* 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

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 16 th** **day of November, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **JOHN M. WALKER, Jr.,** 8 **Circuit Judge ,**  9 **SANDRA DAY O’CONNOR,** 10 **Associate Justice (Retired)**

. * 11 12 - - - - - - - - - - - - - - - - - - - -X 13 **MIGUEL CEJA,** 14 **Appellant ,**  15 16 **-v.- 12-2076** 17 18 **PAUL VACCA, DEPUTY COMMISSIONER AND** 19 **BUILDING OFFICIAL OF THE CITY OF NEW** 20 **ROCHELLE, and THE CITY OF NEW ROCHELLE,** 21 **Appellees**

**.** 22 23 - - - - - - - - - - - - - - - - - - - -X 242 **FOR APPELLANT:** Steven J. Harfenist, Friedman 1 Harfenist Kraut & Perlstein LLP, 2 Lake Success, New York (Angelina 3 L. Fryer, Friedman Harfenist 4 Kraut & Perlstein LLP, Lake 5 Success, New York, on the 6 brief ). 7 8 **FOR APPELLEE:** Robert J. Ponzini, Gaines, 9 Gruner, Ponzini & Novick, LLP, 10 New York, New York (Denise M. 11 Cossu, Gaines, Gruner, Ponzini & 12 Novick, LLP, New York, New York, 13 on the brief ). 14 15 Appeal from an order of the United States District 16 Court for the Southern District of New York (Briccetti, J. ). 17 18 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 19 **AND DECREED**that the judgment of the district court be 20
**AFFIRMED**

. 21 22 Miguel Ceja appeals from two orders entered on December 23 7, 2011, and April 16, 2012, in the United States District 24 Court for the Southern District of New York (Briccetti, J. ) 25 dismissing his procedural and substantive due process 26 claims. We assume the parties’ familiarity with the 27 underlying facts, the procedural history, and the issues 28 presented for review. 29 30 We review de novoa district court’s decision to grant 31 a motion to dismiss. Arar v. Ashcroft , 585 F.3d 559, 567 32 (2d Cir. 2009) (in banc ). In doing so, we accept as true 33 the complaint’s factual allegations and construe all 34 reasonable inferences in the light most favorable to the 35 plaintiff. Id. 36 37 The complaint challenges a decision by Paul Vacca, 38 Building Official and Deputy Commissioner of the City of New 39 Rochelle (“the City”), revoking a Certificate of Occupancy 40 (“CO”) for Ceja’s two-family dwelling. Vacca found non41 compliance with local zoning laws, in particular, violation 42 of a parking regulation prohibiting the storage of 43 commercial vehicles in a residential area. The City had 443 made a failed attempt to end this commercial use of the 1 premises in August 2009 by issuing summonses to Ceja, which 2 were later dismissed by a New Rochelle City Court. Vacca 3 then issued an Order to Remedy for failure to comply with 4 City parking requirements in December 2010. When Ceja 5 failed to correct the problem within the prescribed thirty6 day period, Vacca revoked the CO. 7 8 Ceja argues that the district court erred in dismissing 9 his procedural and substantive due process claims. We see 10 no error in either ruling. Procedural due process requires 11 that “a deprivation of life, liberty, or property be 12 preceded by notice and opportunity for hearing appropriate 13 to the nature of the case.” Cleveland Bd. of Educ. v. 14 Loudermill , 470 U.S. 532, 542 (1985) (internal quotation 15 marks omitted). According to Ceja, the City failed to 16 provide either notice or an opportunity to be heard. 17 18 However, the Order to Remedy provided both notice and 19 an opportunity to be heard. The Order instructed that Ceja 20 may seek review of the City’s decision, which would not be 21 enforced for at least thirty days, by filing an application 22 with the Bureau of Buildings zoning clerk. Ceja never filed 23 this application, nor did he make an appeal of any kind. 24 Instead, through counsel, Ceja sent a letter rejecting the 25 City’s interpretation of its zoning ordinances. 26 27 The City also afforded Ceja post-deprivation process. 28 The Order informed Ceja that he could file an appeal with 29 the City’s Board of Appeals on Zoning following the CO 30 revocation. He likewise declined to avail himself of this 31 opportunity. 32 33 With respect to his substantive due process claim, Ceja 34 argues that the City’s decision to revoke his CO after 35 approving the commercial use for decades, and after he had 36 expended substantial sums improving the property, was 37 “arbitrary” and “shocks the conscience.” Natale v. Town of 38 Ridgefield , 170 F.3d 258, 262 (2d Cir. 1999) (citing Cnty. 39 of Sacramento v. Lewis , 523 U.S. 833 (1998)). Substantive 40 due process, however, “does not forbid governmental actions 41 that might fairly be deemed arbitrary or capricious and for 42 that reason correctable in a state court lawsuit seeking 43 review of administrative action.” Id. at 263. Only 441The 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 “conduct so outrageously arbitrary as to constitute a gross 1 abuse of governmental authority” will give rise to such a 2 claim, id. , and the City’s actions here do not approach this 3 standard. 1 4 5 Finding no merit in Ceja’s remaining arguments, we 6 hereby **AFFIRM** the judgment of the district court. 7 8 9 FOR THE COURT: 10 CATHERINE O’HAGAN WOLFE, CLERK 11 12