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Margaret Ralbovsky, Garrison Seelow, Deborah Ashe, Kelly Octigan, Karen Smith a/k/a Kat, Michael Capparello, Abraham Seroussi, Common Council of the City of Gloversville, Anthony J. Caruso, Marie A. Schutz, Frank A. Clemente, Anthony P. Christiano, Paul E. Reid, Marylouise R. Mele, Defendants-Appellees.
No. 10-515-cv.United States Court of Appeals, Second Circuit.
December 10, 2010.
Appeal from the Northern District of New York (Suddaby, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED ANDDECREED that the judgment of the district court beAFFIRMED.
Lewis B. Oliver, Jr., Esq., Oliver Law Office, Albany, NY, for Appellant.
Peter G. Barber, Esq., Murphy, Burns, Barber Murphy, LLP, Albany, NY, for Appellees.
PRESENT: WILFRED FEINBERG, B.D. PARKER, and RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Appellant appeals from an order of the United States District Court for the Northern District of New York (Suddaby J.), which granted summary judgment in favor of the defendants. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
A “class of one” equal protection claim requires the claimant to demonstrate that they share an “extremely high degree of similarity” with the “person[] to whom they compare themselves.” Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (citations omitted). Further, the claimant must show that:
(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendant acted on the basis of a mistake.
Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005) (citations omitted) (partially abrogated on other grounds by Engquist v. Or. Deft of Agrie, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008)).
Here, Appellant differed from its proffered comparator, JBF, in at least one important respect. JBF had at one point enjoyed a “grandfathered” right to engage in the process of “beaming,” whereas Appellant had never enjoyed such a right and applied to obtain a use variance from the zoning ordinance in question. By itself, this difference raises “the possibility that the defendant acted on the basis of a mistake,” negating an essential element of the “class of one” claim and rendering appropriate an award of summary judgment for the defendants.
We have considered Appellant’s remaining contentions, and find them without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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