United States District Court, S.D. New York
FRANK J. LaFORGIA, LUCIO LaFORGIA, Plaintiffs,
EDWARD VERGANO, P.E., KEN HOCH, LINDA PUGLISI, RICHARD H. BECKER, FRANCIS X. FARRELL, ANN LINDAU-MARTIN, JOHN E. SLOAN, THE TOWN OF CORTLANDT, Defendants.
W. Folchetti, Esq. Klein & Folchetti, P.C. Brewster, NY
Counsel for Plaintiffs.
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.
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.
following facts are taken from Plaintiffs' Complaint and
are assumed true for the purpose of resolving the Motion.
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.)
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.)
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).
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.
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).
Standard of Review
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.
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).
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,