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Donald C. Macpherson, 1104 North Sea Co., Inc., and 1110 North Sea Co., Inc v. Town of Southampton

March 19, 2012


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


Plaintiffs Donald MacPherson ("MacPherson"), 1104 North Sea Co., Inc. ("1104 North Sea"), and 1110 North Sea Co., Inc. ("1110 North Sea") (collectively, "plaintiffs") commenced the present action against Town of Southampton (the "Town"), Southampton Town Board (the "Town Board"), Kaitlin Grady ("Grady"), Donald Kauth ("Kauth"), and Joseph Lombardo ("Lombardo") (collectively, "defendants") challenging defendants' conduct in connection with the enforcement of various ordinances concerning residential rental properties and alleging that defendants retaliated against them because of MacPherson's exercise of his First Amendment rights. By Memorandum & Order dated September 7, 2010 ("September 2010 Decision"), the Court dismissed a large portion of the original Complaint but granted plaintiffs leave to re-plead. The Amended Complaint was filed on December 7, 2010. Presently before the Court is defendants' motion to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and (6). For the reasons set forth below, defendants' motion to dismiss is granted in part and denied in part.


The following facts are taken from the Amended Complaint and are presumed true for purposes of this motion.

Plaintiffs each own residential property in the Town, where MacPherson is a part-time resident. Four properties are referred to in the Complaint: 1104 North Sea Road, 1106 North Sea Road, 1110 North Sea Road, and 1130 North Sea Road (the "North Sea Road properties"). The 1104 North Sea Road and 1110 North Sea Road properties are owned and operated by the 1104 North Sea and 1110 North Sea corporate entities. MacPherson is "associated" with all four properties "either as an owner, former owner, mortgagor, principal of the corporate owner, and/or consultant to the legal owner." (Am. Compl. ¶ 52.) Grady was one of the Town's zoning code enforcement officers and Kauth is one of the Town's senior zoning code enforcement officers. Lombardo is one of the Town's attorneys.

I. The Initial Action

On August 22, 2007, MacPherson, along with two of his corporate entities that are not parties here, commenced a separate action before this Court, under docket number CV 07-3497, asserting claims under 42 U.S.C. § 1983 ("Section 1983") against the Town, the Town Board, and Stephen A. Frano, an individual that is not a party here (the "Initial Action").*fn1 The claims asserted in the Initial Action are premised upon the alleged unconstitutionality of the Town's seasonal rental permit law. On August 28, 2007, approximately one week after MacPherson commenced the Initial Action, the Town and Town Board "created a new Chapter 270 (Rental Properties) which was scheduled to become effective 30 days later and would be enforced beginning January 1, 2008." (Id. ¶ 34.) On October 6, 2007, MacPherson filed an amended complaint in the Initial Action that challenged the constitutionality of this newly promulgated seasonal rental permit law.

II. The Alleged Retaliation

Plaintiffs allege that shortly after the amended complaint was filed in the Initial Action, defendants began to engage in "a pattern of retaliation" against MacPherson. (Id. ¶ 39.) According to plaintiffs, Grady and Kauth learned of the Initial Action when their co-worker Frano was served with a summons and complaint. (Id. ¶ 40-41). Thereafter, as early as December 2, 2007, Defendants Grady, Kauth, "and other enforcement officers employed by the [Town] began a series of repeated visits" to the North Sea Road properties and engaged in "a pattern of intimidation of tenant-occupants" in order to "obtain judicial access" to these properties. (Id. ¶¶ 42, 46.) Plaintiffs allege that the Town Board learned of these investigations and was aware of MacPherson's association with the North Sea Road properties. (See id. ¶ 52.)

In December 2007, after conducting searches of the North Sea Road properties pursuant to search warrants, "GRADY and the TOWN learned that certain individuals were living in the finished basement areas" of these residences despite the fact that the basement areas had not been approved for bedroom use. (Id. ¶¶ 49, 50.) Although plaintiffs took immediate steps to have those individuals vacate the North Sea Road properties (id. ¶ 53), the Town and Town Board commenced civil actions against plaintiffs on March 31, 2008 in New York Supreme Court (the "State Court Actions"). (See id. ¶ 54.)

III. The State Court Actions

On March 31, 2008, the Town and Town Board (through Lombardo as a Town Attorney) "sought a temporary restraining order and preliminary injunction prohibiting the property owners and all others . . . from all future use and occupancy of the North Sea Road residences until the state civil action was determined . . . ." (Id. ¶ 55.) According to the Amended Complaint, the Town, Town Board, and Lombardo initially attempted to obtain the temporary restraining orders without providing plaintiffs with "any meaningful notice and an opportunity to be heard." (Id. ¶¶ 57-58.) Plaintiffs allege that they were ultimately provided with "legally and constitutionally insufficient" notice -- in the form of a telephone and facsimile message left after-hours at the office of one of plaintiffs' attorneys -- that "an Order To Show Cause would be presented for signature to a justice on the following day in Riverhead." (Id. ¶ 59.)

Plaintiffs allege that because they were not provided with proper notice of the State Court Actions, they did not appear to oppose the relief sought by the Town and Town Board. (Id. ¶ 63.) Accordingly, on April 1, 2008, Acting New York State Supreme Court Justice Gary J. Weber issued three Orders to Show Cause why: (1) the Town should not be granted preliminary injunctions pursuant to CPLR Article 63, the Town Law, and the Town Code that prohibited plaintiffs from occupying or otherwise using the properties located at 1104, 1110, and 1130 North Sea Road, and (2) why the court should not declare that plaintiffs' use of these North Sea Road properties violated certain provisions of the Town Code (the "Orders to Show Cause"). (See Decl. of Michael S. Cohen, Esq., dated Jan. 21, 2011 ("Cohen Decl."), Exs. D, F, H.) Justice Weber simultaneously issued temporary restraining orders (the "TROs") that prohibited plaintiffs from using or occupying these three North Sea Road properties until defendants' motions for preliminary injunctions were decided. (Id.) Thereafter, on July 28, 2008, the TROs were extended by order of New York State Supreme Court Justice Arthur G. Pitts (the "Extension Orders"). (Cohen Decl., Exs. E, G, I.)*fn2

Plaintiffs allege that defendants "deliberately and intentionally provid[ed] false information to the state court"*fn3 and "utiliz[ed] and abus[ed] a New York State Rule of Civil Procedure" in order to obtain the TROs. (See Am. Compl. ¶ 65.) According to plaintiffs, defendants' conduct constituted "the unlawful and unconstitutional seizure of Plaintiffs' property for a serious and significant amount of time, . . . in a manner akin to a pre-judgment attachment of the real property without any adequate prior notice and opportunity to be heard." (Id.) Plaintiffs further allege that defendants "failed to conduct any prompt post-deprivation full evidentiary hearing." (Id. ¶ 66.) As a result, the North Sea Road properties could not be rented or occupied during the spring, summer, or fall of 2008 or any part of 2009 (even though such extended periods of non-occupancy violated the terms of the properties' mortgage contracts), and were subject to vandalism and mold growth in the basement. (Id. ¶ 68.)

On or about September 10, 2008, the Town allegedly "sent a slew of fire marshals[,] Code enforcement officers, police officers and a Building Inspector onto the properties without probable cause, without a search warrant and without consent of the property owners . . . ." (Id. ¶ 69.) Although plaintiffs' counsel demanded that these individuals vacate the premises, they refused because, "according to LOMBARDO, no one had a right to even be on the property at all." (Id.)

IV. The Amended Complaint

The Amended Complaint asserts six causes of action. Count I seeks damages for alleged violations of plaintiffs' Fourth and Fourteenth Amendment rights stemming from: (1) the September 10, 2008 search of the North Sea Road properties (id. ¶ 75), and (2) plaintiffs' allegation that "Defendants effectively continued the initial 'seizure' [of] all use and occupancy of the real properties and all use [of] income-generating properties, through what is tantamount to unconstitutional ex parte writs of attachment being sought by a municipality and granted by a state court judge, without notice and opportunity to be heard." (Id. ¶ 76.) According to plaintiffs, the Town and Town Board deprived plaintiffs of their rights under valid certificates of occupancy "without providing any sort of speedy post-deprivation full evidentiary hearing process." (Id. ¶ 77.)

Count II seeks damages for defendants' alleged violation of plaintiffs' First Amendment rights by retaliating against MacPherson because he filed the Initial Action. (Id. ¶ 83.) Count II also contains an allegation that plaintiffs "have been treated differently from other persons who are similarly situated in numerous respects." (Id. ¶ 91.)

Count III seeks damages based upon defendants' alleged violation of plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights by: (1) utilizing "the same town attorneys to both prosecute these Plaintiffs in the Justice Court and to also pursue state civil action," (id. ¶ 94), (2) "fail[ing] to fulfill their investigative and administrative functions by adequately reviewing the TOWN's Building Department files before requesting [a] search warrant and making specious false statements in court papers," (id. ¶ 95), and (3) the Town Board and Lombardo's conduct "deliberately delayed the state judicial process," (id. ¶ 96).

Count IV alleges that defendants violated plaintiffs' Fourth, Fifth and Fourteenth Amendment rights by failing to "train and supervise their governmental employees not to violate civil rights of Plaintiffs and persons in Plaintiffs' situation." (Id. ¶ 100.) Plaintiffs seek damages for the resulting violations of their constitutional rights.

In Count V, plaintiffs seek a declaration that "Defendants' scheme of deprivation of the rights granted by a 'Certificate of Occupancy' without a reasonably prompt post-deprivation full evidentiary hearing" is unconstitutional. (Id. ¶¶ 113, 116.) Plaintiffs also seek a declaration that the Town and Town Board violated the Constitution through its "custom, policy and use of New York State civil procedures for the purpose of seeking ex parte TROs and preliminary injunctions, without adequate notice to the property owner and a full and fair opportunity to be heard . . . ." (Id. ¶ 114.) Finally, plaintiffs seek a declaration that the Town and Town Board's "legislation and manner of seizing all use of a residential property without providing for a full and fair post-seizure evidentiary hearing within 15 days" violates the Constitution. (Id. ¶ 115.)

Count VI seeks injunctive relief that would require defendants to provide training to its code and law enforcement officers, and to submit to monitoring by the New York State ...

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