| Fields v Village of Sag Harbor |
| 2012 NY Slip Op 01208 [92 AD3d 718] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Paris Fields, Respondent, v Village of Sag Harbor,Appellant, et al., Defendant. |
—[*1] Law Offices of Stanley E. Orzechowski, P.C., Nesconset, N.Y., for respondent.
In an action, inter alia, to recover damages pursuant to 42 USC § 1983 for thedeprivation of the right to equal protection under color of state law, the defendant Village of SagHarbor appeals, as limited by its brief, from so much of an order of the Supreme Court, SuffolkCounty (Rebolini, J.), dated June 16, 2011, as denied its motion for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff alleges, inter alia, that the defendant Village of Sag Harbor engaged indiscriminatory and selective enforcement of the Village Code against his commercial propertyafter he spoke out against what he believed to be the planned demolition of a local historicproperty. Following the completion of discovery, the Village moved for summary judgmentdismissing the complaint insofar as asserted against it. The plaintiff opposed the motion andcross-moved for summary judgment on the complaint. The Supreme Court denied the motion andcross motion. The Village appeals from so much of the order as denied its motion, and we affirmthe order insofar as appealed from.
A violation of equal protection sounding in selective enforcement arises where "first,a person (compared with others similarly situated) is selectively treated and second, suchtreatment is based on impermissible considerations such as race, religion, intent to inhibit orpunish the exercise 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]; see DarbyGroup Cos., Inc., Distribs. v Village of Rockville Ctr., N.Y., 43 AD3d 979, 980-981[2007]). "The person must be singled out for an impermissible motive not related to legitimategovernmental objectives, which could include personal or political gain, or retaliation for theexercise of constitutional rights" (Sonnev Board of Trustees of Vil. of Suffern, 67 AD3d 192, 203-204 [2009] [citationsomitted]).
To the extent that the plaintiff contends that the Village Code provisions were selectivelyenforced " 'under color of law and pursuant to accepted municipal policy, practice, custom andprocedure,' " thus implicating the Village (id. at 204; see Monell v New York CityDept. of Social Servs., 436 US 658 [1978]), the rule is that "[a] municipal custom or policycan be shown by establishing that an official who is a final policy maker directly committed orcommanded the violation of the [*2]plaintiff's rights" (Sonnev Board of Trustees of Vil. of Suffern, 67 AD3d at 204; see Bassett v City of Rye, 69 AD3d 667, 668 [2010]).
Although the Village submitted prima facie proof demonstrating that its actions were notprompted by an impermissible motive (see Molander v Pepperidge Lake Homeowners Assn., 82 AD3d1180 [2011]; Darby Group Cos.,Inc., Distribs. v Village of Rockville Ctr., N.Y., 43 AD3d 979 [2007]), and that thealleged discrimination did not result from a policy, regulation, or custom of the Village (see Hudson Val. Mar., Inc. v Town ofCortlandt, 79 AD3d 700 [2010]), in opposition, the plaintiff tendered documentary andtestimonial evidence raising a triable issue of fact with respect to these questions sufficient towithstand the Village's motion for summary judgment (see Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192[2009]; Rocky Point Drive-In, L.P. vTown of Brookhaven, 37 AD3d 805 [2007]).
Moreover, the Village, in seeking summary judgment, failed to demonstrate that it treatedother similarly situated property owners as it allegedly had treated the plaintiff (see Weaver v Town of Rush, 1 AD3d920 [2003]; cf. Ardmar Realty Co.v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 519 [2004]). The Village'sargument that the "plaintiff has not and cannot adduce proof that similarly situated businesseswere not subjected to the same requirements," ignores the rule that "a party does not carry itsburden in moving for summary judgment by pointing to gaps in its opponent's proof" (Calderone v Town of Cortlandt, 15AD3d 602, 602-603 [2005] [internal quotation marks omitted]). The Village thereby failedto establish its prima facie entitlement to judgment as a matter of law dismissing the complaintinsofar as asserted against it on the ground that the plaintiff is not similarly situated to otherproperty owners.
Accordingly, the Supreme Court properly denied the Village's motion for summary judgmentdismissing the complaint insofar as asserted against it. Dillon, J.P., Florio, Chambers andRoman, JJ., concur.