Dyno v. Village of Johnson City
Opinion of the Court
SUMMARY ORDER
Plaintiff-appellant Thomas Lamont Dyno appeals from the September 27, 2004 judgment and October 13, 2006 order denying a motion to set aside the judgment, of the United States District Court of the Northern District of New York (Mordue, C.J.). We assume the parties’ familiarity with the underlying facts of the case, its procedural history, and the arguments on appeal.
Because Dyno filed a timely notice of appeal from the district court’s September 27, 2004, final judgment, that judgment, and all prior interlocutory orders, are reviewable in this Court. See Fed. R.App. P. 4(a)(1). The appeal from the district court’s October 13, 2006, order denying Dyno’s motion to set aside the judgment, however, is not reviewable in this Court because the November 20, 2006 notice of appeal is untimely, as it was filed more than 30 days after the entry of the order. See Fed. R.App. P. 4(a)(4)(B)(ii).
As an initial matter, by failing to raise any challenge to the district court’s dismissal of the complaint against the Greens or to include any argument regarding the Greens’ status as state actors, Dyno has abandoned his claims against the Greens by failing to raise them on appeal. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). With respect to the Village of Johnson City and Mayor
Because Dyno does not distinguish between the actions of Defendant Lewis and the Village and, with respect to Lewis, argues only that Lewis, as mayor, was responsible for imposing the municipal custom or policy, the claim turned on Dyno’s ability to show a municipal custom or policy. The district court properly found that Dyno had failed to allege an officially adopted custom or policy because Dyno did not make any allegation that it was the official policy of the Village to refuse to enforce zoning regulations or to rely on allegedly improperly obtained state court judgments. Dyno argued only that the Village misinterpreted the relevant zoning provisions and subsequently relied on a state court judgment to affirm those misinterpretations and deny his complaints about the Greens’ actions. To the extent that Dyno contends that he should be allowed to amend his complaint, he has failed to demonstrate that he would be able to amend the complaint to state a claim that would survive dismissal. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 76 (2d Cir. 1998).
Moreover, the district court could have denied the claims on res judicata grounds because a state court judgment will have a preclusive effect on a subsequently filed § 1983 action where the § 1983 claims could have been raised in the state court action. See Collard v. The Inc. Vill. of Flower, 759 F.2d 205, 207 (2d Cir. 1985). In Collard, we held that a § 1983 suit alleging constitutional violations based on a municipality’s rulings on zoning issues was barred where the municipality’s decisions had previously been challenged in Article 78 proceedings in state court because the constitutional claims could have been brought in state court. Id. at 206-07. Collard is indistinguishable from the instant case, as Dyno clearly could have raised his claims re
For the foregoing reasons, we AFFIRM the district court’s September 27, 2004 judgment and DISMISS the appeal as to the October 18, 2006 order.
Reference
- Full Case Name
- Thomas Lamont DYNO v. VILLAGE OF JOHNSON CITY, Harry G. Lewis, Mayor of the Village of Johnson City, Daniel W. Green, adjacent property owner, Mary Lou Green, adjacent property owner
- Cited By
- 4 cases
- Status
- Published