         10-515-cv
         Androme Leather Corp. v. City of Gloversville


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of                                      Appeals
 2       for the Second Circuit, held at the Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 10 th day of December, two thousand                                    and ten.
 5
 6       PRESENT: WILFRED FEINBERG,
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       ANDROME LEATHER CORPORATION,
14
15                                       Plaintiff-Appellant,
16
17                       -v.-                                                   10-515-cv
18
19       CITY OF GLOVERSVILLE, ZONING BOARD OF
20       APPEALS OF THE CITY OF GLOVERSVILLE,
21       D. ROBERT ROBBINS JR., THOMAS RENDA,
22       FRANCES MOSCONNI, MARGARET RALBOVSKY,
23       GARRISON SEELOW, DEBORAH ASHE, KELLY
24       OCTIGAN, KAREN SMITH a/k/a KAT, MICHAEL
25       CAPPARELLO, ABRAHAM SEROUSSI, COMMON
26       COUNCIL OF THE CITY OF GLOVERSVILLE,
27       ANTHONY J. CARUSO, MARIE A. SCHUTZ,
28       FRANK A. CLEMENTE, ANTHONY P. CHRISTIANO,
29       PAUL E. REID, MARYLOUISE R. MELE,
30
31                                       Defendants-Appellees.
32
33
 1   FOR APPELLANT:      LEWIS B. OLIVER, JR., ESQ., Oliver Law
 2                       Office, Albany, NY.
 3
 4   FOR APPELLEES:      PETER G. BARBER, ESQ., Murphy, Burns,
 5                       Barber & Murphy, LLP, Albany, NY.
 6
 7          Appeal from the Northern District of New York (Suddaby,
 8   J.).
 9
10          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11   AND DECREED that the judgment of the district court be

12   AFFIRMED.

13          Appellant appeals from an order of the United States

14   District Court for the Northern District of New York

15   (Suddaby, J.), which granted summary judgment in favor of

16   the defendants.    We assume the parties’ familiarity with the

17   underlying facts, the procedural history, and the issues

18   presented for review.

19          A “class of one” equal protection claim requires the

20   claimant to demonstrate that they share an “extremely high

21   degree of similarity” with the “person[] to whom they

22   compare themselves.”    Clubside, Inc. v. Valentin, 468 F.3d

23   114, 159 (2d Cir. 2006) (citations omitted).    Further, the

24   claimant must show that:

25          (i)   no   rational   person   could   regard   the
26          circumstances of the plaintiff to differ from those
27          of a comparator to a degree that would justify the
28          differential treatment on the basis of a legitimate
29          government policy; and (ii) the similarity in

                                     2
1        circumstances and difference in treatment            are
2        sufficient to exclude the possibility that           the
3        defendant acted on the basis of a mistake.
4
5    Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005)

6    (citations omitted) (partially abrogated on other grounds by

7    Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008)).

8        Here, Appellant differed from its proffered comparator,

9    JBF, in at least one important respect.       JBF had at one

10   point enjoyed a “grandfathered” right to engage in the

11   process of “beaming,” whereas Appellant had never enjoyed

12   such a right and applied to obtain a use variance from the

13   zoning ordinance in question.       By itself, this difference

14   raises “the possibility that the defendant acted on the

15   basis of a mistake,” negating an essential element of the

16   “class of one” claim and rendering appropriate an award of

17   summary judgment for the defendants.

18       We have considered Appellant’s remaining contentions,

19   and find them without merit.

20       For the foregoing reasons, the judgment of the district

21   court is hereby AFFIRMED.

22
23                               FOR THE COURT:
24                               Catherine O’Hagan Wolfe, Clerk
25



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