Konrad v. Epley

13-4885
Konrad v. Epley

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY 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 SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 5th day of December, two thousand fourteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 REENA RAGGI,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 EVELYN KONRAD,
13 Plaintiff-Appellant,
14
15 -v.- 13-4885
16
17 MARK EPLEY, PAUL ROBINSON, ELBERT W.
18 ROBINSON, JR., DENIS GUERIN, MELINDA
19 QUINTIN, WILLIAM BROWN, and DONALD
20 QUINTIN,
21 Defendants-Appellees.
22 - - - - - - - - - - - - - - - - - - - -X
23
24 FOR APPELLANT: EVELYN KONRAD, New York, New
25 York.
26

1
 1 FOR APPELLEES: DAVID H. ARNTSEN, Devitt
2 Spellman Barrett, LLP,
3 Smithtown, New York.
4
5 Appeal from a judgment of the United States District
6 Court for the Eastern District of New York (Bianco, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 AFFIRMED.
11
12 Plaintiff-appellant Evelyn Konrad appeals from the
13 judgment of the United States District Court for the Eastern
14 District of New York (Bianco, J.), granting defendants-
15 appellees’ motion to dismiss and denying her motion to
16 amend. We assume the parties’ familiarity with the
17 underlying facts, the procedural history, and the issues
18 presented for review.
19
20 We review de novo the grant of a motion to dismiss,
21 Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d
22 166, 176 (2d Cir. 2013), and the denial as futile of a
23 motion to amend, Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
24 2014). Upon such review, we affirm the district court for
25 substantially the reasons set forth in its decision below.
26
27 Among other deficiencies addressed by the district
28 court, Konrad’s complaint fails to identify a
29 constitutionally protected interest. Land use decisions by
30 a municipal regulator do not implicate a constitutionally
31 protected property interest unless the regulator lacked
32 discretion to make the decision it did. Gagliardi v. Vill.
33 of Pawling, 18 F.3d 188, 191-93 (2d Cir. 1994). Konrad
34 alleges that the Village defendants acted unlawfully by
35 amending a zoning ordinance and approving private
36 construction consistent with the ordinance as amended, in
37 contravention of the Village’s pre-existing comprehensive
38 plan.1 Under New York law, however, a town may enact zoning

1
“Village defendants” refers to Mark Epley, Paul
Robinson, and Elbert W. Robinson, Jr., all of whom
participated in the Village of Southampton’s land use
decisions in some way. Konrad’s constitutional claims
against Denis Guerin, Melinda Quintin, William Brown, and
Donald Quintin--the private defendants--fail because
“[a]ction taken by private entities with the mere approval
2
 1 ordinances that supersede its comprehensive plan. Orange
2 Lake Associates, Inc. v. Kirkpatrick, 21 F.3d 1214, 1223-24
3 (2d Cir. 1994). Accordingly, the Village defendants’ land
4 use decisions violated no protected constitutional right,
5 and Konrad’s failure to receive notice of those decisions
6 did not violate procedural due process. Gagliardi, 18 F.3d
7 at 193 (“The deprivation of a procedural right to be heard,
8 however, is not actionable when there is no protected right
9 at stake.”).
10
11 For the foregoing reasons, and finding no merit in
12 Konrad’s other arguments, we hereby AFFIRM the judgment of
13 the district court.
14
15 FOR THE COURT:
16 CATHERINE O’HAGAN WOLFE, CLERK
17
18

or acquiescence of the State is not state action,” Tancredi
v. Metro. Life Ins. Co., 316 F.3d 308, 313 (2d Cir. 2003)
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
52 (1999)), and because, as discussed above, Konrad has
failed to allege any constitutional violation by the state
actors.
3