     16-2141
     Spanos, et al. v. City of New York, et al.

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                                SUMMARY ORDER
 5
 6   RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
 7   FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
 8   APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
 9   ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10   OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
11   ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13        At a stated term of the United States Court of Appeals for
14   the Second Circuit, held at the Thurgood Marshall United States
15   Courthouse, 40 Foley Square, in the City of New York, on the
16   12th day of January, two thousand seventeen.
17
18   PRESENT: DENNIS JACOBS,
19            SUSAN L. CARNEY,
20                          Circuit Judges,
21            KATHERINE POLK FAILLA,
22                          District Judge.*
23
24   - - - - - - - - - - - - - - - - - - - -X
25   Dimitrios Spanos, Proto Restoration
26   Construction, LLC,
27            Plaintiffs-Appellants,
28
29                -v.-                                           16-2141
30
31   City of New York, New York City
32   Department of Buildings, John Lee,
33   Aisha Norflett, Shanee Graham, John and
34   Jane Does 1-10,
35             Defendants-Appellees.
36   - - - - - - - - - - - - - - - - - - - -X

          *    Judge Katherine Polk Failla of the United States
     District Court for the Southern District of New York, sitting
     by designation.
                                                1
 1
 2   FOR APPELLANTS:              Christopher M. Slowik, Klein
 3                                Slowik PLLC, New York, NY.
 4
 5   FOR APPELLEES:               Susan Paulson, Susan P. Greenberg,
 6                                for Zachary W. Carter, Corporation
 7                                Counsel of the City of New York, New
 8                                York, NY.
 9
10        Appeal from a judgment of the   United States District Court
11   for the Southern District of New     York (Swain, J.).
12        UPON DUE CONSIDERATION, IT IS   HEREBY ORDERED, ADJUDGED AND
13   DECREED that the judgment of the     district court be AFFIRMED.
14
15        Dimitrios Spanos and Proto Restoration Construction, LLC
16   appeal from the final order of the district court (Swain, J.)
17   dismissing all of their claims with prejudice pursuant to Rule
18   12(b)(6) of the Federal Rules of Civil Procedure. We assume the
19   parties’ familiarity with the underlying facts, the procedural
20   history, and the issues presented for review.

21        We review de novo the district court’s dismissal of a
22   complaint pursuant to Rule 12(b)(6), accepting all factual
23   allegations in the complaint as true and drawing all reasonable
24   inferences in the plaintiffs’ favor. Chambers v. Time Warner,
25   Inc., 282 F.3d 147, 152 (2d Cir. 2002).

26        For many years, Spanos held a Special Rigger’s License,
27   issued by the New York City Department of Buildings (the
28   “Department”), which authorized him to “[i]nstall or use a
29   suspended scaffold” and “[h]oist or lower any article not
30   exceeding 2,000 pounds (907 kg) in weight on the outside of any
31   building with a hoisting machine.” NYC Admin. Code
32   § 28-404.2(2). That license was set to expire on January 31,
33   2015. Spanos submitted an application to renew it on January
34   21, 2015 (notwithstanding the requirement that renewal
35   applications “shall be made at least 30 calendar days but not
36   more than 60 calendar days prior to the expiration date,” id.
37   § 28-401.12), but his application was incomplete. He submitted
38   a complete application on February 3, 2015.

39       The Department of Buildings sent Spanos a letter dated

                                    2
 1   February 4, 2015, noting a misrepresentation on his application:
 2   he had indicated that he had not been convicted of any offense,
 3   but the Department’s investigation revealed that in 2010 he had
 4   pleaded guilty to bribing a public official. The letter
 5   requested a new, corrected application, and additional
 6   information relating to his conviction. Spanos submitted
 7   (through counsel) the requested documents on February 19, 2015.
 8   By letter on March 25, 2015, the Department denied the
 9   application pursuant to its authority under § 28-401.12 of the
10   NYC Administrative Code, citing his false statement, his
11   conviction, and his poor moral character. See id. §
12   28-401.19(2), (12), and (13). Spanos challenged that denial
13   (and lost) in a state proceeding under Article 78 of the New
14   York Civil Practice Law and Rules.

15        Spanos does not now challenge the denial of his renewal
16   application. Rather, he argues that the delay between the
17   submission of his renewal application and its denial--which he
18   characterizes as an “unlawful ‘freeze,’” see, e.g., Appellant
19   Br. 15--constitutes deprivation of procedural and substantive
20   due process. The district court held that Spanos failed to
21   plausibly plead an entitlement to a license, and therefore had
22   no valid property interest in it; and that even if he had a valid
23   property interest, the Article 78 proceeding provided
24   post-deprivation process sufficient to satisfy constitutional
25   requirements.

26        We need not reach those issues, nor do we reach appellee’s
27   argument concerning collateral estoppel, because Spanos’s
28   claims fail at a more basic level. His license was set to expire
29   on January 31, 2015, and the NYC Administrative Code obligated
30   him to file any renewal application at least 30 days before that
31   date. See NYC Admin. Code § 28-401.12. His (incomplete)
32   application was filed ten days before expiration, and the
33   complete application was filed several days after the license
34   had expired. Even if his renewal application had been granted,
35   therefore, a gap during which his license was expired would have
36   been created by his own failure to timely renew. He cites no
37   authority for the proposition that the Department was obligated
38   to process his application more quickly to minimize a gap he
39   created. He may have preferred a more prompt denial, but he
40   presents no persuasive argument that he was constitutionally

                                    3
1   entitled to one.

2        Accordingly, and finding no merit in appellants’ other
3   arguments, we hereby AFFIRM the final order of the district
4   court.

5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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