10-515-cv
Androme Leather Corp. v. City of Gloversville
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 10 th day of December, two thousand and ten.
5
6 PRESENT: WILFRED FEINBERG,
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 ANDROME LEATHER CORPORATION,
14
15 Plaintiff-Appellant,
16
17 -v.- 10-515-cv
18
19 CITY OF GLOVERSVILLE, ZONING BOARD OF
20 APPEALS OF THE CITY OF GLOVERSVILLE,
21 D. ROBERT ROBBINS JR., THOMAS RENDA,
22 FRANCES MOSCONNI, MARGARET RALBOVSKY,
23 GARRISON SEELOW, DEBORAH ASHE, KELLY
24 OCTIGAN, KAREN SMITH a/k/a KAT, MICHAEL
25 CAPPARELLO, ABRAHAM SEROUSSI, COMMON
26 COUNCIL OF THE CITY OF GLOVERSVILLE,
27 ANTHONY J. CARUSO, MARIE A. SCHUTZ,
28 FRANK A. CLEMENTE, ANTHONY P. CHRISTIANO,
29 PAUL E. REID, MARYLOUISE R. MELE,
30
31 Defendants-Appellees.
32
33
1 FOR APPELLANT: LEWIS B. OLIVER, JR., ESQ., Oliver Law
2 Office, Albany, NY.
3
4 FOR APPELLEES: PETER G. BARBER, ESQ., Murphy, Burns,
5 Barber & Murphy, LLP, Albany, NY.
6
7 Appeal from the Northern District of New York (Suddaby,
8 J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13 Appellant appeals from an order of the United States
14 District Court for the Northern District of New York
15 (Suddaby, J.), which granted summary judgment in favor of
16 the defendants. We assume the parties’ familiarity with the
17 underlying facts, the procedural history, and the issues
18 presented for review.
19 A “class of one” equal protection claim requires the
20 claimant to demonstrate that they share an “extremely high
21 degree of similarity” with the “person[] to whom they
22 compare themselves.” Clubside, Inc. v. Valentin, 468 F.3d
23 114, 159 (2d Cir. 2006) (citations omitted). Further, the
24 claimant must show that:
25 (i) no rational person could regard the
26 circumstances of the plaintiff to differ from those
27 of a comparator to a degree that would justify the
28 differential treatment on the basis of a legitimate
29 government policy; and (ii) the similarity in
2
1 circumstances and difference in treatment are
2 sufficient to exclude the possibility that the
3 defendant acted on the basis of a mistake.
4
5 Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005)
6 (citations omitted) (partially abrogated on other grounds by
7 Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008)).
8 Here, Appellant differed from its proffered comparator,
9 JBF, in at least one important respect. JBF had at one
10 point enjoyed a “grandfathered” right to engage in the
11 process of “beaming,” whereas Appellant had never enjoyed
12 such a right and applied to obtain a use variance from the
13 zoning ordinance in question. By itself, this difference
14 raises “the possibility that the defendant acted on the
15 basis of a mistake,” negating an essential element of the
16 “class of one” claim and rendering appropriate an award of
17 summary judgment for the defendants.
18 We have considered Appellant’s remaining contentions,
19 and find them without merit.
20 For the foregoing reasons, the judgment of the district
21 court is hereby AFFIRMED.
22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
3