Thomas v. Genova

• Court: Court of Appeals for the Second Circuit
• Decided: February 24, 2025
• Docket: 23-7452
• Status: Unpublished

Opinion

23-7452 Thomas v. Genova

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of February, two thousand twenty-five.

PRESENT: RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges, CHRISTINA C. REISS, Judge. * ______________________________________

DARREN E. THOMAS, MARLENE THOMAS,

Plaintiffs-Appellants,

v. No. 23-7452

LEONARD GENOVA, CHRISTOPHER GIOIA, THE TOWN OF OYSTER BAY, CHRISTINA F.

* Chief Judge Christina C. Reiss, of the United States District Court for the District of Vermont, sitting by designation. NICOLIA, as Executrix of the Estate of Frederick P. Ippolito,

Defendants-Appellees,

JOHN VENDITTO, FREDERICK P. IPPOLITO, JOSEPH S. SALADINO,

Defendants. _______________________________________

For Plaintiffs-Appellants: HARRY H. KUTNER, JR., The Law Office of Harry H. Kutner, Jr., Garden City, NY.

For Defendants-Appellees: CHRISTOPHER KENDRIC, Kendric Law Group P.C., Cold Spring Harbor, NY.

For Defendant-Appellee The Town Matthew M. Rozea, Office of the Town of Oyster Bay: Attorney, Oyster Bay, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Hector Gonzalez, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the October 3, 2023 judgment of the district

court is AFFIRMED.

Darren E. Thomas and Marlene Thomas (together, “Plaintiffs”) appeal from

the district court’s grant of summary judgment in favor of defendants Leonard

Genova; Christopher Gioia; Christina F. Nicolia, as Executrix of the Estate of

Frederick P. Ippolito; and the Town of Oyster Bay (together, “Defendants”). We 2 assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal to which we refer only as necessary to explain our decision below.

I. Background

In March 2007, Plaintiffs purchased what they believed to be a legal two-

family home in the Town of Oyster Bay (the “Town”) and began renting out an

upstairs unit. In November 2007, in response to a civilian complaint, the Town

began to investigate the property for zoning-code violations. Gioia, a code-

enforcement inspector for the Town, conducted an on-site visit of Plaintiffs’ home

and observed two doorbells, two electric meters, and split electric and cable-

television lines, one set of which extended to the home’s second floor. After

conducting research on the history of the property and speaking on the telephone

with Darren Thomas, Gioia charged Mr. Thomas with criminal violations of the

Town Code for (1) operating a two-family home in a single-family residential zone

and (2) operating a two-family home without a proper certificate of occupancy.

In April 2019, following a jury trial, Mr. Thomas was acquitted of the two state

charges.

While that criminal prosecution was pending, Plaintiffs filed the present

lawsuit in the United States District Court for the Eastern District of New York.

3 In February 2022, Plaintiffs filed a second amended complaint, alleging that

Defendants engaged in malicious prosecution, selectively enforced the Town

Code, and deprived Plaintiffs of due process in violation of 42 U.S.C. § 1983;

intentionally discriminated against Plaintiffs on the basis of their race in violation

of 42 U.S.C. §§ 1981, 1982; engaged in a conspiracy to deprive Plaintiffs of their

civil and constitutional rights in violation of 42 U.S.C. §§ 1985, 1986; and violated

the Fair Housing Act (the “FHA”), 42 U.S.C. §§ 3604(a), 3604(b), 3617. Plaintiffs

further alleged that the Town of Oyster Bay had a municipal policy or custom that

deprived them of their constitutional right to the equal protection of the laws, and

asserted various state-law claims.

After discovery was completed, the district court dismissed Plaintiffs’ due-

process claim on ripeness grounds, granted summary judgment in favor of

Defendants with respect to each of the remaining federal-law claims, and declined

to exercise supplemental jurisdiction over Plaintiffs’ state-law claims. Plaintiffs

timely appealed.

II. Legal Standard

We review a district court’s grant of summary judgment de novo. See

Benzemann v. Houslanger & Assocs., PLLC, 924 F.3d 73, 78 (2d Cir. 2019). We “must

4 construe the evidence in the light most favorable to the non-moving party and

draw all reasonable inferences in [his] favor.” McKinney v. City of Middletown, 49

F.4th 730, 737 (2d Cir. 2022) (internal quotation marks omitted). Summary

judgment is proper when “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“Where the moving party demonstrates the absence of a genuine issue of material

fact, the opposing party must come forward with specific evidence demonstrating

the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654

F.3d 347, 358 (2d Cir. 2011) (citation and internal quotation marks omitted).

Specifically, the opposing party must “go beyond the pleadings, and by [his or]

her own affidavits, or by the depositions, answers to interrogatories, and

admissions on file, designate specific facts showing that there is a genuine issue

for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation

marks omitted). Moreover, “[t]he mere existence of a scintilla of evidence in

support of the plaintiff’s position [is] insufficient,” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986), and “reliance upon conclusory statements or mere

allegations is not sufficient to defeat a summary[-]judgment motion,” Davis v. New

York, 316 F.3d 93, 100 (2d Cir. 2002).

5 III. Section 1983 Claim

Plaintiffs first assert that Defendants deprived them of their civil and

constitutional rights in violation of 42 U.S.C. § 1983. Although Plaintiffs’ section

1983 claim was not entirely clear, the district court construed it as alleging that

Defendants “(1) violated Plaintiff Darren Thomas’s Fourth Amendment rights by

maliciously prosecuting him without probable cause; (2) violated Plaintiff Darren

Thomas’s equal[-]protection rights by selectively enforcing the Town’s zoning

laws against him; and (3) violated Plaintiffs’ due[-]process rights to use the[ir]

[p]roperty as a two-family home.” Thomas v. Genova, 698 F. Supp. 3d 493, 509

(E.D.N.Y. 2023). Plaintiffs do not argue on appeal that the district court

misconstrued their section 1983 claim, so we address each theory in turn.

A. Malicious Prosecution

To succeed on a section 1983 claim for malicious prosecution, a plaintiff

must show “a violation of his rights under the Fourth Amendment and must

establish the elements of a malicious[-]prosecution claim under state law.”

Cornelio v. Connecticut, 32 F.4th 160, 178 (2d Cir. 2022) (internal quotation marks

omitted). Under New York law, “the existence of probable cause is a complete

defense to a claim of malicious prosecution.” Savino v. City of New York, 331 F.3d

6 63, 72 (2d Cir. 2003) (citing Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)).

Probable cause exists when an officer has “knowledge or reasonably trustworthy

information sufficient to warrant a person of reasonable caution in the belief that

an offense has been committed by the person to be arrested.” Panetta v. Crowley,

460 F.3d 388, 395 (2d Cir. 2006) (internal quotation marks omitted). Importantly,

“probable cause does not require absolute certainty,” and we instead “look to the

totality of the circumstances.” Id. (emphasis added) (alteration accepted and

internal quotation marks omitted). While “an officer may not disregard plainly

exculpatory evidence,” we have also made clear that “the fact that an innocent

explanation may be consistent with the facts alleged does not negate probable

cause.” Id. (alterations accepted and internal quotation marks omitted).

Like the district court, we find that there is no genuine dispute of material

fact and thus can conclude, as a matter of law, that Defendants had probable cause

to initiate the enforcement proceedings against Mr. Thomas. The parties do not

dispute that Plaintiffs’ property is located in an area zoned for single-family

homes; that Plaintiffs never applied for a special-use permit to use their property

as a two-family residence; that Gioia observed two electric meters, two doorbells,

and split electric and cable-television lines; and that Mr. Thomas admitted to Gioia

7 that he was renting out the upstairs apartment. Gioia’s investigation also

uncovered corroborating documentary evidence, including property-tax cards

showing that the property was taxed as a single-family home and a certificate of

occupancy indicating that the “[p]remises [were] zoned for one[-]family use.” J.

App’x at 189. While it is true that Plaintiffs presented certain records suggesting

that the property had been taxed as a two-family home prior to 2007, “[p]robable

cause does not require absolute certainty.” Panetta, 460 F.3d at 395 (internal

quotation marks omitted). Considering “the totality of the circumstances,” we

conclude, based on the undisputed facts, that “a person of reasonable caution”

would have believed that Mr. Thomas was violating the Town Code, thus

providing Defendants with probable cause to pursue the enforcement action. Id.

(internal quotation marks omitted). Accordingly, the district court did not err in

granting summary judgment to Defendants on Plaintiffs’ malicious-prosecution

theory.

B. Selective Enforcement

We next turn to Plaintiffs’ claim that Defendants selectively enforced the

Town Code against Mr. Thomas because of his race. We have previously

explained that to prevail on a selective-enforcement claim, “a plaintiff must prove

8 that (1) the person, compared with others similarly situated, was selectively

treated, and (2) the selective treatment was motivated by an intention to

discriminate on the basis of impermissible considerations.” Hu v. City of New

York, 927 F.3d 81, 91 (2d Cir. 2019) (internal quotation marks omitted). With

respect to the first element, the comparators need not be “identical,” but the

plaintiff must show that he “was similarly situated in all material respects to the

individuals with whom [he] seeks to compare [him]self.” Id. at 96 (internal

quotation marks omitted). And while it is true as “a general rule” that the

determination of “whether [individuals] are similarly situated is a factual issue

that should be submitted to the jury,” we have recognized that “a court can

properly grant summary judgment where it is clear that no reasonable jury could

find the similarly situated prong met.” Harlen Assocs. v. Inc. Vill. of Mineola, 273

F.3d 494, 499 n.2 (2d Cir. 2001).

Based on the record below, we agree with the district court that no

reasonable jury could find that Plaintiffs were selectively treated when compared

with similarly situated homeowners. Plaintiffs’ main support for this claim is

their counsel’s affirmation, which conclusorily declared that the Town has not

prosecuted six other multi-family homes that are on the same block and are all

9 owned by white individuals. But beyond providing a list of the supposed

comparator homes, Plaintiffs have not otherwise established that those properties

are similarly situated. The law is clear that “reliance upon conclusory statements

or mere allegations is not sufficient to defeat a summary[-]judgment motion.”

Davis, 316 F.3d at 100. What’s more, Plaintiffs admitted that two of the supposed

comparator properties had “proper certifications of occupancy on file with the

Town to be used as multiple[-]family dwellings,” and Defendants presented

evidence that at least two of the supposed comparator properties had in fact been

investigated by the Town for code violations. J. App’x at 346. Likewise,

Plaintiffs admitted that the Town has taken code-enforcement actions against

twenty-seven properties, all located within three tenths of a mile from Plaintiffs’

home. Because Plaintiffs have failed to carry their burden in identifying any

similarly situated properties, we affirm the district court’s grant of summary

judgment to Defendants with respect to Plaintiffs’ selective-enforcement claim.

C. Due Process

Plaintiffs next argue that Defendants deprived them of their right to use

their property as a two-family home without due process of law. The district

court concluded that this claim was not ripe for adjudication, and we agree. We

10 have previously explained that ripeness requires a party challenging a land-use

regulation to “obtain a final, definitive position as to how it could use the property

from the entity charged with implementing the zoning regulations.” Murphy v.

New Milford Zoning Comm’n, 402 F.3d 342, 348 (2d Cir. 2005); see also Vill. Green at

Sayville, LLC v. Town of Islip, 43 F.4th 287, 294 (2d Cir. 2022). Here, Plaintiffs admit

that they have not sought a variance or special-use permit, nor have they sought

to obtain any final decision from the Town on whether their property constitutes

a prior nonconforming use. See Dougherty v. Town of N. Hempstead Bd. of Zoning

Appeals, 282 F.3d 83, 88–89 (2d Cir. 2002), abrogated in part on other grounds by Knick

v. Township of Scott, 588 U.S. 180, 185 (2019); see also, e.g., Norton v. Town of Islip, 239

F. Supp. 2d 264, 269 (E.D.N.Y. 2003) (finding a due-process challenge unripe

because the plaintiff “failed to obtain a final decision regarding his nonconforming

use from the Town’s Zoning Board of Appeals”). Accordingly, Plaintiffs’ due-

process claim is not ripe for adjudication, and the district court did not err in

dismissing that claim.

IV. Intentional Discrimination Claims

Plaintiffs also contend that Defendants intentionally discriminated against

them on the basis of race in violation of 42 U.S.C. §§ 1981, 1982. Our case law is

11 clear, however, that section 1983 “provides the sole cause of action available

against state actors alleged to have violated [section] 1981.” Smalls v. Collins, 10

F.4th 117, 144 (2d Cir. 2021) (internal quotation marks omitted). Because each of

the Defendants is a state actor, we affirm the district court’s grant of summary

judgment in their favor on Plaintiffs’ section 1981 claim.

To survive summary judgment on their section 1982 claim, Plaintiffs must

“produce enough evidence for a reasonable jury to find that the defendants

intentionally discriminated against the[m] based on race.” Silva v. Farrish, 47

F.4th 78, 90 (2d Cir. 2022). We agree with the district court that Plaintiffs failed to

do so here. For starters, Plaintiffs were unable to point to any direct evidence to

support their belief that the enforcement proceedings were racially motivated. In

fact, Plaintiffs explained that it was their counsel who “was the first to voice the

opinion that the Town’s actions were racially[]motivated.” J. App’x at 110.

Moreover, Plaintiffs admit that Gioia did not meet them until after he filed the

criminal information in local court, and while they assert in conclusory fashion

that another local elected official must have tipped off Gioia regarding their race,

there is nothing in the record to support that assertion. In the absence of any

evidence of racial discrimination, Plaintiffs repeatedly fall back on the refrain that

12 “[w]hat else . . . but racism” could explain Defendants’ actions. Pls. Br. at 6; see

also id. at 26, 40, 43, 59 (same); Reply Br. at 1, 11 (same). But such speculation

plainly does not suffice to survive a motion for summary judgment. See Davis,

316 F.3d at 100.

For these reasons, we agree that, on the evidence presented, no reasonable

jury could find that Defendants discriminated against Plaintiffs because of their

race. The district court therefore properly granted summary judgment in favor

of Defendants on the section 1982 claim.

V. Conspiracy Claims

Plaintiffs further assert that Defendants engaged in a conspiracy to deprive

them of their civil rights and neglected to prevent such a conspiracy in violation

of 42 U.S.C. §§ 1985, 1986. To state a claim under section 1985, “the conspiracy

must . . . be motivated by some racial or . . . otherwise class-based, invidious

discriminatory animus behind the conspirators’ action.” Mian v. Donaldson,

Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (internal quotation

marks omitted). Because we concluded above that Plaintiffs failed to present

evidence of racial discrimination, their section 1985 claim must also fail. With

respect to Plaintiffs’ section 1986 claim, we have explained that such a claim “must

13 be predicated on a valid [section] 1985 claim.” Brown v. City of Oneonta, 221 F.3d

329, 341 (2d Cir. 2000) (internal quotation marks omitted). Because we have

already concluded that Plaintiffs failed to establish a section 1985 conspiracy, their

section 1986 claim cannot survive summary judgment either.

VI. Fair Housing Act Claim

Plaintiffs contend that Defendants discriminated against them in violation

of sections 3604(a), 3604(b), and 3617 of the FHA. With respect to such claims, we

have explained that “[s]ummary judgment is appropriate if no reasonable jury

could find that the defendant’s actions were motivated by discrimination.”

Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003). We have also held that, “without

some evidence of knowledge of the [plaintiffs’] racial identity, it is impossible to

infer such motivation.” Id. at 49. Because, once again, we conclude that no

reasonable jury could find that Defendants knew of Plaintiffs’ race or that they

were motivated by racial discrimination, we affirm the district court’s grant of

summary judgment on the FHA claim.

VII. Monell Claim

Finally, Plaintiffs assert that the Town engaged in a policy or custom of

racial discrimination and thus can be held liable under the Supreme Court’s

14 decision in Monell v. Department of Social Services, 436 U.S. 658 (1978). But there

can be no municipal liability where there is no underlying constitutional violation.

See Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). Because, as we concluded

above, no reasonable jury could find a constitutional violation here, the district

court properly granted summary judgment to the Town on Plaintiffs’ Monell

claim. 1

* * *

We have considered Plaintiffs’ remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

1 On appeal, Plaintiffs do not challenge the district court’s decision not to exercise supplemental jurisdiction over their state-law claims, so we do not review that decision. To the extent it is unclear whether the district court dismissed those claims with prejudice, we clarify that such a dismissal is without prejudice. See Oliveira v. Frito-Lay, Inc., 251 F.3d 56, 64–65 (2d Cir. 2001). Plaintiffs may refile those claims in state court if they wish to do so.