Andabaker v. Town of Manlius

SUMMARY ORDER

This is an appeal from a judgment of the District Court for the Northern District of New York (McCurn, J.), dismissing, pursuant to Rule 12(b)(6), due process claims against a municipality. It is alleged plaintiffs bought a house on a ridge; that a mudslide carried away a chunk of the backyard, imperiled the house, and rendered the property unsaleable; and that the builder was enabled by the failure of the municipality to comply with its zoning standards. We assume the parties’ familiarity with the facts, procedural background and issues presented for review.

“We review a Rule 12(b)(6) dismissal de novo, accepting all of the plaintiffs allegations as true and drawing all inferences in a manner favorable to the plaintiff.” United States v. City of New York, 359 F.3d 83, 91 (2d Cir.2004) (citation omitted).

Plaintiffs’ claims fail as a matter of law because even if they could allege the deprivation of a protected right, we cannot say that, on the facts before us, the municipality’s decision not to enforce its zoning law shocks our conscience. See Pabon v. Wright, 459 F.3d 241, 250 (2d Cir.2006) (“The simple lack of due care does not make out a violation of either the the substantive or procedural aspects of the Due Process Clause of the Fourteenth Amendment.”).

For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.