MEMORANDUM & ORDER Plaintiff 5055 Northern Boulevard LLC (“Plaintiff”) initiated this removal action by filing an Amended Verified Hybrid Petition-Complaint (“Amended Complaint”) in Nassau County Supreme Court against defendants the Incorporated Village of Old Brookville (the “Village”), Bernard D. Ryba (“Ryba”), in his capacity as the Mayor of the Village, John Chase (“Chase”), in his capacity as the Attorney for the Village, the Board of Trustees of the Village, and Peter Albinski (“Albinski”), in his capacity as Building Inspector for the Village (collectively, “Defendants”), seeking damages arising out of various violations of Plaintiff’s statutory and constitutional rights to property and for an order pursuant to C.P.L.R. §3001 directing Defendants to permit Plaintiff to utilize its property for commercial purposes. (See Am. Compl., D.E. 1-1, at ECF pp. 23-51.) Currently before the Court is Defendants’ motion to dismiss the Amended Complaint based on the doctrine of res judicata. (Mot., D.E. 12; Defs. Br., D.E. 12-7; Pl. Opp., D.E. 13; Defs. Reply, D.E. 14.) For the following reasons, Defendants’ motion is GRANTED. FACTUAL BACKGROUND1 I. The Underlying Allegations Plaintiff is the owner of real estate property at 5055 Northern Boulevard, Glen Head, New York, located within the Village (the “Property”). (Am. Compl. 1.) Although the Property is located within a district zoned for residential use, since 1908, the Property has been used as a gas service station pursuant to a variance that runs with the land.2 (Id. 16.) Plaintiff purchased the Property with the intent to continue using it as a gas service station. (Id. 20.) In November 2013, while ownership was being transferred to Plaintiff, the prior owners temporarily suspended the Property’s gas station operations. (Id. 19.) Plaintiff submitted an application for a permit to remove old underground gas storage tanks and to prepare, clean, and improve the area to install new underground tanks. (Id. 22.) The removal and clean-up efforts were completed in December 2014. (Id. 22.) On October 22, 2014, while removal and clean-up efforts were ongoing and within a year of the temporary suspension, Plaintiff submitted an application to the Village building inspector, Defendant Albinski, seeking a permit to install updated underground gas storage tanks. (Id. 22.) From 2014 to 2017, multiple meetings and conversations ensued between Plaintiff, its engineers, and certain Defendants, namely, Defendants Ryba and Chase, concerning the intended use of the Property, specifically the desire to continue using the Property as a gas station or for commercial purposes. (Id.
3344.) Plaintiff contends that during these conversations, Defendants misled Plaintiff and “undertook an orchestrated effort to continuously deter, reject, deny and refuse the Plaintiff from rightfully using the [Property].” (Id. 35.) Defendants held a public hearing on May 22, 2017 to address Plaintiff’s outstanding permit application and took the position that the Property’s non-conforming use as a commercial property had been abandoned. (Id. 54.) On August 29, 2017, Albinski ratified this position in his denial of Plaintiff’s request for a permit, which stated: “[I]t has been determined that the previously existing non-confirming [sic] use of the property as a service station was discontinued in or about November 2013 for more than one year and was not thereafter resumed within one year.” (Id. 29.) II. The Hybrid Article 78 Action On September 8, 2017, Plaintiff commenced a hybrid Article 78 proceeding action against the Village, the Board of Trustees of the Village, and Albinski, as building inspector, (the “Hybrid Article 78 Defendants”) in Nassau County Supreme Court (the “Hybrid Article 78 Action”). (Am. Compl. 61.) In the Hybrid Article 78 Action, Plaintiff asserted that: (1) the failure to grant or respond to Plaintiff’s application constituted an improper constructive denial which was erroneous, arbitrary, and capricious; (2) the constructive denial of the permit constituted an unconstitutional taking; (3) the Article 78 Defendants violated the Freedom of Information Act; and (4) the inadequate response to the information requests entitled Plaintiff to costs, disbursements, and attorneys’ fees. (Am. Hybrid Petition/Compl., Millus Decl., Ex. A, D.E. 12-2, at ECF pp. 9-16.) Additionally, Plaintiff sought declaratory judgment stating, inter alia, that (1) a variance and/or special use permit allows Plaintiff to use the Property as a commercial property, (2) the Property was not abandoned by temporary cessation of use, and (3) the Hybrid Article 78 Defendants’ conduct constituted an unconstitutional taking. (Am. Hybrid Petition/Compl. at ECF p. 17.) On April 13, 2018, the Nassau County Supreme Court (Parga, J.) denied the Hybrid Article 78 Defendants’ motion to dismiss the Hybrid Article 78 Action. Justice Parga concluded that the decision to deny Plaintiff’s application was “arbitrary and capricious” and directed the Village to issue Plaintiff a permit as requested in the October 22, 2014 application. (Apr. 13, 2018 Decision and Order, Millus Decl., Ex. B, D.E. 12-3, at 4.) Importantly, Justice Parga rejected Plaintiff’s requests for additional relief, which included a request for injunctive relief or money damages, stating “[a]ny portion of the petitioner’s hybrid petition/complaint not granted is denied,” and again, “[a]ny relief not expressly granted herein in [sic] denied.” (Id. at 4.) On July 10, 2018, the Supreme Court entered a judgment consistent with the decision (the “Judgment”). (Judgment, Millus Decl., Ex. C, D.E. 12-4.) Defendants appealed the Judgment to the Appellate Division, Second Department. (Defs. Reply at 5.) The appeal is fully briefed and awaiting determination. Procedural History On May 13, 2019 Plaintiff commenced this action against Defendants in Nassau County Supreme Court and on May 24, 2019, filed the Amended Complaint. On June 19, 2019, Defendants removed this action to this Court pursuant to 28 U.S.C. §§1331 and 1367. The Amended Complaint asserts: (1) a claim against all Defendants for the deprivation of Plaintiff’s constitutional rights to property pursuant to 42 U.S.C. §1983; (2) a claim against all Defendants for unlawful seizure of Plaintiff’s property in violation of the Fourth Amendment; (3) a claim against all Defendants for unlawful taking of Plaintiff’s property rights and a de facto taking of Plaintiff’s property in violation of the Fifth Amendment; and (4) a request for a declaratory judgment pursuant to C.P.L.R. §3001 to enforce Plaintiff’s rights under the variance, permit, and Supreme Court order and Judgment, including an Order directing Defendants to issue a permit allowing Plaintiff to install new underground gas tanks. (See generally Am. Compl.) Plaintiff seeks compensatory damages for lost rental incomes/profits, property taxes, and carry costs, punitive damages for Plaintiff’s loss of use and enjoyment of the Property, lost profits, and attorneys’ fees and costs. DISCUSSION I. Legal Standard To withstand a motion to dismiss, a complaint must contain factual allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard is not a “probability requirement” and requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks and citation omitted). In deciding a motion to dismiss, the Court is confined to “the allegations contained within the four corners of [the] complaint,” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998), but this has been interpreted broadly to include any document attached to the complaint, any statements or documents incorporated in the complaint by reference, any document on which the complaint heavily relies, and anything of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-52 (2d Cir. 2002); Kramer v. Time Warner, Inc., 937 F.2d 767, 773-74 (2d Cir. 1991). II. Analysis Defendants move to dismiss the Amended Complaint in its entirety. Specifically, Defendants argue that Plaintiff’s claims are barred by the doctrine of res judicata, because they initiated the Hybrid Article 78 Action as a hybrid proceeding based on the same facts asserted here. (Defs. Br. at 4-6.) Defendants also argue that Plaintiff cannot recover damages for their failure to issue a building permit because enforcement of the Judgment is stayed pending their appeal. (Id. at 7-9.) Plaintiff responds that it does not seek damages for Defendants “exercising their right to the automatic stay” (Pl. Opp. at 14), but requests “monetary damages caused by Defendants’ delay in issuing the permit” (id. at 12). Additionally, Plaintiff argues res judicata does not bar this action because the requests for non-Article 78 relief were not litigated in the Hybrid Article 78 Action. A. Automatic Stay Pursuant to C.P.L.R. §5519(a)(1) The Amended Complaint’s fourth cause of action seeks a declaratory judgment that Defendants are required to issue Plaintiff a permit as ordered by the state court Judgment. (See Am. Compl. 108.) Indeed, throughout the Amended Complaint, Plaintiff suggests that Defendants are not complying with the state court Judgment. (See, e.g., id.
