Hogan et al v. County of Lewis, New York et al
Filing
236
MEMORANDUM-DECISION and ORDERED, that Defendant David Vandewaters First Motion (Dkt. No. 171) for summary judgment is GRANTED in part and DENIED in part; and it is further ORDERED, that all claims against Defendant David Vandewater except for Plainti ffs interference with easement and private nuisance claims are DISMISSED; and it is further ORDERED, that Defendants Russell Falter and Kathy Wilsons Second Motion (Dkt. No. 174) for summary judgment is GRANTED in part and DENIED in part; and it is f urther ORDERED, that all claims against Defendants Russell Falter and Kathy Wilson except for Plaintiffs private nuisance claim are DISMISSED; and it is further ORDERED, that Defendants County of Lewis, New York; Ryan Lehman; Brett Croneiser; Leanne Moser; and Caleb Petzoldts Motion (Dkt. No. 176) for summary judgment is GRANTED; and it is further ORDERED, that all claims against Defendants County of Lewis, New York; Ryan Lehman; Brett Croneiser; Leanne Moser; and Caleb Petzoldt are DISMISSED; a nd it is further ORDERED, that Defendant Frank Roses Motion (Dkt. No. 177) for summary judgment is GRANTED in part and DENIED in part; and it is further ORDERED, that all claims against Defendant Frank Rose except for Plaintiffs private nuisance and loss of consortium claims are DISMISSED. Signed by Senior Judge Lawrence E. Kahn on March 26, 2015. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARK HOGAN, individually and as
guardian and on behalf of his minor
children, J.H. and I.H.; ELIZABETH M.
HOGAN, individually and as guardian and
on behalf of her minor children, J.H. and
I.H.; and DENNIS B. OKUDINANI, as
guardian and on behalf of D.O.,
Plaintiffs,
-against-
7:11-CV-0754 (LEK/ATB)
COUNTY OF LEWIS, NEW YORK;
DAVID VANDEWATER; FRANK ROSE;
RUSSELL FALTER; KATHY WILSON;
LEANNE MOSER, in her individual and
official capacity as District Attorney of the
County of Lewis; CALEB PETZOLDT, in
his individual and official capacity as
Assistant Lewis County District Attorney;
SERGEANT RYAN LEHMAN, in his
individual and official capacity; DEPUTY
BRETT CRONEISER; and JOHN and
JANE DOES,
Defendants.
MEMORANDUM-DECISION and ORDER
I.
INTRODUCTION
Plaintiffs Mark Hogan (“Mr. Hogan”) and Susan Hogan (“Mrs. Hogan”) (together, the
“Hogans” or “Plaintiffs”) commenced this action arising out of an ongoing property dispute and
ensuing hostility between Plaintiffs and their neighbors on Hiawatha Lake in Lewis County, New
York. See generally Dkt. Nos. 1 (“Complaint”); 4 (“Amended Complaint”); 87 (“Supplemental
Complaint”). Presently before the Court are four Motions for summary judgment brought by
Defendants Lewis County, Brett Croneiser (“Croneiser”), Ryan Lehman (“Lehman”), Leanne Moser
(“Moser”), and Caleb Petzoldt (“Petzoldt”) (together, the “Lewis County Defendants”); David
Vandewater (“Vandewater”); Russell Falter (“Falter”); Kathy Wilson (“Wilson”); and Frank Rose
(“Rose”) (collectively, “Defendants”). Dkt. Nos. 171 (“Vandewater Motion); 174 (“Falter and
Wilson Motion”); 176 (“Lewis County Motion”); 177 (“Rose Motion”). For the reasons that follow,
the Lewis County Motion is granted in full, and the remaining Motions are granted in part and
denied in part.
II.
BACKGROUND
A. Procedural History
Plaintiffs filed their original Complaint on July 1, 2011. Compl. After Plaintiffs filed an
Amended Complaint, the Lewis County Defendants and Falter and Wilson each moved for summary
judgment. Am. Compl.; Dkt. Nos. 39; 43. Plaintiffs then filed a Supplemental Complaint, which is
the operative pleading in this action. Supp. Compl. The Lewis County Defendants and Falter and
Wilson informed the Court that they did not intend to supplement their Motions in response to the
alterations made in Plaintiffs’ Supplemental Complaint. Dkt. Nos. 99; 103.
On March 8, 2013, the Court issued a Memorandum-Decision and Order granting in part and
denying in part the Motions for summary judgment. Dkt. No. 125 (“March Order”). Plaintiffs filed
two Motions for reconsideration of the March Order, which the Court granted in part and denied in
part. Dkt. Nos. 126; 131; 151. The parties then engaged in discovery, and a second round of
Motions for summary judgment ensued.
B. Factual Background
Given the lengthy litigation history, the Court presumes the parties’ familiarity with the
background of this case and recites only those facts necessary to resolve the pending Motions.
2
1. Plaintiffs’ Neighbors
Plaintiffs and Defendants Vandewater, Rose, Falter, and Wilson all own property around
Hiawatha Lake. Dkt. Nos. 171 (“Vandewater Statement of Material Facts”) ¶¶ 1, 3; 188
(“Plaintiffs’ Response Statement of Material Facts - Vandewater”) ¶¶ 1, 3. Beginning in or about
2006, hostility developed between Plaintiffs and their neighbors resulting in several state law
actions, in addition to the present case. Vandewater SMF ¶¶ 5-6; Pls.’ Resp. SMF - Vandewater ¶¶
5-6.
In one of the state court actions, Plaintiffs’ non-party neighbors (the “Wests”) brought suit
against the Hogans to determine whether the Wests had acquired title to certain of the Hogans’
property by adverse possession. See Vandewater SMF ¶¶ 6-7; Pls.’ Resp. SMF - Vandewater ¶¶ 67; see also West v. Hogan, 930 N.Y.S.2d 708 (App. Div. 2011). Vandewater was joined as a third
party in the West action, and the parties stipulated to a right of way (the “easement”) to enable the
Hogans to access certain lots that they owned. See Vandewater SMF ¶¶ 6-7; Pls.’ Resp. SMF Vandewater ¶¶ 6-7. However, the parties vehemently disagree over the precise location of the
easement—specifically, whether the easement directly abuts, crosses over, or is set apart from
Rose’s property line. Vandewater SMF ¶ 8; Pls.’ Resp. SMF - Vandewater ¶ 8.
The dispute over the location of the easement is only one element of the overall conflict
between the Hogans and their neighbors. Vandewater asserts that he and Mr. Hogan “have had
several verbal and one physical alteration since 2006.” Vandewater SMF ¶ 10. Plaintiffs respond
that “Vandewater has verbally harassed and screamed at [them] repeatedly.” Pls.’ Resp. SMF Vandewater ¶ 10.
3
In one instance, Plaintiffs allege that Vandewater “lurched a 2000 lb Kubota tractor at [their]
son and [their] son’s friend.” Pls.’ Resp. SMF - Vandewater ¶ 10. Plaintiffs assert that Vandewater
physically attacked Mr. Hogan during this same incident. Id. ¶ 10. Rose was present in the utility
vehicle along with Vandewater during this incident; however, Rose contends that he was merely a
passive passenger. See Dkt. No. 177-1 (“Rose Statement of Material Facts”) ¶¶ 72-77. Plaintiffs,
on the other hand, assert that Rose “encouraged” Vandewater in his effort to harass and terrify
minor Plaintiffs D.O. and J.H. Dkt. No. 199 (“Plaintiffs’ Response Statement of Material Facts Rose”) ¶¶ 72-77.
With respect to Falter and Wilson, they contend that they “have never defaced destroyed or
vandalized [P]laintiffs’ property.” Dkt. No. 174-1 (“Falter and Wilson Statement of Material
Facts”) ¶ 6. However, Plaintiffs assert that Falter and Wilson “constructed and aided in the
construction of barriers for the sole purpose of preventing Plaintiffs from accessing their property.”
Dkt. No. 192 (“Plaintiffs’ Response Statement of Material Facts - Falter and Wilson”) ¶ 6.
Specifically, Plaintiffs allege that Falter and Wilson, at Rose’s request, on two occasions placed a
steel cable between trees across Plaintiffs’ easement to prevent them from being able to access their
property. FW SMF ¶¶ 6-7; Pls.’ Resp. SMF - FW ¶¶ 6-7.
Rose does not deny erecting the steel cables, but asserts that the cables and a “no
trespassing” sign were placed to protect his property from trespassers. See Rose SMF ¶¶ 52-55.
Rose also placed two sawhorses across the entrance to his “driveway”; Plaintiffs assert that the
sawhorses were placed not across Rose’s driveway, but to interfere with Plaintiffs’ easement. See
id. ¶¶ 56, 70; see also Pls.’ Resp. SMF - Rose ¶¶ 56, 70. Rose later discovered that Mr. Hogan had
taken Rose’s saw horses and steel cables; Rose filed a complaint with the Lewis County Sheriff’s
4
Department and provided them with photographs from his security cameras corroborating the
alleged larceny. Id. ¶ 59.1
Plaintiffs further allege that Falter and Wilson have verbally harassed, screamed at, and
directed vulgar language at the Hogans while on their property. Id. Plaintiffs also claim that Falter
and Wilson blocked Plaintiffs’ right of way with their pick up trucks on a number of occasions
between 2007 and 2010, FW SMF ¶ 10; Pls.’ Resp. SMF - FW ¶10, and that Falter and Wilson
swerved at the Hogans’ vehicle “to intimidate and harass the Plaintiffs,” id. ¶ 10. Finally, Plaintiffs
allege that Falter and Wilson directed racial epithets at Plaintiff D.O. while visiting the Hogans’
property. Id. ¶ 11; see also Am. Compl. ¶ 107 (noting that D.O. is African-American).
2. The Lewis County Defendants
The Hogans have filed numerous complaints against their neighbors with the Lewis County
Sheriff’s Department, including on August 29, 2008, April 9, 2009, and April 26, 2010. Dkt. Nos.
176-27 (“Lewis County Statement of Material Facts) ¶¶ 1, 3, 6; 204 (“Plaintiffs’ Response
Statement of Material Facts - Lewis County”) ¶¶ 1, 3, 6. The Sheriff’s Department responded to all
of Mr. Hogan’s complaints. See Lewis Cnty. SMF ¶¶ 1, 3, 6; Pls.’ SMF Resp - Lewis Cnty. ¶¶ 1, 3,
6.
Lehman and Croneiser were only involved with the April 26, 2010, complaint, which
involved one of the steel cable incidents described supra. See Lewis Cnty. SMF ¶ 7. Mr. Hogan
admitted that he took the steel cable, but asserted that he did so to preserve it because he did not
know to whom it belonged. Pls.’ SMF Resp - Lewis Cnty. ¶¶ 8-10. Lehman and Croneiser
1
Rose had installed motion-sensitive lights and a security camera to detect and thwart
trespassers. See Rose SMF ¶¶ 48-51.
5
informed Mr. Hogan that he needed to return the cable or face arrest; Mr. Hogan complied and was
not charged criminally at that time. Id. ¶¶ 10-11. However, Mr. Hogan was arrested on May 29,
2010, for petit larceny after removing the cable and sawhorse blocking his claimed right of way two
weeks prior.2 Id. ¶¶ 12, 43; Pls.’ SMF Resp - Lewis Cnty. ¶ 12.
Plaintiffs later filed another trespassing complaint with the Sheriff’s department against the
Wests on July 5, 2010. Pls.’ SMF Resp - Lewis Cnty. ¶ 12. Croneiser met with Mr. Hogan and
filed an incident report. Id. ¶¶ 13-14. Plaintiffs assert that the Wests were not charged, however,
because Moser informed Croneiser not to charge them. Id. ¶ 14.
Plaintiffs generally allege a broad campaign by the Lewis County Defendants to drive
Plaintiffs out of Hiawatha Lake by processing criminal complaints against the Hogans but refusing
to pursue the Hogans’ complaints against their neighbors. See, e.g., Pls.’ SMF Resp - Lewis Cnty.
¶ 20 (asserting that Assistant District Attorney Petzoldt informed Plaintiffs, “We don’t want you in
Lewis County.”); id. ¶ 24 (claiming that Croneiser was informed by Petzoldt that it was “open
season” on the Hogans); id. ¶ 36 (alleging that “Lehman suggested that [P]laintiff[s] should just sell
everything and find some place to go”).
III.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs a court to grant summary judgment
if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(c). Although “[f]actual disputes that are irrelevant or
unnecessary” will not preclude summary judgment, “summary judgment will not lie if . . . the
2
It is not entirely clear from the parties’ Statements of Material Facts, but it appears that Mr.
Hogan was accused of taking Rose’s steel cables and/or saw horses on more than one occasion;
however, it is undisputed that Mr. Hogan was only arrested one time, on May 29, 2010.
6
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d
Cir. 1991).
The 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 claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the moving party shows that there is no genuine dispute as to any material fact, the
burden shifts to the nonmoving party to demonstrate “the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Id. This requires the
nonmoving party to do “more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986). Mere
conclusory allegations, speculation, or conjecture will not avail a party opposing summary
judgment. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
At the same time, a court must resolve all ambiguities and draw all reasonable inferences in
favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). A
court’s duty in reviewing a motion for summary judgment is “carefully limited” to finding genuine
disputes of fact, “not to deciding them.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224
(2d Cir. 1994). “The role of the court is not to weigh the evidence and determine the truth of the
matter, but rather to perform the ‘threshold inquiry of whether there is the need for a trial.’” Feder
v. Target Stores, No. 11-CV-3675, 2014 WL 1651955, at *2 (E.D.N.Y. Apr. 24, 2014) (quoting
Anderson, 477 U.S. at 249-50.
7
IV.
DISCUSSION
In their respective Motions, Defendants move for summary judgment on all remaining
claims. Vandewater and Rose move for summary judgment on the following claims: (1)
interference with easement; (2) intentional infliction of emotional distress; (3) private nuisance; (4)
negligence and gross negligence; (5) racial discrimination pursuant to 42 U.S.C. §§ 1981, 1982, and
1985, and New York Civil Rights Law §40-c; and (5) loss of consortium. See generally Vandewater
Mot.; Rose Mot. Falter and Wilson seek summary judgment on Plaintiffs’ claims of: (1) private
nuisance; (2) racial discrimination pursuant to 42 U.S.C. §§ 1981 and 1982, and New York Civil
Rights Law §40-c; and (3) loss of consortium. See generally FW Mot. The Lewis County
Defendants move for summary judgment on all remaining claims against them, which include: (1)
conspiracy to deprive Plaintiffs of their equal protection rights under the Fourteenth Amendment
pursuant to § 1983; (2) abuse of process pursuant to § 1983; and (3) common law abuse of process
pursuant to New York law. See generally Lewis Cnty. Mot.
A. Plaintiffs’ Neighbors
1. Interference With Easement
“In the case of an affirmative easement, the owner of the dominant tenement—the easement
holder—acquires or is granted a right to use another person’s land in a particular, though limited,
way.” Sutera v. Go Jokir, Inc., 86 F.3d 298, 302 (2d Cir. 1996). “Although no affirmative duty is
imposed on the servient owner, there is a passive duty that it not interfere with the dominant
owner’s exercise of its easement rights.” Id. (citation omitted).
a. Vandewater
Vandewater argues that he is entitled to judgment as a matter of law on Plaintiffs’
8
interference with easement claim against him because Plaintiffs have no property right over the land
at issue. Dkt. No. 171-2 (“Vandewater Memorandum”) at 2-3. Specifically, Vandewater argues
that the West trial and subsequent stipulation establish that the designated right of way is not
adjacent to the Rose property line; thus, even if Vandewater were blocking Plaintiffs from accessing
that land, he cannot be liable since Plaintiffs have no interest in the land. Id. at 3. Plaintiffs respond
that Vandewater is incorrect; the stipulation and evidence from the West trial firmly establish that
the easement Plaintiffs were granted extends from the border of Rose’s property line at a width of
twelve feet into Vandewater’s property. Dkt. No. 186 (“Response to Vandewater”) at 2. Plaintiffs
assert that this evidence refutes Vandewater’s assertion that there is a “set back” from Rose’s
property line. Id. at 2. Furthermore, Plaintiffs argue that Vandewater has not offered a survey,
expert affidavit, or any other proof to establish that the easement does not border or cross his
property. Id. at 3.
The parties do not appear to dispute the element of interference. Thus, the issue before the
Court is whether that interference occurred on land in which Plaintiffs held a property right. The
Court has carefully reviewed the stipulation and testimony from the West trial and finds that
Vandewater has failed to establish that there is no genuine issue of material fact as to the location of
the easement, and thus whether he interfered with Plaintiffs’ easement.
The Order and Judgment issued following the West trial indicates that the parties stipulated
to a right of away “along the back lot lines of Lots 19-233, at a width of 12 feet from those back lot
lines.” Dkt. No. 189-2 at 5-6. Although Vandewater appears to argue that the stipulation is
unambiguous in his favor, the Court interprets “along the back lot lines” and “from those back lot
3
Lots 19, 21, and 22 are owned by the Hogans, and Rose own Lot 23. Rose Mem. at 2-3.
9
lines” to indicate that the easement begins precisely at the edge of the property lines—including
Rose’s back property line—and extends at a width of twelve feet therefrom. Moreover, during the
West trial, Vandewater testified as to the location of the easement by drawing “a red line going
along the back property lines.” Dkt. No. 181-10 at 125. Furthermore, Vandewater’s deposition
corroborates that the easement begins at the edge of Rose’s property line. See Dkt. No. 189-4 at 73
(“Q: This right of way has been defined? A: Yes, the back lot of Mr. Rose’s line and through my lot
at 12 feet in width.”). Vandewater has failed to offer any other evidence affirmatively establishing
that the easement does not begin to run from Rose’s property line. Therefore, Vandewater is not
entitled to summary judgment on Plaintiffs’ interference with easement claim.
b. Rose
As an initial matter, the Court notes that Rose attempts to categorically dismiss all propertyrelated, state law claims against him based on the fact that the claimed right of way does not exist in
the location Plaintiffs have alleged. See Dkt. No. 177-2 (“Rose Memorandum”) at 3-9. However,
this argument must be rejected because, as stated supra, there exists a genuine issue of material fact
with respect to the exact location of the easement at issue. Thus, the Court will determine whether
Rose is entitled to summary judgment on each claim individually.
In the March Order, the Court granted Falter and Wilson summary judgment on Plaintiffs’
interference with easement claim because the Court, and Plaintiffs, were “unable to identify any
New York State cause of action for damages against a third party for interference with easement that
might be applicable to the facts of this case.” Mar. Order at 30-31 (noting that the easement at issue
exists only between Vandewater and the Hogans). Rose argues that the law of the case doctrine
10
dictates the same outcome with respect to Plaintiffs’ interference with easement claim against him.4
Rose Mem. at 11-13. Specifically, Rose asserts, as with the claim against Falter and Wilson, Rose
is also a third party being sued for damages. Id. Plaintiffs attempt to distinguish Rose from Falter
and Wilson on the grounds that Rose has a “property interest” in the easement because he may be
using part of the right of way to enter his property. Dkt. No. 198 (“Response to Rose”) at 5-7.
Plaintiffs’ attempt to distinguish Rose from Falter and Wilson based on Rose’s alleged
“property interest” must fail because it is undisputed that Rose is not a party to the grant of the
easement from Vandewater to the Hogans. See Green v. Mann, 655 N.Y.S.2d 627, 629 (App. Div.
1997) (noting that only “[t]he servient tenement is prohibited from unreasonably interfering with the
rights of the plaintiffs to use the easement”) (listing cases) (emphasis added). Even if Rose had a
property interest in the right of way—of which Plaintiffs have provided no proof—Plaintiffs have
nonetheless provided no authority that someone other than the servient estate holder may be liable
for damages in an interference with easement cause of action. Indeed, the lone case Plaintiff cites
for third-party liability concerning an easement is irrelevant because it only involved claims for
negligence and loss of consortium; it did not concern an interference with easement claim. See
Resp. Rose at 5 (citing Sutera, 86 F.3d at 300). Accordingly, Rose is entitled to summary judgment
on Plaintiffs’ interference with easement claim against him.
2. Intentional Infliction of Emotional Distress
In order to state a claim for intentional infliction of emotional distress (“IIED”) in New
4
“The ‘law of the case’ doctrine is a rule of practice followed by New York courts that
dictates that ‘a decision on an issue of law made at one stage of a case becomes binding precedent to
be followed in subsequent stages of the same litigation.’” Kregler v. City of New York, 821 F.
Supp. 2d 651, 657 (S.D.N.Y. 2011) (quoting Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d
200, 218 (2d Cir. 2002)).
11
York, a plaintiff must show: “(1) extreme and outrageous conduct; (2) intent to cause, or reckless
disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection
between the conduct and the injury; and (4) severe emotional distress.” Stuto v. Fleishman, 164
F.3d 820, 827 (2d Cir. 1999). The standard for stating a valid claim is “rigorous, and difficult to
satisfy” because the conduct must be “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.” Howell v. N.Y. Post Co., 81 N.Y.2d 115, 122 (N.Y. 1993) (internal
quotation marks and citation omitted). Further, IIED is a “highly disfavored claim[ ] under New
York law.” Williams v. City of Mount Vernon, 428 F. Supp. 2d 146, 160 (S.D.N.Y. 2006) (internal
quotation marks and citation omitted); see also Seltzer v Bayer, 709 N.Y.S.2d 21, 23 (App. Div.
2000) (“This threshold of outrageousness is so difficult to reach that, of the intentional infliction of
emotional distress claims considered by the Court of Appeals, every one has failed because the
alleged conduct was not sufficiently outrageous.” (citation and internal quotation marks omitted)).
Nevertheless, “[c]ourts have held that continuous and coercive harassment can establish an
IIED cause of action.” Neufeld v. Neufeld, 910 F. Supp. 977, 984 (S.D.N.Y. 1996) (citing
Alexander v. Unification Church of Am., 634 F.2d 673, 678-79 (2d Cir. 1980) (filing of harassing
lawsuits, constant surveillance, patrolling of plaintiffs’ homes); Green v. Fischbein Olivieri
Rozenholc & Badillo, 507 N.Y.S.2d 148 (App. Div. 1986) (baseless eviction proceedings against
plaintiff-tenant by landlord, disruption in services, deterioration of living conditions, interference
with mail, verbal abuse of plaintiff and his guests); but see Gay v. Carlson, 60 F.3d 83, 89 (2d Cir.
1995) (finding that the plaintiff had not established an IIED claim where “[a]ll that plaintiff alleges
that any of the defendants has done is lodge official complaints about plaintiff’s conduct or discuss
12
the basis of those complaints with others”).
a. Vandewater
Vandewater argues that he is entitled to summary judgment on Plaintiffs’ IIED claim
because: (1) the incidents alleged do not rise to the level of being so “severe and outrageous” to
constitute an IIED claim; and (2) Plaintiffs have failed to provide any medical evidence
demonstrating that any Plaintiff suffered emotional distress. Vandewater Mem. at 4-7. Plaintiffs
respond by: (1) refuting Vandewater’s characterization of the relevant incidents, arguing that they
were sufficiently extreme and outrageous; and (2) asserting that Plaintiffs sought and received
medical treatment for severe emotional distress. Resp. Vandewater at 10-13.
The Court addresses Vandewater’s latter argument first. Recent case law has established
that, under New York law, a plaintiff must provide medical evidence of severe emotional distress to
prevail on an IIED claim. See Allam v. Meyers, 906 F. Supp. 2d 274, 282 (S.D.N.Y. 2012) (“As
Meyers correctly argues, governing New York law requires plaintiffs to ‘present medical evidence
of severe emotional distress’ to substantiate their IIED claims.”) (listing cases); see also Samtani v.
Cherukuri, No. 11-CV-02159, 2015 WL 64671, at *16 (E.D.N.Y. Jan. 5, 2015) (“The Court finds
that—given the balance of appellate division case law in support of a medical evidence requirement,
the relatively unpersuasive rationale underlying the cases to the contrary, and the dicta in
Ornstein—the New York Court of Appeals would likely hold that IIED claims require medical
evidence to withstand a summary judgment motion.”)
Plaintiffs asserts that they “have sought and received medical treatment for severe emotional
distress and psychological harm.” Resp. Vandewater at 10. In support, Plaintiffs have submitted
medical records from a psychologist concerning visits by Mr. Hogan, Mrs. Hogan, J.H., and I.H.
13
Dkt. No. 226. However, other than simply filing these records, Plaintiffs have not made any
specific reference to indicate where in the medical records any Plaintiff was diagnosed or treated for
severe emotional distress. See generally Resp. Vandewater. Indeed, the Court has carefully
reviewed the medical records and finds that they do not indicate any diagnosis or reported symptoms
of severe emotional distress.
Rather than explaining how the medical records support their claim, Plaintiffs rely
exclusively on self-diagnoses embedded in their respective Affidavits. See Resp. Vandewater at 1113. However, these self-diagnoses certainly do not constitute “medical evidence” of emotional
distress. Therefore, Plaintiffs have failed to provide any medical evidence of severe emotional
distress, and Vandewater is entitled to summary judgment on Plaintiffs’ IIED claim against him.
See Meyers, 906 F. Supp. 2d at 282.
b. Rose
Rose argues that Plaintiffs’ IIED claim against him must be dismissed because, inter alia,
Plaintiffs have failed to produce medical evidence to substantiate their claims. Rose Mem. at 17-23.
Rose asserts that the medical records Plaintiffs have provided not only fail to demonstrate severe
emotional distress, they actually refute that any Plaintiff experienced severe emotional distress. Id.
at 20-21. Plaintiffs respond that (1) they are not required to submit medical evidence; (2) even if
they are, they have submitted medical evidence demonstrating severe emotional distress. Resp.
Rose at 10.
Considering Plaintiffs’ latter argument first, as discussed supra, Plaintiffs’ self-diagnoses of
severe emotional distress are insufficient to survive summary judgment on an IIED claim. With
respect to Plaintiffs’ first argument, the Court has already noted supra that a plaintiff is required to
14
provide medical evidence to support an IIED claim. Indeed, the primary case on which Plaintiff
relies in support of its argument that a plantiff need not provide medical evidence to prevail in an
IIED claim, Murray v. 600 E. 21st St. LLC, 850 N.Y.S.2d 329 (Sup. Ct. 2007), was expressly
reversed on appeal on the IIED claim, see Murray v. 600 E. 21st St., LLC, 865 N.Y.S.2d 557, 55758 (App. Div. 2008) (reversing supreme court on IIED claim). Accordingly, Rose is entitled to
summary judgment on Plaintiffs’ IIED claim.
3. Private Nuisance
The elements of a claim for private nuisance are: “(1) an interference substantial in nature,
(2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and
enjoy land, (5) caused by another’s conduct in acting or failure to act.” Copart Indus. v Consol.
Edison Co. of N.Y., 41 N.Y.2d 564, 570 (1977) (citation omitted).
a. Vandewater
Vandewater argues that because Plaintiffs do not have a property right in the claimed
easement, they cannot state a viable claim against Vandewater for private nuisance. Vandewater
Mem. at 7-8. However, as stated supra, the Court finds that there exists a genuine issue of material
fact with respect to the precise location of the easement. Accordingly, the Court must reject
Vandewater’s argument that Plaintiffs’ private nuisance claim fails as a matter of law for lack of
possessing the requisite property right.
b. Falter and Wilson
Falter and Wilson argue that Plaintiffs’ private nuisance claim against them should be
dismissed because the allegations, even if true, were temporary and isolated in nature, and thus not
sufficiently “substantial” to support a private nuisance claim. Dkt. No. 174-2 (“Falter and Wilson
15
Memorandum”) at 4-6. Alternatively, Falter and Wilson argue that, at minimum, this claim should
be dismissed against Wilson because Plaintiffs have not alleged that she participated in any of the
activities underlying their private nuisance claim. Id. at 6. Plaintiffs respond that: (1) in the March
Order, the Court denied Falter and Wilson summary judgment on this claim, and because Falter and
Wilson have produced no new evidence to disturb this ruling, the law of the case doctrine applies;
and (2) even if the law of the case doctrine does not apply, there nonetheless exists a triable issue of
fact with regard to the alleged interference. Dkt. No. 191 (“Response to Falter and Wilson”) at 2-4.
In the March Order, the Court held that Plaintiffs’ allegations “that Defendants Falter and
Wilson essentially made it impossible for them to access their cabin and their property by parking
cars in front of a right-of-way and otherwise impeding travel” was sufficient to survive Falter and
Wilson’s First Motion for summary judgment. Mar. Order at 36. However, the Falter and Wilson
Motion was filed before the parties had conducted discovery. See Docket. As Falter and Wilson
correctly point out, “[p]rior rulings may be re-considered in the light of . . . a more complete factual
record developed during discovery.” Dkt. No. 221 (“Falter and Wilson Reply”) at 2 (citing
Childress v. Taylor, 798 F. Supp. 981, 994 (S.D.N.Y. 1992)) (citation omitted). Depositions taken
during discovery have amplified the factual record, and the Court therefore finds the law of the case
doctrine inapplicable to this claim.
The remaining issue then is whether there exists a genuine issue of material fact that the
allegations against Falter and Wilson are “substantial” enough to support a private nuisance claim.
Plaintiffs alleges that Falter and Wilson interfered with their ability to access their property by twice
erecting steel cables across their right of way. Resp. FW at 4. Moreover, Falter admitted to erecting
the steel cables, and Wilson admitted that she was present on one occasion. See Dkt. Nos. 194-11
16
(“Falter Deposition”) at 14-15; 194-12 (“Wilson Deposition”) at 19. Again, Falter and Wilson
argue that these acts are not substantial because they were isolated in nature and only caused Hogan
to have to “simply” remove the cables to access his property. FW Mem. at 5-6.
Ironically, both parties rely on Aristides v. Foster, 901 N.Y.S.2d 688 (App. Div. 2010) to
support their respective positions. See FW Mem. at 6; Resp. FW at 5. In Aristides, the appellate
division affirmed denial of summary judgment on plaintiffs’ private nuisance claim where it was
alleged that defendants had parked large, commercial trucks in front of plaintiffs’ property several
times a day, over the course of many years, obstructing plaintiffs’ access to their home, and emitting
noxious fumes and noise. 901 N.Y.S.2d at 689-90. Although the allegations in Aristides appear
greater in severity and frequency than those alleged against Falter and Wilson, the Court is not
persuaded by Falter and Wilson’s reliance on this single case that they are entitled to judgment as a
matter of law on Plaintiffs’ private nuisance claim. Indeed, courts have denied summary judgment
on private nuisance claims concerning far less severe conduct. See, e.g., Broxmeyer v. United
Capital Corp., 914 N.Y.S.2d 181, 183 (App. Div. 2010) (denying summary judgment where
defendants installed commercial HVAC units that generated noise which bothered plaintiffs in their
home). Moreover, “[w]hether or not an interference is substantial enough to rise to the level of
private nuisance is a question of fact for the jury.” Rojas v. Theobald, No. 02-CV-3623, 2007 WL
2455133, at *5 (E.D.N.Y. Aug. 23, 2007) aff’d sub nom. Rojas v. Schkoda, 319 F. App’x 43 (2d
Cir. 2009) (citation omitted). Accordingly, Falter and Wilson have failed to show that they are
entitled to summary judgment on Plaintiffs’ private nuisance claim.5
5
With respect to Wilson’s claim that she was only present on one occasion, the facts before
the Court do not firmly establish her level of participation. Moreover, Falter and Wilson have not
provided any legal authority for the requisite level of participation necessary to find a party liable for
17
c. Rose
Rose argues that Plaintiffs’ private nuisance claim against him must be dismissed because:
(1) Plaintiffs do not have the requisite property interest; (2) any interference regarding the easement
was not substantial because “the Hogans have only been able to identify four occasions on which
their access to their vacant Lot Nos. 19-22 was impeded,” which in any event did not “actually
prevent[] the Hogans from passing through and accessing their vacant lots”; and (3) Plaintiffs’
allegations that Rose filed criminal charges against the Hogans, installed motion-sensitive lights on
the right of way, and made “gorilla noises” while passing by the Hogans’ property are also not
substantial. Rose Mem. at 23-27.
Rose recognizes that the Court previously denied summary judgment to Falter and Wilson
on lesser allegations, yet states that the Court’s “holding should not preclude summary judgment in
favor of Mr. Rose.” Id. at 27. In support, Rose argues that the Court is not bound by its holding
with respect to Falter and Wilson because the conduct alleged against Rose falls far short of that set
forth in Aristides. Id. at 28.
However, as discussed supra, the Court has rejected Falter and Wilson’s claim that they
were entitled to judgment as a matter of law by relying on Aristides. Here, Rose all but admits that
the conduct alleged against him is greater in severity than that alleged against Falter and Wilson,
and therefore his attempt to rely on Aristides must likewise be rejected. Furthermore, the Court
does not agree with Rose that repeatedly blocking Plaintiffs’ right of way, directing bright lights at
the Hogans right of way, making “gorilla” noises at the Hogans and their guests while on their own
private nuisance, and the Court declines to determine sua sponte whether presence alone is
sufficient to warrant summary judgment on a private nuisance claim.
18
property,6 and filing criminal complaints against Mr. Hogan are mere “petty inconveniences” such
that no reasonable fact-finder could find them to be “substantial.” See Rose Mem. at 28.
Accordingly, the Court finds that summary judgment is not warranted in favor of Rose on Plaintiffs’
private nuisance claim.
3. Negligence and Gross Negligence
It is hornbook law that a plaintiff asserting a negligence claim must prove that “(1) the
defendant owed the plaintiff a cognizable duty of care as a matter of law; (2) the defendant breached
that duty; and (3) plaintiff suffered damage as a proximate result of that breach.” Curley v. AMR
Corp., 153 F.3d 5, 13 (2d Cir. 1998). “The existence of a common-law duty in a negligence case is
a threshold question of law for the court.” Morgan Stanley & Co. Inc. v. JP Morgan Chase Bank,
N.A., 645 F. Supp. 2d 248, 255 (S.D.N.Y. 2009) (citing Hayes v. Riverbend Housing Co., Inc., 836
N.Y.S.2d 589, 590 (App. Div. 2007)); see also Williams v. Utica Coll. of Syracuse Univ., 453 F.3d
112, 116 (2d Cir. 2006) (“Under New York law, the question of the existence of a duty is a question
of law that is to be answered by the Court of Appeals in a broad, categorical fashion.” (internal
quotation marks omitted)).
a. Vandewater
Vandewater argues that he owed no duty to Plaintiff by virtue of being a landowner that has
been breached here. Vandewater Mem. at 8. In support, Vandewater cites the March Order in
which the Court dismissed negligence claims against Falter and Wilson on the grounds that “[t]he
Court is unaware of any general duty that one neighbor owes another that has allegedly been
6
Plaintiffs assert that the “gorilla” noises were intended as a racially derogatory remark,
similar to the use of referring to an African-American person as a “monkey.” See Resp. Vandewater
at 17.
19
breached in this case. While there certainly are duties relating to the physical damage to property or
natural resources, any such duties are irrelevant to the claims at bar. As a result, there can be no
factual issue as to this claim, and summary judgment is properly granted.” Mar. Order at 37.
Vandewater argues that Plaintiffs’ negligence claims against him are based on the same neighbor
relationship, and thus pursuant to the March Order, those claims should be dismissed. See
Vandewater Mem. at 8.
Plaintiffs have advanced a new theory, arguing that “[a] property owner has a duty to take
reasonable measures to control the foreseeable conduct of third parties on the property to prevent
them from intentionally harming or creating an unreasonable risk of harm to others.” Resp.
Vandewater at 13-14. In support, Plaintiffs cite a number of cases involving duties imposed on
landowners to prevent harm to others by third parties on their property. See id. at 8. However, after
careful review, the Court finds that Plaintiffs’ reliance on these cases is misplaced. Each case relied
on by Plaintiffs concerned a landowner’s duty to control his property or third parties on his property
with respect to the safety of others. See Jaume v. Ry Mgmt. Co., 769 N.Y.S.2d 303, 304 (App. Div.
2003) (finding property owner had no duty to remove all pine cones or prevent children from
throwing pine cones from their property); De Ryss v. New York Cent. R. Co., 9 N.E.2d 788, 789-91
(N.Y. 1937) (recognizing a railroad owner could have a duty if it knew that people were in the habit
of shooting guns from its bridges or signal towers); Nallan v. Helmsley-Spear, Inc., 407 N.E.2d 451,
455-60 (N.Y. 1980) (recognizing building owner had duty to keep common areas safe in light of
recent substantial criminal incidents by third parties in that area). Plaintiffs allege that Vandewater
allowed third parties on his property to harass Plaintiffs and their guests, but Plaintiffs have not
alleged that Vandewater breached a duty to prevent guests on his property from jeopardizing
20
Plaintiffs’ safety. See generally Resp. Vandewater. Thus, the cases Plaintiffs rely on are
distinguishable from the case at bar and do not support Plaintiffs’ argument that Vandewater owed
them a duty to prevent Plaintiffs from suffering “harm” on their property. See id. at 15.
Accordingly, Vandewater is entitled to summary judgment on Plaintiffs’ negligence and gross
negligence claims.
b. Rose
Plaintiffs’ negligence and gross negligence claims against Rose mirror those alleged against
Falter and Wilson, that as an adjoining landowner Rose “has a duty to prevent his guests and agents
from causing harm to the Plaintiffs.” Resp. Rose at 16. Rose argues that Plaintiffs do not attempt to
distinguish Rose from Falter and Wilson (or from Vandewater), and therefore the law of the case
doctrine dictates that Rose is also entitled to summary judgment. Rose Mem. at 29-30. The Court
agrees. As stated supra with respect to Vandewater, the Court has rejected the argument that an
adjoining landowner owes the duty Plaintiffs have alleged here. Accordingly, Rose is entitled to
summary judgment on Plaintiffs’ negligence and gross negligence claims.
4. § 1985 Claims
“The four elements of a § 1985(3) claim are: (1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any person or class of persons of equal protection of the laws,
or of equal privileges and immunities under the laws; (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 of a citizen of
the United States.” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087-88 (2d
Cir. 1993) (citing 1088 United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828-29
(1983)). Furthermore, the conspiracy must also be motivated by “some racial or perhaps otherwise
21
class-based, invidious discriminatory animus behind the conspirators’ action.” Scott, 463 U.S. at
829.
a. Vandewater
Vandewater argues that Plaintiffs’ § 1985 claim against him must be dismissed because: (1)
there is no evidence in the record that Vandewater’s alleged actions were racially motivated; (2)
there is no evidence of a conspiracy; and (3) Plaintiffs have failed to allege or provide evidence that
they were prevented from exercising any right or privilege of a citizen of the U.S. Vandewater
Mem. at 9-10. Plaintiffs respond that (1) there is sufficient evidence of a racially motivated
conspiracy; and (2) “Vandewater has interfered with Plaintiffs’ property rights.” Resp. Vandewater
at 18.
The Court considers Vandewater’s last argument first. It is well established that § 1985(3)
does not itself create any substantive rights; rather, it serves only as a vehicle for vindicating federal
rights and privileges which have been defined elsewhere. See Great Am. Fed. Sav. & Loan Ass’n v.
Novotny, 442 U.S. 366, 376 (1979). Moreover, in the context of actions brought against private
conspirators, the Supreme Court has thus far recognized only two rights protected under § 1985(3):
(1) the right to be free from involuntary servitude, and (2) the right to interstate travel. See Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 278 (1993); accord Brown v. Philip Morris Inc.,
250 F.3d 789, 805 (3d Cir. 2001).
Here, the Court notes that with respect to Plaintiffs’ § 1985 claim, the Supplemental
Complaint alleges that “Plaintiffs have a Constitutional right to be free from intimidation and
assault motivated by race and/or association with minorities.” Supp. Compl. ¶ 109. Plaintiffs
appear to have abandoned this theory in favor of arguing that their “property rights” were violated
22
by Vandewater. See Resp. Vandewater at 18. However, under either scenario, Plaintiffs’ claim
must fail because, as stated supra, the Supreme Court has thus far only found two rights protected
under § 1985, neither of which is at issue here. See Bray, 506 U.S. at 278. Moreover, § 1985 does
not provide for liability against private actors for infringing on one’s property rights or for
harassment, even if racially motivated. See Frasco v. Mastic Beach Prop. Owners’ Ass’n, No.
12-CV-2756, 2014 WL 3735870, at *6 (E.D.N.Y. July 29, 2014) (granting summary judgment for
defendants on plaintiffs’ § 1985 claim where plaintiffs alleged defendants violated plaintiffs’
property rights); see also Emanuel v. Barry, 724 F. Supp. 1096, 1103 (E.D.N.Y. 1989) (finding
plaintiffs’ “rights to be free from racial violence, not to be terrorized, and to be secure in their
personal effects and property” against private actors did not state cognizable claim under § 1985).
Accordingly, Vandewater is entitled to summary judgment on Plaintiffs’ § 1985 claim against him.
b. Rose
Rose argues that Plaintiffs’ § 1985 claim against him must be dismissed because, inter alia,
Plaintiffs have failed to allege that Rose’s actions deprived Plaintiffs of any of the rights enumerated
in the statute. Rose Mem. at 30-33. As discussed supra, Rose is correct. Plaintiffs have failed to
offer any different arguments than those asserted in response to the Vandewater Motion, and
therefore their claim against Rose pursuant to § 1985 must be dismissed.
5. § 1981 Claims
“To establish a claim under § 1981, a plaintiff must allege facts in support of the following
elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis
of race by the defendant; and (3) the discrimination concerned one or more of the activities
enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).”
23
Mian, 7 F.3d at 1087.
a. Vandewater
Vandewater argues that Plaintiffs’ § 1981 claim against him must be dismissed because: (1)
his use of “a racially charged word on one occasion and a phrase of questionable racial import on
another” fail to establish any intent to discriminate on the basis of race; and (2) the alleged
discrimination does not concern any of the activities enumerated in the statute. Vandewater Mem.
at 10-11. Plaintiffs respond that (1) Vandewater’s actions were motivated by race; and (2)
Vandewater interfered with the “making, enjoying, and enforcement of contracts.” Resp.
Vandewater at 20.
The Court considers Vandewater’s second argument first. It is well-settled that “[a]ny 1981
claim . . . must initially identify an impaired ‘contractual relationship,’ under which the plaintiff has
rights.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (citing 42 U.S.C. § 1981(b));
see also Krulik v. Board of Educ., 781 F.2d 15, 23 (2d Cir. 1986) (“In order to succeed under
§ 1981, a plaintiff must present evidence to show both that he was subjected to intentional
discrimination, and that this discrimination interfered with a contractual relationship.”) (citations
omitted).
Here, Plaintiffs argue that Vandewater interfered with Plaintiffs’ contractual relationships in
the following ways: (1) Mr. Hogan intended to purchase another property on Hiawatha Lake but
withdrew his bid after Vandewater and others unlawfully imprisoned Mr. Hogan, J.H., and I.H.; (2)
Vandewater and others verbally threatened landscapers hired by Plaintiffs and, consequently, the
landscapers would not complete the work; (3) Mr. Hogan attempted to sell his property, but the
prospective buyer backed out after Vandewater and others “swarmed” and harassed her; and (4) Mr.
24
Hogan attempted to give away his land for free but the “prospective recipient” refused to accept the
land on account of Plaintiffs’ neighbors. Resp. Vandewater at 21.
As an initial matter, the Court notes that, although Plaintiffs have not alleged that
Vandewater infringed on a contractual relationship between Plaintiffs and Vandewater, the fact that
a third party infringed on a contractual relationship does not bar a claim under § 1981. See Whidbee
v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000). However, even accepting
Plaintiffs’ allegations as true, they have failed to state a viable claim under § 1981 because
Vandewater held no authority to interfere with Plaintiffss’ contracts. “[L]iability under § 1981 for
interference with a third-party contract attaches only to persons who actually had the power or
authority to prevent the plaintiffs from contracting with the third party.” Ginx, Inc. v. Soho
Alliance, 720 F. Supp. 2d 342, 358 (S.D.N.Y. 2010) (citing Harris v. Allstate Ins. Co., 300 F.3d
1183, 1197 (10th Cir. 2002) (requiring a demonstration “that the party both possessed sufficient
authority to significantly interfere with the individual’s ability to obtain contracts with third parties,
and that the party actually exercised that authority to the individual’s detriment”)). Here, Plaintiffs
have not alleged—nor could they demonstrate—that Vandewater held power or authority to
interfere with any of the contractual relationships described. Accordingly, Vandewater is entitled to
summary judgment on Plaintiffs’ § 1981 claim.
b. Falter and Wilson
Falter and Wilson argue that Plaintiffs’ § 1981 claim against them should be dismissed
because Plaintiffs have not established (1) any intentional discrimination on the basis of race, or (2)
that such acts interfered with any of the activities enumerated in the statute. FW Mem. at 9-10.
Plaintiffs did not respond. See generally Resp. FW. Plaintiffs have therefore abandoned this claim.
25
See Barmore v. Aidala, 419 F. Supp. 2d 193, 201-02 (N.D.N.Y. 2005) (noting that the failure to
oppose a motion “is deemed abandonment of the claim, and, in the Northern District of New York,
is deemed consent to granting that portion of the motion.” (citing Rizzo-Puccio v. Coll. Auxiliary
Servs., Inc., 216 F.3d 1073 (2d Cir. 2000)); see also L.R. 7.1(b)(3). Accordingly, Falter and Wilson
are entitled to summary judgment on Plaintiffs’ § 1981 claim.
c. Rose
Rose argues that Plaintiffs’ § 1981 claim against him should be dismissed because, inter
alia, Plaintiffs have failed to allege that Rose’s actions deprived Plaintiffs of any of the rights
enumerated in the statute. Rose Mem. at 30. As stated supra, Rose is correct, and accordingly is
granted summary judgment on Plaintiffs’ § 1981 claim.
6. § 1982 Claims
Section 1982 provides that “[a]ll citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell,
hold, and convey real and personal property.” 42 U.S.C. § 1982; see also Johnston v. Apple Inc.,
No. 11 CIV. 3321, 2011 WL 4916305, at *2 (S.D.N.Y. Oct. 14, 2011) (“To state a claim for relief
under section 1982, a plaintiff must allege that he was intentionally ‘deprived of a property right’
because of his race.”) (citation omitted).
a. Vandewater
Vandewater argues that Plaintiffs’ § 1982 claim against him must be dismissed because
Plaintiffs have not alleged that Vandewater interfered with Plaintiffs’ ability to contract for or
exchange property. Vandewater Mem. at 11. Plaintiffs neither responded directly to Vandewater’s
argument, nor have they asserted which property right has allegedly been infringed upon. See
26
generally Resp. Vandewater; see also Supp. Compl. ¶ 117. Rather, Plaintiffs merely allege in
conclusory terms that Vandewater “interfere[d] with the use and enjoyment of Plaintiffs’ property.”
Resp. Vandewater at 20.
Plaintiffs’ failure to allege the deprivation of a specific property right beyond mere
conclusory allegations is alone sufficient to grant summary judgment in favor of Vandewater.
Moreover, Plaintiff has provided no authority—and the Court is aware of none—that § 1982
protects an individual’s right to “use and enjoyment” of her property free from interference by
private actors. Indeed, Ҥ 1982 bars only intentional discrimination in the lease of property and
other property-related transactions.” Allen v. Roth, No. 08 CIV. 6503, 2009 WL 3076105, at *5
(S.D.N.Y. Sept. 25, 2009) (emphasis added). Therefore, Vandewater is entitled to summary
judgment on Plaintiffs’ § 1982 claim.
b. Falter and Wilson
Falter and Wilson argue that Plaintiffs’ § 1982 claim against them should be dismissed
because: (1) the allegations fail to establish any discriminatory intent; and (2) the allegations do not
concern one of the enumerated activities in the statute. FW Mem. at 10-11. Plaintiffs respond that
Falter and Wilson discriminated against them for associating with an African-American minor by
constructing the steel cables across Plaintiffs’ right of way, swerving their vehicle at Plaintiffs, and
directing racial epithets at them, and that such conduct “interfered with their right to use and enjoy
the Plaintiffs’ property.” Resp. FW at 6. Although the factual allegations against Falter and Wilson
are slightly different than those against Vandewater, Plaintiffs allege the identical deprivation of
their right to use and enjoy their property. See id. As stated supra, the alleged acts of harassment
based on race, while certainly deplorable, are not properly suited under § 1982. Accordingly, Falter
27
and Wilson are entitled to summary judgment on Plaintiffs’ § 1982 claim.
c. Rose
Rose similarly argues that Plaintiffs’ § 1982 claim against him fails to allege a deprivation of
one of the enumerated activities in the statute. Rose Mem. at 30-33. For the reasons stated supra
dismissing Plaintiffs’ § 1982 claims for failure to allege the deprivation of a specific property right
protected by § 1982, Plaintiffs’ claim against Rose is dismissed.
7. New York Civil Rights Law § 40-c
New York Civil Rights Law § 40-c provides that “[n]o person shall, because of race, creed,
color, national origin, sex, marital status, sexual orientation or disability . . . be subjected to any
discrimination in his or her civil rights, or to any harassment . . . by any other person or by any firm,
corporation or institution, or by the state or any agency or subdivision of the state.” Furthermore,
§ 40-d provides that “[a]t or before the commencement of any action under this section, notice
thereof shall be served upon the attorney general.”
Vandewater, Rose, and Falter and Wilson all argue that they are entitled to summary
judgment on Plaintiffs’ § 40-c claims because Plaintiffs failed to properly serve notice on the
attorney general. See Vandewater Mem. at 10; Rose Mem. at 34; FW Mem. at 8. Plaintiffs did not
respond to these arguments or provide any evidence that they satisfied the notice requirement. See
generally Resp. Vandewater; Resp. Rose; Resp. FW. Dismissal of Plaintiffs’ § 40-c claims against
Vandewater, Rose, and Falter and Wilson is therefore warranted. See Barmore, 419 F. Supp. 2d at
201-02; see also L.R. 7.1(b)(3).
28
8. Loss of Consortium
a. Vandewater
“A loss of consortium claim is a derivative action that depends on the viability of the
primary cause of action” or “the underlying injury.” Reed v. Medford Fire Dep’t, Inc., 806 F. Supp.
2d 594, 606 (E.D.N.Y. 2011). Vandewater argues that if the underlying claims against him are
dismissed, then Plaintiffs’ loss of consortium claim must also be dismissed. Vandewater Mem. at
11-12. Alternatively, Vandewater argues that even if one of the underlying claims against him
survives, the loss of consortium claim must be dismissed because it is not available: (1) in
connection with civil rights violations; (2) in the absence of physical injury to the spouse; or (3) to a
parent for loss of a child in a personal injury case. Id. at 12. Plaintiffs do not respond directly to
these arguments. See generally Resp. Vandewater. Rather, Plaintiffs assert that Mrs. Hogan has
suffered loss of her husband’s support, services, and love and companionship as a result of Mr.
Hogan having to attend criminal proceedings in New York that were initiated by Defendants. Id. at
22.
The Court finds that Plaintiffs’ failure to demonstrate a physical injury sustained by Mr.
Hogan is fatal to their claim of loss of consortium on behalf of Mrs. Hogan. See Tedeschi v. Smith
Barney, Harris Upham & Co., 548 F. Supp. 1172, 1176-77 (S.D.N.Y. 1982) (dismissing loss of
consortium claim where husband became “ill, sick, nervous, irritable and unstable” because “there
[wa]s no allegation of physical injury to her husband”); see also Collins v. Willcox, Inc., 600
N.Y.S.2d 884, 885-87 (Sup. Ct. 1992) (“There is no physical injury in this case, serious or
otherwise. Accordingly, there being no such allegation of physical injury in the complaint, the fourth
cause of action [loss of consortium] is insufficient as a matter of law and partial summary judgment
29
is granted dismissing same.”). Accordingly, Vandewater is entitled to summary judgment on
Plaintiffs’ loss of consortium claim.
b. Falter and Wilson
Falter and Wilson argue that Plaintiffs’ loss of consortium claim against them must be
dismissed because, inter alia, Plaintiffs have failed to provide any evidence of a physical injury.
FW Mem. at 7. Plaintiffs did not respond. See generally Resp. FW. Thus, for the reasons stated
supra finding that Plaintiffs must allege a physical injury sustained by Mr. Hogan to prevail, Falter
and Wilson are granted summary judgment on Plaintiffs’ loss of consortium claim.
c. Rose
Rose, on the other hand, argues exclusively that he is entitled to summary judgment on
Plaintiffs’ loss of consortium claim because it is a derivative claim and, in the event all other claims
against Rose are dismissed, so too should the loss of consortium claim. Rose Mem. at 35.
However, the Court has not dismissed Plaintiffs’ private nuisance claim against Rose, and therefore
Rose has failed to demonstrate his entitlement to judgment as a matter of law on Plaintiffs’ loss of
consortium claim.
9. Supplemental Jurisdiction
Finally, Falter and Wilson argue that if the federal claims against them are dismissed, the
Court should decline to exercise supplemental jurisdiction over any remaining state law claims
against them. FW Mem. at 11-12 (citing 28 U.S.C. § 1367). Plaintiffs respond that even if the
federal claims are dismissed, the Court still possesses subject matter jurisdiction because there is
complete diversity among the parties and the amount in controversy exceeds the statutory
requirement. Resp. FW at 7 (citing 28 U.S.C. § 1332). Only Plaintiffs’ private nuisance claim
30
against Falter and Wilson remains. Before addressing whether the Court may exercise supplemental
jurisdiction, it first considers whether diversity jurisdiction exists independently of the federal
causes of action.
The Supplemental Complaint indicates that Plaintiffs are all residents of Virginia, and all
Defendants reside in New York. Supp. Compl. ¶¶ 9-18. Thus, complete diversity exists among the
parties, satisfying the first requirement under 28 U.S.C. § 1332. See Herrick Co. v. SCS
Commc’ns, Inc., 251 F.3d 315, 322 (2d Cir. 2000).
With respect to the amount in controversy, the burden of meeting this requirement is “hardly
onerous . . . for we recognize a rebuttable presumption that the claim is in excess of the statutory
jurisdictional amount.” Scherer v. Equitable Life Assurance Soc’y of U.S., 347 F.3d 394, 397 (2d
Cir. 2003). Moreover, the moving party need show only “a ‘reasonable probability’ that the claim is
in excess of the statutory jurisdictional amount.” United Food & Comm’l Workers Union v.
Centermark Props. Meriden Square, Inc., 30 F.3d 298, 304-05 (2d Cir. 1994) (citation omitted). In
assessing the amount in controversy, the district court should first look to the complaint. See
Samuels v. Elrac, Inc., No. 06-CV-5345, 2006 WL 2862337, at * 1 (E.D.N.Y. Oct. 5, 2006).
Here, the Supplemental Complaint indicates that Plaintiffs seek $15,000,000 in damages.
Supp. Compl. ¶¶ 9-18, 123. Although that demand includes all Defendants, and with respect to
Falter and Wilson only Plaintiffs’ private nuisance claim remains, Falter and Wilson have not
argued that Plaintiffs have failed to meet the amount in controversy requirement. Accordingly,
Plaintiffs have met their burden in demonstrating that diversity jurisdiction exists. The Court
therefore need not determine whether it would be proper to exercise supplemental jurisdiction over
the remaining state law claims against Falter and Wilson.
31
B. The Lewis County Defendants
1. § 1983 Municipal Liability
Plaintiffs have alleged a § 1983 municipal liability claim against the Lewis County
Defendants for failure to properly train and supervise Lehman and Croneiser, leading to abuse of
process against Mr. Hogan. See Mar. Order at 17. “[T]o prevail on a claim against a municipality
under Section 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions
taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4)
damages; and (5) that an official policy of the municipality caused the constitutional injury.” Roe v.
City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
An abuse-of-process claim can give rise to liability under § 1983. Savino v. City of New
York, 331 F.3d 63, 766-67 (2d Cir. 2003). “In New York, 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 or justification, and (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); see also PSI Metals, Inc. v. Firemen’s Ins. Co. of Newark, N.J., 839
F.2d 42, 43 (2d Cir. 1988); Zarro v. Spitzer, No. 06-CV-1166, 2009 WL 3165761, at *6 (N.D.N.Y.
Sept. 25, 2009). “In New York, such wrongful purposes have included economic harm, extortion,
blackmail, and retribution.” Ketchuck v. Boyer, No. 10-CV-0870, 2011 WL 5080404, at *7
(N.D.N.Y. Oct. 25, 2011) (quotation marks omitted).
The County Defendants argue that Plaintiffs’ abuse of process claim must be dismissed
because: (1) Mr. Hogan has failed to demonstrate any abuse of process after process was initiated;
and (2) Plaintiffs have failed to demonstrate a collateral objective. Dkt. No. 176-26 (“Lewis County
32
Memorandum”) at 5-7.
“It is undisputed that an abuse of process claim may only be based on events subsequent to
initiation.” Miles v. City of Hartford, 445 F. App’x 379, 383 (2d Cir. 2011). Plaintiffs allege that
the following six acts occurred subsequent to Mr. Hogan’s arrest “as a means to attempt to coerce
Mr. Hogan and his family into leaving the area”: (1) Croneiser handcuffed Mr. Hogan so tightly that
he suffered a broken wrist; (2) Croneiser stated at the time of arrest “if I was you, I would sell the
cabin and go somewhere else,” which was, in substance, repeated thereafter by Lehman and
Petzoldt; (3) the Lewis County Defendants issued a press release in the local newspaper stating that
Mr. Hogan had been arrested; (4) the Lewis County Defendants continued to “press baseless
charges”; and (5) the Lewis County Defendants refused to issue process against the Hogans’
neighbors. Dkt. No. 203 (“Response to Lewis County”) at 4-6. The Court addresses each allegation
in turn.
As to Mr. Hogan’s claim that he suffered a broken wrist when Croneiser handcuffed him, the
Court agrees with the Lewis County Defendants that Mr. Hogan’s claim is unsupported by any facts
in the record. See Dkt. No. 227 (“Lewis County Reply”) at 2. Despite lengthy discovery in this
case, Mr. Hogan has not produced any medical evidence of an injured, let alone, broken wrist to
substantiate his claim.
With respect to the Lewis County Defendants’ statements that it was “open season” on the
Hogans and that the Hogans should just sell their cabin and move, such allegations may be relevant
to finding a collateral objective; however, they do not constitute an abuse of legal process. See
Gilman v. Marsh & McLennan Cos., Inc., 868 F. Supp. 2d 118, 133 (S.D.N.Y. 2012) (dismissing
abuse of process claim where, in relevant part, plaintiffs failed to alleged that defendants “used
33
process against [p]laintiffs in any legal sense”).
Concerning the Lewis County Defendants’ issuance of a press release following Mr.
Hogan’s arrest, the Lewis County Defendants have provided evidence, which Plaintiffs have not
disputed, that “it is the Lewis County Sheriff’s Department’s regular practice to issue press releases
when an individual has been arrested.” Lewis Cnty. Reply at 2. Plaintiffs have not provided any
argument or authority to suggest that this automatic, non-discretionary practice following all arrests
constitutes an “abuse” of process.
As to Plaintiffs’ allegation that the Lewis County Defendants continued to “press baseless
charges,” the Court stated in the March Order that “Defendants Lehman and Croneiser possessed
probable cause to arrest [Mr. Hogan],” which was supported by “photographs, sworn complaints,
and actual physical evidence demonstrating that Mr. Hogan had taken the steel cables and
sawhorses.” Mar. Order at 12-13. Plaintiffs have not set forth any additional facts or arguments to
establish that the charges were “baseless.”
Finally, with respect to Plaintiffs’ claim that the Lewis County Defendants issued process
against Mr. Hogan but refused to do so against his neighbors, this claim is irrelevant. Even if it
were true that Croneiser and Lehman unlawfully refused to arrest Plaintiffs’ neighbors, such a
finding would not demonstrate that legal process was abused as against Mr. Hogan, since it is
unrefuted that they possessed probable cause to arrest him. Plaintiffs’ argument is one of disparate
treatment, which is more properly suited under an equal protection claim, discussed infra.
Accordingly, Plaintiffs have failed to show that the Lewis County Defendants abused legal
process against Mr. Hogan subsequent to his arrest. Because there is no underlying abuse of process
by Lehman and Croneiser, Plaintiffs cannot prevail on their claim of municipal liability against the
34
Lewis County Defendants pursuant to § 1983. Therefore, the Lewis County Defendants are entitled
to summary judgment on Plaintiffs’ § 1983 municipal liability claim.
2. Common Law Abuse of Process
The Lewis County Defendants argue that for the same reasons the § 1983 municipal liability
claim must be dismissed, Plaintiffs’ common law abuse of process claim must likewise be
dismissed. Lewis Cnty. Mem. at 10. Plaintiffs respond that a different standard applies under New
York law—namely, that employers can be held liable for the wrongful acts of their employees under
the doctrine of respondeat superior. Resp. Lewis Cnty. at 10 (citing Cunningham v. Petrilla, 817
N.Y.S.2d 468 (2006)). Without determining Plaintiffs’ assessment of the legal standard, the Court
notes that Cunningham concerned a claim for negligence, not abuse of process, and therefore is
inapplicable. Id. at 486. Morever, even if Plaintiffs’ assertion were true, as stated supra, they have
still failed to demonstrate an underlying abuse of process that would give rise to supervisory
liability. Accordingly, the Lewis County Defendants are entitled to summary judgment on
Plaintiffs’ common law abuse of process claim.
3. § 1983 Conspiracy
In order to make out a conspiracy claim under § 1983, “a plaintiff must demonstrate (1) an
agreement between two or more state actors or a state actor and a private party; (2) to act in concert
to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
damages.” Graham v. City of Albany, No. 08-CV-892, 2009 WL 4263510, at *12 (N.D.N.Y. Nov.
23, 2009) (citing Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002)); see also
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (“[A] plaintiff alleging a § 1983
conspiracy claim must prove an actual violation of constitutional rights.”).
35
Plaintiffs allege that the Lewis County Defendants conspired to deny Plaintiffs’ equal
protection rights under the Fourteenth Amendment by refusing to file criminal complaints from Mr.
Hogan against his neighbors, but agreeing to accept Mr. Hogan’s neighbors’ complaints against him.
Supp. Compl. ¶¶ 112-14. The Lewis County Defendants argue that this claim must be dismissed
because Plaintiffs have failed to demonstrate: (1) a conspiracy by the Lewis County Defendants to
deprive Plaintiffs of any constitutional rights; and (2) that they were subjected to any form of
disparate treatment. Lewis Cnty. Mem. at 11-14.
The Court considers the Lewis County Defendants’ second argument first. In the March
Order, the Court found that “Plaintiffs articulate a theory of selective enforcement, arguing that they
were similarly situated to their neighbors against whom they had filed criminal complaints, but that
the Lewis County Defendants pursued only the criminal complaints against Mr. Hogan.” Mar.
Order at 19-20.7
A plaintiff may bring an equal protection claim based on a selective enforcement theory by
demonstrating that “(1) the person, compared with others similarly situated, was selectively treated;
and (2) that such selective 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.” LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980). The
discrimination must be intentional or purposeful. Id. at 609 (citations omitted).
7
The Court denied the Lewis County Defendants’ First Motion for summary judgment on
Plaintiffs’ § 1983 equal protection claim out of an abundance of caution because the Motion was
filed before discovery had been conducted. See Mar. Order at 22. However, the Court notes that
Plaintiffs’ theory of liability has not changed. See Resp. Lewis Cnty. at 15-18.
36
Determining whether parties are similarly situated is typically “a fact-intensive inquiry.”
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001). However, “[a] court
may grant summary judgment in a defendant’s favor on the basis of lack of similarity of situation
. . . where no reasonable jury could find that the persons to whom the plaintiff compares [herself]
are similarly situated.” Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). At the
summary judgment stage, “a plaintiff must present evidence comparing herself to individuals that
are ‘similarly situated in all material respects.’” Sebold v. City of Middletown, No. 05 Civ. 1205,
2007 WL 2782527, at *26 (D. Conn. Sept. 21, 2007) (quoting Graham v. Long Island R.R., 230
F.3d 34, 39 (2d Cir. 2000)); see also Lamothe v. Town of Oyster Bay, No. 08-CV-2078, 2012 WL
6720781, at *7 (E.D.N.Y. Dec. 27, 2012); Mangino, 739 F. Supp. 2d at 254 (“To make it past the
summary judgment stage on a selective enforcement equal protection claim, it is plaintiffs’ burden
to demonstrate similarly situated individuals who were treated differently.”).
Plaintiffs reference a number of instances in support of their claim for selective enforcement.
Resp. Lewis Cnty. at 17-18. The Court addresses each allegation in turn.
First, Plaintiffs allege that “[w]hen [Mr. Hogan] requested the criminal process be invoked
in April 2010 against [D]efendants Falter and Wilson, Defendants Lehman and Croneiser threatened
[Mr. Hogan] with arrest and suggested that he should just sell everything and find some other place
to go.” Id. at 17. While Plaintiffs’ allegation may suggest an improper motive or intent, it fails to
suggest that Lehman and Croneiser improperly refused to press charges against Falter and Wilson.
In other words, whereas Lehman and Croneiser possessed clear probable cause to arrest Mr. Hogan,
as discussed supra, Plaintiffs have failed to show how Falter and Wilson were similarly situated in
April 2010.
37
Next, Plaintiffs allege that Mr. Hogan sent an email to Moser on April 29, 2010, requesting
that charges be brought against Wilson and Falter; yet, Moser informed Plaintiffs (incorrectly) that
the statute of limitations had run. Id. However, Plaintiffs do not explain what the underlying
charges were, or the date of incident, to support their contention that Moser falsely informed them
that the statute of limitations had run. See id.
Mr. Hogan further asserts that, in May 2010, he “asked [D]efendants Lehman and Croneiser
to make arrests for blocking his easement and unlawful imprisonment.” Id. As stated supra, there
exists a triable issue of fact with regards to the location of the easement; thus, it is not clear that,
even if Plaintiffs’ allegations are true, that Lehman and Croneiser had probable cause to arrest Mr.
Hogan’s neighbors. Moreover, Plaintiffs argue only in conclusory fashion that Lehman and
Croneiser refused to “make arrests,” but Plaintiffs do not specify who Lehman and Croneiser
refused to arrest. Similarly, Plaintiffs have provided no facts surrounding the circumstances of the
alleged unlawful imprisonment to suggest selective enforcement.
Plaintiffs next allege that, on July 5, 2010, Croneiser informed Plaintiffs that he could not
arrest the Wests for trespassing, because Moser, the District Attorney for Lewis County, informed
Croneiser that there was no probable cause to arrest the Wests. Id. As stated supra and in the
March Order, the Court has already determined that Croneiser and Lehman possessed probable
cause to arrest Mr. Hogan for petit larceny. However, Plaintiffs have not provided any facts to
suggest, let alone demonstrate, that Croneiser and Moser declined to press charges against the Wests
in the face of clear probable cause, nor that the Wests were similarly situated to Mr. Hogan
concerning their respective charges. See Resp. Lewis Cnty. at 17-18.
38
Plaintiffs’ final allegation concerns a complaint made to the New York State police. See id.
at 18. However, Plaintiffs’ equal protection claim is alleged only against the Lewis County
Defendants, and therefore any activity concerning the state police is irrelevant.
In sum, Plaintiffs have failed to demonstrate that they were similarly situated to their
neighbors in all material respects. Moreover, as the Lewis County Defendants correctly point out,
“the Lewis County Sheriff’s Department responded to at least four of Plaintiff Hogan’s complaints
between August 2008 and Summer 2010 (including his complaint on July 5, 2010, which was just
weeks after Hogan alleges Lehman advised him the Sheriff’s Department was directed to refuse
Hogan’s complaints).” Lewis Cnty. Mem. at 15. Therefore, Plaintiffs have also failed to
demonstrate that the Lewis County Defendants refused to respond to their complaints yet responded
to their neighbors’ complaints. Accordingly, Plaintiffs have failed to establish a triable issue of fact
regarding selective enforcement, and the Lewis County Defendants are entitled to summary
judgment on Plaintiffs’ § 1983 equal protection claim.
V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant David Vandewater’s First Motion (Dkt. No. 171) for summary
judgment is GRANTED in part and DENIED in part consistent with this Memorandum-Decision
and Order; and it is further
ORDERED, that all claims against Defendant David Vandewater except for Plaintiffs’
interference with easement and private nuisance claims are DISMISSED.; and it is further
ORDERED, that Defendants Russell Falter and Kathy Wilson’s Second Motion (Dkt. No.
174) for summary judgment is GRANTED in part and DENIED in part consistent with this
39
Memorandum-Decision and Order; and it is further
ORDERED, that all claims against Defendants Russell Falter and Kathy Wilson except for
Plaintiffs’ private nuisance claim are DISMISSED; and it is further
ORDERED, that Defendants County of Lewis, New York; Ryan Lehman; Brett Croneiser;
Leanne Moser; and Caleb Petzoldt’s Motion (Dkt. No. 176) for summary judgment is GRANTED;
and it is further
ORDERED, that all claims against Defendants County of Lewis, New York; Ryan Lehman;
Brett Croneiser; Leanne Moser; and Caleb Petzoldt are DISMISSED; and it is further
ORDERED, that Defendant Frank Rose’s Motion (Dkt. No. 177) for summary judgment is
GRANTED in part and DENIED in part consistent with this Memorandum-Decision and Order;
and it is further
ORDERED, that all claims against Defendant Frank Rose except for Plaintiffs’ private
nuisance and loss of consortium claims are DISMISSED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
March 26, 2015
Albany, NY
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