Riano v. Town of Schroeppel

• Decision Date: 10 August 2015
• Docket Number: 5:13-cv-00352 (MAD/TWD)
• Parties: BRENDA RIANO, Plaintiff, v. TOWN OF SCHROEPPEL; TOWN BOARD OF THE TOWN OF SCHROEPPEL; PATRICK J. NUGENT, individually and in his official capacity as Town Supervisor; PAUL M. GILBERT, in his official capacity as Town Councilman; RICHARD P. KLINE, in his official capacity as Town Councilman; WILLIAM GODFREY, in his official capacity as Town Councilman; WILLIAM W. VAN DYKE, in his official capacity as Town Councilman; ROBERT DALTON, individually and in his official capacity as Code Enforcement Officer of the Town of Schroeppel; and PAUL D. CASPER, JR., individually as former Supervisor of the Town of Schroeppel, Defendants.
• Court: U.S. District Court — Northern District of New York

BRENDA RIANO, Plaintiff, v. TOWN OF SCHROEPPEL; TOWN BOARD OF THE TOWN OF SCHROEPPEL;PATRICK J. NUGENT, individually and in his official capacity as Town Supervisor;PAUL M. GILBERT, in his official capacity as Town Councilman;RICHARD P. KLINE, in his official capacity as Town Councilman;WILLIAM GODFREY, in his official capacity as Town Councilman;WILLIAM W. VAN DYKE, in his official capacity as Town Councilman;ROBERT DALTON, individually and in his official capacity as Code Enforcement Officer of the Town of Schroeppel;and PAUL D. CASPER, JR., individually as former Supervisor of the Town of Schroeppel, Defendants.

5:13-cv-00352 (MAD/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 10, 2015

APPEARANCES:

NEIL M. GINGOLD, ATTORNEY

5178 Winterton Drive

Fayetteville, New York 13066

Attorneys for Plaintiff

RICE & AMON

Four Executive Boulevard, Suite 100

Suffern, New York 10901

Attorneys for Defendant

OF COUNSEL:

NEIL M. GINGOLD, ESQ.

TERRY RICE, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On March 1, 2013, Plaintiff commenced this suit by filing a notice of petition and verified petition in New York State Supreme Court, Onondaga County. See Dkt. No. 1 at 5-50("Petition").¹ In the Petition, Plaintiff asserts claims arising out of Defendants' issuance of a demolition permit and subsequent Stop Work Order. Plaintiff seeks a declaratory judgment pursuant to Section 3001 of the New York Civil Practice Law and Rules and damages under 42 U.S.C. § 1983. See id. On March 28, 2013, Defendants timely removed the action to this Court pursuant to 28 U.S.C. § 1441 et seq., on the grounds that it "arises under the Constitution and law of the United States and involves a federal question." See Dkt. No. 1 at 2. Presently before the Court is Defendants' motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 17. Plaintiff has opposed Defendants' motion. See Dkt. No. 25.

II. BACKGROUND²

According to Plaintiff's Petition, Plaintiff was, at all relevant times to this action, a resident of Phoenix, New York. See Petition ¶ 2. The named Defendants in this action are all employed, or were employed, by the Town of Schroeppel (the "Town"). Defendant Dalton is the Town's Code Enforcement Officer. See id. ¶ 6. Defendants Casper and Nugent are the former and current Town Supervisors, respectively. See id. ¶¶ 5, 7. The remaining named Defendants are all members of the Town Council. See id. ¶ 4.

In 2007, the Town passed a local law entitled "Local Law Providing for the Administration and Enforcement of the New York State Uniform Fire Prevention and Building Code," which provides as follows:

This local law provides for the administration and enforcement of the New York State Uniform Fire and Prevention and Building Code (Uniform Code) and the State Energy Conservation Construction Code (the Energy Code) in this Town. Except as otherwise provided in the Uniform Code, or other state law, or other section of this local law, all buildings, structures, and premises, regardless of use or occupancy, are subject to the provisions of this local law.

Id. ¶ 9 (quoting Local Law No. 1 of 2007 of the Town of Schroeppel ("Local Law No. 1")). Local Law No. 1, Section 5 provides that a building permit which conforms to the requirements of the Uniform Code is a prerequisite for projects, including demolition of any building or structure. See id. ¶ 36.

Article 18 of the New York Executive Law, known as the New York State Uniform Fire Prevention and Building Code Act, provides as follows:

1. The provisions of this article and of the uniform fire prevention and building code shall supersede any other provision of a general, special, or local law, ordinance, administrative code, rule or regulation inconsistent or in conflict therewith[.]

* * * *

2. Nothing herein shall be construed as affecting the authority of the state labor department to enforce a safety or health standard issued under provisions of sections twenty-seven and twenty-seven-a of the labor law.

Id. ¶ 54 (quoting N.Y. Exec. Law § 383). The New York State Department of Labor, pursuant to its authority under New York State law, has promulgated regulations regarding asbestos surveys under 12 N.Y.C.R.R. Part 56. Section 56-5.1(g) mandates that an "asbestos survey shall be completed and submitted . . . prior to commencing work." 12 N.Y.C.R.R. § 56-5.1(a); see also Petition ¶ 58.

On March 24, 2011, Plaintiff sought to obtain a permit from the Town Code Enforcement Office ("CEO") to demolish a building which formerly housed her bowling alley business, thePhoenix Bowl Inn Sports Center ("Bowl Inn"). Plaintiff was instructed by a clerk in the CEO that she needed to submit a permit application, a certificate of issuance, and a thirty-dollar ($30.00) fee. See Petition ¶¶ 10-17, 24. Plaintiff subsequently provided the CEO with the requested documentation, thereby obtaining a demolition permit from the CEO on March 25, 2011 for the Bowl Inn. See id. ¶¶ 18-19.

Plaintiff commenced demolition of the Bowl Inn on April 19, 2011, and on April 20, 2011, Plaintiff was verbally issued a Stop Work Order for the demolition by Defendant Dalton, on the grounds that an asbestos survey had not been conducted prior to issuance of the demolition permit. See id. ¶¶ 20, 24, 72. On April 25, 2011, Plaintiff received a written Notice of Violation and Order to Comply from the New York State Department of Labor, Division of Asbestos Control. This notice informed Plaintiff that, since she had failed to prepare an asbestos survey prior to the commencement of demolition of the Bowl Inn, the entire site was deemed contaminated. As a result, all of the remaining debris was to be assumed contaminated with asbestos-containing material and, therefore, had to be handled and disposed of as asbestos. See id. ¶¶ 27-28.

Prior to receiving the verbal Stop Work Order and written Notice of Violation, Plaintiff had contracted with non-party Alpco Recycling ("Alpco") for the demolition of the Bowl Inn. See id. ¶ 76. The contract called for Alpco to demolish the entire building, recycle or sell all material capable of being recycled or sold, level the grade of the site, and remove any remaining debris. Following the State Department's determination that the debris from the demolition site was deemed contaminated by asbestos, Alpco could not sell or recycle any of the scrap metal and other debris. Consequently, Alpco refused to perform the remainder of its obligations under the contract, and Plaintiff has not completed demolition and removal. See id. ¶¶ 76-77.

Additionally, Plaintiff had contracted with a non-party retail sales company to purchase the Bowl Inn property for development. The contract required that the site be cleared of the Bowl Inn structure. Since Plaintiff did not satisfy this condition, the developer subsequently withdrew from the contract for sale. See id. ¶¶ 78-79.

According to Plaintiff's petition,

Local Law No. 1 is in violation of the State of New York Labor Law and its regulations dealing with asbestos[.]

* * * *

The Town of Schroeppel Code Enforcement Officer is prohibited and would be negligent under the State Labor Law to issue a Demolition Permit for a building or structure, knowing there has not been prepared an asbestos survey for that building or structure, for that violates the Labor Law.

* * * *

[Plaintiff] contends that [Local Law No. 1] is invalid and unenforceable, both on its face and as construed by [Defendants], in that [Local Law No. 1] is in clear conflict with the preemptive State Labor Law and its regulations as to the asbestos and demolition activities associated therewith, when the Town issued a Demolition Permit to [Plaintiff] on March 25, 2011, allowing her to commence the demolition of her building, and then three and a half weeks later the Town Code Enforcement Officer issued a verbal Stop Work Order to [Plaintiff] based on [Plaintiff] not having prepared an asbestos survey of her building prior to commencing the demolition.

Id. ¶¶ 75, 90, 98. Plaintiff's first cause of action seeks a declaration pursuant to N.Y. C.P.L.R. § 3001 as to the validity of Local Law No. 1 and whether it was "negligently administered" by Defendants. See id. ¶¶ 99-100, A.³ Plaintiff's second cause of action seeks monetary damagesarising out of Defendants' conduct, as well as a determination that Defendants deprived Plaintiff of her rights under the Due Process, Equal Protection, and Contract Clauses of the United States Constitution and comparable provisions of the New York State Constitution. See id. ¶¶ 101-102.

III. DISCUSSION

A. Standard of Review

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are "integral" to that pleading, even if they are neither physically attached to, nor incorporated by reference into, the pleading. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is...