746 F.3d 538 (2nd Cir. 2014), 12-4959-cv, Royal Crown Day Care LLC v. Department of Health & Mental Hygiene of City of New York

Docket Nº:12-4959-cv
Citation:746 F.3d 538
Opinion Judge:POOLER, Circuit Judge :
Party Name:ROYAL CROWN DAY CARE LLC, Plaintiff-Appellee, v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE OF THE CITY OF NEW YORK, FRANK CRESCIULLO, Individually and as Assistant Commissioner of the Department of Health and Mental Hygiene of the City of New York, JAMES MORRISS, Individually and as Director of Field Operations and Regulatory Enforcement for the Bure
Attorney:SALVATORE JOHN BATE, Staten Island, N.Y., for Plaintiff-Appellee. VICTORIA SCALZO, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, Kristin M. Helmers, Louise A. Moed, Diana Murray, on the brief), New York City Law Department, New York, N.Y., for Def...
Judge Panel:Before: POOLER, LYNCH, and DRONEY, Circuit Judges.
Case Date:March 19, 2014
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 538

746 F.3d 538 (2nd Cir. 2014)

ROYAL CROWN DAY CARE LLC, Plaintiff-Appellee,

v.

DEPARTMENT OF HEALTH AND MENTAL HYGIENE OF THE CITY OF NEW YORK, FRANK CRESCIULLO, Individually and as Assistant Commissioner of the Department of Health and Mental Hygiene of the City of New York, JAMES MORRISS, Individually and as Director of Field Operations and Regulatory Enforcement for the Bureau of Child Care, AURORA VILLAREAL, Borough Manager, Individually and in Her Official Capacity, Defendants-Appellants. [*]

No. 12-4959-cv

United States Court of Appeals, Second Circuit

March 19, 2014

Argued October 3, 2013

Page 539

Appeal from the July 20, 2012 Memorandum and Order of the United States District Court for the Eastern District of New York (Margo K. Brodie, J.), denying the individually named Defendants-Appellants' motion for summary judgment on qualified immunity grounds and the November 20, 2012 Memorandum and Order denying Defendant-Appellants' motion for reconsideration. The district court did not err in denying the individually named Defendants-Appellants' motion for summary judgment on qualified immunity grounds and their subsequent motion for reconsideration. Accordingly, we AFFIRM the orders of the district court.

AFFIRMED.

SALVATORE JOHN BATE, Staten Island, N.Y., for Plaintiff-Appellee.

VICTORIA SCALZO, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, Kristin M. Helmers, Louise A. Moed, Diana Murray, on the brief), New York City Law Department, New York, N.Y., for Defendants-Appellants.

Before: POOLER, LYNCH, and DRONEY, Circuit Judges.

OPINION

Page 540

POOLER, Circuit Judge :

Defendants-Appellants Department of Health and Mental Hygiene of the City of New York (" DOHMH" ), Frank Cresciullo, James Morriss, and Aurora Villareal (collectively, " defendants" ) appeal from the July 20, 2012 Memorandum and Order of the United States District Court for the Eastern District of New York (Margo K. Brodie, J .), denying the individually named defendants' motion for summary judgment on qualified immunity grounds. Defendants also appeal from the November 20, 2012 Memorandum and Order of the district court denying their motion for reconsideration. We conclude that the individually

Page 541

named defendants have not established that they are entitled to qualified immunity as a matter of law and, therefore, the district court did not err in denying their motion for summary judgment and motion for reconsideration. Accordingly, the orders of the district court are AFFIRMED.

BACKGROUND

Plaintiffs below, Royal Crown Day Care LLC (" Royal Crown" ), Boris Rey, Irina Gafina, and Irina Pritsker, brought this case under 42 U.S.C. § 1983. They alleged, among other things, that defendants violated their First Amendment and substantive due process rights by closing down Royal Crown's day care facility in retaliation for a letter of complaint that Royal Crown sent to a New York State senator.

We set forth only a limited set of facts relevant to this interlocutory appeal, which are presented in the light most favorable to Royal Crown, the party opposing summary judgment. See Tierney v. Davidson, 133 F.3d 189, 192 (2d Cir. 1998). Royal Crown is a day care center that was formed under the laws of New York in 2006. It was issued a permit by DOHMH on August 20, 2009, to perform child care services. In July of 2009, a rival day care owner and operator named Liudmila Umarov told Royal Crown that she had connections at DOHMH and that if Royal Crown did not pay her money she would have it " shut down." Joint App'x at 416. Boris Rey, who was an owner/manager at Royal Crown and originally a plaintiff in this case, informed defendant Aurora Villareal, a manager at DOHMH, about Umarov's threat. Villareal was subsequently indicted for conspiracy to commit mail fraud and honest services fraud, and pleaded guilty to that charge. The factual basis for Villareal's plea was that she had accepted payments from Umarov in exchange for taking official actions to benefit day care centers that were affiliated with Umarov.

Royal Crown sent an undated letter to State Senator Martin Golden seeking his help on various issues, alleging: (1) that rival day care centers were trying to harm Royal Crown's business; (2) that the Health Department was harassing Royal Crown and threatening to shut it down; and (3) that there was corruption in the Health Department. Senator Golden's office forwarded Royal Crown's letter to DOHMH on June 7, 2010. On June 10, 2010, defendant James Morriss, a director at DOHMH, wrote an internal memorandum instructing four DOHMH employees to inspect Royal Crown and write reports with the objective that their findings would be used in DOHMH's consideration of whether to revoke Royal Crown's licenses and permits. On June 11 and 14, 2010, DOHMH conducted inspections of Royal Crown. On June 15, 2010, defendant Frank Cresciullo, an assistant commissioner at DOHMH, notified Royal Crown that it was required to cease operations based on violations of the New York City Health Code. See New York City, N.Y., Rules, tit. 24 (the " Health Code" ).

In the district court, defendants moved for summary judgment on all of plaintiffs' claims, and plaintiffs cross-moved for summary judgment on their procedural due process claim. In an oral decision, the district court: (1) granted defendants' motion for summary judgment on plaintiffs' procedural due process claim, unconstitutional taking claim, state law claims, and all the claims against the Board of Health of the City of New York; (2) denied defendants' motion for summary judgment on plaintiffs' First Amendment retaliation claim and on qualified immunity grounds; (3) denied plaintiffs' motion for summary

Page 542

judgment on their procedural due process claim; and (4) reserved decision on (a) defendants' motion for summary judgment on plaintiffs' substantive due process claim and (b) whether the individual plaintiffs had standing. See Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene of the City of N.Y., No. 10-CV-5442 (MKB), 2012 WL 2992124, at *1 & n.1 (E.D.N.Y. July 20, 2012) (" Royal Crown I " ). In a written decision, the district court denied defendants' motion for summary judgment on plaintiffs' substantive due process claim, and concluded that the individual plaintiffs did not have standing. See 2012 U.S. Dist. [WL] at *4-5. Accordingly, the only plaintiff before us is Royal Crown.

Defendants moved for reconsideration of the portions of the aforementioned decisions that were adverse to them, and the district court denied that motion. See Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene of the City of N.Y., No. 10-CV-5442 (MKB), 2012 WL 5873331, at *3 (E.D.N.Y. Nov. 20, 2012).

The individually named defendants--Cresciullo, Morriss, and Villareal--appeal from the district court's denial of their motion for summary judgment on qualified immunity grounds and from the denial of their motion for reconsideration. DOHMH requests that our Court dismiss the claims against it if we conclude that the individual defendants are entitled to qualified immunity.

DISCUSSION

I. Appellate Jurisdiction and Standard of Review

We first must address our jurisdiction to hear this interlocutory appeal of the district court's denial of Cresciullo, Morriss, and Villareal's motion for summary judgment on qualified immunity grounds.

" Although the denial of a motion for summary judgment is generally not appealable, an exception applies where, as here, the challenged denial is based on the rejection of qualified immunity." Distiso v. Cook, 691 F.3d 226, 239 (2d Cir. 2012). However, " [s]uch a denial is appealable only to the extent that resolution of the qualified immunity defense turns on issues of law." Id. Accordingly, a defendant who raises a qualified immunity defense " may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine' issue of fact for trial." Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); accord Distiso, 691 F.3d at 239. That is to say, " 'determinations of evidentiary sufficiency at summary judgment are not immediately appealable . . . if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred.'" Salim v. Proulx, 93 F.3d 86,...

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