     12-2076
     Miguel Ceja v. Paul Vacca, et al.

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of November, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOHN M. WALKER, Jr.,
 9                              Circuit Judge,
10                SANDRA DAY O’CONNOR,
11                              Associate Justice (Retired).*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       MIGUEL CEJA,
15                Appellant,
16
17                    -v.-                                              12-2076
18
19       PAUL VACCA, DEPUTY COMMISSIONER AND
20       BUILDING OFFICIAL OF THE CITY OF NEW
21       ROCHELLE, and THE CITY OF NEW ROCHELLE,
22                Appellees.
23
24       - - - - - - - - - - - - - - - - - - - -X

                *
               The Honorable Sandra Day O’Connor, Associate Justice
         (Retired) of the United States Supreme Court, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:             Steven J. Harfenist, Friedman
 2                              Harfenist Kraut & Perlstein LLP,
 3                              Lake Success, New York (Angelina
 4                              L. Fryer, Friedman Harfenist
 5                              Kraut & Perlstein LLP, Lake
 6                              Success, New York, on the
 7                              brief).
 8
 9   FOR APPELLEE:              Robert J. Ponzini, Gaines,
10                              Gruner, Ponzini & Novick, LLP,
11                              New York, New York (Denise M.
12                              Cossu, Gaines, Gruner, Ponzini &
13                              Novick, LLP, New York, New York,
14                              on the brief).
15
16        Appeal from an order of the United States District
17   Court for the Southern District of New York (Briccetti, J.).
18
19        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20   AND DECREED that the judgment of the district court be
21   AFFIRMED.
22
23        Miguel Ceja appeals from two orders entered on December
24   7, 2011, and April 16, 2012, in the United States District
25   Court for the Southern District of New York (Briccetti, J.)
26   dismissing his procedural and substantive due process
27   claims. We assume the parties’ familiarity with the
28   underlying facts, the procedural history, and the issues
29   presented for review.
30
31        We review de novo a district court’s decision to grant
32   a motion to dismiss. Arar v. Ashcroft, 585 F.3d 559, 567
33   (2d Cir. 2009) (in banc). In doing so, we accept as true
34   the complaint’s factual allegations and construe all
35   reasonable inferences in the light most favorable to the
36   plaintiff. Id.
37
38        The complaint challenges a decision by Paul Vacca,
39   Building Official and Deputy Commissioner of the City of New
40   Rochelle (“the City”), revoking a Certificate of Occupancy
41   (“CO”) for Ceja’s two-family dwelling. Vacca found non-
42   compliance with local zoning laws, in particular, violation
43   of a parking regulation prohibiting the storage of
44   commercial vehicles in a residential area. The City had

                                  2
 1   made a failed attempt to end this commercial use of the
 2   premises in August 2009 by issuing summonses to Ceja, which
 3   were later dismissed by a New Rochelle City Court. Vacca
 4   then issued an Order to Remedy for failure to comply with
 5   City parking requirements in December 2010. When Ceja
 6   failed to correct the problem within the prescribed thirty-
 7   day period, Vacca revoked the CO.
 8
 9        Ceja argues that the district court erred in dismissing
10   his procedural and substantive due process claims. We see
11   no error in either ruling. Procedural due process requires
12   that “a deprivation of life, liberty, or property be
13   preceded by notice and opportunity for hearing appropriate
14   to the nature of the case.” Cleveland Bd. of Educ. v.
15   Loudermill, 470 U.S. 532, 542 (1985) (internal quotation
16   marks omitted). According to Ceja, the City failed to
17   provide either notice or an opportunity to be heard.
18
19        However, the Order to Remedy provided both notice and
20   an opportunity to be heard. The Order instructed that Ceja
21   may seek review of the City’s decision, which would not be
22   enforced for at least thirty days, by filing an application
23   with the Bureau of Buildings zoning clerk. Ceja never filed
24   this application, nor did he make an appeal of any kind.
25   Instead, through counsel, Ceja sent a letter rejecting the
26   City’s interpretation of its zoning ordinances.
27
28        The City also afforded Ceja post-deprivation process.
29   The Order informed Ceja that he could file an appeal with
30   the City’s Board of Appeals on Zoning following the CO
31   revocation. He likewise declined to avail himself of this
32   opportunity.
33
34        With respect to his substantive due process claim, Ceja
35   argues that the City’s decision to revoke his CO after
36   approving the commercial use for decades, and after he had
37   expended substantial sums improving the property, was
38   “arbitrary” and “shocks the conscience.” Natale v. Town of
39   Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999) (citing Cnty.
40   of Sacramento v. Lewis, 523 U.S. 833 (1998)). Substantive
41   due process, however, “does not forbid governmental actions
42   that might fairly be deemed arbitrary or capricious and for
43   that reason correctable in a state court lawsuit seeking
44   review of administrative action.” Id. at 263. Only

                                  3
 1   “conduct so outrageously arbitrary as to constitute a gross
 2   abuse of governmental authority” will give rise to such a
 3   claim, id., and the City’s actions here do not approach this
 4   standard.1
 5
 6        Finding no merit in Ceja’s remaining arguments, we
 7   hereby AFFIRM the judgment of the district court.
 8
 9
10                              FOR THE COURT:
11                              CATHERINE O’HAGAN WOLFE, CLERK
12




         1
            The City also urges us to dismiss Ceja’s claims on
     two additional grounds: (1) Vacca, a government official, is
     entitled to qualified immunity, and (2) the City is entitled
     to immunity under Monell v. Dep’t of Social Servs., 436 U.S.
     658 (1978). Given our affirmance on the merits, we need not
     consider these arguments.
                                  4
