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Robert I. Toussie and Chandler Property, Inc v. County of Suffolk

September 6, 2012

ROBERT I. TOUSSIE AND CHANDLER PROPERTY, INC., PLAINTIFFS,
v.
COUNTY OF SUFFOLK, ROBERT J. GAFFNEY, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS SUFFOLK COUNTY EXECUTIVE, ALLEN GRECCO, AND PEERLESS ABSTRACT CORP., DEFENDANTS.
ROBERT I. TOUSSIE, LAURA TOUSSIE, ELIZABETH TOUSSIE, MICHAEL I. TOUSSIE, PRAND CORP. F/K/A CHANDLER PROPERTY, INC., ARTHUR A. ARNSTEIN CORP., TOUSSIE LAND ACQUISITION & SALES CORP., AND TOUSSIE DEVELOPMENT CORP., PLAINTIFFS,
v.
COUNTY OF SUFFOLK, DEFENDANT.



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

FILED CLERK

9/6/2012 1:23 pm

U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

MEMORANDUM & ORDER

Presently pending before the Court is Plaintiff Robert I. Toussie's ("Toussie") motion for attorney's fees. For the following reasons, Toussie's motion is DENIED.

BACKGROUND

Plaintiffs Toussie and Chandler Property, Inc. commenced this action (No. 01-CV-6716) in October 2001, asserting that their civil rights had been violated when the Defendants Suffolk County (the "County") and Robert J. Gaffney denied them the opportunity to purchase thirty-one parcels of real estate at the 2001 Suffolk County Surplus Auction (the "2001 Auction"). (Petrowski Decl. Ex. A, hereinafter the "2001 Amended Complaint.") The 2001 Amended Complaint asserted eight separate causes of action against these Defendants arising out of the 2001 Auction: claims under 42 U.S.C. § 1983 for an unconstitutional bill of attainder (2001 Am. Compl. Count I), violations of equal protection and due process (id. Counts IIIII), and denial of Toussie's First Amendment right to intimate association (id. Count IV), as well as state common law breach of contract and tortious interference claims (id. Counts V-VI, XI-XII). The 2001 Amended Complaint also asserted four common law causes of action against Allen Grecco and Peerless Abstract Corp. for breach of contract (id. Count VII), breach of fiduciary duty (id. Count VIII), an accounting (id. Count IX), and tortious interference (id. Count X). Plaintiffs sought relief in the form of: (1) an order of specific performance directing the County to convey to Plaintiffs the thirty-one parcels for which they were the highest bidders at auction or, in the alternative, damages in an amount equal to the lost profits from the development, sale, and/or rental of the thirty-one parcels (approximately $5.3 million), and (2) damages equal to the lost profits from the termination of a line of credit by Safra Bank (approximately $30 million). (See Joint Pre-Trial Order ("JPTO") at 7; Pl. Damages Stmt. ¶¶ 1-2, 7.)

In April 2005, those plaintiffs, joined by Laura Toussie, Elizabeth Toussie, Michael I. Toussie, Prand Corp. f/k/a Chandler Property, Inc., Arthur A. Arnstein Corp., Toussie Land Acquisition and Sales Corp., and Toussie Development Corp. (collectively, "Plaintiffs"), commenced a second action (No. 05- CV-1814) asserting similar claims under 42 U.S.C. § 1983. (Petrowski Decl. Ex. B, hereinafter the "2005 Complaint.") The 2005 Complaint alleged that Defendants Suffolk County, Paul Sabatino, II, Patricia B. Zielinski, and Thomas A. Isles violated Plaintiffs' civil rights when they blocked the sale of sixteen parcels at the 2002 Suffolk County Surplus Auction (the "2002 Auction"), rejected Toussie's highest bids at the 2004 Suffolk County Surplus Auction (the "2004 Auction"), and had police escort Toussie and his wife from the 2004 Auction. With respect to the 2002 Auction, the 2005 Complaint asserted claims under Section 1983 for an unconstitutional bill of attainder (2005 Compl. Count XIX), violations of equal protection and procedural due process (id. Counts XX, XXII), denial of Plaintiffs' First Amendment right to intimate association (id. Count XXIII), retaliation in violation of the First Amendment (id. Count XXI), as well as state common law breach of contract and unjust enrichment claims (id. Counts XXIV, XXV). With respect to the 2004 Auction, the 2005 Complaint asserted claims under Section 1983 for an unconstitutional bill of attainder (id. Count XIII), violations of equal protection and substantive and procedural due process (id. Counts I, III, V), violations of Plaintiffs' First Amendment right to free speech and intimate association (id. Counts VII, XI), retaliation in violation of the First Amendment (id. Count IX), conspiracy to violate Plaintiffs' constitutional rights (id. Counts II, IV, VI, VIII, X, XII), as well as state common law claims for breach of contract (id. Counts XIV-XV), unjust enrichment (Count XVI), and defamation (id. Count XVII), and a claim under Suffolk County's Administrative Code (id. Count XVIII). The 2005 Complaint also asserted claims for continuing constitutional violations. (Id. Counts XXVI-XXIX). Plaintiffs sought relief in the form of:

(1) an order of specific performance directing the County to convey to Plaintiffs the parcels for which they were the highest bidders at the 2002 and 2004 Auctions or, in the alternative, damages in an amount equal to the lost profits from the development, sale, and/or rental of the parcels (approximately $3.8 million for the 2002 Auction properties and approximately $1 million for the 2004 Auction properties), and (2) an unspecified amount of damages for Toussie's lost opportunity to purchase additional properties at the 2004 Auction. (See JPTO at 7; Pl. Damages Stmt. ¶¶ 3-6.)

On May 18, 2007, the Court consolidated the 2001 and 2005 actions in the interest of judicial economy. (Docket Entry 182.) This was followed by years of discovery-related litigation and protracted and unsuccessful settlement negotiations. On July 19, 2011, Plaintiffs stipulated to the dismissal of all claims against and related to Defendants Allen Grecco and Peerless Abstract Corp (2001 Am. Compl. Counts VII- XII), and on August 2, 2011, the Court granted in part and denied in part the County's motion for summary judgment (Docket Entry 278). Toussie v. Cnty. of Suffolk, 806 F. Supp. 2d 558 (E.D.N.Y. 2011). The Court granted summary judgment in favor of Defendants Gaffney, Zielinski, Isles and Sabatino on all claims, and in favor of the County on (1) all equal protection claims (2001 Am. Compl. Count II; 2005 Compl. Count III, XX, XXVI); (2) the procedural due process claims arising out of the 2001 and 2002 Auctions (2001 Am. Compl. III; 2005 Compl. Count XXII); (3) the First Amendment freedom of speech claim (2005 Compl. Count VII); (4) all First Amendment retaliation claims (id. Count IX, XXI); (5) the bill of attainder claim arising out of the 2004 Auction (id. Count XIII); (6) the contract claims arising out of the 2001 and 2002 Auctions (2001 Am. Compl. Counts V, VI; 2005 Compl. Count XXIV); (7) all unjust enrichment claims (2005 Compl. Counts XVI, XXV); (8) the defamation claim (id. Count XVII); and (9) the claim for violation of the Suffolk County Administrative Code (id. Count XVIII).

Plaintiffs were permitted to proceed to trial only against the County and only with respect to (1) the bill of attainder claims arising out of the 2001 and 2002 Auctions (2001 Am. Compl. Count I; 2005 Compl. Counts XIX, XXIX); (2) the intimate association claims (2001 Am. Compl. Count IV; 2005 Compl. Counts XI, XXIII); (3) the procedural and substantive due process claims related to Mr. and Mrs. Toussie's protected property interest arising out of the 2004 Auction (2005 Compl. Counts I, V, XXVII, XXVIII); and (4) the breach of contract claims arising out of the 2004 Auction (id. Counts XIV, XV).

The trial commenced on August 10, 2011. On August 23, 2011, the Court granted the County's Rule 50 motion to dismiss the breach of contract claims (Tr. 1614-1616), and the jury began its deliberations on August 24, 2011. On August 26, 2011, the jury returned a verdict in favor of Toussie on the due process claims arising out of the 2004 Auction and in favor of the County on all other claims. The jury awarded Toussie only $12,500 in damages.

On October 19, 2011, Toussie moved for attorney's fees pursuant to 42 U.S.C. ยง 1988(b) in the amount of $2,794,929.50. This motion is ...


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