SANDRA J. FEUERSTEIN, District Judge.
Plaintiffs Mary Ann Dellinger and Carmen Tomeo (collectively, "Plaintiffs") commenced this action against Defendants The Town of Huntington (hereafter, the "Town Defendant" or "Town"), TGJ 2014 LLC ("TGJ"), Eugene Cook ("Cook"), Joshua Price ("Price"), and Timothy Cavanaugh ("Cavanaugh"; together with TGJ, Cook, and Price, the "Non-Town Defendants"; collectively with the Town Defendant, the "Defendants") seeking relief, pursuant to 42 U.S.C. §§ 1983, 1986, and Article I, § 6 of the New York State Constitution, for the alleged selective enforcement of the Huntington Town Code to devalue property owned by the Plaintiffs. (See Complaint, ECF No. 1.) The Town Defendant and the Non-Town Defendants have each moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (hereafter, collectively, the "Dismissal Motions"). (See ECF No. 15 (Town Defendant's Motion to Dismiss); ECF Nos. 17-20
Now before the Court is the Magistrate Judge's August 29, 2018 Report and Recommendation (hereafter, "Report") recommending: that the Default Judgment Motion be denied; that the Motions to Dismiss be granted, and the Complaint be dismissed with prejudice; and, consequently, that Plaintiff's request to amend the Complaint be denied. (See Report (ECF No. 41).) The Plaintiffs have filed a limited objection (hereafter, "Objection") (see ECF No. 43), to which the Town Defendant has responded (hereafter, "Response") (see ECF No. 44), but the Non-Town Defendants have not (Case Docket, in universum.). For the reasons that follow, the Court overrules the Plaintiffs' objections and adopts Magistrate Judge Brown's Report in its entirety.
The "BACKGROUND" section of the Report addresses the facts and procedural history underlying this action, which are incorporated by reference (see Report at 1-4) and with which the Court assumes the Parties' familiarity. However, for the reader's convenience, the Court summarizes as follows.
The Plaintiffs' claims against the Defendants are premised upon their prior ownership of real property, a five-family dwelling located at 792 Larkfield Road in East Northport, New York (hereafter, the "Property"). According to a 1997 Town-issued "Letter in Lieu", the Property's multi-dwelling status was "grandfathered" as it existed before the Town's 1934 establishment of its Town Code. (See Complaint ¶¶18-19.) However, in 2012, a Huntington Town Code inspector informed the Plaintiffs that the Property was zoned as a single-family dwelling and they would have to either return the Property to that status or seek a zoning variance. (See id. at ¶20.) On September 11, 2012, the Town Defendant "filed a complaint against the Plaintiffs for violation of the Town Code alleging overcrowding and illegal apartment" (hereafter, the "Code Violation Complaint"). (Id. at ¶21.) Plaintiffs alleged that at least one sale of the Property was not consummated because of the pending Code Violation Complaint (hereafter, the "2013 Potential Sale") (see id. at ¶22; see also id. at ¶23 (alleging the Town Defendant informed potential purchaser "that the Property was unsafe" and "should be demolished"), and ¶24 (alleging the Town Defendant informed potential purchaser that it would not allow Property "to be used `for any purposes and cautioned him to `think twice' before pursuing the sale"); Report at 3 n.1), but that another sale was consummated with TGJ on September 12, 2014 (hereafter, the "2014 Sale"), despite said Code Violation Complaint. (See id. at ¶29.) They allege that since the 2014 Sale the Defendant Town "has not filed any violation against the [P]roperty alleging overcrowding or that the five (5) apartments were illegal." (Id. at ¶ 30.)
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct proceedings of dispositive pretrial matters without the consent of the parties. See Fed. R. Civ. P. 72(b). Any portion of a report and recommendation on dispositive matters to which a timely objection has been made is reviewed de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). However, "when a party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report strictly for clear error." Frankel v. City of N.Y., Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009); see also Butto v. Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) ("In a case where a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." (quotations and citation omitted)). The Court is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L. Ed.2d 435 (1985). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The standard of review on a Rule 12(b)(6) motion is that a plaintiff plead sufficient facts "to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009). The plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Id.
"A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. 544, 127 S. Ct. at 1959.
In deciding a motion pursuant to Rule 12(b)(6), the Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013) (quotations and citation omitted); Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). However, this tenet "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679, 129 S.Ct. 1937. "In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id.; see also Ruston v. Town Bd. of Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010).
Nonetheless, a plaintiff is not required to plead "specific evidence or extra facts beyond what is needed to make the claim plausible." Arista Records, LLC v. Doe 3, 604 F.3d 110, 120-21 (2d Cir. 2010); accord Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 729-30 (2d Cir. 2013). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679, 129 S. Ct. at 1937.
In deciding a Rule 12(b)(6) motion, the Court must limit itself to the facts alleged in the complaint, which are accepted as true; to any documents attached to the complaint as exhibits or incorporated by reference therein; to matters of which judicial notice may be taken; or to documents upon the terms and effect of which the complaint "relies heavily" and which are, thus, rendered "integral" to the complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see also ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014), cert. denied, 135 S.Ct. 715 (2014). Courts may also consider public records in deciding a motion to dismiss. See Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (state court complaint); Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (state court decree); Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (case law and statutes). Moreover, a plaintiff's "failure to include matters of which as pleader[] [she] had notice and which [are] integral to [her] claim—and that [she] apparently most wanted to avoid-may not serve as a means of forestalling . . . [a] decision on a [Rule] 12(b)(6) motion." L-7 Designs, 647 F.3d at 422 (quotations, alterations and citation omitted). Factual allegations are assumed to be true "unless contradicted by more specific allegations or documentary evidence. . . ." Id.
As to the Plaintiffs' Default Judgment Motion, while recognizing that the basis for Plaintiffs' Motion was the purported failure of TGJ, Cook, and Cavanaugh to timely respond to the Complaint, which those Defendants oppose arguing that their filings were timely, the Magistrate Judge found that "irrespective of the merits of the timeliness argument," because of Plaintiffs' own failure in not satisfying the procedural requirements for default judgment, said relief was not warranted. (See Report at 4.) That is, while Rule 55 requires one to engage in a two-step process, to wit, the entry of default by the clerk of court and then, upon application, the entry of default judgment (see id. at 4-5 (citing Fed. R. Civ. P. 55; further citations omitted)), since the Plaintiffs "have neither requested nor received a certificate of default from the Clerk," that "alone justifies denial of [P]laintiffs' motion without prejudice." (Report at 5 (citations omitted).) Magistrate Judge Brown further stated that since Plaintiffs failed to "state a cause of action as to TGJ, Cook and Cavanaugh," that was another basis for recommending denial of the Default Judgment Motion. (See id. (citing Taizhou Zhongneng Import & Export Co. v. Koutsobinas, 509 F. App'x 54, 56 (2d Cir. 2013)).)
As to the Defendants' Dismissal Motions, Magistrate Judge Brown found all of Plaintiffs' § 1983 claims fell outside of the applicable three-year statute of limitation.
(Report at 10.) Moreover, Magistrate Judge Brown rejected the Plaintiffs' attempts to invoke equitable tolling to save their § 1983 claims as they neither pled facts supporting such a theory nor, in their motion papers, identified any such facts. (See id. at 10-11.) Finally, he determined that because it was subject to a one-year statute of limitation, Plaintiffs' § 1986 claim was untimely for the same reasons stated as to their § 1983 claims, thereby warranting a recommendation that it be dismissed. (See id. at 12.)
"[P]laintiffs specifically object to the following findings: (1) that [P]laintiffs' claims under 42 U.S.C. § 1983 and the New York State Constitution are time barred; and (2) that `all of the cognizable acts complained of fall outside the limitations period.'" (Objection at (unnumbered) 2.) The Plaintiffs argue that the Code Violation Complaint was a "continuing harm" throughout their ownership of the Property. (See Objections at (unnumbered) 3.) They also contend that the "passing of title [of the Property] is clearly relevant as it is only after title passes [] that a claim for selective enforcement can even be raised under these facts," thereby objecting to the Magistrate Judge's notation that the title passage date is irrelevant. (See id.; Report at 8 n.5; see also Objection at (unnumbered) 4 (reiterating that "[o]nly after title passed hands, AND no enforcement actions were taken by the Town against TGJ [], could there have been an accrual of a valid cause of action under these facts." (citing Caroselli v. Curci, No. 08cv-1743, 2009 WL 211041 (E.D.N.Y. Jan. 23, 2009)).) Finally, Plaintiffs posit that their:
(Objection at (unnumbered) 4.) In sum, Plaintiffs request that their Objection be sustained such that their § 1983 and New York State constitutional claims not be dismissed as time barred and that they been afforded the opportunity to amend their Complaint. (Id.)
Not surprisingly, the Town Defendant agrees with Magistrate Judge Brown's recommendation that all of Plaintiffs' § 1983 claims are "`clearly time-barred.'" (Response at 2 (quoting Report at 8).) In particular, the Town Defendant focuses on Magistrate Judge Brown's reliance "upon a multitude of cases to conclude that any Section 1983 causes of action arising out of an alleged code enforcement action accrued at the time of the alleged improper enforcement" (id. (citing Report at 8-10)), which in this instance was September 11, 2012, the date the Town filed its Code Violation Complaint against the Plaintiffs. (See id.) The Town highlights the fault in the Plaintiffs' Objection, i.e., "that because the alleged violation issued by the Town `remained a violation against [P]laintiffs right until title to the [P]roperty transferred' it was a `continuing harm' which precluded the statute of limitations from running" (Response at 2 (quoting Objection at (unnumbered) 3), by noting the failure to support it with case law (see id.) and by citing numerous cases rejecting "the type of `continuing harm' argument advanced by Plaintiffs" (id.) and supporting Magistrate Judge Brown's recommendation that Plaintiffs' § 1983 claims are time-barred, to wit:
(Id. at 2-3.) Hence, the Town Defendant requests that Plaintiffs' Objections be overruled and this Court follow the Magistrate Judge's recommendation of dismissing this action in its entirety.
As an initial matter, Plaintiffs explicitly "do not object to the denial of [their] crossmotion for default judgment." (Objection at (unnumbered) 2.) Nor do they address the Magistrate Judge's recommendations regarding the untimeliness of their § 1986 claim (see Report at 12) or the futility of their supposed § 1981 claim (see id. at 6 n.3). Moreover, the Plaintiffs have failed to address Magistrate Judge Brown's recommendations regarding their attempt to equitable tolling their § 1983 claims. (See Report at 10-12; cf., Objection, in universum.) Other than their conclusory assertion that they "should be given time to amend their pleadings" (Objection at (unnumbered) 4 ("Conclusion" section)), Plaintiffs do not meaningfully object to the Magistrate Judge's recommendation that, in essence, it would be futile to permit the amending of the Complaint as "the recommendation to dismiss all claims is premised on a substantive and incurable defect, to wit: [P]laintiffs' failure to file within the applicable limitations period." (Report at 12.) Thus, Plaintiffs are deemed to have waived any objections to those portions of the Report recommending: dismissing Plaintiffs' §§ 1981 and 1986 claims; denying equitable tolling of the statute of limitation; and denying Plaintiffs' request to amend their Complaint. As the Court is not required to review the factual findings or legal conclusions of a magistrate judge as to which no proper objections are made, see Arn, 474 U.S. at 150, and finding no clear error as to Magistrate Judge Brown's recommendation to dismiss the Plaintiffs' §§ 1981 and 1986 claims, deny the application of equitable tolling, and deny the amending of the complaint, those portions of the Report are adopted in their entirety.
As to Magistrate Judge Brown's recommendation to dismiss the Plaintiffs' § 1983 claims as time-barred, the Plaintiffs' Objections
First, to the extent the Plaintiffs cite case law supposedly supporting their "selective enforcement claim" Objection, their reliance on Caroselli is unpersuasive.
Second, as to the issue of when a § 1983 claim accrues, Magistrate Judge Brown correctly highlighted that, "as the Supreme Court has instructed . . . `the proper focus is on the time of the discriminatory act,'" Report at 8 (quoting Eagleston, 41 F.3d at 871 (quoting Chardon v. Fernandez, 454 U.S. 6, 8 (1981))), and not, as the Plaintiffs suggest, "when the nonenforcement of the Town code against the TGJ defendants" occurred. (Report at 8 (citing Pls.' Opp'n (ECF No. 31-1) at 4)(emphasis in Report); see also id. at 8-10 (citing and discussing cases holding that § 1983 claims accrue when the unlawful act commences and not the time at which the consequences of the act become painful).) After its own de novo review, this Court agrees with the Magistrate Judge's reasoning, which it now adopts, that it was the Town Defendant's filing the Code Violation Complaint which triggered Plaintiff's § 1983 "selective enforcement claims". As the holders of a "Letter in Lieu", once the Town brought its Code Violation Complaint on September 11, 2012, the Plaintiffs had reason to know of the potential cloud over title to the Property, which could jeopardize its value. See, e.g., Wormer v. City of Rensselaer, 293 F. App'x 783, 783 (2d Cir. 2008). Further, by the time the 2013 Potential Sale failed due to the pending Code Violation Complaint (see Complaint ¶ 22
Having considered the Plaintiffs' objections to the Report and conducted a de novo review of the record, the Court is satisfied that Magistrate Judge Brown's Report it is not facially erroneous; therefore, it is adopted in its entirely.
Accordingly, IT IS HEREBY ORDERED that the Defendants' Dismissal Motions are granted in their entireties; Plaintiffs' Complaint is dismissed with prejudice.
IT IS FURTHER ORDERED that the December 5, 2018 Status Conference is cancelled; and
IT IS FURTHER ORDERED that The Clerk of Court is directed to close this case.
