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Anthony Dibello; Donna Dibello; and Better Homes of North Greenbush, New York v. Town of North Greenbush

December 6, 2012

ANTHONY DIBELLO; DONNA DIBELLO; AND BETTER HOMES OF NORTH GREENBUSH, NEW YORK, INC., PLAINTIFFS,
v.
TOWN OF NORTH GREENBUSH PLANNING BOARD; TOWN OF NORTH GREENBUSH; BILL MADSEN, JR., VICE CHAIRMAN FOR TOWN OF NORTH GREENBUSH PLANNING BOARD; FRED ("CHIP") ASHWORTH, MEMBER OF TOWN OF NORTH GREENBUSH PLANNING BOARD; THOMAS ("TOM") J. REGAN; PATRICIA A. REGAN, KATHRYN CONNOLLY; AND THOMAS MURLEY, DEFENDANTS.



MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

On June 16, 2009, Plaintiffs brought this civil rights action arising from a dispute over Plaintiffs' rights to use and develop their land. Dkt. No. 1 ("Complaint"). On March 9, 2010, Plaintiffs filed an Amended Complaint, adding additional Defendants. Dkt. No. 51 ("Amended Complaint"). Presently before the Court is a Motion to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, filed by Defendants on May 7, 2010. Dkt. No. 59 ("Motion"). Plaintiffs have since filed a Response in opposition to the Motion. Dkt. No. 61 ("Response"). Defendants in turn have filed a Reply to the Response. Dkt. No. 63 ("Reply").

II. BACKGROUND

The Court presumes the parties' familiarity with the factual and procedural history of this case and summarizes it here only to the extent necessary to resolve the instant Motion. For a more complete statement of the factual allegations, reference is made to the Amended Complaint.

Plaintiffs Anthony DiBello and Donna DiBello reside in Rensselaer County, New York and are, respectively, the Vice President and President of Better Homes of North Greenbush ("Better Homes"), a New York corporation. Am. Compl. at 1-2. Plaintiffs own real property in the Town of North Greenbush, a municipal corporation in Rensselaer County. Id. In July 2005, Plaintiffs began the process of subdividing this property into four lots; on August 8, 2005 their sketch plan for this subdivision was approved, and a public hearing for it was scheduled for September 12, 2005. Dkt. No. 29-3 at 15.

Plaintiffs allege that after this initial approval of the sketch plan, Defendants conspired unlawfully to prevent Plaintiffs from successfully subdividing their Highland Acres property, by means of preventing the Planning Board from issuing a final determination on Plaintiffs' application and thus depriving them of the use and benefit of their property. Am. Compl. ¶ 18. Plaintiffs allege a litany of acts taken by Defendants intended to prevent Plaintiffs from using their land. See generally id. They allege, inter alia, that: Defendants Tom and Patricia Regan harassed and intimidated contractors and consultants hired by Plaintiffs to improve their property, interfering with Plaintiffs' development of their land and causing great inconvenience and expense; Defendant Town of North Greenbush constructed and maintained, without Plaintiffs' knowledge or permission, a hidden drainage system such that rainwater and other runoff was channeled onto Plaintiffs' property; Defendant Planning Board required Plaintiffs to pay approximately $8,000.00 to move a telephone pole at the demand of the Regan Defendants, to accommodate a wall the Regan Defendants illegally maintain on the Town right of way.*fn1 Id. ¶¶ 25, 28, 33. As a result of these and other alleged misfeasances, Plaintiffs contend that they have had to spend more than $100,000.00 in an effort to have the subdivision approved. Id. ¶ 44.

Due to Defendants' actions, Plaintiffs finally contend that they "have been unable, and upon information and belief, will never be able, to achieve a final determination, which, if in the negative, could be addressed by a proceeding pursuant to Article 78 of the New York Civil Procedure Laws and Rules." Id. ¶ 40. Because of this failure to act, Plaintiffs have been denied any adequate post-deprivation remedy. Id. ¶ 41. As of the date of the most recent submissions on the docket, Plaintiffs had received no final grant or denial of the proposed subdivision by the Planning Board, despite attending numerous Planning Board meetings and submitting various versions of the planned subdivision.*fn2

Based on the foregoing, Plaintiffs claim that: (1) they have suffered a deprivation of property without procedural due process in violation of their constitutional rights due to Defendants' intentionally preventing Plaintiffs from obtaining a final decision; (2) they have suffered a deprivation of property without substantive due process in violation of their constitutional rights due to Defendants' intentionally preventing Plaintiffs from obtaining a final decision; and (3) the Town of North Greenbush committed the tort of trespass by directing water onto Plaintiffs' land. Id. ¶¶ 49-54. Plaintiffs assert their constitutional claims for deprivation of property -- apparently erroneously -- under the Fourth and Fourteenth Amendments to the United States Constitution as opposed to under the Fifth and Fourteenth Amendments.*fn3 Id. ¶¶ 49, 51.

III. LEGAL STANDARD

In reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court "must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). A court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." Id.

In order to survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). Such a determination "requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (citation omitted). A Court must accept as true the factual allegations contained in the complaint and draw all inferences in favor of the plaintiff. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678 (citing Twombly, 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that he or she is entitled to relief and the action is subject to dismissal. See Id. at 678-79.

IV. DISCUSSION

In their Motion, Defendants raise nine primary arguments as to why Plaintiffs' claims should be dismissed. See generally Mot. In their Response, Plaintiffs, represented by counsel, oppose these arguments point-by-point, but do not cite a single case or statute in the process. See generally Resp. Because the Court finds that this matter is not ripe for adjudication, the Court only addresses the parties arguments on the ripeness issue (Defendants' first point).

Defendants contend that Plaintiffs' claims should be dismissed because they are not ripe for adjudication. Mot. at 5-12. When a defendant moves for dismissal under both Rule 12(b)(1) and Rule 12(b)(6), a court must consider the alleged lack of subject-matter jurisdiction under Rule 12(b)(1) first. Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). Ripeness is a constitutional prerequisite to a federal court's exercise of jurisdiction. Fed. Election Comm'n v. Cent. Long Island Tax Reform Immediately Comm., 616 F.2d 45, 51 (2d Cir. 1980). A case must be ripe before a federal court has jurisdiction to grant relief. Schoenefeld v. New York, No. 1:09-CV-0504, 2010 WL 502758, at *2 (N.D.N.Y. Feb. 8, 2010) (Kahn, J.) (citing Int'l Tape Mfrs. Ass'n v. Gerstein, 494 F.2d 25 (5th Cir. 1974); Williamson v. Vill. of Margaterville, No. 93-CV-115, 1993 WL 133719, at *1 (N.D.N.Y. April 23, 1993)). In order ...


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