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Frank Vlahadamis v. James Kiernan

January 24, 2012


The opinion of the court was delivered by: Hurley, Senior District Judge:


Before the Court is plaintiffs' motion for reconsideration of the September 28, 2011 Memorandum and Order ("M&O"), which granted in part and denied in part defendants' motion for summary judgment. See Vlahadamis v. Kiernan, No. 08 CV 2876 (DRH)(AKT), 2011 U.S. Dist. LEXIS 115152 (E.D.N.Y. Sept. 28, 2011). For the reasons that follow, plaintiffs' motion is denied.


The underlying facts of this action are detailed in the Court's September 28, 2011 M&O. A familiarity with the case is therefore assumed for present purposes; only those facts necessary for the disposition of plaintiffs' motion for reconsideration are set forth below.

Plaintiffs seek reconsideration of the M&O on the grounds that "the Court overlooked and/or misapplied the law with respect to the defendants' complaints to the State Liquor Authority (SLA) alleging that the plaintiffs had knowledge of or permitted the drug sales to occur on the Diner premises." (Plaintiffs' Motion for Reconsideration ("Ps' Mot.") at 1, docket no. 56.) Plaintiffs contend that the Court dismissed all of the claims pertaining to defendants' referrals to the SLA on Equal Protection grounds, but overlooked other causes of action arising from these particular facts. Specifically, plaintiffs argue that defendants' "undercover drug operations" and their referral of purportedly "baseless" complaints regarding the Hampton Bays Diner to the SLA "constituted official retaliation for the plaintiffs['] clearly established right to cater to Hispanic clientele, which is a violation of 42 U.S.C. § 1983 . . . ." (Ps' Mot. at 4 (emphasis added).) Plaintiffs ask that the Court reconsider the dismissal of their claims as they relate to this purportedly retaliatory conduct.



The decision to grant or deny a motion for reconsideration lies squarely within the discretion of the district court. See Devlin v. Transp. Comm'ns Union, 175 F.3d 121, 132 (2d Cir. 1999). The standard for a motion for reconsideration "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or [factual] data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Arum v. Miller, 304 F. Supp. 2d 344, 347 (E.D.N.Y. 2003) ("To grant such a motion the Court must find that it overlooked matters or controlling decisions which, if considered by the Court, would have mandated a different result.") (citation and internal quotation marks omitted). "The major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790). Thus, a "'party may not advance new facts, issues, or arguments not previously presented to the Court.'" Nat'l Union Fire Ins. Co. v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v. St. Martin's Press, No. 97 Civ. 690(MBM), 2000 U.S. Dist. LEXIS 596, at *2 (S.D.N.Y. Jan. 18, 2000)).


a.Plaintiffs Fail to Identify the Right Underlying an Additional §1983 Claim

According to plaintiffs, they "allege in their complaint that they possessed a clearly established right to cater to Hispanic clientele and the defendants retaliated against the exercise of such a right by, inter alia, engaging in undercover drug operations on the premises and then submitting complaints to the SLA . . . in an effort to prevent the plaintiffs from continuing to draw Hispanics into their restaurant, and to punish them for doing so in the first instance . . . ." (Ps' Mot. at 2.) Plaintiffs then cite to several sections of the complaint which set forth a number of factual allegations related to this conduct. Among these cited portions of the complaint, however, the only paragraphs that identify a legal cause of action, or cite to any law, reference Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq. (Compl. ¶¶ 268-71.) *fn1

Plaintiffs' claims under Title II were analyzed in the M&O and subsequently dismissed. Vlahadamis, 2011 U.S. Dist. LEXIS 115152 at *15-*17. Plaintiffs do not dispute this fact in their motion for reconsideration, nor do they question the Court's conclusion regarding these Title II claims. Rather, plaintiffs concede that they "may have cited an inapplicable section of law (42 U.S.C. §2000a)," but nevertheless contend that a cause of action lies within the alleged facts for a "violation of 42 U.S.C. § 1983" (hereinafter "§1983"). (Ps' Mot. at 2.)

As an initial matter, plaintiffs' argument that the defendants' conduct constituted a "violation" of §1983, highlights a fundamental misunderstanding of the import and operation of that statute. In essence, section 1983 gives litigants the procedural vehicle to vindicate various federally protected rights violated by individuals acting under color of state law. Section 1983 itself "creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere." Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)(citing Baker v. McCollan, 443 U.S. 137, 140, 144, n. 3 (1979)). Therefore, for plaintiffs to prevail in this action under §1983, they must identify a specific underlying right, "established elsewhere," that defendants allegedly violated. In the context of their motion for reconsideration, plaintiffs have failed in this regard.

The M&O addressed five causes of action alleged in the complaint: Title II, Equal Protection, Due Process, Conspiracy, and Malicious Prosecution. Only the Equal Protection and Conspiracy claims were allowed to proceed. The complaint does not identify an additional right underlying plaintiffs' purported ยง1983 claim that was not addressed by the M&O. Furthermore, neither plaintiffs' memorandum in opposition to defendants' motion for summary judgment nor their present motion for reconsideration makes any effort to identify this additional right. The motion merely suggests, in rather vague terms, that ...

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