United States District Court, S.D. New York
L. CARTER, JR., United States District Judge
another action that arises out of a wholesale food
distribution business formerly operated by the Alphas Company
of New York, Inc. (the "Alphas Company" or
"Company") at the Hunts Point Terminal Produce
Market (the "Market"). Plaintiff Peter Alphas
brings this action against the City of New York Business
Integrity Commission ("BIC"), Hunts Point
Department of Public Safety ("HPDPS"), and the City
of New York for constitutional violations under 42 U.S.C.
§ 1983 and common law negligence. All Defendants have
moved to dismiss under a variety of grounds including lack of
Article III standing and failure to state a § 1983
claim. Plaintiff has also moved pursuant to Fed.R.Civ.P.
15(a) for leave to amend their complaint. On March 31, 2017,
this Court denied Plaintiff s motion to amend the complaint
and granted the Defendants' motions to dismiss. The Court
does so because Plaintiff Alphas lacks standing to bring
federal claims and the defect in standing cannot be fixed in
subsequent pleadings. The Court now elaborates on these
following facts are drawn from Plaintiffs Complaint, as well
as documents of which the Court may take judicial
notice. The Complaint assumes familiarity with the
complaint (the "RICO Complaint") filed by Alphas
and the Company against the Hunts Point Terminal Produce
Cooperative Association, Inc. ("Hunts Point
Co-op"), who operates the Market, the union who provides
employees to the Hunts Point Co-op members, and various
attorneys employed by Hunts Point Co-op and the union
(collectively, the "RICO Defendants"). The RICO
Complaint alleges a violation of the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), conspiracy to
violate RICO, and eight state law claims. See ECF
No. 2, Ex. A; see also The Alphas Company of New York
Inc. v. The Hunts Point Terminal Produce Cooperative,
Inc, 1:14-cv-00145 (ALC) (S.D.N.Y).
Alphas is the sole shareholder of the Alphas Company of New
York Inc., a domestic corporation that conducts wholesale
food packing and distribution around New York City. Compl.
¶ 12. The Alphas Company is currently in bankruptcy and
under the control of a trustee for the United States
Bankruptcy Court. Id. ¶ 14. Prior to the
bankruptcy, the Alphas Company operated out of a building
within the Market that it leased from Hunts Point Co-op, a
cooperative of produce merchants who operate the Market.
Id. ¶ 12. Hunts Point Co-op commenced an
eviction proceeding against the Alphas Company, and the
Company was evicted pursuant to the proceeding. Id.
¶¶ 27-28. Alphas seeks damages against the
Defendants in connection with the eviction.
made numerous complaints to the BIC that Hunts Point Co-op
was attempting to ruin his business and that the BIC needed
to investigate the Hunts Point Co-op's actions and
prevent the eviction. Id. ¶ 23. The BIC
regulates commercial waste, public wholesale markets, and
shipyard gambling industries in New York City. See
N.Y.C. Charter Ch. 63, § 2101. The BIC can also grant,
renew, or deny licenses to operate in wholesale markets.
See N.Y.C. Admin. Code § 22-253(a). Moreover,
the BIC can conduct criminal investigations into the
businesses it regulates, including those operating in the
Market. See N.Y.C. Charter Ch. 63, § 2101(b).
As alleged in the complaint, BIC's inaction in regards to
investigating Alphas' complaints about the RICO
Defendants and preventing the eviction brought on by the
Hunts Point Co-op violated Alphas' constitutional rights.
Compl. ¶¶ 38-44.
addition, the HPDPS participated in the eviction of the
Alphas Company. The HPDPS is a security service employed by
the Market and is also commissioned by the New York State
Peace Officers. Compl. ¶¶ 9-10. In connection with
the eviction, HPDPS placed "security around the clock in
front of [the Company]" (id¶ 23(a)),
escorted the Company's employees out the leased units
after the Company was evicted (id. ¶ 23(g), Q),
cleared out inventory and equipment during the course of the
eviction (id. ¶ 23(h)), and failed to
investigate and prosecute the eviction as criminal conduct
(id. ¶ 14). According to Alphas, HPDPS acted at
the direction of the RICO Defendants in preventing the Alphas
Company from operating at the Market. Id. ¶ 23
result of BIC's and HPDPS's actions, the Alphas
Company was driven into bankruptcy, ruining Alphas'
"ownership interest financially." Id.
¶ 34(b), (c)). In addition, the Alphas Company lost
"inventory, supplies and equipment" as well as
profits and business opportunities. Id. ¶¶
21(1), 31-37. Consequently, Alphas seeks money damages for
these alleged injuries.
move to dismiss under Rule 12(b)(6), but their Article III
standing arguments belong under Rule 12(b)(1) as it
implicates subject matter jurisdiction. The standard of
review for 12(b)(1) motions is "substantively
identical" to Rule 12(b)(6) motions, but the key
difference is that the movant bears the burden of proof on a
12(b)(6) motion but the plaintiff invoking the court's
jurisdiction bears the burden on a 12(b)(1) motion. See
Lerner v. Fleet Bank, N.A. , 318 F.3d 113, 128 (2d Cir.
2003); Keepers, Inc. v. City of Milford, 807 F.3d
24, 38 (2d Cir. 2015) ("The party invoking federal
jurisdiction bears the burden of establishing prudential and
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
claim must contain "sufficient factual matter, accepted
as true, to 'state a claim to relief that is plausible on
its face.'" Ashcroftv. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell At!. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim has facial plausibility
"when the plaintiff pleads factual content that allows
the Court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Iqbal,
556 U.S. at 678. The plaintiff must allege sufficient facts
to show "more than a sheer possibility that a defendant
has acted unlawfully." Id. For the purposes of
a motion to dismiss, the court must accept all factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiffs favor. McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).
However, the court need not credit "mere conclusory
statements" or "threadbare recitals of the elements
of a cause of action." Iqbal, 556 U.S. at 678,
681 (citing Twombly, 550 U.S. at 555). The complaint
must provide factual allegations sufficient "to give the
defendant fair notice of what the claim is and the grounds
upon which it rests." Port Dock & iStone Corp.
v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir.
2007) (citing Twombly, 550 U.S. at 555).
decide the motion, the court "may consider facts as
asserted within the four corners of the complaint together
with the documents attached to the complaint as exhibits, and
any documents incorporated in the complaint by
reference." Peter F. Gaito Architecture, LLC v.
Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010)
(internal quotation marks omitted). The Court may also
consider "matters of which judicial notice may be
taken." Brass v. Am. Film Techs., Inc., 987
F.2d 142, 150 (2d Cir. 1993). "Judicial notice may
encompass the status of other lawsuits in other courts and
the substance of papers filed in those actions."
Johnson v. Levy, 812 F.Supp.2d 167, 176 (E.D.N.Y.
2011); see also Kramer v. Time Warner Inc., 937 F.2d
767, 111 (2d Cir. 1991).