United States District Court, N.D. New York
DECISION and ORDER
THOMAS J. McAVOY, Senior District Judge.
Plaintiff Ernie Telian commenced the instant action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his Fifth and Fourteenth Amendment rights. After the Court granted Defendants' motions to dismiss with leave to amend certain claims, Plaintiff filed an Amended Complaint. Presently before the Court are Defendants' motions to dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See dkt. #s 41, 42.
This matter concerns disputes over building permits on property where Plaintiff Ernie Telian and his former wife, Defendant Sherri Telian, resided. Plaintiff's initial Complaint alleged that Defendants, who included his ex-wife and officials of the Town of Delhi, subjected him to zoning decisions and prosecutions out of personal animosity in violation of state and federal law. (See Complaint, dkt. # 1). Plaintiff alleged that Defendants' conduct violated his rights to equal protection and due process. (Id. at ¶ 64). He contended that he was forced to expend considerable attorneys' fees as a result of Defendants' conduct, and that he suffered extreme emotional distress that required psychological counseling. (Id. at ¶ 52). Plaintiff also claimed that Defendants acted outrageously and he is therefore entitled to punitive damages in this case. (Id. at ¶ 67).
Defendants then filed motions to dismiss the case, alleging that Plaintiff could not recover on any of his claims even if he could prove the facts alleged. The Court granted the motion of Defendant Sherri Telian and dismissed all counts. The Court permitted the Plaintiff to file an amended complaint that alleged that other persons similarly situated were treated differently than he was, and that Defendant Sherri Telian engaged in state action. Similarly, the Court granted the motion of Defendants Town of Delhi, Peter Bracci and John Mathiesen, but permitted Plaintiff to file an Amended Complaint that properly alleged an equal protection, substantive due process, and civilrights conspiracy claim against these Defendants. The Court also permitted Plaintiff to replead his claim for punitive damages and municipal liability.
Plaintiff then filed an Amended Complaint, dkt. # 34, and Defendants again filed motions to dismiss.
II. LEGAL STANDARD
Plaintiffs have filed motions to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In addressing such motions, the Court must accept "all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). This tenet does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id . (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)).
Defendant Sherri Telian again filed a motion to dismiss, as did Defendants Town of Delhi, Peter Bracci and John Mathiesen. The Court will address each motion in turn.
A. Defendant Sherri Telian
Defendant Sherri Telian moves for dismissal of each count against her. She contends that the Plaintiff has not cured the deficiencies in his original Complaint.
i. Equal Protection Claim
Defendant seeks dismissal of Plaintiff's equal protection claim, which raises a "class-of-one" theory. Using this theory, a plaintiff may "state an equal protection claim where [he] allege[s] that [he was] intentionally treated differently from other similarlysituated individuals without any rational basis." Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Such plaintiffs "must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves." Id . "The purpose of requiring similarity is to make sure that no legitimate factor could explain the disparate treatment." Fortress Bible Church v. Feiner, 694 F.3d 208, 222 (2d Cir. 2012). To prevail, "a plaintiff must establish that (i) no rational person could regard the circumstances of the plaintiff to differ from those of the comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of mistake." Clubside, 468 F.3d at 159.
The Court earlier found that Plaintiff had failed to point to other persons similarly situated who received different treatment, but permitted the Plaintiff to amend the Complaint to make such allegations. Plaintiff's Amended Complaint points to two individuals who allegedly "constructed buildings without first obtaining a permit, and were, after being notified by the Town of the need for a permit... granted permits with no prosecution[.]" (Amended Complaint, dkt. #34, at ¶ 39). Plaintiff alleges that "in or around 2010 or 2011, Scott Oles, a former Town Board member, " built a garage in the Town of Delhi without first obtaining a permit." (Id.). When the Town notified him that a permit was necessary, "the Town granted him a permit after the fact without prosecuting him for violating any Town or other law." (Id.). Similarly, in or around 2012, Hildako and Laslo Soulok build a dog kennel on their property in the Town of Delhi without obtaining a permit. (Id.). The Town notified them of the need for a permit and granted them one without any prosecution for violating an ordinance. (Id. at 39). Plaintiff also alleges that during his trial over the zoning matter, he made "numerous attempts to contact defendant Mathiesen to attempt to resolve the situation." (Id. at ¶ 46). Plaintiff asserts that municipalities acting in good faith often resolve such charges "informally." (Id.). Such was the case with the charges against Scott Oles and Hidalko and Laslo Soulok. (Id.). Mathiesen ignored Plaintiff's attempts to resolve the dispute in the same way, however, and Plaintiff was forced to stand trial. (Id.).
Earlier, the Court found that Plaintiff's class-of-one allegations, which centered on allegations that he was treated differently from Defendant Sherri Telian, did not state a claim. Plaintiff has amended the Complaint to allege that an appearance ticket regarding the zoning violations "was a sham, as the Town never intended to actually pursue charges against her[.]" (Id. at ¶ 41). The Town instead named Sherri Telian as co-defendant "to create the illusion that plaintiff was being treated in a fair manner." (Id.). Plaintiff alleges that Defendants Bracci and Mathiesen, "in collusion with defendant Sherri Telian, made the decision to name her as a defendant for that sham purpose." (Id.). Matheisen allegedly "kept defendant Sherri Telian advised of his activities in pursuing the Town's actions against plaintiff." (Id.). During the trial, Plaintiff contends, events made clear that he was treated differently than his former wife. (Id. at ¶ 44). Though Sherri Telian was the record owner of the property and had resided on the property when the subject buildings were constructed, "the focus of the trial was upon plaintiff Ernie Telian alone[.]" (Id.). During the trial, Plaintiff "observed defendant Sherri Telian in close proximity to, and conversing with, the Special Prosecutor." (Id. at ¶ 45). Sherri Telian and the Special Prosecutor "were laughing or giggling in a highly inappropriate and suspicious fashion." (Id.). Sherri Telian even winked at the Court Clerk. (Id.).
Moreover, Plaintiff alleges, "defendants Bracci, Mathiesen, and Sherri Telian, acting collectively and in collusion, personally exercised improper influence over Town Justice Gumo, either by their direct communication with Justice Gumo or through his Court Clerk, defendant Sherri Telian's close friend Cathy Fletcher" and "induce[d]" Gumo "to award an unprecedented and outrageous verdict to harass and intimate" Plaintiff "at the behest of defendant Sherri Turian." (Id. at ¶ 48). Plaintiff alleges that Town Justice Gumo has a history of accepting improper influences over his rulings. (Id. at ¶ 49). Plaintiff points to sanctions Justice Gumo allegedly received from the New York State Commission on Judicial Conduct for improper conduct in another matter. (Id.). Plaintiff alleges that this matter concerned Justice Gumo's failure to properly "insulate" his court clerk from a matter in which the clerk's daughter was likely a witness. (Id.).
In the end, Plaintiff alleges that:
Upon information and belief, Justice Gumo's decision was based upon unauthorized communications with and directions from defendants Bracci, Mathiesen, and Sherri Telian throughout the trial period. Discovery is required to investigate the nature and extent of such communications. Upon information and belief, Justice Gumo would not have found plaintiff guilty and/or imposed such an unreasonable fine in the absence of improper influences from defendants Bracci, Mathiesen and Sherri Telian.
(Id. at ¶ 52). Such misbehavior continued when the bank account of Plaintiff's business was restrained and the contents were paid to Defendant Town of Delhi. (Id. at 54). Cathy Fletcher witnessed the information subpoena served on the business account where the money in question was held. (Id. at ¶ 55). ...