SEIBEL, District Judge.
Before the Court is Defendants' Motion for Summary Judgment. (Doc. 27.)
The following facts are undisputed except where noted. Plaintiff Barbara Tomlins owns a house in the Village of Wappingers Falls (the "Village"), in Dutchess County, New York,
In June 2004, Plaintiff obtained a building permit to expand the house vertically and to add the necessary accompanying plumbing and electrical fixtures. (Id. ¶ 18; see Sussman Aff. Ex. 1.)
In 2005 and 2006, Plaintiff submitted several engineers' reports and building permit applications that Village officials rejected because, among other reasons, she had failed to convince the Village that the house was structurally sound. (Pl.'s 56.1 ¶¶ 47, 51-53, 55.) In July 2006, Plaintiff submitted a permit application with an accompanying survey map, (id. ¶ 57; see Sussman Aff. Ex. 25), and the Village code enforcement officer subsequently denied the application on the basis that the house's lot coverage and setback measurements did not conform to the Village zoning code, and that the code prohibited the enlargement of structures that did not conform thereto, (id. ¶ 58; Sussman Aff. Ex. 26). He indicated that in order to continue with construction, Plaintiff would need to apply to the ZBA for variances to the zoning code. (Pl.'s 56.1 ¶ 58; Sussman Aff. Ex. 26.)
Several rounds of variance applications and ZBA meetings followed beginning in August 2006 and continuing through July 2007. (Pl.'s 56.1 ¶¶ 59-60, 63, 76, 78, 83, 86.) During this time, the ZBA granted Plaintiff a variance for the size of her lot, but denied variances for lot coverage and setbacks because, among other reasons, Plaintiff failed to provide the ZBA with sufficient information to grant the variances.
In May 2007, Defendant John Fenton took over as the Village's new permanent code enforcement officer and building inspector. (Pl.'s 56.1 ¶ 90; Davignon Aff. Ex. DD, at 22.) In July 2007, an engineer hired by Plaintiff wrote to Fenton that he believed the house was safe enough for construction to continue. (Pl.'s 56.1 ¶ 95; Sussman Aff. Ex. 47.) That same month, Fenton inspected the house and subsequently removed the order of unsafe condition, but only to permit Plaintiff to enter the house to clean it, weatherproof it, and perform cosmetic work-not to continue construction. (Pl.'s 56.1 ¶¶ 96, 100; Sussman Aff. Ex. 48.) Fenton was accompanied on his inspection by a code compliance specialist from the New York State Division of Code Enforcement and Administration. (Pl.'s 56.1 ¶ 98.) The state officer opined that the house was unsafe and warned that the attic could easily be converted to a habitable space and thus qualify as a nonconforming story. (Sussman Aff. Ex. 50.) He suggested measures that could be taken to ensure that the attic would remain a non-habitable space, such as scheduling regular inspections by the Village or imposing limitations on attic insulation, lighting, and/or outlets. (Id.)
In the summer of 2008, Plaintiff again applied to Fenton for a building permit, and Fenton again denied the request. (Id. Ex. 68.)
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]he dispute about a material fact is `genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law. . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255, 106 S.Ct. 2505. The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if satisfied, the burden then shifts to the non-movant to present evidence sufficient to satisfy every element of the claim. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Moreover, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and she "may not rely on conclusory allegations or unsubstantiated speculation," Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (internal quotation marks omitted).
"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations admissions, interrogatory answers, or other materials . . ." Fed.R.Civ.P. 56(c)(1)(A). Where, as here, affidavits are used to support or oppose the motion, they "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated."
Defendants contend that they are immune from the instant claims under the doctrine of quasi-judicial immunity, which is a form of absolute immunity that applies to non-judicial officers when they perform judicial functions. In order to qualify, "[t]he proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity." Antoine v. Byers & Anderson, 508 U.S. 429, 432, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993). Absolute immunity protects judges and certain other judicial officials from civil liability for "acts undertaken in furtherance of their judicial functions." Quitoriano v. Raff & Becker, LLP, 675 F.Supp.2d 444, 449 (S.D.N.Y.2009) (citing Austern v. Chi. Bd. Options Exch., Inc., 898 F.2d 882, 885 (2d Cir.1990)). The Supreme Court "has extended absolute immunity to certain others who perform functions closely associated with the judicial process," Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) — i.e., to those who perform "quasi-judicial" functions, Quitoriano, 675 F.Supp.2d at 449.
Antoine v. Byers & Anderson, 508 U.S. 429, 435-36, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993) (alterations, internal quotation marks, and citations omitted). "If an individual's duties do not require him to exercise discretionary judgment but rather are `purely ministerial and administrative' in nature, he will not receive the protection of judicial immunity." Quitoriano, 675 F.Supp.2d at 450 (quoting Antoine, 508 U.S. at 437 n. 11, 113 S.Ct. 2167). "Nor will the individual receive immunity if he is shown to have acted in a manner outside the scope of his official judicial duties." Id. (citing Anderson v. Conboy, No. 94-9159, 1997 WL 177890, at *7-8 (S.D.N.Y. Apr. 14, 1997), rev'd on other grounds, 156 F.3d 167 (2d Cir.1998)).
The applicability of quasi-judicial immunity is determined by considering not the identity of the actor but rather the nature of the functions the actor performs. See Austern, 898 F.2d at 885. In applying this "functional" approach, a court must consider the following factors to determine whether a particular individual is entitled to quasi-judicial immunity:
Cleavinger, 474 U.S. at 202, 106 S.Ct. 496; accord Gross v. Rell, 585 F.3d 72, 88 (2d Cir.2009).
As to the ZBA, Defendants have not satisfied their burden that quasi-judicial immunity applies. First, Defendants have failed to demonstrate that quasi-judicial immunity applies not only to individuals but also to entities such as the ZBA. The Supreme Court has noted that absolute immunity is not available in official-capacity actions involving claims against an entity. See Kentucky v. Graham, 473 U.S. 159,
Even if quasi-judicial immunity does apply to municipal entities, Defendants have not demonstrated that the ZBA is entitled to such immunity under federal law. The Second Circuit has made clear that where, as here, defendants are sued in federal court on federal claims, the federal law on quasi-judicial immunity applies. See Gross, 585 F.3d at 81. Although Defendants cite to cases regarding quasi-judicial immunity as applied to zoning boards of appeals and their members, those cases address the application of quasi-judicial immunity under New York—not federal— law. For example, Hi Pockets, Inc. v. Music Conservatory of Westchester, Inc., 192 F.Supp.2d 143, 157 (S.D.N.Y.2002), was decided before Gross clarified that federal law should apply, and it cited only to New York state cases and did not undertake —or even reference—the federal multi-factor "functional" approach from Cleavinger v. Saxner described above. Similarly, Alfano v. Village of Farmingdale, 693 F.Supp.2d 231, 232-33 (E.D.N.Y. 2010), followed Hi Pockets and neither addressed the Cleavinger factors nor cited Gross. There, too, the court ignored the multi-factor "functional" approach under federal law, instead looking to principles and precedent under state law. See id. at 233.
For the same reason, Defendants have failed to demonstrate that quasi-judicial immunity applies to Fenton. Defendants are unable to point to any authority extending such immunity to building inspectors under federal law—only state law. While the cases applying state law are persuasive in their pronouncement that local officials who issue building permits exercise discretion sufficient to warrant the application of quasi-judicial immunity, see, e.g., Hi Pockets, 192 F.Supp.2d at 156-57 (discussing discretion of city commissioner who issued building permits), federal law entails more than simply a question as to the discretion of such officials, and federal courts have declined to apply quasi-judicial immunity based upon other considerations, see, e.g., Yeshiva Chofetz Chaim Radin, Inc. v. Vill. of New Hempstead, 98 F.Supp.2d 347, 357 (S.D.N.Y.2000) (declining to extend immunity because building inspectors' roles are "not functionally comparable to those of judge or prosecutor[, as] . . . they certainly are not insulated from political influence").
While it is true that an analysis concerning the applicability of quasi-judicial immunity under state versus federal law may overlap in significant ways, see, e.g., Gross, 585 F.3d at 80-82 (determining that consideration of Cleavinger factors under federal law intersected with nature and function
As noted above, Plaintiff bases each of her claims on Defendants' decisions with respect to her applications for building permits and variances. To state a substantive due process claim, Plaintiff must demonstrate that (1) she had a "valid `property interest' in a benefit that was entitled to constitutional protection," (2) she was denied that interest, and (3) Defendants' actions in depriving her of that interest were "so outrageously arbitrary as to be a gross abuse of governmental authority." Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 17 (2d Cir. 1999) (internal quotation marks omitted); see Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir.2006) (plaintiff must establish government misconduct was "arbitrary," "conscience-shocking," or "oppressive in the constitutional sense," and not merely "incorrect or ill-advised") (internal quotation marks omitted). "In assessing a substantive due process claim in the context of land use regulation, [the] Court is always `mindful of the general proscription that federal courts should not become zoning boards of appeal to review nonconstitutional land[-]use determinations by the [C]ircuit's many local legislative and administrative agencies.'" Crowley v. Courville, 76 F.3d 47, 52 (2d Cir.1996) (second and third alterations in original) (quoting Zahra v. Town of Southold, 48 F.3d 674, 679-80 (2d Cir.1995)). Indeed, "the Due Process Clause does not function as a general overseer of arbitrariness in state and local land-use decisions; in our federal system, that is the province of the state courts." Zahra, 48 F.3d at 680.
"In order for an interest in a particular land-use benefit to qualify as a property interest for the purposes of the. . . due process clause[,] a landowner must show a `clear entitlement' to that benefit." See O'Mara v. Town of Wappinger, 485 F.3d 693, 700 (2d Cir.2007) (citing Clubside, Inc. v. Valentin, 468 F.3d 144, 152 (2d Cir.2006)). A mere "abstract need or desire" for the benefit is insufficient. RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 915 (2d Cir.1989) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). This "clear entitlement" test must be applied with "considerable rigor." Id. at 918. The test "focuses on the extent to which the deciding authority may exercise discretion in arriving at a decision, rather than on an estimate of the probability that the authority will make a specific decision." Crowley, 76 F.3d at 52 (emphasis in original) (quoting Zahra, 48 F.3d at 680) (internal quotation marks omitted); see Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.1999) ("entitlement turns on whether the issuing authority . . . is required to issue [permit] upon ascertainment that certain objectively ascertainable criteria have been met"). Even if "objective observers would estimate that the probability of [obtaining the relief sought] was extremely high, the opportunity of the local
Here, Plaintiff has failed to establish a valid property interest in the building permits and in an unconditional variance. I consider first Plaintiff's claim as to Fenton, based upon his two building permit denials, in November 2007 and August 2008. (See Sussman Aff. Exs. 57, 68.) The record demonstrates both that the permits Plaintiff sought could have been, and indeed were, denied on legitimate, non-arbitrary grounds, and that Fenton had wide discretion in deciding to do so. RRI Realty is instructive here. There, as here, the Second Circuit considered the question of "whether an applicant for a building permit . . . had a sufficiently clear entitlement to the permit to constitute a property interest protected by the Due Process Clause." RRI Realty, 870 F.2d at 912. Reversing the district court, the court found that the record was insufficient to support such a finding. The court advised that an applicant for a building permit must show a "certainty or a very strong likelihood" of issuance of the permit, id. at 917 (quoting Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985)), and held that the plaintiff there did not making such a showing, despite evidence of statements by municipal officials that approval of the application was "probably forthcoming," id. at 919. Notably, the court held that "[t]he fact that the permit could have been denied on non-arbitrary grounds defeats the federal due process claim." Id. at 918. Indeed, because the permit-issuing agency offered valid reasons for denying the permit application and because the village code conferred "wide discretion" on the agency, the court found that "[a]s a matter of law, there was no property interest in the permit." Id. at 919.
That rationale applies with equal force here. The record demonstrates that Plaintiff's building permit could have been—and indeed was—denied on non-arbitrary grounds. Specifically, Fenton's November 2007 letter denying the first such application cites as the grounds for the denial the various zoning regulations— lot coverage, front- and side-yard setback, and lot depth—as to which Plaintiff's house was nonconforming. (See Sussman Aff. Ex. 57.) As the Village Code makes clear, where existing conforming uses of buildings are, by means of changes to the Code, subsequently made nonconforming—as Plaintiff makes clear is the case here, (see Pl.'s 56.1 ¶ 9 ("Plaintiff's house was built approximately 130 years ago, long before passage of the village's current zoning ordinance."))—the uses are nonetheless deemed nonconforming for the purposes of the current Code, see Village of Wappingers Falls Code ("VWFC") § 151-20(A) (attached as Davignon Aff. Ex. EE).
Fenton's second denial of Plaintiff's building permit application in August 2008 demonstrates that here, as in RRI Realty, Fenton had discretion in evaluating the application and deciding whether to grant or deny it. Plaintiff argues that Fenton's having conditioned the grant of the building permit on Plaintiff taking steps to ensure that the new attic would be non-habitable space demonstrates hostility toward Plaintiff, (Pl.'s Opp'n at 13);
Plaintiff's claim against the ZBA fails for similar reasons. The discretion of zoning boards of appeals in granting or denying variances from zoning codes is well-settled. See, e.g., Lamar Adver. of Penn. LLC v. Pitman, 573 F.Supp.2d 700, 707 (N.D.N.Y.2008) ("It is well established under New York law that `[l]ocal zoning boards have broad discretion in considering applications for variances[.]'") (alterations in original) (quoting Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732 (2002)); Rembar v. Bd. of Appeals of the Vill. of E. Hampton, 148 A.D.2d 619, 539 N.Y.S.2d 81, 82 (2d Dep't 1989) ("It is axiomatic that a zoning board of appeals has the power to interpret the provisions of the local zoning ordinance or code. The mere fact that an applicant applies for a variance with respect to proposed construction does not preclude the board from rendering a decision that
Plaintiff argues that the ZBA acted arbitrarily and outside its authority in conditioning the grant of her area variance upon her vacating the premises until a certificate of occupancy was issued. (Pl.'s Opp'n at 7.) Plaintiff's argument, however, goes toward the propriety of the ZBA's decision and ignores the threshold question of whether she had a clear entitlement to a variance — conditional or unconditional—in the first place. See, e.g., Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 504-05 (2d Cir.2001) (holding Board's discretion in granting permits defeated plaintiff's substantive due process claim, and addressing plaintiff's argument that "the Board came to an improper conclusion" under the claim's second element); Puckett v. City of Glen Cove, 631 F.Supp.2d 226, 237 (E.D.N.Y.2009) ("It is only when [a federally protected property] right is established that the court may turn to a discussion of the second prong of the due process analysis, i.e., . . . the nature of defendant's conduct. . . ."). Irrespective of the propriety of any of the several conditions attached to the variance, Plaintiff cannot overcome the fact that the ZBA had the discretion to grant or deny the variance, either conditionally or unconditionally. The parties here do not point to any provision of the Village Code that divests the ZBA of its discretionary authority under state law; to the contrary, the Code is consistent in its vesting of discretionary authority with the ZBA. See, e.g., VWFC § 151-25(C)(2). Such discretionary authority is sufficient to defeat Plaintiff's due process claim against the ZBA. See, e.g., Lamar Adver., 573 F.Supp.2d at 707 (granting summary judgment dismissing
Plaintiff asserts an equal protection claim against Fenton and First Amendment retaliation claims against Fenton and the ZBA. Plaintiff premises the claims on the same theory—that Fenton's and the ZBA's actions were retaliation for Plaintiff's initiating her state court proceeding in October 2004 that resulted in the vacatur of the ZBA's revocation of her certificate of occupancy. (Pl.'s Opp'n at 2-3, 15.)
Where, as here, an equal protection claim is based on an alleged First Amendment violation, the former "coalesces with the latter." Kempkes v. Downey, No. 07-1298, 2008 WL 852765, at *6 (S.D.N.Y. Mar. 31, 2008) (collecting cases). "Where this is the case, the equal protection claim is dependent on the First Amendment claim; in other words where the First Amendment claim has failed, the equal protection claim fails, too." Id.; accord Gentile v. Nulty, 769 F.Supp.2d 573, 582-83 (S.D.N.Y.2011).
Plaintiff's claims against Fenton must fail because she has not adduced sufficient evidence to raise a triable issue of fact as to a causal connection between the initiation of her state court case and Fenton's actions in 2008 (which, for the purposes of the First Amendment retaliation claim, is tantamount to the requirement that the selective treatment be based on an intent to punish Plaintiff for exercising her constitutional rights). Namely, in the absence of evidence that Fenton was aware of Plaintiff's state court proceeding, he cannot be said to have retaliated against Plaintiff because of that proceeding. As Defendants point out, Fenton was not a party to the 2004 litigation, and he was not familiar with Plaintiff's house prior to the time he assumed the positions of building inspector and code enforcement officer in 2007. (Defs.' Mem. at 12; Defs.' Reply Mem. at 8; see Davignon Aff. Ex. DD, at 8; Sussman Aff. Ex. 17, at 1.)
(Sussman Aff. Ex. 45, at 56-57.)
Even if this Court disregards Fenton's testimony, as he is an interested witness who a jury is not required to believe, see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (on motion for summary judgment, district court "must disregard all evidence favorable to the moving party that the jury is not required to believe"); Williams v. City of White Plains, 718 F.Supp.2d 374, 377 (S.D.N.Y.2010) (evidence that court should disregard on summary judgment "includes testimony and affidavits from interested witnesses"), Plaintiff's First Amendment retaliation claim still must fail because Plaintiff herself has not set forth any evidence upon which a reasonable jury could conclude that Fenton's allegedly retaliatory actions in 2007 and 2008 has any causal
Plaintiff's First Amendment retaliation claim against the ZBA does not suffer from the same infirmity as her claim against Fenton. The ZBA was a party to Plaintiff's 2004 state-court challenge, (see Sussman Aff. Ex. 17, at 1), and Lloyd W. Frink, IV, the Chair of the ZBA in 2008, served on the ZBA for at least the period of time from 2004 through 2008, (see Frink Dep. at 17).
First, the record demonstrates that by imposing the condition that Plaintiff vacate her house until she obtained a certificate of occupancy, the ZBA deviated from its standard procedure. See, e.g., Women's Interart Ctr., Inc. v. N.Y.C. Econ. Dev. Corp., 2005 WL 1241919, at *28 (S.D.N.Y. May 23, 2005) ("`[D]epartures from the normal procedural sequence' of governmental decisionmaking `also might afford evidence that improper purposes are playing a role' . . . .") (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)); Green v. City of Montgomery, 792 F.Supp. 1238, 1254 (N.D.Ala.1992) ("circumstantial evidence commonly encountered which can support an inference [of] retaliatory motive" includes departures from the normal procedure). As an initial matter, it is particularly noteworthy that the condition that Plaintiff obtain a certificate of occupancy before occupying the house relates directly to—and, indeed, contradicts—the March 2005 ruling in Plaintiff's state court case. As noted above, the state court explicitly vacated the ZBA's revocation of Plaintiff's certificate
Indeed, the record suggests that the ZBA did not have authority to impose such a condition. Frink testified that the Village had posted the house as unsafe and unfit for habitation, but that, according to Plaintiff's neighbors, Plaintiff was nonetheless residing there. (Id. at 101.) Frink testified that he was aware that the Village had legal recourse for Plaintiff's violations with respect to the posting—by issuing citations or obtaining a court order for eviction, for instance—and that the Village had indeed commenced legal proceedings, but that at least one of those proceedings had been withdrawn and, as of October 2008, Frink was unaware of the status of the remaining proceedings. (Id. at 107-11.) Crucially, Frink admitted that the ZBA imposed the condition because Plaintiff was still residing in the house, but that it likely did not have authority to do so:
(Id. at 101.) This testimony, coupled with the fact that Plaintiff still had a valid certificate of occupancy for the house, suggests that the ZBA departed from normal procedure and therefore provides circumstantial evidence of retaliatory intent. See, e.g., Powell v. City of Pittsfield, 221 F.Supp.2d 119, 143 (D.Mass.2002) (that plaintiff's superior ignored guidelines requiring submission of plaintiff's case to intermediate review board before plaintiff was denied reinstatement was circumstantial evidence of retaliatory motive).
That the ZBA treated Plaintiff differently than other variance applicants also serves as circumstantial evidence of retaliatory motive. See, e.g., Econ. Opportunity Comm'n of Nassau Cnty., Inc. v. Cnty. of Nassau, 106 F.Supp.2d 433, 437 (E.D.N.Y.2000) ("[A] plaintiff can also show retaliatory intent by establishing unequal treatment. . . ."); Hous. Works, Inc. v. City of NY., 72 F.Supp.2d 402, 424 (S.D.N.Y.1999) ("Evidence that defendants acted toward plaintiff disparately from the manner in which defendants acted toward others may serve as circumstantial evidence of retaliation."), appeal dismissed, 203 F.3d 176 (2d Cir.2000); accord Sumner v. U.S.P.S., 899 F.2d 203, 209 (2d Cir.1990); DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 115 (2d Cir.1987); Grant v. Bethlehem Steel, 622 F.2d 43, 46
Finally, where, as here, there is evidence that the defendant engaged in an "ongoing course of adverse action" against the plaintiff, such action may serve as additional evidence of retaliatory intent. Women's Interart Ctr., 2005 WL 1241919, at *28; see, e.g., Econ. Opportunity Comm'n, 106 F.Supp.2d at 437 ("[A] plaintiff can also show retaliatory intent by establishing . . . an ongoing campaign of adverse action."); Hous. Works, 72 F.Supp.2d at 426 ("Evidence of a `pattern of antagonism' or of prior retaliatory conduct may serve as circumstantial evidence of retaliation."); cf. Gagliardi, 18 F.3d at 195 (motive adequately alleged by evidence that Village repeatedly refused plaintiffs' requests to enforce zoning codes and ordinances over 9-year period). Here, Plaintiff paints a picture of conduct following the March 2005 state court ruling by which the ZBA impeded her from both obtaining a new building permit and occupying her house. From March 2005 through the ZBA's allegedly retaliatory action in 2008, the ZBA denied each variance application that Plaintiff submitted. Indeed, Plaintiff sought variances from Village zoning ordinances regarding lot coverage, front-yard setback, and side-yard setback in August 2006, March 2007, and May 2007, and each
For the reasons stated above, Plaintiff's claims for violations of her substantive due process and equal protection rights, as well as her claim against Fenton for First Amendment retaliation are hereby DISMISSED with prejudice. Plaintiff's sole remaining claim is for First Amendment retaliation against the ZBA. Defendants' Motion for Summary Judgment is therefore GRANTED IN PART and DENIED IN PART. The Clerk of the Court is respectfully directed to terminate the pending motion. (Doc. 27.) The parties are directed to appear before this Court for a pre-trial conference on Friday, August 5, 2011, at 11 a.m.
Defendants have not submitted a reply to Plaintiff's Rule 56.1 submission and instead attack several facts contained therein in their Reply Memorandum. (See Reply Memorandum of Law ("Defs.' Reply Mem."), (Doc. 30), at 1-3.) In considering the facts of this case, and for the purposes of adjudicating Defendants' motion, I consider any facts averred in Plaintiff's Rule 56.1 submission that are supported by the record and not specifically and expressly controverted by properly supported statements in Defendants' Reply Memorandum to be admitted by Defendants. I decline to consider any of Plaintiff's averments that are not supported by, or that are contradicted by, admissible evidence in the record, (see, e.g., Pl.'s 56.1 ¶¶ 32, 101, 103-04, 113, 116-17, 144), or that are legal arguments under the guise of undisputed facts, (see, e.g., id. ¶¶ 49, 93). See Wojcik v. 42nd St. Dev. Project, 386 F.Supp.2d 442, 448 n. 5 (S.D.N.Y.2005) (citing Local Civil Rule 56.1(d)).
VWFC § 151-20(A).
N.Y. Village Law § 7-712-b(3)(b). The ZBA's written decision reflects that it made a finding as to each of the above factors in reaching its determination. (See Sussman Aff. Ex. 71.)
