19-4172-cv

Dennis Sant, et al. v. Willis Stephens, 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.

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 28th day of July, two thousand twenty.

PRESENT: DENNY CHIN,

SUSAN L. CARNEY,

STEVEN J. MENASHI,

Circuit Judges.

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DENNIS SANT, KATHLEEN SANT,

Plaintiffs-Appellants,

-v- 19-4172-cv

WILLIS STEPHENS, Individually and as Town

Attorney for Town of Southeast, Putnam County,

State of New York, TOWN OF SOUTHEAST, 

PUTNAM COUNTY, STATE OF NEW YORK.

Defendants-Appellees.

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FOR PLAINTIFFS-APPELLANTS: STEVEN FELSENFELD, Felsenfeld Legal, 

PLLC, Ossining, New York.
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FOR DEFENDANTS-APPELLEES: STEPHEN J. GABA (Adam Rodd, on the brief), 

Drake Loeb, PLLC, New Windsor, New York.

Appeal from the United States District Court for the Southern District of 

New York (Seibel, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs-appellants Dennis Sant and Kathleen Sant ("plaintiffs") appeal 

the judgment of the district court, entered November 13, 2019, dismissing their 

amended complaint (the "Complaint") against defendants-appellees Willis Stephens and 

the Town of Southeast (the "Town" and, together with Stephens, "defendants") asserting 

claims under, inter alia, the First and Fourteenth Amendments, 42 U.S.C. §§ 1983 and 

1985, and state law. By opinion and order entered November 12, 2019, the district court 

granted defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On appeal, 

plaintiffs argue that the district court erred in concluding that their claims were barred 

under the statute of limitations and by sua sponte denying leave to amend the 

Complaint. We assume the parties' familiarity with the underlying facts, procedural 

history, and issues on appeal.

BACKGROUND

The facts alleged in the Complaint are assumed to be true. See Fisher v. SD 

Prot. Inc., 948 F.3d 593, 597 n.2 (2d Cir. 2020). At the heart of this case is a dispute over 

the Town's refusal to grant plaintiffs a zoning variance. Plaintiffs own property in the 
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Town, while Stephens serves as the Town Attorney and Town Prosecutor and also 

works as an attorney in private practice specializing in Town code and home owner 

disputes and litigation. In 1989, plaintiffs obtained a building permit to add a pole barn 

(the "barn") to their property, which they used as living quarters for Dennis Sant's 

brother. Despite various efforts, plaintiffs were unable to obtain permission to 

regularize the use of the barn as living quarters. 

In 2008, the Town informed plaintiffs that the property could not be used 

for multi-residential use. In 2009, plaintiffs applied to the Town Planning Board for a 

zoning variance, but approval was never granted. On September 24, 2013, plaintiffs 

were served with an appearance/complaint ticket for a building code violation. The 

Town Court dismissed the ticket on January 21, 2016, and the Appellate Division 

affirmed the dismissal on May 23, 2017. On September 26, 2017, plaintiffs brought an 

Article 78 proceeding to compel the Town to grant them a variance. The action was 

dismissed as unripe on March 20, 2018 because plaintiffs failed to submit an application 

to the Town Zoning Board of Appeals and thus had not exhausted administrative 

remedies available to them. Plaintiffs allege that March 2018, after their Article 78 

proceeding was dismissed, the Town came onto their property to measure setbacks. 

Plaintiffs further allege that in 2011 defendants blocked their daughter from taking a 

position in the Town Building Department and prevented their son from taking a 

position on the Town Zoning Board of Appeals. 
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Plaintiffs filed this action below on October 29, 2018, alleging that their 

difficulties obtaining a zoning grant, as well as obstacles their children encountered in 

obtaining positions with the Town, were the result of retaliation by defendants for 

Dennis Sant's public criticism of Stephens, and that the Town engaged in selective 

enforcement of the zoning code. The district court granted defendants' motion to 

dismiss and this appeal followed. 

STANDARD OF REVIEW

We review de novo the district court's grant of a motion to dismiss, 

accepting as true all facts alleged in the complaint and drawing all reasonable 

inferences in the moving party's favor. See Yamashita v. Scholastic Inc., 936 F.3d 98, 103-

04 (2d Cir. 2019). To survive a motion to dismiss, the plaintiff must allege facts 

sufficient "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). 

DISCUSSION

I. Statute of Limitations

The statute of limitations for actions brought in New York pursuant to 

§§ 1983 and 1985 is three years. See Paige v. Police Dep't of City of Schenectady, 264 F.3d 

197, 199 n.2 (2d Cir 2001) (§§ 1983 and 1985); Okure v. Owens, 816 F.2d 45, 49 (2d Cir. 

1987) (§ 1983). Claims brought pursuant to §§ 1983 and 1985 accrue "once the plaintiff 

knows or has reason to know of the injury which is the basis of his action." Cornwell v. 
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Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (internal quotation marks omitted). Under the 

continuing violation doctrine, a plaintiff may bring claims that would otherwise be 

barred by the statute of limitations provided that "an act contributing to that [violation] 

took place within the statutory time period." Purcell v. N.Y. Inst. of Tech. - Coll. of 

Osteopathic Med., 931 F.3d 59, 65 (2d Cir. 2019). The continuing violation doctrine 

applies only "to claims that by their nature accrue only after . . . some threshold amount 

of mistreatment," and not to "discrete unlawful acts, even where those discrete acts are 

part of a serial violation." Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (internal 

quotation marks omitted). 

Here, the action was filed on October 29, 2018, and thus any §§ 1983 and 

1985 claims premised on discrete acts that accrued prior to October 29, 2015 are 

untimely. See Paige, 264 F.3d at 199 n.2. Most of the cognizable acts alleged in the 

Complaint are "discrete unlawful acts" that occurred well before 2015. See Gonzalez, 802 

F.3d at 220. In 2008, the Town sent a warning to plaintiffs that the barn was not 

properly permitted for residential use. In 2013, the Town served them with a ticket for 

building code violations. Plaintiffs further allege that, in 2011, their children were 

blocked from obtaining certain positions with the Town as retaliation. Accordingly, the 

district court did not err in concluding that plaintiffs' claims pursuant to §§ 1983 and 

1985 that are premised on these discrete acts are time-barred.
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The Complaint alleges one act that is fairly described as a continuing 

violation: Plaintiffs applied for a zoning variance in 2009, but the Town never granted 

the variance. Even if timely, however, any claims premised on this alleged inaction 

would still fail because plaintiffs did not file all the proper applications needed to 

obtain the variance. The March 2018 state court decision, which was incorporated into 

the Complaint, see Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000), held that plaintiffs 

had failed to complete their application for a variance because they filed a request with 

the Town Planning Board but not with the Town Zoning Board of Appeals. Plaintiffs 

are collaterally estopped from denying that they failed to submit the proper 

applications for the variance, and accordingly they cannot state a plausible claim that 

the Town acted unconstitutionally by failing to grant the requested variance. See 

Dowling v. United States, 493 U.S. 342, 347 (1990) (explaining that collateral estoppel 

applies "when an issue of ultimate fact has once been determined by a valid and final 

judgment" and "that issue cannot again be litigated between the same parties in any 

future lawsuit").

The Complaint also alleges one discrete action that occurred within the 

limitations period: the Town's measurement of setbacks in March 2018. Although 

timely, any §§ 1983 and 1985 claims premised on this act nonetheless fail because 

plaintiffs do not allege that Stephens personally participated in causing the setback 

measurements, see Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 
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2001) ("[P]ersonal involvement of defendants in alleged constitutional deprivations is a 

prerequisite to an award of damages under § 1983"), or that the Town had an official 

policy or custom of measuring setbacks in retaliation for protected speech, see Zherka v. 

City of N.Y., 459 F. App'x 10, 12 (2d Cir. 2012) (summary order) (holding that "a 

municipality cannot be made liable under §§ 1983 and 1985" unless an "official policy or 

custom" of the municipality was "the moving force behind the alleged injury") 

(alteration omitted). 

For these reasons, all of plaintiffs' claims are barred by the statute of 

limitations or otherwise fail to state a plausible claim for relief.

II. Leave to Amend

"We review a district court's decision to grant or deny leave to amend a 

pleading . . . for abuse of discretion." Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d 

Cir. 2003). Leave to amend may be denied for, inter alia, "failure to cure deficiencies by 

amendments previously allowed, . . . [or] futility of amendment." Ruotolo v. City of N.Y., 

514 F.3d 184, 191 (2d Cir. 2008); see also TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 

505 (2d Cir. 2014) (leave to amend properly denied where plaintiff fails to specify how 

amendment would cure deficiencies in the pleading).

Here, plaintiffs had already amended their complaint once, and they did 

not request leave to file a second amended complaint prior to the district court's sua 

sponte denial of such leave. Moreover, though plaintiffs challenge the district court's 
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denial on appeal, they fail to specify how they would cure the pleading's deficiencies. 

See TechnoMarine, 758 F.3d at 505. Accordingly, the district court did not abuse its 

discretion when it denied plaintiffs leave to file a second amended complaint.

* * *

We have considered plaintiffs' remaining arguments and conclude they 

are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk