The opinion of the court was delivered by: Denis R. Hurley Senior District Judge
HURLEY, Senior District Judge
On June 30, 2009, Plaintiff Anthony Macagna ("Plaintiff") commenced this action in the Supreme Court of the State of New York, County of Suffolk, asserting claims pursuant to 42 U.S.C. § 1983 to redress alleged violations of his constitutional rights in connection with what he maintains was the selective and illegal property tax reassessment of his residence in East Hampton, New York. On July 17, 2009, the action was removed to this Court. Presently before the Court is (1) Plaintiff's motion seeking the remand of this action to state court, together with an award of attorney's fees and costs; (2) a motion to dismiss by Defendants The Town of East Hampton (the "Town"), The Board of Assessors of East Hampton (the "Board"), Jeanne Nielsen ("Nielsen"), Eugene DePasquale ("DePasquale"), and Jill Massa ("Massa") (the Town, the Board, Nielsen, DePasquale and Massa are collectively referred to as "Town Defendants"); and (3) a motion to dismiss by Ronald Glogg ("Ronald") and Sally Nielsen Glogg ("Sally") (Ronald and Sally are collectively referred to as the "Gloggs"). For the reasons set forth below, the Court concludes that it lacks subject matter jurisdiction to consider Plaintiff's claims and therefore remands this matter to state court. Because it concludes that it lacks subject matter jurisdiction over Plaintiff's claims, the Court will not address Defendants' motions to dismiss.
I. The Allegations in the Complaint
The complaint alleges as follows: On January 14, 2005, Plaintiff purchased residential improved property located at 42 Old West Lake Drive, Hamlet of Montauk, Town of East Hampton (the "Macagna Property") for $2,300,000.00. (Compl. ¶¶ 14, 16.) The most recent certificate of occupancy for the Macagna Property is dated February 2, 2004 and lists the property as improved with a single-family home, cottage and storage shed. (Id. ¶ 15.) Since the date of purchase, Plaintiff has neither (1) applied for or received a building permit to do any work on the Macagna property; nor (2) made "any improvements to the real property that would ordinarily trigger an increase in the property's tax assessment." (Id. ¶¶ 17-18.)
In October 2005, Plaintiff cleared an area near the cottage which was overrun by invasive vines to make way for new plantings. Plaintiff believed the cleared area was his property but his neighbors, the Gloggs, alleged that Plaintiff had cleared a small portion of their property lying between Old West Lake Drive and Plaintiff's cottage. (Compl. ¶¶19-21.) Between October 2005 and May 2006 Plaintiff's offer to re-vegetate the disputed area was rejected, with the Gloggs instead demanding substantial amounts of money. (Id. ¶¶ 22-23.) The Gloggs also complained to the Town, purportedly leading to Plaintiff being charged in Justice Court with a number of violations. (Id. ¶¶ 24-25.) Plaintiff contested the charges but then in January 2007 a proposed plea bargain was reached regarding the Justice Court violations. (Id. ¶¶ 35-36.) However, counsel for Sally wrote a letter to the Town Justice, as well as contacted the Town's Supervisor, objecting to the plea bargain. (Id. ¶¶ 38-39.) The Town's Supervisor contacted the Town Attorney demanding the proposed plea agreement be withdrawn. (Id. ¶¶ 30-40.) In September 2007, a new Assistant Town Attorney was assigned to the matter and the parties entered into the same plea agreement initially proposed by the Town Attorney's office and "stymied by the supervisor" whereby the charges relating to the clearing of the Glogg's property were dismissed. (Id. ¶ 47.)
Meanwhile, in May 2006, the Gloggs "sued Plaintiff in the Supreme Court, Suffolk County for trespass and the clearing of trees and underbrush on their property. Plaintiff contested the litigation and it is still pending." (Compl. ¶ 30.)
Prior to July 2006, the assessed value of the Macagna Property was $7,000.00 consisting of $2,000.00 for the land and $5,000.00 for the improvements thereon. (Compl. ¶ 26.) It is alleged that the Town has not completed a town wide assessment in at least 70 years. The Town only reassesses real property when it is improved, and then only for the value of the actual improvements. (Id. ¶¶ 49-50.) In April 2006, DePasquale is alleged to have made a notation, with the knowledge consent and participation of Nielsen, who is Sally's sister, changing the assessment of the Macagna property to $27,025.00. (Id. ¶ 27.) Although the land assessment remained the same, the assessment for improvements thereon was increased to $25,025.00 "based on a purported renovation described by the Town Assessor's Office as 'Reno Inc. no permits' . . . ." (Id. ¶29.) On July 1, 2006, the Town filed the final assessment roll "representing and accepting the combined assessment value of the Macagna Property of $27,025.00 which was previously recommended by [DePasquale]." (Id. ¶ 31.) It is alleged that the assessed value was increased because Gloggs requested the intervention of Nielsen, Sally's sister. (Id. ¶ 32.) Plaintiff asserts that
Based on the 2006 State Equalization Rate for East Hampton Town of 0.76 the Assessor's Office claimed 'renovation' increased the equalized full value of the Macagna Property's improvements from $65,294.00 to $3,292,763.00, an increase of 500%. There is no record to substantiate the renovations relied on by the Town Assessor's Office to increase the assessment, because there were not actual renovations or improvements.
Based on the 2006 State Equalization Rate For East Hampton Town of 0.76, the Assessor's Office claimed 'renovation' increased the combined equalized full value of the land and improvements on the Macagna Property from $795,000.00 to $3,555,921.00, which is an increase of 447%. (Compl. ¶¶ 33, 34.)
In May 2007, Plaintiff hired a tax grievance company to challenge the assessed value of his home. He was not aware at that time, that the Town does not have a policy for reassessing properties on an annual basis and was not aware of the conspiracy among the defendants. (Compl. ¶ 41.) In June 2007, the Town Board of Assessment Review denied Plaintiff's grievance. (Id. ¶ 42.) On July 1, 2007, the Town filed the final assessment roll for 2007 confirming the assessed value of the Macagna Property to be $27,025.00. In July 2007, Plaintiff filed a Small Claims Assessment Review. In October 2007, the Small Claims action was settled with a reduction in the assessed value to $25,075.00. (Id. ¶¶ 43-46.)
Based on the foregoing Plaintiff asserts three causes of action. The first cause of action asserts a violation of Plaintiff's equal protection rights in that the assessment of the Macagna Property was unwarranted and is not comparable to other similarly situated properties, viz. the Glogg's property at 46 Old West Lake Drive which is assessed at $3,300.00 and the property owned by Plaintiff's other neighbor at 38 Old West Lake Drive which is assessed at $7,400. (Compl. ¶¶ 51-65.) The second cause of action asserts a violation of Plaintiff's substantive and procedural due process rights in that defendants "acted in a manner that established a pattern of misuse of the taxing power when they selectively reassessed Plaintiff's property, compared to those similarly situated, under state and local statutes and refused to rectify the assessment when presented with the glaring illegality of their actions . . . ." (Id. ¶76.) The third cause of action asserts that the Gloggs "conspired to and did act in concert to deprive Plaintiff of his constitutional right to equal protection under the laws and improperly increased his tax assessment." (Id. ¶81.)
Plaintiff seeks an award of compensatory and punitive damage, attorney's fees, as well as a judgment "directing the Town to reset Plaintiff's real property assessment to an assessed value of $7,000.00; the assessment prior to the illegal selective assessment and refund him for ...