DiSanto v. Ulster County Family Court

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________ ________________
Patrick DiSanto
Plaintiff,
1:25-CV-01329
v. 	(AJB/MJK)
Ulster County Family Court
Defendant.
__________________________________________________________
Patrick DiSanto, Plaintiff, pro se
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Anthony J. Brindisi, U.S. District Judge
ORDER and REPORT-RECOMMENDATION
DiSanto commenced this action on September 19, 2025, by filing
what was docketed by the Clerk’s Office as a Complaint, but titled
“Memorandum Of Law & Request For Evidentiary Hearing.” (“Compl.,”
Dkt. No. 1). DiSanto also filed an application to proceed in forma
pauperis. (“IFP”) (Dkt. 2). On September 23, 2025, DiSanto filed what
was docketed by the Clerk’s Office as an Amended Complaint, but titled
“Memorandum Of Law & Request For Evidentiary Hearing.” (“Am.
Compl.,” Dkt. No. 4). On September 24, 2025, DiSanto filed a motion to
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seal. (Dkt. 5). On October 20, 2025, DiSanto filed the following: (a) a
motion for a protective order (Dkt. 8); (b) a petition to perpetuate
testimony pursuant to Rule 27(a) (Dkt. 10); (c) a motion to vacate
judgment for fraud on the court (Dkt. 11); and (d) a motion to seal
respondent list (Dkt. 12) (Dkts. 8, 10, 11, 12 are collectively referred to
as the “October 20, 2025 Motions.”).
On November 5, 2025, this Court issued an Order and Report
Recommendation: (1) granting DiSanto’s IFP application; (2) dismissing
the Amended Complaint without prejudice and with leave to amend
except for the following claims which were dismissed with prejudice and
without leave to amend: (i) claims for negligence or medical malpractice
arising out of DiSanto’s purported “hypoglycemic event” over which the
Court lacks subject matter jurisdiction and which are nevertheless time
barred; (ii) claims for false arrest, excessive force, or both which are
time barred under Section 1983 and Bivens; (iii) claims against the
Ulster Family Court which are barred by the Eleventh Amendment;
and (iv) claims against Judge Cahill and Judge Lalor which are
precluded by the Eleventh Amendment and/or the doctrine of judicial
immunity; (3) denying DiSanto’s motion to seal without prejudice (Dkt.
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5, 5-1); and (4) denying the October 20, 2025 Motions without prejudice.
(Dkt. 13).
On December 9, 2025, United States District Court Judge
Anthony J. Brindisi accepted the Order and Report-Recommendation.
(Dkt. 15). Judge Brindisi afforded DiSanto 30 days to file a second
amended complaint. (Id.). On January 22, 2026, the Court sua sponte
granted DiSanto an additional 30 day to file a second amended
complaint. (Dkt. 19).
DiSanto filed a Second Amended Complaint on January 22, 2026.
(Dkt. 20). On January 26, 2026, DiSanto filed a Memorandum of Law
and Request With Exhibits (Dkt. 21), identical to the document he filed
on September 19, 2025 which was docketed as a Complaint. And on
March 3, 2026, DiSanto filed a motion for leave to file a Third Amended
Complaint. (Dkt. 23). Because DiSanto filed his motion for leave to file a
Third Amended Complaint before the Court had an opportunity to
review the Second Amended Complaint, the Court will grant the
DiSanto’s motion and review the sufficiency of the Third Amended
Complaint. For the reasons discussed below, the Court recommends
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that the Third Amended Complaint be dismissed with prejudice and
without leave to amend.
I. 	STANDARD OF REVIEW
The Court must consider the sufficiency of the allegations set forth
in the Second Amended Complaint considering 28 U.S.C. § 1915, which
provides that a Court shall dismiss the case at any time if it determines
that the action is (i) frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief. See 28 U.S.C. § 1915
(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the Court must
consider whether the Complaint lacks an arguable basis in law or in
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28
U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent
abuses of Court process as well as to discourage the waste of judicial
resources. 	See Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge,
505 F.2d 802, 804 (8th Cir. 1974). Although the Court has a duty to
show liberality toward pro se litigants and must use extreme caution in
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ordering sua sponte dismissal of a pro se Complaint before the adverse
party has been served and has had an opportunity to respond, the Court
still has a responsibility to determine that a claim is not frivolous before
permitting a plaintiff to proceed. See Fitzgerald v. First E. Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district
court may dismiss a frivolous complaint sua sponte even when plaintiff
has paid the filing fee).
To survive dismissal for failure to state a claim, the Complaint
must contain sufficient factual matter, accepted as true, to state a claim
that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).
In addition, Fed. R. Civ. P. 8(a)(2) requires that a pleading contain
a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Although Rule 8 does not require detailed factual
allegations, it does “demand[] more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-
1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016)
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(quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations
that “‘are so vague as to fail to give the defendants adequate notice of
the claims against them’ is subject to dismissal.” Id. (citing Sheehy v.
Brown, 335 F. App’x 102, 104 (2d Cir. 2009)).
The Court will now consider the sufficiency of DiSanto’s Third
Amended Complaint, under the above standards.
I. 	FACTS
On October 11, 2013, DiSanto alleges that the Kingston Police
Department confiscated his personal property and created a property
inventory. (Third Amended Complaint, ¶¶ 13, 14). The seized property
included research materials, personal documents, medical records, and
personal property. (Third Amended Complaint, ¶ 16). The confiscated
items were taken control of by the Ulster County Sheriff’s Office and
transferred to a storage unit in Ulster County. (Third Amended
Complaint, ¶¶ 16, 17). DiSanto alleges that he did not “receive a
constitutionally adequate post-deprivation hearing” regarding his
property and did not “receive meaningful notice providing an
opportunity to contest disposition prior to sale.” (Third Amended
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Complaint, ¶¶ 20, 21). A Sheriff’s Notice of Sale was issued on May 4,
2018. (Third Amended Complaint, ¶ 22).
DiSanto also alleges that he sustained a traumatic brain injury
causing “cognitive impairment and personality change.” (Third
Amended Complaint, ¶ 27). Because of his neurological impairment,
DiSanto requested reasonable accommodations for court proceedings,
which he claims were either denied or ignored. (Third Amended
Complaint, ¶¶ 20, 31).
DiSanto seeks relief under 42 U.S.C § 1983 and 42 U.S.C. § 12132.
II. 	DISCUSSION
A. DiSanto’s claims are time barred
The Cour recommends that the District Court dismiss the Third
Amended Complaint with prejudice and without leave to amend
because DiSanto’s claims are all time barred.
The statute of limitations for Section 1983 claims is New York’s
general statute of limitations for personal injury actions, N.Y. C.P.L.R.
§ 214(5), which is three years. See Lucente v. County of Suffolk, 980
F.3d 284, 308 (2d Cir. 2020) (citation omitted); see also Corsini v. City of
New York, No. 20-CV-05459, 2023 WL 4420113, at *4 (E.D.N.Y. Jul. 10,
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2023) (three year statute of limitations for procedural due process
claims); Keitt v. New York City, 882 F. Supp. 2d 412, 425 (S.D.N.Y.
2011) (three year statute of limitations for ADA claims).
The genesis of DiSanto’s claims is the October 11, 2013
confiscation of his personal property by the Kingston Police Department
followed by the issuance of the Sheriff’s May 4, 2018 Notice of Sale and
attendant court proceeding for which DiSanto requested
accommodations because of his neurological impairments. See generally
(Third Amended Complaint). The events that DiSanto complains about
occurred between 2013-2018, more than a decade ago and well beyond
the three year statute of limitations. DiSanto’s claims are therefore all
time barred and the Court recommends that the Third Amended
Complaint be dismissed with prejudice and without leave to amend.1
III. 	OPPORTUNITY TO AMEND
Generally, before the court dismisses a pro se complaint or any
part of the complaint sua sponte, the court should afford a plaintiff the
opportunity to amend at least once; however, leave to re-plead may be
1 Because the Court is recommending dismissal based on the statute of limitations,
it is not addressing the sufficiency of DiSantos’ claims as pleaded.
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denied where any amendment would be futile. See Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present
when the problem with plaintiff’s causes of action is substantive such
that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted). Any amendment in this case
would be futile because DiSanto cannot allege any additional facts that
would resurrect his time barred claims.
WHEREFORE, based on the findings above, it is hereby
ORDERED, that DiSanto’s motion for leave to file a Third
Amended Complaint is GRANTED, and it is further
RECOMMENDED that the Third Amended Complaint be
DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO
AMEND, and it is further
ORDERED that the Clerk provide DiSanto with a copy of this
Report-Recommendation and Order, along with copies of the
unpublished decisions cited herein in accordance with the Second
Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
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Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)
days within which to file written objections to the foregoing report.2
Such objections shall be filed with the Clerk of the Court. FAILURE
TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984
F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72.
Dated: March 23, 2026.
2 If you are proceeding pro se and are served with this Report-Recommendation and
Order by mail, three additional days will be added to the fourteen-day period,
meaning that you have seventeen days from the date the Report-Recommendation
and Order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the
last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then
the deadline is extended until the end of the next day that is not a Saturday,
Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
___________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Corsini v. City of New York, Not Reported in Fed. Supp. (2023)
2023 WL 4420113
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4420113
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Joseph CORSINI, Plaintiff,
v.
CITY OF NEW YORK, Defendant.
20-CV-05459 (HG) (MMH)
|
Signed July 10, 2023
Attorneys and Law Firms
William R. Maurer, Pro Hac Vice, Institute for Justice, Seattle,
WA, Diana K. Simpson, Pro Hac Vice, Jaba Tsitsuashvili, Pro
Hac Vice, Institute for Justice, Arlington, VA, Jaime Lathrop,
Law Offices of Jaime Lathrop PC, Brooklyn, NY, for Plaintiff.
Darren Michael Trotter, Kerri Ann Devine, NYC Law
Department Office of the Corporation Counsel, New York,
NY, for Defendant.
MEMORANDUM & ORDER
HECTOR GONZALEZ, United States District Judge:
*1 Plaintiff asserts that the City of New York deprived
him of his due process rights secured by the Fourteenth
Amendment and 42 U.S.C. § 1983. ECF No. 32. Defendant
has moved to dismiss those claims. The Court grants
Defendant's motion to dismiss in full for the reasons set forth
below. ECF No. 38. Part of Plaintiff's procedural due process
claim is barred by the statute of limitations, and the remainder
of his procedural claim fails on the merits. Any substantive
due process claim that Plaintiff might attempt to assert would
also fail on the merits.
FACTUAL BACKGROUND
This case arises from Plaintiff's construction of a pigeon
coop on the roof of his home and penalties imposed by the
City's Department of Buildings (“DOB”), which Plaintiff paid
after receiving administrative hearings before a City tribunal
related to some of those penalties. The essence of Plaintiff's
claim is that some of these penalties, which he refers to as
“unreviewable violations,” violate his constitutional right to
procedural due process because they may not be contested
before a City tribunal and instead must be paid immediately.
Plaintiff alleges that the DOB has an enforcement unit that
prosecutes violations of the City's building code before the
Office of Administrative Trials and Hearings (“OATH”),
which “is the central administrative tribunal for the City.”
ECF No. 32 ¶¶ 19, 21. When the DOB discovers a violation
of the building code that it decides to enforce, it issues
a “Notice of Violation and a Hearing” to the property
owner, which “initiates the enforcement process,” including
by scheduling a hearing date before OATH. Id. ¶ 40; ECF
No. 39-1. 1 Plaintiff's complaint refers to these notices of
violations that culminate in an administrative hearing before
a neutral tribunal, albeit a tribunal also set up by the City, as
“reviewable violations.” ECF No. 32 ¶ 39.
1 Plaintiff's operative complaint refers to all of
the documents that he received from the City
as “notices of violations.” See generally ECF
No. 32. However, Defendant has provided the
actual documents that Plaintiff received from the
City notifying him of these violations, which
are incorporated by reference into Plaintiff's
complaint. See ECF No. 39. Those documents
demonstrate that the documents that Plaintiff refers
to as “reviewable violations” were each entitled
“Notice of Violation and Hearing,” whereas the
documents that Plaintiff refers to as “unreviewable
violations” were entitled simply “Notice of
Violation.” See, e.g., ECF Nos. 39-1 & 39-9. In
this decision, the Court will primarily use the
nomenclature that Plaintiff uses in his complaint
because of the length and similarity of the names
that the City assigns to these different types of
documents.
OATH contains a division in which a property owner—or
the City if the City is the losing party during the initial
OATH hearing—may file an administrative appeal. Id. ¶ 74.
Generally, if the property owner was the losing party at the
initial hearing, then he must pay any fines imposed while
the administrative appeal is pending, unless he successfully
applies for a waiver of the immediate payment requirement.
Id. ¶ 75. Plaintiff alleges that whether to grant a waiver
pending appeal falls within the “sole discretion” of OATH's
Chief Administrative Law Judge or “her designee” and
that “[t]here are no standards in any City ordinance, code
provision, or rule to guide the Chief Judge or her designee
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in exercising such discretion.” Id. ¶ 77. If OATH's appeals
division rules in favor of the property owner, it has the
authority to order the City to pay back any penalties paid by
the property owner while the appeal was pending, although
Plaintiff alleges that “[t]here is no requirement that the City
pay interest on any funds it repays.” Id. ¶¶ 78–79. A property
owner may further appeal a decision by OATH's appeals
division by filing a proceeding in New York state court
pursuant to Article 78 of New York's Civil Practice Law and
Rules, which “proceedings provide for limited judicial review
of final administrative decisions.” Id. ¶¶ 81–82.
*2 Plaintiff was thrust into the DOB's administrative
enforcement process because, as mentioned above, he built a
pigeon coop on the roof of his home in Queens. ECF No. 32 ¶
94. After a neighbor complained to the DOB about the coop,
a DOB inspector visited Plaintiff's property, and the DOB
issued to Plaintiff two Notices of Violation and a Hearing on
September 20, 2016, i.e., the type of violations that Plaintiff
calls “reviewable violations.” Id. ¶ 97. The DOB classified
Plaintiff's violations as Class 1, which carried a “standard
penalty” of $1,600 at that time. Id. ¶¶ 97–98. The DOB issued
two reviewable violations for the same pigeon coop because
the coop spanned both units of Plaintiff's duplex, and the
DOB therefore determined that the coop made two properties
noncompliant with the building code. Id. ¶ 100.
The DOB's initial notices of these reviewable violations
scheduled a hearing before OATH that was eventually set for
January 2017. Id. Plaintiff alleges that, during the intervening
period, he hired an architect and attempted to work with
the City to bring his pigeon coop into compliance with
the building code, but that the City was not cooperative
in explaining how the coop could be made compliant. Id.
¶ 101. During this period, on November 19, 2016, the
DOB inspected Plaintiff's property again and issued two
more reviewable violations. Id. ¶ 103. These new reviewable
violations were based on Plaintiff's failure to certify that he
had brought his property into compliance following the first
set of reviewable violations. Id. This second set of reviewable
violations also scheduled a hearing before OATH in January
2017. Id.
Plaintiff ultimately decided to dismantle his pigeon coop
rather than to bring it into compliance with the City's building
code because doing so would have been “prohibitively
expensive,” particularly because it would have required
Plaintiff to install sprinklers on the coop. ECF No. 32 ¶
108. He hired an attorney to represent him at his OATH
hearing in an attempt to mitigate the penalties the DOB would
impose. Id. ¶ 114. After Plaintiff's initial OATH hearing in
January 2017, OATH conducted two more hearings, the last
of which occurred on November 21, 2017. Id. ¶¶ 115–16.
While that process was pending, the DOB issued Plaintiff two
more reviewable violations related to his failure to bring the
pigeon coop into compliance with the building code—one on
February 2, 2017, and another on April 5, 2017. Id. ¶ 117; see
also ECF Nos. 39-5 & 39-6.
Throughout the hearing process, OATH issued six separate
decisions, one corresponding to each of the six reviewable
violations, and the last of which was issued on November
21, 2017. ECF Nos. 39-2, 39-4, 39-7, 39-8. These decisions
collectively reduced any of Plaintiff's Class 1 penalties to
Class 2 penalties, meaning that they each carried a penalty
of $800 per violation, which amounted to a total penalty of
$4,800. ECF No. 32 ¶¶ 115–16. Plaintiff declined to appeal
the decisions to OATH's appeals division, which would have
preserved his ability to bring an Article 78 proceeding in state
court, because Plaintiff faced the prospect of the decision
becoming less favorable to him on appeal and potentially
having the penalties increased back to the Class 1 amount.
Id. ¶¶ 121–22. The fact that Plaintiff would have needed
to pay the reduced penalties while the appeal was pending
—assuming that he did not successfully obtain a waiver—
made an appeal even less palatable to him. Id. ¶¶ 122–23.
Plaintiff also believed that obtaining a waiver was unlikely
and reached the conclusion that he was “not rich enough to
bear the entire penalty without real financial pain, but not poor
enough to qualify for a hardship exception.” Id. ¶ 124.
In the midst of the notices of reviewable violations, hearings,
and administrative decisions described above, the City sent
Plaintiff two more documents entitled “Notice of Violation”
on December 14, 2016, one for each of Plaintiff's properties
affected by the pigeon coop. ECF No. 32 ¶ 106; ECF No.
39-9. Each of these imposed a penalty of $1,500, meaning
a total penalty of $3,000. ECF No. 39-9. The documents
informed Plaintiff that these penalties were “in addition to any
penalties imposed as a result of a hearing at [OATH] and any
other D.O.B. civil penalties associated with the underlying
violation.” Id. The documents did not expressly set an OATH
hearing date for Plaintiff to challenge the penalties. Id.
Plaintiff alleges that these notices were different from the
others he received and purportedly imposed “unreviewable
violations” that could not be defeated through an OATH
hearing. ECF No. 32 ¶ 106. However, Plaintiff alleges that he
did not understand the unreviewable nature of these violations
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at the time they were issued and that he instead believed
that these penalties “would be adjudicated together with the
violations he received in September and November 2016, at
the ECB/OATH hearing that was scheduled for January 3,
2017.” Id. Plaintiff asserts that it was not until he received his
final OATH hearing decision on November 21, 2017, that he
learned that “he had not, and would never, receive a hearing”
for these purportedly “unreviewable violations.” Id. ¶ 119.
*3 The City, on the other hand, offers a different
characterization of the “Notice of Violation” documents sent
to Plaintiff in December 2016. The City says that these
documents imposed “civil penalties” authorized by the City's
administrative code for Class 1 violations that a property
owner fails to remedy. ECF No. 40 at 5. Although a property
owner does not receive a separate OATH hearing to contest
these civil penalties, the City claims that they must be tied
to a viable notice of violation related to a Class 1 violation
and that, if a property owner defeats an underlying Class
1 violation during an OATH hearing, the civil penalties are
“rendered unenforceable.” Id. The City says this is exactly
what happened to Plaintiff—that OATH reduced his total
penalties by reducing all of his Class 1 violations to Class
2 violations, which rendered unenforceable the separate civil
penalties imposed in December 2016. Id. Plaintiff, however,
alleges that he paid the City in 2018, after the conclusion of
his OATH hearing process, a total of $7,800—i.e., $4,800 for
the penalties reduced by the OATH decisions plus the $3,000
imposed by the purportedly “unreviewable violations.” ECF
No. 32 ¶ 120.
Plaintiff's complaint contains only one cause of action, a
claim pursuant to 42 U.S.C. § 1983 that the City's process
for imposing and adjudicating violations of its building
code deprived Plaintiff of his due process rights under the
Fourteenth Amendment. Id. ¶¶ 139–40. Plaintiff has brought
this claim solely against the City, rather than any individual
defendants, pursuant to Monell v. Department of Social
Services, 436 U.S. 658 (1978). Id. ¶ 145. Although Plaintiff's
complaint appears to focus predominantly on violations of his
rights to procedural due process, it also includes an allegation
that the City's policy for handling building code violations
“was arbitrary and shocking to the conscience and was so
brutal and offensive as to not comport with traditional ideas of
fair play and decency,” which suggests that he is also asserting
a substantive due process claim. Id. ¶ 153.
Plaintiff commenced this case by filing his initial complaint
on November 10, 2020, barely less than three years after
receiving the decision from his final OATH hearing. ECF No.
1. After the parties exchanged pre-motion letters regarding
a proposed motion to dismiss by the City, Judge Brodie,
who previously presided over this case, permitted Plaintiff to
amend his complaint. See ECF Nos. 14, 15, 17, 18; ECF Order
dated Feb. 18, 2021. The City then moved to dismiss that
amended complaint, and Judge Brodie granted that motion,
finding that Plaintiff's claim was barred by the statute of
limitations. ECF No. 31. She held that Plaintiff's due process
claim accrued when the City issued its first pair of so-
called reviewable violations on September 20, 2016, and that
Plaintiff failed to commence his lawsuit within three years
of that date. Corsini v. City of New York, No. 20-cv-5459,
2021 WL 5999631, at *9 (E.D.N.Y. Dec. 20, 2021). Judge
Brodie rejected Plaintiff's argument that each day that the City
failed to provide him with an OATH hearing to contest the
pair of purportedly “unreviewable violations” that the City
had issued on December 14, 2016, represented a continuing
violation that rendered his due process claim timely. Id. at *9–
10.
However, Judge Brodie permitted Plaintiff to amend his
complaint yet again to attempt to allege a due process
violation that occurred within the statute of limitations period.
Corsini, 2021 WL 5999631, at *10. She explained that
Plaintiff's second amended complaint “must allege that the
City's failure to provide a hearing [on the unreviewable
violations] compounded Plaintiff's injury following the
issuance of the initial notices or that the continuing violation
doctrine otherwise applies.” Id. Plaintiff responded by filing
a second amended complaint, which added allegations
explaining that he did not understand until his OATH hearings
concluded in November 2017 that he would not be permitted
to contest the validity of the unreviewable violations at those
hearings and would instead be permitted to challenge only
the reviewable violations. See ECF No. 32 ¶¶ 8, 106–07,
113, 115–20, 130, 146, 160; see also ECF No. 43 at 5
(Plaintiff's brief explaining that these paragraphs contain his
new allegations). The City has moved to dismiss that second
amended complaint. ECF No. 38.
LEGAL STANDARD
*4 A complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). 2 “A claim is plausible ‘when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
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misconduct alleged.’ ” Matson v. Bd. of Educ., 631 F.3d 57,
63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). Although all allegations contained in a complaint
are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
2 Unless noted, case law quotations in this order
accept all alterations and omit internal quotation
marks, citations, and footnotes.
When deciding a motion to dismiss, the Court “may consider
the facts alleged in the complaint, documents attached to
the complaint as exhibits, and documents incorporated by
reference in the complaint.” United States ex rel. Foreman
v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021). The Court may
therefore consider the notices of building code violations
that Plaintiff received from the City, along with the OATH
hearing decisions disposing of those violations, because,
although Defendant was the party that provided copies of
those documents as part of its motion to dismiss, Plaintiff
incorporated the documents by reference into his operative
complaint.
DISCUSSION
Plaintiff's claim that the so-called unreviewable violations
that he received in December 2016 violated his right to
due process because they could not be challenged through
an administrative hearing or other process fails because the
claim is barred by the statute of limitations. To the extent
Plaintiff makes a procedural due process challenge to the so-
called reviewable violations, for which he received hearings
before OATH, that challenge fails on the merits because the
additional procedural safeguards that Plaintiff demands were
not required to satisfy the Fourteenth Amendment. Finally,
the deprivation of money and unfettered use of his home to
which Plaintiff was subjected does not shock the conscience,
so the substantive due process claim alluded to in Plaintiff's
complaint also fails.
I. The Statute of Limitations Bars Plaintiff's Claims
Based on the Purportedly “Unreviewable Violations”
The length of the statute of limitations for a Section 1983
claim is determined by state law, but federal law governs
when a Section 1983 claim accrues—i.e., when the statute
of limitations begins to run. Barnes v. City of New York, 68
F.4th 123, 127 (2d Cir. 2023); see also Reed v. Goertz, 143
S. Ct. 955, 961 (2023) (stating that the question of when the
“limitations period began to run” for Section 1983 procedural
due process claim was “one of federal law”). “The statute of
limitations applicable to § 1983 claims in New York is three
years,” including for procedural due process claims. Pulte
Homes of N.Y. LLC v. Town of Carmel, 736 F. App'x 291, 293
(2d Cir. 2018) (affirming dismissal of procedural due process
claims brought pursuant to Section 1983).
At the motion to dismiss stage, the Court must assume that
Plaintiff accurately alleges that the unreviewable violations
he received in December 2016 were, in fact, unreviewable
through an OATH hearing or any other administrative
proceeding. The Court, therefore, disregards the City's
contrary assertions that Plaintiff could (and did) defeat
the penalties associated with the unreviewable violations
by using his OATH proceedings on the corresponding
reviewable violations to have his Class 1 penalties reduced to
Class 2 penalties. See ECF No. 40 at 5. The administrative
rules cited by the City do not unambiguously compel this
conclusion, and Plaintiff alleges that he paid the penalties
associated with the unreviewable violations. Id.; ECF No. 32
¶ 120. The question of what process the City provides to
challenge the so-called unreviewable violations issued by the
DOB is therefore a disputed issue of fact.
*5 But assuming that the December 2016 Notices of
Violations were unreviewable, as Plaintiff alleges, means that
the statute of limitations defeats his claim. The Supreme Court
has recently clarified that a Section 1983 due process claim
“is not complete when the deprivation occurs” but instead is
“complete only when the State fails to provide due process.”
Reed, 143 S. Ct. at 961. Since Plaintiff alleges that the City did
not provide any further process once the monetary penalties
associated with the unreviewable violations were imposed in
December 2016, his Section 1983 claim accrued immediately
and expired in December 2019, approximately eleven months
before he filed this lawsuit.
Plaintiff incorrectly contends that his “challenge to the City's
failure to provide hearings for its unreviewable violations did
not fully accrue until the City concluded its administrative
proceedings and failed to provide him with a hearing.” ECF
No. 43 at 1. The Second Circuit has held that “claims brought
under [Section] 1983 ... typically accrue when the plaintiff
knows or has reason to know of the injury which is the
basis of his action.” Barnes, 68 F.4th at 127. “[A] plaintiff's
knowledge is sufficient to trigger accrual when [he] know[s]
enough of the critical facts of injury and causation to protect
himself by seeking legal advice.” Abdel-Fakhara v. Vermont,
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No. 22-2543-cv, 2023 WL 3486236, at *1 (2d Cir. May
17, 2023) (affirming dismissal of procedural due process
claim). Even if this standard is not purely objective, and
instead allows the Court to inquire into Plaintiff's subjective
knowledge, Plaintiff's claims would still be time barred.
The Notices of Violations that Plaintiff contends were
unreviewable expressly indicated that they were related to
the reviewable violations that the DOB had already issued
to Plaintiff in September 2016; each unreviewable violation
referred to the same unique identifying number assigned
to each of the earlier, reviewable violations. Compare ECF
No. 39-1, with ECF No. 39-9. Plaintiff received decisions
from OATH rejecting his challenges to the underlying
reviewable violations in January 2017, during which time
he was represented by an attorney. See ECF No. 39-2
(decisions reflecting that Plaintiff's attorney was present at the
OATH hearings); see also ECF No. 32 ¶ 115 (alleging that
Plaintiff was “[r]epresented by his attorney” during the OATH
hearings).
Accordingly, even if Plaintiff, as a non-lawyer, could not
reasonably have known in December 2016, immediately upon
receiving the supposedly unreviewable violations, that the
$3,000 in penalties that they imposed were unreviewable,
he should have known that no later than January 2017.
At that later point, Plaintiff's penalties for the underlying
reviewable violations had been decided, and the City,
according to Plaintiff, had not given him an opportunity
to challenge the additional penalties attributable to the
unreviewable violations. The fact that Plaintiff continued to
participate in proceedings before OATH in March 2017 and
November 2017 to contest additional, reviewable violations
does not change that outcome. Those additional proceedings,
which were related to different violations, could not have
impacted whether Plaintiff reasonably believed he would
receive further opportunities to challenge the December 2016
violations, especially since Plaintiff had a lawyer, with whom
Plaintiff could easily have conferred “to protect himself
by seeking legal advice.” See Abdel-Fakhara, 2023 WL
3486236, at *1. Nor does it matter that Plaintiff did not pay
any of the penalties until February 2018, after the conclusion
of all his hearings. See ECF No. 32 ¶ 120; Pulte Homes, 736
F. App'x at 294 (holding that Section 1983 procedural due
process claim accrued when town passed resolution imposing
fees related to construction project, not when plaintiff actually
paid the fees at a later date).
*6 The continuing violation doctrine does not save Plaintiff's
procedural due process challenge to the unreviewable
violations issued in December 2016. The continuing violation
doctrine is “an exception to the normal knew-or-should-have-
known accrual date rule,” and it “treats a series of separate
acts that collectively constitute one unlawful practice as a
single composite entity when the resulting claims by their
nature accrue only after the plaintiff has been subjected to
some threshold amount of mistreatment.” DeSuze v. Ammon,
990 F.3d 264, 271 (2d Cir. 2021) (affirming dismissal of
Section 1983 procedural due process claims). Although the
continuing violation doctrine can apply to Section 1983
claims, it does not apply when “plaintiffs complain of discrete
acts separated in time.” Id. at 272.
Plaintiff's allegation that the City imposed penalties that
he was not permitted to challenge through an OATH
hearing or any other procedural mechanism was a discrete
act that occurred in December 2016 when the supposedly
unreviewable violations were imposed. The fact that the City
still has not made any administrative review process available
to Plaintiff does not render his claim timely because “a
continuing violation cannot be established merely because
the claimant continues to feel the effects of a time-barred
act.” DeSuze, 990 F.3d at 272 (holding that continuing
violation doctrine did not apply to rent increases approved
outside statute of limitations period even though plaintiffs
continued to pay those increased rents during the limitations
period); see also Gonzalez v. Hasty, 802 F.3d 212, 223 (2d
Cir. 2015) (continuing violation doctrine did not apply to
procedural due process Bivens claim based on prisoner's
detainment in special housing unit without receiving proper
notice even though prisoner continued to be detained there
during limitations period). If Plaintiff's continuing violation
argument were taken to its logical endpoint, then the statute
of limitations for a procedural due process claim would never
expire because every day that a plaintiff does not receive the
particular form of due process he desires would constitute a
continuing violation.
II. The City Provided Adequate Procedural Due
Process for Plaintiff to Challenge the “Reviewable
Violations”
Plaintiff's complaint alleges that the City's imposition of
penalties associated with the so-called reviewable violations
did not provide him with the procedural due process required
by the Constitution because the City's OATH hearings entail
a variety of procedural deficiencies. ECF No. 32 ¶ 146. In
particular, Plaintiff faults the City's and State's administrative
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process for failing to require compliance with New York's
rules of evidence, requiring him to pay any penalty imposed
during an OATH hearing pending an appeal, and supposedly
prohibiting him from asserting constitutional challenges in
any Article 78 proceeding commenced in state court. Id. Since
at least one of the City's reviewable violations was imposed
after an OATH hearing that occurred in November 2017, less
than three years before Plaintiff filed his original complaint,
Plaintiff's challenge to that reviewable violation is not barred
by the statute of limitations. However, it fails on the merits
because the procedural protections provided to Plaintiff were
adequate.
The parties agree that “the existence of a procedural due
process right is guided by the three-factor balancing test
enunciated in Mathews v. Eldridge, 424 U.S. 319 (1976).”
Liberian Cmty. Ass'n of Conn. v. Lamont, 970 F.3d 174, 191
(2d Cir. 2020); see ECF No. 40 at 14 (Defendant's brief
applying the Mathews test); ECF No. 43 at 17 (Plaintiff's brief
applying the Mathews test). That balancing test requires the
Court to consider the following factors:
*7 First, the private interest that
will be affected by the official action;
second, the risk of an erroneous
deprivation of such interest through
the procedures used, and the probable
value, if any, of additional or substitute
procedural safeguards; and finally,
the Government's interest, including
the function involved and the fiscal
and administrative burdens that the
additional or substitute procedural
requirement would entail.
Doolen v. Wormuth, 5 F.4th 125, 134 (2d Cir. 2021) (affirming
dismissal of procedural due process claims).
After balancing these factors, the Court finds that the City
did not violate Plaintiff's due process rights by failing to
include in its OATH hearings the additional procedural
safeguards that Plaintiff demands. The administrative hearing
that Plaintiff received before OATH did not violate due
process even though the CPLR and New York's rules of
evidence did not apply during the hearing. See Union Square
Supply Inc. v. De Blasio, 572 F. Supp. 3d 15, 24 (S.D.N.Y.
2021) (dismissing procedural due process claims because
plaintiff was “entitled to a pre-deprivation hearing before an
OATH hearing officer”). The fact that Plaintiff alleges that, as
a result of the OATH proceedings, some of his penalties were
reduced, further demonstrates the procedural adequacy of the
proceedings. See Nestle Waters N. Am., Inc. v. City of New
York, 689 F. App'x 87, 88 (2d Cir. 2017) (explaining that “[t]he
most persuasive fact” justifying dismissal of procedural due
process claims “[was] that [plaintiff] successfully overturned
38 summonses through the [Parking Violations Bureau]/
Article 78 review procedures”). Judge Brodie has already
rejected Plaintiff's argument that requiring a party to pay a
penalty while an appeal is pending violates due process, and
the Court agrees with her conclusion. See Corsini, 2021 WL
5999631, at *9 n.14 (citing Sheng v. City of New York, No.
05-cv-1118, 2009 WL 6871132, at *10 (E.D.N.Y. June 26,
2009), report and recommendation adopted in full, 2010 WL
3744428 (E.D.N.Y. Sept. 20, 2010) (dismissing Section 1983
claims on summary judgment)).
Plaintiff's ability to bring an Article 78 proceeding in state
court to challenge OATH's decision further counsels against
requiring OATH to adopt additional procedural protections
prior to depriving Plaintiff of money or other property
rights. The City need only provide a “minimal” hearing prior
to depriving a person of their property or liberty interest,
so long as the aggrieved person may take advantage of
“the availability of a full post-deprivation hearing” provided
through an Article 78 proceeding. Locurto v. Safir, 264 F.3d
154, 173–74 (2d Cir. 2001) (granting summary judgment
dismissing procedural due process claim); see also King v.
City of New York, No. 22-231-cv, 2023 WL 2398679, at
*3 (2d Cir. Mar. 8, 2023) (confirming continued validity of
Locurto and affirming dismissal of procedural due process
claim, pursuant to Rule 12(b)(6), because plaintiff “had the
opportunity to seek post-deprivation relief in New York state
court under Article 78 of the New York Civil Practice Law
and Rules”). Even if the penalties imposed on Plaintiff were
sufficiently small that pursuing an Article 78 proceeding
would not make financial sense, the availability of OATH's
“written appeal process,” which Plaintiff declined to pursue,
“in addition to the availability of the Article 78 proceeding[,]
reduce[d] the risk of erroneous deprivation such that the
Mathews test does not require additional procedures.” Bens
BBQ, Inc. v. Cty. of Suffolk, 858 F. App'x 4, 7 (2d Cir. 2021)
(affirming dismissal of procedural due process claim).
*8 Plaintiff's arguments that an Article 78 proceeding is
an inadequate post-deprivation vehicle for challenging the
City's actions cannot rehabilitate his otherwise defective due
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process claim. The Second Circuit “ha[s] held on numerous
occasions that an Article 78 proceeding is a perfectly adequate
post-deprivation remedy.” Gentleman v. State Univ. of N.Y.
Stony Brook, No. 21-1102-cv, 2022 WL 1447381, at *2 (2d
Cir. May 9, 2022) (affirming grant of motion to dismiss
procedural due process claim). Accordingly, the Second
Circuit frequently affirms the dismissal of procedural due
process claims brought by plaintiffs who had an Article 78
proceeding available to them. See, e.g., Attallah v. N.Y. Coll.
of Osteopathic Med., 643 F. App'x 7, 10 (2d Cir. 2016)
(affirming dismissal of Section 1983 procedural due process
claim based upon expulsion from medical school); Morgan
v. Cty. of Warren, No. 22-345-cv, 2022 WL 13691731, at
*2 (2d Cir. Oct. 24, 2022) (affirming dismissal of Section
1983 procedural due process claim brought by terminated
civil service employee). Plaintiff's assertion that he could not
have used an Article 78 proceeding to raise a constitutional
challenge to the process that the City provided him is legally
inaccurate; “[i]ndividuals who bring Article 78 proceedings
to challenge determinations against them are free to raise
constitutional claims in such proceedings.” Pascazi v. Rivera,
No. 13-cv-9029, 2015 WL 845839, at *5 (S.D.N.Y. Feb.
26, 2015) (dismissing Section 1983 procedural due process
claim). As the New York Court of Appeals has explained,
plaintiffs are not entitled to commence Article 78 proceedings
to challenge a “law or statute of general applicability,”
but if a plaintiff has a particular law applied to him
through an administrative proceeding, he may challenge the
constitutionality of that law in any ensuing Article 78 review
of the administrative proceeding. Solnick v. Whalen, 401
N.E.2d 190, 195 (N.Y. 1980); see also Walton v. N.Y. State
Dep't of Corr. Servs., 863 N.E.2d 1001, 1005 (N.Y. 2007)
(holding that petitioners’ “constitutional claims ... could have
been resolved in an article 78 proceeding”).
For the reasons described in this section, the administrative
proceedings available to Plaintiff appropriately guarded
against the erroneous deprivation of his rights, and the
additional protections for which Plaintiff advocates would
provide little additional value, so that the second factor of
the Mathews test weighs heavily against Plaintiff. Even if the
Court were to reject Defendant's characterization of Plaintiff's
property rights at issue as “minimal” and ignore Defendant's
assertion that it would cost the City “millions of dollars
of taxpayer funds” to provide the additional protections
Plaintiff seeks, see ECF No. 40 at 15–17, the latter being an
unsupported question of fact at this stage, the Court would still
conclude that the procedural due process afforded to Plaintiff
was constitutionally adequate.
III. Plaintiff's Substantive Due Process Claim Fails
Plaintiff's complaint refers in passing to the City's conduct
as “shocking to the conscience,” “brutal,” and “offensive,”
which is typically language that courts use when dealing with
substantive due process claims. ECF No. 32 ¶ 153. To allege a
substantive due process claim, a plaintiff “must demonstrate
that the state action was so egregious, so outrageous, that
it may fairly be said to shock the contemporary conscience.
The interference with the plaintiff's protected right must be
so shocking, arbitrary, and egregious that the Due Process
Clause would not countenance it even were it accompanied
by full procedural protection.” Hurd v. Fredenburgh, 984 F.3d
1075, 1087 (2d Cir. 2021). To the extent Plaintiff is asserting
a substantive due process claim, it borders on frivolous and
fails on the merits.
Although the penalty Plaintiff paid was significant, its amount
was not shocking, and the City's attempt to regulate the
manner in which Plaintiff built a pigeon coop on his property
was not offensive, as Plaintiff contends. The Second Circuit
has held in recent years that even greater deprivations of a
person's liberty do not shock the conscience and, therefore,
do not give rise to substantive due process claims. See
Dabah v. Franklin, No. 22-845-cv, 2023 WL 3577872, at *2
(2d Cir. May 22, 2023) (affirming dismissal of substantive
due process claim based on loss of parent's visitation
rights, along with his rights to “ma[k]e decisions about the
medical treatment, education, and religious instruction of
[his] children”); Salem v. City of New York, 811 F. App'x 678,
683 (2d Cir. 2020) (dismissing substantive due process claims
based on corrections officers’ continued custody of plaintiff
because they had no duty to inform him that his bail had been
reduced to one dollar); Horton v. Westling, 765 F. App'x 531,
532, 533 (2d Cir. 2019) (affirming dismissal of substantive
due process claim based on student's suspension “for most of
his senior year of high school,” which was allegedly achieved
through biased process that favored school officials).
CONCLUSION
*9 For the reasons set forth above, the Court GRANTS in
full Defendant's motion to dismiss Plaintiff's second amended
complaint with prejudice. ECF No. 38.
SO ORDERED.
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Corsini v. City of New York, Not Reported in Fed. Supp. (2023)
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All Citations
Not Reported in Fed. Supp., 2023 WL 4420113
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Corsini v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (5)
Title PDF Court Date Type
1. Reply Brief of Appellant
Joseph CORSINI, Plaintiff - Appellant, v. CITY OF NEW
YORK, Defendant - Appellee.
2023 WL 8018236
— C.A.2 Nov. 14, 2023 Brief
2. Brief for Appellee
Joseph CORSINI, Plaintiff-Appellant, v. CITY OF NEW
YORK, Defendant-Appellee.
2023 WL 7320537
— C.A.2 Oct. 31, 2023 Brief
3. Brief of Appellant
Joseph CORSINI, Plaintiff - Appellant, v. CITY OF NEW
YORK, Defendant - Appellee.
2023 WL 6461256
— C.A.2 Sep. 26, 2023 Brief
4. Docket 23-1065
Corsini v. City of New York
— C.A.2 July 20, 2023 Docket
5. Docket 1:20-CV-05459
Corsini v. City of New York
— E.D.N.Y. Nov. 10, 2020 Docket
Case 1:25-cv-01329-AJB-MJK Document 24 Filed 03/23/26 Page 19 of 20

Corsini v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. Corsini v. City of New York
2023 WL 4420113 , E.D.N.Y. , July 10, 2023
Affirmed by
2. Corsini v. City of New York
2024 WL 2270130 , 2nd Cir.(N.Y.) , May 20, 2024
Related References (1)
3. Corsini v. City of New York
2021 WL 5999631 , E.D.N.Y. , Dec. 20, 2021
Case 1:25-cv-01329-AJB-MJK Document 24 Filed 03/23/26 Page 20 of 20