Joglo Realties, Inc. v. Seggos

229 F. Supp. 3d 146, 2017 U.S. Dist. LEXIS 118062, 2017 WL 1134775
CourtDistrict Court, E.D. New York
DecidedJanuary 5, 2017
Docket16-CV-1666 (ARR) (CLP)
StatusPublished
Cited by6 cases

This text of 229 F. Supp. 3d 146 (Joglo Realties, Inc. v. Seggos) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joglo Realties, Inc. v. Seggos, 229 F. Supp. 3d 146, 2017 U.S. Dist. LEXIS 118062, 2017 WL 1134775 (E.D.N.Y. 2017).

Opinion

OPINION AND ORDER

ROSS, United States District Judge:

Plaintiffs, Robert Toussie and Joglo Re-alties, Inc.,1 have brought this action against Basil Seggos, the acting commissioner of the New York State Department of Environmental Conservation (“DEC”), in his official capacity, and against Udo Drescher, an attorney employed by the DEC, in his individual capacity. The court previously dismissed plaintiffs’ First Amended Complaint, which raised four claims under 42 U.S.C. § 1983 concerning a pending DEC administrative action, led by Drescher, alleging that plaintiffs committed various environmental violations while repairing damage to their beachfront property following Hurricane Sandy. See Joglo Realties, Inc. v. Seggos, 16-CV-1666, 2016 WL 4491409, at *1 (E.D.N.Y. Aug. 24, 2016), Dkt. # 45. The court dismissed plaintiffs’ substantive and procedural due process claims with prejudice, but granted plaintiffs leave to amend their equal protection claims. Id. at *18. Plaintiffs then filed a Second Amended Complaint (“SAC”), Dkt. # 47, which defendants moved to dismiss. For the reasons set forth below, defendants’ motion to dismiss is granted.

[148]*148BACKGROUND2

In 1977, plaintiffs purchased “the Esplanade,” a 40-foot by 1,062-foot strip of oceanfront property located on top of the seawall protecting the southern end of Manhattan Beach, Brooklyn. SAC ¶ 9. The Esplanade is located a few feet south of six homes owned by plaintiff Toussie’s family, and plaintiffs have spent millions of dollars maintaining and improving it over their forty years of ownership. Id.

On October 29, 2012, Hurricane Sandy ravaged Manhattan Beach, causing extensive damage to the seawall, the Esplanade, and Toussie’s homes. Id. ¶ 10. Following the hurricane, plaintiffs sought emergency assistance from the DEC, the Army Corps of Engineers, and multiple New York City agencies. Id. ¶ 13. Plaintiffs received “general permits” from the DEC, which authorized repairs to and reconstruction of their damaged property. Id. ¶ 15. During the next two years, plaintiffs performed numerous repairs to the seawall and the Esplanade. Id. ¶ 16. Plaintiffs contend that the newly repaired seawall is “the highest-quality and most protective post-Sandy seawall in the area,” id., and that throughout the course of the reconstruction, the Army Corps of Engineers complimented their work as “sound, restorative, and very protective,” id ¶ 14.

Plaintiffs allege that, beginning in August 2013, defendant Drescher “embarked on a plan to take advantage of the work necessitated by Hurricane Sandy in order to extort Plaintiffs into relinquishing their ownership rights in the Esplanade.” Id. ¶ 17. Plaintiffs believe that this scheme to coerce them into relinquishing their property has manifested in three ways.

First, plaintiffs allege they were base-lessly threatened with criminal prosecution as a result of their repairs. On August 1, 2013, Drescher left a voicemail for plaintiff Toussie’s lawyer threatening Toussie with criminal arrest as a result of purportedly unlawful construction work occurring at the Esplanade. Id. ¶ 21. Despite this threat, Toussie was not arrested or otherwise criminally sanctioned for any work performed on his property. Id.

Second, plaintiffs contend that Drescher collaborated with plaintiffs’ neighbors to undermine plaintiffs’ property rights. Id. ¶22. This allegation is based on statements made in pleadings in two lawsuits filed by plaintiffs against their neighbors. In these lawsuits, both of plaintiffs’ neighbors stated that they had been “advised by the New York State Department of Environmental Conservation that Plaintiffs do not own the land or under water lands located seaward of the [E]splanade at the end of Ocean Avenue,” land that plaintiffs assert is unquestionably their private property. See id. ¶¶ 23-24. Another member of the DEC, George Stadnik, acknowledged to plaintiffs’ counsel that the DEC provided this information in response to complaints from the Toussies’ neighbors who wished to use the Esplanade. Id. ¶ 24.

Third, and most importantly, Drescher signed an administrative complaint against plaintiffs, and plaintiffs allege that he has used the pending proceeding as leverage in his efforts to force plaintiffs to allow public access to the Esplanade. Id. ¶¶ 17, 25.

The administrative complaint, DEC File No. R2-20130724-348, which was filed on July 8, 2014, asserted twenty-six causes of action resulting from plaintiffs’ repairs from early 2013 to the present. See id. [149]*149¶¶ 25—26; DEC Compl., Decl. of Jessica Albin (“Albin Decl.”) Ex. D, at ¶¶ 55-164, Dkt. # 60-4 at 13-28.3 Although the administrative complaint at one point refers to plaintiffs’ deed to the Esplanade as their “purported deed,” DEC Compl. ¶ 15, the complaint does not contest plaintiffs’ private ownership of the property or allege that the property should be made available for public access, see generally id. ¶¶ 55-164 (alleging numerous violations but not contending that plaintiffs do not actually own the Esplanade or cannot exclude the public from their property). As a result of the administrative complaint, plaintiffs have had to suspend their work on the Esplanade. SAC ¶ 69. Plaintiffs have been “repeatedly ... burglarized and vandalized” during this time, which they contend is a result of their inability “to properly [150]*150secure the Esplanade” while the complaint against them is pending. Id.

Approximately one month after the administrative complaint was filed, plaintiffs’ then-attorney met with Drescher and another representative of the DEC to discuss a potential settlement of the administrative action. Id. ¶ 27. During this meeting, Drescher stated that there is an area of the Esplanade that plaintiffs do not own and implied that their deed to the land was obtained improperly. Id. ¶¶ 28-29.

When the parties began to discuss a potential settlement, Drescher made his first direct demand that plaintiffs relinquish their ownership rights to the Esplanade. Id. ¶ 31. Drescher “stated that the lack of public access to the Esplanade was the ‘biggest issue’ ” for the DEC and that having the Esplanade “ ‘restored for public access’ ” under the control of the City Parks Department “was ‘what the DEC [was] looking for’ in order to” reach a settlement with plaintiffs. Id. ¶¶ 29, 31. When plaintiffs’ counsel responded that any ownership issue was irrelevant to the environmental proceeding, that Drescher was interfering with plaintiffs’ property rights, and that Drescher was asking for concessions from plaintiffs that he could not receive in the context of an administrative hearing, Drescher did not disagree. Id. ¶¶ 28, 32, 34. Lastly, Drescher informed plaintiffs “that, while [they] could build an east-west fence protecting their immediate backyards ..., the DEC would not allow them to build [a] fence in the Esplanade.” Id. ¶ 32. When plaintiffs’ counsel inquired as to whether this meant plaintiffs could not prevent members of the public from using “the entire length of the Esplanade,” Drescher “shrugged.” Id.

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Bluebook (online)
229 F. Supp. 3d 146, 2017 U.S. Dist. LEXIS 118062, 2017 WL 1134775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joglo-realties-inc-v-seggos-nyed-2017.