     08-4599-cv
     Ehrlich v. The Incorporated Village of Sea Cliff


                                    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 for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 10th day of August, two thousand ten.
 4
 5   PRESENT:
 6
 7                      JOSEPH M. McLAUGHLIN,
 8                      GUIDO CALABRESI,
 9                      DEBRA ANN LIVINGSTON,
10                                      Circuit Judges.
11
12
13   ROBERT EHRLICH, 100 ROSLYN AVENUE LLC, and
14   SEA CLIFF COFFEE COMPANY, INC.,
15
16                                Plaintiffs-Appellants,
17
18                      v.                                                       08-4599-cv
19                                                                               Summary Order
20   THE INCORPORATED VILLAGE OF SEA CLIFF,
21   EILEEN KRIEB, individually and as Mayor of the
22   Village of Sea Cliff and as former Village Trustee,
23   CLAUDIA MOYNE, individually and as former Mayor
24   of the Village of Sea Cliff, RICHARD A. SIEGEL,
25   individually and as Village Attorney for the Village of
26   Sea Cliff, THE BOARD OF TRUSTEES FOR THE
27   INCORPORATED VILLAGE OF SEA CLIFF, PAUL
28   MARCHESE, PETER HAYES, ROBERT HAIM and
29   ELENA VILLAFANE, individually and constituting the
30   Board of Trustees, THE ZONING BOARD OF APPEALS
31   OF THE INCORPORATED VILLAGE OF SEA CLIFF,
32   GEORGE BEVAD, THOMAS POWELL, JOHN
33   BRADY, DINA EPSTEIN, JAMES O`DONNELL, and
34   PATRICIA HARRIGAN, individually and constituting
35   current and former members of the Board of Zoning
 1   Appeals, THE PLANNING BOARD FOR THE
 2   INCORPORATED VILLAGE OF SEA CLIFF, JOHN D.
 3   NAGY, FRED EDER, GERARD IZZO, NORMAN
 4   PARSONS and LAURIE MARTONE, constituting the
 5   current members of the Planning Board, and DAVID
 6   DERIENZIS and JEFFREY MONGNO, individually and
 7   as current and former Building Inspectors for the
 8   Incorporated Village of Sea Cliff,
 9
10                     Defendants-Appellees.
11
12
13                                         Adam Francois Watkins (Stephanie F. Bradley and
14                                         Clifford Y. Chen, on the brief), Watkins, Bradley &
15                                         Chen LLP, New York, NY, (Andrew Paul Cooper
16                                         and Jonathan M. Cader, Hession, Bekoff, Cooper &
17                                         Lopiccolo, LLP, Garden City, NY, on the brief), for
18                                         Plaintiffs-Appellants.
19
20                                         Jonathan C. Sullivan (Mark S. Mulholland, on the
21                                         brief), Ruskin Moscou Faltischek, P.C., Uniondale
22                                         NY, for Defendants-Appellees The Incorporated
23                                         Village of Sea Cliff, Eileen Krieb, Claudia Moyne,
24                                         Paul Marchese, Peter Hayes, Robert Haim, Elena
25                                         Villafane, George Bevad, Thomas Powell, John
26                                         Brady, Dina Epstein, James O’Donnell, Patricia
27                                         Harrigan, John D. Nagy, Fred Eder, Gerard Izzo,
28                                         Norman Parsons, Laurie Martone and Jeffrey
29                                         Mongno.
30
31                                         Stanley A. Camhi, Jaspan Schlesinger LLP, Garden
32                                         City, NY, for Defendant-Appellee Richard A.
33                                         Siegel.
34
35                                         Michael L. Cirrito, White, Cirrito & Nally, LLP,
36                                         Hempstead, NY, for Defendant-Appellee David
37                                         DeRienzis.
38
39                                         Thaddeus Rozanski (Andrew J. Mihalick, on the
40                                         brief), Kral, Clerkin, Redmond, Ryan, Perry &
41                                         Girvan, LLP, Mineola, NY, for Defendants-
42                                         Appellees The Board of Trustees, The Zoning Board
43                                         of Appeals, and The Planning Board for the Village
44                                         of Sea Cliff.
45




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 1             UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED

 2   that the judgment of the district court is AFFIRMED.

 3             Plaintiffs-Appellants appeal from the August 18, 2008 order of the United States District

 4   Court for the Eastern District of New York (Wexler, J.), granting the motion of Defendants-

 5   Appellees for attorney’s fees as to all Defendants with the exception of Paul Marchese

 6   (“Marchese”), Claudia Moyne (“Moyne”), and the Village of Sea Cliff (“Village”). We assume the

 7   parties’ familiarity with the underlying facts, procedural history, and specification of the issues on

 8   appeal.

 9             Attorney’s fees may be awarded to a successful defendant in a civil rights action pursuant

10   to 42 U.S.C. § 1988 where the underlying claim is “frivolous, unreasonable, or groundless, or . . .

11   the plaintiff continued to litigate after it clearly became so.” Rounseville v. Zahl, 13 F.3d 625, 632

12   (2d Cir. 1994) (quoting Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986)). “Though a

13   showing that the plaintiff acted in bad faith will further support an award under section 1988, the

14   determination generally turns on whether the claim itself is clearly meritless.” Id. “A claim is

15   frivolous when it lacks an arguable basis either in law or in fact.” Shakur v. Selsky, 391 F.3d 106,

16   113 (2d Cir. 2004) (internal quotation marks omitted). “The determination as to whether a claim

17   was frivolous, unreasonable, or groundless is not a purely factual inquiry. . . . Thus, such a

18   determination is ordinarily reviewed . . . for abuse of discretion.” LeBlanc-Sternberg v. Fletcher,

19   143 F.3d 765, 770 (2d Cir. 1998).

20             This Court has cautioned that:

21             Certain types of judicial rulings strongly indicate that a plaintiff’s claim should not
22             be deemed frivolous . . . . For example, a court cannot properly consider a claim to
23             be frivolous on its face if it finds that the plaintiff must be allowed to litigate the
24             claim. Nor may a claim properly be deemed groundless where the plaintiff has made


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 1           a sufficient evidentiary showing to forestall summary judgment and has presented
 2           sufficient evidence at trial to prevent the entry of judgment against him as a matter
 3           of law.
 4
 5   Id. at 770-71 (internal citations omitted). It would be inappropriate, for example, for a district court

 6   to base a finding of frivolousness upon the fact that a plaintiff’s “witness is disbelieved or an item

 7   of evidence is discounted, disproved or disregarded at trial.” Am. Fed’n of State, Cnty. & Mun.

 8   Emps. v. Cnty. of Nassau, 96 F.3d 644, 652 (2d Cir. 1996) (“AFSCME”); see also Figures v. Bd. of

 9   Pub. Utils., 967 F.2d 357, 362 (10th Cir. 1992) (noting that a plaintiff cannot be expected to

10   “anticipate adverse evidentiary rulings and dismiss a defendant prior to trial or risk being held liable

11   for attorney’s fees”). Nevertheless, even a plaintiff who presents a case sufficient to survive

12   summary judgment is not immunized from a potential award of attorney’s fees to an ultimately

13   successful defendant. Compare AFSCME, 96 F.3d at 651-53 (reversing attorney’s fees award in

14   favor of defendant where district court premised its finding of frivolousness in part on the judge’s

15   conclusion that the plaintiff’s statistical analysis and expert testimony were flawed, a conclusion

16   only possible “based on determinations . . . the district court arrived at with the benefit of effective

17   cross-examination and the counterweight of the [defendant’s] experts and studies”), with

18   Gerena-Valentin v. Koch, 739 F.2d 755, 761 (2d Cir. 1984) (upholding award of attorney’s fees

19   where “[a]t no time . . . did [plaintiff] attempt to produce any evidence whatsoever in support of his

20   retaliation and conspiracy claim”), and Carrion v. Yeshiva Univ., 535 F.2d 722, 728 (2d Cir. 1976)

21   (upholding award of attorney’s fees under similar provision of Title VII, where district court, after

22   trial, “concluded that [plaintiff’s] testimony ‘constituted an unmitigated tissue of lies’”).

23           We see no abuse of discretion in the district court’s decision here. Although the court

24   permitted all of Plaintiffs’ claims to go to trial, it ultimately entered judgment as a matter of law in



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 1   favor of all Defendants other than Marchese and Moyne, and later awarded attorney’s fees only as

 2   to various dismissed Defendants. In deciding to award attorney’s fees as to the latter, the court

 3   noted not only that “there was no evidence whatsoever of unlawful or discriminatory conduct by

 4   these defendants,” Opinion at 2, but also that “there was no reference at trial to most of these

 5   individual defendants,” Opinion at 3 (emphasis added). Plaintiffs failed, in other words, even to

 6   attempt to adduce any evidence that the dismissed Defendants’ alleged differential treatment of

 7   Plaintiffs was based upon impermissible considerations, an essential element of their selective

 8   enforcement claim under 42 U.S.C. § 1983, see LaTrieste Rest. & Cabaret Inc. v. Vill. of Port

 9   Chester, 40 F.3d 587, 590 (2d Cir. 1994), leaving it within the district court’s discretion to conclude

10   that Plaintiffs’ allegations had been without substance from the start, see Gerena-Valentin, 739 F.2d

11   at 761. The district court’s determination that Plaintiffs brought and continued their action against

12   the dismissed Defendants without any arguable basis in fact or law therefore was not an abuse of the

13   court’s discretion. See Shakur, 391 F.3d at 113.

14          Plaintiffs nonetheless contend that an award of attorney’s fees was inappropriate because

15   their claims as to the dismissed Defendants were “closely intertwined” with the claims against

16   Marchese and Moyne that the court permitted the jury to decide. See Colombrito v. Kelly, 764 F.2d

17   122, 132 (2d Cir. 1985). Plaintiffs further note that their claims included allegations of a conspiracy

18   to deprive them of their civil rights under 42 U.S.C. § 1985, and contend that it was appropriate for

19   them to bring claims against all those potentially involved based on purported circumstantial

20   evidence of a conspiracy. Both arguments are without merit. Conspiracy requires at least a tacit

21   understanding between members of the conspiracy to carry out the prohibited conduct alleged, and

22   Plaintiffs presented not even circumstantial evidence of such an understanding between, on the one


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 1   hand, Marchese and Moyne, who were alleged to have made bigoted remarks, and, on the other

 2   hand, any members of the municipal bodies that made the official decisions complained of in this

 3   case. See Rounseville, 13 F.3d at 632. Furthermore, neither Marchese nor Moyne were members

 4   of those municipal bodies or otherwise had voting power in them, and their status as village officials,

 5   standing alone, is insufficient to taint the actions of those bodies. Cf. Cine SK8, Inc. v. Town of

 6   Henrietta, 507 F.3d 778, 786 (2d Cir. 2007). Finally, Plaintiffs’ claims against the dismissed

 7   Defendants were not “closely intertwined” with meritorious claims in the manner of those in

 8   Colombrito, where this Court further noted that the plaintiff’s continued pursuit of non-meritorious

 9   claims even after discovery had turned up no evidence in support of them added little to the overall

10   cost of the litigation. See 764 F.2d at 132. Here, the district court’s fee determination – which

11   Plaintiffs have not challenged – suggests that the litigation costs of the dismissed Defendants were

12   significant.

13           We have considered Plaintiffs’ remaining arguments and find them to be without merit. For

14   the foregoing reasons, the district court’s judgment is AFFIRMED.

15


16


17                                                          FOR THE COURT:
18                                                          Catherine O’Hagan Wolfe, Clerk

19




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