Corona Realty Holding, LLC v. Town of North Hempstead

09-3654-cv
Corona Realty Holding, LLC v. Town of North Hempstead

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 25th day of June, two thousand and ten.

Present: GUIDO CALABRESI,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.

_____________________________________________________

Corona Realty Holding, LLC,
Plaintiff-Appellant,

-v- (09-3654-cv )

Town of North Hempstead, Jon Kaiman, Thomas Dwyer, Anthony D’Urso, Wayne Wink, Jr.,
Robert Troiano, Jr., The Civic Association at Roslyn Country Club, Inc., James Brandt, Burton
Roslyn, Roslyn Consultants, LLC, Sy Buckner, Robert Rothstein and Andrew Rothstein,

Defendants-Appellees.

Appearing for Appellants: Sanford F. Young, Law Offices of Sanford
F. Young, P.C., New York, N.Y.;
Jaroslawicz & Jaros, LLC, New York, N.Y.

Appearing for Appellees: Andrew Zajac, Fiedelman & McGaw,
Jericho, N.Y.
 Tracy M. Peterson, Braverman &
Associates, P.C., New York, N.Y.
Raymond T. Mellon, Zetlin & De Chiara
LLP, New York, N.Y.

Appeal from the United States District Court for the Eastern District of New York
(Seybert, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Corona Realty Holding, LLC (“Corona”) filed a complaint in the Eastern District of New
York on December 11, 2008 alleging federal claims under 42 U.S.C. § 1983 and supplemental
state law claims. Corona alleged an unjust taking, and violations of its equal protection and due
process rights. These claims arose out of Corona’s property receiving a landmark designation
from the Town of North Hempstead (“Town”). Judge Seybert granted defendants’ motion to
dismiss, and judgment was entered on August 26, 2009. Corona now appeals. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

Corona bought a ten-acre property called the Roslyn Country Club (“Club”) in 2002. In
2003, an application was filed to designate the exterior of the structure a historic landmark. The
Town held two landmark hearings, spanning many months, at which Corona was represented
through a stockholder and counsel. Over Corona’s objections, the Town granted the landmark
designation. The designation was, however, reversed by the state court. Corona Realty Holdings,
LLC v. Town of North Hempstead, 820 N.Y.S.2d 102 (N.Y. App. Div. 2006).

Corona alleges that the landmark designation caused the “value of the plaintiffs’s
property to be diminished, loss of income, the plaintiff to incur substantial legal fees; and to be
otherwise damaged; and was all done to benefit the homeowners and the Town of North
Hempstead and not for any legitimate reason.”
To survive a motion to dismiss, the pleading must contain a “short and plain
statement . . . showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This need not
include detailed factual allegations, but must “contain sufficient factual matter . . . to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic, Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We review a motion to
dismiss under Rule 12(b)(6) de novo, accepting all factual statements as true. Scutti Enters. v.
Park Place Entm't Corp., 322 F.3d 211, 214 (2d Cir. 2003). However, “mere conclusory
statements” are insufficient. Iqbal, 129 S.Ct. at 1949.

The district court found that Corona failed to state any claims on which relief could be
granted and we agree.

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Statute of Limitations:

There is a three-year statute of limitations for actions brought under Section 1983 that
arise in New York. See Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004).
The last action by defendants giving rise to Corona’s claim occurred in 2004 when the Landmark
Preservation Committee designated the property as a landmark. The complaint was not filed
until December 11, 2008, over four years later.

Corona argues that the continuing violation doctrine applies because defendants’
wrongful conduct continued through August 1, 2006 when the New York state court struck down
the landmark designation. The “continuing violation doctrine” is an “exception to the normal
knew-or-should-have-known accrual date” if there is “evidence of an ongoing discriminatory
policy or practice.” Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999) (internal
quotations omitted). Discrete incidents of discrimination that are not part of a discriminatory
policy or practice, however, cannot be continuing violations. Washington, 373 F.3d at 318.

Here, the alleged discrimination was a discrete act that occurred in 2004; the subsequent
state court proceedings were not part of a policy or practice of discrimination by defendants.
Therefore, we agree with the district court that Corona’s Section 1983 claims are time-barred.

Accordingly, the judgment of the district court hereby is AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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