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Ercolani v. Mousso

United States District Court, W.D. New York

March 20, 2017

PAUL MOUSSO, Code Compliance Officer, Town of Greece, CHERYL M. ROZZI, Town Clerk, Town of Greece, BILL REILICH, Supervisor, Town of Greece, Defendants.


          CHARLES J. SIRAGUSA United States District Judge.


         David Ercolani (“Plaintiff”) filed an Amended Complaint (Docket No. [#3]) pursuant to 42 U.S.C. § 1983, alleging a “class-of-one” equal protection claim under the Fourteenth Amendment to the United States Constitution. In particular, Plaintiff, a resident of the Town of Greece, New York (“the Town”), maintains that the defendants, who are employed by the Town, improperly ignored his complaints that a neighbor's swimming pool was leaking, and causing water to flow into his basement. Now before the Court are Defendants' motion [#6] to dismiss the Amended Complaint pursuant to Federal Rule of Procedure (“Fed. R. Civ. P.”) 12 (b)(6), and Plaintiff's cross-motion [#9] to file a Second Amended complaint pursuant to Fed.R.Civ.P. 15. For reasons detailed below, Plaintiffs' cross-motion to amend is denied, and Defendants' motion to dismiss is granted.


         Unless otherwise noted, the following facts are taken from the Amended Complaint and the proposed Second Amended Complaint, and are accepted as true for purposes of this Decision and Order. Plaintiff resides in the Town of Greece, and his next-door neighbor has an in-ground swimming pool. In or about 2013, water began accumulating in Plaintiff's basement. Plaintiff suspected that the water was emanating from the pool of the neighbor, who had previously mentioned that his pool was leaking. After determining that the water was not coming from his own water service line, Plaintiff complained to officials at the Town that the water was leaking from the neighbor's pool. In September 2013, Plaintiff wrote to the Town's code enforcement officer, defendant Paul Mousso (“Mousso”), and asked “that action be taken by the Town of Greece on his behalf, ” but Mousso allegedly “took no action.”[1] In June 2014, Plaintiff wrote to the Town Supervisor, defendant Bill Reilich (“Reilich”), asking that action be taken on his behalf, but Reilich allegedly took no action.[2] That same month Plaintiff mentioned the problem again to Mousso, who allegedly indicated that he would take some action, but did not do so. In September 2014, Plaintiff wrote to the Town Clerk, defendant Cheryl Rozzi (“Rozzi”), about various “concerns, ” including his belief that the neighbor's pool was leaking into his basement, after which Rozzi responded to Plaintiff's “other concerns, ” but took no action concerning the neighbor's pool.[3] In November 2014, Plaintiff again wrote to Rozzi about the alleged leaking pool, but she took no action. In June 2015, Plaintiff again wrote to Rozzi about the situation, and Rozzi responded that the matter had been referred to the Health Department. Finally, in August 2015, Plaintiff again spoke with Mousso, who made an appointment to meet with Plaintiff about the matter, but failed to keep the appointment and then did not contact Plaintiff.

         On August 7, 2016, Plaintiff commenced this action against Mousso and Rozzi in their individual capacities, alleging a class-of-one equal protection violation. On August 16, 2016, Plaintiff filed an Amended Complaint [#3], adding Reilich as a defendant in his individual capacity.[4] In an effort to plead that Plaintiff had been treated differently than similarly-situated individuals, the Amended Complaint states, upon information and belief, four instances in which “the Town of Greece” “took action” against residents whose swimming pools were “leaking onto” neighbors' properties.[5] The Amended Complaint does not explain how these “leaking pool” problems were brought to the Town's attention, but assumes that complaints were made by neighbors whose property was affected by the leaking pool water, and who were therefore “similarly situated” to Plaintiff. In each of these four instances, the Amended Complaint alleges that the Town took some action against the offending landowners pursuant to Town Code § § “184-7 and/or 184-10.”[6] Further, the Amended Complaint alleges that “Defendants intentionally and purposefully treated Plaintiff disparately as a class-of-one in its application of Town of Greece codes, 184-7 and/or 184-10, ” inasmuch as it did not take similar action against Plaintiff's neighbor.[7]

         On September 26, 2016, Defendants filed the subject motion to dismiss [#6], pursuant to Fed.R.Civ.P. 12(b)(6), in lieu of filing an answer to the Amended Complaint. Defendants' motion indicates that Greece Town Code § § 184-7 and 184-10 were repealed in 2010, and therefore were not in effect when Plaintiff allegedly complained to the Defendants between 2013 and 2015. Consequently, Defendants maintain, the Amended Complaint does not state a class-of-one equal protection claim, since Plaintiff is not similarly situated to the unidentified persons whose complaints, he assumes, led to the four instances alleged in the Amended Complaint, wherein the Town took action against landowners for draining their pools onto adjacent properties.[8]

         In response to Defendants' motion, Plaintiff admits that the Amended Complaint is deficient, and contends that he was unaware that Code § § 184-7 and 184-10 had been repealed. However, on November 1, 2016, Plaintiff filed the subject cross-motion [#9] for leave to file a Second Amended Complaint. The proposed amended pleading omits references to Town Code § § 184-7 and 184-10, and instead refers to Town Code § 114-12.1(A) “Swimming Pools, ” which, Plaintiff maintains, replaced Code sections 184-7 and 184-10. The proposed amended pleading also purports to lists four alternative instances in which the Town took action against landowners for draining their swimming pools onto adjacent properties, pursuant to Code § 114-12.1(A). Specifically, the proposed pleading alleges, upon information and belief only, that unidentified “neighbors” complained about four properties - 198 Luddington Lane, 50 Castle Grove Drive, 114 Emberglow Lane and 16 Parham Drive - with swimming pools leaking onto their properties, and that the Town “took action” in response to the complaints.[9]

         On November 17, 2016, Defendants filed their opposition [#11] to the cross-motion to amend, contending that the proposed amendment would be futile since the proposed pleading still does not plausibly indicate that Plaintiff is similarly situated to the persons to whom he compares himself.[10] In support of this argument, Defendants have submitted an affidavit [#11-1] from Mousso, in which he indicates that the four instances described in the proposed Second Amended Complaint are not similar to the situation at Plaintiff's property. In that regard, Mousso indicates, first, that he is personally familiar with the incidents at 50 Castle Grove Drive and 114 Emberglow Lane, and neither involved water leaking from an in-ground pool into a neighbor's basement; instead, both incidents involved landowners “discharging water from off of the pool covers covering their pools onto adjacent properties, ” apparently over the surface of the ground.[11] Mousso issued citations to the offending landowners, but under Code § 157-5(a) (“Property Maintenance - Exterior Property Areas”), and not § 114-12.1(A), as Plaintiff supposes.[12] As for the incidents at 198 Luddington Lane and 16 Parham Drive, Mousso indicates that he made a diligent search of the Town's records, and can “find no record of any complaints made with respect to those [properties].”[13] Mousso also indicates that Plaintiff is incorrect in asserting that he was discriminated against; rather, Mousso states that he investigated Plaintiff's complaint and was unable to verify that the water in Plaintiff's basement was coming from the neighbor's pool, and therefore did not have an adequate basis to take action against the adjacent landowner under Town Code § 114-12.1(A) or any other provision of the Town Code.[14]

         On November 22, 2016, Plaintiff made a letter request for permission to file a sur-reply. The Court granted the application. Additionally, because Defendants had submitted materials outside of the pleadings (e.g., Mousso's affidavit), the Court specifically notified the parties that it might treat the pending applications as cross-motions for summary judgment. See, Letter Order [#12] (“The Parties are further advised that pursuant to Federal Rule of Civil Procedure 12(d), the Court may treat the pending applications as cross-motions for summary judgment.”).

         On December 13, 2016, Plaintiff filed a “reply/response” [#13], consisting of an affirmation from Plaintiff's counsel and an affidavit from Plaintiff [#13-1]. Plaintiff's affidavit apparently disputes Mousso's contention that he lacked a sufficient basis to issue a citation to Plaintiff's neighbor. In that regard, Plaintiff's affidavit essentially reiterates the allegations in the pleadings concerning his contacts with Mousso about the problem, amplified by assertions that he told Mousso the following: 1) testing by the Monroe County Health Department and Water Authority “indicat[ed] that the water accumulating on [his] property was likely a result of [the] neighbor's swimming pool leaking water”;[15] 2) the neighbor admitted that his swimming pool was leaking water.[16] Plaintiff's counsel's affirmation, on the other hand, purports to explain how he identified the four incidents in the proposed Second Amended Complaint as being “similarly situated” to Plaintiff's situation. In particular, counsel made a freedom of information law (“FOIL”) request to the Town for records pertaining to notices/citations that had been issued over the past twenty years relating to failures to properly maintain swimming pools. In response to that FOIL request, the Town sent counsel a 110-page spreadsheet document, listing 1, 650 instances involving pools. Plaintiff's counsel reviewed the document and found four instances involving pool water draining onto an adjacent property (198 Luddington Lane - “Draining pool water to neighboring property”; 50 Castle Grove Drive - “Draining pool onto neighbor's property”; 114 Emberglow Lane - “Discharging water to neighboring property”; and 16 Parham Drive - “Pool drainage into neighboring property.”), which he included in the proposed Second Amended Complaint. Plaintiff further indicated that if the Court were inclined to treat the motions as being for summary judgment, he would like an opportunity to conduct discovery.

         On March 16, 2017, counsel for the parties appeared before the undersigned for oral argument. Having thoroughly considered the matter, the Court will not convert the matter to a summary judgment motion, and will restrict its consideration to the Amended Complaint and proposed Second Amended Complaint.


         Motion to Dismiss

         Defendants have moved to dismiss the Amended Complaint for failure to state a claim, and the standard for such motions is well settled:

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to ...

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