Old St. George's LLC v. Bianco

09-2017-cv
Old St. George’s LLC, et al. v. Bianco, et al.

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 SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 30th day of July, two thousand and ten.
4
5 PRESENT:
6 ROSEMARY S. POOLER,
7 DEBRA ANN LIVINGSTON,
8 Circuit Judges,
9 DAVID G. TRAGER,
10 District Judge.*
11 _________________________________________
12
13 OLD ST. GEORGE’S LLC, ATK CONSULTING INC., and THOMAS DECHIARO,
14
15 Plaintiffs-Appellants,
16
17 v. (09-2017-cv)
18
19 NICHOLAS BIANCO, individually; LOUIS CAMPISI, individually; LINDA COOPER,
20 individually; BRUCE BARBER, individually; JOHN TEGEDER, individually; WILLIAM D.
21 GREGORY, individually; TOWN OF YORKTOWN; GEORGE OROS, individually; and
22 COUNTY OF WESTCHESTER,
23
24 Defendants-Appellees.
25 _________________________________________
26

*
The Hon. David G. Trager, of the United States District Court for the Eastern District of
New York, sitting by designation.

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 1 FOR PLAINTIFFS-APPELLANTS: ANDREW J. CAMPANELLI, Campanelli & Associates,
2 P.C., Mineola, NY.
3
4 FOR DEFENDANTS-APPELLEES: BRIAN SOKOLOFF , Sokoloff Stern LLP, Westbury,
5 NY, for Nicholas Bianco.
6
7 RALPH F. SCHOENE , Vouté, Lohrfink, Magro &
8 Collins, LLP, White Plains, NY, for Linda Cooper.
9
10 KAREN LEE WAGNER , Wormser, Kiely, Galef &
11 Jacobs, LLP, White Plains, NY, for Bruce Barber,
12 John Tegeder, William D. Gregory, and the Town of
13 Yorktown.
14
15 MARTIN G. GLEESON , Associate County Attorney
16 (Stacey Dolgin-Kmetz, Chief Deputy County
17 Attorney, on the brief), for Charlene M. Indelicato,
18 Westchester County Attorney, White Plains, NY, for
19 George Oros and County of Westchester.
20
21 William H. Bave, Jr., Wilson, Bave, Conboy, Cozza
22 & Couzens, P.C., White Plains, NY, for Louis
23 Campisi.
24
25 Appeal from a judgment of the United States District Court for the Southern District of New

26 York (Smith, M.J.).

27 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

28 that the judgment of the district court be AFFIRMED.

29 Plaintiffs-Appellants Thomas DeChiaro and the closely held companies of which he is

30 principal, Old St. George’s LLC and ATK Consulting Inc. (collectively “appellants”), appeal from

31 a May 8, 2009 decision and order of the United States District Court for the Southern District of

32 New York (Lisa Margaret Smith, Magistrate Judge) dismissing appellants’ complaint alleging

33 violations of 42 U.S.C. § 1983 against defendants-appellees, individual officers of the Town of

34 Yorktown, New York; the Town itself; Westchester County, New York; and a county legislator.

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 1 We assume the parties’ familiarity with the facts and procedural history of the case, as well as with

2 the issues presented on appeal.

3 We review the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

4 de novo, taking the complaint’s “factual allegations to be true and drawing all reasonable inferences

5 in the plaintiff’s favor.” Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). We need not credit “legal

6 conclusions” in the complaint or “threadbare recitals of the elements of a cause of action, supported

7 by mere conclusory statements.” Id. at 72 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009))

8 (internal quotation marks and alteration omitted). “To survive a motion to dismiss, a complaint must

9 plead enough facts to state a claim to relief that is plausible on its face.” Ruotolo v. City of N.Y., 514

10 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

11 “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short

12 of the line between possibility and plausibility of entitlement to relief.” Iqbal, 129 S. Ct. at 1949

13 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

14 With respect to appellants’ claims for denial of procedural and substantive due process, we

15 detect no error in the district court’s resolution of these claims and therefore affirm their dismissal

16 for substantially the reasons set forth in the district court’s thorough and well-reasoned opinion. See

17 Old St. George’s LLC v. Bianco, No. 08 Civ. 5321, slip op. at 12-19 (S.D.N.Y. May 8, 2009).

18 Because appellants do not raise any arguments on appeal relating to the district court’s dismissal of

19 all constitutional claims against Westchester County and appellants’ state law claim for breach of

20 the covenant of good faith, we deem any challenge to those rulings to be waived. See Norton v.

21 Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). Finally, with respect to appellants’ claims relating

22 to the alleged interference by officials of the Town of Yorktown with appellants’ ability to access

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 1 the Town’s public records, we agree with the district court that the complaint alleges, at best, only

2 a violation of New York’s Freedom of Information Law, and not a federal constitutional claim. “[A]

3 violation of state law is not cognizable under § 1983.” Pollnow v. Glennon, 757 F.2d 496, 501 (2d

4 Cir. 1985).

5 We also affirm the dismissal of appellants’ First Amendment retaliation claims. The claim

6 pursued on appeal alleges that appellees thwarted DeChiaro’s ability to seek inclusion of his

7 property in a New York State “Agricultural District,” in violation of appellants’ rights to petition

8 the government for redress of grievances. To state a First Amendment retaliation claim a plaintiff

9 must adequately plead that “(1) he has an interest protected by the First Amendment; (2) defendants’

10 actions were motivated or substantially caused by his exercise of that right; and (3) defendants’

11 actions effectively chilled the exercise of his First Amendment right.” Kuck v. Danaher, 600 F.3d

12 159, 168 (2d Cir. 2010) (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). The

13 district court concluded that DeChiaro had not engaged in any conduct protected by the First

14 Amendment. This is a question that has not been resolved by our Circuit, and we do not resolve it

15 here. Instead, we conclude that appellants’ complaint is deficient in two other respects.

16 First, the complaint alleges no “actual chill” in DeChiaro’s speech caused by appellee’s

17 alleged actions. See, e.g., Kuck, 600 F.3d at 168; Curley, 268 F.3d at 73. Second, the complaint

18 does not plausibly allege that DeChiaro’s decision to seek inclusion into the Westchester

19 Agricultural District “motivated or substantially caused” any of the adverse actions complained of.

20 See Kuck, 600 F.3d at 168 (noting that a retaliation claim requires “a causal connection between the

21 adverse action and the protected speech”). With respect to the allegation that appellees somehow

22 caused the County to “abstain” from rendering a decision on DeChiaro’s application, the County’s

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 1 initial recommendation that DeChiaro’s land be included in the Agricultural District indicated that

2 inclusion was contingent on DeChiaro making “a good faith effort to secure all local permits and

3 approvals.” App’x at 164. The complaint nowhere alleges that DeChiaro made any applications to

4 the Town for any such permits, even though the complaint does allege that DeChiaro was instructed

5 to do so by a Town official if he wanted the development of his property to go forward. Thus it is,

6 at best, just as plausible that the County failed to act on DeChiaro’s Agricultural District application

7 for the perfectly lawful reason that he failed to seek the required local permits and approvals than

8 for any unlawful reason. See Iqbal, 129 S. Ct. at 1949. With respect to the allegation that appellees

9 took various other retaliatory actions against DeChiaro, the complaint does not allege other than in

10 conclusory fashion that these actions were motivated by DeChiaro’s Agricultural District

11 application, and includes no other facts, such as a chronology of events, that would lend plausibility

12 to the allegations.

13 Finally, because the complaint fails to state a claim for violations of § 1983, the conspiracy

14 claim must also necessarily fail. See Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009).

15 We have considered appellants’ remaining arguments on appeal relevant to our disposition

16 and conclude that they are without merit. For the foregoing reasons, the judgment of the district

17 court is AFFIRMED.

18

19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22

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