Manbeck v. Micka, 07-CV-2642 (CS)(GAY).

Citation640 F.Supp.2d 351
Decision Date30 July 2009
Docket NumberNo. 07-CV-2642 (CS)(GAY).,07-CV-2642 (CS)(GAY).
PartiesPeter C. MANBECK, Wendy Gennimi, Jay and Carol Durante, Lynn and David Guttermuth, Mary Clark, Daniel Pritchard, Geoffrey Shaw, David Oltman, individually and on behalf of all others similarly situated, Plaintiffs, v. Eugene MICKA, Catherine Micka, Andrew Weingarten, Kathy Weingarten, Paul Taft, Tracy Taft, Town of Lewisboro, James Nordgren, Town Supervisor and former member of the Town Planning Board, individually and in his official capacity, Allen Hershkowitz, Town Councilman, individually and in his official capacity, Jay Fain, Wetland Inspector, former Wetland Consultant, individually and in his official capacity, Jay Fain & Associates, LLC, Planning Board, Jacqueline Dzaluk, Chairwoman of the Planning Board, individually and in her official capacity, Joseph Decaminada, Member of the Planning Board, individually and in his official capacity, Freida Halpern, Member of the Planning Board, individually and in her official capacity, Maureen Maguire, Member of the Planning Board, individually and in her official capacity, P.J. Rossi, Member of the Planning Board, individually and in his official capacity, Vincent Vetrano, Former Chairman of the Planning Board, individually and in his official capacity, Margaret A. Clark, Planning Board Attorney individually and in her official capacity, Conservation Advisory Council, Mark Patek, Chairman of the Conservation Advisory Council, individually and in his official capacity, Building Department, William Cargain, Building Inspector, and former Wetland Inspector, individually and in his official capacity, peter barrett, Deputy Building Inspector, individually and in his official capacity, William Agresta, Town Planner, individually and in his official capacity, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Alexandra N. Manbeck, Esq., Law Offices of Alexandra N. Manbeck, Cross River, NY, for Plaintiffs Peter C. Manbeck, Jay Durante, Carol Durante, Lynn Guttermuth, David Guttermuth, Mary Clark, Daniel Pritchard, Geoffrey Shaw, and David Oltman.

Robert I. Goodman, Esq., Law Offices of Robert I. Goodman, Rye Brook, NY, for Plaintiff Wendy Gennimi.

Michael F. Sirignano, Esq., Law Offices of Michael F. Sirignano, Cross River, NY, for Defendants Eugene Micka and Catherine Micka.

Simone Petromelis, Esq., O'Connor & Petromelis LLP, Latham, NY, for Defendants Andrew Weingarten and Kathy Weingarten.

John Polinsky, Esq., Michael F. Grady, Esq., Rende, Ryan & Downes LLP, White Plains, NY, for Defendants Paul Taft and Tracy Taft.

James A. Randazzo, Esq., Gelardi & Randazzo LLP, Hawthorne, NY, for Defendants Town of Lewisboro, James Nordgren, Allen Hershkowitz, Jacqueline Dzaluk, Joseph DeCaminada, Freida Halpern, Maureen Maguire, P.J. Rossi, Vincent Vetrano, Margaret A. Clark, Conservation Advisory Council, Mark Patek, Building Department, William Cargain, Peter Barrett, and William Agresta.

Daniel E. O'Neill, Esq., Boeggeman, George, & Corde, P.C., White Plains, NY, for Defendants Jay Fain and Jay Fain & Associates LLC.

MEMORANDUM DECISION AND ORDER ADOPTING IN PART AND MODIFYING REPORT AND RECOMMENDATION

SEIBEL, District Judge.

Before the Court are Plaintiffs' Objections to the Report and Recommendation of Magistrate Judge George A. Yanthis dated March 5, 2009 (the "R & R"), recommending that this Court (1) grant Defendants' motions for summary judgment seeking the dismissal of all claims in this action, and (2) deny Plaintiffs' cross-motions for summary judgment. (Doc. 104.) For the following reasons, the Court adopts the R & R to the extent that it is consistent with this Order and dismisses in their entirety Plaintiffs' claims against all Defendants.

I. BACKGROUND

This case is the latest of three related actions in which Plaintiffs, property owners in the Town of Lewisboro, New York (the "Town"), allege constitutional violations arising out of the Town's regulation of wetland use and development pursuant to Chapter 217 (the "Wetland Laws") and Chapter 220 (the "Zoning Laws") of the Code of the Town of Lewisboro (the "Town Code").1 Plaintiffs name twenty-five Defendants in the present action, including the Town; Town Supervisor James Nordgren Town Councilman Allen Hershkowitz; the Town Planning Board; Planning Board Chairwoman Jacqueline Dzaluk; Planning Board members Joseph DeCaminada, Freida Halpern, Maureen Maguire, and P.J. Rossi; former Planning Board Chairman Vincent Vetrano; Planning Board Attorney Margaret A. Clark; the Town Conservation Advisory Council; Chairman of the Conservation Advisory Council Mark Patek; the Town Building Department; Building Inspector and former Wetland Inspector William Cargain; Deputy Building Inspector Peter Barrett; Town Planner William Agresta;2 Wetland Inspector and former Wetland Consultant Jay Fain; Jay Fain & Associates LLC;3 and Plaintiffs' private-party neighbors Eugene and Catherine Micka, Paul and Tracy Taft, and Kathy and Andrew Weingarten.4 Familiarity with these proceedings is presumed. The Court will discuss the procedural posture of this case only as it is relevant to the preclusive effect of the prior actions. Otherwise, I adopt the statement of Plaintiffs' factual allegations as thoroughly set forth in the R & R.

Plaintiff Peter C. Manbeck commenced the first action, captioned Manbeck, et al. v. Micka, et al., 05-CV-4576 ("Manbeck I"),5 on May 10, 2005. (Manbeck I, Doc. 1.) The Manbeck I plaintiffs filed a First Amended Complaint on June 14, 2005, adding Wendy Gennimi, Mark Mosello, Jay and Carol Durante, Efrain Cubides, Michael Honig, Lynn and David Guttermuth, Bruce Cascio, Siro Cortina, Luigi Imperia, Jerilynn Hagan, and Roger Moister, Jr. as representative plaintiffs, and naming the Town and certain Town officials and departments as defendants. (Manbeck I, Doc. 9.) The Manbeck I First Amended Complaint asserted twenty-three counts, including: a challenge to the Wetlands Laws as unconstitutionally vague; causes of action for violations of the Manbeck I plaintiffs' due process and equal protection rights premised on allegations of selective enforcement and deprivation of the right to counsel and to call witnesses at the Planning Board hearings relating to the Manbeck I plaintiffs' violations; and additional claims under the Hobbs Act, 18 U.S.C. § 1951, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, and New York State law, among others.

On September 26, 2005, the Manbeck I plaintiffs moved the Court for leave to further amend the First Amended Complaint to add Mary Clark, Daniel Pritchard, George Shaw, and Goran Djordjeveski as plaintiffs (Manbeck I, Docs. 37, 39), and filed a Second Amended Complaint to this end on September 30, 2005 (Manbeck I, Doc. 50). At proceedings held on September 30, 2005, Judge Brieant denied the Manbeck I plaintiffs' motion for leave to file a Second Amended Complaint, prompting the commencement of a related action on behalf of Clark, Pritchard, Shaw and Djordjeveski on October 11, 2005, captioned Clark, et al. v. Town of Lewisboro, et al., 05-CV-8644 (the "Clark Action") asserting virtually identical claims against substantially the same defendants as named in Manbeck I.

Consistent with his earlier oral ruling, Judge Brieant issued a Memorandum and Order dated November 10, 2005, providing, among other things, that the Manbeck I plaintiffs' Second Amended Complaint be stricken from the record on the grounds that the "Court previously denied Plaintiffs' motion to file a second amended complaint," and the Manbeck I plaintiffs had not received leave of Court to do so. (Manbeck I, Doc. 47.) Nevertheless, by Endorsement Order dated November 16, 2005, Judge Brieant ordered that the section of the November 10, 2005, Memorandum and Order regarding the Second Amended Complaint be deleted, and that the Manbeck I litigation proceed based on the Second Amended Complaint. (Manbeck I, Doc. 49.) Having thus rendered the Clark Action redundant, Judge Brieant, by Order dated January 17, 2006, directed that Manbeck I and the Clark Action be consolidated for all purposes pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, and that the Manbeck I docket number be used for "[a]ll papers filed and proceedings [t]hereafter conducted in [the consolidated] cases." (Manbeck I, Doc. 55.)

Although the Clark Action had been consolidated with Manbeck I, the Clark Action plaintiffs' moved for leave to amend their complaint in the Clark Action, and Magistrate Judge Yanthis granted the motion on April 19, 2006, by Stipulation and Order. (Manbeck I, Doc. 84.) Accordingly, on May 2, 2006, the named plaintiffs in the Clark Action filed their First Amended Complaint, adding Conservation Advisory Council Chairman Mark Patek and Building Inspector William Cargain as defendants. (Manbeck I, Doc. 85.) The only new claims contributed to the consolidated case by the First Amended Complaint filed in the Clark Action were Clark's First Amendment and equal protection claims alleging that the Planning Board refused to review her application for a wetland activity permit in retaliation for her joining as a named plaintiff in Manbeck I (Clark Action, Doc. 14., Count 13), and claims that the Town Defendants and Fain Defendants conspired to violate the Clark Action plaintiffs' rights to freedom from unreasonable searches (id., Count 25).

During the course of discovery in the consolidated action, Plaintiffs claim to have discovered evidence purportedly linking the Private Defendants to a conspiracy with the Town Defendants and the Fain Defendants to violate Plaintiffs' constitutional rights, prompting the Manbeck I plaintiffs to move for leave to file a further amended complaint adding the Private Defendants. (Manbeck I, Doc. 117.) Judge Brieant denied the motion to further amend during proceedings...

To continue reading

Request your trial
54 cases
  • Savarese v. City of N.Y.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 2, 2021
    ...Healey Car & Truck Leasing, Inc. , 189 F.3d 268, 272 (2d Cir. 1999) ); see also Lienau , 2013 WL 6697834, at *5 ; Manbeck v. Micka , 640 F. Supp. 2d 351, 379 (S.D.N.Y. 2009). "The Supreme Court has also explained joint action through the concept of a ‘meeting of the minds’ between law enfor......
  • Vito Savino & Savino, Inc. v. Town of Se. & Charles Tessmer
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 21, 2013
    ...and “class of one”); Christian v. Town of Riga, 649 F.Supp.2d 84, 94 (W.D.N.Y.2009) (selective enforcement); Manbeck v. Micka, 640 F.Supp.2d 351, 357 (S.D.N.Y.2009) (selective enforcement); Puckett v. City of Glen Cove, 631 F.Supp.2d 226, 233 (E.D.N.Y.2009) (selective enforcement); Tshaka v......
  • Dellutri v. Vill. of Elmsford
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 28, 2012
    ...and a one-day trial—is not a sufficient deprivation of liberty to rise to the level of a constitutional injury”); Manbeck v. Micka, 640 F.Supp.2d 351, 370 (S.D.N.Y.2009) (finding that a seizure had not occurred where plaintiff had not been detained at any point after she had been “issued ap......
  • Anilao v. Spota, 10-CV-00032 (JFB) (AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 28, 2018
    ...to respond to a private party's legitimate request for assistance, the private party is not jointly engaged ...."); Manbeck v. Micka , 640 F.Supp.2d 351 (S.D.N.Y. 2009) (recognizing an exception to the general rule concerning providing information to police where private actor provides fals......
  • Request a trial to view additional results
1 books & journal articles
  • Enforcement
    • United States
    • Wetlands deskbook. 4th edition -
    • April 11, 2015
    ...the matter was referred to EPA. 218 Mr. Bedford thereafter continued to ill wetlands onsite. 219 201. Id . 202. Manbeck v. Micka, 640 F. Supp. 2d 351, 360 (S.D.N.Y. 2009). Also dismissed below was a claim of conspiracy to violate a federal right under 42 U.S.C. §1983, Id . at 378–82, and ra......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT