The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE DECISION AND ORDER
This case stems from the purchase of a home in the Town of Oyster Bay that unbeknown to the buyer had several structural deficiencies, which resulted in numerous building code violations and the subsequent loss of the value of the purchase price of the home. While the Defendants characterize this as a mere case of "buyer's remorse", the Plaintiffs claim this case "is about greed, avarice, a builder's incompetence and the deliberate conduct of a Town that enabled it all to happen." This Court has issued several decisions in this matter, including the partial granting of a motion to dismiss in 2009 and the denial of a motion to amend in 2011. The only claims that remain at this stage are 28 U.S.C. § 1983 causes of action against the Town of Oyster Bay (the "Town"), the Town of Oyster Bay Department of Planning and Development (the "Town Department"), and several individual Town employees. Presently before the Court is the Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Fed. R. Civ. P. 56" or "Rule 56") dismissing the complaint. For the reasons set forth below, the motion is granted.
The following facts are drawn from the evidence in this case, including the residential contract of sale, the communications between the parties, the Rule 56.1 statements, and the deposition transcripts. The Defendants oppose the Plaintiffs' use of one particular deposition transcript in support of their opposition to the Defendants' summary judgment motion----that of prior defendant Vincent Aquilino----because they claim that they were unable to depose Vincent Aquilino themselves. Certainly, if the non-movant had not had the opportunity to conduct certain discovery, that party could seek an order pursuant to Fed. R. Civ. P. 56(f), which has been interpreted "to provide that when a party facing an adversary's motion for summary judgment reasonably advises the court that it needs discovery to be able to present facts needed to defend the motion, the court should defer decision of the motion until the party has had the opportunity to take discovery and rebut the motion." G-I Holdings, Inc. v. Baron & Budd, No. 01 Civ. 0216, 2002 WL 31251702, at *4 (S.D.N.Y. Oct. 8, 2002). However, here it is the movant----the Defendants----that are claiming that they were denied an opportunity to conduct certain discovery, namely deposing Vincent Aquilino. Cf. Connecticut Indemnity Co. v. 21st Century Transport Co., 186 F. Supp. 2d 264 (E.D.N.Y. 2002) (denying plaintiff's argument that as a matter of law the defendant could not succeed on a motion for summary judgment where the plaintiff had not had the opportunity to depose affiants on whose affidavits a summary judgment motion was based because the plaintiff had opportunity to depose affiants and did not). In any event, the Court need not determine whether it is appropriate to consider the testimony of Vincent Aquilino when reviewing the facts that underlie the instant motion. This is because even if the Court considers this particular evidence, it would not change the outcome of the motion for summary judgment.
Vincent and Diane Aquilino purchased 59 Larabee Avenue, Oyster Bay, New York (the "Property") in November 1999. The Property consists of a two-family dwelling and a detached garage. After they purchased the property, the Aquilinos obtained two building permits----one for the house and one for the garage----dated February 22, 2000. The building permits expired in 2001, and it appears that much of the construction on the Property by the Aquilinos occurred after the last final inspection was performed by the Town on February 14, 2001. In this regard, some time after the Town had conducted its last official inspection of the garage, Vincent Aquilino made several structural improvements to the garage without informing the Town. (Def. Ex. O.) Specifically, Aquilino admitted that he installed a bathroom on the second floor of the garage as well as a permanent set of steps after the Town's final inspection. One of the individual defendants, Tim Zikes, confirmed in his deposition that Aquilino never applied for a permit to legalize the garage bathroom.
The Plaintiffs Julie Lamothe and her son Justin Lamothe are the current joint owners of the Property. The Plaintiffs purchased this property on April 14, 2005 from the Aquilinos pursuant to a Residential Contract of Sale signed by all the parties to the transaction. (Def. Ex. C.) Prior to the sale, in March 2005, Vincent Aquilino was issued a Certification of Occupancy ("CO") by the Town. (Pl. Ex. 6 & 22.)
During the real estate transaction, the Plaintiffs were represented by an attorney. The Contract of Sale stated that the Plaintiffs were fully aware of the physical condition of the state of the repair of the house and the garage, based on their own inspection and investigation. In this regard, the Contract of Sale stated:
12. Condition of Property
Purchaser acknowledges and represents that Purchaser is fully aware of the physical condition and state of repair of the Premises and of all other property included in this sale, based on Purchaser's own inspection and investigation thereof, and that Purchaser is entering into this contract based solely upon such inspection and investigation and not upon any information, data, statements or representations, written or oral, as to the physical condition, state of repair, use, cost of operation, or any other matter related to the Premises or the other property included in the sale, given or made by Seller or its representatives, and shall accept the same "as is" in their present condition and current state of repair, subject to reasonable use, wear, tear and natural deterioration between the date hereof and the date of Closing . . .
(Def. Ex. C., Article 12.) The Plaintiffs also did not receive a written disclosure statement that is ordinarily required under New York State law to be given by the sellers of real property to purchasers, instead choosing to receive a $500 credit from the purchase price. (Def. Ex. C., Rider at Article 47.)
In March 2005, Ms. Lamothe hired a private home inspection company, Safe Harbor Inspections, to inspect the property for her. (Def. Ex. F.) In her deposition, Ms. Lamothe stated that she did not actually read this Home Inspection Report. Instead, she "just went over the items with the Home Inspector." (Transcript of Julie Lamothe ("JL Tr.") at 294.) She also testified that she did not rely on the Home Inspection Report when deciding to purchase the property. There is no dispute that the Report did include the observation that there were three sump pumps that had been placed into small wells in the concrete floor in the basement. In addition, Ms. Lamothe also stated in her deposition that she did not go to the Town Department to review any records on file for the property or speak to anyone at the Department before going ahead with the $700,000 purchase. (JL Tr. at 285--86.) The Plaintiffs closed on the property on April 14, 2005. (Def. Ex. G.)
Subsequent to the purchase of the home, in October 2005, it rained heavily for seven continuous days and the Property had substantial flooding in the basement of the house. (JL Tr. at 395--99.) As a result of this flooding, Ms. Lamothe visited the Town's offices and began researching and reviewing the contents of the file for the Property that was maintained by the Town Department. It was the result of this post-purchase investigation that Ms. Lamothe became aware that certain structural changes were made to the home by the sellers of the Property without obtaining the proper permits from the Town and without the Town's knowledge or consent.
In November 2006, the Nassau County Department of Assessment received a telephone complaint from a Lamothes' neighbor regarding the Plaintiffs' alleged "illegal apartment" above the garage. (Def. Ex. I.) On December 11, 2006, the Chairman of the Nassau County Board of Assessors made a formal request for the Town to investigate this complaint and determine if there was an illegal apartment. (Def. Ex. K.) In response to this request, on December 27, 2006, the Town Supervisor's Office sent an inter-departmental memorandum to the Defendant Jack Libert, Commissioner of the Town Department, asking him to investigate possible illegal accessory apartments in a number of different towns, including at the Property. (Def. Ex. L.)
On an unspecified date, the Town Zoning Inspector Eileen Cannizzaro contacted Ms. Lamothe to make an appointment to inspect the garage. (Cannizzaro Dep., at 13--17.) On February 9, 2007, Cannizzaro entered the garage with Ms. Lamothe and observed evidence that the second floor had been converted to a habitable space, including a permanent staircase leading from the first floor to the second floor. (Id. at 18--19.) The garage was not an "illegal apartment" as defined by the Town Code, because there was no full kitchen, but Ms. Lamothe was nevertheless given a summons for having general living space on the second floor of the garage without an appropriate CO. (Def. Ex. J.) It appears undisputed that both the permanent staircase and bath in the garage were installed by Vincent Aquilino, the former owner.
On April 9, 2007, Michael Bathie, a Plumbing Inspector for the Town, inspected the premises and found that the three sump pumps that had been installed in the basement by Vincent Aquilino violated the Town's Building Code because there had been no permits obtained to install them. On that same date, Joe Spano also inspected the premises and found that there were several other Town Code violations, including: (1) the garage bathroom lacked the requisite ceiling height; (2) there was no vent for the garage bathroom visible through the roof; and (3) the hanging gas unit and electric hot water heater in the garage required a permit. (Pl. Ex. 12.) According to the Plaintiffs, if an appropriate inspection of the premises had occurred before the CO was issued in March 2005, then these violations would have been discovered and no CO would have been issued.
Julie Lamothe contacted Jack Libert, the Commissioner of the Town Department, on several occasions sometime between 2005--2007 to make him aware of the flooding problems she experienced at the Property. (Lipert Dep. at 8--9.) At some unspecified time, Ms. Lamothe began to threaten Town officials with legal action. The earliest evidence to support these threats is an email from Lamothe to Stephen Mori, an individual Defendant who is a Construction Manager for the Town, dated May 25, 2007, in which she writes that she "offered an opportunity to resolve this matter without attorneys and the court system and . . . [that she was] instructing [her] attorney to proceed." (Pl. Ex. 17.) In addition, a copy of a telephone message slip left for Libert on August 21, 2007 states that Ms. Lamothe had retained an attorney and was considering suing for civil racketeering. (Def. Ex. Q.) Thus, it appears that Lamothe began to threaten legal action against the Town after the Town had inspected her garage and uncovered the Code violations.
The Plaintiffs claim that the criminal charges issued by Inspector Cannizzaro to Lamothe for building without a permit should have been issued to Aquilino as the builder and prior homeowner at the time of the installation. Instead, Lamothe was forced to appear in court 27 times, and three arrest warrants were issued to her for failing to appear for court dates. In addition, as Ms. Lamothe rented out the premises, she had to appear in Court due to complaints filed by her tenants because of the constant flooding. The Plaintiffs claim that the actions taken by the Town with regard to pursuing the Code violations were in retaliation for her threatening legal action and that she was subject to selective enforcement in violation of the equal protection clause.
On May 21, 2008, the Plaintiffs commenced this action against the Town, the Town Department, and several Town officials, both in their official and individual capacities (the "municipal defendants"). In addition, at the initial stage of this case, the Plaintiffs also brought claims against the Aquilinos, the sellers of the home. The Plaintiffs asserted three state law claims against the Aquilinos for common law fraud, aiding and abetting fraud, and conspiracy to commit fraud. The Plaintiffs also alleged two 42 U.S.C. § 1983 federal causes of action against the municipal defendants.
On July 10, 2009, the Court granted the Aquilinos' motion to dismiss the cause of action for fraud, finding that the allegations lacked the requisite particularity under Fed. R. Civ. P. 9 and that the specific disclaimer in the Residential Contract of Sale between the parties bolstered the application of New York's rule of caveat emptor. The dismissal of the fraud cause of action necessarily led the Court to also dismiss the causes of action for aiding and abetting fraud and for civil conspiracy to commit fraud asserted against all of the Defendants, because those counts could not stand alone after the main fraud claim against the direct actors was dismissed. Therefore, the only claims that currently remain against the municipal defendants are: (1) Section 1983 causes of action for the deprivation of the Plaintiffs' constitutional rights to equal protection of the laws and substantive due process, and (2) aiding and abetting such violations.
On January 8, 2010, after the Court rendered its decision on the motion to dismiss, the Plaintiffs' counsel Steven Morelli, Esq. moved the Court to substitute Andrew Crabtree, Esq. as the attorney of record for the Plaintiffs, which the Court granted the following day. Mr. Morelli did not state any explanation for the substitution. However, the Plaintiffs have notified the Court that they have a legal malpractice suit pending against Mr. Morelli stemming from Mr. Morelli's representation in this case.
Subsequently, on August 31, 2010, Andrew Crabtree also moved the Court for leave to withdraw as counsel of record. Mr. Crabtree stated in his Declaration in Support of Application for Leave to Withdraw as Counsel of Record that the reasons for his withdrawal were his "inability to effectively communicate with [his] clients, and their disregard of [his] advice, including Plaintiffs' numerous unauthorized ex parte communications with this Court." (Docket Entry No. 86-2.) Following Mr. Crabtree's withdrawal, over the next eleven months, the Plaintiffs attempted to procure new counsel. In a final letter to the Court dated July 1, 2011, Ms. Lamothe noted that they were "speaking to other attorneys" but were having trouble finding ...