Dellutri v. Village of Elmsford et al

Filing 28

OPINION AND ORDER re: 16 MOTION to Dismiss filed by Village of Elmsford. For the foregoing reasons, Defendant's motion to dismiss the Second Amended Complaint is granted with respect to Plaintiffs federal law claims. The Clerk of the Court is respectfully directed to terminate the motion (Dkt. No. 16) and close the case. (Signed by Judge Kenneth M. Karas on 9/28/2012) (fk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MICHAEL DELLUTRI,
Plaintiff,
-v-

Case No. 10-CV-01212 (KMK)
OPINION AND ORDER

VILLAGE OF ELMSFORD,
Defendant.

Appearances:
Mitchell Ian Weingarden, Esq.
Law Offices of Mitchell I. Weingarden, PLLC
White Plains, New York
Counsel for Plaintiff
Kiera Meehan, Esq.
Steven C. Stern, Esq.
Sokoloff Stern LLP
Westbury, New York
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Plaintiff Michael Dellutri (“Plaintiff”) has filed a Second Amended Complaint following
removal of this action by Defendant Village of Elmsford (“Defendant” or “Elmsford”) from New
York Supreme Court. Plaintiff alleges that officials of Elmsford engaged in various acts relating
to Plaintiff’s family dwelling in Elmsford, which constituted federal constitutional deprivations
in violation of the Due Process and Equal Protection clauses of the Fourteenth Amendment, as
well as state law torts of malicious prosecution, abuse of process, and prima facie tort.1

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Plaintiff’s Second Amended Complaint also seemingly includes a claim under 42
U.S.C. § 1983 (“Section 1983”) for constitutional violations.

Defendant has moved to dismiss Plaintiff’s Second Amended Complaint (“SAC”) in its entirety.
For the reasons stated herein, the motion is granted with respect to the federal claims,
supplemental jurisdiction over the state law claims is declined, and the Second Amended
Complaint is dismissed in its entirety.
I. Background
A. Facts
For purposes of deciding the instant motion to dismiss, the Court accepts as true the
allegations contained in Plaintiff’s Second Amended Complaint.
Plaintiff is a longtime owner of real property located at 15 Paulding Street in Elmsford,
New York, which contains a second kitchen and bath. (SAC ¶ 1.) Elmsford’s Building
Department issued Plaintiff a “Certificate of Compliance with Zoning and Building Regulations,
dated on or about October 17, 1984,” permitting Plaintiff’s property to have a second kitchen
and bath and describing it as a “two[-]family dwelling.”2 (Id. ¶ 6.) In February 2005, Plaintiff
alleges that an Elmsford Building Inspector, Antonio Capicotto, and an Assistant Building
Inspector, Martin Rogers, served him with a notice of violation charging unlawful operation of
the premises as a two-family residence. (Id. ¶ 4.) Plaintiff also claims that Defendant served
upon him an “order to cease renting the basement unit” which resulted in lost rent. (Id. ¶ 14.)
Plaintiff does not specify the precise time that this order was served, or which Village official
issued it.

2

The Second Amended Complaint contains no other specific information about the
certificate, including, for example, where the second kitchen and bath could be located within
the premises.
2

More than a year after the notice of violation, the Village Attorney of Elmsford, served
Plaintiff with an appearance ticket on July 17, 2006, to appear and answer the charges in the
Elmsford Justice Court on August 9, 2006. (Id. ¶ 7.) Following a subsequent trial before
Elmsford Village Judge Richard Leone, Plaintiff was convicted on October 18, 2006, (id. ¶ 11;
Mem. of Law in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem.”) 1) for violations under both
the New York Property Maintenance Code and the Village of Elmsford Code. See People v.
Dellutri, No. 2007-CR-1591, 2008 WL 4814911, at *1 (N.Y. App. Term Oct. 30, 2008).
Plaintiff’s conviction was then reversed by the New York Supreme Court on October 30, 2008.
Id. The Supreme Court held that the New York State Code charge was inapplicable, and that
Plaintiff “was improperly charged and convicted” under it. Id. On the Village Code violation,
the Supreme Court noted that during the trial the building inspector testified that he had been
aware of both an original certificate of occupancy for Plaintiff’s property, as a one-family
dwelling, and a later conversion of the property to a two-family dwelling based upon a second
dwelling unit in the basement. Id. However, the building inspector suspected another illegal
dwelling unit over the garage of Plaintiff’s property, in effect making the premises a three-family
dwelling. Id. The Supreme Court, noting that the building inspector had not actually visited this
unit, held that there was no “valid line of reasoning and permissible inferences from which a
rational trier of fact could have found the elements of the offenses proved beyond a reasonable
doubt,” and reversed Plaintiff’s conviction. Id. (alterations and internal quotation marks
omitted).
Plaintiff alleges that the building inspectors were “actually or constructively aware” of
Plaintiff’s 1984 compliance certificate, that the Village Attorney “knew or should have known”

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the charges were false, and that Judge Leone was not only aware of the compliance certificate,
but had actually assisted in its procurement on behalf of Plaintiff. (SAC ¶¶ 6, 8, 13-14.)
B. Procedural History
Plaintiff originally commenced this action in state court. In the original complaint,
Plaintiff named the Village of Elmsford as a defendant, along with Antonio Capicotto and
Martin Rogers, who were an Elmsford Building Inspector and Assistant Building Inspector,
respectively, and who were sued in their official capacities. Defendant removed the action to
this Court on February 17, 2010, pursuant to 28 U.S.C. §§ 1331 and 1441(b). (Dkt. No. 1.)
Plaintiff has since amended his complaint twice and stipulated to the dismissal of Capicotto and
Rogers as defendants, with prejudice. (Dkt. Nos. 1, 6, 10-12.) In the Second Amended
Complaint, Plaintiff’s claims are for damages arising from: (1) “Abuse of [p]rocess/[m]alicious
and [u]nlawful [p]rosecution,” (2) violations of procedural and substantive due process, (3)
violations of “Plaintiff’s right to equal protection,” and (4) prima facie tort under state law.
(SAC ¶¶ 21-40.) Plaintiff seeks damages of at least $100,000 plus interest, costs, punitive
damages, and attorneys’ fees. (Id. ¶ 43.)
Defendant moved to dismiss the complaint in its entirety pursuant to Federal Rule of
Civil Procedure 12(b)(6). (Dkt. No. 16.) On May 3, 2012, the Court issued an order for
supplemental briefing on the question of why all claims against Elmsford should not be deemed
to have been dismissed by virtue of the dismissal with prejudice of Capicotto and Rogers. (Dkt.
No. 23.) Supplemental briefing was submitted by the Parties on May 14, 2012. (Dkt. Nos. 24,
25.) The Court held oral argument on July 24, 2012.

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II. Discussion
A. Standard of Review
“On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiff’s
factual allegations as true and draw all reasonable inferences in [the plaintiff’s] favor.” Gonzales
v. Caballero, 572 F. Supp. 2d. 463, 466 (S.D.N.Y. 2008); see also Ruotolo v. City of New York,
514 F.3d 184, 188 (2d Cir. 2008) (“We review de novo a district court’s dismissal of a complaint
pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all
reasonable inferences in the plaintiff’s favor.” (internal quotation marks omitted)). In
adjudicating a 12(b)(6) motion, a court must confine its consideration to “facts stated in the
complaint or documents attached to the complaint as exhibits or incorporated by reference,” and
facts of which the Court may take judicial notice. Nechis v. Oxford Health Plans, Inc., 421 F.3d
96, 100 (2d Cir. 2005); see also Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.
1999).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (citations omitted). Instead, “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Id. A complaint cannot rest solely on conduct consistent
with behavior that raises a right to relief; a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Id. at 570. “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged – but it

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has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 663
(2009) (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)).
B. Federal Claims Against Elmsford
Plaintiff makes multiple claims against Elmsford, presumably asserted pursuant to 42
U.S.C. § 1983, including violations of substantive due process, procedural due process, equal
protection, malicious prosecution, and abuse of process.3 Plaintiff’s claims are based upon the
alleged actions of “the Village of Elmsford Judge” who presided over Plaintiff’s trial, the
Elmsford Building Inspector and Assistant Building Inspector who served a notice of violation
upon Plaintiff, and the Village Attorney who served Plaintiff with an appearance ticket and
subsequently prosecuted Plaintiff. (SAC ¶¶ 6, 8, 26, 33-34.) As described below, these claims
fail on multiple grounds.
1. Res Judicata
As noted above, prior to the current motion to dismiss, Plaintiff stipulated to the
dismissal of Capicotto and Rogers as defendants, with prejudice. (Dkt. No. 10.) Noting that an
“official capacity suit against a public servant is treated as one against the governmental entity
itself,” Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007), the Court ordered Plaintiff, on

3

Plaintiff’s Second Amended Complaint is not wholly clear. Plaintiff’s second and third
causes of action are lumped together in the Second Amended Complaint, and allege violations of
Plaintiff’s “[c]onstitutional [r]ight to [p]rocedural and [s]ubstantive [d]ue [p]rocess,” and
Plaintiff’s “right to equal protection under the United States Constitution,” without further
description of their legal basis. (SAC ¶¶ 27-36.) Plaintiff’s first cause of action for “[a]buse of
process/[m]alicious and [u]nlawful [p]rosecution,” states only that “Defendants (sic) acted in
utter disregard” of Plaintiff’s “rights under the Federal and State Constitutions and the laws,
codes, rules and regulations applicable to the Village of Elmsford.” (Id. ¶ 24.) Likewise,
Plaintiff’s Second Amended Complaint repeatedly refers to Capicotto and Rogers as
“Defendants,” or to “Defendants,” even though Plaintiff previously stipulated to their dismissal
(Dkt. No. 11), and the Second Amended Complaint lists the Village of Elmsford as the only
remaining defendant. (SAC ¶¶ 4, 6, 8, 9, 14, 16, 22-25, 27, 29, 32-34, 38-43.)
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May 3, 2012, to submit supplemental briefing on the question of “why all claims against
Elmsford should not be deemed to have been dismissed with prejudice by virtue of the voluntary
dismissal with prejudice of Capicotto and Rogers.” (Dkt. 23 (citing Muhammad v. City of
Peekskill, 06-CV-1899, 2008 WL 4452355, at *3 (S.D.N.Y. Sept. 30, 2008)).) Plaintiff’s
supplemental filing argues that Elmsford’s “liability is not solely based on [the] acts” of
Capicotto and Rogers, and that, therefore, even if the acts attributable to those two individuals
are dismissed “the remaining claims should stand.” (Dkt. No. 25.)
This argument, however, does not address the issue of res judicata.4 As this Court
explained at length in Muhammad:
“[A] stipulation dismissing plaintiff’s ‘action’ with prejudice must be read to have
dismissed all claims,” which precludes Plaintiff later raising “those claims that
would have been decided had the first action been fully litigated.” Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986). This is true with respect to “‘all relevant
issues which could have been but were not raised and litigated in the suit.’”
Samuels [v. N. Tel., Inc., 942 F.2d 834, 836 (2d Cir. 1991)] (quoting Nemaizer,
793 F.2d at 61) . . . . Id. at 837 (“[A] dismissal with prejudice was a risky choice
if future litigation was contemplated, since it would wipe out all claims that could
have been asserted in the dismissed suit.” (emphasis in original)); see also
Resources N.E. of Long Island, Inc. v. Town of Babylon, 28 F. Supp. 2d 786, 792
(E.D.N.Y. 1998) (applying Samuels to find that once a claim was brought to its
final conclusion, “all other claims arising out of the same transaction or series of
transactions became barred, even if . . . based on different theories, seek[ing]
different remedies, and alleg[ing] different facts”).
Further, Plaintiff is barred from making claims against the same party and those
in privity with that party. See Cent. Hudson Gas & Elec. Corp. v. Empresa
Naviera Santa S.A., 56 F.3d 359, 367–68 (2d Cir. 1995) (stating that privity
precludes relitigation of a claim against a new defendant with “sufficiently close

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Plaintiff seems to misunderstand the Court’s inquiry, arguing that “there is no attempt
to add claims which could have been asserted earlier,” and that all the “acts and claims” relating
to other municipal officials “were contained in the complaint at the time of the (voluntary)
dismissal.” (Dkt. No. 25.) This was not the point of the Court’s Order. Rather, the Court was
asking for input as to the legal impact of the dismissal of the only Elmsford employees who were
sued in their official capacity.
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relationship to the original”); see also Vets N., Inc. v. Libutti, No. 01-CV-7773,
2003 WL 21542554, at *11 (E.D.N.Y. Apr. 21, 2003) (“[C]ontemporary courts
have broadly construed the concept of privity, far beyond its literal and historic
meaning, to include any situation in which the ‘relationship between the parties’
is ‘sufficiently close’ to supply preclusion.” (quoting Nabisco, Inc. v. Amtech
Int’l, Inc., No. 95-CV-9699, 2000 WL 35854, at *6 (S.D.N.Y. Jan.18, 2000))). . . .
As then-District Judge Parker noted, in language directly applicable here,
Defendants County of Westchester and DiFiore are “entitled to res judicata
because government officials sued in their official capacities are generally
considered to be in privity with the governmental entity that they serve.”
Waldman [v. Village of Kiryas Joel, 39 F. Supp. 2d 370, 382 (S.D.N.Y. 1999),
aff’d, 207 F.3d 105 (2d Cir. 2000)]; see also Stancuna v. Sherman, [563 F. Supp.
2d 349, 353] (D. Conn. 2008) (stating that public officials sued in official
capacity are in privity with the entities that employ them); O‘Connor v. Pierson,
482 F. Supp. 2d 228, 231 (D. Conn. 2007) (same); Johnson v. County of Nassau,
480 F. Supp. 2d 581, 607 (E.D.N.Y. 2007) (same).
Muhammad, 2008 WL 4452355, at *4 (emphasis in original).
The analysis in Muhammad, which the Court cited in its Order, applies to the instant
case. In the first place, res judicata is typically available to a newly named defendant when the
facts in an earlier case are the same and were known to Plaintiff. Thus, even if Elmsford had
been added as a defendant after Capicotto and Rogers were dismissed, it still would be able to
invoke res judicata. See Wilson v. Ltd. Brands, Inc., No. 08-CV-3431, 2009 WL 1069165, at *3
& n.4 (S.D.N.Y. Apr. 17, 2009) (noting that res judicata applied where a defendant in a second
action had a “sufficiently close relationship” to a defendant in a prior action and “both
defendants were known” to the plaintiff when she filed the earlier lawsuit); Waldman, 39 F.
Supp. 2d at 381 (“Res judicata is available to a newly named defendant with a close or
significant relationship to a defendant previously sued, when the claims in the new action are
essentially the same as those in the prior action and the defendant’s existence and participation in
the relevant events was known to the plaintiff.”). Here, the impetus for applying res judicata is
even stronger because Capicotto and Rogers are in direct privity with Elmsford. Throughout this

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litigation, the suit against Capicotto and Rogers has, in reality, been a suit against Elmsford. In
fact, the Second Amended Complaint contains no allegations that Capicotto and Rogers acted
outside their official capacity, and every version of Plaintiff’s complaints state that “Capicotto
and Rogers may be referred to herein as the Village of Elmsford Building Department.” (Compl.
¶ 3; First Amended Compl. ¶ 4; SAC ¶ 3.) As such, Plaintiff’s voluntary dismissal with
prejudice against the building inspectors, sued in their official capacities, for res judicata
purposes, was a dismissal of the action against Elmsford itself.
To this end, res judicata bars Plaintiff’s claims even if he asserts new legal theories of
liability following the dismissal of the building inspectors. See Waldman, 207 F.3d at 110
(noting the “well-established rule” that a “plaintiff cannot avoid the effects of res judicata by
splitting his claim into various suits, based on different legal theories” (internal quotation marks
omitted)); TechnoMarine S.A. v. Giftports, Inc., No. 11-CV-9643, 2012 WL 3964734, at *5
(S.D.N.Y. Sept. 10, 2012) (“New legal theories do not amount to a new cause of action so as to
defeat the doctrine of res judicata.”); Amadsau v. Bronx Lebanon Hosp. Ctr., No. 03-CV-6450,
2005 WL 121746, at *7 (S.D.N.Y. Jan. 21, 2005) (same), adopted in relevant part by 2005 WL
954916 (S.D.N.Y. Apr. 26, 2005). Thus, even if Plaintiff correctly speculates that individuals
other than Capicotto and Rogers may have committed some of the complained-of conduct, it
does not overcome the effect of voluntary dismissal with prejudice. Accordingly, the Court
dismisses the entirety of Plaintiff’s federal claims on the basis of res judicata.
2. Timeliness of Claims
All of Plaintiff’s federal claims, except for malicious prosecution, are also time-barred.
While “Section 1983 provides a federal cause of action . . . federal law looks to the law of the
State in which the cause of action arose” for the statute of limitations. Wallace v. Kato, 549 U.S.
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384, 387 (2007); see also Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (“In section 1983
actions, the applicable limitations period is found in the ‘general or residual state statute of
limitations for personal injury actions.’” (alterations omitted) (quoting Owens v. Okure, 488 U.S.
235, 249–50 (1989))). “Accordingly, New York’s three-year statute of limitations for ‘an action
to recover damages for a personal injury,’ N.Y.C.P.L.R. § 214(5), governs section 1983 actions
in New York.” Taylor v. City of N.Y. Dep’t. of Hous. Preservation & Dev., No. 08-CV-150,
2008 WL 2485410, at *3 (S.D.N.Y. June 19, 2008) (quoting Ormiston, 117 F.3d at 71).5
Although the statute of limitations period is governed by state law, “federal law governs
the question of when a Section 1983 claim accrues.” Rene v. Jablonski, No. 08-CV-3968, 2009
WL 2524865, at *5 (E.D.N.Y. Aug. 17, 2009) (citing M.D. v. Southington Bd. of Educ., 334 F.3d
217, 221 (2d Cir. 2003)). “Under federal law, a cause of action generally accrues when the
plaintiff knows or has reason to know of the injury that is the basis of the action.” M.D., 334
F.3d at 221 (internal quotation marks omitted); see also Pearl v. City of Long Beach, 296 F.3d
76, 80 (2d Cir. 2002) (noting that federal law determines when a Section 1983 cause of action
accrues, and that it begins “when the plaintiff knows or has reason to know of the injury which is
the basis of his action” (internal quotation marks omitted)); Singleton v. City of New York, 632
F.2d 185, 191 (2d Cir. 1980) (applying rule of accrual to claims brought pursuant to Section
1983).

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“There is a split of authority as to whether an abuse of process claim is subject to New
York’s one-year statute of limitations for certain intentional torts enumerated in N.Y. C.P.L.R. §
215(3) or a three-year statute of limitations for torts involving injury to persons or property
under N.Y. C.P.L.R. § 214(5).” Romag Fasteners, Inc. v. Bauer, No. 11-CV-3181, 2011 WL
5513380, at *8 (S.D.N.Y. Nov. 9, 2011). As Defendant has not argued otherwise, the Court will
assume that the three-year statute of limitations applies.
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The Parties dispute when the cause of action accrued. Plaintiff argues that the date his
conviction was reversed, October 30, 2008, is the relevant date. (Mem. of Law in Opp. to Def.’s
Mot. to Dismiss (“Pl.’s Mem.”) 8, 16.) Defendant argues that Plaintiff was convicted on
October 18, 2006 and that by this date, if not sooner, Plaintiff was fully aware of the injury that
formed the basis of his abuse of process, due process, and equal protection claims. (Def.’s Mem.
4; Reply Mem. of Law in Supp. of Def.’s Mot. to Dismiss (“Def.’s Reply”) 2-3.) In analogous
circumstances, the Second Circuit and federal district courts in New York have consistently held
that claims such as those at issue here accrue at the time of conviction or earlier. See Ormiston,
117 F.3d at 71 (noting that “[i]n cases applying the Singleton rule, the date of arrest has been
used as the accrual date for any subsequent action under section 1983”); Singleton, 632 F.2d at
191 (holding that assault and false arrest claims began to accrue at the time of arrest, rather than
at the termination of the prosecution); Keitt v. City of New York, No. 09-CV-5663, 2010 WL
3466175, at *6 (S.D.N.Y. Aug. 9, 2010) (holding that a plaintiff’s “federal claims all accrued . . .
[on the date] when he was allegedly racially profiled, falsely arrested, imprisoned, and denied
medical care”); Remigio v. Kelly, No. 04-CV-1877, 2005 WL 1950138, at *5 (S.D.N.Y. Aug. 12,
2005) (“Under the Singleton rule, the statute of limitations accrues ‘when the plaintiff knows or
has reason to know of the injury which is the basis of his action,’ such as ‘when the plaintiff
becomes aware that he is suffering from a wrong for which damages may be recovered in a civil
action.’” (quoting Singleton, 632 F.2d at 191-92)); Duamutef v. Morris, 956 F. Supp. 1112, 1118
(S.D.N.Y. 1997) (“Ordinarily, a claim for abuse of process accrues at such time as the criminal
process is set in motion—typically at arrest—against the plaintiff.”). All of Plaintiff’s alleged
injuries (other than malicious prosecution) occurred prior to, or in the course of, his trial.
Consequently, he was clearly aware of them by the time of his conviction. Thus, the statute of
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limitations for these claims would have expired – at the latest – three years after the date of his
conviction, which was on October 18, 2006. Because Plaintiff did not initiate this action until
more than three years later, on January 27, 2010, it is untimely. (Decl. of Kiera J. Meehan in
Supp. of Def.’s Mot. to Dismiss (“Meehan Decl.”), Ex. B.)
A very limited exception to this application of the Singleton rule exists under the
continuing violations doctrine, which “allows a plaintiff in certain circumstances to recover on
the basis of an ongoing policy or practice of illegal activity initiated prior to the limitations
period.” Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 118 (2d Cir. 1997); see also
Bissinger v. City of New York, No. 06-CV-2325, 2007 WL 2826756, at *5 (S.D.N.Y. Sept. 24,
2007) (same). “The continuing violation doctrine is generally viewed with disfavor in the
Second Circuit and should be applied only on a showing of compelling circumstances.”
Bissinger, 2007 WL 2826756, at *5 (collecting cases); Nakis v. Potter, No. 01-CV-10047, 2004
WL 2903718, at *10 n.2 (S.D.N.Y. Dec. 15, 2004) (collecting cases); cf. Pinaud v. Cnty. of
Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (noting that “when a plaintiff knows or ought to know
of a wrong, the statute of limitations on that claim starts to run, and the later awareness that the
actionable wrong was also part of a conspiracy does not expand the statutory time limit”).
Plaintiff has not here alleged any compelling circumstances which would merit application of the
continuing violations doctrine. See, e.g., Remigio, 2005 WL 1950138, at *8 (“Courts have found
compelling circumstances where the unlawful conduct takes place over a period of time, making
it difficult to pinpoint the exact day the violation occurred; where there is a[n] express, openly
espoused policy that is alleged to be discriminatory; or where there is a pattern of covert conduct
such that the plaintiff only belatedly recognizes its unlawfulness.” (internal quotation marks and
alteration omitted)). Aside from allegations related to his malicious prosecution claim, Plaintiff
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was aware of the alleged harms Defendant was inflicting upon him at the time they occurred
prior to his conviction.6 Moreover, Plaintiff makes no allegations remotely suggesting that
Defendant’s alleged misconduct involved other wrongful acts related to anything other than the
one prosecution. Accordingly, Plaintiff’s abuse of process, due process, and equal protection
claims are time-barred.
3. Monell Liability for Section 1983 Claims
Plaintiff’s § 1983 claims also fail to state a claim for municipal liability. In order for
Plaintiff to prevail on any of his § 1983 claims against Elmsford, he must satisfy the
requirements for municipal liability, as set forth in Monell v. Department of Social Services of
New York City, 436 U.S. 658 (1978), and its progeny. It is well-settled that “Congress did not
intend municipalities to be held liable [under § 1983] unless action pursuant to official municipal
policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691. Thus, “to 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). The fifth element reflects the notion that “a municipality may not be held liable
under § 1983 solely because it employs a tortfeasor.” Bd. of Cnty. Comm’rs of Bryan County,
Okl. v. Brown, 520 U.S. 397, 403 (1997); see also Newton v. City of New York, 566 F. Supp. 2d
256, 270 (S.D.N.Y. 2008) (“As subsequently reaffirmed and explained by the Supreme Court,
municipalities may only be held liable when the municipality itself deprives an individual of a

6

Defendant concedes that Plaintiff’s malicious prosecution claim is not time-barred.
(Def.’s Mem. 4.)
13

constitutional right.”). In other words, a municipality may not be held liable under Section 1983
“by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S.
469, 478 (1986); see also Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting
that “a municipal entity may only be held liable where the entity itself commits a wrong”
(emphasis in original)). Instead, there must be a “direct causal link between a municipal policy
or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378,
385 (1989); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnmental
bodies can act only through natural persons . . . [and] governments should be held responsible
when, and only when, their official policies cause their employees to violate another person’s
constitutional rights.”).
“In determining municipal liability, it is necessary to conduct a separate inquiry into
whether there exists a ‘policy’ or ‘custom.’” Davis v. City of New York, 228 F. Supp. 2d 327,
336 (S.D.N.Y. 2002), aff’d, 75 Fed. App’x 827 (2d Cir. 2003). Normally, “a custom or policy
cannot be shown by pointing to a single instance of unconstitutional conduct by a mere
employee of the [municipality].” Newton, 566 F. Supp. 2d at 271; see also City of Oklahoma v.
Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless proof of the incident includes proof that it
was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a
municipal policymaker.” (plurality opinion)); Brogdon v. City of New Rochelle, 200 F. Supp. 2d
411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally insufficient to establish the
affirmative link between the municipal policy or custom and the alleged unconstitutional
violation.”). “The Supreme Court has identified at least two situations that constitute a
municipal policy: (1) where there is an officially promulgated policy as that term is generally
14

understood (i.e., a formal act by the municipality’s governing body), and (2) where a single act is
taken by a municipal employee who, as a matter of State law, has final policymaking authority in
the area in which the action was taken.” Newton, 566 F. Supp. 2d at 271 (footnote omitted).
“A municipal ‘custom,’ on the other hand, need not receive formal approval by the
appropriate decisionmaker . . . .” Id. Instead, “an act performed pursuant to a ‘custom’ that has
not been formally approved by an appropriate decisionmaker may fairly subject a municipality to
liability on the theory that the relevant practice is so widespread as to have the force of law.”
Brown, 520 U.S. at 404; see also Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (noting
that a municipality’s custom “need not be memorialized in a specific rule or regulation”). To
prevail on this theory of municipal liability, however, a plaintiff must prove that the custom at
issue is permanent and well-settled. See Praprotnik, 485 U.S. at 127 (noting that the Supreme
Court “has long recognized that a plaintiff may be able to prove the existence of a widespread
practice that, although not authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage with the force of law” (internal
quotation marks omitted)).
a. Imputed Liability of Municipal Actors
Plaintiff’s “[Second] Amended Complaint lacks any factual allegations demonstrating the
existence of an officially-adopted policy or custom [of Elmsford] that caused Plaintiff injury and
a direct and deliberate causal connection between that policy or custom and the violation of
Plaintiff’s federally protected rights.” Joe v. Moe, No. 10-CV-4417, 2011 WL 2416882, at *5
(S.D.N.Y. June 1, 2011) (alterations and internal quotation marks omitted); see also Jeffes v.
Barnes, 208 F.3d 49, 57-58 (2d Cir. 2000) (noting that Plaintiff bears the burden of establishing
as a matter of law that the conduct of a given official represents an official policy). Rather,
15

Plaintiff’s request for relief arises solely from the allegation that certain municipal employees –
the Building Inspectors, Village Attorney, and Judge Leone – violated Plaintiff’s rights.
However, as described above, in the absence of a formal municipal policy or a widespread
custom, Elmsford may not be held liable for these actions simply because they were committed
by actors who were its employees. See Brown, 520 U.S. at 403 (noting that Monell found that a
municipality “may not be held liable under § 1983 solely because it employs a tortfeasor”);
Pembaur, 475 U.S. at 478 (noting that Monell held that a municipality is not liable by
application of respondeat superior); Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 130-31
(2d Cir. 2004) (affirming a grant of summary judgment where plaintiff was unable to show that a
municipal failure to train caused two incidents of excessive force by police officers); Curry v.
City of Syracuse, 316 F.3d 324, 330 (2d Cir. 2003) (“[A] municipality may not be held liable
under § 1983 simply for the isolated unconstitutional acts of its employees.” (internal quotation
marks omitted)); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991) (“A
municipality and its supervisory officials may not be held liable in a § 1983 action for the
conduct of a lower-echelon employee solely on the basis of respondeat superior.”).
Plaintiff’s only remaining avenue for relief under Monell lies in demonstrating that one
or more of these municipal actors exercised final policymaking authority while committing the
purported actions. See Praprotnik, 485 U.S. at 123 (noting that a municipality may also be
subject to § 1983 liability for acts of its officials who have final policymaking authority in the
area in which the action was taken); Pembaur, 475 U.S. at 482–83 (plurality opinion) (“The fact
that a particular official—even a policymaking official—has discretion in the exercise of
particular functions does not, without more, give rise to municipal liability based on an exercise
of that discretion. The official must also be responsible for establishing final government policy
16

respecting such activity before the municipality can be held liable.” (citation omitted)); Jeffes,
208 F.3d at 57 (noting that the mere fact that an employee has been “granted discretion in the
performance of his [or her] duties” does not suffice as final policymaking authority imputing
municipal liability). “[W]hether a particular official has final policymaking authority is a
question of state law.” Praprotnik, 485 U.S. at 123 (internal quotation marks omitted). The
Court analyzes each municipal actor’s authority in turn, starting with Judge Leone.
“The Second Circuit has not addressed the policymaking authority of judges; however,
other circuits have determined that municipal judges do not act as policymakers and therefore a
municipality cannot be liable under Monell for a Section 1983 claim based solely on the actions
of its judges.” Bliven v. Hunt, 478 F. Supp. 2d 332, 337 & n.2 (E.D.N.Y. 2007) (citing cases
from the Fifth, Seventh, Eighth, Ninth, and Tenth Circuits), aff’d, 579 F.3d 204 (2d Cir. 2009);
Rodriguez v. City of New York, No. 02-CV-8203, 2004 WL 444089, at *4 (S.D.N.Y. Mar. 10,
2004) (concluding that the view of other circuit courts “that municipal judges do not act as
policymakers and therefore a municipality cannot be liable under Monell for a section 1983
claim based solely on the actions of its judges . . . is sound and persuasive”). In addition,
multiple district courts within the Second Circuit have determined that under New York law,
village and similar judges are not considered village policymakers for the purposes of evaluating
a Monell claim. See Berry v. Vill. of Millbrook, 815 F. Supp. 2d 711, 718-19 (S.D.N.Y. 2011)
(holding that the acts of a village judge could not be imputed to a municipality); Szymaszek v.
Mahar, No. 06-CV-719, 2008 WL 4518613, at *8 (N.D.N.Y. Sept. 29, 2008) (holding that the
City of Troy “cannot be liable through any actions or inactions” by its former city court judge);
Garcha v. City of Beacon, 351 F. Supp. 2d 213, 218 (S.D.N.Y. 2005) (noting that “a

17

municipality is not liable, vicariously, for an official act of one of its judges”). The Court agrees
with these courts and concludes that Judge Leone is not a policymaker for Elmsford.7
Plaintiff also alleges that Capicotto and Rogers, the building inspector and assistant
building inspector, respectively, served him with a Notice of Violation charging Plaintiff with
unlawfully operating the premises as a two family residence, (SAC ¶ 4) when they “knew or
should have known” that the charges were false, (id. ¶ 8). Whether a building inspector is
considered a municipal policymaker under Monell is a question of state and municipal law. See
Sullivan v. Town of Salem, 805 F.2d 81, 86, 87 (2d Cir. 1986) (noting that whether a building
official’s refusal to consider plaintiff’s request for certificates of occupancy could fairly be said
to represent official town policy was a Connecticut state law question to be determined by the
district court on remand); Town of Orangetown v. Magee, 665 N.E.2d 1061, 1067 (N.Y. 1996)
(“Whether the Building Inspector’s revocation constituted a ‘final decision’ of the Town of
Orangetown is a matter to be determined by examining the relevant local laws. States have
broad discretion to determine the form of local government and the distribution of power in one
locality may be quite different from that of another.”). Accordingly, courts which have
considered this question have examined the relevant state or local law, to determine the scope of

7

Municipal judges, moreover, are typically State employees, over whom the
municipality does not have control. See Rodriguez, 2004 WL 444089, at *4 (concluding that
because a municipal judge is an employee of the State and not the municipality, “even if the
judge’s actions had amounted to that of a policymaker, the [municipality] would not be liable
under Monell”); Estes-El v. Town of Indian Lake, 954 F. Supp. 527, 536 (N.D.N.Y. 1997)
(holding that a Town Judge is not a municipal policymaker because “the jurisdiction of his court
as well as the requirements of his job are prescribed by state law,” and “his decisions are not
final because they are appealable to higher courts within the state court system” and,
“[t]herefore, . . . the Town is not responsible for [the] Judge[’s] conduct when he acts in his
judicial capacity, as he did in the present case”). Thus, there is no viable claim that Elmsford is
legally liable for the decisions of the village judge who presided over Plaintiff’s case.
18

a building inspector’s authority. See, e.g., Kern v. Layne, No. 06-CV-13490, 2009 WL 4884149,
at *1 (S.D.N.Y. Dec. 16, 2009) (holding that a building inspector was a final municipal
policymaker “based upon the scope of authority vested in the Building Inspector under the
Village Code with respect to building permits and certificates of occupancy”); New Creation
Fellowship of Buffalo v. Town of Cheektowaga, No. 99-CV-460A, 2004 WL 1498190, at *63-64
(W.D.N.Y. July 2, 2004) (holding the Town’s Building Inspector to be a final policymaker for
Monell purposes where the inspector had been delegated “sole responsibility for enforcement of
the Tree Preservation Ordinance,” even though the inspector’s actions were appealable to the
Town Board), aff’d on other grounds, 164 Fed. App’x 5 (2d Cir. 2005) (summary order);
Emanuele v. Town of Greenville, 143 F. Supp. 2d 325, 335 n.2 (S.D.N.Y. 2001) (noting that a
Town Supervisor who merely had a duty to report complaints of alleged building code violations
was not a final policymaker where the building department conducted subsequent independent
investigations); Rodriguez v. Margotta, 71 F. Supp. 2d 289, 298 (S.D.N.Y. 1999) (holding that a
building inspector who was not “empowered to write the building code, set policy for
enforcement of the code, or to bring about prosecutions under the code” could not be a
policymaker for purposes of imputing municipal liability), aff’d, 225 F.3d 646 (2d Cir. 2000)
(unpublished opinion); Magee, 665 N.E.2d at 1067-68 (holding that a Town Building Inspector
was the final decisionmaker for purposes of § 1983 liability where the inspector was the sole
official, under Town policy, with the authority to revoke building permits and had exercised that
“legal authority for political reasons at the direction of the Town Supervisor”).
In the current case, Plaintiff has not alleged that the building inspectors exercised such
“final authority” under municipal law. Indeed, Plaintiff only alleges that the inspector and
assistant inspector issued a notice of violation. Without more, this does not demonstrate that
19

these individuals exercised final policymaking authority. See Emanuele, 143 F. Supp. 2d at 335
& n.2 (noting that a Town Supervisor who merely had a duty to report complaints of alleged
building code violations was not a final policymaker); Rodriguez, 71 F. Supp. 2d at 298 (holding
that a building inspector was not a policymaker for purposes of imputing municipal liability
where the inspector lacked relevant authority under the building code).
Even if the building inspectors did exercise final authority, however, Plaintiff’s claims
against Elmsford based upon their actions would still be barred due to res judicata. As already
discussed, Plaintiff’s voluntary dismissal against Capicotto and Rogers constituted a dismissal
against Elmsford. The actions of Capicotto and Rogers cannot now be imputed to Elmsford.
Finally, Plaintiff seems to base liability upon the actions of the Village Attorney for
serving an appearance ticket for Plaintiff to appear in the Village Justice Court and subsequently
prosecuting Plaintiff. The Court will assume, without deciding, that the Village Attorney was
acting as a municipal policymaker in prosecuting Plaintiff and address claims for municipal
liability based upon the Village Attorney’s actions on their merits. See Norton v. Town of Islip,
No. 04-CV-3079, 2009 WL 804702, at *28 (E.D.N.Y. Mar. 27, 2009) (declining to dismiss
municipal liability claim based in part on decision of Town Attorney’s office to prosecute
property owners to enforce changes to certificates of occupancy without providing notice and an
opportunity to be heard), rev’d on other grounds by 378 Fed. App’x 85, 90 (2d Cir. 2010); cf.
Frank Sloup & Crabs Unlimited, LLC v. Loeffler, 745 F. Supp. 2d 115, 124 n.2 (E.D.N.Y. 2010)
(noting that a statement by a Deputy Town Attorney at an Article 78 proceeding could be an
“[a]n alternative theory” that would be “sufficient to create liability for the Town”); Mitchell v.
Town of Southampton, 238 F.R.D. 368, 370 (E.D.N.Y. Dec. 6, 2006) (granting discovery request
for “job descriptions and setting of qualifications for” new Town Attorneys, Assistant Town
20

Attorneys, or Deputy Town Attorneys, due to relevance to the “disputed issue” of whether an
Assistant Town Attorney was a policymaker). Thus, the question is whether Plaintiff’s
allegations about the Village Attorney are sufficient to state a malicious prosecution claim.
b. Malicious Prosecution
Although Section 1983 provides plaintiffs with a federal cause of action, the elements of
the underlying malicious prosecution claim are taken from state law. See Cook v. Sheldon, 41
F.3d 73, 79 (2d Cir. 1994). In order to state a viable claim for malicious prosecution in New
York, a plaintiff must show: (1) the initiation and continuation of criminal process against the
plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) the lack of probable cause for
commencing the proceeding; and (4) actual malice as a motivation for the defendant’s actions.
See Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003). Furthermore, a plaintiff must also
show that there was a Fourth Amendment “seizure” to prevail upon a Section 1983 malicious
prosecution claim. See Albright v. Oliver, 510 U.S. 266, 269-71 (1994) (plurality opinion)
(holding that a claim of prosecution without probable cause is properly analyzed under the
Fourth Amendment); Washington v. Cnty. of Rockland, 373 F.3d 310, 316 (2d Cir. 2004) (“[T]o
sustain a § 1983 malicious prosecution claim, there must be a seizure or other perversion of
proper legal procedures implicating the claimant’s personal liberty and privacy interests under
the Fourth Amendment.” (internal quotations marks omitted)); Mangino v. Vill. of Patchogue,
739 F. Supp. 2d 205, 227 (E.D.N.Y. 2010) (same); Conte v. Cnty. of Nassau, No. 06-CV-4746,
2008 WL 905879, at *11 (E.D.N.Y. Mar. 31, 2008) (same).
Plaintiff has met the second element required for malicious prosecution by offering
evidence of a favorable result (a reversal on insufficiency grounds), Dellutri, 2008 WL 4814911,
at *1, that indicates his innocence as a matter of law. See Russell v. Smith, 68 F.3d 33, 36 (2d
21

Cir. 1995) (noting that a favorable termination of a case occurs only when there is a decision on
the merits or a final disposition to indicate the accused is not guilty).8 Likewise, if the pleaded
facts of the Second Amended Complaint are taken to be true, Elmsford similarly lacked probable
cause to initiate the criminal proceeding, fulfilling the third element required for malicious
prosecution.
Defendant contests the fourth element – actual malice – describing Plaintiff’s allegations
as “speculation of malice as a motive.” (Def.’s Mem.12.) The law in the Second Circuit is clear,
however, that a “lack of probable cause generally creates an inference of malice,” Boyd v. City of
New York, 336 F.3d 72, 78 (2d Cir. 2003), as does a prosecution pursued with “reckless
disregard of the rights of the plaintiff,” Manganiello v. City of New York, 612 F.3d 149, 163 (2d
Cir. 2010) (internal quotation marks omitted). Thus, the facts as alleged could plausibly give
rise to an inference of malice on either of these indirect theories.
The remaining dispute between the Parties is whether Plaintiff was seized for Fourth
Amendment purposes. Defendant contends that the requisite Fourth Amendment seizure did not
occur, arguing that service of the notice of violation and appearance ticket, coupled with the
“mere requirement” of a court appearance, do not rise to the level of a constitutional seizure.
(Def.’s Mem. 11.) Plaintiff alleges that in addition to the appearance ticket he was subject to a

8

It is unclear from the Second Amended Complaint whether the offense with which
Plaintiff was charged rises to the level of a “criminal proceeding” under state or municipal law
sufficient to satisfy the first element of a malicious prosecution claim. See Hary v. Dolan, No.
08-CV-1611, 2010 WL 419404, at *4-5 (D. Conn. Jan. 29, 2010) (noting that whether a criminal
proceeding was initiated or whether a defendant was merely punished for an “infraction” was
determined by reference to Connecticut state law). Here, the Court will assume that Plaintiff
was the subject of a criminal proceeding.
22

trial, implying an unspecified number of further court appearances, beyond the one required
from his appearance ticket.
The Second Circuit has noted that a “plaintiff asserting a Fourth Amendment malicious
prosecution claim under § 1983 must therefore show some deprivation of liberty consistent with
the concept of seizure.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995) (internal
quotation marks omitted). Thus, for example, the Second Circuit has held that a defendant who
was released post-arraignment, but ordered not to leave the state and required to make
approximately eight court appearances while his criminal proceeding was pending, had shown “a
seizure within the meaning of the Fourth Amendment.” Murphy v. Lynn, 118 F.3d 938, 946 (2d
Cir. 1997). Subsequent to Murphy, the Second Circuit has observed that “[i]n order to allege a
cause of action for malicious prosecution under § 1983,” a plaintiff “must assert, in addition to
the elements of malicious prosecution under state law, that there was . . . a sufficient
post-arraignment liberty restraint to implicate the plaintiff’s Fourth Amendment rights.”
Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (second emphasis added)
(citing Murphy, 118 F.3d at 944-46). Noting that “[i]n the wake of Murphy, the district courts in
this Circuit have divided on whether a summons requiring a later court appearance—without
further restraint—amounts to a Fourth Amendment seizure,” the Second Circuit has recently
clarified that “the issuance of a pre-arraignment, non-felony summons requiring a later court
appearance, without further restrictions, does not constitute a Fourth Amendment seizure.” Burg
v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010).9 However, the Burg court also noted that Murphy

9

Consistent with Burg, it seems beyond dispute that the building inspectors’ issuance of
the notice of violation and the Village Attorney’s service of an appearance ticket do not, without
more, constitute a seizure within the meaning of the Fourth Amendment. 591 F.3d at 98.
23

had involved eight appearances and observed that “[t]he number of appearances may bear upon
whether there was a seizure.” Id.
Lower courts have wrestled with quantifying the number of appearances necessary to
constitute a seizure. Some courts have held that a criminal process involving multiple court
appearances effects a seizure under the Fourth Amendment. See, e.g., Genia v. N.Y. State
Troopers, No. 03-CV-0870, 2007 WL 869594, at *14-16 (E.D.N.Y. Mar. 20, 2007) (finding a
deprivation of liberty where plaintiff was required to “make multiple court appearances after the
arraignment, up to and including the criminal trial”); Kirton v. Hassel, No. 96-CV-1371, 1998
WL 146701, at *6 (E.D.N.Y. Mar. 25, 1998) (noting “[i]t has been held that requiring a Plaintiff
to make court appearances is a ‘seizure’ within the meaning of the Fourth Amendment”);
Sassower v. City of White Plains, 992 F. Supp. 652, 656 (S.D.N.Y. 1998) (finding that where a
plaintiff was required to appear in court on three occasions and “cut short” her travel, she had
raised “a genuine issue of fact as to the deprivation of liberty element” of her malicious
prosecution claim); Willner v. Town of N. Hempstead, 977 F. Supp. 182, 189 (E.D.N.Y. 1997)
(finding a seizure “[a]lthough there are no allegations of an arrest or an otherwise physical
detention” because plaintiff “was required to make court appearances”).
However, the weight of district court authority in circumstances similar to those here –
involving a plaintiff charged with non-felony offenses who was neither arraigned nor physically
detained but who might have made a number of court appearances – counsels against finding a
constitutional injury. See Parkash v. Town of Southeast, No. 10-CV-8098, 2011 WL 5142669, at
*5-6 (S.D.N.Y. Sept. 30, 2011) (holding that a seizure had not occurred even where Plaintiffs
“were required to appear in court on fifteen occasions” in response to non-felony appearance
tickets); McCart v. Vill. of Mount Morris, No. 09-CV-6472, 2011 WL 3421505, at *10
24

(W.D.N.Y. Aug. 4, 2011) (finding no seizure where plaintiff was issued an appearance ticket
following an arrest, but not otherwise restricted, and “appeared in court a couple of times”
(internal quotation marks omitted)); Johnston v. Port Auth. of N.Y. & N.J., No. 09-CV-4432,
2011 WL 3235760, at *7 (E.D.N.Y. July 28, 2011) (holding that a constitutional seizure had not
occurred even though plaintiff had been required to appear on four separate occasions where that
requirement was “not accompanied by burdensome conditions” (internal quotation marks
omitted)); Rotenberg v. Town of Mamaroneck, No. 08-CV-4703, 2010 WL 3468051, at *3
(S.D.N.Y. Aug. 24, 2010) (applying Burg to conclude “that requiring plaintiffs to appear in court
twice in connection with the summons—for an initial appearance and a one-day trial—is not a
sufficient deprivation of liberty to rise to the level of a constitutional injury”); Manbeck v.
Micka, 640 F. Supp. 2d 351, 370 (S.D.N.Y. 2009) (finding that a seizure had not occurred where
plaintiff had not been detained at any point after she had been “issued appearance tickets to
appear in Town Justice Court to answer misdemeanor charges of violations of the Town’s
Zoning Laws” and had a civil jury trial on the alleged violations); Thomas v. City of New York,
No. 05-CV-6449, 2008 WL 3456173, at *5 (S.D.N.Y. Aug. 12, 2008) (“Plaintiff’s court
appearances alone do not rise to the level of an infringement upon Plaintiff’s Fourth Amendment
protection.”).
Plaintiff has not specified the number of court appearances he made in connection with
his trial, nor has he alleged whether there were any restrictions on his travel or on his liberty in
general.10 Given the paucity of Plaintiff’s allegations, the Court concludes that Plaintiff has not

10

Citing Murphy, Plaintiff also urges the Court to find the “unlawful restraint on
plaintiff’s use of his property” sufficient to satisfy the requisite Fourth Amendment liberty
deprivation for a Section 1983 malicious prosecution claim. (Pl.’s Mem. 21.) Plaintiff cites no
precedent for such a finding. While Plaintiff is correct that Murphy established that “[t]he
25

alleged sufficient facts to establish that he was seized under the Fourth Amendment.
Accordingly, Plaintiff’s federal malicious prosecution claim is dismissed.
c. Abuse of Process
A malicious abuse of process claim lies where a defendant: “(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.” See Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003)
(alterations omitted) (internal quotation marks omitted). Plaintiff has not adequately pled the
third element in his Amended Complaint, as he does not at all suggest a collateral objective
sought by Defendant. Rather, Plaintiff seems to rest his claim upon Defendant’s lack of
probable cause in initiating a legal process against him. Even assuming that Defendant lacked
probable cause, however, does not demonstrate that Defendant sought some collateral objective.
Id. at 77 (holding that the district court “erred in relying on a lack of probable cause to infer that,
in securing [plaintiff’s] arrest, defendants acted with malice or with a collateral objective that
was outside the legitimate ends of the legal process.”); cf. Reisner v. Stoller, 51 F. Supp. 2d 430,
456 (S.D.N.Y. 1999) (noting that collateral objective element was satisfied where a defendant
allegedly used an eviction warrant “in furtherance of [a] plot to steal [the plaintiff’s]
[p]remises”). Accordingly, Plaintiff’s abuse of process claim is dismissed. See Blair v. City of

liberty deprivations regulated by the Fourth Amendment are not limited to physical detention,”
classifying a single restriction on land use – that Plaintiff was not to rent his basement – as a
“seizure” seems too attenuated from even a generous reading of Murphy. Accordingly, the Court
declines to view the alleged restraint on Plaintiff’s ability to rent his basement as a Fourth
Amendment deprivation and instead considers it in the more appropriate rubric of Plaintiff’s due
process claims. Moreover, this cause of action would be time-barred for the reasons described
above.
26

New York, No. 03-CV-1485, 2009 WL 959547, at *10 (E.D.N.Y. Mar. 31, 2009) (granting
motion to dismiss a Section 1983 abuse of process claim where plaintiff failed to point to any
evidence that “g[a]ve rise to an inference of an illegitimate collateral objective”); Coyle v. Coyle,
302 F. Supp. 2d 3, 8-9 (E.D.N.Y. 2004) (granting motion to dismiss Section 1983 claims against
detective and a police officer where complaint did “not allege that [defendants] used the process
to obtain a collateral objective”).
4. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment requires the government to
treat similarly situated persons alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). A plaintiff, such as Dellutri, who does not claim to be a member of a
constitutionally protected class may bring an Equal Protection claim on one of two theories:
selective enforcement or “class of one.” See Cobb v. Pozzi, 363 F.3d 89, 109–10 (2d Cir. 2004).
Both of these theories require a plaintiff to show differential treatment from other “similarly
situated” individuals. See, e.g., Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d
Cir. 2010) (“class of one” (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per
curiam))); Zahra v. Town of Southold, 48 F.3d 674, 683-84 (2d Cir. 1995) (selective
enforcement).
The totality of Plaintiff’s allegations regarding his Equal Protection claim is a conclusory
assertion, without any detail, that Defendant differed in its “treatment to other similarly situated
property owners.” (SAC ¶ 32.) Because this conclusory statement offers no details regarding
other similarly situated individuals, this claim is dismissed. See Iqbal, 556 U.S. at 678 (2009)
(“[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”); Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 59
27

(2d Cir. 2010) (noting that plaintiffs failed to state viable equal protection claim where they
merely alleged less favorable treatment than “similarly situated” persons); Price v. Vill. of
Westhampton Beach, No. 11-CV-1811, 2012 WL 373338, at *4 (E.D.N.Y. Feb. 03, 2012)
(dismissing plaintiff’s equal protection claim where plaintiff did not sufficiently allege facts to
show that defendants singled plaintiff out on the basis of his religion); Parkash, 2011 WL
5142669, at *8 (dismissing a selective enforcement equal protection claim where the complaint
referenced “unspecified similarly situated persons without accompanying examples”). See
generally, Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 698
(S.D.N.Y. 2011) (“[W]ell-pled facts showing that the plaintiff has been treated differently from
others similarly situated remains an essential component of such a claim and conclusory
allegations of selective treatment are insufficient to state an equal protection claim.” (alterations
and internal quotation marks omitted)).
5. Due Process
Plaintiff also alleges substantive and procedural due process violations. These both fail
as a matter of law.11 “Substantive due process protects against government action that is
arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against
government action that is incorrect or ill advised.” Cunney v. Bd. of Trustees of the Vill. of
Grand View New York, 660 F.3d 612, 626 (2d Cir. 2011) (internal quotation marks omitted). “In
order to shock the conscience and trigger a violation of substantive due process, official conduct
must be outrageous and egregious under the circumstances; it must be truly brutal and offensive
to human dignity.” Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007) (internal quotation

11

As noted above, these claims also are time-barred.
28

marks and alteration omitted); Velez v. Levy, 401 F.3d 75, 93-94 (2d Cir. 2005) (noting that
actions which shock the conscience occur “largely in the context of excessive force claims” but
also unquestionably include other “malicious and sadistic abuses of power by government
officials, intended to oppress or to cause injury and designed for no legitimate government
purpose” (internal quotation marks omitted)); Schultz v. Inc. Vill. of Bellport, No. 08-CV-0930,
2010 WL 3924751, at *6 (E.D.N.Y. Sept. 30, 2010) (noting that the shock the conscience
standard “is not easily met; the plaintiff must show the government conduct was egregious and
outrageous, not merely incorrect or ill-advised.” (quoting Ferran v. Town of Nassau, 471 F.3d
363, 369-70 (2d Cir. 2006)) (internal quotation marks omitted)).
Plaintiff seems to base his substantive due process claim upon two grounds: 1) his
malicious prosecution and abuse of process claims and, 2) a deprivation of a “property right in
the premises.” (SAC ¶ 31.) As previously explained, the first rationale fails because Plaintiff
has not demonstrated a seizure under the Fourth Amendment. See Albright, 510 U.S. at 273
(holding that “[w]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that Amendment, not
the more generalized notion of substantive due process, must be the guide for analyzing these
claims”).
Regarding the deprivation of a property right, “a party asserting a deprivation of
substantive due process must first establish a valid property interest within the meaning of the
Constitution . . . [and] must demonstrate that the defendant acted in an arbitrary or irrational
manner in depriving him of that property interest.” See Crowley v. Courville, 76 F.3d 47, 52 (2d
Cir. 1996) (citation omitted). Assuming that Plaintiff can establish a property interest in his
certificate of occupancy, see Zahra, 48 F.3d at 681 (“[I]n certain circumstances, a party may
29

have a constitutionally protect[a]ble ‘property interest’ in a benefit that affects land use [such as
a] certificate of occupancy . . . .”), he must still meet the very difficult test of showing sufficient
arbitrariness. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (observing that “only
the most egregious official conduct can be said to be arbitrary in the constitutional sense”
(internal quotation marks omitted)); see also Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d
Cir. 1999) (“Substantive due process standards are violated only by conduct that is so
outrageously arbitrary as to constitute a gross abuse of governmental authority.”).12
The conduct alleged by Plaintiff simply does not rise to the level of being so outrageous
to violate Plaintiff’s substantive due process right. Plaintiff has not provided any support to
substantiate a theory of deliberate harm by Defendant. The notion that Defendant knew or
“should have known” that it lacked probable cause to commence and continue legal proceedings
for a minor building violation hardly qualifies as “outrageously arbitrary,” particularly in the
absence of any evidence of direct animus toward Plaintiff. “[N]egligently inflicted harm is
categorically beneath the threshold” for a substantive due process claim and even conduct
exhibiting “deliberate indifference . . . demands an exact analysis of circumstances before any
abuse of power is condemned as conscience-shocking.” Lombardi, 485 F.3d at 82 (internal
quotation marks omitted) (quoting Lewis, 523 U.S. at 849–50). Because Plaintiff has not pled
any facts which could merit such condemnation, his substantive due process claim is dismissed.
See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir. 2001) (noting that a
substantive due process claim did not lie where the alleged actions “did not transgress the ‘outer

12

The Court may properly decide whether alleged conduct can satisfy this standard at
the motion to dismiss stage. See Kuck v. Danaher, 600 F.3d 159, 167 (2d Cir. 2010) (affirming
dismissal of substantive due process claim because the deprivation alleged was “hardly
outrageous or shocking”).
30

limit’ of legitimate governmental action”); Catanzaro v. Weiden, 188 F.3d 56, 64 (2d Cir. 1999)
(finding that an order to demolish plaintiff’s buildings was nothing worse than “incorrect or illadvised” and did not rise to the level of a substantive due process violation); Longinott v.
Bouffard, No. 11-CV-4245, 2012 WL 1392579, at *5 (S.D.N.Y. Apr. 17, 2012) (“[T]he Supreme
Court has repeatedly emphasized that only the most egregious official conduct can be said to
violate substantive due process.” (citing Lewis, 523 U.S. at 846)); Yu Juan Sheng v. City of New
York, No. 05-CV-1118, 2009 WL 6871132, at *11 (E.D.N.Y. June 26, 2009) (finding claims
associated with the seizure of an automobile not to be arbitrary or conscience-shocking as a
matter of law), adopted by, 2010 WL 3744428 (E.D.N.Y. Sept. 20, 2010); see also Manza v.
Newhard, 470 Fed. App’x 6, 8-9 (2d Cir. 2012) (finding that the issuance of, and reliance upon,
a legal opinion which led to termination of property owner’s water service after a sixty-day
period to pursue legal remedies could not be said to shock the conscience).
Plaintiff also raises a procedural due process claim. Procedural “[d]ue process requires
only that the state afford a party threatened with a deprivation of property a process involving
pre-deprivation notice and access to a tribunal in which the merits of the deprivation may be
fairly challenged.” Chase Grp. Alliance LLC v. City of New York Dep’t of Fin., 620 F.3d 146,
151-52 (2d Cir. 2010); Leroy v. N.Y.C. Bd. of Elections, 793 F. Supp. 2d 533, 540-41 (E.D.N.Y.
2011) (same). Plaintiff here was afforded both notice and the opportunity for a trial and an
appeal.13 He also had avenues to challenge any deprivation of his property via an Article 78

13

To the extent that Plaintiff alleges that the trial itself was marked by judicial
irregularities, the Court has already explained that Defendant cannot be held liable for the acts of
a village judge during the trial. Alternatively, Plaintiff’s ability to contest, and prevail, in his
appeal afforded him a meaningful opportunity to fairly challenge any trial irregularities. “The
fact that a state proceeding is required by due process does not mean that Section 1983 provides
a remedy for every error committed in the state proceeding. So long as state appellate remedies
31

proceeding, thus thoroughly undercutting Plaintiff’s procedural due process claim. See Hellenic
Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (“[T]he
Due Process Clause of the Fourteenth Amendment is not violated when a state employee
intentionally deprives an individual of property or liberty, so long as the State provides a
meaningful postdeprivation remedy.”); Ziebell v. City of Milford, No. 08-CV-286, 2008 WL
4371971, at *4 (D. Conn. Sept. 18, 2008) (holding that because “plaintiffs obtained a timely
appeal of the [zoning board] decision to the Superior Court[,] [t]he availability of mechanisms
for appeal or post-deprivation remedies preclude[d] a later action of denial of procedural due
process” (citing Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988))); cf. Locurto v.
Safir, 264 F.3d 154, 175 (2d Cir. 2001) (“An Article 78 proceeding . . . constitutes a wholly
adequate post-deprivation hearing for due process purposes.”) (collecting cases); N.Y. State Nat’l
Org. for Women v. Pataki, 261 F.3d 156, 168 (2d Cir. 2001) (holding where plaintiffs “could
have brought an Article 78 proceeding to mandamus [New York State] Division [of Human
Rights] officials to proceed expeditiously,” there was no procedural violation); Cais v. Town of
East Haddam, No. 09-CV-1511, 2011 WL 2838170, at *5 (D. Conn. July 14, 2011) (holding that
“plaintiff’s opportunity to contest the propriety of [the fire chief’s] decision . . . through a
common law action in state court constitutes meaningful post-deprivation process”).
Accordingly, Plaintiff’s procedural due process claim is dismissed. See Hampton Bays
Connections, Inc. v. Duffy, 127 F. Supp. 2d 364, 381 (E.D.N.Y. 2001) (“The availability of such
recourse, as a matter of law, precludes finding that the plaintiffs have stated a claim for the
denial of their procedural due process rights.”).

are available, a Section 1983 action is not an available vehicle for relief.” Chase, 620 F.3d at
152-153.
32

6. Supplemental Jurisdiction
Defendant also seeks dismissal of Plaintiffs state law claims. However, this case
remains in its initial stages, and the Parties have not yet proceeded to discovery. As all of
Plaintiffs federal claims have been dismissed, the Court declines to exercise supplemental
jurisdiction over Plaintiffs state law claims. See 28 U.S.C. § 1367(c)(3) (permitting a district
court to decline to exercise supplemental jurisdiction over a claim if it has dismissed all claims
over which it has original jurisdiction); Kolari v. N.Y. -Presbyterian Hasp., 455 F .3d 118, 122 (2d
Cir. 2006) (noting that the decision whether to exercise supplemental jurisdiction lies within the
discretion ofthe district court); Middleton v. United States, No. 10-CV-6057, 2012 WL 394559,
at *1 (E.D.N.Y . Feb. 7, 2012) (declining to exercise supplemental jurisdiction over state claims,
because no federal claims survived a motion to dismiss); Williams v. Berkshire Fin. Grp., Inc.,
491 F. Supp. 2d 320,329 (E.D.N.Y. June 11, 2007) (declining supplemental jurisdiction where
no federal claims remained and case had not advanced beyond the pleading stage).
III. Conclusion

For the foregoing reasons, Defendant's motion to dismiss the Second Amended
Complaint is granted with respect to Plaintiffs federal law claims. The Clerk of the Court is
respectfully directed to terminate the motion (Dkt. No. 16) and close the case.
SO ORDERED.
Dated:

White Plains, New York
September~, 20 12

33

Service List (via ECF)
David A. Menken
Mitchell Ian Weingarden
Law Offices of Mitchell!. Weingarden, PLLC
81 Main Street
Suite 305
White Plains, NY 1060 1
(914)-686-4456
Counsel for Plaintiff
Kiera Meehan, Esq.
Steven C. Stern, Esq.
Sokoloff Stern LLP
355 Post Avenue, Suite 201
Westbury, NY 11590
[phone]
[phone]
[e-mail]
Counsel for Defendant