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17-956 

Pistolesi v. Calabrese

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 ASUMMARY ORDER@). A PARTY 

CITING TO 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 

24th of January, two thousand eighteen. 

PRESENT: 

DENNIS JACOBS,

PETER W. HALL, 

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________ 

RENATO PISTOLESI, ALLTOW, INC., 

ACTION AUTOMOTIVE COLLISION & 

MECHANICAL INC., 

 Plaintiffs-Appellants, 

-v.- 17-956 

CARL CALABRESE, individually, 

MARTIN NOVICK, individually, 

MATTHEW ALEXANDER, individually, 

JENNIFER NIZNIK, individually, 

PAUL ITALIANO, individually, ALAN 

WEITLICH, individually, JOHN 
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VISENTIN, VILLAGE OF WAPPINGERS 

FALLS, DENISE CALABRESE, 

 Defendants-Appellees, 

BRIAN SMITH, individually, JOSH 

KEMLAGE, individually, J. ERNS, 

individually, SEAN MCNEIL, 

individually, M.A. RODRIGUEZ, 

individually, RAFAEL TORRES, 

individually, P. CAPPARELLI, 

individually, MARK LIBERMANN, 

individually, MARK KEMLAGE, 

individually, 

 Defendants. 

__________________________________ 

FOR PLAINTIFFS-APPELLANTS: MICHAEL H. SUSSMAN, Sussman & 

Associates, Goshen, NY. 

 

FOR DEFENDANTS-APPELLEES: MONTGOMERY L. EFFINGER, O’Connor, 

McGuinness, Conte, Doyle, Oleson, 

Watson & Loftus, LLP, White 

Plains, NY. 

 

Appeal from a judgment of the United States District Court 

for the Southern District of New York (Aspen, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

 

 This challenge to the denial of an injunction ordering the 

Village of Wappingers Falls (“the Village”) to reinstate one 

of the plaintiff companies (“Action”) to the Village’s 

rotational tow list returns to us following a remand that 

instructed the United States District Court for the Southern 

District of New York (Aspen, J.) to “reconsider Action’s 

request” in light of our disagreement with the court’s 

conclusion that such an injunction would constitute 

impermissible retroactive relief. Pistolesi v. Calabrese, 666 

F. App'x 55, 59 (2d Cir. 2016) (citing Dwyer v. Regan, 777 F.2d 

825, 836 (2d Cir. 1985) (holding that reinstatement constitutes 

prospective relief)). Our order of remand “express[ed] no 

opinion on the merits of Action’s request.” Id. We assume the 
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parties’ familiarity with the underlying facts, the procedural 

history, and the issues presented for review. 

 

 “[I]f an [entity] claims [that a] federal law immunizes 

[it] from [a] state regulation, [a federal] court may issue an 

injunction upon finding the state regulat[ion] [] preempted.” 

Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 

(2015) (citing Ex parte Young, 209 U.S. 123, 155–56 (1908)). 

However, a court presented with a request for injunctive relief 

must determine whether--in view of equitable considerations and 

any applicable statutory limitations--the particular 

injunction sought “is an appropriate remedy to be granted” in 

that case. Dwyer, 777 F.2d at 836. 

 Prior to the remand, Action successfully petitioned the 

district court for a declaratory judgment that Requirement 4 

of the Village’s tow-list guidelines was preempted by 49 U.S.C. 

§ 14501(c)(1), and for an injunction barring the Village from 

enforcing that requirement. See Armstrong, 135 S. Ct. at 1384 

(“[I]n a proper case, relief may be given in a court of equity 

. . . to prevent an injurious act by a [local official].” (first 

alteration in original) (internal quotation marks omitted)). 

On remand, the district court denied the additional injunctive 

relief that Action had requested--reinstatement to the tow 

list--on the ground that it would not be “an appropriate 

remedy.” Dwyer, 777 F.2d at 836. The court reasoned that 

Action’s request amounted to an attempt to enforce 

§ 14501(c)(1), which does not give rise to a private right of 

action. See Armstrong, 135 S. Ct. at 1385 (a party “cannot, 

by invoking [a federal court’s] equitable powers, circumvent 

Congress’s exclusion of private enforcement”); see also W. Air 

Lines, Inc. v. Port Auth. of New York & New Jersey, 817 F.2d 

222, 225 (2d Cir. 1987) (“A claim under the Supremacy Clause 

that a federal law preempts a state regulation is distinct from 

a claim for enforcement of that federal law.”). 

 We review the district court’s denial of the requested 

injunction for abuse of discretion. See eBay Inc. v. 

MercExchange, L.L.C., 547 U.S. 388, 391 (2006). We are “free 

to affirm” the court’s conclusion that court-ordered 

reinstatement would be inappropriate in this case “on any ground 
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that finds support in the record.” Brown Media Corp. v. K&L 

Gates, LLP, 854 F.3d 150, 160 n.6 (2d Cir. 2017) (quoting Headley 

v. Tilghman, 53 F.3d 472, 476 (2d Cir. 1995)). We affirm on 

the ground that Action can point to no “irreparable injury”-- 

traceable to (or likely to result from) the preempted local 

rule--that warrants reinstatement. eBay, 547 U.S. at 391. 

 

 Requirement 4, which barred from admission to the tow list 

any “applicant[]” operating on the “same premises or real 

property” as “another Tow Rotation Service,” was enacted after 

Action had already been removed from the tow list. App’x at 

97. It was therefore not the cause of Action’s removal. Nor 

was Requirement 4 ever the basis for denying Action admission 

to the tow list; Action did not apply for admission during the 

time in which Requirement 4 was in effect, and it has not applied 

for admission in the nearly three years since Requirement 4 was 

declared preempted. 

 To the extent that Action’s request for reinstatement is 

predicated on the belief that it will be unlawfully denied 

admission on the basis of Requirement 4, see Armstrong, 135 S. 

Ct. at 1384 (“[F]ederal courts may in some circumstances grant 

injunctive relief against [local officials] who are . . . 

planning to violate[] federal law.”), it has already received 

the relief to which it is entitled. The Village is enjoined 

from enforcing Requirement 4. And in the event that the Village 

violates that injunction, the district court has ample power 

to enforce it.1

 Action therefore fails to identify a past or future injury 

that warrants the additional relief it requests. Accordingly, 

that relief was properly denied. 

 1 We note that Action has only pursued this action against 

the local officials in their individual, rather than official, 

capacities. Thus, in the event that the Village cites 

Requirement 4 to prevent Action from re-joining the list and 

Action seeks to enforce the injunction, the district court 

should consider whether further injunctive relief would be 

proper against the local officials in this case. 
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We have considered Action’s arguments and find them to be 

without merit. For the foregoing reasons, we AFFIRM the order 

of the district court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court