| Matter of Nocro, Ltd. v Russell |
| 2012 NY Slip Op 02694 [94 AD3d 894] |
| April 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of Nocro, Ltd., Petitioner/Plaintiff, and Heritage atCutchogue, LLC, Appellant, v Scott A. Russell et al.,Respondents. |
—[*1] Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Phil Siegel ofcounsel), for respondents.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review certaindeterminations of the Town Board of the Town of Southold dated January 20, 2009, whichadopted Local Law Nos. 1, 2, and 3 (2009) of Town of Southold, and action, among other things,to recover damages pursuant to 42 USC § 1983 for deprivation of constitutional rightsunder color of state law, the petitioner/plaintiff Heritage at Cutchogue, LLC, appeals, as limitedby its brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), datedJune 15, 2010, as granted those branches of the respondents/defendants' motion which werepursuant to CPLR 3211 (a) to dismiss the thirteenth cause of action insofar as asserted by itagainst the respondents/defendants Scott A. Russell, Louisa P. Evans, Thomas H. Wickham,Albert J. Krupski, Jr., William P. Ruland, Vincent M. Orlando, Jerilyn B. Woodhouse, GeorgeSolomon, Joseph L. Townsend, Kenneth L. Edwards, and Martin H. Sidor, in their individualcapacities, and the fourteenth cause of action insofar as asserted by it against all of therespondents/defendants.
Ordered that the order is affirmed insofar as appealed from, with costs.
"On a motion to dismiss pursuant to CPLR 3211 . . . the petition-complaintalone must be considered, and all of its allegations are deemed true and afforded the benefit ofevery favorable inference" (Matter ofBloodgood v Town of Huntington, 58 AD3d 619, 621 [2009]).
Here, only the thirteenth and fourteenth causes of action sought relief against the individualrespondents/defendants. The thirteenth cause of action sought to recover damages pursuant to 42USC § 1983 for violation of the appellant's equal protection and due process rights undercolor of state law. The fourteenth cause of action sought to recover damages, in effect, pursuantto 42 USC § 1985 (3) for conspiracy to deprive the appellant of property in the absence ofdue process of law, the equal protection of the laws, and the privileges and immunities secured tothe appellant by the laws and Constitution of the United States.
The Supreme Court properly granted that that branch of the respondents/defendants motionwhich was to dismiss the thirteenth cause of action insofar as asserted by the appellant againstthe individual members of the Planning Board of the Town of Southold (hereinafter the PlanningBoard), the respondents/defendants Scott A. Russell, Louisa P. Evans, Thomas H. Wickham,Albert J. Krupski, Jr., William P. Ruland, and Vincent M. Orlando (hereinafter [*2]collectively the Planning Board members) in their individualcapacities. The Planning Board members had no role in adopting the challenged zoningordinance. Furthermore, the petition/complaint failed to allege the personal involvement of anyindividual Planning Board member (seeShelton v New York State Liq. Auth., 61 AD3d 1145, 1148-1149 [2009]).
Insofar as the thirteenth cause of action alleges that the individual members of the TownBoard of the Town of Southold—the respondents/defendants Jerilyn B. Woodhouse,George Solomon, Joseph L. Townsend, Kenneth L. Edwards, and Martin H. Sidor (hereinaftercollectively the Town Board members)—violated the appellants' constitutional rights byvoting to enact the challenged zoning ordinance, the Town Board members are entitled toabsolute legislative immunity in the adoption of a zoning ordinance (see Bogan vScott-Harris, 523 US 44, 49, 55 [1998]; Almonte v City of Long Beach, 478 F3d100, 107 [2007]; Ruston v Town Bd. for Town of Skaneateles, 2009 WL 3199194, *4,2009 US Dist LEXIS 90964, *10-11 [ND NY 2009], affd 610 F3d 55 [2010], certdenied 562 US —, 131 S Ct 824 [2010]; The Anderson Group, LLC v City ofSaratoga Springs, 557 F Supp 2d 332, 342-344 [2008], affd in part 336 Fed Appx 21[2d Cir 2009]).
Finally, the Supreme Court properly concluded that the appellant failed to state a cause ofaction under the fourteenth cause of action alleging conspiracy, in effect, pursuant to 42 USC§ 1985 (3). The appellants' contentions regarding conspiracy are vague and conclusory, andfail to offer sufficient factual details regarding an agreement among the respondents/defendantsto deprive the appellant of property in the absence of due process of law, the equal protection ofthe laws, or privileges and immunities secured to the appellant by the laws and the Constitutionof the United States (see Seymour's Boatyard, Inc. v Town of Huntington, 2009 WL1514610, 2009 US Dist LEXIS 45450 [ED NY 2009]; Carmody v City of New York,2006 WL 1283125, 2006 US Dist LEXIS 25308 [SD NY 2006]; Matter of Landmark West! v Tierney,25 AD3d 319, 320 [2006]; Christian v Town of Riga, 649 F Supp 2d 84, 100[2009]).
The appellant's remaining contentions either are without merit or need not be considered inlight of our determination. Rivera, J.P., Leventhal, Roman and Cohen, JJ., concur.