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Renato Pistolesi, Alltow, Inc. v. Calabrese

United States District Court, S.D. New York

April 9, 2015

CARL CALABRESE, individually, et al., Defendants.


MARVIN E. ASPEN, District Judge.

This case is currently scheduled to go to trial on May 4, 2015, [1] but first we must address the parties' cross-motions regarding Plaintiff Action Automotive Collision and Mechanical, Inc.'s ("Action") second claim, which alleges federal preemption of three local towing laws. On January 7, 2015, Judge Seibel issued an oral ruling on Defendants' motion for summary judgment, leaving only claims two and four remaining in the case. (1/7/15 Hr'g Tr.) Judge Seibel noted that claim two appeared to be a legal issue inappropriate for trial, but neither party had moved for summary judgment on the claim. ( Id. at 39.) She ordered the parties to file letter briefs explaining what should be done with claim two by January 26, 2015. ( Id. at 41.) In the requested briefs, Defendants argue that claim two should be dismissed entirely, while Plaintiffs ask the Court to enter judgment in favor of Action. The case was reassigned to this Court on January 13, 2015. For the reasons discussed below, claim two is dismissed as to two of the three challenged regulations, and judgment is entered in favor of Action as to the third.


Plaintiffs Alltow, Inc. ("Alltow") and Action originally filed a six-count complaint against Defendants, alleging various Constitutional and statutory claims. After Judge Seibel decided Defendants' motion to dismiss and motion for summary judgment, the only claims remaining are two and four. Claim two is brought by Action against the Village of Wappingers Falls ("the Village"), the Village's Mayor, Matthew Alexander ("Alexander"), and three members of the Village Board of Trustees ("the Board"), Paul Italiano ("Italiano"), Alan Weitlich ("Weitlich"), and John Visentin ("Visentin"). Claim four, which is a statutory retaliation claim not directly relevant to the issues here, is brought by Alltow against the Village and the Village's Police Commissioner, Carl Calabrese ("Calabrese").

Action and Alltow are both towing and auto repair companies owned or partly-owned by Renato Pistolesi ("Pistolesi").[2] (Pls' Br. at 2; Defs' SOF ¶ 1, Dkt. 118.) The companies are located on the same property, which is within the Village boundaries. (Pls' Br. at 2.) The parties agree that Alltow was placed on the Village Police Department's Rotational Tow List ("the Tow List") in 2007 and Action was added to the list in 2008. (Pls' Br. at 2; Defs' SOF ¶ 5, 7-8.) The Tow List is maintained by the Village Police Department as a way to distribute work to registered tow companies when there is an accident or when the police need to impound a car. (Pls' Br. at 2.) The Police Department rotates through the companies on the Tow List, calling each once before starting over. On August, 13, 2008, after a fairly short tenure on the Tow List, the Board voted to remove Action from the list. (Pls' Br. at 2; Defs' SOF ¶ 9.)

Defendants contend that the Board removed Action from the Tow List because it was unfair that Pistolesi owned two companies on the list while other owners only owned one. (Defs' Br. at 6-7.) In support of Defendants' summary judgment motion, Visentin, who attended the August 2008 board meeting, stated in an affidavit that he believed it was unfair for Pistolesi to have two companies on the list, and that Action was removed as "a matter of fairness, common sense, and the best interests of the Village." (Aff. of John Visentin, Dkt. 110-15; see also Aff. of Louis Viglotti, Esq., Dkt. 110-14.) Likewise, the then Police Chief Commissioner Charles Ferry ("Ferry") testified that he and the Board members believed it was unfair for both Action and Alltow to be on the Tow List at the same time, and that he thought it was contrary to the best administration of the list. (Charles Ferry Dep. at 41-44, Dkt. 110-9.)

At some point shortly after Action was removed, the Board authorized Ferry to issue new requirements for acceptance to the Tow List. (Pls' SOF ¶ 16, Dkt. 116; Defs' SOF ¶¶ 10-11.) Three of those requirements are relevant here:

1. The business and storage area must be at an actual business located in the Village. Storage area must be adequately secured to protect vehicles. [("Requirement 1")]
* * *
3. Trucks used for the rotational list must be garaged and dispatched from no further than 2 roadway miles from the Village of Wappingers Falls as indicated by a GPS device placed at the closest access point to the business from the village. [("Requirement 3")]
4. Applicants shall not qualify if they maintain a business on the very same premises or real property owned or operated by another Tow Rotation Service. [("Requirement 4")]

(Old Tow List Requirements, Dkt. 114-12.) Ferry testified that Requirement 4 was enacted in response to Action being placed on the Tow List. (Ferry Dep. at 33-34; Viglotti Aff. ¶ 4.) Requirements 1 and 3 appear to have targeted two other tow companies that were on the list at the time-Marty's Towing and Dutchess Towing. ( See Ferry Dep. at 35-36, 39; Defs' SOF ¶ 16.) The parties seem to agree that Action and Alltow satisfy Requirements 1 and 3.


In claim two, Action alleges that Requirements 1, 3 and 4 are preempted by 49 U.S.C. § 14501(c)(1). (Compl. ¶ 21-23.) In their brief to the Court, Plaintiffs asked us to grant injunctive relief and enter declaratory judgment finding that the Requirements are preempted by federal law.[3] Defendants ask that we dismiss the claim, arguing that: (1) Plaintiffs do not have standing with respect to Requirements 1 and 3; (2) Requirement 4 is not preempted by 49 ...

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