Vitagliano v. County Of Westchester

Background

The opinion concerns an application connected to Vitagliano v. County of Westchester and a related case, 40 Days for Life v. County of Westchester. The plaintiffs in the related case challenged several provisions of Westchester County Chapter 425, including an eight-foot “floating” bubble-zone provision. The application states that the Vitagliano case challenged only that bubble-zone provision.

Application

The plaintiffs asked the court to hold a conference about possibly issuing the same ruling in their case as in Vitagliano. They proposed that the court dismiss their bubble-zone challenge under Rule 12, which permits dismissal for failure to state a legally sufficient claim. They sought dismissal both on the face of the complaint and as applied to their circumstances. They relied on Hill v. Colorado, which they described as controlling precedent, while preserving their argument that the Supreme Court should reconsider that decision.

The plaintiffs also asked that any dismissal be entered as a final judgment under Rule 54(b), which can allow an immediate appeal of a separate claim or issue before the entire case ends. They said this would prevent their appellate challenge from depending on the outcome of an appeal in Vitagliano and would streamline proceedings concerning their remaining challenges to Chapter 425.

Ruling

Judge Philip M. Halpern denied the application without prejudice to renewal after the defendant files its response to the Second Amended Complaint. This order did not grant the requested dismissal, enter a Rule 54(b) final judgment, or decide the merits of the bubble-zone challenge. The opinion does not provide a further explanation for the denial.