United States District Court, E.D. New York
TARIK AHMED, TIMOTHY A. LESTER, AND LOCUST VALLEY TOBACCO, INC., Plaintiffs,
TOWN OF OYSTER BAY, FREDERICK P. IPPOLITO, DIANA S. AQUIAR, AND JOSEPH CIAMBRA, Defendants
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For Plaintiffs: Michael Sordi, Northport, NY.
For Defendants: Christopher Kendric of Goldberg Segalla LLP, Mineola, NY.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, United States District Judge.
Plaintiffs Tarik Ahmed (" Ahmed" ), Timothy Lester (" Lester" ), and Locust Valley Tobacco, Inc. (" Locust Valley Tobacco" ) (collectively, " plaintiffs" ) bring this action against defendants Town of Oyster Bay (" the Town" ), Frederick Ippolito (" Ippolito" ), Diana Aquiar (" Aquiar" ), and Joseph Ciambra (" Ciambra" ) (collectively, " defendants" ), alleging an unconstitutional deprivation of their property rights under the Fourteenth Amendment. Plaintiffs claim that defendants violated plaintiffs' procedural and substantive due process rights by shutting down their store in Locust Valley, New York, after uncovering alleged violations of the Town of Oyster Bay Town Code (" the Town Code" ). Plaintiffs seek declaratory, compensatory, punitive, and equitable relief.
Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that (1) plaintiffs had a meaningful post-deprivation remedy through an Article 78 proceeding in state court; (2) Lester lacks standing; and (3) plaintiffs had no entitlement or guaranteed right to continue operating their store in violation of the Town Code, and the complaint is devoid of any conscience-shocking allegations. For the following reasons, the Court grants the motion to dismiss the procedural due process claim and dismisses Lester for lack of standing, but denies the motion with respect to the substantive due process claim.
A. Factual Background
The Court takes the following facts from the complaint, documents incorporated by reference in the complaint, as well as documents filed in other proceedings or that are part of the public record. The Court assumes these facts to be true for purposes of deciding this motion and construes them in the light most favorable to plaintiffs, the non-moving parties.
1. The Closure of Plaintiffs' Store
Ahmed is the President of Locust Valley Tobacco, a New York corporation, and Lester is an employee of Locust Valley Tobacco. (Amended Complaint (" AC" ) ¶ 2.) Plaintiffs own and operate a retail store in rented space at 99 Forest Avenue, Locust Valley, New York. ( Id.) Ippolito is
the Commissioner of the Department of Planning and Development for the Town. ( Id. ¶ 11.) Aquiar is Ippolito's assistant. ( Id. 12.) Ciambra is a " Building Inspector" in the Department of Planning and Development. ( Id. ¶ 13.)
Plaintiffs' store occupies a portion of the first floor of a building erected before 1940, when the Town first implemented a zoning code. ( Id. ¶ ¶ 15, 18.) Under a grandfather clause in the zoning code pursuant to which any structure and use that lawfully existed before 1940 can continue to remain, exist, and be used, regardless of compliance with the current code, the building can have and be used as three retail stores on the first floor, three apartments on the second floor, and a cellar for storage. ( Id. ¶ ¶ 16-17.) Plaintiffs sell items such as newspapers, magazines, lottery tickets, stationary, office supplies, pre-packaged snacks and sundries, and drinks. ( Id. ¶ 20.) Defendants do not contend that plaintiffs' use of the premises as a retail store violates local law.
In April 2012, Ahmed bought an electric griddle, a sandwich press device and hotdog roller, and several tables and chairs. ( Id. ¶ 21.) Although he brought these items to the store, Ahmed never opened their packaging and left the tables and chairs stacked and unused. ( Id. ¶ 22.) Nevertheless, at some time in April 2012, Ciambra entered and advised plaintiffs that they could not prepare food at the premises for sale and consumption there, because that would convert the store from a grandfathered retail store into a restaurant, in violation of the current zoning code. ( Id. ¶ 23.) Plaintiffs immediately removed the items from the premises. ( Id. ¶ 24.)
On April 23, 2012, Ciambra issued a " Notice of Violation" and Summons. ( Id. ¶ 26; Notice of Violation, Opposition Ex. A; Summons, Motion to Dismiss Ex. E.) The Notice of Violation stated that an inspection revealed an unsafe condition and construction without a permit. Ciambra wrote " Dangerous Condition" in the comments. The Notice of Violation apparently required plaintiffs to stop work, cease occupancy, and cease operations immediately. The Summons charged Ahmed with violations of the Town Code pertaining to zoning (§ 246-5.2), construction or alteration without a building permit (§ 93-15), dangerous structure constituting a public nuisance (§ 96-3), plumbing work without a permit (§ 180-22), electrical work without a permit or inspection (§ 107-13), and use of a structure without a proper Certificate of Occupancy (§ 93-30). Plaintiffs complied with the Notice of Violation and closed the store. (AC ¶ 27.)
On April 30, plaintiffs' counsel challenged the Notice, which he called a " Notice of Dangerous Building," for not complying with the Town Code. ( Id. ¶ 28; Letter to Ippolito, Opposition Ex. 2.) On May 7, Aquiar responded and noted that a notice had not been issued:
What makes it impossible for you to file a petition seeking review is that the Notice of ...