Gizzo v. Ben-Habib

• Citation: 44 F.Supp.3d 374
• Decision Date: 05 September 2014
• Docket Number: Case No. 13–CV–2139 KMK.
• Parties: Salvatore GIZZO, Plaintiff, v. Soraya BEN–HABIB, Clinton I. Young, and the City of Mount Vernon, Defendants.
• Court: U.S. District Court — Southern District of New York

44 F.Supp.3d 374

Salvatore GIZZO, Plaintiff
v.
Soraya BEN–HABIB, Clinton I. Young, and the City of Mount Vernon, Defendants.

Case No. 13–CV–2139 KMK.

United States District Court, S.D. New York.

Signed Sept. 5, 2014.

44 F.Supp.3d 376

Jonathan D. Kraut, Esq., Friedman, Harfenist, Langer & Kraut, LLP, Purchase, NY, for Plaintiff.

Neil Stuart Torczyner, Esq., Friedman, Harfenist, Kraut & Perlstein, Lake Success, NY, for Plaintiff.

Hina Sherwani, Esq., City of Mount Vernon Corporation Counsel, Mount Vernon, NY, for Defendants.

OPINION AND ORDER

KENNETH M. KARAS, District Judge.

Plaintiff Salvatore Gizzo (“Plaintiff”) brings this Action against Defendants Soraya Ben–Habib (“Ms. Ben–Habib”), Clinton I. Young (“Mr. Young”), and the City of Mount Vernon (“the City”) (collectively, “Defendants”), alleging that Defendants deprived him of his constitutional rights to procedural and substantive due process under the Fourteenth Amendment and his contractual rights under a licensing agreement. Defendants move to dismiss Plaintiff's Complaint in its entirety. For the following reasons, Defendants' Motion is granted.

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I. BACKGROUND

A. Factual Background

As alleged in Plaintiff's Complaint, the facts underlying the instant Action are fairly straightforward. In 2008, Plaintiff was the owner of Samba Na Brasa, a Brazilian steakhouse located in the Fleetwood section of Mount Vernon (“Fleetwood”) at 42 Broad Street. (Compl. ¶ 11 (Dkt. No. 1).) In or around November 2008, Mr. Young, who was at the time the mayor of the City, visited Plaintiff at Samba Na Brasa, and informed him that the residents of Fleetwood were unhappy because the only local supermarket was closing down. (Id. ¶¶ 12–13.) Mr. Young then stated to Plaintiff, “Do me a favor. I need to give [the residents of Fleetwood] a supermarket-we'll give you whatever you need.” (Id. ¶ 14 (internal quotation marks omitted).)

After this conversation, Plaintiff and others acting on Plaintiff's behalf “began negotiating with [Mr. Young] and other City employees in an effort to transform the 42 Broad Street location into a supermarket,” during which negotiations Plaintiff “indicated to [Mr. Young] and his employees that it was vital to the success of the supermarket that the patrons of the potential supermarket have an adequate supply of safe and inviting parking spaces available.” (Id. ¶¶ 15–16.) Because Mr. Young agreed with Plaintiff, “the two sides began to discuss meaningful parking improvements which could be made by the City to further a potential supermarket.” (Id. ¶ 17.) Soon thereafter, Mr. Young and Plaintiff “came to an agreement that the best option for parking for the contemplated supermarket would be the Fleetwood Municipal Parking Garage.” (Id. ¶ 18.)

Following this agreement, in June 2009, Plaintiff, acting on behalf of Fleetwood Food Corporation (“FFC”), a New York corporation, and Mr. Young, acting on behalf of the City, entered into a Licensing Agreement, pursuant to which FFC was granted “the exclusive right, license and privilege to use forty-five (45) designated parking spaces on the ground floor of the Fleetwood Municipal Parking Garage and fifteen (15) merchant use only parking spaces, all for the use of the contemplated supermarket,” “[i]n exchange for [which] FFC became obligated pursuant to the License Agreement to pay [a monthly fee] with the right to prepay for any time period.” (Id. ¶¶ 20–21 (internal quotation marks omitted).) FFC was granted “the exclusive right, license, and privilege to use” the parking spaces until March 31, 2014, with “the option to renew ... upon ... [the] same terms and conditions for consecutive terms of five (5) years” through 2044, provided that Plaintiff was not in default. (Compl. Ex. A(2), at 2–3.) Additionally, the Licensing Agreement “provided that FFC was granted permission to install an electric parking arm and any other necessary equipment for the purpose of entering and exiting the area containing the ... [p]arking [s]paces,” and required the City, at its sole cost and expense, to “make numerous improvements, alterations, installation and/or repairs” to the Fleetwood Municipal Parking Garage by September 1, 2009. (Id. ¶¶ 24–25 (internal quotation marks omitted).) The Licensing Agreement also stated that it would “be effective only to the extent that [FFC] and/or its successors and/or assigns operates and/or maintains a grocery store/supermarket at 42 Broad Street.” (Id. ¶ 22 (internal quotation marks omitted).) By entering into the Licensing Agreement, the City “acknowledge[d] that [FFC] [was] relying on the ... representations [contained therein] for the purpose of constructing and operating a grocery store/supermarket ..., and that

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FFC] would not enter into such a business venture if unable to use the [p]arking [s]paces” described therein. (Id. ¶ 23 (first alteration in original) (internal quotation marks omitted).)

“Subsequent to the execution of the Licensing Agreement, [Plaintiff] closed Samba Na Brasa and began renovating 42 Broad Street in order to transform it into a supermarket,” “retain[ing] the services of Nima Badaly [ (“Mr. Badaly”) ] as architect for the renovations.” (Id. ¶¶ 26–27.) Mr. Badaly is the former husband of Ms. Ben–Habib, who was the City's First Deputy Building Commissioner, and who Plaintiff claims was also “the de facto Building Commissioner and ... the decision maker for [the City's] Building Department.” (Id. ¶¶ 8, 36.) According to Plaintiff, Mr. Badaly and Ms. Ben–Habib “have children together and thus maintain a close relationship.” (Id. ¶ 37.) Plaintiff also entered into negotiations with Key Food Cooperative, Inc. (“Key Food”) “to allow FFC to operate the contemplated supermarket as a Key Food.” (Id. ¶ 28.)

Plaintiff claims that “the City never completed its' [sic] responsibilities under the Licensing Agreement.” (Id. ¶ 30.) Specifically, “[a]lthough the Licensing Agreement required the allocation of forty-five spaces for supermarket parking, the City never designated the requisite number.” (Id. ¶ 31.) Additionally, “[a]lthough the City permitted the installation of a parking arm in the garage which was necessary to safeguard the parking spaces, the City refused to provide power for the parking arm, after the device was agreed to and then constructed by FCC at its sole expense.” (Id. ¶ 32.) Further, “[a]lthough the Licensing Agreement required the repair and maintenance of the elevator in the garage, the City never repaired the elevator to working condition.” (Id. ¶ 33.)

Notwithstanding these issues, FCC pressed onwards with the renovation, spending over $3 million in the process. (Id. ¶ 34.) In or around April 2010, FCC terminated the services of Mr. Badaly. (Id. ¶ 35.) Plaintiff claims that, following Mr. Badaly's termination, “the City's Building Department began to harass FFC by delaying the determination of permits and inspections on multiple occasions and requiring FFC to wade through numerous levels of red tape which had [previously] not existed.” (Id. ¶ 38.) The City Building Department even “invented problems” on the date that FFC was to open the Key Food “in order to delay the scheduled opening of the supermarket.” (Id. ¶ 39.) And, “[a]lthough the City Building Department was stonewalling progress on FFC's supermarket, it streamlined the application process for [a] competing supermarket” “which sought to open in close proximity.” (Id. ¶¶ 40–41.)

By the time FFC opened the supermarket in July 2010, “the City had still not completed the work required under the Licensing Agreement.” (Id. ¶¶ 42–43.) In fact, “[n]otwithstanding FFC's constant complaints to the City about the City's failure to abide by the Licensing Agreement, the work required [thereunder] was never completed.” (Id. ¶ 44.) The consequent “lack of adequate parking for the Key Food immediately began to impact on FFC's profits,” causing “patrons [to] stop[ ] shopping” there. (Id. ¶ 45.) Eventually, FFC filed for Chapter 7 Bankruptcy. (Id. ¶ 47.) After FFC's bankruptcy trustee assigned certain of FFC's claims against the City to Plaintiff, Plaintiff initiated this Action. (Id. ¶ 48.)

B. Procedural Background

Plaintiff filed his Complaint on April 1, 2013. (See Dkt. No. 1.) Plaintiff asserts five causes of action against Defendants therein. First, Plaintiff claims that, “[a]s a result of the actions and inactions of [Mr.

[44 F.Supp.3d 379

Young] and the City” in failing to “perform the actions which [the City] was obligated to take under the Licensing Agreement,” “[Plaintiff] and FFC were deprived of their right to procedural due process.” (Compl. ¶¶ 52, 56.) Second, Plaintiff claims that he and FFC were also deprived of their right to procedural due process “[a]s a result of [Ms. Ben–Habib's] campaign to obstruct the progress in opening the Key Food supermarket.” (Id. ¶ 64.) Third, Plaintiff claims that Ms. Ben–Habib's “campaign” also deprived Plaintiff of his right to substantive due process. (Id. ¶ 72.) In his fourth cause of action, which Plaintiff titles “Failure to Train/Supervise-Monell Claim,” Plaintiff claims that the deprivations of his and FFC's constitutional rights stemming from Ms. Ben–Habib's “campaign” were...