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Segreto v. New York State Department of Environmental Conservation

United States District Court, E.D. New York

February 18, 2015

ANTHONY J. SEGRETO and LINDA M. SEGRETO, Plaintiffs,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, PETER A. SCULLY as Director of NYSDEC REGION 1, PETER A. SCULLY, individually, VERNON RAIL, as attorney for NYSDEC REGION 1, and VERNON RAIL, individually, Defendants.

Patricia Byrne Blair, Esq., Mazzei & Blair, Blue Point, NY, for Plaintiffs.

Issac C. Cheng, Esq., New York State Attorney General's Office, New York, NY, for Defendants.

MEMORANDUM & ORDER

JOANNA SEYBERT, District Judge.

Plaintiffs Anthony Segreto and Linda Segreto (together, "Plaintiffs") commenced this action on May 22, 2012 against the Town of Islip (the "Town"), the County of Suffolk (the "County"), New York State Department of Environmental Conservation (the "DEC"), Peter A. Scully ("Scully"), and Vernon Rail ("Rail, " and together with the DEC and Scully, the "State Defendants") alleging constitutional violations related to their property located in Oakdale, New York. On February 12, 2013, this Court issued a Memorandum and Order (the "First Dismissal Order") dismissing Plaintiffs' Complaint, granting Plaintiffs leave to replead those claims that were dismissed without prejudice, and ordering Plaintiffs to show cause why certain claims should proceed. (Docket Entry 46.) On March 28, 2013, Plaintiffs filed an Amended Complaint. (Docket Entry 51.) As in the original Complaint, Plaintiffs asserted various claims for constitutional violations against the Town, the County, and the State Defendants. On February 24, 2014, this Court issued a second Memorandum and Order (the "Second Dismissal Order") dismissing the remainder of Plaintiffs' claims against the Town and the County, but allowing Plaintiffs' "one final opportunity" to file a Second Amended Complaint setting forth Plaintiffs' remaining claims against the State Defendants. (Docket Entry 66.) The Second Dismissal Order made clear that if Plaintiffs did not file a Second Amended Complaint the Amended Complaint would "remain the operative document" and the State Defendants would be permitted to answer. Plaintiffs have not filed a Second Amended Complaint and their time to do so has expired.

The State Defendants now move to dismiss Plaintiffs' remaining causes of action set forth in the Amended Complaint. (Docket Entry 67.) For the following reasons, the State Defendants' motion to dismiss is GRANTED, and Plaintiffs' remaining causes of action are DISMISSED WITH PREJUDICE.

BACKGROUND[1]

I. Factual Background

The Court presumes familiarity with the facts of this case, which are detailed in the Court's First and Second Dismissal Orders. Briefly, however, this action involves Plaintiffs' property at 135 Bluepoint Road in Oakdale, New York (the "Property"). Plaintiffs allege that the Town has been flooding the Property with contaminated water. (See First Dismissal Order at 3-4; see also Am. Compl., Docket Entry 51, ¶¶ 16-17 (alleging that the Town built "a series of partially concealed culverts and/or underground pipes" through which it releases water onto the Property).) Likewise, Plaintiffs allege that the County contributed to flooding on the Property through its creation of a toxic recharge basin which empties onto the Property. (First Dismissal Order at 3-4.)

According to Plaintiffs, the flooding caused significant erosion and the DEC determined that portions of the Property are "wetlands" under the New York Tidal Wetlands Act. (First Dismissal Order at 4.) As such, the DEC did not allow Plaintiffs to repair bulkheads on the Property and "prosecuted [P]laintiffs for alleged violations" of the Tidal Wetlands Act. (Am. Compl. ¶ 47; see also First Dismissal Order at 4-5.) The original Complaint also alleges that the State Defendants conducted several illegal searches of the Property. (First Dismissal Order at 5.) The Amended Complaint alleges that all Defendants conducted illegal searches of the Property. (Am. Compl. ¶¶ 61-66.)

Plaintiffs assert in their Amended Complaint that the Town and the NYSDEC refused to grant them permission to restore the bulkheads on their property and refused to grant them a "fair and impartial hearing on the matter." (Am. Compl. ¶ 20.) As a result, Plaintiffs' stated that they "unsuccessfully pursued a number of administrative remedies" in an effort to "stop the inland flooding." (Am. Compl. ¶ 38). In fact, the DEC commenced an administrative action against Plaintiffs in 2007 charging Plaintiffs with violating the New York State Tidal Wetlands Act by clearing vegetation and causing "the placement of fill." (Cheng. Aff., Docket Entry 9-2, Ex. A.) The DEC sought an order without a hearing, pursuant to 6 N.Y.C.R.R. 622.12, which the Commissioner of the DEC granted on February 1, 2008. (Cheng. Aff. Ex. A.)

Plaintiffs then commenced an action in the Supreme Court of the State of New York, County of Suffolk, pursuant to Article 78 of the New York Civil Practice Law and Rules against the Town, the County, Scully, and Rail on February 15, 2008. (Compl. ¶ 68; DiCioccio Decl., Docket Entry 16, Ex. B.) In that action, Plaintiffs sought relief from the "flooding of their real property" which they contended was caused by actions of the Respondents and to challenge the DEC's decisions to enforce the wetlands regulations. (DiCioccio Decl. Ex. C.) The Supreme Court dismissed the action, finding that Article 78 was not the proper proceeding for the relief sought and that "the Petitioners have failed to identify any basis to disturb" the DEC's determination. (DiCioccio Decl. Ex. C.)

On February 4, 2009, Plaintiffs commenced a similar action, again in the New York State Supreme Court, Suffolk County, this time against the Town and the County only. (DiCioccio Decl. Ex. D.) Plaintiffs re-alleged their claims regarding flooding of the property, including flooding from saltwater, and claimed that the County was artificially diverting water onto the Property through a faulty sewer drainage system. (DiCioccio Decl. Ex. D.) The Town and the County separately moved for summary judgment. The Supreme Court granted summary judgment in favor of the County on March 14, 2011 and granted summary judgment in favor of the Town on November 17, 2011. (DiCioccio Decl. Exs. E, F.)

Plaintiffs alleged in their first Complaint that the DEC conducted several illegal searches of the Property and on one occasion the "NYSDEC CEO" entered the Property, conducted a search, and issued a citation for putting wood chips down. (Compl. ¶ 55.) Plaintiffs claim in the Amended Complaint that on "numerous occasions" DEC employees "forcibly entered" Plaintiffs' home, detained them at gunpoint, and conducted warrantless searches of their homes. (Am. Compl. ¶61.) Plaintiffs further allege that these searches were ...


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