Macpherson v. Town of Southampton

• Decision Date: 07 September 2010
• Docket Number: No. 08 CV 4113 (DRH)(MLO),08 CV 4113 (DRH)(MLO)
• Citation: 738 F.Supp.2d 353
• Parties: Donald C. MacPHERSON, 1104 North Sea Co., Inc., and 1110 North Sea Co., Inc., Plaintiffs, v. TOWN OF SOUTHAMPTON, Southampton Town Board, Kaitlin Grady, Donald Kauth, Joseph Lombardo and Does 1-5, Defendants.
• Court: U.S. District Court — Eastern District of New York

738 F.Supp.2d 353

Donald C. MacPHERSON, 1104 North Sea Co., Inc., and 1110 North Sea Co., Inc., Plaintiffs,

v.TOWN OF SOUTHAMPTON, Southampton Town Board, Kaitlin Grady, Donald Kauth, Joseph Lombardo and Does 1-5, Defendants.

No. 08 CV 4113 (DRH)(MLO).

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

Sept. 7, 2010.

Patricia A. Weiss, Esq., by Patricia A. Weiss, Esq., Sag Harbor, NY, for Plaintiffs.

Nixon Peabody, LLP, by Michael Stewart Cohen, Esq., Christopher J. Porzio, Esq., Jericho, NY, for Defendants.

MEMORANDUM & ORDER

HURLEY, Senior District Judge.

Plaintiffs Donald MacPherson ("MacPherson"), 1110 North Sea Co., Inc. ("1110 North Sea"), and 1104 North Sea Co., Inc. ("1104 North Sea") (collectively, "Plaintiffs") filed the present action against Town of Southampton (the "Town"), Southampton Town Board (the "Town Board"), Kaitlin Grady ("Grady"), Donald Kauth ("Kauth"), and Joseph Lombardo("Lombardo") (collectively, "Defendants") challenging Defendants' conduct in connection with the enforcement of various ordinances concerning residential properties. The Complaint also alleges that Defendants retaliated against them because of MacPherson's exercise of his First Amendment rights. Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and (6). For the reasons set forth below, Defendants' motion to dismiss is granted in part and denied in part.

BACKGROUND

The following facts are taken from the Complaint and are presumed true for purposes of this motion.

Plaintiffs each own residential property in the Town, where MacPherson is a part-time resident. Four properties are referred to in the Complaint: 1104 North Sea Road, 1106 North Sea Road, 1110 North Sea Road, and 1130 North Sea Road (the "North Sea Road properties"). The 1104 North Sea Road and 1110 North Sea Road properties are owned and operated by the 1104 North Sea and 1110 North Sea corporate entities. (Compl. ¶¶ 7, 8.) MacPherson is "associated" with all four properties "either as an owner, former owner, mortgagor, principal of the corporate owner, and/or consultant to the legal owner." ( Id. ¶ 52.) Defendant Grady was one of the Town's zoning code enforcement officers and Defendant Kauth was one of the Town's senior code enforcement officers. Defendant Lombardo is one of the Town's attorneys.

I. The Initial Action

On August 22, 2007, MacPherson, along with two of his corporate entities that are not parties here, commenced a separate action before this Court asserting claims under 42 U.S.C. § 1983 ("Section 1983") against the Town, the Town Board, and several individual defendants that are not parties here (the "Initial Action").¹ The claims asserted in the Initial Action are premised upon the alleged unconstitutionality of the Town's seasonal rental permit law. On August 28, 2007, approximately one week after MacPherson commenced the Initial Action, the Town and Town Board "created a new Chapter 270 (Rental Properties) which was scheduled to become effective 30 days later and would be enforced beginning January 1, 2008." (Compl. ¶ 34.) On October 6, 2007, MacPherson filed an Amended Complaint in the Initial Action which challenged the constitutionality of this newly promulgated seasonal rental permit law.

II. The Alleged Retaliation

Plaintiffs allege that shortly after the Amended Complaint was filed in the Initial Action, Defendants began to engage in "a pattern of retaliation" against MacPherson. ( Id. ¶ 39.) According to Plaintiffs, Defendants Grady and Kauth learned of the Initial Action when their coworker Stephen A. Frano, who was named as an individual defendant in the Initial Action, was served with a summons and complaint. ( Id. ¶ 40-41). Thereafter, as early as December 2, 2007, Defendants Grady, Kauth, "and other enforcement officers employed by the Town ... began a series of repeated visits" to the North Sea Road properties and engaged in "a pattern of intimidation of tenant-occupants" in order to "obtain judicial access" to these properties. ( Id. ¶¶ 42, 46.) Plaintiffs allege that the Town Board learned of these investigations and was aware of MacPherson's associationwith the North Sea Road properties. ( See id. ¶ 52.)

In December 2007, after conducting searches of the North Sea Road properties, "GRADY and the TOWN learned that certain individuals were living in the finished basement areas" of these residences, despite the fact that the basement areas had not been approved for bedroom use. ( Id. ¶¶ 49, 50.) Although Plaintiffs took immediate steps to have those individuals vacate the North Sea Road properties ( id. ¶ 53), the Town and Town Board commenced civil actions against Plaintiffs on March 31, 2008 in New York Supreme Court (the "State Court Actions"). ( See id. ¶ 54.)

III. The State Court Actions

On March 31, 2008, the Town and Town Board (through Lombardo as a Town Attorney) "sought a temporary restraining order and preliminary injunction prohibiting the property owners and all others ... from all future use and occupancy of the North Sea Road residences until the state civil action was determined ...." ( Id. ¶ 55.) According to the Complaint, the Town, Town Board, and Lombardo initially attempted to obtain the temporary restraining orders without providing Plaintiffs with "any meaningful notice and an opportunity to be heard." ( Id. ¶¶ 57-58.) Ultimately, Plaintiffs allege that they were provided with "legally and constitutionally insufficient" notice—in the form of a telephone and facsimile message left after-hours at the office of one of Plaintiffs' attorneys—that "an Order To Show Cause would be presented for signature to a justice on the following day in Riverhead." ( Id. ¶ 59.)

Plaintiffs allege that because they were not provided with proper notice of the State Court Actions, they did not appear to oppose the relief sought by the Town and Town Board. ( Id. ¶ 63.) Accordingly, on April 1, 2008, Acting New York State Supreme Court Justice Gary J. Weber issued three Orders to Show Cause why preliminary injunctions should not be granted pursuant to CPLR Article 63, the Town Law, and the Town Code that prohibited Plaintiffs from occupying or otherwise using the properties located at 1104, 1110, and 1130 North Sea Road (the "Orders to Show Cause"). ( See Decl. of Michael S. Cohen in Supp. of Mot. to Dismiss the Compl., May 6, 2009 (the "Cohen Declaration"), Exs. C, E, G.) Justice Weber simultaneously issued temporary restraining orders (the "TROs") that prohibited Plaintiffs from using or occupying these three North Sea Road properties until Defendants' motions for preliminary injunctions were decided. ( Id.) Thereafter, on July 28, 2008, the TROs were extended by order of New York State Supreme Court Justice Arthur G. Pitts (the "Extension Orders"). ( Id., Exs, D, F, H; Compl. ¶ 64.) ²

Plaintiffs allege that Defendants "deliberately and intentionally provid[ed] false information to the state court" ³ and "utiliz[ed] and abus[ed] a New York State Rule of Civil Procedure" in order to obtain the TROs. ( See Compl. ¶ 65.) Accordingto Plaintiffs, Defendants' conduct constituted "the unlawful and unconstitutional seizure of Plaintiffs' property for a serious and significant amount of time, ... in a manner akin to a pre-judgment attachment of the real property without any adequate prior notice and opportunity to be heard." ( Id.) As a result, the North Sea Road properties could not be rented or occupied during the spring, summer, or fall of 2008 (even though such extended periods of non-occupancy violated the terms of the properties' mortgage contracts), and were subject to vandalism and mold growth in the basement. ( Id. ¶ 66.)

On or about September 10, 2008, the Town allegedly "sent a slew of fire marshals[,] Code enforcement officers, police officers and a Building Inspector onto the properties without probable cause, without a search warrant and without consent of the property owners ...." ( Id. ¶ 67.) Although Plaintiffs' counsel demanded that these Town employees vacate the premises, they refused because, according to Defendant Lombardo, "no one had a right to even be on the property at all." ( Id.)

IV. The Complaint

The Complaint asserts eight causes of action. Count I seeks damages for alleged violations of Plaintiffs' Fourth and Fourteenth Amendment rights stemming from: (1) the September 10, 2008 incident (Compl. ¶ 72), and (2) Plaintiffs' allegation that "Defendants effectively 'seized' all use and occupancy of the real properties and all use [of] an income-generating property, through what is tantamount to an unconstitutional ex parte writ of attachment being sought by a municipality and granted by a state court judgement, without notice and opportunity to be heard." ( Id. ¶ 73.)

Count II seeks damages for Defendants' alleged violation of Plaintiffs' First and Fourteenth Amendment rights by retaliating against MacPherson because he filed the Initial Action. ( Id. ¶ 77.)

Count III seeks damages and declaratory relief based upon Defendants' alleged violation of Plaintiffs' Fifth and Fourteenth Amendment rights. In particular, Plaintiffs allege that Defendants violated their rights "to a fair administrative process and a fair criminal process," as well as Plaintiffs' procedural and substantive due process rights. ( Id. ¶ 83). Plaintiffs further allege that they "have been treated differently from other persons who are similarly situated in numerous respects." ( Id. ¶ 84.) Finally, Plaintiffs allege that "the manner in which Defendants have brought [ ] the TRO[s] and utilized the ex parte pre-judgement attachment process to deprive a homeowner [of] all use and occupancy of one's property is unconstitutional and could [affect] others if it is allowed to continue." ( Id. ¶ 85.)

Count IV alleges that Defendants violated Plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights by intentionally and deliberately failing "to constitutionally fulfill investigative and administrative...