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Julie Lamothe and Justin Lamothe v. the Town of Oyster Bay

October 19, 2011

JULIE LAMOTHE AND JUSTIN LAMOTHE
PLAINTIFFS,
v.
THE TOWN OF OYSTER BAY, THE TOWN OF OYSTER BAY DEPARTMENT OF PLANNING AND DEVELOPMENT, TIM ZIKES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, MIKE RATHE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, JOE SPANO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, LYNN BERGE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, JACK LIBERT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, JIM LAREN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND STEPHEN MORI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

On May 21, 2008, Plaintiffs Julie Lamothe and Justin Lamothe ("the Plaintiffs") commenced this action against the Town of Oyster Bay (the "Town"), the Town's Department of Planning and Development, and several municipal employees (collectively the "municipal defendants"), as well as against individual Defendants Vincent Acquilino and Diane Aquilino, seeking damages associated with defects in a home purchased in 2005. Following this Court's dismissal of all claims against the Aquilinos and certain claims against the municipal defendants, the only viable claims that remain against the municipal defendants are for deprivation of the Plaintiffs' constitutional rights to equal protection of the laws and substantive due process, pursuant to 42 U.S.C. § 1983, and aiding and abetting those violations. Presently before the Court is the Plaintiffs' motion to amend their complaint to assert: (1) certain additional facts that they claim their two prior counsels failed to present to the Court in the initial complaint; and (2) a number of new causes of action against the remaining Defendants, mainly grounded in fraud and negligence, that are related to the same underlying events as the initial complaint. For the reasons set forth below, the Court denies the Plaintiffs' motion.

I. BACKGROUND

A. Factual Background

The following facts are drawn from the Plaintiffs' proposed amended complaint ("PAC"). For purposes of this motion to amend, the Court accepts all well-pleaded, nonconclusory factual allegations as true and treats them in the best light for the Plaintiffs. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949--50, 173 L. Ed. 2d 868 (2009); Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009).

On April 12, 2005, the Plaintiffs purchased a home located at 59 Larabee Avenue, Oyster Bay, New York, from a town employee named Vincent Aquilino and his wife, Diane Aquilino. The Plaintiffs allege that they were unaware that the home had a "history of structural problems caused by severe flooding and hydraulic pressure from various causes" due to its close proximity to the Long Island Sound. (PAC ¶ 14.) By October 2005, the Plaintiffs became aware of the recurrent substantial flooding in the basement, which caused significant damage to the home.

Plaintiff Julie Lamothe began to investigate the cause of the flooding, and eventually discovered that many inspections, certifications, and permits required by the State and the Town were absent from the Town records. The Plaintiffs allege that the Town allowed its employee, Vincent Acquilino, to renovate the home at issue without: (1) a certificate of approval from the Engineer, an excavator license, and permits from licensed craftsmen, as required under Town ordinances; (2) a Home Improvement License, as required by New York State; and (3) a plethora of other licenses and permits. The Plaintiffs' main allegation is that the Town issued a Certificate of Occupancy for the property on March 17, 2005, even though it knew or should have known that the relevant property did not comply with the New York State Residential Code and Town building codes. According to the Plaintiffs, "Acquilino has confirmed that he [was] aware of the violations but that the 'Town of Oyster Bay let him do it.'" (PAC ¶ 20.) The Plaintiffs further contend that they reasonably relied upon the representation of the issuance of the final Certificate of Occupancy as evidence that the property was in compliance with the codes.

As a result of the flooding, the Plaintiffs claim that they have suffered significant damages. First, the Plaintiffs have expended $2,500.00 to purchase commercial sump pumps to abate the flooding. Second, the flooding itself has caused over $30,000.00 worth of damage to the home. Finally, the Plaintiffs assert that they purchased the home for $700,000.00, which they would not have done without the Defendants' fraudulent and material misrepresentations. In addition, Plaintiff Julie Lamothe now alleges for the first time in the proposed amended complaint that she has a cracked disc in her lower back, which she suffered as a result of combating the extensive flooding.

After the Plaintiffs began to investigate the Town's alleged failures to observe and enforce the proper procedures and building codes, the Plaintiffs claim that in retaliation the town subsequently harassed and threatened the Plaintiffs. For example, the Plaintiffs claim that in response to an alleged illegal apartment located above the detached garage, the Town has issued violations for a lack of a Certificate of Occupancy and brought the Plaintiffs to court twenty-three times. The Plaintiffs also maintain that the Town has forced them to destroy or remove the home's garage, bath, staircase, and plumbing.

B. Procedural History

As stated above, on May 21, 2008, the Plaintiffs commenced this action against the municipal defendants and the Acquilinos, the sellers of the home. The Plaintiffs asserted three state law claims against the Acquilinos for common law fraud, aiding and abetting fraud, and conspiracy to commit fraud. The Plaintiffs asserted the same aiding and abetting and conspiracy claims against the municipal defendants. In addition, the Plaintiffs alleged two 42 U.S.C. § 1983 federal causes of action against the municipal defendants.

On July 10, 2009, the Court granted the Aquilinos' motion to dismiss the cause of action for fraud, finding that the allegations lacked the requisite particularity under Federal Rule of Civil Procedure 9 and that the specific disclaimer in the Residential Contract of Sale between the parties bolstered the application of New York's rule of caveat emptor. The dismissal of the fraud cause of action necessarily led the Court to also dismiss the causes of action of aiding and abetting fraud and of civil conspiracy to commit fraud asserted against all of the Defendants, because those counts could not stand alone once the main fraud claim against the direct actor was dismissed. Therefore, the only claims that currently remain are against the municipal defendants for: (1) Section 1983 causes of action for depriving the Plaintiffs of their constitutional rights to equal protection of the laws and substantive due process, and (2) aiding and abetting such violations.

On January 8, 2010, after the Court rendered its decision on the motion to dismiss, the Plaintiffs' counsel Steven Morelli, Esq. moved the Court to substitute Andrew Crabtee, Esq. as the attorney of record for the Plaintiffs, which the Court granted the following day.

Mr. Morelli did not enunciate to the Court any explanation for the substitution. However, the Plaintiffs note that they now have a legal malpractice suit pending against Mr. Morelli stemming from Mr. Morelli's representation of them in this case.

Subsequently, on August 31, 2010, Andrew Crabtree also moved the Court for leave to withdraw as counsel of record. Mr. Crabtree stated in his Declaration in Support of Application for Leave to Withdraw as Counsel of Record on August 31, 2010 that the reasons for his withdrawal were his "inability to effectively communicate with [his] clients, and their disregard of [his] advice, including Plaintiffs' numerous unauthorized ex parte communications with this Court." (Docket Entry No. 86-2.) Following Mr. Crabtree's withdrawal, over the next eleven months, the Plaintiffs attempted to procure new counsel. In a final letter to the Court dated July 1, 2011, Plaintiff Julie Lamothe noted that they were "speaking to other attorneys" but were having trouble finding "suitable legal counsel." (Docket Entry No. 100.) She also wrote that "there will be a document on your desk by Monday, July 25th, if I have to write it myself." (Docket Entry No. 100.) The Plaintiffs thereafter filed a Motion to Amend the Complaint and no additional attorney has made an appearance in this case. Therefore, apparently, the Plaintiffs are now proceeding pro se.

C. The Present Motion

On July 27, 2011, the Plaintiffs moved this Court to file an amended complaint. Their proposed amended complaint is verbose, to say the least. Rather than being a short and plain statement, the Plaintiffs' a proposed complaint is incredibly lengthy and the causes of action are not stated with any clarity or precision. It is a difficult task to discern which facts support which claims and to track which allegations are redundant and which are new. Nonetheless, the proposed amended complaint can essentially be read as attempting to accomplish two tasks: (1) under the First and Second Causes of Action, to restate the original Section 1983 claims against the municipal defendants for violation of equal protection and substantive due process rights, along with aiding and abetting those violations; and (2) to assert new causes of action, Three through Six, asserting various state law claims against the municipal defendants for negligence, fraud, breach of implied contract, personal injury, and various violations of the Town ordinances.

Due to the fact that the Plaintiffs are proceeding pro se, the Court will hold the amended complaint to a less stringent standard than formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176, 66 L. Ed. 2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595, 30 L. Ed. 2d 652 (1972). The Court should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); Cole v. Fischer, 379 F. App'x. 40, 41 (2d Cir. 2010). The Court reads the proposed amended complaint as asserting the following causes of action.

1.The Plaintiffs' Section 1983 Claims

In the First and Second Causes of Action of the proposed complaint, the Plaintiffs restate two claims from their original complaint against the municipal defendants for deprivation of the Plaintiffs' constitutional rights to equal protection of the laws and substantive due process, pursuant to 42 U.S.C. § 1983, and aiding and abetting such violations.

2. The Plaintiffs' Proposed State Law Claims

In addition to re-alleging the Section 1983 claims from the original complaint, the Plaintiffs also seek to assert several new state law claims against the municipal defendants.

First, the Court reads the proposed amended complaint as asserting a claim directly against the municipal defendants for common law fraud (the "fraud claim"). This is in contrast with the original complaint, in which the Plaintiffs did not articulate a claim of fraud aimed directly against the Town or its employees. The Court interprets the Plaintiffs as asserting a fraud claim based upon several causes of action in the proposed complaint. First, in the Plaintiffs' Third Cause of Action, it states that the "Plaintiffs had justifiable reliance on certain representations relating to the building permits, inspections and certificate of occupancy for a home that was completely renovated from top to bottom only weeks prior to their purchase. . . . These misrepresentations and active concealment amounted to Fraud." (PAC ¶ 45B.)

In addition, in the Plaintiffs' Fifth Cause of Action, they again assert "active concealment, fraud, misrepresentation, false pretenses and false representations . . . ." (PAC ¶ 51.) Based upon these two causes of action, it appears that the Plaintiffs are attempting to pursue a claim against the municipal defendant for common law fraud. The Plaintiffs' argument is that when the Town issued the Certificate of Occupancy, it in effect represented that it had complied with its own administrative ordinances and New York State Building Code requirements. The Plaintiffs state that they justifiably relied on this misrepresentation when entering into the Contract of Sale to purchase the home. However, the Plaintiffs allege that the Town committed numerous violations of these codes and thus this representation was false.

Second, the Plaintiffs appear to be pursuing a claim against the municipal defendants for negligence (the "negligence claim"). This is based upon several clauses in the proposed complaint. First, in the Plaintiffs' Third Cause of Action, the Plaintiffs state that the Town's negligence is "one of failure to act with the necessary care and skill in the exercise of their duties as servants of the municipality and of its constituents." (PAC ¶ 45A.) The Plaintiffs further assert in the Fourth Cause of Action that because the Town "negligently and carelessly permit[ed] the above mentioned premises to be so constructed, without the aforementioned controls, the Plaintiffs were left with a premises that is and was dangerous and uninhabitable." (PAC ¶ 49.) Also, in the Fifth Cause of Action, the Plaintiffs again claim that the Town was grossly negligent in granting Vincent Acquilino building permits when he did not possess the required documentation. (PAC ¶ 61.)

Third, the Plaintiffs also appear to be pursuing an implied contract claim against the municipal defendants (the "contract claim"). In particular, they assert that the Town had an "implied contract with each of its citizens to follow standard procedures promulgated by the [Town] itself and apply the New York State Building Code and the [Town] Building Codes . . . ." (PAC ΒΆ 44.) The Plaintiffs then go on to state ...


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