Schubert v. City of Rye

• Citation: 775 F.Supp.2d 689
• Decision Date: 31 March 2011
• Docket Number: Case No. 09–CV–6867 (KMK).
• Parties: Robert SCHUBERT and Rita Schubert, Plaintiffs,v.CITY OF RYE, City Council of the City of Rye, Andrew C. Ball, in his individual capacity and as a member of the City Council of the City of Rye, Mack Cunningham, in his individual capacity and as a member of the City Council of the City of Rye, Paula Gamache, in her individual capacity and as a member of the City Council of the City of Rye, Catherine Parker, in her individual capacity and as a member of the City Council of the City of Rye, George S. Pratt, in his individual capacity and as a member of the City Council of the City of Rye, Joe Sack, in his individual capacity and as a member of the City Council of the City of Rye, George J. Mottarella, in his individual capacity and as City Engineer of the City of Rye, Steven Otis, in his individual capacity and as Mayor of the City of Rye, and O. Paul Shew, in his individual capacity and as City Manager of the City of Rye, Defendants.
• Court: U.S. District Court — Southern District of New York

775 F.Supp.2d 689

Robert SCHUBERT and Rita Schubert, Plaintiffs,

v.CITY OF RYE, City Council of the City of Rye, Andrew C. Ball, in his individual capacity and as a member of the City Council of the City of Rye, Mack Cunningham, in his individual capacity and as a member of the City Council of the City of Rye, Paula Gamache, in her individual capacity and as a member of the City Council of the City of Rye, Catherine Parker, in her individual capacity and as a member of the City Council of the City of Rye, George S. Pratt, in his individual capacity and as a member of the City Council of the City of Rye, Joe Sack, in his individual capacity and as a member of the City Council of the City of Rye, George J. Mottarella, in his individual capacity and as City Engineer of the City of Rye, Steven Otis, in his individual capacity and as Mayor of the City of Rye, and O. Paul Shew, in his individual capacity and as City Manager of the City of Rye, Defendants.

Case No. 09–CV–6867 (KMK).

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

March 31, 2011.

Steven H. Gaines, Esq., Gaines, Gruner, Ponzini & Novick LLP, White Plains, NY, for Plaintiffs.Louis G. Corsi, Esq., Cristi L. Luckow, Esq., Landman Corsi Ballaine & Ford PC, New York, NY, Terry A. Rice, Esq., Rice & Amon, Suffern, NY, for Rye, Defendants.Paul Edward Svensson, Esq., Hodges, Walsh & Slater LLP, White Plains, NY, for Defendant O. Paul Shew.

OPINION AND ORDERKENNETH M. KARAS, District Judge:

Robert Schubert (“Schubert”) and Rita Schubert (collectively, “Plaintiffs”) bring this action, pursuant to 42 U.S.C. § 1983, against the City of Rye, the City Council of the City of Rye (“the City Council”), various members of the City Council in their individual and official capacities, George J. Mottarella (“Mottarella”), in his individual capacity and in his capacity as the City Engineer of the City of Rye, Steven Otis (“Otis”), in his individual capacity and in his capacity as the Mayor of the City of Rye (collectively, “the Rye Defendants”), and O. Paul Shew (“Shew”), in his individual capacity and in his capacity as the City Manager of the City of Rye (collectively, “Defendants”). Plaintiffs allege violations of their rights under the First and Fourteenth Amendments to the Constitution. Plaintiffs also have included a claim of intentional infliction of emotional distress asserted only against Shew. Shew and the Rye Defendants move to dismiss all of Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, both motions are granted.

I. Background

A. Facts

The Court assumes the following facts, as alleged in the Amended Complaint, to be true for purposes of these motions. In 1994, Plaintiffs applied for and obtained a wetlands permit from the City of Rye for the purpose of constructing a wetland garden (“the Wetland Project”) on their property. (Am. Compl. ¶ 18.) The Wetland Project was in fact constructed after considerable work and expense. ( Id. ¶ 20.) Plaintiffs' neighbors, the Gateses, also live on property containing wetlands. ( Id. ¶ 21.) The Gates property is located on a floodplain, an area especially prone to flooding. ( Id. ¶ 22.) The Wetland Project was “fed and re-charged by draining surface and ground water through the wetlands located on the Gates Property and the Schubert Property as part of an established watercourse,” and any disruption of the flow of the draining water through the watercourse would have a detrimental effect on the operation of the Wetland Project. ( Id. ¶¶ 23, 24.)

In June 2006, Plaintiffs learned that William Gates (“Gates”), owner of the Gates property, had hired an engineering consultant to address a water drainage issue on his property. ( Id. ¶ 25.) On June 13, 2006, Schubert wrote to Barbara Cummings (“Cummings”), Chair of the City of Rye Planning Commission (who is not a defendant in this case), with concerns about the potential harm that any actions taken to correct drainage issues on the Gates property could have on the Wetland Project, given the Wetland Project's reliance on the drainage patterns through the established watercourse. ( Id. ¶ 26.) In August 2006, Gates hired an engineer, Larry Nardecchia (“Nardecchia”), to file an application with the City of Rye for a surface water, sediment, and erosion control permit, for the stated purpose of “repair[ing] drains in easement” located on the Gates property. ( Id. ¶ 27.) Although the applicable section of the Rye City Code, section 195–4, states that the City Engineer shall refer information regarding such applications to the City Naturalist for a determination of whether the proposed work constitutes a regulated activity and therefore would require a permit, the City Naturalist at the time was on vacation and unavailable, and so the City Engineer, Defendant Mottarella, unilaterally determined that the proposed work on the Gates property, which he deemed to be a repair “in kind,” was not a regulated activity and thus did not require a permit. ( Id. ¶¶ 31–38.) Plaintiffs allege that the Mottarella's determination was motivated by a “special relationship” he had with Nardecchia. ( Id. ¶¶ 36–39.) ¹ Within one week of the completion of the work on the Gates property (the date of which is not provided in the Amended Complaint), the surface and ground water that had previously flowed through the watercourse and charged the Wetland Project was reduced and the Wetland Project essentially dried up. ( Id. ¶¶ 47, 49.)

Following these events, Plaintiff's complained to the City Council that the work done on the Gates property was improperly conducted without a wetlands permit, a conclusion that was later confirmed by the City Naturalist at the time, Chantal Detlefs (“Detlefs”). ( Id. ¶¶ 52, 54; id. Ex. H.) In a letter to Cummings dated December 12, 2006, Schubert asserted that allowing the work on the Gates property “to proceed without a permit” was “a clear violation of the [Rye City] Code,” and he requested “that the City of Rye take action to require that further ... steps be undertaken” to restore the previously-existing drainage pattern. (Decl. of Louis G. Corsi in Further Supp. of Rye Defs.' Mot. to Dismiss (“Corsi Reply Decl.”) Ex. 1.) Plaintiffs continued to attend City Council meetings to complain about the allegedly improper determination that the work on the Gates property did not require a wetlands permit, and to call for the City of Rye to rectify the situation which allegedly led to the destruction of the Wetland Project. (Am. Compl. ¶ 61.)

In February 2009, in furtherance of these complaints to the City Council, Schubert met with representatives of Congresswoman Nita Lowey, and took part in a telephone conference with Lowey's representatives and Shew. ( Id. ¶¶ 63–64.) After this conference, Shew placed a telephone call to Schubert, “inquiring as to his health.” ( Id. ¶ 65.) Following this conversation, Shew contacted the Westchester County Medical Center's Comprehensive Psychiatric Emergency Program (“CPEP”), relaying concern for Schubert's mental health. ( Id. ¶ 66.) Plaintiffs were contacted by CPEP, and, “believing that they could not refuse to participate in the process,” were interviewed by a “Mobile Crisis Team” that night. ( Id. ¶¶ 70–72.) Plaintiffs claim that Shew's call to CPEP was an attempt to retaliate against Plaintiffs for exercising their First Amendment rights in complaining about the City of Rye's conduct with respect to the work on the Gates property. ( Id. ¶ 73).² Plaintiffs' First Amendment rights were also allegedly violated through Defendants' continued refusal, in response to Plaintiffs' complaints to the City Council, to remedy the situation caused by wrongfully allowing work to proceed on the Gates property.³ ( Id. ¶¶ 106–08.)

Plaintiffs also claim that in order to avoid liability for improperly allowing the work on the Gates property to proceed without a wetlands permit, the City of Rye and various City officials attempted to “cover up” the wrongdoing, first by agreeing to maintain that the work on the Gates property did not directly cause the destruction of the Wetland Project, and if it did, that it was a “matter between neighbors” ( id. ¶¶ 55–60), then by hiring a hydrologist, Kevin J. Phillips, allegedly to refute Plaintiffs' contention that the work on the Gates property was the direct cause of the destruction of the Wetland Project, ( id. ¶¶ 74–77). Plaintiffs assert that these actions violated their First Amendment rights, as well as their substantive and procedural due process rights under the Fourteenth Amendment. ( Id. ¶¶ 74–94, 106–08.) ⁴

B. Procedural History

Plaintiffs filed the initial Complaint on August 4, 2009. (Dkt. No. 1.) Shew submitted his answer on October 2, 2009. (Dkt. No. 7.) Upon leave of the Court, Plaintiffs filed their Amended Complaint on February 2, 2010. (Dkt. No. 16.) Shew and the Rye Defendants separately filed motions to dismiss, which were both fully submitted on May 21, 2010. (Dkt. Nos. 18, 20.)

II. Discussion

A. Standard of Review

“On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiff's factual allegations as true and draw all reasonable inferences in [the plaintiff's] favor.” Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y.2008); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (“We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor.” (internal quotation marks omitted)). In adjudicating a Rule 12(b)(6) motion, a district court “ ‘confines its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.’ ” Meisel v. Grunberg, 651 F.Supp.2d 98, 107 (S.D.N.Y.2009) (alteration omitted) (quoting Leonard F. v....