Norton v. Town of Brookhaven

• Citation: 33 F.Supp.3d 215
• Decision Date: 30 July 2014
• Docket Number: No. 13–CV–3520 ADSGRB.,13–CV–3520 ADSGRB.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Parties: Jerome NORTON, Plaintiff, v. TOWN OF BROOKHAVEN, County of Suffolk, Robert Quinlan, David J. Moran, Jennifer Lutzer, Justin Folber, William Powell, and Valerie Biscardi, all individually and in their official capacity, Defendants.

33 F.Supp.3d 215

Jerome NORTON, Plaintiff

v.TOWN OF BROOKHAVEN, County of Suffolk, Robert Quinlan, David J. Moran, Jennifer Lutzer, Justin Folber, William Powell, and Valerie Biscardi, all individually and in their official capacity, Defendants.

No. 13–CV–3520 ADSGRB.

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

Signed July 30, 2014.

Leeds Brown Law, P.C., by: Bryan L. Arbeit, Esq., Rick Ostrove, Esq., Of Counsel, Carle Place, NY, for the Plaintiff.

Devitt Spellman Barrett LLP, by: Jeltje deJong, Esq., Joshua S. Shteierman, Esq., Of Counsel, for Defendants Town of Brookhaven, Robert Quinlan, David J. Moran, Jennifer Lutzer, Justin Folber, William Powell, and Valerie Biscardi.

The Suffolk County Attorney's Office, by: Brian C. Mitchell, Assistant County Attorney, Of Counsel, Hauppauge, NY, for the Defendant County of Suffolk.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On June 20, 2013, the Plaintiff Jerome Norton (the “Plaintiff”) commenced this action against the Defendants the Town of Brookhaven (the “Town” or “Brookhaven”), Robert Quinlan (“Quinlan”), David J. Moran (“Moran”), Jennifer Lutzer (“Lutzer”), Daniel Belano (“Belano”), Jason Folber (“Folber”), William Powell (“Powell”), Valerie Biscardi (“Biscardi,” and collectively the “Brookhaven Defendants”) and the County of Suffolk (the “County”) pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2201, the United States Constitution, the New York State Constitution, New York State statutory law, and the common law.

In the Original Complaint, the Plaintiff brought thirteen causes of action. Thereafter, on October 9, 2013, the Plaintiff filed an Amended Complaint, and on January 14, 2014, the Plaintiff filed a Second Amended Complaint.

In the Second Amended Complaint, the Plaintiff omitted Belano as a defendant and brought the following fourteen causes of action: (1) a First Amendment intimate association claim under § 1983 ; (2) a retaliation claim for a First Amendment speech/right to petition claim under § 1983 ; (3) a malicious prosecution claim under New York State Law; (4) a respondeat superior liability claim for the malicious prosecution claim under New York State Law; (5) a substantive due process claim under § 1983 ; (6) an equal protection claim under § 1983 ; (7) a procedural due process claim under § 1983 ; (8) a Fourth Amendment claim under § 1983 ; (9) a Civil Rights claim under the New York Civil Rights Law § 8 ; (10) a claim against the Town under Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 694–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) for violating the Plaintiff's Fourth Amendment rights under § 1983 ; (11) a Monell liability claim for violating the Plaintiff's First Amendment rights, and also based on substantive due process, equal protection, and procedural due process; (12) a claim for declaratory judgment and injunctive relief against the Town; (13) a claim for declaratory judgment and injunctive relief against the County; and (14) a claim for attorney's fees under 42 U.S.C. § 1988. The only claim against the County is the claim for declaratory relief.

Presently before the Court are the respective motions by the Brookhaven Defendants and the County to dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Court grants in part and denies in part the motion to dismiss by the Brookhaven Defendants and grants the motion to dismiss by the County.

I. BACKGROUND

A. Factual History

Unless otherwise stated, the following facts are drawn from the Second Amended Complaint and are construed in a light most favorable to the non-moving party, the Plaintiff.

The Plaintiff is a 50% owner of residential real property located at 66 Norfleet Lane, Coram, New York (the “Norfleet Property”). The Norfleet Property is located within the Town. In 1978, the Brookhaven Town Building Department issued a certificate of occupancy for a single-family dwelling containing three bedrooms and a cellar on the Norfleet Property. The Plaintiff's brothers, Howard Norton (“Howard”) and Richard Norton (“Richard”) owned the remaining 50% of the Norfleet Property.

Howard has been involved in both criminal and civil litigation against the Town of Islip (“Islip”). In 2003, he commenced a “successful prosecution of a Federal action to vindicate his constitutional rights under the Fourteenth Amendment” against Islip. (Second. Amend. Compl. ¶ 240.) On June 9, 2011, a New York State court dismissed two separate criminal actions brought against Howard by Islip, one of which was brought under Islip's rental permit law. Folber's mother was and is the Executive Director of the Town of Islip Youth Bureau, which is part of the Brookhaven Department of Housing and Human Services (“DHHS”). (Id. at ¶ 76.)

Within two weeks of the dismissal of the criminal actions against Howard, Folber, a housing inspector with DHHS visited the Northfleet Property to inspect it for violations. The inspection was not planned and a FOIL request for Folber's files regarding the inspection did not identify any complaints against the Norfleet Property that could have resulted in an inspection. (Id. at ¶ 77.) The Plaintiff alleges that Folber's inspection was initiated by or at the request of Islip officials. He further alleges that Folber's inspection was approved and condoned by Brookhaven officials, including Quinlan, who was the Town Attorney of Islip during Howard's litigations against Islip.

On June 22, 2011, Folber sent a letter order addressed to Howard, Richard and Jerome Norton (the “Owners”) to Jerome's Syosset Address. The Northfleet Property deed, which is filed in the Suffolk County Clerk's Office, listed Howard's only residence as being in Lynbrook, New York, during all relevant times and Richard's only residence as being in Topanga, California. The letter order was on Town letterhead and at the bottom stated, “BY DIRECTION OF COMMISSIONER VALERIE BISCARDI.” (Id. at ¶ 79). In the letter, Folber ordered the Owners to correct the following three alleged violations: “(1) renting with a valid rental permit; (2) overhang on right of dwelling needs a permit; and (3) certificate of occupancy required for side overhang.” (Id. ) The letter claimed to be sent in accordance with the Town Code and Property Maintenance Code of New York State. The letter stated that the violations “must be addressed no later than July 6, 2011” and explained,

“Following your compliance an inspection will be conducted after the time listed above. However, if it is found that the violation(s) still exist, or that an inspection has not been requested an appearance ticket(s) will be issued. An extension of time may be requested only by contacting the undersigned. Please note: Only non health and safety violations will be considered for an extension of time for compliance. ” (emphasis in original).

The letter further stated,

“YOU ARE GIVEN NOTICE THAT FAILURE TO COMPLY WITH THIS ORDER CONSTITUTES AN OFFENSE PURSUANT TO THE NEW YORK STATE UNIFORM FIRE PREVENTION AND BUILDING CODE OR THE CODE OF THE TOWN OF BROOKHAVEN AND SHALL BE PUNISHABLE BY A FINE OR IMPRISONMENT OR BOTH ” (emphasis in original).

On June 30, 2011, Howard sent a letter to Folber, DHHS Commissioner Biscardi and then-DHHS Deputy Commissioner Roberta Owens (“Owens”) responding to the June 22, 2011 letter order. Howard's letter addressed the legality of the alleged violations, complained that the Town's rental permit law was illegal and unconstitutional, and threatened suit against the Town and individuals involved in the enforcement of the law. He further stated that Folber's first letter order was improperly mailed to him at the Syosset address and directed future correspondence regarding the letter order be sent to his attorney.

Subsequently, Folber met with Moran, the Deputy Town Attorney for the Law Department, and possibly Biscardi, to discuss the investigation of the Norfleet Property. The Plaintiff alleges that Moran encouraged and advised Biscardi to instruct and/or direct Folber to expand the investigation by searching the Norfleet Property without seeking consent of the Owners or obtaining a warrant. The Plaintiff further alleges that Biscardi instructed and directed Folber to follow Moran's instructions. (Id. at ¶¶ 84–85.)

On July 11, 2011, Folber returned and entered the Northfleet Property without a warrant. To gain access to the property, Folber falsely advised the then occupants of the property that Folber was at the Norfleet Property to do an interior and exterior inspection at the request of “Mr. Norton”. (Id. at ¶ 88.) Folber took photographs of the inside and outside of the Norfleet Property dwelling.

The following day, Folber met with Moran to discuss the information he obtained from his search of the Norfleet Property. After this meeting, Folber sent a second letter order dated July 12, 2011 to the Plaintiff's Syosset address. In that letter, Folber re-ordered the correction of the three original alleged violations in the first letter order and ordered the correction of an additional sixteen alleged violations, for a total of nineteen alleged violations. The July 12, 2011 letter order was similar in all respects to the first letter order and stated that a compliance inspection would take place after July 26, 2011. On July 13, 2011, Folber notified Moran that he sent the second letter order and said he would update Moran if he heard from Howard or his attorney.

On July 26, 2011, the Plaintiff responded to the second letter order by mailing to Folber a letter and attachments. In his letter and attachments, the Plaintiff objected to Folber's authority to administer and enforce the Town and Uniform Code. The Plaintiff also objected to the Town Rental Code as invalid and unconstitutional. On August 3, 2011, the Plaintiff sent Folber a letter with a copy of an electrical inspection certificate, which stated...