FKB’s Andrew Kowlowitz and Benjamin Oxenburg obtained a pre-answer dismissal from the Southern District of New York on behalf of its client, a boutique environmental, land use, zoning and real estate law firm based in Dutchess County.

The plaintiffs purchased property in the Town of Rhinebeck, New York with the intention of renovating and re-selling it. Plaintiffs were allegedly unaware at the time of purchase that the property was designated as a local historic structure, which required the Town’s site plan approval before it would issue a permit authorizing construction work. Plaintiffs began construction work without the Town’s permission, resulting in various violation notices. FKB’s client represented the Town and the Town Planning Board Zoning Board of Appeals and became the primary point of contact following an incident between one of the plaintiffs and the Town Supervisor. Thereafter, FKB’s client sent plaintiffs a detailed memorandum laying out the site plan approval process and the steps needed to resolve existing code violations. However, plaintiffs contended, despite evidence to the contrary, that their property was not actually designated as a historic structure under the Town’s governing documents. Ultimately, the Town elected not to pursue site-plan approval and issued plaintiffs building permits and a certificate of occupancy. Plaintiffs subsequently completed renovations and re-sold the property approximately one year and five months after its purchase. Notwithstanding the sale, plaintiffs instituted an action against FKB’s client and the Town, claiming that defendants’ alleged misrepresentations about the property’s status delayed construction and caused financial losses through unnecessary compliance efforts, professional fees, and reduced property value.

District Judge Nelson S. Román granted FKB’s FRCP 12(b) motion to dismiss in its entirety, agreeing with our arguments and ruling that plaintiffs had failed to state a cognizable Section 1983 civil rights claim because the client – a private law firm – was not a state actor or government official under Section 1983. Judge Román also ruled that plaintiffs’ various state law claims were untimely (fraud/deceit, negligence, trespass, and prima facie tort) were untimely.

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew Kowlowitz and Benjamin Oxenburg.