Libbey v. Vill. of Atl. Beach

Decision Date04 November 2013
Docket NumberNo. 13–CV–2717(JS)(ARL).,13–CV–2717(JS)(ARL).
Citation982 F.Supp.2d 185
CourtU.S. District Court — Eastern District of New York
PartiesAlberta LIBBEY; Victoria Libbey Simao; Richard Libbey; Pamela Makaea; M.A. Salazar, Inc; and Atlantic Beach Associates, Inc., Plaintiffs, v. VILLAGE OF ATLANTIC BEACH; Board of Trustees of the Village of Atlantic Beach; Stephen R. Mahler, individually and as Mayor of the Village of Atlantic Beach; Steven Cherson, individually and as Building Inspector and Superintendent of Public Works for the Village of Atlantic Beach; R & W/Engineers, P.C., and Michael L. Williams, Defendants.


Frank Scaturro, Esq., Fisher Broyles, LLP, New Hyde Park, NY, for Plaintiffs.

James R. Finn, Esq., Maurizio Savoiardo, Esq., Michael Anthony Miranda, Esq., Robert E.B. Hewitt, III, Esq., Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, NY, for Defendants, Village Defendants.

James C. Clerkin, Esq., Kral, Clerkin, Redmond, Ryan, Perry & Girvan, New York, NY, for Defendants Engineering Defendants.


SEYBERT, District Judge:

Plaintiffs Alberta Libbey, Victoria Libbey Simao, Richard Libbey, Pamela Makaea, M.A. Salazar, Inc., and Atlantic Beach Associates, Inc. (collectively Plaintiffs) commenced this action on May 6, 2013 against Defendants Village of Atlantic Beach (the Village); the Board of Trustees of the Village of Atlantic Beach; Stephen R. Mahler, individually and as Mayor of the Village of Atlantic Beach; Steven Cherson, individually and as Building Inspectorand Superintendent of Public Works for the Village of Atlantic Beach (collectively, the Village Defendants); R & W/Engineers P.C. (R & W); and Michael L. Williams (“Williams” and together with R & W, the “Engineering Defendants) alleging constitutional violations pursuant to 42 U.S.C. § 1983 (Section 1983) and the New York State Constitution as well as several state law claims. Simultaneous with filing the Complaint, Plaintiffs also sought a temporary restraining order (“TRO”) and preliminary injunction (“PI”) seeking to enjoin the Village Defendants from selling Plaintiffs' land and from further prosecuting Plaintiff Alberta Libbey under Atlantic Beach Village Code § 185–3.1. ( See Pls. Br. for TRO/PI, Docket Entry 4.) Plaintiffs subsequently filed a formal motion for a preliminary injunction. ( See Pls. PI Br., Docket Entry 30.) The Court referred both requests to Magistrate Judge Arlene R. Lindsay for a Report and Recommendation (“R & R”).

Currently, the following are pending before the Court: (1) Plaintiffs' original request for a PI, their formal motion for such, and Judge Lindsay's oral R & R; (2) the Village Defendants' motion to dismiss; and (3) the Engineering Defendants' motion to dismiss. For the following reasons, Judge Lindsay's oral R & R is ADOPTED and Plaintiffs' requests for a PI are DENIED, the Village Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART, and the Engineering Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART.

I. Factual Background

The Libbey family has a long history in the Village of Atlantic Beach. (Compl. ¶ 31.) Plaintiff Alberta Libbey is a real estate broker and lifelong resident of the Village who owns two real estate businesses—M.A. Salazar and Atlantic Beach Associates. (Compl. ¶¶ 2, 17.) Plaintiffs Victoria Libbey Simao and Richard Libbey are Alberta Libbey's children, both of whom are licensed real estate agents. (Compl. ¶¶ 3–4, 20–21.)

Since 1996, Richard Libbey and his wife, Plaintiff Pamela Makaea, have been outspoken political critics of Defendants Mahler and Cherson and their allies in Village government. (Compl. ¶ 38.) Likewise, Victoria Libbey Simao has been active in Village affairs and criticized Defendants. (Compl. ¶ 41–42.) According to Plaintiffs, Defendants have retaliated against them in various ways for their political speech. ( See, e.g., Compl. ¶¶ 40, 48, 52–53.) Specifically, Plaintiffs allege that the Village has enacted various codes and regulations pursuant to which Plaintiffs have been targeted. For example, on November 17, 2008, the Village enacted Village Beach Code § 250–80, which terminated the right to maintain rooftop signs by amortization on June 1, 2010. (Compl. ¶ 63.) Plaintiffs allege that between 2008 and 2010, the Libbey family received twenty-two tickets for violations of Village Beach Code § 250–80. (Compl. ¶ 83.) Similarly, they allege that on or about July 7, 2010, Cherson issued two summonses to M.A. Salazar and Alberta Libbey for maintaining a nuisance and displaying a prohibited rooftop sign in violation of Atlantic Beach Village Code § 185–2, which was adopted in 1999. (Compl. ¶¶ 135, 137.) On or about January 21, 2011, Cherson issued another summons to M.A. Salazar and Alberta Libbey for maintaining an unsafe structure (Compl. ¶ 143) and, thereafter issued five additional summonses over the course of a single month (Compl. ¶ 144).1

In particular, Plaintiffs allege that on November 14, 2011, the Village promulgated a new ordinance, Atlantic Beach Village Code § 185–3.1, targeting political signs (the Political Sign Ordinance). (Compl. ¶ 229.) After adopting the ordinance, the Village issued nine summonses between May 13, 2012 and August 31, 2012. (Compl. ¶ 233.) All of the summonses were issued against Alberta Libbey, the only person ever to be summonsed under the Political Sign Ordinance. (Compl. ¶ 239.) According to Plaintiffs, the Political Sign Ordinance “unconstitutionally singles out political signs” and “was adopted specifically to target the political speech of Richard Libbey ....” (Compl. ¶¶ 230–31.)

Plaintiffs further allege that, during the same general time period, Defendants targeted their property at 2035 Park Street in an attempt to force the Libbey Family to sell the land. (Compl. ¶ 87.) Originally, 2035 Park Street “was improved and contained a mixed use commercial and residential building” (the “Building”) (Compl. ¶ 23), which served as M.A. Salazar and Atlantic Beach Associates' main office and principal place of business as well as Richard Libbey's residence. (Compl. ¶¶ 24–26.) On or about September 12, 2008, the Village issued Alberta Libbey a summons for cracked stucco to the Building. (Compl. ¶ 89.) That summons resulted in a bench warrant when Alberta Libbey failed to appear in Village Court because she was in the hospital undergoing a kidney transplant. (Compl. ¶ 90.) Subsequently, on December 10, 2008, the Village issued Ms. Libbey another summons for cracked stucco to the Building. (Compl. ¶ 92.)

Although Cherson had indicated that cracked stucco could be resolved through a non-structural permit (Compl. ¶ 93), and the Libbey family obtained such a permit and began repairs (Compl. ¶¶ 100–02), Cherson issued a “Stop Work” order. (Compl. ¶ 104.) Cherson informed the Libbey family that, because the repairs they had undertaken included removal of cinder block, they would need to obtain a much more expensive structural permit. (Compl. ¶ 105.) The Libbeys applied for a structural permit, but the Village rejected their application and required them to bring the Building to code. (Compl. ¶¶ 109–11.)

On or about August 16, 2011, M.A. Salazar received a letter from the Village (the “Demolition Letter”) stating that M.A. Salazar must demolish the Building within twenty days, or the Village would do so. (Compl. ¶ 151.) The Demolition Letter was issued pursuant to Chapter 80 of the Atlantic Beach Village Code, which was enacted in March 2009, allegedly as a further act of retaliation against the Libbey family. (Compl. ¶¶ 153–55.)

Ultimately, Defendants demolished the Building on November 29 and 30, 2011 at a cost of $41,687.24. (Compl. ¶¶ 218, 222.) Defendants have demanded that Plaintiffs reimburse them the cost of the demolition or the property will be sold.

II. Procedural Background

Three relevant procedural events occurred prior to the instant litigation—the Village proceedings, the state court proceedings, and the bankruptcy proceedings.

A. Village Proceedings

In response to the Demolition Letter, M.A. Salazar requested a hearing before the Village Board of Trustees (Compl. ¶ 160), which ultimately took place on September 6, 2011 (Compl. ¶ 170). As part of that hearing, Defendant Williams testified that he conducted a visual inspection of the Building from the sidewalk at the request of Cherson and ultimately determined that the building was unsafe. ( See Engineering Defs. Br., Docket Entry 16–14, at 2; Clerkin Decl., Docket Entry 16–1, Ex. D.) Williams recommended either immediate demolition or a controlled demolition. (Clerkin Decl. Ex. D at 87.) “At the conclusion of the September 6th hearing, Mahler, supported by a unanimous vote of the Board of Trustees, condemned the Building and ordered it to be demolished by October 1, 2011.” (Compl. ¶ 200.)

B. State Court Proceedings

Thereafter, on September 29, 2011, M.A. Salazar filed a request for an Order to Show Cause in Nassau County Supreme Court pursuant to Article 78 seeking a TRO prohibiting the demolition of the Building. (Compl. ¶ 202.) Justice Roy S. Mahon held a hearing on October 11, 2011, which was continued on October 13, 2011. (Engineering Defs. Br. at 3; Miranda Decl., Docket Entry 20, Ex. H.) Justice Mahon heard evidence from both parties, including testimony from M.A. Salazar's expert engineer as well as from Williams. (Village Defs. Reply Br., Docket Entry 43, at 4; Miranda Decl. Ex. H.) Ultimately, Justice Mahon found that [t]estimony and evidence adduced at the hearing established that a structure located at 2035 Park Street, Atlantic Beach, New York, owned by the plaintiff has fallen into a state of disrepair.” (Miranda Decl. Ex. H at 150.) Accordingly, he denied the TRO.

On December 6, 2011, M.A. Salazar filed an Amended Article 78 Petition in New York State Supreme Court, Nassau County seeking, inter alia, to annul the Village's initial decision that a structural permit was required to repair the Building and...

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