Full opinion text
MEMORANDUM & ORDER SEYBERT, District Judge: Plaintiffs, Robert I Toussie (“Toussie”) and Chandler Property, Inc., began this action (01-CV-6716) in October 2001, asserting that their civil rights had been violated when the Defendants, Suffolk County and Robert J. Gaffney (“Gaffney”), denied them the opportunity to purchase thirty-one parcels of real estate at the 2001 Suffolk County Surplus Auction. (2001 Am. Compl. [Doc. No. 45].) In April 2005, those plaintiffs, joined by Laura Toussie, Elizabeth Toussie, Michael I. Toussie, Prand Corp. f/k/a Chandler Property, Inc., Arthur A. Arnstein Corp., Toussie Land Acquisition and Sales Corp., and Toussie Development Corp. (collectively “Plaintiffs” or “Toussies”), commenced a second action (05-CV-1814) asserting similar claims under 42 U.S.C. § 1983. (2005 Compl. [Doc. No. 1].) The 2005 Complaint alleged that the Defendants, Suffolk County, Paul Sabatino, II (“Sabatino”), Patricia B. Zielinski (“Zielinski”), and Thomas A. Isles (“Isles”), violated Plaintiffs’ civil rights when they blocked the sale of sixteen parcels in 2002 and barred Plaintiffs’ attendance from public auctions in 2004. As they had in the 2001 Amended Complaint, Plaintiffs also asserted several state law claims including, among other things, breach of contract, unjust enrichment, and defamation. On May 18, 2007, the Court consolidated the 2001 and 2005 actions in the interest of judicial economy. [Doc. No. 182]. Pending before the Court is Defendants’ motion for summary judgment. For the following reasons, Defendants’ motion is GRANTED IN PART and DENIED IN PART. BACKGROUND Defendant Suffolk County (“Suffolk County” or “the County”) regularly auctions real property that it has acquired as a result of non-payment of real estate taxes. (Pis.’ 56.1 Stmt. ¶ 6.) The terms and conditions governing the auctions are set forth in an auction booklet, which is passed as legislation pursuant to County law and distributed in advance of the auction. (Id. ¶ 32; Pis.’ 56.1 Supp. ¶36; Defs.’ 56.1 Stmt. ¶ 3.) The County held an auction on May 23-24, 2001 (“2001 Auction”), where Plaintiff Toussie was the highest bidder on four parcels, and Plaintiff Chandler Property, Inc. was the highest bidder on twenty-seven parcels. (Pis.’ 56.1 Stmt. ¶¶ 5, 12.) Pursuant to the terms and conditions of the 2001 Auction, Plaintiffs entered into memoranda of sale for each parcel and tendered the required 20% down payment and auction fee for each of the thirty-one properties. (Pis.’ 56.1 Stmt. ¶ 5.) All auction sales, however, were conditioned upon approval by the Suffolk County Legislature (“Legislature”). (Defs.’ 56.1 Stmt. ¶4.) The Legislature’s discretion to approve or disapprove the sales was not limited in the auction booklet, the Suffolk County Administrative Code, or Terms and Conditions of Sale. The Legislature’s approval of the sales was sought on an expedited basis, meaning that the resolution would be submitted to the full Legislature, rather than to the Ways & Means Committee (“Committee”) for initial approval. (Id. ¶ 12.) On recommendation of Defendant Sabatino, counsel to the Legislature, the resolution approving the 2001 Auction sales was split into two bills: Introductory Resolution 1676-01 (“IR 1676-01”), which proposed authorization of the sale of parcels to Plaintiffs, and Introductory Resolution 1675-01 (“IR 1675-01”), which proposed authorization for the sale of parcels to all other buyers. (Defs.’ 56.1 Stmt. ¶ 13.) The County had never before split auction sales into two separate resolutions. IR 1675-01 was expedited and submitted to the full Legislature on June 26, 2001; it was approved by a vote of 17-1. IR 1676-01, on the other hand, was submitted to the Committee on July 30, 2001 and was tabled. On August 7, 2001, the full Legislature considered a motion to discharge IR 1676-01 from Committee. Present were members of the community who objected to the properties ever being sold to Toussie or any company affiliated with him. The motion was defeated. (Pis.’ 56.1 Stmt. ¶ 17; Defs.’ 56.1 Stmt. ¶ 17.) The Committee again considered IR 1676-01 on August 20, 2001 and this time unanimously defeated it. Counsel for Toussie as well as members of the community again appeared to testify regarding the sale. (Defs.’ 56.1 Stmt. ¶¶ 18-20.) In response to complaints from community-members, Toussie’s attorney stated that Toussie would agree that neither he nor his son would develop the property. (Pis.’ 56.1 Supp. ¶ 16; Pis.’ 56.1 Stmt. ¶ 19.) Despite these assurances, on August 28, 2001, after again hearing testimony from community members in opposition to the sales, the Legislature affirmed the Committee’s action. (Pis.’ 56.1 Stmt. ¶ 21; Defs.’ 56.1 Stmt. ¶ 21.) Plaintiffs allege that the Legislature had no legitimate reason for defeating IR 1676-01, but did so to pander to their constituents for political gain. (Pis.’ 56.1 Stmt. ¶ 25.) Defendants assert that the County’s decision was based on their legitimate concerns regarding Toussie’s business practices. On October 11, 2001, Toussie and Chandler Property, Inc. commenced one of the two actions consolidated herein challenging the Legislature’s failure to approve these sales. On March 18, 2002, Toussie wrote a letter to the County asking “that the County advise [him] as soon as possible if it intended] to prohibit [him] from purchasing property at the May 2002 Auction.” (Pis.’ 56.1 Supp. ¶ 21.) The County responded stating that “the failure of the Suffolk County Legislature to approve the conditional sales for the May 2001 auction, did not include a directive barring him from future actions,” but also cautioning that “participation does not carry with it a guarantee of success” because “sales are conditioned upon the discretionary approval of the Suffolk County Legislature.” (Pls.’ 56.1 Stmt. Ex. 47.) The County held another auction on May 15-16, 2002 (“2002 Auction”). The auction booklet and Terms and Conditions of Sale were identical to those in the 2001 Auction. Toussie, his company, Prand Corp., his wife, Laura Toussie, her company, Arthur A. Arnstein Corp., his daughter, Elizabeth Toussie, his brother, Michael Toussie, and companies bearing the Toussie name but not owned or operated by the family, Toussie Land Acquisition & Sales Corp. and Toussie Development Corp. were the winning bidders on sixteen properties. (Pls.’ 56.1 Stmt. ¶ 33.) They again signed memoranda of sale and tendered the required 20% down payment and auction fee for each of the sixteen properties. (Id.) On June 11, 2002, IR 1730-2002, which proposed the approval of the sale of parcels to the high bidders at the 2002 Auction, was presented to the Legislature. The resolution was assigned to the Committee, which voted unanimously on June 17, 2002 to table IR 1730-2002 so that separate resolutions segregating the Toussie-related parcels could be drafted and introduced. (Defs.’ 56.1 Stmt. ¶ 35 & Ex. X.) On June 25, 2002, two resolutions, IR 1800-2002, which proposed approval of the sales to Plaintiffs, and IR 1801-2002, which proposed approval of the remaining sales, were introduced and assigned to the Committee. (Defs.’ 56.1 Stmt. ¶ 36.) On July 29, 2002, IR 1801-2002 was discharged from Committee, and on August 6, 2002, it was approved by the Legislature. (Id. ¶¶ 37-38.) IR 1800-2002, on the other hand, was tabled then retabled three times by the Committee. (Defs.’ 56.1 Stmt. ¶¶ 39^18.) At the November 15, 2002 Committee meeting, Plaintiffs’ counsel, Richard Hamburger, again stated that Plaintiffs were willing to enter into a binding agreement that would preclude any residential development of the parcels and Isaac’s involvement with the land in any manner. (Pls.’ 56.1 Stmt. ¶ 42.) Nevertheless, at the December 9, 2002 Committee meeting, IR 1800-2002 was defeated. (Id. ¶ 48; Defs.’ 56.1 Stmt. ¶48.) IR 1800-2002 was never voted on by the full Legislature, and it died in Committee. On or about April 25, 2003, Plaintiffs filed an Article 78 proceeding in the Supreme Court of Suffolk County challenging the Legislature’s disapproval of their sales in the 2002 Auction. See Toussie v. County of Suffolk, No. 03-9048 (N.Y. Sup.Ct. Suffolk Cnty. Sept. 23, 2003) (Defs.’ 56.1 Stmt. Ex. OO.). The Supreme Court found in favor of Defendants, holding that (1) no valid contract existed, (2) in disapproving the sale, the Legislature was acting “within the clear letter of th[e] contract language,” and (3) the Legislature’s decision was not arbitrary or capricious. Id. The Appellate Division affirmed, see Toussie v. Cnty. of Suffolk, 26 A.D.3d 506, 809 N.Y.S.2d 573 (2d Dep’t 2006), and the Court of Appeals denied leave to appeal, see Toussie v. County of Suffolk, 7 N.Y.3d 711, 823 NY.S.2d 770, 857 N.E.2d 65 (2006). The County held another auction on November 30 and December 1, 2004 (“2004 Auction”). (Defs.’ 56.1 Stmt. ¶ 64.) Toussie was the winning bidder on one parcel, but the County refused to allow him to sign a memorandum of sale. (Pis.’ 56.1 Supp. ¶ 32.) Assistant County Attorney George Nolan then instructed the auctioneer not to accept any more bids from Toussie or anyone with a close relationship to him and directed the police to escort Toussie, his wife and his attorney from the auction room. (Id. ¶¶ 32-33.) After Mr. and Mrs. Toussie were escorted from the premises, Toussie’s attorney, Richard Hamburger, returned to bid on properties as agent for Toussie. (Id. ¶ 34.) Although he was the highest bidder, the County refused to accept any down payment or auction fee and refused to allow him to sign the memoranda of sale on Toussie’s behalf. (Id.) Plaintiffs assert that Defendants Sabatino, Isles and Zielinski made the decision to reject Toussie’s bids and remove Mr. and Mrs. Toussie from the auction. (Id. ¶¶ 33, 35.) On April 13, 2005, Plaintiffs commenced the second of the two actions consolidated herein challenging the Legislature’s failure to approve the 2002 Auction sales and the County’s refusal to allow Mr. and Mrs. Toussie to participate in the 2004 Auction. On May 18, 2007, the two actions were consolidated, and on February 22, 2011, Defendants filed for summary judgment. DISCUSSION I. Standard of Review “Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law.” Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortg. Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment.” McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” McLee, 109 F.3d at 134. “Although the moving .party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (quoting Anderson, 477 U.S. at 256, 106 S.Ct. 2505). “Mere conclusory allegations or denials will not suffice.” Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986). Similarly, “unsupported allegations do not create a material issue of fact.” Weinstock, 224 F.3d at 41 (citing Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14,18 (2d Cir.1995)). II. Collateral Estoppel Defendants argue that collateral estoppel bars “[t]he bulk” or “most, if not all” of Plaintiffs’ claims. (Defs.’ Mem. 2.) Under New York law, collateral estoppel or issue preclusion bars a party from re-litigating an issue that (1) was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted has a full and fair opportunity to litigate the issue in the prior proceeding. See Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir.1995); D’Arata v. N.Y. Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 564 N.E.2d 634, 636, 563 N.Y.S.2d 24, 26 (1990). “The party asserting issue preclusion bears the burden of showing that the identical issue was previously decided, while the party against whom the doctrine is asserted bears the burden of showing the absence of a full and fair opportunity to litigate in the prior proceeding.” Colon, 58 F.3d at 869 (citing Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456, 482 N.E.2d 63, 67, 492 N.Y.S.2d 584, 588 (1985)). Issue preclusion will apply only if it is quite clear that these requirements have been satisfied, lest a party be “precluded from obtaining at least one full hearing on his or her claim.” Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 386 N.E.2d 1328, 1331, 414 N.Y.S.2d 308, 311 (1979). Specifically, Defendants argue that all of Plaintiffs’ state common law breach of contract claims (2001 Am. Compl. Counts V, VI; 2005 Compl. Counts XIV, XV, XXIV), equal protection claims (2001 Am. Compl. Count II; 2005 Compl. Counts III, XX, XXVI), bill of attainder claims (2001 Am. Compl. Count I; 2005 Compl. Counts XIII, XIX, XXIX), and substantive and procedural due process claims (2001 Am. Compl. Count III; 2005 Compl. Counts I, V, XXII, XXVII, XXVIII) are barred by the Suffolk County Supreme Court’s decision in Toussie v. County of Suffolk, No. 03-9048 (Sup.Ct. Suffolk Cnty. Sept. 23, 2003), aff'd, 26 A.D.3d 506, 809 N.Y.S.2d 573 (2d Dep’t 2006) because “all issues regarding the Legislature’s authority, discretion and legal basis for refusing to execute or approve sales of auction properties ... have been fully litigated and resolved against [Plaintiffs” (Defs.’ Mem. 5). A. All Claims Based on 2001 and 2001 Auctions Defendants assert that the state court’s decision with respect to the 2002 Auction bars all contract, bill of attainder, equal protection, and substantive and procedural due process claims arising out of the 2001 and 2004 Auctions. Defendants’ argument is based primarily on the fact that the language requiring approval of the Legislature, as set forth in the auction booklet, Memorandum of Sale, and applicable Administrative Code provision, is identical for the 2001, 2002 and 2004 Auctions, and the fact that Plaintiffs’ past and present business practices, which factored into the Legislature’s refusal to deliver deeds in 2002, remained a constant fact whenever the Legislature was faced with the prospect of selling auction properties to the Plaintiffs. Similar facts or circumstances surrounding the actions, however, do not establish identity of the issues between the Article 78 proceeding and the 2001 and 2004 Auctions. Collateral estoppel depends on the specific facts of each case and will only prohibit the re-litigation of issues that were “actually and necessarily” decided. The Article 78 proceeding dealt exclusively with the 2002 Auction, and the court there held that the Legislature’s disapproval of that particular sale to Plaintiffs was not arbitrary or capricious. The Supreme Court’s opinion, the appellate record, and the Second Department’s opinion are void of any facts regarding the 2001 Auction or the 2004 Auction. Since Plaintiffs have not had any opportunity to argue the unique facts of either of the other two auctions, collateral estoppel will not preclude those claims. See, e.g., Davis v. Halpern, 813 F.2d 37, 40 (2d Cir.1987) (no identity of issues between Article 78 proceeding and current civil rights litigation when “state proceeding dealt only with Davis’ second [allegation of discrimination], not with his first (which was barred by the four-month statute of limitations in Article 78 proceedings) or the third ... (which has not yet occurred)”); Ponterio v. Kaye, No. 06-CV-6289, 2007 WL 141053, at *10 (S.D.N.Y. Jan. 22, 2007) (collateral estoppel did not bar plaintiff from bringing claim arising out of conduct that occurred after state court issued its decision). B. State Common Law Breach of Contract Claims Based on 2002 Auction While Defendants have failed to meet their burden with respect to the claims arising out of the 2001 and 2004 Auctions, they have sufficiently established that there is identity of the issues as between the Article 78 proceeding and the state law contract claim related to the 2002 Auction (2005 Compl. Count XXIV). In their 2005 Complaint, Plaintiffs allege that “[t]he disapproval of the sales by the Suffolk County Legislature was arbitrary, capricious, in bad faith, and in violation of the law, and contrary to the terms of the contracts formed when the memoranda of sale were signed. Thus, the County breached the contracts.” (2005 Compl. ¶ 287.) Plaintiffs raised the identical question before the Supreme Court of Suffolk County. See Toussie v. Cnty. of Suffolk, No. 03-9048 (N.Y. Sup.Ct. Suffolk Cnty. Sept. 23, 2003) (“Toussie plaintiffs argue that the disapproval was made in violation of lawful procedure, was arbitrary and capricious and constituted an abuse of any discretion.”). The court held (1) that no valid contract existed, (2) that in disapproving the sale, the Legislature was acting “within the clear letter of th[e] contract language,” and (3) that the Legislature’s decision was not arbitrary or capricious. Id. The Appellate Division affirmed. See Toussie v. Cnty. of Suffolk, 26 A.D.3d 506, 809 N.Y.S.2d 573 (2d Dep’t 2006). Those issues are identical to issues in the present case. Plaintiffs respond by arguing that they did not have a full and fair opportunity to litigate their contract claims in the Article 78 proceeding. (Pls.’ Opp’n 12-15.) Factors to be considered when determining whether there was a full and fair opportunity to litigate the issue in the prior action include “the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation.” Gilberg v. Barbieri, 53 N.Y.2d 285, 292, 423 N.E.2d 807, 441 N.Y.S.2d 49, 51 (1981) (emphasis added) (citation omitted); see also King v. Fox, 418 F.3d 121, 130 (2d Cir.2005). Plaintiffs argue that they did not have a full and fair opportunity to litigate their claims in state court because of the discovery of new evidence in the form of (1) the Legislative record revealing that IR 1800-2002 was never “disapproved” but was instead repeatedly tabled until it expired; (2) “subsequent discovery” revealing that prior to Defendants’ refusal to approve the sale of surplus property to Plaintiffs there had never before been a refusal of such sales; and (3) former Legislator Fred Towle’s guilty plea to bribery and fraud. (Pis.’ Opp’n 12-15.) The Legislative record and the “subsequent discovery” are not “new” evidence that would bar the application of collateral estoppel. Courts have held that evidence is not new if it was available during the pendency of the prior action. See Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 504, 467 N.E.2d 487, 492-93, 478 N.Y.S.2d 823, 828-29 (1984); Feldstein v. N.Y. State Office of Mental Health, Bronx Psychiatric Ctr., 846 F.Supp. 1089, 1101 (E.D.N.Y.1994). Evidence is available if it was in the party’s possession or the party could have obtained it during the prior proceed ing. See Ryan, 62 N.Y.2d at 504, 467 N.E.2d at 492-93, 478 N.Y.S.2d at 828-29 (finding that evidence in party’s possession but not introduced in prior proceeding is not “new evidence” that would defeat the application of collateral estoppel in a later proceeding); Feldstein, 846 F.Supp. at 1101 (holding that a party cannot rely on his failure to engage in discovery during an Article 78 proceeding to defeat collateral estoppel). Plaintiffs were in possession of the Legislative record when they brought their Article 78 proceeding, and they could have engaged in discovery during that proceeding to obtain the statistics regarding how often the Legislature disapproved sales. A party has a full and fair opportunity to litigate so long as “the procedures in the initial forum meet the minimum demands of procedural due process.” Rameau v. N.Y. State Dep’t of Health, 741 F.Supp. 68, 71 n. 3 (S.D.N.Y.1990) (citing Kremer, 456 U.S. at 483-84, 102 S.Ct. 1883). The Article 78 proceeding provided Plaintiffs with a forum to request and present the previously-described “new” evidence; therefore, Plaintiffs cannot argue that their failure to utilize that forum deprived them of their ability to fully litigate this issue. Towle’s guilty plea to third degree receipt of bribery and first degree scheme to defraud, on the other hand, is new evidence that was not considered by the Supreme Court or Appellate Division in the Article 78 proceeding. The guilty plea, coupled with the fact that during a deposition in this case, Towle invoked his Fifth Amendment privilege against self-incrimination when asked whether he received bribes or acted as a conduit for bribes to other legislators during his tenure in exchange for voting against approval of the “Toussie resolutions” (Pls.’ 56.1 Stmt. ¶ 17; Towle Dep. 89-90), could have factored into the state courts’ analyses of whether the Legislature’s action was arbitrary and capricious. Both courts concluded that the Legislature based its decision on Toussie’s past and present business practices and held that the Legislature had a rational basis to do so. Since new, previously-unavailable evidence suggests that some of the legislators may have been motivated by bribes, as opposed to Toussie’s business practices, Plaintiffs will not be barred from re-litigating the issue of whether the decision was arbitrary and capricious. The other issues, however — whether there was a valid contract and whether the Legislature was acting within the boundaries of that contract — are barred by collateral estoppel. C. Constitutional Claims Based on 2002 Auction Defendants assert that Plaintiffs’ equal protection, bill of attainder, and substantive and procedural due process claims related to the 2002 Auction are all barred by collateral estoppel because of the Supreme Court and Appellate Division’s finding that the decision to disapprove Plaintiffs’ bid was not arbitrary and capricious and was “rationally based on legitimate concerns about the petitioners’ past and present business practices.” Toussie, 26 A.D.3d at 507, 809 N.Y.S.2d at 574-75. However, since the Court has decided that Plaintiffs are not barred from re-litigating that issue based on new evidence, none of Plaintiffs’ constitutional claims are barred by collateral estoppel. III. Claims Under 42 U.S.C. § 1983 Plaintiffs bring all of their federal claims under 42 U.S.C. § 1983. Section 1983 provides in relevant part that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. For claims under § 1983, a plaintiff must prove that “(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.1999) (citing Dwares v. City of N.Y., 985 F.2d 94, 98 (2d Cir.1993)). Here, the Defendants do not dispute that Defendants were acting under color of state law. The issue, therefore, is whether Defendants’ conduct deprived Plaintiffs of a constitutionally protected right. A. Bill of Attainder Plaintiffs allege that the “Legislature’s decision to disapprove the sale[s]” in 2001 and 2002 and “to approve the[ ] sales [in 2004] over the objections of Mr. and Mrs. Toussie” constitute unlawful bills of attainder in violation of the Constitution. (2001 Am. Compl. Count I, 2005 Compl. Counts XIII, XIX, XXIX.) The United States Constitution prohibits any state from passing a bill of attainder. U.S. Const. art. I, § 10, cl. 1. A bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); see also United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946) (“[Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.”). To determine whether a legislative act is a bill of attainder, “the Supreme Court has adopted a three-pronged conjunctive test that considers whether the act: (1) imposed punishment, (2) specified the affected persons, and (3) lacked the protection of judicial process.” In re Extradition of McMullen, 989 F.2d 603, 611 (2d Cir.1993) (citing Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 847, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984)). Here, the lack of a judicial trial is undisputed. Potentially at issue are whether the resolutions singled out the Toussies and if the resolutions inflicted punishment. The Court finds that the Toussies were sufficiently singled out with respect to the resolutions passed subsequent to the 2001 and 2002 elections. Defendants do not appear to dispute this. The Court does not find, however, that the 2004 resolution specifically identified Plaintiffs. The resolution does not mention Plaintiffs, and unlike with the 2001 and 2002 resolutions, Plaintiffs’ sales were not excised and placed in a separate resolution. Plaintiffs argue in their opposition brief that only Resolutions 1675-01 and 1801-2002 are bills of attainder (Pls.’ Opp’n 17) and do not even attempt to raise a genuine issue of material fact as to whether they were specifically identified in the 2004 resolution approving the sales. Therefore, the Court GRANTS summary judgment as to Plaintiffs’ bill of attainder claim arising out of the 2004 Auction and Count XIII of the 2005 Complaint is dismissed. The remaining issue is whether IR 1675-01 and IR 1801-2002 inflict punishment. There are three factors courts look at to determine whether a statute is punitive: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes;’ and (3) whether the legislative record ‘evinces a [legislative] intent to punish.’ ” Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348 (alteration in original) (quoting Nixon, 433 U.S. at 473, 97 S.Ct. 2777). A statute does not need to fit into each factor to be considered a bill of attainder; “rather, those factors are the evidence that is weighed together in resolving a bill of attainder claim.” Consolidated Edison Co. of N.Y., Inc. v. Pataki, 292 F.3d 338, 350 (2d Cir.2002) (citing Nixon, 433 U.S. at 473-78, 97 S.Ct. 2777). Under the historical test, “statutes imposing punishment traditionally judged to be prohibited by the Bill of Attainder Clause, including death, imprisonment, banishment, punitive confiscation of property by the sovereign and ... laws barring designated individuals or groups from participation in specified employments or vocations have been held to violate the prohibitions on Bills of Attainder.” N.Y. State Trawlers Ass’n v. Jorling, 16 F.3d 1303, 1312 (2d Cir.1994) (citations and internal quotation marks omitted). The resolutions at issue here impose none of these burdens. While the resolutions may have interfered with Plaintiffs’ ability to buy property in Suffolk County, the resolutions did not act as a complete bar to Plaintiffs’ profession: The Toussies may still purchase non-County property, and they are free to purchase property from other counties. See, e.g., id. (law prohibiting fishermen from using trawls to catch lobsters did not bar them from participating in their profession, as the fishermen were free to catch lobsters by other means or use trawls to catch other types of fish). However, failure to meet the historical test is not dispositive. See Nixon, 433 U.S. at 475-76, 97 S.Ct. 2777. The resolutions may still be unconstitutional bills of attainder if they do not further a legitimate non-punitive purpose or if the Legislature’s intent in passing the resolutions was to punish the Toussies. Defendants do not address either the functional test or the motivational test in their briefs. They, instead, rely on the Supreme Court’s Article 78 decision which stated that the Legislature’s decision to disapprove of the sales to the Toussies was rationally based on a legitimate government interest. (Defs.’ Reply 8.) Defendants argue that Plaintiffs’ bill of attainder claims are therefore barred by collateral estoppel because that holding necessarily implies that the Legislature was not motivated by an unlawful purpose. (Id.) But, as this Court previously held, the Plaintiffs are not barred from re-litigating this issue. The Court finds that Plaintiffs have raised genuine issues of material fact as to whether the resolutions were punitive in nature and could not reasonably serve non-punitive purposes. Although protecting Suffolk County residents and appeasing political constituents may be a non-punitive purpose, the record contains evidence of potential chastising and deterrent motives (see, e.g., Defs.’ 56.1 Stmt. Ex. M, Pis.’ 56.1 Stmt. ¶¶ 28-25, 54), both of which are purposes consistent with punishment. See Consolidated Edison Co., 292 F.3d at 353 (“General and specific deterrence are ... traditional justifications for punishment.”); Lovett, 328 U.S. at 311-314, 66 S.Ct. 1073 (finding that a record revealing that legislature discussed moral blameworthiness of specified individuals is evidence of punitive purpose); see also Nixon, 433 U.S. at 480, 97 S.Ct. 2777 (“[A] major concern [ ] prompting] the bill of attainder prohibition: [was] the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge or, worse still, lynch mob.”). Additionally, the existence of a “less burdensome achieved its legitimate non-punitive objectives” undermines any purported non-punitive objective. Id. at 483, 97 S.Ct. 2777. Here, there is evidence that Plaintiffs offered to enter into an agreement barring residential development and Isaac Toussie’s involvement with the property. (Pis.’ 56.1 Stmt. ¶ 42; Pis.’ 56.1 Supp. ¶ 16.) As such, there are material factual disputes, and summary judgment with respect to Count I of the 2001 Complaint and Counts XIX and XXIX of the 2005 Complaint is DENIED. B. Equal Protection Defendants argue that Plaintiffs’ “class-of-one” equal protection claims must be dismissed because the Toussies were not similarly situated to any other buyer. To prevail on a class-of-one equal protection claim, Plaintiffs must establish “that they were intentionally treated differently from other similarly-situated individuals without any rational basis.” Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)). A plaintiff and the persons with whom he compares himself are “similarly situated” if they are “prima facie identical in all relevant respects.” Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir.2005) (quoting Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002), abrogated on other grounds, Appel v. Spiridon, 531 F.3d 138 (2d Cir.2008)). A class-of-one plaintiff must show an “extremely high degree of similarity between themselves and the persons to whom they compare themselves,” Clubside, 468 F.3d at 159, and must establish 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, 409 F.3d at 105; see also Clubside, 468 F.3d at 159. “As a general rule, whether [individuals] are similarly situated is a factual issue that should be submitted to the jury.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n. 2 (2d Cir.2001). “A court may grant summary judgment in a defendant’s favor on the basis of lack of similarity of situation, however, where no reasonable jury could find that the persons to whom the plaintiff compares itself are similarly situated.” Clubside, 468 F.3d at 159. With respect to the Equal Protection claims arising out of the 2001 and 2002 Auctions, Plaintiffs argue that they were similarly situated to the other auction participants who were the highest bidders on surplus property because they all: “(1) participated in a public bidding process; (2) bid the highest dollar value for the property; (3) executed a memoranda of sale; (4) provided a 20% down payment; and (5) had their names placed on an omnibus resolution.” (Pis.’ Mem. 16.) With respect to the claims arising out of the 2004 Auction, Plaintiffs argue that they were similarly situated to all other auction participants. The Court does not find that there is enough evidence in the record to support the conclusion — necessary to sustain a class-of-one equal protection claim — that Plaintiffs’ circumstances are “prima facie identical” to those of all other auction participants “in all relevant respects.” Neilson, 409 F.3d at 104. Plaintiffs argue that they were similar to the other auction participants because they were also auction participants. This is insufficient. Toussie, his companies, and his family members have been targeted by the media with respect to their real estate work (Defs.’ 56.1 Stmt. ¶¶8, 27-31), have been named as defendants in a class-action lawsuit by homeowners (id. ¶ 15), and have been the subject of complaints to the Legislature by members of the community (id. ¶ 18). Plaintiffs provide no background information regarding any other auction participant to even enable the Court to make such a comparison. As such, they have failed to raise a genuine issue of fact. See Prestopnik v. Whelan, 249 Fed.Appx. 210, 213-14 (2d Cir.2007) (affirming dismissal of plaintiffs class-of-one equal protection claim because, after claiming that the school district treated her differently from all other candidates for tenure, she introduced no evidence regarding any of the other teachers, leaving the court with no evidence whatsoever to make such a comparison); see also Maulding Dev., L.L.C. v. City of Springfield, 453 F.3d 967, 971 (7th Cir.2006) (affirming dismissal of class-of-one claim because plaintiff “introduce[d] no evidence regarding any of the other developers, not a single one”). Therefore, with respect to Plaintiffs’ equal protection claims, summary judgment is GRANTED, and Count II of the 2001 Amended Complaint and Counts III, XX, and XXVI of the 2005 Complaint are DISMISSED. C. Due Process The Due Process Clause of the Fourteenth Amendment protects persons against deprivations of “life, liberty, or property.” U.S. Const, amend. XIV, § 1. To establish a violation of either procedural or substantive due process, Plaintiffs must first identify a valid liberty or property interest. Local 342, Pub. Ser. Emps. v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir.1994); Harlen, 273 F.3d at 503. Only if such an interest exists can there be a due process violation. Therefore, the Court will first address the threshold question of whether Plaintiffs have asserted a deprivation of a recognized liberty or property interest. Then, if deprivation of such an interest exists, the Court will discuss whether that deprivation violates procedural or substantive due process. 1. Deprivation of Liberty or Property Interest Plaintiffs assert that the following interests are protected by both procedural and substantive due process: (a) Mr. Toussie’s liberty interest in pursuing his chosen occupation (2001 Am. Compl. Count III; 2005 Compl. Counts I, V, XXII, XXVII, XXVIII); (b) all Plaintiffs’ liberty interest in entering into contracts (2005 Compl. I, V, XXII, XXVII, XXVIII); (c) Mr. and Mrs. Toussie’s liberty interest in attending events open to the public (2005 Compl. Counts I, V, XXVII, XXVIII); (d) all Plaintiffs’ property interest in the parcels for which they entered into memorandum of sale (id. Counts XX, XXVII, XXVIII); and (e) Mr. and Mrs. Toussie’s property interest in having the County allow them to sign memoranda of sale (2005 Compl. Counts I, V, XXVII, XXVIII). The Court will address each in turn. a. Liberty Interest in Pursuing Chosen Profession Plaintiffs argue that the County violated Mr. Toussie’s right to pursue his chosen profession — the buying and selling of property in Suffolk County — by blocking his purchase of auction property and damaging his professional reputation by making false and defamatory statements. While “[a] person’s right to pursue the profession of his choice is recognized as a constitutionally protected liberty interest,” Jaeger v. Bd. of Educ. of Hyde Park Cent. Sch. Dish, No. 96-CV-9336, 1997 WL 625006, at *1 (2d Cir. Oct. 9, 1997) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)), courts in the Second Circuit have consistently held “one must have no ability to practice one’s profession at all in order to state a claim for deprivation of a liberty interest.” Rodriguez v. Margotta, 71 F.Supp.2d 289, 296 (S.D.N.Y.1999) (citations omitted); accord Schultz v. Inc. Vill. of Bellport, No. 08-CV-0930, 2010 WL 3924751, at *7 (E.D.N.Y. Sept. 30, 2010) (“[D]ue process claim based on infringement of [right to pursue chosen occupation] will succeed only where a person is blocked from participating in a particular field.”) (citing Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). Compare Sacco v. Pataki, 114 F.Supp.2d 264, 273 (S.D.N.Y.2000)) (holding that plaintiffs are not deprived of a liberty interest because “they cannot have the best job in their field”) and Empire Transit Mix, Inc. v. Giuliani, 37 F.Supp.2d 331, 336 (S.D.N.Y.1999) (holding that City terminating plaintiffs concrete-supply contracts and publishing negative news report did not constitute deprivation of a liberty interest even though “a significant part of [plaintiffs] business ha[d] involved projects for the City”), with Valmonte v. Bane, 18 F.3d 992, 994 (2d Cir.1994) (finding that plaintiff, whose name was placed on the central register of Department of Social Services (“DSS”) as a suspected child abuser had a legitimate interest in pursuing her chosen occupation in child care field because all child care providers must consult the list and she would not be able to get a job in the child-care field). Mr. Toussie is still buying and selling property in Suffolk County (Pis.’ 56.1 Stmt. ¶ 67); the fact that certain methods of buying property may now be precluded does not give rise to a valid liberty interest. b. Liberty Interest in Entering Contracts Plaintiffs also assert that they had a protected property interest in entering into contracts which the Defendants allegedly violated. Defendants argue that no such right exists. The Court agrees. It is clearly established that “liberty” under the Due Process Clause does not protect “freedom of contract.” See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 81 L.Ed. 703 (1937) (“The Constitution does not speak of freedom of contract.”); Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 857, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Rehnquist, J., concurring). c. Liberty Interest in Attending Events Open to the Public Plaintiffs allege that Defendants violated Mr. and Mrs. Toussie’s liberty interest to attend events open to the public by refusing to permit them or their attorney to be present at the public auction. Defendants assert that no such right exists. The Court agrees. Although engaging in interstate travel and free movement is a protected liberty interest, the Second Circuit has held that “a municipality’s decision to limit access to its facilities does not interfere with the right to free movement ..., and [an individual’s] expulsion and temporary exclusion from the [town’s community center] did not deprive him of a liberty interest protected by the Due Process Clause.” Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008). d. Property Interest in Parcels to Which Plaintiffs Entered into Memorandum of Sale in 2001 and 2002 Plaintiffs also assert that they have protected property interests. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire” and “more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577, 92 S.Ct. 2701. “Courts have assessed whether a plaintiff has a clear entitlement to a permit or some other benefit by focusing primarily on the degree of discretion enjoyed by the issuing authority, rather than on the likelihood that the authority will make a specific decision.” Muller Tours, Inc. v. Vanderhoef 13 F.Supp.2d 501, 506-07 (S.D.N.Y.1998) (citing Crowley v. Courville, 76 F.3d 47, 52 (2d Cir.1996)); accord Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (“Our cases recognize a benefit is not a protected entitlement if government officials may grant it or deny it at its discretion.” (citing Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 462-63, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989))). “Even if in a particular case, objective observers would estimate that the probability of issuance was extremely high, the opportunity of the local agency to deny issuance suffices to defeat the existence of a federally protected property interest.” RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 918 (2d Cir.1989); see also Clubside, 468 F.3d at 152-53. A clear entitlement exists only when “the discretion of the issuing agency is so narrowly circumscribed” that approval of a proper application is virtually assured. Gagliardi v. Vill. of Pawling, 18 F.3d 188, 192 (2d Cir.1994) (internal quotation marks and citation omitted). Thus, “when the relevant authority has broad discretion in its decision-making process, no property interest or entitlement will be found.” Muller Tours, 13 F.Supp.2d at 506-07 (citing Sanitation and, Recycling Indus. v. City of N.Y., 107 F.3d 985, 994 (2d Cir.1997)). Since the proper focus is “on the degree of official discretion and not on the probability of favorable exercise, the question of whether an applicant has a property interest will normally be a matter of law for the court.” RRI Corp., 870 F.2d at 918. Applying the above standards, Plaintiffs have no “claim of clear entitlement” to the properties for which they entered into memoranda of sale in the 2001 and 2002 Auctions because the County was vested with discretion to decide whether to approve or disapprove the sales. Neither the Suffolk County Administrative Code nor the Terms and Conditions of Sale .placed any restrictions on the County’s authority, and New York courts have held that a legislative body is not required to set standards for areas in which it has full discretion, see Cummings v. Town Bd. of N. Castle, 62 N.Y.2d 833, 834, 466 N.E.2d 147, 477 N.Y.S.2d 607 (1984); Davis v. City of Syracuse, 158 A.D.2d 976, 977, 551 N.Y.S.2d 128 (4th Dep’t 1990). e. Property Interest in Entering Memoranda of Sale in 200U However, there may be a legitimate property interest with respect to the 2004 Auction. In 2004, although Mr. and Mrs. Toussie and their attorney were the highest bidders on numerous properties, they were precluded from signing the memoranda of sale. Here, they had a legitimate claim of entitlement. The Terms and Conditions of Sale for the 2004 Auction state: Once a bid is accepted by the auctioneer and the auctioneer has announced that the sale has been completed and finalized, the sale of the parcel will be considered FINAL. At this time the sale will not be cancelled nor rescinded in any manner, under any circumstances, except by the County .... The successful bidder will be required, at the time and place of the auction, to sign a memorandum of sale pertaining to his or her purchase of the parcel. (Pis.’ 56.1 Stmt. Ex. 54.) Once the highest bid has been accepted, the sale is final, and the successful bidder must sign a memorandum of sale. The County does not appear to have any discretion at this stage of the auction process. As such, Mr. and Mrs. Toussie had a legitimate expectation in being able to sign the memoranda of sale. The Court must now determine whether Defendants’ deprivation of that interest violated procedural or substantive due process. 2. Procedural Due Process Having identified a possible deprivation of Mr. and Mrs. Toussie’s property interest, to establish a procedural due process violation, Plaintiffs must now show that the deprivation was effected without due process. See Local SJp2, 31 F.3d at 1194. Due process requires that the state not deprive an individual of a significant liberty or property interest without affording notice and some opportunity to be heard. See, e.g., Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 299, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Gudema v. Nassau Cnty., 163 F.3d 717, 724 (2d Cir.1998). Here, Defendants only state that Plaintiffs had an adequate opportunity to present their position to the Legislature in 2001 and 2002. There is a genuine issue of fact as to whether Plaintiffs were afforded such an opportunity in 2004. Therefore, summary judgment with respect to the procedural due process claim arising from the 2004 Auction (2005 Compl. Count I) is DENIED. 3. Substantive Due Process Having a shown that they had a valid property interest in being able to enter into the sales contract, to establish a violation of substantive due process, Plaintiffs must show that the Defendants infringed that property interest in an arbitrary or irrational manner that shocks the conscience. See Harlen Assocs., 273 F.3d at 503; Clubside, 468 F.3d at 152; Wantanabe Realty Corp. v. City of N.Y., 315 F.Supp.2d 375, 392 (S.D.N.Y.2003). Defendants’ only argument is that collateral estoppel precludes Plaintiffs from re-litigating whether the County’s actions were arbitrary and capricious. However, this Court already concluded that collateral estoppel does not preclude Plaintiffs from litigating issues related to the 2004 Auction. Defendants have, therefore, failed to meet their burden and summary judgment is DENIED. D. First Amendment 1. Conduct as Speech Plaintiffs allege that Defendants violated their right to free speech under the First Amendment when they refused to allow Mr. and Mrs. Toussie to participate in the 2004 Auction. The issue, then, is whether Plaintiffs have a First Amendment right to participate in public auctions that was violated when the County excluded them. To resolve this, the Court must first decide whether participating in a public auction is speech protected by the First Amendment. Although participating in an auction is not “speech” in the traditional sense, some forms of expressive or symbolic conduct fall within the ambit of the First Amendment. Rumsfeld v. Forum for Academic & Instit. Rights, Inc., 547 U.S. 47, 66, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). “In determining ‘whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play,’ the Supreme Court asks ‘whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.’ ” Young v. N.Y.C. Transit Auth., 903 F.2d 146, 153 (2d Cir.1990) (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)); see also, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (recognizing the expressive nature of burning the Amexican flag by a protestor during a political march); Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (recognizing expressive nature of school students wearing black arm bands in protest of Vietnam War). Plaintiffs do not assert that their participation in the auction was “inseparably intertwined with a particularized message.” See Young, 903 F.2d at 153. In fact, they fail to assert that their participation in the auction conveyed any message. Rather, Plaintiffs argue that their conduct deserves First Amendment protection merely because it occurred in a public forum. This is a misstatement of the law. First the Court must determine whether the conduct in question is protected speech. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct 3439, 87 L.Ed.2d 567 (1985). Only if the activity falls within the bounds of the First Amendment will the Court identify the nature of the forum in which the activity took place. Id. The forum is relevant because the extent to which the government may limit speech depends on whether the forum is public or private. Id. Since here, the activity in question is not constitutionally-protected “expressive conduct,” the Court need not determine whether the auction occurred in a public forum. See id. (“[W]e must first decide whether solicitation ... is speech protected by the First Amendment, for, if it is not, we need go no further.”). Since the conduct is not protected by the First Amendment, the Court’s inquiry ends. Therefore, the Court GRANTS summary judgment with respect to Plaintiffs’ claim that Defendants’ prohibiting Mr. and Mrs. Toussie from participating in the auction violated their First Amendment rights, and Count VII of the 2005 Complaint is DISMISSED. 2. Intimate Association Plaintiffs allege that the County violated their First Amendment right to intimate association when it took adverse action against Plaintiffs based on Isaac’s, and to a lesser extent Toussie’s, alleged misconduct. “The right to intimate association protects the close ties between individuals from inappropriate interference by the power of the state.” Chi Iota Colony of Alpha Epsilon Pi Fraternity v. C.U.N.Y., 502 F.3d 136, 143 (2d Cir.2007) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 619, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). “To determine whether a governmental rule unconstitutionally infringes on an associational freedom, courts balance the strength of the associational interest in resisting governmental interference with the state’s justification for the interference.” Id. Defendants do not dispute that the relationship between Mr. and Mrs. Toussie and their son is a protected relationship. See Patel v. Searles, 305 F.3d 130, 136 (2d Cir.2002) (recognizing that parent-child relationship is a constitutionally protected “intimate” relationship); Sutton v. Vill. of Valley Stream, N.Y., 96 F.Supp.2d 189 (E.D.N.Y.2000) (same). Rather, Defendants argue that Plaintiffs’ intimate association claims must fail because Defendants’ alleged retaliation against Plaintiffs was not related to Toussie or Isaac’s exercise of his First Amendment rights. In other words, the alleged retaliation was “in response to Isaac’s criminal acts and ... [Defendants’ perception that Toussie also engaged in questionable conduct” (Defs.’ Mem. 18), not because either Toussie or Isaac engaged in protected speech. This is an incorrect statement of the law. In support of their position, Defendants cite Adler v. Pataki, 185 F.3d 35 (2d Cir.1999) and Sacay v. Research Foundation of C.U.N.Y., 193 F.Supp.2d 611 (E.D.N.Y.2002). Although there may have been speech or conduct worthy of First Amendment protection in both Adler, 185 F.3d at 44 (husband terminated from state job after wife filed suit against the state), and Sacay, 193 F.Supp.2d at 634-35 (daughter demoted and transferred after filing letter in support of mother’s ADA claim), neither case stated that protected speech was required to state an intimate association claim. The First Amendment right that is implicated in an intimate association claim is the associational right, not free speech. Contrary to Defendants’ assertion, one can state a claim for violation of the right to intimate association without alleging that there was any constitutionally protécted speech. The only issue, then, is whether the deprivation of Plaintiffs’ right of intimate association with Isaac is outweighed by the County’s reasons for disapproving the sales to Plaintiffs in 2001 and 2002 and prohibiting Mr. and Mrs. Toussie’s involvement in the 2004 Auction. The Court finds that reasonable jurors would disagree as to whether the balance weights in Defendants’ favor; therefore, summary judgment with respect to the intimate association claims is DENIED. 3. Retaliation Plaintiffs assert that the Defendants retaliated against them for exercising their First Amendment right to petition by disapproving the sales to Plaintiffs after the 2002 Auction and by not allowing Mr. and Mrs. Toussie to participate in the 2004 Auction. The Second Circuit has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context.” Williams, 535 F.3d at 76. When, as here, the plaintiff is “a private citizen who sued a public official,” the Second Circuit has required the plaintiff “to show: ‘(1) [the plaintiff] has an interest protected by the First Amendment; (2) defendants’ actions were' motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his First Amendment right.’ ” Williams, 535 F.3d at 76 (alteration in the original) (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir.2001)); accord Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir.2010) (noting that a “private citizen” bringing a First Amendment retaliation claim must satisfy the three-pronged test set forth, in Curley); Butler v. City of Batavia, 323 Fed.Appx. 21, 23 (2d Cir.2009) (applying the Curley test); Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998) (same). Defendants argue that they are entitled to judgment as a matter of law because Plaintiffs’ lawsuits are matters of public concern, and therefore are not protected by the First Amendment. However, as Plaintiffs correctly assert, this is the standard governing retaliation claims by public employees, not private citizens. Since none of the Plaintiffs were public employees when they filed the 2001 Complaint or the Article 78 proceeding, their lawsuits need not have been related to a matter of public concern for them to fall within the protection of the First Amendment for the purposes of this action. See Williams, 535 F.3d at 77. Nonetheless, the Court still finds that Defendants are entitled to judgment as a matter of law because Plaintiffs have failed to show how Defendants’ action “chilled” the exercise of their First Amendment rights. “[Plaintiffs who allege a violation of their right to free speech must prove that official conduct actually deprived them of that right.” Id. at 78 (citing Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir.2002)). To prove this deprivation, Plaintiffs must come forward with evidence showing either that (1) Defendants silenced them or (2) “[D]efendant[s’] actions had some actual, non-speculative chilling effect” on his speech. Id.; accord Spear v. Town of W. Hartford, 954 F.2d 63, 67-68 (2d Cir.1992) (requiring plaintiff to show that defendants “inhibited him in the exercise of his First Amendment freedoms”). Plaintiffs have not alleged any facts indicating that Defendants have deprived them of their constitutionally protected right to free speech, chilled them speech or otherwise prevented them from speaking. Therefore, the Court GRANTS summary judgment with respect to Plaintiffs’ First Amendment retaliation claims and Counts IX and XXI of the 2005 Complaint are DISMISSED. E. Claims Against Individual Defendants 1. Section 1983 Conspiracy Claims Plaintiffs allege, pursuant to § 1983, that Sabatino, Zielinski and Isles conspired to violate Plaintiffs’ rights to procedural and substantive due process (2005 Compl. Counts II, VI), equal protection (id. Count IV), free speech under the First Amendment (id. Counts VIII, X) and intimate association (id. Count XII) with respect to the 2004 Auction. “To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999). As a threshold matter, Plaintiffs must establish that the underlying constitutional rights were violated to succeed on their conspiracy claims. See Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995) (explaining that a § 1983 conspiracy claim “will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right”); see also D’Angelo-Fenton v. Town of Carmel, 470 F.Supp.2d 387, 397 (S.D.N.Y.2007); Schultz v. Inc. Vill. of Bellport, No. 08-CV-0930, 2010 WL 3924751, at *10-11 (E.D.N.Y.2010). The Court has already concluded that Plaintiffs have failed to establish their equal protection, free speech and retaliation claims with respect to the 2004 Auction, therefore the conspiracy claims related to those alleged violations fail as a matter of law and Counts IV, VIII and X of the 2005 Complaint are DISMISSED. Additionally, Defendants argue that the intra-corporate conspiracy doctrine bars all Plaintiffs’ § 1983 conspiracy claims. The Court agrees. “The intracorporate conspiracy doctrine posits that the officers, agents, and employees of a single corporate or municipal entity, each acting within the scope of his or her employment, are legally incapable of conspiring with each other.” Daniel v. Long Island Hous. P’ship, Inc., No. 08-CV-1455, 2009 WL 702209, at *9 (E.D.N.Y. Mar. 13, 2009). Plaintiffs do not dispute that the individual Defendants are all employees of the County but instead argue that Zielinski, Isles and Sabatino were acting outside the scope of their employment when they instructed the auctioneer at the 2004 Auction to ignore Mr. and Mrs. Toussie’s bids and then directed Suffolk police to remove them from the auction. In order to show that Defendants acted outside the scope of their employment, Plaintiffs must show that Zielinski, Isles and Sabatino were “ ‘acting in their personal interests, wholly and separately from the corporation’ ” or municipal entity. Daniel, 2009 WL 702209, at *9 (quoting Bhatia v. Yale Univ., No. 06-CV-1769, 2007 WL 2904205 (D.Conn. Sept. 30, 2007)). Plaintiff, however, has failed to provide any evidence to suggest that they were motivated by independent personal interests, separate and apart from the interests of the County. Plaintiffs state in their opposition tha