Werking v. Andrews et al
DECISION AND ORDER denying Pltf's 27 Cross-Motion to Amend/Correct; granting Defts' 25 Motion for Summary Judgment. Signed by Senior Judge Thomas J. McAvoy on 7/13/12. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------MICHAEL A. WERKING,
MICHAEL ANDREWS, WILLIAM WEISHAUPT,
COUNTY OF ULSTER, NEW YORK and the
ULSTER COUNTY SHERIFF’S DEPARTMENT,
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiff Michael Werking commenced the instant action against Defendants
Michael Andrews, William Weishaupt, the County of Ulster, and the Ulster County Sheriff’s
Department pursuant to 42 U.S.C. § 1983 arising out of his arrest and prosecution.
Presently before the Court is Defendants’ motion for summary judgment pursuant to Fed. R.
Civ. P. 56 seeking dismissal of the Complaint in its entirety and Plaintiff’s cross-motion for
leave to file a third amended complaint.
Shawn Moxham is the registered owner of a trailer. In 2008, Moxham decided he
could no longer use the trailer. In approximately May of 2008, Moxham contacted Plaintiff to
arrange to have the trailer leased and/or sold. According to Plaintiff, the trailer needed
substantial repairs before it could be leased and/or sold. Plaintiff, therefore, claims to have
made certain repairs to the trailer.1 Pursuant to invoice number 09156 dated June 11, 2008
from Albany Avenue Truck & Trailer, Inc.,2 Werking claimed an artisan’s lien on the trailer in
the amount of $5,228.23. In June 2008, Plaintiff leased the trailer to an individual, Ashton
Smith, on behalf of Moxham.3 Smith later opted not to continue using the trailer and returned
it to Plaintiff in November 2008. When the payments on the lease ceased, Moxham sought
the return of his trailer. These efforts were unsuccessful.
In May 2009, Moxham contacted Defendant William Weishaupt, an Assistant
District Attorney with the County of Ulster, claiming that his trailer was being held illegally by
Plaintiff. The matter was assigned to Defendant Michael Andrews, who was then a detective
with the Ulster County Sheriff’s Department assigned to the Ulster County District Attorney’s
Office. Defendants undertook to investigate the matter.
Defendants went to Albany Avenue Truck & Trailer to speak with Plaintiff and
request documents. Defendants requested the invoice for the repairs claimed to have been
performed on the trailer. Plaintiff initially was unable to produce the invoice, but provided it at
a later date. The invoice was shown to Moxham who claimed to have never seen the invoice
and to have not authorized any work to be performed on the trailer.4 Apparently suspecting
that the invoice was a fake, in June 2009 Defendants requested that Plaintiff provide a copy
The parties dispute whether any repairs w ere m ade to the trailer and, if so, w hether any such
repairs w ere authorized.
W erking has an ownership interest in Albany Avenue Truck & Trailer, Inc.
The w ritten lease agreem ent only indicates that it w as executed in “June 2008" and does not
contain a specific date on which it w as executed. It, thus, is unknow n w hether the lease w as executed
before or after the June 11, 2008 invoice.
There w as a signature on the invoice bearing M oxham ’s nam e. The parties dispute w hether the
signature is that of M oxham or a forgery.
of invoice numbers 09155 and 09157, the invoices immediately preceding and following the
subject invoice. Plaintiff did not supply copies of the requested invoices. Defendants also
requested information concerning the location of the trailer so they could inspect it to see if
the claimed work was completed. Plaintiff refused to disclose the location of the trailer.
Defendants sought to obtain a handwriting analysis of the invoice and Moxham’s signature,
but, for various reasons, were unable to have a handwriting analysis performed. In August
2009, Andrews corresponded with Plaintiff setting forth Defendants’ belief that Plaintiff was
unlawfully holding the trailer and that it should be returned immediately in lieu of prosecution
on charges of grand larceny. The trailer was not returned.
On August 24, 2009, Andrews prepared a felony complaint for one count of grand
larceny in the third degree alleging that Plaintiff was wrongfully withholding the trailer under
false pretenses and rights normally afforded under an artisan lien. The Town Justice for the
Town of Ulster issued an arrest warrant on September 11, 2009. The arrest warrant was
executed on October 13, 2009. On February 26, 2010, Weishaupt applied to the County
Court for the County of Ulster to have the charges reduced to a misdemeanor charge of petit
larceny to be prosecuted in the Town of Ulster Justice Court. The misdemeanor charge of
petit larceny was ultimately dismissed by the Town Justice on consent by the Assistant
District Attorney assigned to prosecute the matter.
Plaintiff then commenced the instant action against Defendants claiming violations
of his rights as protected by the Fourth and Fourteenth Amendments to the United States
Constitution. Presently before the Court is Defendants’ motion for summary judgment
pursuant to Fed. R. Civ. P. 56 and Plaintiff’s cross-motion for leave to file a third amended
STANDARD OF REVIEW
Defendants move for summary judgment pursuant to Rule 56. It is well settled that,
on a motion for summary judgment, the Court must construe the evidence in the light most
favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.
1999), and may grant summary judgment only where "there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). An issue is genuine if the relevant evidence is such that a reasonable jury could return
a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A
party seeking summary judgment bears the burden of informing the court of the basis for the
motion and of identifying those portions of the record that the moving party believes
demonstrate the absence of a genuine issue of material fact as to a dispositive issue.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima
facie basis for summary judgment, the burden of production shifts to the party opposing
summary judgment who must produce evidence establishing the existence of a factual
dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported
motion for summary judgment may not rest upon "mere allegations or denials" asserted in his
pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on
conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998).
With these standards in mind, the Court will address the pending motions.
Plaintiff claims that he was maliciously prosecuted by Defendants. Defendants
move to dismiss this claim on the ground that they acted with probable cause or arguable
It is well-settled that, to establish a claim for malicious prosecution, the plaintiff
must prove that: (1) the defendant initiated or continued a criminal proceeding against
plaintiff; (2) the proceeding terminated in plaintiff's favor; (3) the defendant lacked probable
cause to commence the proceeding; and (4) the defendant was motivated by actual malice.
Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). The first two elements are readily
satisfied. Defendants claim, however, that they acted with probable cause and that they
were not motivated by malice.
Upon review of the totality of the circumstances, the Court finds that, for the
following reasons, Defendants had reasonably trustworthy information of facts and
circumstances sufficient to warrant a person of reasonable caution to believe that Plaintiff
committed a crime and, therefore, acted with probable cause. Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996). First, Defendants received a complaint from the purported victim
that he owned the trailer and Plaintiff refused to return it. It is well-settled that, absent reason
to question the veracity of the complainant, “a law enforcement official has probable cause to
arrest if he received his information from some person, normally the putative victim or
In addressing the pending m otions, the C ourt has disregarded Plaintiff’s reply m em orandum of
law (D kt. N o. 36) w hich is not perm itted under this C ourt’s local rules. N .D .N .Y.L.R . 7.1(c) (“The
cross-m oving party m ay not reply in further support of its cross-m otion w ithout the C ourt's prior
eyewitness.” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000). The information from
Moxham was that he owned the trailer, Plaintiff had possession of the trailer, Plaintiff refused
to return the trailer, and Plaintiff was not entitled to assert a lien because Moxham had not
authorized any work to be performed on the trailer. This was sufficient to cause Defendants
to believe that Plaintiff was withholding the trailer under false pretenses in violation of New
York State Penal Law § 155.35.6
Plaintiff responds that Defendants had reason to doubt Moxham’s veracity. In
support, they point to a letter in Defendants possession from Moxham’s attorney. In that
letter, the attorney seeks return of the trailer from Plaintiff. The attorney wrote that:
[s]ince June , Mr. Smith has had possession and use of the trailer, while only
paying my client $300.00 on the agreed price of $21,500.00. I have received word
from Mr. Smith that he no longer wishes to purchase the trailer and has delivered
the trailer to you.
Please . . . contact me so as to make arrangements from the delivery of the trailer
to my client. . . .
Plaintiff argues that this letter is false because Moxham received $1,800 from Smith; not
$300 as claimed. Plaintiff further points out that Defendants were aware of this falsity
Larceny by m eans of false pretenses is com m itted w hen a person obtains possession of
personal property by m eans of a false m aterial statem ent about a past or presently existing fact. People
v. N orm an, 85 N.Y.2d 609 (1995). The elem ents of grand larceny in the third degree by false pretenses
are (1) intent to deprive an ow ner of property, (2) the m aking of a false representation, (3) know ledge of
the falsity, (4) obtaining the property of another, and (5) that the ow ner w as induced by the
representation to give up the property. N orm an v. H ynes, 20 A.D .3d 125, 132, 799 N .Y.S.2d 222, 226-27
(2005). These elem ents are reasonably satisfied here as follow s: (1) the intent to deprive M oxham of
property can be found in Plaintiff’s refusal to return the trailer and his failure to disclose its w hereabouts;
(2) the claim of an artisan’s lien can be found to have been a knowingly false representation; (3) Plaintiff
possessed the trailer; and (4) M oxham delivered the trailer to Plaintiff on the belief that Plaintiff w ould sell
and/or lease the trailer, turn the paym ents over to M oxham w ithout claim ing m onies due for unauthorized
repairs, and not retain the trailer and refuse to disclose its location; and Plaintiff secreted the trailer w hen
M oxham sought its return.
because they had in their possession copies of the canceled checks showing that Moxham
Although the reference to receiving $300 may have been inaccurate, it is
insufficient to establish a basis for doubting Moxham’s veracity concerning whether the trailer
was being held unlawfully. The letter came from Moxham’s attorney. It is not known whether
the monetary amounts were errors by the attorney or based on misstatements by Moxham.
Even assuming it was a misstatement by Moxham, this discrepancy is irrelevant to the facts
at issue here. The letter from Moxham’s attorney substantiated the claim that the trailer had
been placed with Plaintiff to be leased and/or sold, the lease and/or sale had been
terminated, the trailer remained in Plaintiff’s possession, and Plaintiff refused to return the
trailer to Moxham. Moreover, Defendants questioned Moxham about the amount of money
he received from Plaintiff and Moxham conceded that he received more checks than he had
Second, Defendants undertook reasonable efforts to investigate the matter. They
sought to inspect the trailer, but were denied access by Plaintiff. They sought a copy of the
repair invoice from Plaintiff at his place of business. Plaintiff was unable to produce a copy
of the invoice upon request (thereby raising some suspicion concerning its existence and/or
authenticity). Plaintiff supplied an invoice at a later date. Defendants believed the invoice to
have been suspicious because Moxham denied having seen or signed the invoice, and
Defendants believed the invoice to have been written entirely in the same pen, with the same
pressure, and in the same writing. Defendants further noted that the invoice appeared to be
in a condition too clean to suggest it came out of an automobile repair shop (which ordinarily
have grease and/or oil stains on them). Defendants also sought to investigate the veracity of
the invoice by requesting copies of the immediately preceding and subsequent invoices.
Plaintiff did not supply the requested information.
Third, Defendants had a report from March 12, 2008 (approximately three months
prior to the time Plaintiff obtained possession of the trailer) indicating that the trailer was in
good working condition and that none of its components needed repair. This information
tended to substantiate the conclusion that no repairs were made (or needed to be made) by
Plaintiff and, therefore, that the claim of an artisan’s lien was unfounded.
Fourth, Plaintiff secreted the location of the trailer from Plaintiff and the police.
These facts are sufficient to establish probable cause or, at the very least, arguable
probable cause of grand larceny in the third degree. Accordingly, the malicious prosecution
claims must be dismissed.7
Motion to Amend
Plaintiff cross-moves for leave to amend his Complaint to assert a claim for abuse
of process. Plaintiff contends that the Ulster County District Attorney’s office routinely
abuses the criminal process by having individuals arrested and prosecuted for no other
reason than that those individuals refused to comply with the prosecution’s extortionate
demands. Specifically, Plaintiff argues that he was arrested and prosecuted for refusing to
relinquish his possession of, and statutory lien on, Moxham’s trailer. Defendants oppose the
motion on the ground that it is untimely, they are prejudiced by the delay, and the new claim
is without merit.
Plaintiff has w ithdraw n his m alicious prosecution claim s against the County.
As an initial matter, the motion must be denied because Plaintiff failed to “set forth
specifically the proposed amendments and identify the amendments in the proposed
pleading, either through the submission of a red-lined version of the original pleading or other
equivalent means.” N.D.N.Y.L.R. 7.1(a)(4). Even overlooking this procedural shortcoming,
the motion must, nevertheless, be denied.
The elements of an abuse of process claim are: (1) the use of regularly issued
legal process to compel performance or forbearance of some act; (2) with intent to do harm
without excuse or justification; (3) in order to obtain a collateral objective that is outside the
legitimate ends of the process. Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). Essential to
a claim for malicious abuse of process is that the defendants acted with intent to do harm
without excuse or justification to obtain a collateral objective that is outside the legitimate
ends of the process. Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003). Here, the
facts as alleged are insufficient to establish that Defendants acted to do harm without excuse
or justification or to obtain a collateral objective outside the legitimate ends of the process.
The purpose of Defendants’ actions was to seek the return of Moxham’s property which was
believed to have been held unlawfully by Plaintiff, thereby supplying justification for an
objective that is within the legitimate ends of process. It is ordinary and proper for law
enforcement officers to seek to discontinue conduct reasonably believed to be unlawful in
lieu of criminal prosecution.
Further, “[t]he pursuit of a collateral objective must occur after the process is
issued; the mere act of issuing process does not give rise to a claim.” Lopez v. City of New
York, 901 F.Supp. 684, 691 (S.D.N.Y. 1995); see also Cook v. Sheldon, 41 F.3d 73, 80 (2d
Cir. 1994) (quoting 2 Committee on Pattern Jury Instructions, Association of Supreme Court
Justices, New York Pattern Jury Instructions § 3:51 at 816 (1968) (“[t]he gist of abuse of
process is the improper use of process after it is regularly issued.”); De Santis v. City of New
York, 10 CIV. 3508 NRB, 2011 WL 4005331 (S.D.N.Y. Aug. 29, 2011); Curiano v. Suozzi, 63
N.Y.2d 113, 117. In the instant case, Defendants’ efforts to obtain the property occurred
before the institution of criminal proceedings and, therefore, the allegations in the proposed
amended complaint fail to state a claim upon which relief may be granted. Accordingly, the
motion for leave to amend the complaint to assert a claim for abuse of process on behalf of
Plaintiff is denied.
Lastly, Plaintiff moves to amend the Complaint to add a new Plaintiff, Colleen
Neidermier. Neidermier wishes to assert an abuse of process claim against Defendants
arising out of conduct wholly unrelated to the transactions concerning Plaintiff Werking.
Neidermier’s claims arise out of a series of events in 2010 wherein she claims to have been
gifted a dog as a pet from Patrick Taaffee. The Ulster County District Attorney’s office
received a complaint from Taaffee that he purchased the dog and Neidermier refused to
return it. The District Attorney’s office sent a letter to Neidermier stating that “[t]he purpose of
this correspondence is to afford you the opportunity to return the canine to Mr. Taaffee or risk
an arrest for grand larceny.” Based on this letter and a subsequent prosecution, Neidermeir
asserts a claim of abuse of process. For the reasons stated above in connection with
Werking’s abuse of process claim, Neidermier’s allegations fail to state a claim upon which
relief can be granted.8
Assum ing, arguendo, that these allegations did state a claim , because N eiderm ier's claim s
involve facts and circum stances unrelated to W erking’s claim s and the C ourt has dism issed W erking's
federal claim s, the C ourt w ould, nonetheless, deny the m otion for leave to am end claim s on behalf of
N eiderm ier.
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For the foregoing reasons, Defendants’ motion for summary judgment is
GRANTED and Plaintiff’s cross-motion for leave to file an amended Complaint is DENIED.
Having dismissed the federal claims at this early juncture of the litigation, the Court declines
to exercise supplemental jurisdiction over any related state law claims.
IT IS SO ORDERED.
Dated: July 13, 2012
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