DeVecchis v. Scalora

179 F. Supp. 3d 208, 2016 U.S. Dist. LEXIS 43234, 2016 WL 1273168
CourtDistrict Court, D. Connecticut
DecidedMarch 31, 2016
DocketCIVIL ACTION NO.: 3:12-cv-01575 (VAB)
StatusPublished
Cited by2 cases

This text of 179 F. Supp. 3d 208 (DeVecchis v. Scalora) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeVecchis v. Scalora, 179 F. Supp. 3d 208, 2016 U.S. Dist. LEXIS 43234, 2016 WL 1273168 (D. Conn. 2016).

Opinion

RULING ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

1. INTRODUCTION

This case concerns events leading to the closing of Tyler DeVecchis’s bar, and his filing for bankruptcy protection. DeVec-chis, his company, Main Street Productions, LLC, and .the bankruptcy trustee, John J. O’Neil, Jr., (collectively, “Plaintiffs”) filed this action against the City of Middletown (“Middletown” or the “City”), Sebastian N. Giuliano, Patrick T. McMahon, Gregory B. Sneed, William Warner, and Bruce E. Driska (collectively, the “Middletown Defendants”), as well as Jerry Farrell, Jr. and Sebastian Scalora.1 All remaining Defendants move for summary judgment as to all counts.

For the reasons stated herein, the Mid-dletown Defendants’ motion is GRANTED IN PART AND DENIED IN PART, and Sebastian Scalora’s motion is FOUND AS MOOT. The Court concludes that no genuine dispute of material fact exists with respect to Plaintiffs’ claims arising under federal law, and declines to exercise supplemental jurisdiction over the remaining state law claims.

II. FACTS2

On or about September 6, 2009, Chris Lieder applied to the Middletown Planning [212]*212and Zoning Commission (“Zoning Commission”) for a Special Exception to convert a building on Main Street in Middletown into a bar/restaurant. Middletown Defs.’ L.R. 56(a)l Stmt. (ECF No. 168-2) and Pis.’ L.R. 56(a)2 Stmt. (ECF No. 169-2) [hereinafter “Stmts.”] ¶ 1. As presented to the Commission, the initial concept for the establishment, then called Bungalow, was an upscale martini bar. Id. ¶ 2. On October 11, 2006, the Zoning Commission granted Lieder’s application for a Special Exception to use the building as a nightclub (the “Original Special Exception”). Id. ¶ 8. The Original Special Exception was subject to four conditions, one of which stated that, “[t]he Special Exception form filed on the land records shall reference the business plan and the discussions at the public hearing and require that any change in concept be approved as a new Special Exception by the Planning and Zoning Commission[.]” Id. ¶ 5.

In 2008, DeVecchis became acquainted with Lieder, and they formed a business partnership to operate Bungalow, which later was renamed Public Bar & Grill (“Public”). Id. ¶ 6. On or about June 11, 2007, DeVecchis and Lieder formed Main Street Productions, LLC (“MSP”) to operate Public. Id. If 7. DeVecchis and Lieder were members of MSP. Id. ¶ 8. They credited Public’s profits and losses to MSP, and paid employees from an account maintained by MSP. Id. ¶ 9.

Before opening Public for business, De-Vecchis incurred substantial debt, including approximately $100,000 from an individual lender, and approximately $350,000 from banks. Id. ¶ 10. DeVecchis’s mother and brother borrowed a portion of the bank funds, and gave those funds to De-Vecchis. for use in Public’s business. Id. ¶ 11.

From July 2008 until July 2009, Lieder Haised with Middletown officials regarding permits, applications, and land use issues. During this time, DeVecchis and Public experienced no trouble with any Middle-town official. Id. ¶ 12. On or. about July 2, 2008, . Lieder received a letter stating that, on June 24, 2008, the Middletown Building Department had inspected Public’s premises and determined that it met all requirements of the Connecticut Building Code. Id. ¶ 13.

On or about July 9, 2008, Public opened for business.. Id ¶ 14. DeVecchis’s-2009 tax [213]*213return indicates that MSP posted a loss of $80,041. Id. ¶ 16. On or about May 2009, the partnership between Lieder and De-Vecchis broke down, and DeVecchis engaged an attorney to dissolve the partnership. Id. ¶ 17. On or about June 2009, Lieder released his interest in MSP and Public, leaving DeVecchis the sole member of MSP and sole owner of Public. Id. ¶ 18. At that time, DeVecchis knew that Public owed delinquent taxes from 2008 and 2009. Id. ¶ 19.

On or about October 20, 2009, a building permit application for interior renovations was submitted to the Middletown Building Department. Defs.’ Ex. UU; Defs.’ Ex. W ¶'6-7. It listed “Public” as the applicant, listed Public’s address as the applicant’s address, and listed “tyles@publicct.com” as the applicant’s e-mail address.3 Id. De-Vecchis attests that he did not submit this application. Pis.’ Ex. 9 ¶ 9.

On or about November 2009, DeVecchis and an attorney, Sebastian Scalora, decided to construct a lounge on Public’s premises (the “Lounge”). See Stmts. ¶ 20.4 Scalora was responsible for obtaining a building permit to construct the Lounge. Scalora had a previous business relationship with Middletown’s then mayor, Sebastian Giuliano (“Mayor Giuliano”). De-Vecchis Dep. at 56; Stmts. ¶ 23.

Middletown’s Chief Building Official, John C. Parker, Jr., sent DeVecchis a letter, dated November 3, 2009, stating that the building department could not issue the requested permit because municipal real estate taxes were delinquent for the property. Stmts. ¶ 21; Defs.’ Ex. L. The letter advised DeVecchis to make arrangements with the tax collector to pay the outstanding taxes so that -the building department could be in a position to issue the permit. Defs.’ Ex. L. DeVecchis does not remember receiving this letter. Pis.’ Ex. 9 ¶ 10. .

Parker sent DeVecchis another letter, dated March 3, 2010, informing him that, “as stated in two previous letters dated November 3, 2009 and February 19, 2010,” the building department could not issue the requested permit because Public’s delinquent taxes of $7,392.64 still had not been paid. Defs.’ Ex. KK. The letter concluded, “[u]ntil these taxes are paid the renovated portion of the building performed under Permit # 4739 can not [sic] be occupied. I will post the rooms unsafe to occupy until the matter is resolved.” Id.

The Lounge opened for business on November 25, 2009. See Stmts. ¶26. On or about December 1, 2009, DeVecchis received a cease and desist order (the “Order”) from Middletown’s Zoning Enforcement Officer, Bruce Driska, instructing him to cease operation of the Lounge until Zoning Commission approval was obtained. Id. ¶ 27; Defs.’ Ex. M. The Order contained the conditions imposed on the Original Special Exception, and noted that it was Driska’s understanding that DeVec-chis had been advised to submit an application to the Zoning Commission. Defs.’ Ex. M. DeVecchis attests that he did not see the Original Special Exception until sometime after he received the Order. Pis.’ Ex. 9 ¶¶ 3-5.

Almost immediately after receiving the Order, DeVecchis engaged another attor[214]*214ney, Ralph Wilson. Stmts. ¶ 29. In an email dated December 1, 2009' and addressed to Attorney Wilson, William Warner, the Director of the Middletown Department of Planning, Development, and Conservation, wrote that DeVecchis had applied for a building permit that was never issued because of delinquent taxes, and that all of the construction done on the Lounge was done without a permit. Id. ¶ 30; Defs.’ Ex. N.5

Shortly after receiving the Order, DeVecchis attended a meeting at ’Mayor Giuliano’s office.

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Bluebook (online)
179 F. Supp. 3d 208, 2016 U.S. Dist. LEXIS 43234, 2016 WL 1273168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devecchis-v-scalora-ctd-2016.