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LaForgia v. Vergano

United States District Court, S.D. New York

July 14, 2017


          Robert W. Folchetti, Esq. Klein & Folchetti, P.C. Brewster, NY Counsel for Plaintiffs.

          John J. Walsh, II, Esq. Paul E. Svensson, Esq. Hodges, Walsh & Slater, LLP White Plains, NY Counsel for Defendants.

          OPINION & ORDER

          KENNETH M. KARAS, District Judge.

         Plaintiffs Frank J. LaForgia and Lucio LaForgia (collectively, “Plaintiffs”) brought this Action against Defendants Edward Vergano, P.E., Ken Hoch, Linda Puglisi, Richard H. Becker, Francis X. Farrell, Ann Lindau-Martin, John E. Sloan (collectively, “Individual Defendants”), and the Town of Cortlandt (with Individual Defendants, “Defendants”), pursuant to 42 U.S.C. § 1983 alleging that Defendants violated their rights by taking personal and real property for public use without just compensation. (See Compl. (Dkt. No. 1).) Before the Court is Defendants' Motion To Dismiss. (See Dkt. No. 23.) For the reasons to follow, the Motion is granted.

         I. Background

         A. Factual Background

         The following facts are taken from Plaintiffs' Complaint and are assumed true for the purpose of resolving the Motion.

         At all relevant times, Plaintiffs resided in the Town of Cortlandt, in Westchester County, New York. (See Compl. ¶¶ 6-7.) Although Plaintiffs give background information on all Individual Defendants, (see Id. ¶¶ 9-23), for the reasons discussed below, only Ken Hoch's background is relevant to this Motion. At all relevant times, Hoch was (and still is) the Assistant to the Director of the Town of Cortlandt Department of Technical Services, Code Enforcement Division, and also the Code Enforcement Officer. (See Id. ¶ 12.) Hoch was and is an officer, employee, servant, and/or agent of the Town of Cortlandt. (See id.)

         During the relevant time period, Plaintiffs were the owners of personal property located at 7 Hardy Street, Lots 42-45, Verplanck, within the Town of Cortlandt. (See Id. ¶¶ 24-25.) Plaintiffs also each had an interest in the real property located there (the “Property”). (See id.) Starting on or about November 2, 2012 and continuing through and until November 9, 2012, Individual Defendants “each took part in a decision” to condemn the Property. (Id. ¶¶ 26-27.) On November 9, Individual Defendants did, in fact, condemn the Property and Plaintiffs' personal property situated there and evicted Plaintiffs from the Property. (See Id. ¶ 28.) As a result of the eviction, the Property was taken from Plaintiffs for public use by Individual Defendants, acting in favor of the Town of Cortlandt. (See Id. ¶¶ 29-30.) The Town of Cortlandt has since continued to occupy and use the Property. (See Id. ¶ 31.) At no point was compensation paid to Plaintiffs for the taking of their property for public use. (See Id. ¶¶ 32-33.) Plaintiffs allege that there were no exigent circumstances that would have warranted the actions of Defendants. (See Id. ¶ 34.)

         B. Procedural History

         Plaintiffs filed their Complaint on November 2, 2015, bringing claims under § 1983 against both Individual Defendants and the Town of Cortlandt, alleging that the taking of their property without just compensation was in violation of their Fifth Amendment right to be paid just compensation for their property and their Fifth and Fourteenth Amendment rights to due process. (See Id. ¶¶ 42-43, 58-59.) On March 8, 2016, Defendants filed a letter requesting leave to file a Motion To Dismiss, (see Dkt. No. 7), and after Plaintiffs failed to respond, the Court entered a briefing schedule on the motion, (see Dkt. No. 9). Before briefing on the motion commenced, however, Defendants filed a notice of death pursuant to Federal Rule of Civil Procedure 25(a)(1), alerting the Court that Plaintiff Lucio LaForgia had passed away. (See Dkt. No. 10.) Plaintiffs thereafter submitted a letter asking for leave to file a motion to substitute a proper party in place of Lucio, and leave was granted. (See Dkt. No. 12.) Plaintiffs thereafter filed the motion, (see Dkt. No. 14), which Defendants opposed, (see Dkt. No. 15).

         On July 21, 2016, the Court denied Plaintiffs' motion to substitute. (See Dkt. No. 16.) The Court reasoned that Plaintiffs had not provided legal authority for the proposition that Lucio's claim survived his passing, and also pointed out that Plaintiffs had not offered any evidence that Frank LaForgia-the party that Plaintiffs proposed would take Lucio's place-was a “proper party, ” as he was neither the successor of the deceased nor, at the time, the representative of the estate. (See id.) The motion was therefore denied without prejudice, but Plaintiffs were told they could renew their request. (See id.) As of the date of this Opinion & Order, Plaintiffs have not filed a renewed motion to substitute.

         On August 3, 2016, Defendants filed a new letter motion requesting leave to file a Motion To Dismiss. (See Dkt. No. 17.) Plaintiffs responded on August 24, 2016, opposing the application. (See Dkt. No. 19.) At a conference held on October 19, 2016, (see Dkt. (minute entry for Oct. 19, 2016)), the Court entered a briefing schedule for the Motion, (see Order (Dkt. No. 22)). On November 3, 2016, Defendants filed their Motion and supporting papers. (See Dkt. Nos. 23-27.) On January 9, 2017, Plaintiffs filed their opposition, (see Dkt. Nos. 29-32), and on January 12, 2017, Defendants filed their reply, (see Dkt. No. 33).

         II. Discussion

         A. Standard of Review

         When ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The Court, however, is not required to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678 (internal quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Specifically, the plaintiff must allege facts sufficient to show “more than a sheer possibility that a defendant has acted unlawfully, ” id., and if the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed, ” Twombly, 550 U.S. at 570.

         On a Rule 12(b)(6) motion to dismiss, the question “is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Sikhs for Justice v. Nath, 893 F.Supp.2d 598, 615 (S.D.N.Y. 2012). Accordingly, the “purpose of Federal Rule of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal quotation marks omitted). To decide the motion, the Court “may consider facts 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).

         B. Analysis

         1. Materials Considered

         Before discussing the merits of the Motion, the Court must define the scope of the documents that will be considered. Defendants have appended a number of external documents to their Motion, including several affidavits, the deed to the Property and lease agreement, some notices and letters, and pictures of the Property. (See Decl. (Dkt. No. 24).) In their memorandum of law, Defendants make the following argument regarding the submission of these documents:

When determining the sufficiency of a claim under Rule 12(b)(6), the Court is allowed to consider documents outside the pleading if the documents are integral to the pleading or subject to judicial notice. Global Network Commc'ns, ...

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