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VOLUNTEER FIRE ASSOCIATION OF TAPPAN v. COUNTY OF ROCKLAND

November 24, 2010

VOLUNTEER FIRE ASSOCIATION OF TAPPAN, INC., PLAINTIFF,
v.
COUNTY OF ROCKLAND, CHARLES (SKIP) VEZZETTI, ANDREW M. CONNORS, KOK MENG PNG, JOE PYZOWSKI, ALLEN JESSUP, MARK MAHONEY, JOHN LOCH, AND THOMAS SIMETI, DEFENDANTS.



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

OPINION AND ORDER

Before the Court are the Motions to Dismiss of Defendant John Loch, (Doc. 26), and Defendants County of Rockland (the "County"), Charles Vezzetti, Andrew M. Connors, Kok Meng Png, Joe Pyzowski, Allen Jessup, Mark Mahoney, and Thomas Simeti (collectively, the "County Defendants"), (Doc. 36); and Plaintiff Volunteer Fire Association of Tappan, Inc.'s Cross-Motion to Amend the Complaint, (Doc. 40). For the reasons stated herein, Plaintiff's motion is DENIED, Defendants' motions are GRANTED, and the Complaint is DISMISSED with prejudice.

I.BACKGROUND

A.Facts

For purposes of the present motions, the Court assumes the facts (but not the conclusions) alleged in the Complaint to be true. Plaintiff is a volunteer fire association that consists of approximately 140 members and is located in Tappan, New York. (Complaint ("Compl.") ¶ 1.) For the past 100 years, Plaintiff has owned the property located at 123 Washington Street in Tappan and has maintained its headquarters at that site. (Id.) In the summer of 2007, the County of Rockland commenced efforts to reconstruct roadways and sidewalks in the Tappan Historic District, in which Plaintiff's headquarters is located, (id. ¶ 32)-a plan supervised by Mr. Vezzetti, who served as the County Superintendent of Highways, and Mr. Connors, who served as Deputy Superintendent of Highways, (id. ¶¶ 11, 13, 32).

In November 2007, the County, acting outside the parameters of the approved reconstruction plan, sought to construct a sidewalk on Plaintiff's property. (Id. ¶ 33.) Plaintiff objected to the construction; the County, Mr. Vezzetti, and Mr. Connors nonetheless pressed forward. (Id. ¶ 35.) On December 3, 2007, the Appellate Division of the New York State Supreme Court, Second Department ("Second Department") issued, upon Plaintiff's application, a temporary restraining order directing the County to cease all construction on Plaintiff's property. (Id. ¶ 36.)

Over the following month, the Defendants met on at least three separate occasions to discuss the possibility of redrawing the map depicting the right-of-way surrounding Plaintiff's property to include the sidewalk as part of the County's property rather than part of Plaintiff's property. (Id. ¶¶ 37--42.) The Defendants finalized their plans at a December 12, 2007 meeting at which Mr. Vezzetti, Mr. Connors, and Mr. Mahoney (a surveyor employed by the County, (id. ¶ 21)), as well as Mr. Png, Mr. Pyzowski, and Mr. Jessup (engineers employed by the County, (id. ¶¶ 15, 17, 19)), and Mr. Loch (a surveyor, contractor, and subcontractor of the County, (id. ¶ 23)) met with three other individuals not named as defendants in this case, and agreed to prepare a new right-of-way map, (id. ¶ 41). Mr. Loch, who had drawn the initial map depicting the property at issue, offered to redraw his map so as to widen the right-of-way and eliminate the trespass. (Id. ¶ 42.) On December 18, 2007, however, Mr. Mahoney created the map instead. (Id. ¶ 43.)

On April 11, 2008, Mr. Simeti, the Second Deputy County Attorney for the County of Rockland, (id. ¶ 25), and Mr. Vezzetti submitted an affirmation and affidavit, respectively, to the Second Department opposing the preliminary injunction that Plaintiff sought to prevent further construction on its property, (id. ¶ 44). Attached to both the affirmation and affidavit were copies of the December 18, 2007 map. (Id.) Defendants also submitted the map to the Supreme Court of the State of New York, County of Rockland, as an exhibit to the County's Motion for Summary Judgment in connection with a case Plaintiff filed on January 10, 2008 alleging, among other claims, trespass and nuisance. (Id. ¶ 45.)

B.Procedural History

Plaintiff filed the instant action on May 5, 2009. Plaintiff does not challenge Defendants' alleged trespass, which is the subject of the state court action,*fn1 but rather targets Defendants' conduct in creating and submitting to the state court copies of the allegedly fraudulent map. Plaintiff claims that Defendants

(1) deprived Plaintiff of its substantive due process rights to be free from government conduct that shocks the conscience under 42 U.S.C. § 1983; (2) conspired to impede, hinder, obstruct, or defeat the due course of justice in the state court for the purpose of depriving Plaintiff of equal protection of the laws in violation of 42 U.S.C. § 1985(2), and thereby denied Plaintiff its property interest in the full value of its lawsuit;

(3) deprived Plaintiff of its constitutional right under 42 U.S.C. § 1985(3) to be free of conspiratorial conduct that results in a deprivation of its constitutional rights; and (4) failed to act to prevent the conspiratorial deprivation of Plaintiff's constitutional rights under 42 U.S.C. § 1986.

Defendant Loch wrote to the Court on June 29, 2009 requesting a pre-motion conference in anticipation of his Motion to Dismiss, as per the Court's individual practices, (see Individual Practice 2(A)), and the Court scheduled the conference for August 6, 2009. (Doc. 17.) At the conference, various grounds for potential dismissal were discussed, (see Transcript of August 6, 2009 Conference ("Transcript"), (Doc. 53), at 8--12), and Plaintiff's counsel requested leave to amend the Complaint, (id. at 12--13). The Court granted Plaintiff's request on the condition that Plaintiff file its Amended Complaint prior to Defendants' Motions to Dismiss, and set a deadline for the Amended Complaint of August 27, 2009. (See id. at 12--14.) The Court subsequently adjourned that initial deadline at the parties' joint request so that settlement talks could be pursued, (Doc. 19), and after these talks failed, re-set the deadline for October 13, 2009, (Doc. 21).

Plaintiff, however, failed to amend before the October 13, 2009 deadline. Accordingly, Defendants proceeded with their Motions to Dismiss the original Complaint, serving copies upon Plaintiff as scheduled on November 13, 2009. (Docs. 26, 36.) Plaintiff responded as scheduled on December 11, 2009 with its opposition papers, and at the same time served a Cross-Motion to Amend the Complaint. (Docs. 40, 41, 42.) Plaintiff attached to its Cross-Motion a Proposed Amended Complaint ("PAC"), (Doc. 45),*fn2 and cited only ...


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