be implied by fair and reasonable interpretation from the facts alleged must be deemed to have been stated. See Vitale v. Fowler Oil Co., Inc., 238 A.D.2d 794, 795 (3d Dept. 1997). Plaintiffs allege a failure to issue him a building permit and hear an appeal from that denial. Accepting plaintiff's allegations as true, and affording the him the benefit of every favorable inference (see Schneider v. Hand, 296 A.D.2d 454 (2d Dept. 2002)), plaintiff's allegations do not amount to an entry onto his land for purposes of stating a cause of action for trespass. See Curwin, 35 A.D.3d at 645; Kaplan v. Inc. Vill. of Lynbrook, 12 A.D.3d 410, 412 (2d Dept. 2004). Accordingly, taking the allegations in the Amended Complaint as true and viewing ...

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