#### John PANZELLA, Joemark Enterprises, LLC, Plaintiffs-Appellants, v. CITY OF NEWBURGH, Defendant-Appellee.

No. 17-614

United States Court of Appeals, Second Circuit.

December 6, 2017

For Plaintiffs-Appellants: Michael H. Sussman, Sussman & Watkins, Goshen, NY.

For Defendant-Appellee: David L. Pos-ner, McCabe & Mack LLP, Poughkeepsie, NY.

Present: ROBERT A. KATZMANN, Chief Judge, JOHN M. WALKER, JR., GUIDO CALABRESI, Circuit Judges.

SUMMARY ORDER

Plaintiffs-Appellants John Panzella and Joemark Enterprises, LLC, appeal from a final judgment entered by the district court (Karas, *J.)*on February 13, 2017, dismissing their complaint against the Defendant-Appellee City of Newburgh for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. We assume the parties’ familiarity with the underlying facts,- the procedural history, and the issues on appeal.

“To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief.” *Johnson v. Priceline.com, Inc.,*711 F.3d 271, 275 (2d Cir. 2013). “We review *de novo*a dismissal for failure to state a claim, accepting as true all material factual allegations in the complaint and drawing all reasonable references in plaintiffs’ favor,” but “[t]he same deference does not extend ... to pleaded legal conclusions.” *Id.*The facts below are drawn from the first amended complaint in this matter.

Panzella is the owner and president of Joemark Enterprises. In 2000, Panzella purchased the River Rose, a 64-foot boat that he intended to use for passenger trips along the Hudson River that were to depart from and return to a dock in the City of Newburgh. Panzella began seeking approvals necessary to install a dock on the City’s waterfront in 2002, culminating in a resolution passed by the City Council on March 29, 2004 that authorized the city manager to enter into an agreement with Joemark Enterprises, which was done on April 5, 2004. At around the same time or shortly thereafter, other Newburgh-based businesses began to bring political pressure to bear on local government officials in order to frustrate Panzella’s ability to construct and eventually make use of the dock, leading to the imposition of significant costs and delays on the project. Eventually, on April 12, 2010, the City of New-burgh revoked its earlier resolution and proposed new terms that were inconsistent *51with the parties’ earlier agreement. Pan-zella and Joemark Enterprises have continued to operate the River Rose from the dock they built since that time, but the parties have failed to reach a new agreement governing the use of or responsibility for the dock. It is further alleged that the City of Newburgh has given more favorable treatment to other commercial enterprises located along its waterfront. Based on the foregoing, Panzella and Joemark Enterprises brought a single claim against the City of Newburgh for violating the Equal Protection Clause of the Fourteenth Amendment, which was • dismissed with prejudice for failure to state a cause of action. *Panzella v. City of Newburgh,*281 F.Supp.3d 1 (S.D.N.Y. 2017).1

“Under the Equal Protection Clause, a plaintiff must plausibly show that it was ‘treated differently compared to others similarly situated.’ ” *Hampshire Recreation LLC v. Vill. of Mamaroneck,*664 Fed.Appx. 98, 100 (2d Cir. 2016) (quoting *Church of Am. Knights of Ku Klux Klan v. Kerik,*356 F.3d 197, 210 (2d Cir. 2004)). Panzella fails to plead adequate facts to make such a showing.

The only comparator to the River Rose that is identified by the plaintiffs is the Pride of the Hudson, “another vessel which served food and drink,” App. 21 ¶ 83, that is engaged in “sightseeing cruises and charter rides along the Hudson River,” *id.*¶ 82, and which “the City assisted in finding dock space during the 2014-15 time period,” *id.*at 23 ¶ 91. Although this suit alleges unequal treatment by the City of Newburgh toward its contractual partners, the plaintiffs have alleged no facts establishing that the Pride of the Hudson’s owner has a contract with the City of Newburgh, let alone that the terms of any such agreement are materially similar to those contained in the parties’ 2004 agreement. Nor have the plaintiffs alleged that the owner of the Pride of the Hudson ever sought access to municipal utilities or to use a dock its owner constructed. In the absence of any such allegations, Panzella and Joemark Enterprises have failed to adequately allege that the Pride of the Hudson is similarly situated to the River Rose for equal protection purposes. Accordingly, they have failed to state a claim. *See Ruston v. Town Bd. for Town of Skaneateles,*610 F.3d 55, 60 (2d Cir. 2010) (affirming dismissal where plaintiffs “fail[ed] to allege that properties sufficiently similar to theirs were treated more favorably”).

We have considered all of the plaintiffs-appellants’ arguments on this appeal and find in them no basis for reversal. Accordingly, we AFFIRM the judgment of the district court.

1

. The City of Newburgh also previously prevailed in a contract dispute with Joemark Enterprises in which it was determined that Joemark Enterprises had not adequately performed its obligations under the 2004 agreement. *See Joemark Enters., LLC v. City of Newburgh,*62 A.D.3d 954, 878 N.Y.S.2d 907 (App. Div. 2009). We take judicial notice of that dispute and its resolution “not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” *Kramer v. Time Warner Inc.,*937 F.2d 767, 774 (2d Cir. 1991).