Biscone Obtains Dismissal of Complaint Brought Under 42 USC

March 16, 2016 | Appeals

Merril Biscone Obtains Dismissal of 42 USC Section 1983 Action On appeal.

This case involved the plaintiffs’ purchase of property in the Town of Babylon with the intention of operating an outpatient facility that provides counseling services to recovering drug and alcohol users.  Our client, Town of Babylon, denied the plaintiffs’ application for a permit because it was not a permitted use.  Plaintiff commenced an action against the Town pursuant to 42 USC § 1983 for alleged violations of constitutional rights to due process and equal protection.   The Town moved to dismiss the Complaint and the Supreme Court denied the motion.   On appeal we argued that the complaint should be dismissed because the constitutional challenges to the Town’s actions were fatally flawed for three reasons: 1)there was no final determination by the Town on plaintiff’s attempt to receive permission to change the permitted use of the property; 2) if there was a final determination, it occurred more than three years prior to the commencement of the lawsuit which was thus barred by the statute of limitations; and 3) in any event, the complaint was insufficient to allege either due process or equal protection claims.  The Appellate Division, Second Department agreed with our arguments, reversed the Order appealed from and dismissed the Complaint.  The Appellate Division adopted our position that no “final decision” was rendered by the Town which is ripe for judicial review.  The appellate court also agreed that the plaintiffs failed to demonstrate that it would have been futile for the plaintiffs to continue the application process.  The court concluded that the allegations about certain statements made by an unnamed representative from the Town’s Fire Marshal’s Office and by the Commissioner of the Planning Department do not demonstrate that the plaintiffs were unlikely to receive an unbiased review from either the Planning Board or the Board of Zoning Appeals.

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  • Evan H. Krinick
  • Merril S. Biscone

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