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Norwood v. Salvatore

United States District Court, N.D. New York

January 17, 2014

DOUGLAS NORWOOD, III, LEEANN NORWOOD, D.N., Minor Son of Plaintiffs
v.
MICHAEL SALVATORE, in his capacity as TOWN OF HANCOCK CODE ENFORCEMENT OFFICER, and TOWN OF HANCOCK, Defendants. NORWOOD, PAUL ORLOWSKI, and LENA ORLOWSKI, Plaintiffs,

OFFICE OF JOHN V. JANUSAS, ESQ., JOHN V. JANUSAS, ESQ., Brooklyn, New York, Attorney for Plaintiffs.

McKENZIE HUGHES LLP, JEFFREY D. BROWN, ESQ., Syracuse, New York, Attorneys for Defendants.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiffs commenced this action on June 22, 2012, under 42 U.S.C. ยง 1983 alleging, inter alia, that Defendants violated their Fourteenth Amendment rights to substantive due process and equal protection. Plaintiffs' claims arise from allegations surrounding their interactions with the Town of Hancock, New York, and its Code Enforcement Officer, Michael Salvatore, regarding certificates of occupancy, building permits, and other certificates and permits. Presently before the Court is Defendants' second motion to dismiss Plaintiffs' equal protection claims. Dkt. No. 22.

II. BACKGROUND

A. Procedural History

Following the filing of Plaintiffs' initial complaint on June 22, 2012, Defendants moved to dismiss in lieu of answering on October 23, 2012, pursuant to Fed.R.Civ.P. 12(b)(5) and 12(b)(6). Dkt. No. 8. On April 10, 2013, this Court issued a Memorandum-Decision and Order granting in part and denying in part Defendants' first motion to dismiss. Dkt. No. 15 ("April 10, 2013, MDO"). With respect to Defendants' 12(b)(5) motion to dismiss due to insufficient service, the April 10, 2013, MDO denied that motion as to Defendant Town of Hancock and Defendant Michael Salvatore in his official capacity, and granted that motion as to Defendant Salvatore in his personal capacity. Defendants' 12(b)(6) motion to dismiss Plaintiffs' substantive due process claims was denied as to the Norwood Plaintiffs and granted as to the Orlowski Plaintiffs, and the motion to dismiss Plaintiffs' equal protection claims was granted as to both the Norwood and Orlowski Plaintiffs, with leave to amend. In addition, the April 10, 2013, MDO dismissed the Norwood Plaintiffs' cause of action for declaratory relief and the Orlowski Plaintiffs' malicious prosecution claims. Finally, Defendants' motion to dismiss on qualified immunity grounds was denied.

Thereafter, Plaintiffs amended their complaint on May 6, 2013, to include new allegations regarding their equal protection claims. Dkt. No. 19, 19-1 ("Amended Complaint"). Defendants then filed a second 12(b)(6) motion to dismiss Plaintiffs' equal protection claims. Dkt. No. 22. On June 18, 2013, counsel for Plaintiffs submitted a three paragraph Affidavit in Partial Opposition. Dkt. No. 24.

B. Relevant Allegations

The Court assumes the parties' familiarity with Plaintiffs' allegations, as discussed in the April 10, 2013, MDO, and discusses only those allegations relevant to disposition of the instant motion to dismiss. These allegations are presumed to be true only for the purposes of this motion, and do not constitute findings of fact by the Court.

1. The Norwood Plaintiffs

Plaintiffs Douglas and Leeann Norwood, along with their minor son D.N. (collectively, the "Norwood Plaintiffs"), reside at 4085 O&W Road, East Branch, New York, in the Town of Hancock. Dkt. No. 19, at 1.[1] The Norwood Plaintiffs purchased a home in East Branch, Town of Hancock, New York in 1998, which was destroyed by a fire in 2009. Id. at 3. On or about July 15, 2009, the Norwood Plaintiffs contacted Defendant Salvatore, the Town of Hancock Code Enforcement Officer ("CEO"), to apply for a building permit to rebuild their home. Defendant Salvatore instructed them, after visiting their property, that certain "prep" work would have to be performed before they could apply for the building permit. See id. at 4. Thereafter, the Norwood Plaintiffs began expending funds performing the requested "prep" work, but Salvatore's demands in that regard changed over time. In particular, "Salvatore demanded an elevation certificate and engineered plans for the footings and piers, " "Salvatore demanded that the plaintiffs Norwood install the concrete footings and piers with steel reinforcements, " and "Salvatore insisted upon installation of flooding vents." See id. at 4-5. On or about September 15, 2009, Salvatore performed an inspection of the property and issued additional demands regarding work to be performed prior to issuance of the building permit. During this inspection, the Norwood Plaintiffs allege, Salvatore raised his voice and used certain racial epithets in describing prospective tenants for a new development adjacent to their property. See id. at 5.[2] Ultimately, after the Norwood Plaintiffs had completed all of the work requested by Salvatore, Salvatore instructed the Norwood Plaintiffs to halt construction and informed them that he would not issue a building permit or certificate of occupancy. See id. at 6.

The Norwood Plaintiffs allege that their treatment "was in marked contrast to the treatment of Joel May, " who was similarly situated to them. Id. at 6. Mr. May also owned property in the Town of Hancock and sought to improve it in 2008 by installing a manufactured home on it. Installation of a manufactured home and rebuilding of a home are similar activities, the Norwood Plaintiffs allege, in that the purpose of both is to create a residence and they both require submission of a building permit application, issuance of a building permit, and the grant of a certificate of occupancy. Mr. May was treated differently than the Norwood Plaintiffs in that Mr. May installed the manufactured home on his property in 2008 without a permit, connected it to utilities without a building permit, and has occupied it since without ever applying for or obtaining a building permit or certificate of occupancy. In addition, Mr. May was not ordered to perform any "prep" work at his property prior to its use as a residence, and his home was installed in violation of several building codes, including lack of a proper septic tank and foundation. See id. at 6-8. As a result of this disparate treatment of similarly situated individuals, it is alleged that Salvatore's actions "were borne of malicious ill intent, and without any justification whatsoever." Id. at 8.

The Norwood Plaintiffs further allege that their treatment "was in marked contrast to the treatment of David Menhenett." Id. Mr. Menhenett also owns property in the Town of Hancock, located at 677 Old Route 17, which he sought to improve in 2011 by constructing a home. Construction of a home and rebuilding of a home are similar activities, the Norwood Plaintiffs allege, in that the purpose of both is to create a residence and they both require submission of a building permit application, issuance of a building permit, and the grant of a certificate of occupancy. Mr. Menhenett was treated differently than the Norwood Plaintiffs in that Mr. Menhenett constructed a home on his property in 2011 without a permit, connected it to utilities without a building permit, and has occupied it without ever applying for or obtaining a building permit or certificate of occupancy. In addition, Mr. Menhenett was not ordered to perform any "prep" work at his property prior to its use as a residence, and his home was constructed in violation of several building codes, including lack of a proper septic tank and foundation. See id. at 6-8. After neighbors of Mr. Menhenett complained about the lack of a proper septic tank to the New York State Department of Health, an inspector from that agency visited Mr. Menhenett's property and immediately ordered Mr. Menhenett and the ...


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