United States District Court, N.D. New York
HALDENSTEIN, ADLER, FREEMAN & HERZ LLP., Attorneys for
DEVAPRASAD PLLC, Attorneys for Plaintiffs.
SUGARMAN LAW FIRM LLP, Attorneys for Defendant Antonacci.
ONONDAGA COUNTY DEPARTMENT OF LAW John H. Mulroy Civic
Center, Attorneys for Defendant County of Onondaga.
GREGORY M. NESPOLE, ESQ., KEVIN COOPER, ESQ., MALCOLM T.
BROWN, ESQ., S. DAVID DEVAPRASAD, ESQ, PAUL V. MULLIN, ESQ.,
JOHN E. HEISLER, JR., ESQ., KATHLEEN M. DOUGHERTY, ESQ.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, JR. Senior United States District
before the Court are Defendant Antonacci's and Defendant
County of Onondaga's motions to dismiss Plaintiffs'
complaint for failure to state a claim pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
See Dkt. Nos. 11, 12.
Dixie owns and operates 1st Point LLC ("1st
Point"), a full service construction management company.
See Dkt. No. 1 at ¶ 7. Plaintiff Smith owns and
operates So Gone Trash Removal LLC ("SGTR") and E.
Smith Contractors LLC ("E. Smith") (collectively
the "Smith Companies"). See Id. at ¶
8. Plaintiff Talbert owns and operates Cheyenne Realty Corp.
("CRC"). See Id. at ¶ 9. Defendant
Antonacci has been the elected Comptroller for Defendant
Onondaga County ("Defendant County") since January
2008. See Id. at ¶¶ 10, 12.
Defendant County "requires the provision of goods and/or
services, it can turn to the County's external workforce,
i.e., those in the Onondaga County community outside of
County Government services." See Id. at ¶
25. "Through its procurement process the County can
award contracts in two ways: 1) it can award a contract to a
vendor if the contract is below a certain threshold or 2)
develop a request for proposal ("RFP") that lists
the scope of work the County is seeking and the bidding
requirements." See id.
to Plaintiffs, the current County Executive of Defendant
County "has put in place a program to encourage
minority-owned businesses to bid for County work both to
increase such participation and to encourage minority-owned
businesses in Onondaga County." See id. at
¶ 13. However, Plaintiffs contend that Defendant
Antonacci, as Comptroller, has contradicted the County
Executive's program and, instead, has instituted his own
policy aimed at "continu[ing] the historic
discrimination in government contracting." See
id. at ¶ 14.
allege that Defendant Antonacci's policy discourages
minority-owned business enterprises ("MBEs") from
serving as vendors to Defendant County and protects and
favors non-MBE vendors. See id at ¶ 15. Thus,
Plaintiffs assert that Defendant Antonacci's illicit
policy has caused Defendant County to discriminate against
MBEs in violation of the law. See Id. Specifically,
Plaintiffs allege that Defendant Antonacci has "targeted
minority businesses by creating a custom and practice of
intimidation and harassment through oppressive tactics."
See Id. at ¶ 16. Plaintiffs contend that
Defendant Antonacci has treated similarly situated non-MBEs
differently and has participated in
public and private degradation, humiliation, and personal
intimidation of the minority-owned contractor's
principals and their employees, as well as the purposeful
delay of payments through either unnecessarily dissecting
aspects of minority-owned contractor deliverables even after
the work has been approved by the County and segregating out
payments to minority-owned contractors, which have resulted
in financial damage.
Specific allegations with respect to each Plaintiff
Dixie's business, 1st Point, received contracts for
various projects through the Construction Management RFP
program,  including working on the Onondaga County
Library, Everson Parking Garage, Van Dyne Hospital, Upstate
Hospital, and the Village of Solvay. See Dkt. No. 1
at ¶ 28. As a contractor in the Construction Management
RFP, Plaintiff Dixie was instructed to report directly to the
County Facilities Department. See id. However, in
early 2015, Plaintiff Dixie learned that the Onondaga County
Comptroller, Defendant Antonacci, had a file on his desktop
labeled "Dino Dixie." See id. at ¶
29. Plaintiff Dixie discovered, through an unrelated Freedom
of Information Law ("FOIL") request, that Defendant
Antonacci was monitoring his payments. See Id.
According to Plaintiffs, shortly after receiving the FOIL
request, Defendant Antonacci "announced via press
release that he would respond to FOIL requests within
forty-eight hours and that he would post the FOIL requests
and his responses to them for public viewing on his
website." See id. at ¶ 31. The timing of
the announcement and the sudden change in his policy gave
Plaintiff Dixie "the alarming impression that the FOIL
request was . . . prompted . . . by Defendant Antonacci in
order to develop a County custom of intimidating minority
businesses through his powers as a County policymaker"
by making Plaintiff Dixie's financial information
publicly available. See id. at ¶ 32.
before February 12, 2016, every payment from Defendant County
to Plaintiff Dixie was sent in a so-called
"All-In-One" check where the check was mailed
without an additional envelope and with metered postage.
However, beginning February 12, 2016, and until the filing of
this lawsuit, every payment that Plaintiff Dixie has received
for work related to County contracts has come in an official
envelope from Defendant Antonacci's office with a
computer printed label and a United States Flag stamp.
See id. at ¶ 38. According to Plaintiffs,
"the absence from the All-In-One Checks of the Metered
Postage Mark meant that the Defendant Antonacci never
forwarded it to the County operated mailroom [but, i]nstead,
purposely held back each of [Plaintiff] Dixie's payments,
so that he or his employees could personally mail out the
checks in line with his intimidating New Custom."
See Id. at ¶ 39.
County awarded Plaintiff Smith's companies three
contracts to be completed between late 2015 and early 2016.
See Id. at ¶ 42. Defendant Antonacci refused to
make payments to Plaintiff Smith ostensibly for procedural
errors with respect to two of those projects. First,
Defendant Antonacci refused to pay invoices related to the
Hutchings project because Plaintiff Smith had not yet
installed a door, although the contract allegedly allowed for
payment prior to the door's installation. See
Id. at ¶¶ 44, 47. Second, Plaintiff Smith was
informed that Defendant Antonacci refused to pay invoices
related to the Civic Center project because those invoices
were not on company letterhead. See id. at ¶
47. After Plaintiff Smith corrected these issues, he alleges
that Defendant Antonacci purposely delayed processing the
payment even further, causing financial and emotional
distress. See id. at ¶ 50. In short, Plaintiff
Smith contends that Defendant Antonacci exceeded his
authority in controlling how Plaintiff Smith was paid.
Plaintiff Smith allegedly received payments for his
contractual work on the War Memorial Arena in a similar
fashion as Plaintiff Dixie, i.e., All-In-One checks
that were placed in an envelope with a stamp. See id.
at ¶ 54. Moreover, Plaintiffs assert that Defendant
Antonacci personally showed up at the War Memorial job
wearing a "County Comptroller jacket" and asked a
junior painter questions about who each of the workers were
at the site. See id. at ¶ 55. According to
Plaintiffs, Defendant Antonacci's conduct exceeded his
authority as Comptroller and was harassment. See id.
March 2016, Plaintiff Smith emailed Defendant Antonacci to
inquire about late payments and how to improve their
relationship. See id. at ¶ 56. The two met in
person and Defendant Antonacci allegedly explained that he
had received complaints of fraud for the work Plaintiff Smith
was completing at the War Memorial. See Id. at
¶ 57. Thereafter, in April 2016, Plaintiff Smith decided
that he would no longer bid for County projects. See
Id. at ¶ 58.
County selected Plaintiff Talbert to manage three County
parking lots. See id. at ¶ 61. A few months
after Defendant County awarded Plaintiff Talbert the
contracts, Defendant Antonacci conducted an audit of his
company. See Id. at ¶ 62. According to
Plaintiffs, "[o]f the over fifty audits published on the
Comptroller's website from January 1, 2014 to present the
audit of CRC appears to be the only one against a vendor of
the County." See id. Furthermore, Plaintiffs
assert that Defendant Antonacci attempted to lobby the
Onondaga County Legislature to revoke CRC's contract
because there was a competing bid that would have paid
Defendant County $8, 500 more. See Id. at
¶¶ 63. However, Plaintiffs contend that the
competing bid was from a vendor who had previously defaulted
on its responsibility to Defendant County; and, further, the
competing bid was unrealistic when considering the actual
revenue to be expected from managing the parking lots.
See id. at ¶¶ 61-64. Defendant
Antonacci's tactics, according to Plaintiffs, were meant
to humiliate Plaintiff Talbert by publishing press releases
degrading his company without acknowledging that the
competing offer was impracticable. See Id. at ¶
Plaintiffs allege that Defendant Antonacci sent an individual
from the County Comptroller's office to count the cars in
all three of the parking lots that Plaintiff Talbert managed.
See Id. at ¶ 66. However, this inspection was
unannounced, and the contract with Defendant County
unambiguously requires "reasonable notice" to audit
CRC's "books, records and accounts in connection
with said operations." See id. at ¶ 67.
According to Plaintiffs, "[t]his unannounced visit
exceeded Defendant Antonacci's authority and was
engineered to harass and intimidate another African-American
male business owner doing business with the County."
See id. at ¶ 68. Finally, Plaintiffs allege
that Defendant Antonacci's actions led Plaintiff Talbert
to refuse to bid on another parking lot project. See
id. at ¶ 70.
on the above-cited allegations, Plaintiffs bring two causes
of action. First, pursuant to 42 U.S.C. § 1983,
Plaintiffs allege that "Defendant Antonacci through his
actions and instructions directly caused and continues to
cause the violation of the Plaintiffs' Constitutional
rights granted under the 14th Amendment of the United States
Constitution and its guarantee of equal protection under the
laws for all citizens." See Dkt. No. 1 at
¶ 74. "These actions include, but are not limited
to, creating a hostile environment for minority owned
businesses in Onondaga County through the targeted and
improper use of audits; the withholding, delay, and
differential treatment of County payments to minority owned
businesses; and other disparate treatment towards minority
owned businesses." See Id. at ¶ 75.
"These actions were deliberately designed to
disadvantage, harass, and intimidate minority-owned
businesses and deter them from pursuing contracts with
Onondaga County and deny them equal protection of the
law." See id. at ¶ 76. Plaintiffs seek
damages as well as an injunction. See id. at
¶¶ 77, 78.
pursuant to 42 U.S.C. § 1983, Plaintiffs allege that
Defendant County "through the actions of Defendant
Antonacci caused and continues to cause the violation of the
Plaintiffs' Constitutional rights guaranteed under the
14th Amendment of the United States Constitution and its
guarantee of equal protection under the laws for all
citizens." See Id. at ¶ 80. Specifically,
"Defendant County of Onondaga through the actions of
Defendant Antonacci maintained a policy and practice of
discrimination against minority owned business[es] by and
pursuant to the acts of Defendant Antonacci, a policymaker of
the County." See Id. at ¶ 81. "These
actions include, but are not limited to, creating a hostile
environment for minority owned businesses in Onondaga County
through the targeted and improper use of audits; the
withholding, delay, and differential treatment of County
payments to minority owned businesses; and other disparate
treatment towards minority owned businesses." See
Id. at ¶ 82.
Standard of review
use a two-step inquiry when addressing a Rule 12(b)(6)
motion. First, "they isolate the moving party's
legal conclusions from its factual allegations."
Hyman v. Cornell Univ., 834 F.Supp.2d 77, 81
(N.D.N.Y. 2011). Second, courts must accept factual
allegations as true and "determine whether they
plausibly give rise to an entitlement to relief."
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A
pleading must contain more than a "blanket assertion[ ]
of entitlement to relief." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 n.3 (2007). Thus, to
withstand a motion to dismiss, a pleading must be
"plausible on its face" such that it contains
"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
when addressing a Rule 12(b)(6) motion, a court may
"consider documents attached to or incorporated by
reference in [a] complaint[.]" Cooper v.
Parsky, 140 F.3d 433, 440 (2d Cir.1998) (citation
omitted). Even where "'a plaintiff chooses not to
attach to the complaint or incorporate by reference a
[document] upon which it solely relies and which is integral
to the complaint, ' the court may . . . take the document
into consideration in deciding the defendant's motion to
dismiss, without converting the proceeding to one for ...