    17-3473-cv
    TZ Manor, LLC v. Estate of Daines


                     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 11th day of September, two thousand eighteen.

    PRESENT:
                    BARRINGTON D. PARKER,
                    PETER W. HALL,
                    RAYMOND J. LOHIER, JR.,
                        Circuit Judges.


    TZ MANOR, LLC, PONDVIEW CORP., PARKFIELD
    PROPERTIES,

                            Plaintiffs-Appellants,

                    v.                                                 No. 17-3473-cv

    THE ESTATE OF RICHARD F. DAINES, COMMISSIONER OF THE NEW
    YORK STATE DEPARTMENT OF HEALTH BEING SUED IN HIS
    INDIVIDUAL CAPACITY, ROBERT P. DOUGHERTY, DIRECTOR OF THE
    NEW YORK STATE DEPARTMENT OF HEALTH, DIVISION OF HOME
    AND COMMUNITY BASED CARE BEING SUED IN HIS INDIVIDUAL
    CAPACITY, JUDITH R. MOONEY, CO-DIRECTOR OF THE NEW YORK
    STATE DEPARTMENT OF HEALTH, DIVISION OF HOME AND
    COMMUNITY BASED CARE BEING SUED IN HIS INDIVIDUAL
    CAPACITY, MARYBETH FADER, DIRECT AND ACF CON
    CERTIFICATION UNIT OF THE NEW YORK STATE DEPARTMENT OF
    HEALTH, DIVISION OF HOME AND COMMUNITY BASED CARE
    BEING SUED IN HER INDIVIDUAL CAPACITY,

                        Defendants-Appellees.*
    __________________________________________________




                                                                
    * The Clerk of the Court is respectfully directed to amend the official caption as set forth above.

                                                     1
     
For Plaintiffs-Appellants:                  SANFORD F. YOUNG, The Law Offices of Sanford
                                            F. Young, P.C., New York, N.Y.

For Defendants-Appellees:                   ESTER MURDUKHAYEVA, Assistant Solicitor
                                            General of Counsel, (Steven C. Wu, Deputy
                                            Solicitor General, on the brief), for Barbara D.
                                            Underwood, Attorney General of the State of
                                            New York, New York, N.Y.



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

District of New York (Karas, J.).

       UPON       DUE        CONSIDERATION,        IT    IS    HEREBY        ORDERED,

ADJUDGED, AND DECREED that the judgment entered on September 28, 2017,

is AFFIRMED.

       Plaintiffs-Appellants TZ Manor, LLC, Pondview Corp., and Parkfield

Properties (collectively, “plaintiffs”), appeal the district court’s grant of a motion to

dismiss filed by defendants, officials of the New York State Department of Health

(“DOH”), under Federal Rule of Civil Procedure Rule 12(b). Plaintiffs, who own a 100-

bed adult home named Tappan Zee Manor (“TZ Manor”), brought this action pursuant

to 42 U.S.C. § 1983 alleging that defendants effected a taking of plaintiffs’ property

without just compensation by allowing an independent operator to run the adult home

for a period of approximately two years from 2006 to 2008. This appeal is taken from

an Opinion and Order of the district court, the second of two federal actions brought

against defendants, that dismissed plaintiffs’ takings claim as unripe for their failure

to act timely in pursuing state law remedies. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

       The takings claim arises from the appointment by the New York State Supreme

Court of Long Hill Alliance Company, Inc., to serve as a temporary receiver and

                                           2
 
interim operator of TZ Manor in April 2004. Although the receivership was terminated

by an order dated March 3, 2006, plaintiffs allege that DOH continued to permit Long

Hill to operate TZ Manor without seeking court approval pursuant to New York Social

Services Law § 461-f(4) or 18 New York Codes, Rules, and Regulations § 485.9. In a

letter dated October 11, 2006, the DOH notified plaintiffs that because the property

owner TZ Manor LLC and its affiliates were not authorized to act as an operator of

the adult home, the DOH approved Long Hill as the “current approved temporary

operator” of TZ Manor. App’x 38. Long Hill continued to operate TZ Manor until May

16, 2018, when plaintiffs took sole possession of the adult home after receiving a

permanent operating license from DOH. Plaintiffs seek to recover rent from the

defendants for the period between March 3, 2006 to May 16, 2008, based on the

defendants’ decision to authorize Long Hill to continue operating TZ Manor.

      “We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to

state a claim, accepting all factual allegations as true and drawing all reasonable

inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy

Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016).

      The Takings Clause of the Fifth Amendment provides that no “private property

[shall] be taken for public use, without just compensation.” U.S. Const. amend. V. “The

Fifth Amendment does not proscribe the taking of property; it proscribes taking

without just compensation.” Williamson County Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172, 194 (1985). The law recognizes two forms of

takings: physical takings and regulatory takings. See Buffalo Teachers Fed’n v. Tobe,

464 F.3d 362, 374 (2d Cir. 2006). As relevant here, a regulatory taking occurs “when

the government acts in a regulatory capacity” and “the state regulation goes too far

                                          3
 
and in essence ‘effects a taking.’” Id. (quoting Meriden Tr. & Safe Deposit Co. v. FDIC,

62 F.3d 449, 454 (2d Cir. 1995)).

      To establish a claim of deprivation of property without due process, a plaintiff

must first identify a cognizable property right. It is undisputed that, as the

uncontested owners of the adult home during the relevant time period, plaintiffs

possessed certain protected property rights in the home. No person or entity, however,

may operate an adult home in New York without an operating license. N.Y. Soc. Serv.

Law § 460–b(1). As the district court held in the prior related federal action, TZ Manor,

LLC v. Daines, 815 F. Supp. 2d 726 (S.D.N.Y. 2011), the “conferral of such a license is

not a constitutionally protected property interest because . . . such an interest is only

created when there is ‘no uncertainty regarding [the plaintiff’s] entitlement to it under

applicable state or local law, and the issuing authority had no discretion to withhold

it in his particular case.’” Id. at 740 (quoting Natale v. Town of Ridgefield, 170 F.3d

258, 263 n.1 (2d Cir. 1999)). New York law vests considerable discretion in DOH to

grant operating licenses to adult home operators according to broad standards. See

N.Y. Comp. Codes R. & Regs. tit. 18, § 485.6(a)(1).

      This Court has previously upheld the district court’s determination that, among

other things, plaintiffs did not have a cognizable “property right” in receiving an

operating license for the adult home, and that DOH acted reasonably in authorizing

Long Hill to continue as a temporary operator. See TZ Manor, LLC v. Daines, 503 F.

App’x 82, 84 (2d Cir. 2012). Prior to obtaining an operating license in 2008, moreover,

plaintiffs had no right to operate the home. N.Y. Soc. Serv. Law § 460–b(1); see also

Spinelli v. City of New York, 579 F.3d 160, 169 (2d Cir. 2009) (noting that “a person

does not have a protected interest in a possible future business license” because it

                                           4
 
“involves a purely speculative property interest” (alteration omitted) citation omitted)

(internal quotation marks omitted)). As this Court has noted before, nothing

prevented plaintiffs from bringing an action to eject Long Hill from the adult home

upon termination of the receivership, or from bringing claims against Long Hill for

the payment of rents to which they believe they were entitled. See TZ Manor, 503 F.

App’x at 84.

      For many of the reasons stated by the numerous decisions issued in this case,

we conclude that plaintiffs have failed to demonstrate that they possessed a cognizable

property right to such rents or that defendants deprived them of such rights. Absent

a cognizable property right, plaintiffs cannot prevail on a takings claim against

defendants.

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

without merit. The judgment of the district court is AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




                                           5
 
