Augusto Fernandes, Maria Fernandes, Acf Family Holding Corp v. Moran

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Docket Number2:17-cv-03430 (ADS)(SIL)
Decision Date07 May 2018


The Coalition of Landlords, Homeowners & Merchants, Inc.

Counsel for the Plaintiffs

28 East Main Street

Babylon, NY 11702

By: Michael Cullen, Esq., Of Counsel

Morris, Duffy, Alonso & Faley

Counsel for the Defendants

2 Rector Street

New York, NY 10006

By: Kenneth E. Pitcoff, Esq., Of Counsel

SPATT, District Judge:

On June 7, 2017, Augusto Fernandes, Maria Fernandes (together, the "Fernandes's"), ACF Family Holding Corp ("ACF"), Eteca Holding Inc. ("Eteca") and JCA Venture Holding Corp ("JCA") (together, the "Corporate Plaintiffs") (all together, the "Plaintiffs"), commenced this action in this Court by notice of removal against two employees of the Town of Brookhaven, David Moran ("Moran"), and Frank Rignola ("Rignola") (together, the "Defendants") in their individual capacity. The Plaintiffs alleges causes of action under 42 U.S.C. §§ 1983, 1985, as well as state-law claims of breach of contract, tortious interference with contract, fraud in the inducement, abuse of process, prima facie tort, breach of the implied covenant of good faith, and violations of Judiciary Law § 487.

Presently before the Court is the Defendants' motion to dismiss, pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P." or "Rule") 12(b)(6), seeking to dismiss the complaint for failure to state a claim upon which relief may be granted.

For the following reasons, the Defendants' motion to dismiss is granted in its entirety.


Unless otherwise noted, the following facts are drawn from the Plaintiffs' relatively short, bare-bones complaint, and for the purposes of the instant motion, they are construed in favor of the Plaintiff.

At all times relevant to this case, Rignola served as a Town Inspector of the Town of Brookhaven and Moran was a Assistant Town Attorney of the Town of Brookhaven.

The Corporate Plaintiffs owned the three properties at issue in this case: 73 Jamaica Avenue, Holtsville, NY, 43 Pinedale Avenue, Farmingville, NY and 66 Abner Drive, Farmingville, NY (the "Properties").

Prior to March of 2016, Inspector Rignola issued a series of Town Code violations as to the Properties. The Complaint does not specify any details as to the identity or nature of the alleged violations. At some further point, also prior to March of 2016, the Town of Brookhaven filed charges against the Corporate Plaintiffs based on the above-mentioned Town Code violations in the Suffolk County Sixth District Court. A judgment of $53,000 in fines was issued against theCorporate Plaintiffs. However, the Town of Brookhaven and the Corporate Plaintiffs entered into a court ordered agreement to sign satisfactions of judgment for the balance of the $53,000 in fines in return for a $6,000 payment with proof of receipt from the Corporate Plaintiffs. The Town of Brookhaven was represented in this negotiation by Moran in his capacity as Assistant Town Attorney.

The Plaintiffs allege that the Corporate Plaintiffs paid the $6,000 fine and signed a contract with a prospective buyer for the property located at 43 Pinedale Avenue, Farmingville, NY. With a judgment lien remaining against the Properties, the Corporate Plaintiffs could not close on the sale.

In March 2016, Larry Davis, an attorney for the Corporate Plaintiffs presented a receipt to the Town of Brookhaven for the payment of the $6,000. According to the complaint, Davis met with Moran and Rignola. The Plaintiffs allege that Moran refused to sign satisfactions of judgment on the Town of Brookhaven's behalf and that Rignola did not advise the town that the fines had been paid and that a satisfaction of judgment should be signed.

The satisfactions of judgment were signed on December 20, 2016; Assistant Town Attorney Deirdre Cicciaro signed it on the Town of Brookhaven's behalf. As a result, the Corporate Plaintiffs were unable to sell the 43 Pinedale Avenue property, or any of the Properties, for a period of ten months.


On or about January 6, 2017, the Plaintiffs filed the above-mentioned complaint in the Supreme Court of the State of New York, Suffolk County. The Defendants subsequently filed a notice of removal on June 7, 2017 removing the instant case to this Court. In response to a motion to compel, the Plaintiffs filed their complaint on October 6, 2017.

On November 17, 2017, the Defendants moved under Rule 12(b)(6) to dismiss the complaint, contending that the Plaintiffs' allegations, even if taken as true, fail to plausibly state claims upon which relief can be granted. The motion was fully briefed as of January 23, 2018.


In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the Plaintiffs. See, e.g., Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016); Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013); Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bold Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995); Reed v. Garden City Union Free Sch. Dist., 987 F. Supp. 2d 260, 263 (E.D.N.Y. 2013).

Under the Twombly standard, the Court may only dismiss a complaint if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). The Second Circuit has expounded that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles:

First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss and [d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009)).

A complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to survive a motion to dismiss. FED. R. CIV. P. 8(a)(2). Under Rule 8, a complaint is not required to allege "detailed factual allegations." Kendall v. Caliber Home Loans, Inc., 198 F. Supp. 3d 168, 170 (E.D.N.Y. 2016) (quoting Twombly, 550 U.S. at 555). "In ruling on a motion pursuant to FED. R. CIV. P. 12(b)(6), the duty of a court 'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010) (quoting Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)). The Court "[is] not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.


The Defendants attach a copy of selected provisions of the Town of Brookhaven Town Code. See Declaration of Kenneth E. Pitcoff, Docket Entry ("DE") 12-2. As a preliminary matter, the Court must first address whether these materials may be properly considered by the Court for the purposes of adjudicating this motion.

"[F]ederal courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings offered in conjunction with a Rule 12(b)(6) motion." Giugliano v. F32 Capital Partners, LLC, No. 14-cv-7240, 2015 WL 5124796 (E.D.N.Y. Sept. 1, 2015) (Spatt, J.) (internal citation and quotation marks omitted); accord Halebian v. Berv, 644 F.3d 122, 131 n.7 (2d Cir. 2011) (noting the Second Circuit has recognized "exceptions to Rule 12(b)(6)'s general prohibition against considering materials outside the four corners of the complaint"). In adjudicating this motion, the Court is permitted to consider:

(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents "integral" to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or informationcontained in [the] defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

Envtl. Servs. v. Recycle Green Servs., 7 F. Supp. 3d 260, 270 (E.D.N.Y. 2014) (Spatt, J.) (quoting In re Merrill Lynch & Co., 273 F. Supp. 2d 351, 356-57 (S.D.N.Y. 2003), aff'd in part and vacated in part on other grounds sub nom. Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir. 2005), vacated on other grounds, 547 U.S. 71, 126 S. Ct. 1503, 164 L. Ed. 2d 179 (2006)); accord Healthnow New York, Inc. v. Catholic Health Sys., Inc., No. 14-cv-986S, 2015 WL 5673123 (W.D.N.Y. Sept. 25, 2015); Oberstein v. SunPower Corp., No. 07-cv-1155, 2010 WL 1705868, at *3 (E.D.N.Y. April 28, 2010).

Pursuant to FED R. EVID. 201(b)(2), "the court may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." The Town...

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