19-4172-cv
Dennis Sant, et al. v. Willis Stephens, 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.


              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 28th day of July, two thousand twenty.

PRESENT:             DENNY CHIN,
                     SUSAN L. CARNEY,
                     STEVEN J. MENASHI,
                                         Circuit Judges.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DENNIS SANT, KATHLEEN SANT,
                    Plaintiffs-Appellants,

                                        -v-                                            19-4172-cv

WILLIS STEPHENS, Individually and as Town
Attorney for Town of Southeast, Putnam County,
State of New York, TOWN OF SOUTHEAST,
PUTNAM COUNTY, STATE OF NEW YORK.
                         Defendants-Appellees.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

FOR PLAINTIFFS-APPELLANTS:                                   STEVEN FELSENFELD, Felsenfeld Legal,
                                                             PLLC, Ossining, New York.
FOR DEFENDANTS-APPELLEES:                  STEPHEN J. GABA (Adam Rodd, on the brief),
                                           Drake Loeb, PLLC, New Windsor, New York.

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

New York (Seibel, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiffs-appellants Dennis Sant and Kathleen Sant ("plaintiffs") appeal

the judgment of the district court, entered November 13, 2019, dismissing their

amended complaint (the "Complaint") against defendants-appellees Willis Stephens and

the Town of Southeast (the "Town" and, together with Stephens, "defendants") asserting

claims under, inter alia, the First and Fourteenth Amendments, 42 U.S.C. §§ 1983 and

1985, and state law. By opinion and order entered November 12, 2019, the district court

granted defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On appeal,

plaintiffs argue that the district court erred in concluding that their claims were barred

under the statute of limitations and by sua sponte denying leave to amend the

Complaint. We assume the parties' familiarity with the underlying facts, procedural

history, and issues on appeal.

                                      BACKGROUND

              The facts alleged in the Complaint are assumed to be true. See Fisher v. SD

Prot. Inc., 948 F.3d 593, 597 n.2 (2d Cir. 2020). At the heart of this case is a dispute over

the Town's refusal to grant plaintiffs a zoning variance. Plaintiffs own property in the
                                              2
Town, while Stephens serves as the Town Attorney and Town Prosecutor and also

works as an attorney in private practice specializing in Town code and home owner

disputes and litigation. In 1989, plaintiffs obtained a building permit to add a pole barn

(the "barn") to their property, which they used as living quarters for Dennis Sant's

brother. Despite various efforts, plaintiffs were unable to obtain permission to

regularize the use of the barn as living quarters.

              In 2008, the Town informed plaintiffs that the property could not be used

for multi-residential use. In 2009, plaintiffs applied to the Town Planning Board for a

zoning variance, but approval was never granted. On September 24, 2013, plaintiffs

were served with an appearance/complaint ticket for a building code violation. The

Town Court dismissed the ticket on January 21, 2016, and the Appellate Division

affirmed the dismissal on May 23, 2017. On September 26, 2017, plaintiffs brought an

Article 78 proceeding to compel the Town to grant them a variance. The action was

dismissed as unripe on March 20, 2018 because plaintiffs failed to submit an application

to the Town Zoning Board of Appeals and thus had not exhausted administrative

remedies available to them. Plaintiffs allege that March 2018, after their Article 78

proceeding was dismissed, the Town came onto their property to measure setbacks.

Plaintiffs further allege that in 2011 defendants blocked their daughter from taking a

position in the Town Building Department and prevented their son from taking a

position on the Town Zoning Board of Appeals.


                                             3
               Plaintiffs filed this action below on October 29, 2018, alleging that their

difficulties obtaining a zoning grant, as well as obstacles their children encountered in

obtaining positions with the Town, were the result of retaliation by defendants for

Dennis Sant's public criticism of Stephens, and that the Town engaged in selective

enforcement of the zoning code. The district court granted defendants' motion to

dismiss and this appeal followed.

                                  STANDARD OF REVIEW

               We review de novo the district court's grant of a motion to dismiss,

accepting as true all facts alleged in the complaint and drawing all reasonable

inferences in the moving party's favor. See Yamashita v. Scholastic Inc., 936 F.3d 98, 103-

04 (2d Cir. 2019). To survive a motion to dismiss, the plaintiff must allege facts

sufficient "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

                                         DISCUSSION

I.     Statute of Limitations

               The statute of limitations for actions brought in New York pursuant to

§§ 1983 and 1985 is three years. See Paige v. Police Dep't of City of Schenectady, 264 F.3d

197, 199 n.2 (2d Cir 2001) (§§ 1983 and 1985); Okure v. Owens, 816 F.2d 45, 49 (2d Cir.

1987) (§ 1983). Claims brought pursuant to §§ 1983 and 1985 accrue "once the plaintiff

knows or has reason to know of the injury which is the basis of his action." Cornwell v.


                                                4
Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (internal quotation marks omitted). Under the

continuing violation doctrine, a plaintiff may bring claims that would otherwise be

barred by the statute of limitations provided that "an act contributing to that [violation]

took place within the statutory time period." Purcell v. N.Y. Inst. of Tech. - Coll. of

Osteopathic Med., 931 F.3d 59, 65 (2d Cir. 2019). The continuing violation doctrine

applies only "to claims that by their nature accrue only after . . . some threshold amount

of mistreatment," and not to "discrete unlawful acts, even where those discrete acts are

part of a serial violation." Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (internal

quotation marks omitted).

              Here, the action was filed on October 29, 2018, and thus any §§ 1983 and

1985 claims premised on discrete acts that accrued prior to October 29, 2015 are

untimely. See Paige, 264 F.3d at 199 n.2. Most of the cognizable acts alleged in the

Complaint are "discrete unlawful acts" that occurred well before 2015. See Gonzalez, 802

F.3d at 220. In 2008, the Town sent a warning to plaintiffs that the barn was not

properly permitted for residential use. In 2013, the Town served them with a ticket for

building code violations. Plaintiffs further allege that, in 2011, their children were

blocked from obtaining certain positions with the Town as retaliation. Accordingly, the

district court did not err in concluding that plaintiffs' claims pursuant to §§ 1983 and

1985 that are premised on these discrete acts are time-barred.




                                               5
              The Complaint alleges one act that is fairly described as a continuing

violation: Plaintiffs applied for a zoning variance in 2009, but the Town never granted

the variance. Even if timely, however, any claims premised on this alleged inaction

would still fail because plaintiffs did not file all the proper applications needed to

obtain the variance. The March 2018 state court decision, which was incorporated into

the Complaint, see Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000), held that plaintiffs

had failed to complete their application for a variance because they filed a request with

the Town Planning Board but not with the Town Zoning Board of Appeals. Plaintiffs

are collaterally estopped from denying that they failed to submit the proper

applications for the variance, and accordingly they cannot state a plausible claim that

the Town acted unconstitutionally by failing to grant the requested variance. See

Dowling v. United States, 493 U.S. 342, 347 (1990) (explaining that collateral estoppel

applies "when an issue of ultimate fact has once been determined by a valid and final

judgment" and "that issue cannot again be litigated between the same parties in any

future lawsuit").

              The Complaint also alleges one discrete action that occurred within the

limitations period: the Town's measurement of setbacks in March 2018. Although

timely, any §§ 1983 and 1985 claims premised on this act nonetheless fail because

plaintiffs do not allege that Stephens personally participated in causing the setback

measurements, see Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir.


                                              6
2001) ("[P]ersonal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983"), or that the Town had an official

policy or custom of measuring setbacks in retaliation for protected speech, see Zherka v.

City of N.Y., 459 F. App'x 10, 12 (2d Cir. 2012) (summary order) (holding that "a

municipality cannot be made liable under §§ 1983 and 1985" unless an "official policy or

custom" of the municipality was "the moving force behind the alleged injury")

(alteration omitted).

              For these reasons, all of plaintiffs' claims are barred by the statute of

limitations or otherwise fail to state a plausible claim for relief.

II.    Leave to Amend

              "We review a district court's decision to grant or deny leave to amend a

pleading . . . for abuse of discretion." Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d

Cir. 2003). Leave to amend may be denied for, inter alia, "failure to cure deficiencies by

amendments previously allowed, . . . [or] futility of amendment." Ruotolo v. City of N.Y.,

514 F.3d 184, 191 (2d Cir. 2008); see also TechnoMarine SA v. Giftports, Inc., 758 F.3d 493,

505 (2d Cir. 2014) (leave to amend properly denied where plaintiff fails to specify how

amendment would cure deficiencies in the pleading).

              Here, plaintiffs had already amended their complaint once, and they did

not request leave to file a second amended complaint prior to the district court's sua

sponte denial of such leave. Moreover, though plaintiffs challenge the district court's


                                               7
denial on appeal, they fail to specify how they would cure the pleading's deficiencies.

See TechnoMarine, 758 F.3d at 505. Accordingly, the district court did not abuse its

discretion when it denied plaintiffs leave to file a second amended complaint.

                                          * * *

             We have considered plaintiffs' remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

                                         FOR THE COURT:
                                         Catherine O'Hagan Wolfe, Clerk




                                            8
