Tarik Ahmed, Timothy A. Lester, & Locust Valley Tobacco, Inc. v. Town of Oyster Bay, No. 12–CV–3654 (JFB)(WDW).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtJOSEPH F. BIANCO
Citation7 F.Supp.3d 245
PartiesTarik AHMED, Timothy A. Lester, and Locust Valley Tobacco, Inc., Plaintiffs, v. TOWN OF OYSTER BAY, Frederick P. Ippolito, Diana S. Aquiar, and Joseph Ciambra, Defendants.
Docket NumberNo. 12–CV–3654 (JFB)(WDW).
Decision Date18 March 2014

7 F.Supp.3d 245

Tarik AHMED, Timothy A. Lester, and Locust Valley Tobacco, Inc., Plaintiffs,
TOWN OF OYSTER BAY, Frederick P. Ippolito, Diana S. Aquiar, and Joseph Ciambra, Defendants.

No. 12–CV–3654 (JFB)(WDW).

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

Signed March 18, 2014.

[7 F.Supp.3d 249]

Michael Sordi, Northport, NY, for Plaintiffs.

Christopher Kendric of Goldberg Segalla LLP, Mineola, NY, for Defendants.


JOSEPH F. BIANCO, District Judge:

Plaintiffs Tarik Ahmed (“Ahmed”), Timothy Lester (“Lester”), and Locust Valley Tobacco, Inc. (“Locust Valley Tobacco”) (collectively, “plaintiffs”) bring this action against defendants Town of Oyster Bay (“the Town”), Frederick Ippolito (“Ippolito”), Diana Aquiar (“Aquiar”), and Joseph Ciambra (“Ciambra”) (collectively, “defendants”), alleging an unconstitutional deprivation of their property rights under the Fourteenth Amendment. Plaintiffs claim that defendants violated plaintiffs' procedural and substantive due process rights by shutting down their store in Locust Valley, New York, after uncovering alleged violations of the Town of Oyster Bay Town Code (“the Town Code”). 1 Plaintiffs seek declaratory, compensatory, punitive, and equitable relief.

Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that (1) plaintiffs had a meaningful post-deprivation remedy through an Article 78 proceeding in state court; (2) Lester lacks standing; and (3) plaintiffs had no entitlement or guaranteed right to continue operating their store in violation of the Town Code, and the complaint is devoid of any conscience-shocking allegations. For the following reasons, the Court grants the motion to dismiss the procedural due process claim and dismisses Lester for lack of standing, but denies the motion with respect to the substantive due process claim.

I. Background
A. Factual Background

The Court takes the following facts from the complaint, documents incorporated by reference in the complaint, as well as documents filed in other proceedings or that are part of the public record. The Court assumes these facts to be true for purposes of deciding this motion and construes them in the light most favorable to plaintiffs, the non-moving parties.2

1. The Closure of Plaintiffs' Store

Ahmed is the President of Locust Valley Tobacco, a New York corporation, and Lester is an employee of Locust Valley Tobacco. (Amended Complaint (“AC”) ¶ 2.) Plaintiffs own and operate a retail store in rented space at 99 Forest Avenue, Locust Valley, New York.3 ( Id.) Ippolito is

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the Commissioner of the Department of Planning and Development for the Town. ( I d. ¶ 11.) Aquiar is Ippolito's assistant. ( Id. 12.) Ciambra is a “Building Inspector” in the Department of Planning and Development. ( Id. ¶ 13.)

Plaintiffs' store occupies a portion of the first floor of a building erected before 1940, when the Town first implemented a zoning code. ( Id. ¶¶ 15, 18.) Under a grandfather clause in the zoning code pursuant to which any structure and use that lawfully existed before 1940 can continue to remain, exist, and be used, regardless of compliance with the current code, the building can have and be used as three retail stores on the first floor, three apartments on the second floor, and a cellar for storage. ( Id. ¶¶ 16–17.) Plaintiffs sell items such as newspapers, magazines, lottery tickets, stationary, office supplies, pre-packaged snacks and sundries, and drinks. ( Id. ¶ 20.) Defendants do not contend that plaintiffs' use of the premises as a retail store violates local law.4

In April 2012, Ahmed bought an electric griddle, a sandwich press device and hotdog roller, and several tables and chairs. ( Id. ¶ 21.) Although he brought these items to the store, Ahmed never opened their packaging and left the tables and chairs stacked and unused. ( Id. ¶ 22.) Nevertheless, at some time in April 2012, Ciambra entered and advised plaintiffs that they could not prepare food at the premises for sale and consumption there, because that would convert the store from a grandfathered retail store into a restaurant, in violation of the current zoning code. ( Id. ¶ 23.) Plaintiffs immediately removed the items from the premises. ( Id. ¶ 24.)

On April 23, 2012, Ciambra issued a “Notice of Violation” and Summons. ( Id. ¶ 26; Notice of Violation, Opposition Ex. A; Summons, Motion to Dismiss Ex. E.) The Notice of Violation stated that an inspection revealed an unsafe condition and construction without a permit. Ciambra wrote “Dangerous Condition” in the comments. The Notice of Violation apparently required plaintiffs to stop work, cease occupancy, and cease operations immediately. The Summons charged Ahmed with violations of the Town Code pertaining to zoning (§ 246–5.2), construction or alteration without a building permit (§ 93–15), dangerous structure constituting a public nuisance (§ 96–3), plumbing work without a permit (§ 180–22), electrical work without a permit or inspection (§ 107–13), and use of a structure without a proper Certificate of Occupancy (§ 93–30). Plaintiffs complied with the Notice of Violation and closed the store. (AC ¶ 27.)

On April 30, plaintiffs' counsel challenged the Notice, which he called a “Notice of Dangerous Building,” for not complying with the Town Code. ( Id. ¶ 28; Letter to Ippolito, Opposition Ex. 2.) On May 7, Aquiar responded and noted that a notice had not been issued:

What makes it impossible for you to file a petition seeking review is that the Notice of Dangerous Building was never

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issued. If you remember, while this office was in the process of boarding up the illegal business you and I reached an agreement that your client, Locust Valley Tobacco, Inc., would continue the use of a card and stationary store ONLY and would not proceed with the sale of any food or drinks at this business.

Inspections which have been performed each day by a Code Enforcement Official indicate that your client is not keeping our agreement.

(AC ¶ 29; Aquiar Letter to Sordi, Opposition Ex. 3.) Plaintiffs allege that, on that same day, Aquiar wrote to plaintiffs' landlord suggesting, contrary to the letter to plaintiffs' counsel, that Ippolito had declared the premises a dangerous building and public nuisance. (AC ¶ 30.) In particular, the letter alleges that (1) the occupancy details for the building in 1940 included a card and stationary store, one U.S. Post Office, and one office space; (2) the use of the store had been changed to a restaurant, making the premises subject to the provisions of the Town Code; (3) unlawful plumbing work and construction had been performed; (4) Ippolito had declared the premises a dangerous building and a public nuisance pursuant to § 96.2 of the Town Code; and (5) all business activity at the store had to cease and the premises returned to being a card/stationary store. (AC ¶ 30; Aquiar Letter to Landlord, Opposition Ex. 4.) It appears that plaintiffs reopened the store shortly after its closure on April 23, although it is unclear how long the store was closed.

The Town commenced criminal proceedings against plaintiffs in the Nassau County District Court in May 2012. (AC ¶ 31.) On July 17, 2012, Ippolito issued a “Notice of Dangerous Premises.” ( Id. ¶ 34; Notice of Dangerous Premises, Opposition Ex. 5.) According to the “Notice of Dangerous Premises,” (1) plaintiffs had not corrected the violations at the premises; (2) pursuant to the emergency powers granted to Ippolito under § 96–20 of the Town Code, the premises were deemed to “contain a dangerous condition; (3) the premises had to be secured, boarded, fenced, sealed, or otherwise made safe, with no entry permitted by any person without the consent of the Commission of Planning and Development; and (4) plaintiffs had seventy-two hours to commence the abatement of the dangerous conditions, or seven days to reject the emergency findings. The Notice did not say why the building was unsafe, and it did not require the full building to be vacated, only plaintiffs' store. Plaintiffs shut down their store on July 20, 2012.5 (AC ¶¶ 44–45.)

2. Article 78 Proceeding

On July 30, 2012, plaintiffs requested a hearing before the Town Board to challenge the “Notice of Dangerous Premises.” (AC ¶ 42; Verified Petition, Opposition Ex. 6.) The Town Board never scheduled or conducted any hearing. (AC ¶ 43.) The Town also never sought to enjoin plaintiffs' alleged activities through the criminal action in state court. ( Id. ¶¶ 47–48.) Plaintiffs thus commenced a special proceeding in the Supreme Court of the State of the New York, seeking the vacatur of the “Notice of Dangerous Premises.” ( Id. ¶ 50.)

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On August 22, 2012, Justice Winslow signed an Order to Show Cause that permitted plaintiffs to reopen the store. ( Id. ¶ 51.) On August 24, defendants served another “Notice of Dangerous Premises” on plaintiffs. (Second Notice of Dangerous Premises, Opposition Ex. 7.) On August 28, while Justice Winslow was on vacation, defendants successfully moved to shut down the store before a different justice. (AC ¶ 52.) When Justice Winslow returned, plaintiffs sought judicial review of the Second Notice. ( Id. ¶ 53.) After an evidentiary hearing from September 5–7, Justice Winslow signed an order permitting plaintiffs to reopen their store. ( Id. ¶ 54.) 6

On September 21, defendants sought permission to appeal Justice Winslow's determination and to shut down plaintiffs' store. (AC ¶ 55.) Although the Second Department temporarily shut down the store, the panel unanimously denied permission to appeal and reinstated Justice Winslow's September 13 Order on October 11, 2012. ( Id. ¶ 58) The Town dismissed the criminal charges on February 25, 2013. ( Id. ¶ 59.) On April 23, 2013, defendants signed a stipulation that withdrew and/or vacated the Notices of Dangerous Premises, and discontinued the Article 78 proceedings as moot. ( Id. ¶ 60; Article 78...

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