Corsi v. Gestone et al

Filing 45

ORDER granting 39 , 42 Motions to Dismiss for Failure to State a Claim: For the reasons in the attached, the Gestone Defendants and the Buttar Defendantss motions are GRANTED with respect to Plaintiff's 42 U.S.C. § 1985(3) claim. The C ourt defers the threshold consideration of whether to exercise supplemental jurisdiction over Plaintiff's state law claims. Plaintiff is granted leave to amend his complaint and shall file his amended complaint within thirty (30) days. Ordered by Judge Denis R. Hurley on 11/19/2021. (Ready, John)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
MICHAEL CORSI,
Plaintiff,

MEMORANDUM AND ORDER

- against -

2:20-cv-4799 (DRH) (SIL)

ANTHONY GESTONE, S.B., an infant,
ANGELIQUE GESTONE a.k.a. ANGELIQUE
HAUSER, GURMEET BUTTAR, individually
and on behalf of his infant child S.B., and
GURCHARN BUTTAR a.k.a. GURCHARN
KAUR, individually and on behalf of her infant
child S.B.,
Defendants.
---------------------------------------------------------------X
APPEARANCES
THE RUSSELL FRIEDMAN LAW GROUP, LLP
Attorneys for Plaintiff
400 Garden City Plaza, Suite 500
Garden City, NY 11530
By: Christopher M. Arzberger, Esq.
LYNNE GARTNER DUNNE, LLP
Attorneys for Defendants Anthony Gestone and Angelique Gestone a.k.a. Angelique
Hauser
330 Old Country Road, Suite 103
Mineola, NY 11501
By: Tiffany D. Frigenti, Esq.
MONTFORT, HEALY, McGUIRE & SALLEY LLP
Attorneys for Defendants S.B., Gurmeet Buttar, and Gurcharn Buttar a.k.a.
Gurcharn Kaur
840 Franklin Avenue
P.O. Box 7677
Garden City, NY 11530
By: James Michael Murphy, Esq.
HURLEY, Senior District Judge:

Page 1 of 9

INTRODUCTION
Plaintiff Michael Corsi brings this action against Defendants Anthony Gestone
(“Anthony”) and Angelique Gestone a.k.a. Angelique Hauser (with Anthony, the
“Gestone Defendants”), S.B., an infant, Gurmeet Buttar, individually and on behalf
of his infant child S.B., and Gurcharn Buttar a.k.a. Gurcharn Kaur, individually and
on behalf of her infant child S.B. (with S.B. and Gurmeet Buttar, the “Buttar
Defendants,” who collectively with the Gestone Defendants are the “Defendants”),
alleging five causes of action: (1) conspiracy to interfere with civil rights, 42 U.S.C.
§ 1985(3), (2) assault and battery under New York State common law, (3) conversion
under New York State common law, (4) bias-related violence under New York Civil
Rights Law § 79-n, and (5) failure to supervise and restrain under New York State
common law. This matter concerns an alleged assault perpetrated by Defendants
Anthony and S.B. against Plaintiff due to his sexual orientation.
Presently before the Court are the Gestone Defendants’s motion to dismiss
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) and the Buttar
Defendants’s motion for judgment on the pleadings pursuant to Rule 12(c). For the
reasons stated below, their motions are granted. Plaintiff’s request for leave to file a
Second Amended Complaint is granted.
BACKGROUND
The following facts from the Amended Complaint are taken as true for the
purposes of this Order. (See Amended Compl. (“AC”) [DE 23]).

Page 2 of 9

Plaintiff identifies as a gay individual. (Id. ¶ 10). Defendants Anthony and
S.B. are his high school classmates who allegedly conspired to attack him upon
learning his sexual orientation. (Id. ¶¶ 12–14). Defendants Angelique Gestone—
Anthony’s mother—and Gurmeet and Gurcharn Buttar—S.B.’s parents—each
allegedly knew of their respective son’s “dangerous propensity and discriminatory
animus” towards gay people and failed to supervise or restrain him. (Id. ¶¶ 27–30).
On August 11, 2019, Anthony and S.B. followed Plaintiff home from the
Massapequa Preserve near Farmingdale, New York. (Id. ¶¶ 11, 15). Approaching
Plaintiff from behind, the two allegedly struck him on the back of the head; when
Plaintiff turned around, they allegedly punched him in the face. (Id. ¶¶ 16–17).
Plaintiff attempted to run away but failed when Anthony and S.B. allegedly tackled
him and twisted his left knee. (Id. ¶¶ 18–19). Anthony and S.B. allegedly pinned
Plaintiff to the ground, stole the $40 in his pocket, and left the scene. (Id. ¶¶ 20–21).
Plaintiff was allegedly “severely injured” as a result of the attack. (Id. ¶ 25). Anthony
and S.B. “were later confronted for the attack” and allegedly admitted they attacked
Plaintiff solely because he was gay. (Id. ¶ 22). The Amended Complaint does not
identify to whom or when Anthony and S.B. made their admissions.
Plaintiff brought this action on October 6, 2020. [DE 1]. He filed an Amended
Complaint on April 9, 2021 to address errors relating to the S.B.’s minor capacity and
to drop a pro se defendant. ([DE 23], see Order dated March 8, 2021). The Buttar
Defendants answered the Amended Complaint on April 30, 2021, [DE 26], and moved

Page 3 of 9

for judgment on the pleadings on August 20, 2021, [DE 39]. The Gestone Defendants
moved to dismiss on August 27, 2021. [DE 42].
LEGAL STANDARD
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a court should “draw all reasonable inferences in Plaintiff[’s] favor, assume all wellpleaded factual allegations to be true, and determine whether they plausibly give rise
to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.
2011) (internal quotation marks omitted). The plausibility standard is guided by two
principles.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir.
2009).
First, the principle that a court must accept all allegations as true is
inapplicable to legal conclusions. Thus, “threadbare recitals of the elements of a
cause of action supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678. Although “legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. at 679. A plaintiff must provide
facts sufficient to allow each named defendant to have a fair understanding of what
the plaintiff is complaining about and to know whether there is a legal basis for
recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a “plausible claim for relief” can survive a
motion to dismiss. Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference

Page 4 of 9

that the defendant is liable for the misconduct alleged. The plausibility standard is
not akin to a ‘probability requirement,’ but asks for more than a sheer possibility that
defendant acted unlawfully.

Where a complaint pleads facts that are ‘merely

consistent with’ a defendant's liability, it ‘stops short of the line’ between possibility
and plausibility of ‘entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S. at
556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47,
50 (2d Cir. 2007). Determining whether a complaint plausibly states a claim for relief
is “a context specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.
“The standard for granting a Rule 12(c) motion for judgment on the pleadings
is identical to that [for granting] a Rule 12(b)(6) motion for failure to state a claim.”
Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020).
DISCUSSION
The Complaint asserts one federal cause of action—a violation of 42 U.S.C.
§ 1985(3), which prohibits individuals from conspiring to violate a person’s civil
rights—and brings it against all Defendants. AC ¶¶ 31–35. Plaintiff’s burden under
§ 1985(3) requires him to show: “(1) a conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a citizen of the United States.” Dolan
v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015). Such claims, unlike their § 1983 kin,

Page 5 of 9

“may target conduct by private parties.” Patterson v. City of New York, 2017 WL
3432718, at *15 (E.D.N.Y. Aug. 9, 2017), aff’d, 758 Fed. App’x 217 (2d Cir. 2019).
Even so, § 1985 was not intended “to apply to all tortious, conspiratorial interferences
with the rights of others.” Griffin v. Breckenridge, 403 U.S. 88, 101–02 (1971). The
Supreme Court has observed that the “supporters of the legislation . . . were []
emphatic that they did not believe, in the words of [House] Representative [Burton]
Cook, ‘that Congress has a right to punish an assault and battery when committed
by two or more persons within a State.’” Id. at 101 (quoting Cong. Globe, 42d Cong.,
1st Sess., App. 485 (1871)).
Section 1985(3) “‘provides no substantial rights itself’ to the class conspired
against,” so the rights, privileges, and immunities it “vindicates must be found
elsewhere.” United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott
(“Carpenters”), 463 U.S. 825, 833 (1983) (quoting Great Am. Fed. S. & L. Ass’n v.
Novotny, 442 U.S. 366, 372 (1979)). The Supreme Court has recognized only two such
rights: the right to be free from involuntary servitude and the right of interstate
travel, Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 278 (1993), the latter
of which the Second Circuit has observed to include “the right to travel freely within
a single state,” Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir. 1990). Supreme Court
precedent
makes clear that it does not suffice for application of § 1985(3) that a
protected right be incidentally affected. A conspiracy is not “for the
purpose” of denying equal protection simply because it has an effect
upon a protected right. The right must be “aimed at”; its impairment
must be a conscious objective of the enterprise. Just as the “invidiously
discriminatory animus” requirement . . . requires that the defendant

Page 6 of 9

have taken his action “at least in part ‘because of,’ not merely ‘in spite
of,’ its adverse effects upon an identifiable group,” so also the “intent to
deprive of a right” requirement demands that the defendant do more
than merely be aware of a deprivation of right that he causes, and more
than merely accept it; he must act at least in part for the very purpose
of producing it.
Bray, 506 U.S. at 275–76 (emphasis in original) (citations omitted) (quoting
Carpenters, 463 U.S. at 833, and Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279
(1979)).
Plaintiff fails to state a § 1985(3) claim. He alleges “Defendants conspired
against [him] solely based on [his] sexual orientation, and the conspiracy was aimed
at harming and interfering with [his] protected rights.”

AC ¶ 33.

Neither his

Amended Complaint nor his motion briefing contend Defendants “aimed at” the
impairment of Plaintiff’s right to inter- or intrastate travel – even assuming the
Complaint plausibly alleges the remaining § 1985(3) elements, which the Court does
not reach.1

Plaintiff merely states his “right to travel was infringed upon by

[Defendants] when Defendants assaulted and battered [him] as he was traveling with
in the State of New York.” Pl. Mem. in Opp. at 3–4 (“Pl. Opp.”) [DE 42-5]. This
allegation reflects a protected right incidentally affected, not one whose infringement
was a conscious objective.
No facts allege or provide a reasonable inference that Defendants attacked
Plaintiff “for the very purpose of” impairing his right to travel. See Gestone Defs.

To be clear, the Court declines to address Plaintiff’s invitation to “extend
§ 1985(3) to cover sexual orientation” among its protected classes. Pl. Opp. at 5 n.2;
see generally Jenkins v. Miller, 983 F. Supp. 2d 423, 457–61 (D. Vt. 2013) (analyzing
the issue in depth).
1

Page 7 of 9

Reply at 2–7 [DE 42-6]. Plaintiff instead claims, “Defendants shared the general
conspiratorial objective of participating in the assault and battery of Plaintiff.” Pl.
Opp. at 5–6. This does not suffice to state a § 1985(3) claim. Jenkins v. Miller, 983
F. Supp. 2d 423, 461–62 (D. Vt. 2013) (claiming a conspiracy to prevent lesbian
mother from exercising lawful parental rights is not a conspiracy to prevent interstate
travel because “abhorrence” and “attempt to thwart” the relationship did not turn on
travel).
The Second Circuit’s opinion in Spencer provides a helpful comparison. There,
the Circuit held a plaintiff adequately stated a § 1985(3) claim—albeit under the
Conley v. Gibson “no set of facts” Rule 12(b)(6) standard—by suggesting “defendants
sought to injure Spencer for having come into their neighborhood.” 903 F.3d at 175–
76 (emphasis added). Here, Defendants allegedly assaulted Plaintiff not for “heading
home from the Massapequa Preserve,” i.e., not for travelling. AC ¶ 15. Defendants
allegedly assaulted Plaintiff “as he was walking home from Massapequa Preserves,”
i.e., “while” incidentally travelling. Id. ¶¶ 15, 34, 43 (emphasis added). They did not
“oppress [Plaintiff] because of his exercise of [his] right” to travel. Bray, 506 U.S. at
275 (emphasis added). The federal guarantee of inter- and intrastate travel does not
transform state-law torts into federal offenses when they are intentionally committed
against people who happen to be travelling at the time of the offense. See Town of W.
Hartford v. Operation Rescue, 991 F.2d 1039, 1047 (2d Cir. 1993).
Accordingly, Plaintiff’s § 1985(3) cause of action is dismissed against all
Defendants.

Page 8 of 9

Plaintiff requests leave to file a Second Amended Complaint in the event his
“the infringement of [the] right to travel” allegations are deficient. Pl. Opp. at 4. Rule
15(a) instructs courts to “freely grant leave when justice so requires,” and the Court
will grant his request. Plaintiff has not yet amended his substantive allegations, this
action is in its nascent stages, and there is no observable prejudice to Defendants.
Nevertheless, while Plaintiff suggests he can plead the “infringement of [his] right to
travel . . . in greater detail,” Pl. Opp. at 4, the present deficiency is not the
particularity of how Plaintiff cannot travel. Rather, it is the asserted aim of the
conspiracy, viz. the “conspiratorial objective of participating in [] assault and battery.”
Id. at 6.
The Court has not addressed Plaintiff’s state law claims and defers the
threshold consideration of whether to exercise supplemental jurisdiction over them
until ruling on the viability of his one federal claim. E.g., Demosthene v. City of New
York, 2019 WL 181305, at *11 (E.D.N.Y. Jan. 10, 2019).
CONCLUSION
For the reasons discussed above, the Gestone Defendants and the Buttar
Defendants’s motions are granted with respect to Plaintiff’s 42 U.S.C. § 1985(3) claim.
Plaintiff is granted leave to amend his complaint and shall file his amended complaint
within thirty (30) days.
SO ORDERED.
Dated: Central Islip, New York
November 19, 2021

s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

Page 9 of 9