The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:
This is an action alleging unlawful and discriminatory administrative practices, policies and actions brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), Section 296 of the New York State Human Rights Law, the First and Fourteenth Amendments of the United States Constitution and the common laws of the State of New York. Before the Court is a motion to dismiss the Amended Complaint filed by defendants City of New York ("City"), Manhattan Community Board 1 ("CB1"), Julie Menin and Jeff Ehrlich (collectively, the "City Defendants"). For the following reasons, the motion is granted.
On this motion to dismiss, this Court views all facts alleged in the Amended Complaint in the light most favorable to Plaintiffs. Plaintiffs Sazon Inc. ("Sazon") and Genaro Morales (collectively, "Plaintiffs") filed this action on May 31, 2011 and submitted an Amended Complaint on September 1, 2011. According to the Amended Complaint, Sazon is a restaurant that serves high end Puerto Rican cuisine and is located at 105 Reade Street in the County and State of New York. Am. Compl. ¶ 3. It is the only Puerto Rican restaurant of its kind located in the Tribeca section of Manhattan. Id. Genaro Morales is the President and sole shareholder of Sazon. Id. ¶ 4.
CB1 is one of several community boards, the members of which are appointed by the respective Borough President. The boards have the responsibility to review changes that are proposed within the jurisdiction of the board including liquor license applications submitted to the New York State Liquor Authority ("SLA") by bars and restaurants to make non-binding recommendations regarding the approval or disapproval of said applications. Id. ¶ 9. Julie Menin is the chairperson of CB1, and Jeff Ehrlich is Co-Chairman of CB1's State Liquor Authority Process Review Task Force and a member of CB1's Tribeca Committee. Id. ¶¶ 10, 11.
Plaintiffs allege that on or about November 25, 2008, they prepared an SLA "Application for Alcoholic Beverages Control Retail License (On Premises Liquor)" for Sazon and mailed said application to CB1. Id. ¶¶ 25, 26. This application provided proposed hours of operation between 11:30 P.M. and 2:00 A.M. on Sundays, Mondays, Tuesdays and Wednesdays and between 11:30 P.M. and 4:00 A.M. on Thursdays, Fridays and Saturdays. Id. ¶ 27.
On or about, January 13, 2009, Morales appeared before the members of CB1's Tribeca Committee and informed them that he intended to serve high end Puerto Rican cuisine and offer his patrons live music and/or Latino music played by a disc jockey. Id. ¶¶ 37, 38, 40. Morales also informed CB1's Tribeca Committee that his application "would state that he would operate during the legal hours of Sunday through Thursdays from 11:30 A.M. to 2:00 A.M., and Fridays and Saturdays from 11:30 A.M. to 4:00 A.M." Id. ¶ 39. CB1's Tribeca Committee informed him that he "could only operate between the hours of 11:30 A.M. to 1:00 A.M. during weekdays and from 11:30 A.M. to 2:00 A.M. on Fridays and Saturdays," and that he could only play recorded music but not music from a disc jockey or live band. Id. ¶ 41, 42. Ehrlich purportedly stated "[e]ither take it or leave it. Otherwise you'll never get your liquor license." Id. ¶ 43.
Plaintiffs allege that Morales acceded to CB1's "restrictions" under duress and misled by the express purported statements that CB1's Tribeca Committee, and not SLA, had the authority to grant, deny or condition premises licenses. Id. ¶ 48. On or about January 27, 2009, CB1 "approved" Sazon's liquor license application with said restrictions, and Morales filed Sazon's revised liquor license application with SLA, included the edited "Original Application Notice Form" where the operating hours were written over and changed to reflect the hours of 11:30 A.M. to 1:00 A.M. on Sunday through Thursday and 11:30 A.M. to 2:00 A.M. on Friday and Saturday. Id. ¶¶ 49, 50; Ex. D to Am. Compl. On or about May 3, 2009, Sazon's doors officially opened for business under a temporary liquor license that restricted their hours of operation, prohibited live music and music played by disc jockeys. Id. ¶ 51.
On or about July 27, 2009, CB1 held a "500 Foot Rule Hearing" at its office to determine whether Sazon brings a public benefit and to allow local residents to express concerns about noise violations and allegations that Sazon was staying open longer than the restricted hours provided. Id. ¶¶ 57, 58, 62. On or about August 12, 2009, Morales attended another CB1 open meeting to address the residents' noise complaints and to make a second request for approval to operate until 4:00 A.M. on Fridays and Saturdays and to be able to offer live music and a disc jockey to their patrons. Id. ¶¶ 64, 66. The SLA ultimately granted Plaintiffs' SLA License (Serial No.1220846), with an effective date of February 26, 2010 and an expiration date of January 31, 2012. Id. ¶ 100.
During its operation, Sazon was cited for maintaining an unauthorized additional bar in its lounge area, and Morales submitted to CB1 and SLA a request for an alteration amendment to have a second bar approved and listed on Sazon's liquor license. Id. ¶ 130. On or about January 2011, Plaintiffs submitted a request for an informal meeting to be made solely with members of CB1's Tribeca committee, and approximately sixty days later CB1's Tribeca Committee directed Morales to appear on April 13, 2011 for such a meeting. Id. ¶¶ 132, 133. On April 13, 2011, CB1 held a public meeting, and Morales raised its request to amend the operating hours and music restrictions. Id. ¶¶ 131-36. CB1 allowed residents to voice concerns about noise emanating from Sazon, but when Morales attempted to refute the allegations, he was instructed to stop speaking because this matter was not on the agenda, and consequently no formal vote took place on Plaintiffs' request. Id. ¶¶ 136-43.
On April 20, 2011, Plaintiffs notified CB1 that they would be filing an application with SLA to alter its premises to include a second bar in Sazon's lower lounge and to request that SLA reconsider its prohibition of a disk-jockey. Id. ¶¶ 144, 145. On April 27, 2011, CB1 notified Plaintiffs that it denied Plaintiffs' requests for the bar alteration and addition of a disc jockey and would recommend to SLA that it should not approve either request. Id. ¶ 147. At the time this motion was filed it did not appear that SLA had ruled on either request (see 10/5/2011 City Defs.' Mem. in Support of Mot., at 6), and the parties have not notified the Court of any change to the status of said requests.
The Amended Complaint contains sixteen counts alleging that the State of New York and New York State Liquor Authority (collectively, the "State Defendants") and the City Defendants violated federal and state law by restricting the hours of operation and method of playing music at Sazon. On September 21, 2011, the State Defendants filed a motion to dismiss the Amended Complaint pursuant to Rules 12(b)(1), 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that they are entitled to Eleventh Amendment Immunity and that there was insufficient service of process. On November 7, 2011, Plaintiffs filed a notice of voluntary dismissal with respect to the State Defendants pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure.