Thomas v. Venditto

• Decision Date: 21 February 2013
• Docket Number: Nos. 11–CV–6084 (JS)(ETB), 12–CV–0065 (JS)(ETB).,s. 11–CV–6084 (JS)(ETB), 12–CV–0065 (JS)(ETB).
• Citation: 925 F.Supp.2d 352
• Parties: Darren E. THOMAS and Marlene Thomas, Plaintiff, v. John VENDITTO, Leonard Genova, Frederick P. Ippolito, Christopher Gioia, and the Town of Oyster Bay, Defendants. Darren E. Thomas, Petitioner, v. Town of Oyster Bay, Hon. John Venditto, and the Judges of the District Court, County of Nassau, Respondents.
• Court: U.S. District Court — Eastern District of New York

925 F.Supp.2d 352

Darren E. THOMAS and Marlene Thomas, Plaintiff,

v.John VENDITTO, Leonard Genova, Frederick P. Ippolito, Christopher Gioia, and the Town of Oyster Bay, Defendants.

Darren E. Thomas, Petitioner,

v.Town of Oyster Bay, Hon. John Venditto, and the Judges of the District Court, County of Nassau, Respondents.

Nos. 11–CV–6084 (JS)(ETB), 12–CV–0065 (JS)(ETB).

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

Feb. 21, 2013.

Harry H. Kutner, Jr., Esq., Mineola, NY, for Plaintiffs & Petitioner.

Christopher Kendric, Esq., Goldberg Segalla LLP, Mineola, NY, for Defendants & Respondents.

MEMORANDUM & ORDER

SEYBERT, District Judge.

Plaintiffs Darren and Marlene Thomas (“Plaintiffs”) commenced this action (11–CV–6084) on December 15, 2011, against Defendants John Venditto, Leonard Genova, Frederick P. Ippolito, Christopher Gioia, and the Town of Oyster Bay (the “Town” and, collectively, “Defendants”), asserting claims under 42 U.S.C. § 1983, the New York State Constitution, and New York common law, arising out of Mr. Thomas's criminal prosecution for violating Town zoning ordinances. On January 5, 2012, Defendants removed from state court an Article 78 Petition (the “Petition”) filed by Mr. Thomas seeking a writ of prohibition barring his continued prosecution in state court (12–CV–0065). On May 9, 2012, these actions were consolidated. Presently before the Court is Defendants' motion to dismiss the consolidated action and Plaintiffs' notice of motion to file an amended complaint. For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART, Plaintiffs' motion is DENIED, the Petition is sua sponte REMANDED to state court, and the remaining claims are STAYED pending resolution of the criminal court action.

BACKGROUND¹

On or around March 9, 2007, Mr. Thomas, who is African American, and Mrs. Thomas, who is Puerto Rican, purchased a home at 121 Fourth Street in Hicksville, New York (the “Property”). (Compl. ¶¶ 14, 20–21.) According to the Complaint, Plaintiffs were the first non-Caucasian owners of the Property. (Compl. ¶ 33.)

The Property, which is located in the Defendant Town in Nassau County, is set up as a two-family home. (Compl. ¶¶ 14–15, 31.) It has two electric meters, two doorbells, and two mailboxes, and it is listed on the tax rolls of Nassau County and the Defendant Town as a two-family home. (Compl. ¶¶ 16, 32.) The Complaint asserts that the Property has been used as a two-family home since it was erected in or around 1922—long before the enactment of the Town's zoning code (the “Town Code”) in 1943. (Compl. ¶¶ 30–32.) The Property, however, is located in what is now a single-family residential zone, and the Property's certificate of occupancy provides for single-family use only. (Pet. ¶ 20.) In addition, it appears as though Plaintiffs have never sought, nor has the Town ever issued, a special use permit to use the Property as a multi-family home. (Compl. ¶ 28.)

Upon taking ownership of the Property, Plaintiffs rented the secondary suite ² and used the rental income to pay their mortgage and property taxes. (Compl. ¶ 18.) In or around June 2008, Defendant Christopher Gioia, a Town Code Enforcement Inspector, contacted Plaintiffs and “warn[ed] them to cease their use of the subject premises as a two family.” (Compl. ¶ 22.) Mr. Thomas replied, stating that, according to the tax rolls, the house was a “legal two family.” (Compl. ¶ 23.) His lawyer followed up in writing, on or around July 14, 2008, but Plaintiffs never received any response. (Compl. ¶¶ 24–25.)

Instead, on or around January 5, 2009, a criminal prosecution was commenced against Mr. Thomas in Nassau County District Court, charging him with two violations of the Town Code: (1) for operating a two-family home in a single-family residential zone and (2) for operating a two-family home without a proper certificate of occupancy. (Compl. ¶ 28.) Although both Mr. and Mrs. Thomas were record title owners of the Property, charges were only brought against Mr. Thomas. (Compl. ¶ 26.) Mr. Thomas was arraigned on February 9, 2009. (Kendric Decl. Ex. D, at 1.)

On or around February 28, 2011, Mr. Thomas filed a motion to dismiss the criminal court action pursuant to N.Y. Penal Law § 170.30(1) on the ground that it was selectively commenced against him due to racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment and the New York State Constitution. (Kendric Decl. Ex. E.) ³ Mr. Thomas asserted that the Property had previously been used as a multi-family home by its prior Caucasian owners, and no one was ever prosecuted. He further stated that there were other homes in the neighborhood being used as multi-family homes by Caucasian families, but that none of those other owners were ever prosecuted. Thus, he argued that he was being selectively prosecuted due to his race. (Kendric Decl. Ex. E.) In support, Mr. Thomas filed a memorandum of law and supporting exhibits, as well as a reply brief with supporting papers and a sur-reply brief with additional supporting papers. (Kendric Decl. Exs. D at 1, E, F.)

In August 2011, Judge David W. McAndrews denied Mr. Thomas's motion, stating as follows:

The Court finds that the defendant has not presented sufficient evidence to prove a conscious, intentional discrimination on the part of the Town of Oyster Bay. The defendant's contention that this case is racially motivated because he is African American and his wife is of Puerto Rican descent is not supported by anything other than defendant's self-serving affidavit.

(Kendric Decl. Ex. D at 4.) Judge McAndrews denied Mr. Thomas's motion in its entirety. (Kendric Decl. Ex. D.)

The Complaint asserts that, during the course of his criminal prosecution, which is still pending, “the defendants” have yet to disclose: (1) “how the prosecution was initiated, i.e., they have not produced a third-party complaint;” (2) “whether any of the proximate presumptive multi-family homes are legal multi-family dwellings;” (3) “whether any of the proximate presumptive multi-family homeowners have been prosecuted for multi-family use;” and (4) “the complete file” on the Property. (Compl. ¶¶ 43–47.)

On or around December 6, 2011, Mr. Thomas commenced the pending Article 78 proceeding in Nassau County Supreme Court against the Town, John Venditto, and the judges of the Nassau County District Court seeking a writ of prohibition “barring his further prosecution by [the] respondents on the ground that it is racially-based selective prosecution in violation of equal protection.” (Pet. ¶ 2.) Shortly thereafter, on December 15, 2011, Plaintiffs filed the Complaint in this action. The Complaint asserts four causes of action: (1) a claim pursuant to 42 U.S.C. § 1983 (“Section 1983”) and the New York State Constitution for violating Plaintiffs' right to due process; (2) a claim pursuant to Section 1983 and the New York State Constitution for selective enforcement in violation of the Equal Protection Clause; (3) a claim arising under New York state common law for abuse of process; and (4) a claim arising under New York state common law for malicious prosecution. The constitutional claims are asserted against the Town pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and all claims are asserted against the individual Defendants in their individual and official capacities.

On or around April 4, 2012, Defendants moved to dismiss both the Complaint and the Petition for failure to state a claim pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure (Docket Entry 39), and, on May 9, 2012, the two actions were consolidated. Plaintiffs opposed the motion and filed a notice of motion to amend the Complaint on May 31, 2012. (Docket Entries 32–33.) No memorandum of law or proposed amended complaint was filed in support of the notice of motion. Both Defendants' motion to dismiss, and Plaintiffs' notice of motion to amend are pending before the Court.

DISCUSSION

Although the Petition asks this Court to interfere with an ongoing state proceeding, neither party has addressed whether abstention is appropriate pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Thus, before analyzing the merits of the parties' motions, the Court must determine, sua sponte⁴, whether Younger bars the claims in the Petition.

I. Younger Abstention

The Petition asks this Court to enjoin the continued prosecution of Mr. Thomas in state court. However, “[a]s the Supreme Court emphasized in Younger v. Harris, federal courts should generally refrain from enjoining or otherwise interfering in ongoing state proceedings.” Spargo v. N.Y. State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir.2003) (citations omitted). Younger abstention is mandatory when three conditions are met: “(1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir.2002).

The Court finds that the Younger abstention conditions are met here. First, it is undisputed that the state court proceedings are still ongoing. Second, the State has an important interest in regulating zoning and land use. See, e.g., Sendlewski v. Town of Southampton, 734 F.Supp. 586, 591 (E.D.N.Y.1990) (“[T]he right of a municipality to regulate land use and enforce its regulations through criminal and civil enforcement actions implicatesimportant state interests.”); see also Novie v. Vill. of Montebello, No. 10–CV–9436, 2012 WL 3542222, at *12 (S.D.N.Y. Aug. 16, 2012) (collecting cases). Finally, Mr. Thomas's criminal court action provides an adequate forum for Mr. Thomas to adjudicate his constitutional claim-and, in fact, Mr. Thomas has availed himself of that...