| Darby Group Cos., Inc., Distribs. v Village of Rockville Ctr.,N.Y. |
| 2007 NY Slip Op 06822 [43 AD3d 979] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Darby Group Companies, Inc., Distributors,Respondent, v Village of Rockville Centre, New York,Appellant. |
—[*1] Salon Marrow Dyckman Newman & Broudy, LLP, New York, N.Y. (Daniel Goldberg ofcounsel), for respondent.
In an action to recover damages pursuant to 42 USC § 1983 for alleged violations ofconstitutional equal protection rights, the defendant appeals from an order of the Supreme Court,Nassau County (Feinman, J.), entered September 20, 2006, which denied its motion for summaryjudgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint is granted.
The plaintiff Darby Group Companies, Inc., Distributors (hereinafter Darby), the owner ofcommercial property in the defendant Village of Rockville Centre, commenced this action torecover damages pursuant to 42 USC § 1983 for alleged violations of constitutional equalprotection rights, alleging that the Village intentionally, unequally, and selectively enforced thelocal laws in an attempt to stop Darby's contract purchasers (nonparties Home Depot and ChasePartners) of the subject property from obtaining necessary approvals to develop Darby's property.The Village moved for summary judgment dismissing the complaint, claiming, inter alia, thatDarby has not submitted any evidence to show that the Village's actions were motivated bymalevolent intent or animus directed at Darby. Darby responded by claiming that the VillageBuilding Superintendent selectively enforced the subject local laws against its contractpurchasers to thwart the necessary [*2]approvals for thedevelopment of the subject property with malicious intent. Darby argued that it raised a triableissue of fact as to whether the Village acted with malicious intent with proof demonstrating thatthe Village approved other similarly situated developers' requests and/or applications, while notapproving its contract purchasers' application, even though the subject local laws applied tothem. The Supreme Court agreed with Darby, and denied the Village's motion. We reverse.
A violation of equal protection sounding in selective enforcement arises where "first, aperson (compared with others similarly situated) is selectively treated and second, such treatmentis based on impermissible considerations such as race, religion, intent to inhibit or punish theexercise of constitutional rights, or malicious or bad faith intent to injure a person" (Bower Assoc. v Town of Pleasant Val.,2 NY3d 617, 631 [2004]). Since Darby does not allege selective treatment based on race,religion, or punishment for the exercise of constitutional rights, it must demonstrate that theVillage singled out its contract-purchasers' building permit applications "with malevolent intent"(Bower Assoc. v Town of Pleasant Val., supra at 631).
The Village met its initial burden of demonstrating its entitlement to judgment as a matter oflaw by tendering admissible evidence establishing that its selective treatment was not done withany malicious or bad faith intent to injure Darby (see Bower Assoc. v Town of Pleasant Val.,supra; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Zuckerman v City of New York, 49 NY2d 557 [1980]). Darby's proof of two successfulCPLR article 78 petitions brought by Chase Partners against the Village in which determinationsagainst Chase Partners' applications were determined to be arbitrary and capricious, communityopposition to the Home Depot project, and Village favoritism toward two projects, one involvinga hotel and the other involving a storage facility, was insufficient to raise a triable issue of fact asto whether the Village singled out Darby's contract purchasers "with malevolent intent"(Bower Assoc. v Town of Pleasant Val., supra at 631; see Vera v Tue, 73 F3d604, 610 [1996]).
Accordingly, the Supreme Court improperly denied the Village's motion for summaryjudgment dismissing the complaint. Rivera, J.P., Florio, Dillon and Carni, JJ., concur.