     13-4885
     Konrad v. Epley

                          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 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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 5th day of December, two thousand fourteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       EVELYN KONRAD,
13                Plaintiff-Appellant,
14
15                     -v.-                                              13-4885
16
17       MARK EPLEY, PAUL ROBINSON, ELBERT W.
18       ROBINSON, JR., DENIS GUERIN, MELINDA
19       QUINTIN, WILLIAM BROWN, and DONALD
20       QUINTIN,
21                Defendants-Appellees.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                        EVELYN KONRAD, New York, New
25                                             York.
26



                                                  1
 1   FOR APPELLEES:             DAVID H. ARNTSEN, Devitt
 2                              Spellman Barrett, LLP,
 3                              Smithtown, New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Eastern District of New York (Bianco, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Plaintiff-appellant Evelyn Konrad appeals from the
13   judgment of the United States District Court for the Eastern
14   District of New York (Bianco, J.), granting defendants-
15   appellees’ motion to dismiss and denying her motion to
16   amend. We assume the parties’ familiarity with the
17   underlying facts, the procedural history, and the issues
18   presented for review.
19
20        We review de novo the grant of a motion to dismiss,
21   Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d
22   166, 176 (2d Cir. 2013), and the denial as futile of a
23   motion to amend, Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
24   2014). Upon such review, we affirm the district court for
25   substantially the reasons set forth in its decision below.
26
27        Among other deficiencies addressed by the district
28   court, Konrad’s complaint fails to identify a
29   constitutionally protected interest. Land use decisions by
30   a municipal regulator do not implicate a constitutionally
31   protected property interest unless the regulator lacked
32   discretion to make the decision it did. Gagliardi v. Vill.
33   of Pawling, 18 F.3d 188, 191-93 (2d Cir. 1994). Konrad
34   alleges that the Village defendants acted unlawfully by
35   amending a zoning ordinance and approving private
36   construction consistent with the ordinance as amended, in
37   contravention of the Village’s pre-existing comprehensive
38   plan.1 Under New York law, however, a town may enact zoning


         1
              “Village defendants” refers to Mark Epley, Paul
     Robinson, and Elbert W. Robinson, Jr., all of whom
     participated in the Village of Southampton’s land use
     decisions in some way. Konrad’s constitutional claims
     against Denis Guerin, Melinda Quintin, William Brown, and
     Donald Quintin--the private defendants--fail because
     “[a]ction taken by private entities with the mere approval
                                  2
 1   ordinances that supersede its comprehensive plan. Orange
 2   Lake Associates, Inc. v. Kirkpatrick, 21 F.3d 1214, 1223-24
 3   (2d Cir. 1994). Accordingly, the Village defendants’ land
 4   use decisions violated no protected constitutional right,
 5   and Konrad’s failure to receive notice of those decisions
 6   did not violate procedural due process. Gagliardi, 18 F.3d
 7   at 193 (“The deprivation of a procedural right to be heard,
 8   however, is not actionable when there is no protected right
 9   at stake.”).
10
11        For the foregoing reasons, and finding no merit in
12   Konrad’s other arguments, we hereby AFFIRM the judgment of
13   the district court.
14
15                              FOR THE COURT:
16                              CATHERINE O’HAGAN WOLFE, CLERK
17
18




     or acquiescence of the State is not state action,” Tancredi
     v. Metro. Life Ins. Co., 316 F.3d 308, 313 (2d Cir. 2003)
     (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
     52 (1999)), and because, as discussed above, Konrad has
     failed to allege any constitutional violation by the state
     actors.
                                  3
