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Norwood v. Salvatore

United States District Court, N.D. New York

February 13, 2015


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

MACKENZIE HUGHES LLP, WILLIAM B. HUNT, ESQ., Syracuse, New York, Attorneys for Defendants.


MAE A. D'AGOSTINO, District Judge.


On June 22, 2012, Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendant Town of Hancock, New York, and its Code Enforcement Officer, Defendant Michael Salvatore, violated Plaintiffs' rights under the Due Process and Equal Protection Clauses in relation to Plaintiffs' efforts to secure certain building permits and other permits for their properties. Presently before the Court is Defendants' motion for summary judgment. See Dkt. No. 42.


A. Procedural History

Plaintiffs filed an initial complaint on June 22, 2012, which alleged violations of Plaintiffs' substantive due process and equal protection rights, requested declaratory relief as to Plaintiffs Douglas and Leann Norwood and D.N. (collectively, the "Norwood Plaintiffs"), and asserted a malicious prosecution claim as to Plaintiffs Paul and Lena Orlowski (collectively, the "Orlowski Plaintiffs"). See Dkt. No. 1. On October 23, 2012, Defendants moved to dismiss the initial complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(5) and 12(b)(6). Dkt. No. 8. In a Memorandum-Decision and Order ("MDO") dated April 10, 2013, this Court granted Defendants' Rule 12(b)(5) motion to dismiss for insufficient service as to Defendant Salvatore in his personal capacity and denied the motion as to Defendant Town of Hancock and Defendant Salvatore in his official capacity. Dkt. No. 15 at 5-9. With respect to Defendants' Rule 12(b)(6) motion to dismiss for failure state a claim, the Court denied that motion as to the Norwood Plaintiffs' substantive due process claim, granted it as to the Norwood Plaintiffs' equal protection claim and cause of action for declaratory relief, and granted it as to the Orlowski Plaintiffs' substantive due process, equal protection, and malicious prosecution claims. Id. at 9-27. The Court granted Plaintiffs leave to amend their complaint as to their equal protection claims only. Id. at 22-23. Finally, the Court's April 10, 2013 MDO denied Defendants' motion to dismiss on qualified immunity grounds. Id. at 27-29.

On May 6, 2013, Plaintiffs filed an amended complaint, which expanded on Plaintiffs' allegations regarding their equal protection claims. See Dkt. Nos. 19, 19-1. Defendants then filed a motion to dismiss Plaintiffs' equal protection claims. Dkt. No. 22. On January 17, 2014, the Court issued an MDO dismissing the Norwood Plaintiffs' equal protection claims and the Orlowski Plaintiffs' selective enforcement equal protection claim. See Dkt. No. 29. The Court denied Defendants' motion to dismiss as to the Orlowski Plaintiffs' "class of one" equal protection claim. Id. at 21-22. As a result of the Court's January 17, 2014 MDO, the only claims remaining in this action are the Norwood Plaintiffs' substantive due process claim and the Orlowski Plaintiffs' "class of one" equal protection claim. See id. at 22.

On January 31, 2014, Defendants filed their answer to Plaintiffs' amended complaint. Dkt. No. 30. After discovery, Defendants moved for summary judgment on June 30, 2014. Dkt. No. 42. Plaintiffs oppose the motion. See Dkt. No. 46.

B. Factual Background

1. The Norwood Plaintiffs

The Norwood Plaintiffs owned property located in East Branch in the Town of Hancock (the "East Branch Property") during the time period relevant to the instant action. Dkt. No. 42-1 at ¶ 19. In May 2008, a fire destroyed the Norwood Plaintiffs' home located on the East Branch Property. Id. at ¶ 20. After the fire, the Norwood Plaintiffs sought to rebuild their home. Id. at ¶ 22. The East Branch Property is located in a Special Flood Hazard Area. Id. at ¶ 21.

On or about November 24, 2008, the Norwood Plaintiffs submitted a floodplain development permit application and building permit application to Defendants. Id. at ¶¶ 22-23. Defendants contend that the Norwood Plaintiffs never paid the required fees for the permit applications. Dkt. No. 42-1 at ¶ 25; Dkt. No. 42-14 at ¶¶ 7, 9. Defendant Salvatore attested that receipt of the Norwood Plaintiffs' application fees "would have been indicated by a notation at the bottom of the application that the fee was received by cash or check." Dkt. No. 42-14 at ¶ 9. The Norwood Plaintiffs' applications contain no such notation. See Dkt. Nos. 42-17, 42-19. The Norwood Plaintiffs contend that they paid the application fees. See Dkt. No. 46 at 2; Dkt. No. 42-8 at 21-22.

Defendants neither granted nor denied the floodplain development and building permit applications. Dkt. No. 42-1 at ¶ 26. Defendant Salvatore permitted the Norwood Plaintiffs to perform preliminary work on rebuilding their home prior to the issuance of a building permit, including the installation of footings and pillars. See Dkt. No. 42-1 at ¶ 27; Dkt. No. 42-14 at ¶ 10; Dkt. No. 42-8 at 15-18.[1] The Norwood Plaintiffs also installed girders and a plywood platform without Defendant Salvatore's approval. Dkt. No. 42-8 at 29. The Norwood Plaintiffs contend that Defendant Salvatore then "told [Douglas Norwood] that [he] wasn't going to be able to get a permit to build." Id. at 13; see also id. at 17 ("[Defendant Salvatore] said that he didn't think he was going to give me the permits to build because it was in the floodplain."). Defendants contend that no action was taken on the Norwood Plaintiffs' permit applications because the permit fees were never paid. See Dkt. No. 42-14 at ¶ 12. The Norwood Plaintiffs ceased work on rebuilding and eventually sold the East Branch property. Dkt. No. 42-1 at ¶ 31.

2. The Orlowski Plaintiffs

The Orlowski Plaintiffs own property located on Readburn Road in Walton, New York, within the Town of Hancock (the "Readburn Road Property"). Id. at ¶ 32. Plaintiffs contend that in June 2009, Lena Orlowski called Defendant Salvatore and obtained his verbal permission to move a mobile home onto the Readburn Road Property. See Dkt. No. 46 at 3; Dkt. No. 42-10 at 8, 56.[2] Plaintiffs further contend that during this conversation, Defendant Salvatore "stated that no permits were required and it was fine to move the trailer [and that] [the Orlowski Plaintiffs] would only need [a permit] if [they] set it up for a home or if somebody was going to live there." Dkt. No. 42-10 at 8. In July 2009, the Orlowski Plaintiffs moved the mobile home onto the property. Id. Plaintiffs contend that Mrs. Orlowski again called Defendant Salvatore and informed him that the trailer had been moved. Id. at 8-9. According to Plaintiffs, Defendant Salvatore told Mrs. Orlowski "that he passed by [the Readburn Road Property] and he saw the [mobile home, ] where it was[, ] and he liked where [the Orlowski Plaintiffs] put it." Id. at 9.[3]

The Orlowski Plaintiffs did not have a building permit or certificate of occupancy for the mobile home. Dkt. No. 42-1 at ¶ 34. On April 14, 2010, Defendant Salvatore sent a letter to Paul Orlowski, Jr., the Orlowski Plaintiffs' son, informing him that the new location of the mobile home violated Town of Hancock local law. See Dkt. No. 42-25.[4] The letter explained that in order to obtain a building permit and install the mobile home legally, the Orlowski Plaintiffs would need to: (1) have the home inspected and obtain a warranty seal; (2) submit a foundation plan; and (3) submit a septic plan from a design professional. See id. The Orlowski Plaintiffs sought to meet the three requirements for a building permit, but were unable to locate a professional that could perform an inspection and issue a warranty seal. Dkt. No. 42-10 at 15-16. As a result, the Orlowski Plaintiffs did not apply for a building permit for the mobile home. Dkt. No. 42-1 at ¶ 38.

On or about June 29, 2010, Paul Orlowski, Sr., received an appearance ticket instructing him to appear in the Town of Hancock Town Court to answer the charge of building without a permit. See Dkt. No. 42-26.[5] In July and August 2010, while awaiting the town court trial, the Orlowski Plaintiffs dismantled the mobile home. See Dkt. No. 42-10 at 25-26. Following a trial on October 25, 2014, the charges against the Orlowski Plaintiffs were dismissed on November 8, 2014 for insufficient evidence as to the actual location of the mobile home. Dkt. No. 42-1 at ¶ 41.[6]

On November 16, 2010, Defendant Salvatore sent a letter to Mr. Orlowski that correctly identified the tax map number of the Readburn Road Property, again informed the Orlowski Plaintiffs that the mobile home's placement violated Town of Hancock local law, and set out the three steps outlined in the original letter for bringing the mobile home into legal compliance. See Dkt. No. 42-27. In response, Mr. Orlowski informed Defendant Salvatore that the mobile home had been ...

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