United States District Court, E.D. New York
MEMORANDUM AND ORDER
F. BIANCO, UNITED STATES DISTRICT JUDGE
Zacarias Rodrigues filed the Complaint in this action on
March 15, 2016. (ECF No. 1.) After this Court dismissed the
Complaint with leave to amend on October 25, 2016 (ECF Nos.
21-22), Rodrigues filed the Amended Complaint on November 30,
2016 (ECF No. 25 (“Am. Compl.”)), which added his
company, Morsman Realty Corp. (“Morsman”)
(collectively with Rodrigues, “plaintiffs”) as a
plaintiff. Presently before the Court is a motion to dismiss
the Amended Complaint filed by defendants the Incorporated
Village of Mineola (“Village”) and Daniel B.
Whalen, the Village's Superintendent of the Department of
“defendants”). For the reasons set forth below, the
motion is granted in part and denied in part. In particular,
the motion is granted with respect to the claims (1) against
Mayor Strauss, (2) based on the 2006 summons, and (3) against
Whalen to the extent they stem from the parking citations.
The motion is denied as to the claims against Whalen and the
Village regarding the summonses for the building violations
and as to the Village regarding the parking citations.
following facts are taken from the Amended Complaint. The
Court assumes them to be true for purposes of deciding this
motion and construes them in the light most favorable to
plaintiffs, the non-moving party.
is of Portuguese descent. (Am. Compl. ¶ 11.) He is the
sole owner and shareholder of Morsman, which owns property at
75 Windsor Avenue, Mineola, New York (the
“Property”). (Id. ¶¶ 6, 13.)
In 2005, plaintiffs applied for a permit to operate a
concrete mixing plant on the Property, but the Village denied
the application. (Id. ¶ 14.) Plaintiffs
eventually entered into a stipulation of settlement with the
Village whereby they were allowed to use the Property as an
outdoor storage facility for the “open storage of
trucks, machinery, equipment and materials . . . provided
they are not used for the production of cement.”
(Id. ¶ 16.)
the time the parties entered into the stipulation, inspectors
from the Village have frequently visited the Property.
(Id. ¶ 17.) Several of plaintiffs'
neighbors also operate storage facilities, some without
permits, but they have not received frequent visits from
inspectors. (Id. ¶ 18.) Plaintiffs'
neighbors are not of Portuguese descent. (Id. ¶
19.) When Rodrigues raised concerns about unfair treatment
with defendant Whalen, Whalen responded, “mind your own
business.” (Id. ¶ 18)
September 28, 2006, Rodrigues received a summons as owner of
Morsman, which alleged that he “allow[ed] for the
accumulation of filth, dirt, concrete dust and stones upon a
public place (Windsor Avenue) within the Village of
Mineola” in violation of the Village's Municipal
Code (“Code”). (Id. ¶ 20.) Building
Inspector Keith Gessner issued the summons. (Id.
¶ 21.) On July 22, 2014, Rodrigues received another
summons from the Village, this one issued by Building
Inspector Thomas Murphy, for “allow[ing] discharge into
the Villages [sic] separate storm sewer system . . .
materials other than storm water.” (Id.
¶¶ 24-25.) On December 1, 2014, Rodrigues received
additional summonses from the Village via Murphy for
operation of a non-permitted use of a garbage corporation in
an M-District and for permitting a tenant to deposit waste on
private property. (Id. ¶ 32.) It was later
determined that, although garbage trucks were being stored on
the Property, there was no garbage being stored or dumped
non-Portuguese neighbors have not received summonses even
though they have spilled concrete production material onto
public streets and into storm drains. (Id.
¶¶ 22, 25-26.) In addition, at least one neighbor,
D&A Sand and Gravel (“D&A”), produces and
stores concrete at their facility at 328 Sagamore Avenue
(“328 Sagamore”), but its owner only has a permit
to do so at a different facility located at 335 Sagamore
Avenue (“335 Sagamore”). (Id. ¶
has also received over 25 parking citations from the Village
from September 2013 to February 2015 totaling over $6, 000 in
fines. (Id. ¶ 34.) The citations were issued
for, inter alia, double parking and improper parking
of a commercial vehicle. (See, e.g., id.
¶¶ 36-47.) Plaintiffs' neighbors have not
received citations to the extent Rodrigues has even though
some of them have engaged in similar behavior. (Id.
filed the Complaint on March 15, 2016. (ECF No. 1.)
Defendants' initial motion to dismiss was granted on
October 25, 2016. (See ECF Nos. 21-22.) Plaintiffs
filed the Amended Complaint on November 30, 2016 (ECF No.
25), and defendants moved to dismiss on February 3, 2017 (ECF
No. 29). Plaintiffs filed an opposition on March 28, 2017
(ECF No. 35), and defendants replied on April 11, 2017 (ECF
No. 37). Oral argument was held on April 20, 2017. (ECF No.
38.) The Court has fully considered the parties'
Standard of Review
reviewing a motion to dismiss pursuant to Rule 12(b)(6), the
Court must accept the factual allegations set forth in the
complaint as true and draw all reasonable inferences in favor
of the plaintiff. See, e.g., Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v.
Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.
2005). “In order to survive a motion to dismiss under
Rule 12(b)(6), a complaint must allege a plausible set of
facts sufficient ‘to raise a right to relief above the
speculative level.'” Operating Local 649
Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). This standard does
not require “heightened fact pleading of specifics, but
only enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
Supreme Court clarified the appropriate pleading standard in
Ashcroft v. Iqbal, setting forth two principles for
a district court to follow in deciding a motion to dismiss.
556 U.S. 662 (2009). First, district courts must
“identify[ ] pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Id. at 679. “While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Id.
Second, if a complaint contains “well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
Amended Complaint sets forth claims pursuant to 42 U.S.C.
§ 1983 (“Section 1983”) for violations of
the Equal Protection Clause of the Fourteenth Amendment and
municipal liability against the Village based on its
selective enforcement of laws, rules, regulations, and
ordinances against plaintiffs because of Rodrigues's
national origin. (Am. Compl. ¶¶ 71-76.)
Specifically, plaintiffs claim that the Village selectively
targeted them for both violations of the Village's Code
and traffic citations. As set forth below, the Court
concludes that, although the Amended Complaint fails to state
a claim based on the Village's issuance of traffic
citations with respect to Whalen individually, it adequately
states Equal Protection against Whalen based on his alleged
selective enforcement of summonses for Code violations. The
Amended Complaint also adequately alleges municipal liability
against the Village for both the Code violations and the
threshold matter, defendants argue that Whalen cannot be held
individually liable because (1) the Amended Complaint does
not adequately allege that Whalen was personally involved in
the constitutional violations; and (2) Whalen is entitled to
qualified immunity. For the reasons outlined below, the Court
concludes that, although the Amended Complaint fails to state
a claim against Whalen based on the traffic ...