United States District Court, N.D. New York
RONALD A. MACERA, et al., Plaintiffs,
VILLAGE BOARD OF ILION, et al., Defendants.
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
plaintiffs Ronald A. Macera and Catherine M. Macera commenced
this action against defendants Village Board of Ilion, CEO
James Trevett, and Chief Timothy Parisi pursuant to 42 U.S.C.
§ 1983. Dkt. No. 1 (“Complaint”). Presently
before the Court is Defendants' Motion to Dismiss. Dkt.
Nos. 11 (“Motion”), 11-3
(“Memorandum”). Plaintiffs responded to
Defendants' Motion and moved for summary judgment, Dkt.
No. 15 (“Response”), and Defendants filed a
reply, Dkt. No. 17 (“Reply”). For the following
reasons, Defendants' Motion is granted in part and denied
in part, and Plaintiffs' motion for summary judgment is
denied with leave to renew.
Factual Background 
live in Ilion, New York. Compl. ¶ 2. For several years
now, Plaintiffs have been feuding with the owners and patrons
of a day care center located next to their house.
Id. ¶¶ 6-28. The day care center is
“NYS licensed, ” and Plaintiffs describe it as a
“Home Occupancy Business.” Id. ¶ 6.
The day care center is also “enjoined with [the
Plaintiffs'] residence . . . by a deed stipulation of
shared property.” Id. The dispute appears to
stem from the day care center's alleged violations of
several zoning regulations. Id. ¶¶ 9-10,
January 2009 to December 2011, CEO James Trevett, who appears
to work for the Village of Ilion in some capacity, gave
Plaintiffs incorrect information about the applicability of
“the Codes Regulation of Home Occupancy Business”
to the day care center. Id. ¶ 6. In December
2011, Plaintiffs informed “the Village Board (the
Mayor)” of the issues they were having with the day
care's alleged violations of zoning regulations.
Id. ¶ 7. The next month, the day care center
submitted false documents to the Village Board and Trevett.
Id. ¶ 8. The nature of these documents is
unclear, though it appears that they had something to do with
the day care center's compliance with zoning regulations.
Id. ¶ 8. Plaintiffs note that Trevett and the
Zoning Board “failed to notify [Plaintiffs] that
[their] complaint was proceeding, ” id.,
though it is not clear what complaint Plaintiffs are
referring to and what significance should be attached to the
lack of notification.
year later, in June 2013, Plaintiffs expressed concern to
Timothy Parisi, the Chief of the Ilion Police Department,
about the “addition of a parking lot to the front of
the Daycare Business.” Id. ¶ 9. Parisi
told Plaintiffs that the parking lot did not violate any
laws, but “this [determination was] a matter for the
Traffic and Commission Board, ” not Parisi.
Id. The day care center went ahead and
“paved” the parking lot on June 25, 2013.
Id. ¶ 10. Two or three days later, Ilion was
“devastated [by] flooding, ” id., and
“[w]hen things calmed down, ” Plaintiffs again
contacted Parisi, id. ¶ 11. Plaintiffs gave him
photographic evidence of parking violations resulting from
the newly built parking lot. Id. Parisi acknowledged
that parking violations were occurring in front of the day
care center, and he “assured [Plaintiffs] that he would
. . . up patrols, . . . and . . . encouraged [them] to feel
free to call with any violation concerns.” Id.
¶ 12. Plaintiffs appear to have called Parisi and told
him the times when the violations were taking place, but they
were hesitant to do so, because they were experiencing
“harassment from the daycare, daycare employee[s],
clients and neighbors.” Id. ¶ 13. Despite
the calls, Parisi did not increase patrols on the street.
Id. ¶ 14.
June 2013, Plaintiffs wrote to Trevett to inform him that the
day care center was planning on “relocat[ing] a portion
of [a] fence that was erected in May of 2011, without a
building permit, that would violate an enjoined deed
stipulation, between our common shared driveway.”
Id. ¶ 16. Trevett responded by saying that
“the Village doesn't get involved with enforcing
deed stipulations.” Id. ¶ 17. Yet
Plaintiffs were not asking for this. Id ¶ 18.
Instead, they wanted Trevett to follow the proper procedure
when someone questions the legality of such a relocation,
namely, “the encroaching [fence] is denied a permit and
[the owners are] directed to file for [a] variance with [the
zoning board].” Id. This never happened, and
in August 2013, the owners of the day care relocated the
fence without a permit, which “took Eminent Domain of
[Plaintiffs'] property” by making their “deed
unclean.” Id. ¶¶ 19-20. Through
their attorney, Plaintiffs informed the day care center's
owners of the violation, and Plaintiffs received a response
from the Village Board attorney. Id. ¶ 19.
Around this time, Trevett falsely told Plaintiffs that the
fence was not illegal. Id. ¶ 21.
soon came to a head with the owners of the day care center,
who “hung a sign in front of the business . . . that
provided false statements of facts [about Plaintiffs] and
encouraged . . . harassment and intimidation [of
Plaintiffs].” Id. ¶ 22. Plaintiffs
experienced harassment as a result of the sign until
“late September/early October 2013, on a daily
basis.” Id. Then, one day in November 2013,
Plaintiffs returned to their home to find cars blocking the
sidewalk in front of the day care center. Id. ¶
25. When Plaintiffs backed into their driveway, their view of
foot traffic was obstructed by the parked cars. Id.
Plaintiffs almost hit two young children who “appeared
out of nowhere from behind the vehicle obstruction.”
Id. Either Ronald or Catherine wrote a blog post to
express frustration about this incident. Id. ¶
26. A few days later, the Village Board, through its
attorney, demanded that the blog be removed. Id.
January 2014, Plaintiffs “were served . . . via the
Village Attorney [with] a lawsuit on behalf of the . . .
daycare.” Id. ¶ 28. The lawsuit included
a temporary restraining order (“TRO”) forbidding
Plaintiffs from “contacting Ilion Police Department,
NYSOCFS, CPS and any public agency with ‘frivolous'
complaints.” Id. The TRO did not define
“frivolous.” Id. The TRO was
“based on information from the IPD, that was supplied
to [the] village attorney and [the] daycare business.”
Id. ¶ 29. Plaintiffs made several New York
Freedom of Information Law (“FOIL”) requests on
January 14, 2014, in an attempt to obtain this information,
but those requests were denied. Id. Plaintiffs made
other FOIL requests that were successful, and they learned
from the documents they obtained that the Village Board had
“established a [vested financial] interest with the . .
. daycare.” Id. ¶ 30. In particular, the
Village Board paid for legal work performed by the Village
Attorney on behalf of the day care center. Id.
January 18, 2014, Plaintiffs installed security cameras on
their property, and on January 23, 2014, Plaintiffs received
an amended TRO from the Village Attorney that prohibited them
“from using any cameras, either still or video.”
Id. ¶ 32. In February 2014, the “NYS
Appellate Court” vacated the TROs. Id. ¶
allege violations of their rights under the First, Fifth, and
Fourteenth Amendments, e.g., id.
¶¶ 7, 18, 20, 31, and they seek damages in the
amount of $7, 500, 000, id. ¶ 34.
filed their Complaint on June 14, 2016. Compl. Defendants
moved to dismiss the Complaint on August 2, 2016. Mot.
Defendants argue that Plaintiffs fail to state a First
Amendment claim because they have not alleged facts
suggesting that their speech was actually chilled by
Defendants' conduct or that Defendants' actions were
motivated by Plaintiffs' decision to exercise their First
Amendment Rights. Mem. at 5-7. Defendants also suggest that
any Fourteenth Amendment claim must fail because Plaintiffs
have failed to allege that they were deprived of any property
right. Id. at 7-8. Finally, Defendants argue that
several of Plaintiffs' claims are barred by the statute
of limitations applicable to § 1983 actions,
id. at 9-10, and they argue ...