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13-6998 - Whelan et al v. Pascale et al


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13-6998 - Whelan et al v. Pascale et al
September 16, 2014
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ORDER granting 18 Motion to Dismiss; granting 19 Motion to Dismiss for Failure to State a Claim; finding as moot 22 Motion to Disqualify Counsel. ; finding as moot 23 Motion to Disqualify Counsel. For the reasons discussed herein, IT IS HEREBY ORDERED that defendants motions to dismiss are granted in their entirety. Plaintiffs have not materially distinguished their case from Diaz v. Paterson, in which the plaintiffs alleged the same type of injury as plaintiffs here and the Second Circuit concluded that Article 65 "provides all the process that is due in respect of the claimed property interests at stake." 547 F.3d 88, 96 (2d Cir. 2008). A different constitutional result is not warranted by the fact that this case involves successive notices of pendency and a claim for anticipatory breach. Plaintiffs' related equal protection and free speech claims are also dismissed because the legal theories that plaintiffs attempt to assert are not cognizable as a matter of law. To the extent that the fourth cause of action (or any other cause of action) attempts to assert an independent, non-constitutional claim under Article 65 itself (or under some other provision of New York law), the Court declines to exercise supplemental jurisdiction over any such state claims given that the federal claims cannot survive a motion to dismiss. Finally, plaintiffs' motions to disqualify defendants' counsel are mooted by the dismissal of their claims. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/16/2014. (Lamb, Conor)
March 2, 2016
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ORDER denying 38 Motion for Attorney Fees. For the reasons set forth herein, the Court denies defendant's motion for attorney's fees under 42 U.S.C. ยง 1988. Ordered by Judge Joseph F. Bianco on 3/2/2016. (Dolecki, Lauren)