Raus v. Town of Southampton, New York et al

Filing 44

MEMORANDUM AND ORDER granting 36 Motion to Dismiss for Failure to State a Claim; For the reasons stated herein, the Defendant's motion to dismiss the complaint is granted. The Clerk of the Court is directed to dismiss this case in its entirety and close this matter. (Ordered by Judge Leonard D. Wexler on 5/18/2015.) (Fagan, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------)(
KAREN L. RAUS,
MEMORANDUM AND ORDER
Plaintiff,

cv

13-7056

-against(Wexler, J.)
THE TOWN OF SOUTHAMPTON, NEW YORK, ITS
BOARD OF TRUSTEES OF THE FREEHOLDERS
AND COMMONALITY OF THE TOWN OF
SOUTHAMPTON, ANNA THRONE-HOLST, Town
Supervisor for the Town of Southampton, its Board of
Trustees of the Freeholders and Commonality of the
Town of Southampton, TIFF ANY SCARLATO, as Town
Attorney for the Town of Southampton, its Board of
Trustees of the Freeholders and Commonality of the Town
of Southampton, DAVID BETTS, Chieflnvestigator
for the Town of Southampton, its Board of Trustees of
the Freeholders and Commonality of the Town of
Southampton, and J. BRIAN DWYER, Ordinance Inspector
for the Town of Southampton, its Board of Trustees of the
Freeholders and Commonality of the Town of Southampton,
Defendants.

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APPEARANCES:
Harold Steuerwald, LLP
By:
Harold Steuerwald, Esq.
112 South Country Road, Ste 116
Bellport, NY 11713
Attorneys for Plaintiff
Devitt Spellman Barrett, LLP
By:
Kelly E. Wright, Esq.
50 Route 111
Smithtown, NY 11787
Attorneys for Defendants

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FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N Y

MAY 1B2015

*
* ISLAND OFFICE
LONG

WEXLER, District Judge:
Plaintiff Karen L. Raus ("Raus" or "Plaintiff') brings this action claiming that the
Defendants --namely, the Town of Southampton, New York, (the "Town"), Anna Throne-Holst,
the Town Supervisor ("Throne-Holst"), Tiffany Scarlata, the Town Attorney ("Scarlata"), David
Betts, the Chieflnvestigator ("Betts"), and J. Brian Dwyer, the Ordinance Inspector ("Dwyer")
(collectively "Defendants"Y have violated her due process and equal protection rights under the
Fourteenth Amendment of the U.S. Constitution, and have subjected her to a malicious abuse of
process in violation of 42 U.S.C. § 1983 and abuse of process under New York state law. She
seeks a preliminary and permanent injunction, a declaratory judgment, damages and costs.
Defendants move to dismiss the complaint in its entirety pursuant to Federal Rules of Civil
Procedure ("Fed.R.Civ.P."), Rule 12(b)(6). 2 For the reasons that follow, Defendants' motion is
granted. 3
BACKGROUND

1

By stipulation, the parties previously dismissed claims against Sundy Schermeyer, the
Town Clerk and Kathleen Murray, the Deputy Town Attorney, and amended the caption
accordingly. See docket entry ("DE"), 29.
2

1n her opposition, the Plaintiff indicates that the motion is one for summary judgment.
Yet, the Court permitted Defendants to move to dismiss, see DE 24 and order of April23, 2014,
and except for a typographical error on Defendants' Notice of Motion indicating a motion under
Rule 56, that mistake was corrected and the motion was presented as one to dismiss. The Court
addresses the motion as one to dismiss pursuant to Rule 12(b).
3

ln her opposition papers, Plaintiff seeks leave to amend her first amended complaint.
Plaintiff has already amended her complaint once, and she does not provide a proposed second
amended complaint. The request for leave to move to amend is denied. See La Barbera v.
Ferran Enterprises, Inc., 2009 WL 367611, at *11 (E.D.N.Y. 2009) (plaintiff's motion for leave
to amend complaint denied for failure to submit a proposed amended complaint and as untimely).

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I.

Plaintiffs' Complaint
The following facts are taken from Plaintiffs' 28-page, first amended complaint, or, as

noted, from documents properly considered in the context of a motion to dismiss.
1. Interactions with Town Code Inspectors from 2007-2012
Since 1995, Plaintiff has been a resident and owner of a single family dwelling at 6
Baywood Drive, in the Town of Southampton, NY. First Amended Complaint ("FAC."),

~

10,

18. Beginning in the Spring of 2007, Plaintiff alleges that, after placing a storage trailer on her
property, an Ordinance Inspector from the Town visited her property and informed her that
having a trailer on her property was prohibited by the Code ofthe Town of Southampton. FAC,
~~

22-25. Plaintiff also alleges that the Ordinance Inspector directed her to plant grass on part of

her property "because he did not like the way it looked," and said she should install a six-foot
fence on the south side of her premises. F AC,

~~

26-27. Plaintiff went to the Building

Department for the Town for a permit to build the fence and was advised that she was not
permitted to build a six-foot fence. FAC,

~~

28, 30.

Subsequently, also in Spring of2007, a Building Inspector came to Plaintiffs premises
and directed that the trailer on her property be removed since they were illegal in the Town.
FAC,

~~

FAC,

~

31-36. Plaintiff alleges that the trailer broke while she was attempting to remove it,

36, but does not state whether the trailer and its content were ever fully removed.
Two years later, in September 2009, Plaintiff received an Appearance Ticket from a

Ordinance Inspector from the Town, for five Code violations, including 3 charges for property
maintenance and litter, a charge for changing the use of her residence to a multiple family by
renting it out, and a charge for building an accessory apartment without a permit. FAC,
-3-

~~

38-42.

Plaintiff alleges that despite being signed by Ordinance Inspector Alfred Tumbarello, at no time
did he ever conduct an inspection of Plaintiffs property. FAC, ~~ 43-46.
Plaintiff appeared in Court as required by the Appearance Ticket, and conferenced with
the Assistant Town Attorney Michael Slendeski, who advised that "she would have to plead
guilty" and get a permit for the apartment in the lower level of her home. FAC, ~~ 48-49. When
Plaintiff went to the Building Department, she was informed that she would not be permitted to
have an accessory apartment since the property was not zoned for that and because she lived in
her home. FAC,

~

50. Plaintiff also alleges that someone from the Building Department told her

that she could not be ticketed for an illegal apartment if no interior inspection of her home had
been conducted. FAC,

~

51.

When she appeared in Court a second time, Plaintiff again asserted that she did not have
an accessory apartment. Appointments were made for inspections, which occurred in January
and May 2010. FAC, ~~54-57. Upon their completion, she was told she was "good to go," and
when back in Court, she pled guilty to the litter charges and paid a fine. FAC,

~~

57-58.

Plaintiff further alleges that beginning in 2009, she contacted the Office of Code
Enforcement regarding the property across the street from her, which she alleges had ten vehicles
stored there, was littered with trash, had several trailers for boats and jet skis, housed a dumpster
for 5 years, had a second kitchen she observed in the basement and two other apartments, and
numerous people were living there. She alleges that she was told that there was nothing the
Town could do because they could not get inside to inspect. FAC, ~~ 59-63.
2. The September 11, 2012 Violations
Three years later, on September 11, 2012, Town Ordinance Inspector, Defendant Dwyer
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came to Plaintiffs house and issued her an Appearance Ticket, based on complaints received
from Pamela Sadousky4 that Plaintiffwas renting her premises without a permit. FAC, ~~ 64-68.
Plaintiff alleges that the ticket was wrongfully being issued without first conducting an
inspection, and that she repeatedly argued this to Inspector Dwyer when he issued her the ticket.
FAC,

~~

67-72.

Finally Dwyer relented and agreed to inspect the interior of Plaintiffs premises. In the
lower level, he found a microwave, which he reported to Plaintiff deemed the space a kitchen.
Plaintiff proceeded to throw the microwave in the garbage, and asked if then she was in
compliance, to which Dwyer responded "Yes, you are." FAC,

~~

72-73. Plaintiffthen signed a

consent to the inspection, which she alleges was without reading it. FAC,

~

76.

Plaintiff appeared in Court and was charged with eight violations, including for failure to
have smoke detectors or carbon monoxide alarms, for storage in the building and near the burner,
for litter/property maintenance, for having a dumpster on her property, for a change of use of the
property because of the rental, and for not having a rental permit. The violations were sworn by
Defendant Dwyer and notarized by Defendant Betts. FAC,

4

~~

77-88. Plaintiff alleges there was

Defendants assert that Ms. Sadousky rented space from Plaintiff and include in their
opposition papers a decision of the Town of Southampton Justice Court, in Raus v. Sadousky,
12-090034, brought by Plaintiff against Pam Sadousky for $3,000.00 in unpaid bills, which
action included a counterclaim for the return of a security deposit in the amount of $1 ,000.00.
See Declaration of Kelley E. Wright ("Wright Dec."), Ex. H: Decision in Town of Southampton
Justice Court, Raus v. Sadousky, 12-090034 (the "Decision"). The Decision states that in June
2012, Plaintiff sent Sadousky a 30-day notice to terminate, and several months after the
landlord/tenant petition was dismissed, on September 11, 2012, Raus was charged with
violations, following a complaint made to the Town by Sadousky of the violations at the house,
including the failure to have a rental permit. See Wright Dec., Ex. H: Decision, at 2. The Town
Justice Court granted Plaintiff judgment in the amount of $3,000.00 and dismissed the
counterclaim. Id., at 4. In her complaint here, Plaintiff refers to Ms. Sadousky as her former
roommate. FAC ~ 105.
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no supporting affidavits, that no inspection was conducted prior to receiving the Appearance
Ticket, and that Dwyer knew the allegations were false. FAC,

~~

89-94.

Following her court appearance, Plaintiff called Dywer and on October 2, 2012 he came
to her house with another inspector. Plaintiff alleges that Dwyer said, "I just did what I was told
to do that day," and that she should address the charges for the smoke detector and the carbon
monoxide alarm, and the dumpster and that "it will all be over." FAC, ~~ 97-100. According to
Plaintiff, Dwyer never responded to her question as to why the house across the street could have
a dumpster for over five years. FAC,

~

102.

On October 25, 2012, Dwyer returned to Plaintiff's house to re-inspect for the smoke
detectors and carbon monoxide alarms. At that time, Plaintiff told Dwyer that Pamela Sadousky,
Plaintiff's former roommate, "had made up all the complaints" she filed with the Town. FAC, ~
105. Dwyer responded that "you're all clear now. You're going to Court and pay a small fine
and that's it." FAC,

~

106.

Back at Court on October 26, 2012, the Assistant Town Attorney asked if Plaintiff got a
rental permit, which Plaintiff said was not necessary since she did not have an accessory
apartment. Plaintiff was told she had to plead guilty to the smoke detectors and pay a $3,000.00
fine. When Plaintiff complained she could not pay that fine, it was reduced to $1 ,000.00, and she
was told that she could plead guilty and accept the reduced fine, or challenge the charges.
Plaintiff finally agreed to the $1,000.00 fine and pled guilty to not having sufficient smoke
detectors. FAC, ~~ 107-112.
Plaintiff alleges that "it is a normal custom and practice" for individuals to plead out for a
monetary sum, that she was treated differently than others similarly situated, including her
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neighbor across the street, and that charging her was a way to abuse and harass her. FAC, ,-r,-r
115-128. According to the complaint, Plaintiff served a Notice of Claim on the Town and its
various officials on December 11, 2012. 5
As noted above, Plaintiffs first amended complaint asserts four causes of action, for
violation of Plaintiffs procedural and substantive due process rights under the Fourteenth
Amendment, for violation of Plaintiffs equal protection rights under the Fourteenth Amendment,
for malicious abuse of process in violation of 42 U.S.C. § 1983 and for abuse of process under
New York law. Plaintiff seeks a preliminary and permanent injunction, a declaratory judgment,
attorneys' fees and damages. Defendants move to dismiss the complaint in its entirety, and for
the following reasons, that motion is granted.
DISCUSSION
I.

Standards on Motion to Dismiss
In considering a motion to dismiss made pursuant to Rule 12(b)( 6), the court must accept

the factual allegations in the complaints as true and draw all reasonable inferences in favor of
Plaintiff. Bold Electric, Inc. v. City ofNew York, 53 F.3d 465, 469 (2d Cir. 1995). In Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court rejected the standard set
forth in Conley v. Gibson, 355 U.S. 41 (1957), that a complaint should not be dismissed "unless
it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief," id. at 45-46. The Supreme Court discarded the "no set of facts"

5

A copy ofthe Notice of Claim is attached to the Wright Dec., Ex. D. It was signed by
the Plaintiff and dated December 11, 2012. It is addressed to the "City/Town
Village/County/State of Southampton, NY" and claims "[v]iolation of constitutional rights." No
affidavit of service has been provided to the Court. Wright Dec., Ex. D, at 1.
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language in favor of the requirement that plaintiff plead enough facts "to state a claim for relief
that is plausible on its face." Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Although heightened factual pleading is not the new standard, Twombley holds
that a "formulaic recitation of cause of action's elements will not do ... Factual allegations must
be enough to raise a right to relief above the speculative level." Twombley, at 555. A pleading
need not contain '"detailed factual allegations,'" but must contain more than "an unadorned,
the-defendant-unlawfully-harmed-me accusation." Iqbal, at 678, quoting Twombley, at 555
(other citations omitted). "Determining whether a complaint states a plausible claim for relief' is
a "context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Iqbal, at 679. Reciting bare legal conclusions is insufficient, and "[w]hen there
are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief." Iqbal, at 679. A pleading that does
nothing more than recite bare legal conclusions is insufficient to "unlock the doors of discovery."
Iqbal, at 678-679.
When considering a motion to dismiss, the Court may consider documents attached to or
incorporated by reference into the complaint. Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood
Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (citations omitted). This
includes public records, and documents concerning a related state proceeding. Taylor v.
Vermont Dept. ofEduc., 313 F.3d 768,776 (2d Cir. 2002) (public records, such as state court
filings, also notably incorporated by reference into the complaint, may be considered on a motion
to dismiss); Thomas v. Venditto, 925 F.Supp.2d 352, 359 (E.D.N.Y. 2013) (when considering a
motion to dismiss, the court may take judicial notice of an order in a related criminal proceeding)
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(citations omitted).
II.

The Present Motion
A.

Statute of Limitations and Notice of Claim

Defendants argue, and Plaintiff acknowledges, that a three-year statute of limitations
applies to Plaintiffs claims under 42 U.S.C. § 1983. Eagleston v. Guido, 41 F.3d 865, (2d Cir.
1994) (the statute oflimitations is three years for§ 1983 actions arising in New York) (ciations
omitted). Therefore any claims based on conduct occurring three years prior to the filing of
Plaintiffs complaint on December 10, 2013 are time barred.
Defendants also argue that Plaintiffs Notice of Claim is defective, warranting dismissal
of Plaintiffs state law claim for abuse of process. Defendants first argue that it does not name
the individual Defendants, thus precluding the state law claims against them. Second,
Defendants argue that New York General Municipal Law § 50-e requires that the Notice of
Claim be served within ninety (90) days after the claim arises, and Plaintiffs complaint alleges it
was served on December 11, 2012, ninety-one (91) days after the occurrence, and therefore too
late.
First, a review of the face of the Notice of Claim, attached as Exhibit D to the Wright
Dec. reveals that it names only the "City/Town/Village/County/ State of Southampton, NY," and
not the individual Defendants. Defendants argue the Plaintiffs failure to name the individual
defendants in the Notice of Claim is fatal to the state claims against those individuals.
Recent courts have held that New York General Municipal law § 50-e does not require
that the individuals be specifically named in the notice of claim as a condition precedent to
bringing the claims. See Goodwin v. Pretorius, 105 A.D.3d 207, 209-210, 962 N.Y.S.2d 539,
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541 (4th Dept. 2013) (citations omitted). Another courts in this circuit have, in the absence of
clarity from the Court of Appeals, followed the reasoning of the Goodwin court and declined to
dismiss claims for failure to identify the individual defendant in the notice of claim. See Weaver
v. City ofNew York, 2014 WL 950041, *8 (E.D.N.Y. 2014); Shahzad v. County ofNassau, 2013
WL 6061650, *7 (E.D.N.Y. 2013); Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 397
(S.D.N.Y. 2013). Similarly, this Court declines to dismiss the state law claims for the failure to
name the individual defendants, and turns it attention to the timeliness issue.
Defendants' second argument is that the Notice of Claim is untimely since it was not
served within the ninety (90) day period prescribed by New York law. General Municipal Law §
50-e ( 1)(a) states that in any case founded on tort where a notice of claim is required, that notice
must be served in within ninety days of when the claim arose. The Notice of Claim here is
signed and dated December 11, 2012. Furthermore, Defendants assert that the Town received
only a partial document on December 20, 2012. See De f. Reply Mem., at 9-10. In her
opposition, Plaintiff fails to provide an affidavit of service indicating when it was served, and
merely argues in response that "Plaintiff believes her Notices of Claim6 were timely filed in this
matter," and appears to concede the defect in the Notice, stating "[s]he does not however seek
any kind of duplicative recovery in this matter by alleging both [state and federal] theories." Pl.
Opp., at 6.
Since the Notice of Claim on its face is dated December 11, 2012, which is 91 days after
the claim arose, it could not have been served within ninety days as required by the General

6

Plaintiff refers to "Notices" of Claim, yet the Court has been provided only one Notice,
which the Court notes was submitted by the Defendants, not the Plaintiff.
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Municipal law. Without evidence of proper timely service, the Court finds that the Notice of
Claim is untimely. Williams-Smith v. MTA New York City Transit, 82 A.D.3d 512,918
N. Y.S.2d 345 (1st Dept. 2011) (notice of claim untimely where evidence conclusively establishes
that the notice was mailed ninety-one days after the accident); McGarty v. City of New York, 44
A.D.3d 447, 843 N.Y.S.2d 287 (1st Dept. 2007) (failure to seek court approval to excuse a late
notice of claim requires dismissal). Since the notice of claim is untimely, Defendants' motion to
dismiss the state law claim is granted.
B.

Claims against Scarlata and Throne-Holst

Defendants also seek to dismiss the claims against Defendants Anna Throne-Holst (the
Town Supervisor) and Tiffany Scarlata (the Town Attorney), arguing there are no specific
allegations in the complaint of their personal involvement, and in any event, they are protected by
absolute and legislative immunity. Plaintiff's complaint does not contain any specific allegations
that these individual Defendants were personally involved, warranting their dismissal from this
action. See Canzoneri v. Incorporated Village of Rockville Centre, 986 F.Supp.2d 194, 205
(E.D.N.Y. 2013) (allegations of an "individual officer's personal involvement in the
'constitutional deprivation[]' is a 'prerequisite' to a Section 1983 claim against them.") (quoting
McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977)). Furthermore, in her opposition,
Plaintiff appears to concede that these two individual Defendants are not personally involved and
are protected by immunity for any individual claims, stating that based on the information
currently available, "Plaintiff must agree that Immunity could well apply to any individual claims
against Defendant Throne-Holst and Defendant Scarlata, as they are not alleged by the Plaintiff
to have been personally involved ... " See Plaintiffs Memorandum in Opposition ("Pl. Mem. in
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Opp."), at 4. Since there are no allegations of personal involvement, which the Plaintiff
concedes, Defendants' motion to dismiss the claims against Defendants Throne-Holst and
Scarlato is granted.
C.

Due Process Claim

The essence of Plaintiffs due process claim is that her rights were violated as a result of
the misconduct by Ordinance Inspector Dwyer and Chief Investigator Betts, and the issuance of
knowingly false accusatory documents, which, she alleges, is a routine practice of the
Defendants. She alleges such misconduct so "shocks the conscience" that it supports a
substantive due process claim. See Pl. Mem. in Opp., at 5.
1. Procedural Due Process
"An essential principle of due process is that a deprivation of life, liberty, or property 'be
preceded by notice and opportunity for hearing appropriate to the nature of the case."' Cleveland
Bd. ofEduc. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493 (1985) (quoting Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950));
Canzoneri v. Incorporated Village ofRockville Centre, 986 F.Supp.2d 194,202 (E.D.N.Y. 2013)
(citations omitted).
It is unclear from Plaintiffs complaint what interest plaintiff asserts was deprived without

due process, other than stating general conclusions that the laws as "applied by these Defendants,
violate Plaintiffs right to Due Process," and "the conduct of these Defendants has imposed
irrational and unjustifiable restrictions upon the Plaintiff, with unconscionable results." FAC,

~

131. Nor does Plaintiff, even in response to Defendants' arguments that no property interest was
deprived, clarify the alleged deprivation. Instead, Plaintiff merely asserts ""[t]here is simply no
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question that the misconduct complained of constitutes a violation of Plaintiff's due process
rights ... " Pl. Mem. in Opp., at 5. Yet the complaint itself details that once served with the
Appearance Ticket, Plaintiff was afforded due process through a court process that involved a
conference, a subsequent inspection of her property, and negotiations with the Town Attorney
concerning disposition of the violations and the related fines. The Court finds that Plaintiff's
generalized allegations here, without more, fail to state a claim for a procedural due process
violation. Ashcroft v. Iqbal, 556 U.S. at 678-679. Therefore, Defendants' motion to dismiss this
claim is granted.
To the extent Plaintiff's due process claim rests on allegations that the accusatory
instrument itself was false, and that these Defendants committed misconduct by bringing the
charges without first inspecting her property, due process was available to her through a state
court proceeding. Plaintiff could have brought an Article 78 proceeding, by which New York
state courts are empowered to issue '"common law writs of certiorari to review, mandamus, and
prohibition."' New York State Nat. Organization for Women v. Pataki, 261 F.3d 156, 168 (2d
Cir. 2001) (quoting Hellenic Am. Neighborhood Action Comm. v. City ofNew York, 101 F.3d
877, 881 (2d Cir. 1996) (other citations omitted)). According to the Second Circuit, an Article
78 proceeding provides an "adequate state postdeprivation procedure to remedy a random,
arbitrary deprivation of property or liberty," thus precludes a procedural due process violation
claim. Hellenic Am. Neighborhood Action Comm., 101 F.3d at 881-882.
2. Substantive Due Process
The gravaman of Plaintiff's substantive due process claim is that Defendants' actions
have so "shocked the conscience" that they constitute a substantive due process violation. The
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"substantive component [of due process] guard[s] the individual against 'the exercise of power
without any reasonable justification in the service of a legitimate governmental objective,"'
Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (quoting Wolffv. McDonnell, 418 U.S.
539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). As stated by the Second Circuit, '" [i]n order to
shock the conscience and trigger a violation of substantive due process, official conduct must be
outrageous and egregious under the circumstances; it must be truly 'brutal and offensive to
human dignity .... "' Lombardi, 485 F.3d at 81-82 (quoting Smith v. Half Hollow Hills Cent.
School Dist., 298 F.3d 168, 173 (2d Cir. 2002) (other citations omitted); Velez v. Leyy, 401 F.3d
75, 93 (2d Cir. 2005); Robischung-Walsh v. Nassau County Police Dept., 421 Fed.Appx. 38,41
(2d Cir. 2011) (substantive due process claim fails since no allegations of conscience-shocking
conduct).
The Court finds that Plaintiffs allegations, even accepted as true as the Court must on a
motion to dismiss, do not rise to the level as required to substantiate a substantive due process
claim. Therefore, Defendants' motion to dismiss this claim is granted.
B.

Equal Protection Claim

Plaintiffs equal protection claim asserts that her rights were violated because she was
treated differently than those similarly situated. A plaintiff making such a claim may proceed on
the theory that she was subjected to "selective enforcement" or treated as a "class of one." To
state a claim for "selective enforcement" requires plaintiff show that "(1) they were treated
differently from other similarly situated individuals and (2) this differential treatment was based
on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person." MacPherson v. Town of
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Southampton, 2013 WL 6058202, *14 (E.D.N.Y. 2013) (citations omitted).
A "class of one" claim succeeds where the plaintiff can show intentional treatment
different than those similarly situated, and a lack of a rational basis for that treatment. Sacher v.
Village of Old Brookville, 967 F.Supp.2d 663, 670 (E.D.N.Y. 2013) (citing Ruston v. Town Bd.
for Town of Skaneateles, 610 F.3d 55, 58 (2d Cir.), cert. denied, 131 S.Ct. 824 (201 0).
According to the Second Circuit, '"class-of-one plaintiffs must show an extremely high
degree of similarity between themselves and the persons to whom they compare themselves.'"
Ruston, 610 F.3d at 59 (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)).
Such a claim requires that the plaintiff 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
defendants acted on the basis of a mistake." Ruston, 610 F.3d at 59-60 (citations omitted). In
that case, the Court affirmed the district court's dismissal of plaintiffs' equal protection claims,
which were based on the town denying sewer access to plaintiff but granting it to others, because
the plaintiff failed to allege that the other identified properties were sufficiently similar that "no
rational person could see them as different." Ruston, 610 F.3d at 60.
So too here. The essence of Plaintiffs equal protection claim is that she was prosecuted
for code violations and her neighbor at 1375 Noyac Road was not, arguing this dissimilar
treatment supports her equal protections claim. She alleges that since 2009, she made various
complaints about that address for having numerous vehicles and trailers on the property, for
trash, noise, numerous residents, and a dumpster for five years. FAC, ,-r,-r 59-61. She also claims

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she informed the code inspectors that she observed a second kitchen in the basement, and that
there were two apartments elsewhere in the house, and was told that there was nothing the Town
could do because they could not get in to inspect. FAC, 'J'J 62-63. She asserts she never got an
answer as to why the house had a dumpster "in the driveway continuously for five (5) years,"
(F AC, 'J'J 101-1 02), and that ordinance inspectors routinely ignore code violations by "members
of other groups," and asserts that code violations "were taking place in plain view across the
street at 1375 Noyac Road, and yet those neighbors were never cited." FAC, 'If 120.
Plaintiff's claim that her equal protection rights were violated fails since she does not
sufficiently allege that the premises at 13 75 N oyac Road is "similarly situated" to hers such that
"no rational person" could see them as different to justify the allegedly different treatment.
Plaintiff was prosecuted for code violations for, amongst other things, failure to have smoke and
carbon monoxide detectors, for renting without a permit after a complaint was lodged by the
alleged tenant, and for having storage near the boiler. Other than complaining that there was a
dumpster there for five continuous years, and that other people may have been living there at
certain points in time, Plaintiff does not provide sufficient detail indicating that she is "similarly
situated" to the premises at 1375 Noyac Road. She does not provide any allegations concerning
whether that premises had committed the same code violations with which she was charged, such
as, for example, the status of the smoke detectors and carbon monoxide detectors in that house or
whether they had a rental permit. Simply put, her allegations even accepted as true, do not
support a conclusion that "no rational" person could see a reason to justify different treatment.
It is clear to the Court that Plaintiff believes she was treated unfairly and charged with

violations while others were not, but on these facts, there has been no violation of constitutional
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rights. Indeed, some courts have warned of citizen frustration spawning equal protection claims,
noting the "'danger of ordinary disputes between a citizen and a municipality-whether it be
about land use, licenses, inspections, or some other regulatory or investigative function of local
governments-being transformed into federal lawsuits by an incorrect, overexpansive theory of
class-of-one liability.'" MacPherson, 2013 WL 6058202 at 14 (quoting Crippen v. Town of
Hempstead, 2013 WL 1283402, at *7 (E.D.N.Y. 2013)). Such is the case here.
The Court finds that Plaintiffs' allegations, evan accepted as true, do not adequately show
that she was being treated differently than any other similarly situated homeowner in the Town.
Therefore, her equal protection claim fails and Defendants' motion to dismiss is granted.
MacPherson v. Town of Southampton, 2013 WL 6058202, *14 (E.D.N.Y. 2013) (because
plaintiffs' complaint is bereft of factual allegations suggesting that MacPherson is being treated
differently from others similarly situated, equal protection claim-whether pled as a selective
enforcement claim or a class-of-one claim-fails).
C.

Malicious Abuse ofProcess Claim

A malicious abuse of process claim '"lies against a defendant who (1) employs regularly
issued legal process to compel performance or forbearance of some act (2) with intent to do harm
without excuse of justification, and (3) in order to obtain a collateral objective that is outside the
legitimate ends ofthe process."' Savino v. City ofNew York, 331 F.3d 63,76-77 (2d Cir. 2003)
(quoting Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994));. "Malicious abuse of criminal
process also supports liability under§ 1983." Savino, 331 F.3d at 76-77; see also Mangino v.
Inc. Village of Patchogue, 814 F.Supp.2d 242, 248 (E.D.N.Y. 2011); Coleman v. City ofNew
York, 585 Fed.Appx. 787, 788 (2d Cir. 2014).
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In Savino, the Second Circuit reversed the district court's decision to deny summary
judgment after determining there was an issue of fact as to whether probable cause existed to
substantiate the legal process. In so doing, the Second Circuit questioned the importance of
probable cause in the analysis, and citing various cases from the New York Court of Appeals,
stated that "[i]n order to state a claim for abuse of process, a plaintiff must establish that the
defendants had an improper purpose in instigating the action." Id., at 77 (italics in original)
(citing Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 468-69, 469 N.E.2d 1324
(1984); Hauser v. Bartow, 273 N.Y. 370, 374, 7 N.E.2d 268 (1937); Dean v. Kochendorfer, 237
N.Y. 384, 143 N.E. 229 (1924)). The Second Circuit further noted that "it is not sufficient for a
plaintiff to allege that the defendants were seeking to retaliate against him by pursuing his arrest
and prosecution. Instead, he must claim that they aimed to achieve a collateral purpose beyond
or in addition to his criminal prosecution." Savino, 331 F.3d at 77.
Plaintiff here fails to satisfy this burden. Raus alleges in her complaint that the various
code violations were filed against her "in order to take advantage of the Plaintiff and force her to
pay a monetary fine," since they knew it would be difficult for her "to spend money to hire an
attorney," forcing her to plead guilty and causing her to "suffer financially by having to pay
monetary fines." FAC, ~ 143. This is insufficient to support a "collateral objective" incidental to
the prosecution. The fines Plaintiff faced were incumbent within and an evitable consequence of
the code violation process. They are not separate from, or "beyond or in addition to," the
criminal prosecution. Therefore, even if the Defendants were prosecuting Plaintiff with the
motivation to extorting fines, this is not a separate "collateral objective" incidental to the
prosecution, and therefore does not support a claim for malicious prosecution. See Peter L.
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Hoffman, Lotte, LLC v. Town of Southampton, 523 Fed.Appx. 770,771-772 (2d Cir. 2013)
(affirming district court's decision to grant a motion to dismiss where plaintiff's allegations that
Town's filing of criminal charges was in retaliation for plaintiff's attempt to enjoin the local
Justice court or an attempt to "coerce and pressure" plaintiffs from pursing certain legal defenses,
were not sufficient collateral objectives necessary for a malicious abuse of process claim);
Coleman v. City of New York, 585 Fed.Appx. at 788 (summary judgment properly granted
where retaliation for some offense will not suffice as a collateral motive for the purposes of an
abuse of process claim, and no alternative motive is alleged); MacPherson v. Town of
Southampton, 2013 WL 6058202, *7-8 (E.D.N.Y. 2013) (plaintiff's alleged collateral objective
that defendants sought to force plaintiff to spend money to defend complaints does not suffice for
malicious abuse of process claim); Goldring v. Zumo, 2015 WL 148451, *4 (E.D.N.Y. 2015)
(plaintiff's allegation that the criminal process issued against him was driven by spite and to
cause plaintiff's business harm is not a sufficient collateral objective and motion to dismiss
malicious abuse of process claim granted, where there is no allegation that defendants had any
intent other than to enforce valid local statutes); Crews v. County ofNassau, 2007 WL 4591325,
*12 (E.D.N.Y. 2007) (motion to dismiss granted where plaintiffs have merely alleged that
defendants were motivated by a desire to cover up their misdeeds, but not that defendants had a
purpose other than to prosecute plaintiff); but see Conte v. County ofNassau, 2010 WL 3924677,
*20 (E.D.N.Y. 2010) (questions of fact precluded summary judgment on malicious abuse of
process claim where plaintiff alleged that process was brought to extort a resolution of a civil
matter by obtaining refunds and financial settlements for various complainants, and to ruin
plaintiff's business). Since Plaintiff fails to allege a collateral objective beyond the prosecution
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ofthe Code violations, Defendants' motion to dismiss the malicious abuse of process claim is
granted. 7
CONCLUSION
For the reasons stated above, the Defendant's motion to dismiss the complaint is granted.
The Clerk of the Court is directed to dismiss this case in its entirety and close this matter.
SO ORDERED.

s/ Leonard D. Wexler
,rr -'""""----- ? - - ~
C/ LEONARD D. WEXLER

UNITED STATES DISTRICT JUDGE
Dated:

Cent1~)slip,

New York

May~2015

7

To the extent Plaintiffs complaint asserts a Monell claim, that claim also fails. As
Defendants correctly argue, Plaintiffs conclusory, generalized allegations that there is a "clear
policy and practice" of misconduct cannot support a Monell claim. Furthermore, the Court finds
that since Plaintiffs substantive constitutional violation claims fail, so do her Monell claims.
See Segal v. City ofN.Y., 459 F.3d 207,219 (2d Cir. 2006) ("Because the district court properly
found no underlying constitutional violation, its decision not to address the municipal defendants'
liability under Monell was entirely correct.").
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