* The Honorable Sandra Day O’Connor, Associate Justice

(Retired) of the United States Supreme Court, sitting by

designation.

1

12-2076

Miguel Ceja v. Paul Vacca, et al.

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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 16th 4 day of November, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 JOHN M. WALKER, Jr.,

9 Circuit Judge,

10 SANDRA DAY O’CONNOR,

Associate Justice (Retired).* 11

12

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14 MIGUEL CEJA, 

15 Appellant,

16

17 -v.- 12-2076

18

19 PAUL VACCA, DEPUTY COMMISSIONER AND

20 BUILDING OFFICIAL OF THE CITY OF NEW 

21 ROCHELLE, and THE CITY OF NEW ROCHELLE,

22 Appellees.

23

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2

1 FOR APPELLANT: Steven J. Harfenist, Friedman

2 Harfenist Kraut & Perlstein LLP,

3 Lake Success, New York (Angelina

4 L. Fryer, Friedman Harfenist

5 Kraut & Perlstein LLP, Lake

6 Success, New York, on the

7 brief). 

8

9 FOR APPELLEE: Robert J. Ponzini, Gaines,

10 Gruner, Ponzini & Novick, LLP,

11 New York, New York (Denise M.

12 Cossu, Gaines, Gruner, Ponzini &

13 Novick, LLP, New York, New York,

14 on the brief).

15

16 Appeal from an order of the United States District

17 Court for the Southern District of New York (Briccetti, J.).

18

19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20 AND DECREED that the judgment of the district court be

21 AFFIRMED. 

22

23 Miguel Ceja appeals from two orders entered on December

24 7, 2011, and April 16, 2012, in the United States District

25 Court for the Southern District of New York (Briccetti, J.)

26 dismissing his procedural and substantive due process

27 claims. We assume the parties’ familiarity with the

28 underlying facts, the procedural history, and the issues

29 presented for review.

30

31 We review de novo a district court’s decision to grant

32 a motion to dismiss. Arar v. Ashcroft, 585 F.3d 559, 567

33 (2d Cir. 2009) (in banc). In doing so, we accept as true

34 the complaint’s factual allegations and construe all

35 reasonable inferences in the light most favorable to the

36 plaintiff. Id.

37

38 The complaint challenges a decision by Paul Vacca,

39 Building Official and Deputy Commissioner of the City of New

40 Rochelle (“the City”), revoking a Certificate of Occupancy

41 (“CO”) for Ceja’s two-family dwelling. Vacca found non42 compliance with local zoning laws, in particular, violation

43 of a parking regulation prohibiting the storage of

44 commercial vehicles in a residential area. The City had
3

1 made a failed attempt to end this commercial use of the

2 premises in August 2009 by issuing summonses to Ceja, which

3 were later dismissed by a New Rochelle City Court. Vacca

4 then issued an Order to Remedy for failure to comply with

5 City parking requirements in December 2010. When Ceja

6 failed to correct the problem within the prescribed thirty7 day period, Vacca revoked the CO. 

8

9 Ceja argues that the district court erred in dismissing

10 his procedural and substantive due process claims. We see

11 no error in either ruling. Procedural due process requires

12 that “a deprivation of life, liberty, or property be

13 preceded by notice and opportunity for hearing appropriate

14 to the nature of the case.” Cleveland Bd. of Educ. v.

15 Loudermill, 470 U.S. 532, 542 (1985) (internal quotation

16 marks omitted). According to Ceja, the City failed to

17 provide either notice or an opportunity to be heard. 

18

19 However, the Order to Remedy provided both notice and

20 an opportunity to be heard. The Order instructed that Ceja

21 may seek review of the City’s decision, which would not be

22 enforced for at least thirty days, by filing an application

23 with the Bureau of Buildings zoning clerk. Ceja never filed

24 this application, nor did he make an appeal of any kind. 

25 Instead, through counsel, Ceja sent a letter rejecting the

26 City’s interpretation of its zoning ordinances.

27

28 The City also afforded Ceja post-deprivation process. 

29 The Order informed Ceja that he could file an appeal with

30 the City’s Board of Appeals on Zoning following the CO

31 revocation. He likewise declined to avail himself of this

32 opportunity. 

33

34 With respect to his substantive due process claim, Ceja

35 argues that the City’s decision to revoke his CO after

36 approving the commercial use for decades, and after he had

37 expended substantial sums improving the property, was

38 “arbitrary” and “shocks the conscience.” Natale v. Town of

39 Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999) (citing Cnty.

40 of Sacramento v. Lewis, 523 U.S. 833 (1998)). Substantive

41 due process, however, “does not forbid governmental actions

42 that might fairly be deemed arbitrary or capricious and for

43 that reason correctable in a state court lawsuit seeking

44 review of administrative action.” Id. at 263. Only
1 The City also urges us to dismiss Ceja’s claims on

two additional grounds: (1) Vacca, a government official, is

entitled to qualified immunity, and (2) the City is entitled

to immunity under Monell v. Dep’t of Social Servs., 436 U.S.

658 (1978). Given our affirmance on the merits, we need not

consider these arguments.

4

1 “conduct so outrageously arbitrary as to constitute a gross

2 abuse of governmental authority” will give rise to such a

3 claim, id., and the City’s actions here do not approach this

standard.1 4

5

6 Finding no merit in Ceja’s remaining arguments, we

7 hereby AFFIRM the judgment of the district court.

8

9

10 FOR THE COURT:

11 CATHERINE O’HAGAN WOLFE, CLERK

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