Case Information

*1 ‐ ‐ cv & et al. UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY IS PERMITTED AND GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 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 NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At term United States Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, th day December, two thousand seventeen.

PRESENT: GERARD E. LYNCH,

RAYMOND LOHIER, JR.,

Circuit Judges ,

CHRISTINA REISS,

Chief Judge .* ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ OBSESSION SPORTS BAR GRILL, INC., JOAN ORTIZ, Plaintiffs Appellants , No. cv

CITY OF ROCHESTER,

Defendant Appellee . ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ * Chief Christina Reiss, Vermont, sitting designation.

FOR APPELLANTS: M ICHAEL A. B URGER (Tina M. Foster, New NY, the brief ), Santiago Burger Annechino LLP, Pittsford, NY. APPELLEE: John M. Campolieto, for Brian

Curran, Corporation Counsel of the of Rochester, NY. Appeal from a judgment the District Court the Western District (Charles Siragusa, ).

UPON DUE CONSIDERATION, HEREBY ORDERED, ADJUDGED, DECREED judgment the Obsession its owner, Joan Ortiz (collectively, “Obsession”), appeal from (Siragusa, J.) dismissing their first amended complaint (“FAC”) against Rochester (the “City”) failure to state assume parties’ familiarity facts record prior proceedings, to which we refer only necessary explain our decision to affirm. its To claim, required show City’s regulation, Municipal Code § “arbitrary, oppressive *3 in constitutional sense, not merely incorrect or ill advised.” Ferran v. Town Nassau, 471 F.3d 363, 370 (2d Cir. 2006) (quotation marks omitted). The enactment regulations, even those in contravention State law, does not violate substantive due process unless defendant engages in conduct “so outrageously arbitrary constitute gross abuse governmental authority[.]” Natale Town Ridgefield, F.3d 263 (2d Cir. 1999); see also Cine SK8, Town Henrietta, F.3d 2007) (government conduct “tainted racial animus or fundamental procedural irregularity” violates due process (quotation marks omitted)). The FAC does allege that section 34(O) motivated by animus or accomplished through procedural irregularity. Nor does it otherwise plausibly allege acted in manner that is arbitrary, oppressive. That 34(O) ultimately invalidated State courts insufficient, standing alone, due process Ferran, 370; Natale, F.3d at 263. next

procedural procedural *4 claim properly dismissed substantially reasons part opinion addressing claim merits. See City Supp. 3d 466–67 (W.D.N.Y. 2017). entitled pre deprivation hearing when enacted enforced “generally applicable zoning” regulation. Edelhertz Middletown, 2013). have considered Obsession’s remaining arguments they are without merit. For foregoing reasons, COURT:

Catherine O’Hagan Wolfe, Clerk