20-157-cv
Perricone-Bernovich v. Village of Head of the Harbor
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of April, two thousand twenty-one.
PRESENT: AMALYA L. KEARSE,
JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
Circuit Judges.
BARBARA PERRICONE-BERNOVICH,
Plaintiff-Appellant,
JOHN BERNOVICH, JOHN PERRICONE,
Plaintiffs,
v. 20-157-cv
ANTHONY TOHILL, VILLAGE ATTORNEY FOR
VILLAGE OF HEAD OF THE HARBOR; MR. HARRIS,
BUILDING INSPECTOR FOR VILLAGE OF HEAD OF
THE HARBOR; MARGARET O’KEEFE, CLERK OF THE
VILLAGE FOR VILLAGE OF HEAD OF THE HARBOR;
HARLAN FISCHER, CHAIRMAN, MEMBER OF THE
PLANNING BOARD; CRAIG HOLLAND, MEMBER OF
THE PLANNING BOARD; VINCENT PIZZULLI,
MEMBER OF THE PLANNING BOARD; ALYSON
SVATEK, MEMBER OF ZONING BOARD OF APPEALS;
PHILLIP PALMEDO, MEMBER OF THE PLANNING
BOARD; RONALD DEBOER, MEMBER OF ZONING
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BOARD OF APPEALS; KATHLEEN DIANA,
CHAIRWOMAN, MEMBER OF ZONING BOARD OF
APPEALS; KENNETH MAHER, MEMBER OF ZONING
BOARD OF APPEALS; WILLIAM ANDERSON, MEMBER
OF ZONING BOARD OF APPEALS; STEPHEN NEIDELL,
MEMBER OF THE PLANNING BOARD; THE VILLAGE
OF HEAD OF THE HARBOR,
Defendants-Appellees. *
FOR PLAINTIFF-APPELLANT: Barbara Perricone-Bernovich, pro se,
Lenhartsville, PA.
FOR DEFENDANTS-APPELLEES: David H. Arntsen, Joshua S. Shteierman,
Law Offices of Thomas M. Volz, PLLC,
Neconset, NY; Kelly E. Wright, Scahill
Law Group, P.C., Bethpage, NY.
Appeal from the December 12, 2019 judgment of the United States District Court for the
Eastern District of New York (William F. Kuntz, II, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
Appellant Barbara Perricone-Bernovich, proceeding pro se, appeals from the District Court’s
judgment dismissing her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Perricone-
Bernovich, with her husband, John Bernovich, and brother, John Perricone, sued the Village of
Head of the Harbor, NY (the “Village”) and individual Village officials and employees under the
Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., in connection with the denial of her application
for a zoning variance, alleging that the decision was arbitrary and capricious and reflected
discrimination based on her and her brother’s disabilities. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6). Forest Park Pictures
v. Universal Television Network, 683 F.3d 424, 429 (2d Cir. 2012). The complaint must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Although all allegations in the complaint are assumed to be true, this tenet does not
apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se litigants are entitled to
*
The Clerk of Court is directed to amend the caption as set forth above.
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“special solicitude,” and their complaints are interpreted to raise the strongest claims they suggest.
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks omitted). Further, we
may affirm the dismissal “on any ground that finds support in the record.” Dettelis v. Sharbaugh, 919
F.3d 161, 163 (2d Cir. 2019). The District Court did not err in finding that the complaint in this
action failed to state a claim for relief. 1
The FHA provides that it is unlawful “[t]o discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter” because of a disability. 42 U.S.C.
§ 3604(f)(1). These provisions are applicable to municipal zoning decisions. Forest City Daly Hous.,
Inc. v. Town of North Hempstead, 175 F.3d 144, 151 (2d Cir. 1999). A plaintiff may demonstrate
disability discrimination under the FHA on a theory of (1) disparate treatment, (2) failure to make a
reasonable accommodation, or (3) disparate impact. Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565,
573 (2d Cir. 2003), superseded by regulation on other grounds.
To proceed on a disparate treatment theory, a plaintiff must allege enough facts to state a
plausible claim that “animus against the protected group was a significant factor in the position
taken by the municipal decision-makers.” Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 606
(2d Cir. 2016) (internal quotation marks omitted). The complaint here failed to satisfy this standard.
The mere fact that the Defendants were aware of Perricone-Bernovich’s disabilities when they
denied her request for a zoning variance—which itself was unrelated to the disabilities—is
insufficient to state a disparate treatment claim. Further, there is nothing in the complaint
suggesting that the alleged impediments that Perricone-Bernovich faced in seeking variances were
different from those faced by similarly-situated applicants without disabilities. The Defendants’ only
reference to the disabilities—the Village Attorney’s observation that Perricone-Bernovich’s husband
had previously characterized her as an “invalid”—came in the context of a question about the need
for a three-car garage, relevant to the issue of whether a house could feasibly be built with a variance
on a lesser scale. 2 The term “invalid,” in this context, does not in itself indicate animus against
people with disabilities.
1
The District Court’s decision set forth no reasoning for its conclusion that Perricone-
Bernovich’s complaint was without merit. While the Federal Rules of Civil Procedure do not
require a district court to provide reasoning when granting a Rule 12 motion, an explanation
facilitates this Court’s review, and “notions of simple fairness suggest that a pro se litigant should
receive an explanation before his or her suit is thrown out of court.” Lucas v. Miles, 84 F.3d 532, 535
(2d Cir. 1996); see Fed. R. Civ. P. 52(a)(3). Accordingly, although the District Court did not err in its
dismissal of Perricone-Bernovich’s complaint, we reiterate our hope that this type of summary
dismissal will continue to be the exception among judges in this Circuit.
2
See Village Code ch. 165, art. 12 § 165-55(3) (providing that the Zoning Board of Appeals will
grant the “minimum variance that it shall deem necessary and adequate to address the unnecessary
3
To proceed on a failure-to-accommodate theory, a plaintiff must allege, inter alia, that the
denied “accommodation was likely necessary to afford the handicapped person an equal opportunity
to use and enjoy the dwelling.” Olsen v. Stark Homes, Inc., 759 F.3d 140, 156 (2d Cir. 2014). But
Perricone-Bernovich did not argue that her requests were related to her disabilities. Instead, she
wanted permission to build closer to the road than the Village usually allowed to accommodate
features like a three-car garage used to store an antique car, and she preferred the selected lot
because it was conveniently located and relatively inexpensive.
The complaint likewise failed to state a claim on a disparate impact theory because it did not
include any allegations about the effect of the Defendants’ policies on people with disabilities as a
group, or compare that effect to the effect on the broader population. See Tsombanidis, 352 F.3d at
574–75 (a prima facie case under a disparate impact theory requires a showing of “a significantly
adverse or disproportionate impact on persons of a particular type” produced by a facially neutral
practice (emphasis and internal quotation marks omitted)).
Finally, the complaint cannot be construed to state a plausible claim for a constitutional
violation under 42 U.S.C. § 1983. The complaint’s characterization of the Defendants’ actions as
“arbitrary and capricious” suggests an attempt to raise a substantive due process claim. But to raise
such a claim, Perricone-Bernovich would have had to allege acts that were “arbitrary, conscience-
shocking, or oppressive in the constitutional sense, not merely incorrect or ill-advised.” Ferran v.
Town of Nassau, 471 F.3d 363, 369–70 (2d Cir. 2006) (internal quotation marks omitted). The
allegations in this case cannot be so characterized. Nor can the complaint be construed to state a
plausible equal protection claim, given the absence of allegations showing that the Defendants
treated the plaintiffs differently from others who were similarly situated. See Diesel v. Town of
Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000) (“The Equal Protection Clause of the Fourteenth
Amendment is ‘essentially a direction that all persons similarly situated should be treated
alike.’” (quoting City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 439 (1985))).
CONCLUSION
We have reviewed all of the arguments raised by Perricone-Bernovich on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
hardship proved by the applicant, and at the same time preserve and protect the character of the
neighborhood and the health, safety and welfare of the community”).
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