12-2076
Miguel Ceja v. Paul Vacca, et al.
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16th day of November, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOHN M. WALKER, Jr.,
9 Circuit Judge,
10 SANDRA DAY O’CONNOR,
11 Associate Justice (Retired).*
12
13 - - - - - - - - - - - - - - - - - - - -X
14 MIGUEL CEJA,
15 Appellant,
16
17 -v.- 12-2076
18
19 PAUL VACCA, DEPUTY COMMISSIONER AND
20 BUILDING OFFICIAL OF THE CITY OF NEW
21 ROCHELLE, and THE CITY OF NEW ROCHELLE,
22 Appellees.
23
24 - - - - - - - - - - - - - - - - - - - -X
*
The Honorable Sandra Day O’Connor, Associate Justice
(Retired) of the United States Supreme Court, sitting by
designation.
1
1 FOR APPELLANT: Steven J. Harfenist, Friedman
2 Harfenist Kraut & Perlstein LLP,
3 Lake Success, New York (Angelina
4 L. Fryer, Friedman Harfenist
5 Kraut & Perlstein LLP, Lake
6 Success, New York, on the
7 brief).
8
9 FOR APPELLEE: Robert J. Ponzini, Gaines,
10 Gruner, Ponzini & Novick, LLP,
11 New York, New York (Denise M.
12 Cossu, Gaines, Gruner, Ponzini &
13 Novick, LLP, New York, New York,
14 on the brief).
15
16 Appeal from an order of the United States District
17 Court for the Southern District of New York (Briccetti, J.).
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgment of the district court be
21 AFFIRMED.
22
23 Miguel Ceja appeals from two orders entered on December
24 7, 2011, and April 16, 2012, in the United States District
25 Court for the Southern District of New York (Briccetti, J.)
26 dismissing his procedural and substantive due process
27 claims. We assume the parties’ familiarity with the
28 underlying facts, the procedural history, and the issues
29 presented for review.
30
31 We review de novo a district court’s decision to grant
32 a motion to dismiss. Arar v. Ashcroft, 585 F.3d 559, 567
33 (2d Cir. 2009) (in banc). In doing so, we accept as true
34 the complaint’s factual allegations and construe all
35 reasonable inferences in the light most favorable to the
36 plaintiff. Id.
37
38 The complaint challenges a decision by Paul Vacca,
39 Building Official and Deputy Commissioner of the City of New
40 Rochelle (“the City”), revoking a Certificate of Occupancy
41 (“CO”) for Ceja’s two-family dwelling. Vacca found non-
42 compliance with local zoning laws, in particular, violation
43 of a parking regulation prohibiting the storage of
44 commercial vehicles in a residential area. The City had
2
1 made a failed attempt to end this commercial use of the
2 premises in August 2009 by issuing summonses to Ceja, which
3 were later dismissed by a New Rochelle City Court. Vacca
4 then issued an Order to Remedy for failure to comply with
5 City parking requirements in December 2010. When Ceja
6 failed to correct the problem within the prescribed thirty-
7 day period, Vacca revoked the CO.
8
9 Ceja argues that the district court erred in dismissing
10 his procedural and substantive due process claims. We see
11 no error in either ruling. Procedural due process requires
12 that “a deprivation of life, liberty, or property be
13 preceded by notice and opportunity for hearing appropriate
14 to the nature of the case.” Cleveland Bd. of Educ. v.
15 Loudermill, 470 U.S. 532, 542 (1985) (internal quotation
16 marks omitted). According to Ceja, the City failed to
17 provide either notice or an opportunity to be heard.
18
19 However, the Order to Remedy provided both notice and
20 an opportunity to be heard. The Order instructed that Ceja
21 may seek review of the City’s decision, which would not be
22 enforced for at least thirty days, by filing an application
23 with the Bureau of Buildings zoning clerk. Ceja never filed
24 this application, nor did he make an appeal of any kind.
25 Instead, through counsel, Ceja sent a letter rejecting the
26 City’s interpretation of its zoning ordinances.
27
28 The City also afforded Ceja post-deprivation process.
29 The Order informed Ceja that he could file an appeal with
30 the City’s Board of Appeals on Zoning following the CO
31 revocation. He likewise declined to avail himself of this
32 opportunity.
33
34 With respect to his substantive due process claim, Ceja
35 argues that the City’s decision to revoke his CO after
36 approving the commercial use for decades, and after he had
37 expended substantial sums improving the property, was
38 “arbitrary” and “shocks the conscience.” Natale v. Town of
39 Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999) (citing Cnty.
40 of Sacramento v. Lewis, 523 U.S. 833 (1998)). Substantive
41 due process, however, “does not forbid governmental actions
42 that might fairly be deemed arbitrary or capricious and for
43 that reason correctable in a state court lawsuit seeking
44 review of administrative action.” Id. at 263. Only
3
1 “conduct so outrageously arbitrary as to constitute a gross
2 abuse of governmental authority” will give rise to such a
3 claim, id., and the City’s actions here do not approach this
4 standard.1
5
6 Finding no merit in Ceja’s remaining arguments, we
7 hereby AFFIRM the judgment of the district court.
8
9
10 FOR THE COURT:
11 CATHERINE O’HAGAN WOLFE, CLERK
12
1
The City also urges us to dismiss Ceja’s claims on
two additional grounds: (1) Vacca, a government official, is
entitled to qualified immunity, and (2) the City is entitled
to immunity under Monell v. Dep’t of Social Servs., 436 U.S.
658 (1978). Given our affirmance on the merits, we need not
consider these arguments.
4