Opinion
02-CV-6205 CJS.
October 20, 2004
Thomas W. O'Connell, Esq., pro se Palmyra, New York, for the plaintiff.
Anthony M. Sortino, Esq., Gallo Iacovangelo, LLP, Rochester, New York, for defendants Town of Farmington, Daniel O'Bine, and Lewis Martz.
Melanie L. Sarkis, Esq., Trevett, Lenweaver Salzer, PC, Rochester, New York, for defendant Philip Sykes.
Henry R. Ippolito, Esq., Chamberlain D'Amanda Oppenheimer Greenfield LLP, Rochester, New York, for defendant Clifford Heberle.
DECISION AND ORDER
INTRODUCTION
This is an action alleging federal constitutional claims pursuant to 42 U.S.C. §§ 1983 and 1985, as well as state causes of action. Now before the Court are the following motions: 1) a motion [#49] by defendant Clifford Heberle for summary judgment on plaintiff's claims, and for summary judgment on Heberle's counter-claim for damages under New York State Civil Rights Law sections 70-a and 76-a.; 2) a motion [#81] by defendant Philip Sykes for summary judgment; 3) a motion [#83] by defendants Town of Farmington, Lewis Martz, and Daniel O'Bine to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative for summary judgment; and 4) a cross-motion [#87] by plaintiff to amend the amended complaint. For the reasons that follow, the action is dismissed in its entirety, with prejudice.
BACKGROUND
The facts of this action were previously set forth in detail in a Decision and Order of the Court [#41]. For purposes of resolving the pending motions, it is sufficient to note the following facts. Plaintiff Thomas W. O'Connell ("plaintiff"), an attorney proceeding pro se in this action, resides on a parcel of land ("the subject parcel") located in the Town of Farmington. Plaintiff's son, Sean O'Connell, is the record owner of the property, although plaintiff "occupies the premises as a beneficiary for life." Amended Complaint ¶ 15. The original defendants to this action, Barbara Bounds ("Bounds"), Lewis Martz ("Martz"), Daniel O'Bine ("O'Bine"), and Charles Cooksey ("Cooksey") were the Assessor, Highway Superintendent, Code Enforcement Officer, and Town Justice, respectively, for the Town of Farmington ("the Town"). Defendants Philip Sykes ("Sykes") and Clifford Heberle ("Heberle") are private citizens who each own real property adjacent to O'Connell in the Town of Farmington.
In 1987, plaintiff applied to the Town for a permit to operate a gravel pit on the subject parcel. Heberle and Sykes circulated a petition opposing the permit. According to plaintiff, the petition contained "fabrications." Plaintiff was nonetheless granted the permit.
In January 1997, plaintiff's son, Sean O'Connell, transferred 75 acres of land from the subject parcel to an individual named William Parrot ("Parrot"). Since the parcel was landlocked, the deed also granted Parrot an 80' easement along the subject parcel, directly adjacent to Syke's property line, to allow access to Yellow Mills Road. On March 4, 1997, Martha Powers ("Powers"), who at that time was Code Enforcement Officer for the Town, wrote to Sean O'Connell and notified him that the transfer to Parrot constituted an illegal subdivision under the Town Code. Powers advised Sean O'Connell that the subdivision required the approval of the Planning Board, and that a variance might be required since the Parrot lot did not have the required amount of road frontage. However, it does not appear that Sean O'Connell subsequently obtained either planning board approval or a variance.
In or about early 2001, defendant Martz, the Town Highway Superintendent, became aware that plaintiff was digging a "drainage ditch" along Yellow Mills Road in the Town of Farmington. Plaintiff speculates that "[e]ither Sykes or Heberle, or both, on seeing the excavation . . . sought out [Martz] to stop plaintiff's operation," however he has no proof that this occurred. Martz directed plaintiff to stop the excavation, because it was within the Town's right of way. In that regard, Martz advised plaintiff that the road was a "four rod road," with a 66' right of way. According to plaintiff, at that time Martz also produced a map indicating that the road was a "four-rod road." The record further indicates that in January 2001, Martz had been advised by an engineer with the Ontario County Public Works Division that the road had a "four-rod (66') right of way."
Plaintiff contends that on another occasion, the date of which is not given, he was "grading" property belonging to his son along Yellow Mills Road when Heberle inform ed Martz that the grading was interfering with two drainage culverts, when Martz threatened to issue a stop work order. Plaintiff contends that the culverts were "abandoned" and "non-functioning," but that in any event, he spent "$2,000.00 for a drainage line from the culvert pipes . . . under the newly graded ground." Plaintiff again speculates that it was Heberle who inform ed Martz about the grading activitiy. On another occasion, plaintiff contends that he was using a bulldozer to clear a "lane way," when Heberle objected that the lane encroached on his property. Plaintiff states that on other occasions, when he would lawfully burn brush on his property, Heberle would complain to the local fire department. However, Heberle denies ever contacting the fire department, and O'Connell has no proof to the contrary.
Some time after Martz directed plaintiff to stop digging the ditch, O'Bine, the Town's Code Enforcement Officer, issued plaintiff a citation for excavating within the right of way, and a court appearance was scheduled for August 6, 2001 in Farmington Town Court before defendant Justice Cooksey. In a letter to O'Bine, plaintiff denied that his excavation fell within the Town's right of way, because, he claimed, Yellow Mills Road was only a "two rod road," with a 33' wide right of way, extending 16½ each way from the center line of the road. On this basis, plaintiff denied that he was within the Town's right of way, since he was digging the ditch more than 16½ from the centerline. Significantly, in that same letter, plaintiff also informed O'Bine as follows: " I have owned and lived upon the property on Yellow Mills Road since 1948, many, many years before you were on the scene." O'Connell letter dated February 1, 2001(Emphasis added).
Some time prior to April 1997, plaintiff began constructing a dirt and gravel road along the 80' easement granted to Parrot, immediately adjacent to Syke's property line. Prior to this construction, ground water from Syke's property drained onto plaintiff's land and into a drainage culvert. However, in building the road, plaintiff raised the grade of his property and blocked the drainage culvert, causing water to accumulate on Sykes's property. Photographs submitted by Sykes show that when such water accumulated, it did so immediately adjacent to the newly-constructed driveway. On or about April 27, 2001, Sykes wrote to O'Bine, complaining that the new driveway was causing flooding on his property, and requesting that the Town require plaintiff to remedy the situation by installing a drainage culvert.
On May 21, 2001, O'Bine wrote to plaintiff as follows:
This letter serves as a NOTICE OF VIOLATION that the following Town of Farmington Codes [sic] have been violated:
1. ILLEGAL SUBDIVISION OF LAND
On February 6, 2001, you filed a correction map of an illegal subdivision at the Ontario County Real Property Tax Services office that you created in January of 1997. . . . Martha Powers, the previous Town of Farmington Code Enforcement Officer, sent you a notice on March 4, 1997 requesting that you contact the Town of Farmington Development Office to make application to the Town Planning Board regarding this new illegal tax parcel. Section 29.02 of the Town of Farmington Development Regulations require[s] an application to the Farmington Planning Board for Site Plan Approval. There is no record of a reply or application to the Farmington Planning Board by you or property representative. This property may NOT be developed in any way until approvals have been granted by the Town of Farmington.
2. ILLEGAL FLOODING OF NEIGHBORS LAND
Mr. Philip Sykes . . . has submitted to this office a record of events that have taken place on your parcel. . . . This record indicates that you have created a flooding situation on Mr. Sykes' property due to the construction of a gravel road on your property. You are in VIOLATION of the following Town Codes: a. Chapter 13, Section 13-2 "Highway Excavation Permit Required" — This Code requires a permit to be issued by the Town Highway and Water and Sewer Superintendents for any driveway excavation cut in a Town or County road Right of Way. This permit was not acquired.
b. Section 36-53 B "Lot Grades" — "The ground grade of any lot upon which new construction or earth movement is to be conducted shall be related to existing grades and drainage systems so as to provide adequate drainage and not jeopardize such existing drainage systems." You have constructed a driveway and provided no means for natural water movement from property to property, i.e. drainage culvert or swale. Mr. Sykes contends that his property has been flooded by the dam you have created with this new driveway. It is my intention to have the Town Engineer give a report on the construction of this driveway to see if you have violated this Code.
Please contact this office as soon as possible to discuss these code violations, but no later than June 1, 2001. Failure to reply to this notice will require that an APPEARANCE TICKET be issued for said violations.
Sykes Disclosure [#23]. On May 24, 2001, plaintiff responded to O'Bine's notice, arguing that Syke's property was a "wetland," and therefore was supposed to be flooded. Plaintiff further denied violating the code with regard to the alleged illegal subdivision and contested the need for a driveway variance. In that letter, plaintiff did not, however, deny that he owned the subject property.
On June 12, 2001, in response to an inquiry by O'Bine, the New York Department of Environmental Conservation wrote to him, and advised him that, contrary to plaintiff's assertions, the portion of Syke's land being affected by plaintiff's road was not a protected wetland. See, Pl. Aff. [#39]. In the letter, Arthur C. Kirsch ("Kirsch"), Senior Wildlife Biologist for the New York State Department of Environmental Conservation DEC, stated, in relevant part:
The enclosed regulatory map shows the location of the western limit of [the] CS-1 [wetland area] as approximately 300 feet east of the intersection of Rushmore and Yellow Mills Roads. Although the open field between Yellow Mills Road and the wood's edge appears to have gotten wetter over the last several years, the Department has not, as yet, taken steps to officially expand the boundary of CS-1. We do reserve the right, however, to do so, if the field continues to become wetter and makes the transition from upland to wetland.
* * *
Any alleged blocking of drainage cause by the construction of the gravel road on the property immediately to the north is not currently within the scope of DEC jurisdiction, as I found the road to be located just outside of the wetland's 100-foot adjacent area during my first visit several years ago.See, Plaintiff's "Further Affidavit in Support of Plaintiff's Motion for Production of Documents" [#39].
Some time between April and July 23, 2001, plaintiff moved the ditch that he had been digging back to comply with a 66' right of way. On July 23, 2001, plaintiff wrote to the Town Attorney, Jeffrey D. Graff, Esq. ("Graff"), and informed him of that fact. In his letter to Graff, plaintiff stated his understanding of the legal authority upon which Martz and O'Bine were relying:
The town officers are relying on some sort of claimed legislative enactment automatically making dedicated or undedicated town roads without measured dimensions as becoming 66' right of way (33' from the center line on one side) This legislation, in all probability, is unconstitutional because it is a taking of adjoining land owners' property without due process of law and without compensation.
According to plaintiff, upon learning that he had complied with the Town's claimed right of way, Graff advised him that the charge lodged by O'Bine would be dismissed, and that he did not need to attend court on August 6th. Judge Cooksey's office nonetheless directed plaintiff to appear in court on August 6th as scheduled. On that date, plaintiff appeared before Cooksey, and related that Graff had advised him that the Town was not going to pursue the charge. However Martz, purporting to act on behalf of the Town, indicated that he was ready to proceed against plaintiff. According to plaintiff, Cooksey then indicated that he was conducting an "informal hearing" concerning the matter. Plaintiff alleges that subsequently, Cooksey "never made a ruling or decision on the charges," however, it is undisputed that the Town never attempted to pursue the charge further.
Following the Court appearance on August 6, 2001, O'Bine served plaintiff with two new citations, one for creating an illegal subdivision, and one for flooding Syke's property. Both matters were assigned to Judge Cooksey. Plaintiff filed a motion to dismiss the charges, supported by an affirmation in which he alleged, inter alia, that, in issuing the appearance ticket regarding the alleged flooding of Syke's property, O'Bine had "misconstrue[d] the correspondence from the New York State Department of Environmental Conservation ("N.Y.D.E.C.") dated June 12, 2001" concerning whether or not Syke's property was a protected wetland. Pl. Stmt. [#20]. Cooksey denied plaintiff's motion to dismiss, and apparently scheduled a trial of the charges. On April 11, 2002, plaintiff commenced the instant action, naming Cooksey as one of the defendants. Cooksey eventually recused himself, and the charges against plaintiff were subsequently assigned to be heard before a Judge in the Town Court in the Town of Manchester. However, the Town withdrew the charge of creating an illegal subdivision after it realized that Sean O'Connell, not plaintiff, was the record owner of the property. Following a bench trial on the charge of illegal flooding, plaintiff was found not guilty.
See, Town Defendants' Statement of Facts dated July 1, 2004, ¶ 15; Sarkis Aff. dated July 1, 2004, ¶ 13; Town Defendants' Memo of Law [#37], p. 5; O'Connell Aff. [#43], p. 3.
Plaintiff commenced this action on April 11, 2002, asserting claims for violation of his 14th Amendment Equal Protection Rights under 42 U.S.C. §§ 1983 and 1985, as well as claims for false arrest, malicious prosecution, and prima facie tort, under New York State Law. As for defendant Bounds, plaintiff alleged that, over a period of several years, she improperly over-assessed the value of his residence for tax purposes. Plaintiff further alleged that some conspiracy existed between the defendants, whereby Sykes and Heberle were given lower tax assessments in exchange for making complaints about plaintiff to the Town. Plaintiff's original complaint alleged: 1) "That the arrests [ sic] and arraignments of the plaintiff were illegal and made without any justification."; 2) "That by reason of the defendants' conspiracy . . . and the exaggerated assessments by Barbara Bounds, plaintiff has been damaged. . . ."; 3) "defendants have denied the plaintiff equal protection of the law in violation of the 14th amendment to the United States Constitution."; 4) "defendants have falsely arrested plaintiff"; 5) "defendants have maliciously prosecuted plaintiff"; and 6) "defendants have committed prima facie torts against the plaintiff." On September 19, 2002, plaintiff filed an Amended Complaint [#14], which is now the operative complaint in this action. The Amended Complaint reiterates most of the claims in the original complaint, and adds a claim for conspiracy pursuant to 42 U.S.C. § 1985(3).
On March 31, 2003, plaintiff filed a motion [#27] for an order directing Bounds to produce certain tax records. On April 17, 2003, the Town and Bounds responded to plaintiff's motion and sought a protective order, and further, moved to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6). The motion alleged that Bounds was entitled to qualified immunity, and that plaintiff had failed to exhaust his administrative remedies concerning the tax claims, because he did not challenge his real property tax assessments pursuant to New York Real Property Tax Law ("RPTL") Article 7. On July 31, 2003, Cooksey, Martz, and O'Bine joined in the motion to dismiss, on the grounds of absolute judicial immunity as to Cooksey, and on the grounds of qualified immunity as to Martz and O'Bine. By Decision and Order filed on January 21, 2004, the Court dismissed the complaint as against Bounds and Cooksey, and also dismissed all claims against the Town pertaining to taxes or arising from the alleged actions of Bounds or Cooksey. On February 3, 2004, plaintiff filed a motion for reconsideration [#42], which the Court denied.
See, Decision and Order [#44] filed on February 20, 2004.
On June 30, 2004, Heberle filed a motion for summary judgment [#49], dismissing the complaint against him, and granting him summary judgment on his counter-claim brought pursuant to New York State Civil Rights Law § 76-a. On July 1, 2004, Sykes filed a motion for summary judgment [#81]. Also on July 1, 2004, the Town of Farmington, O'Bine, and Martz filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative for summary judgment [#83]. On August 2, 2004, plaintiff filed a response to the motions, as well as a cross-motion to further amend the complaint [#87]. On August 16, 2004, Sykes filed an opposition to plaintiff's cross-motion. On August 20, 2004, the Town of Farmington, Martz, and O'Bine filed a reply and opposition to plaintiff's cross-motion.
By Order filed and served on July 28, 2004, the undersigned scheduled oral argument in this matter for September 16, 2004. On that day at the scheduled time, counsel for all defendants, as well as defendant Clifford Heberle and his wife, appeared in court. Plaintiff, who had not notified the Court or opposing counsel that he would not be appearing, did not appear. At that time, the Court called plaintiff by telephone and spoke with him. Plaintiff advised the court that he had not appeared because he was ill. The Court advised plaintiff that his failure to notify the Court of his intention not to appear was inappropriate, and that the Court would consider an application for attorney's fees from defendants' counsel. The Court further advised plaintiff orally that argument would be rescheduled, and that he would be notified of the date and time. Subsequently, the Court issued an Order rescheduling oral argument for October 4, 2004, at 9:00 a.m. The Court served the Order on plaintiff by both regular mail and certified mail. In addition to informing plaintiff of the new date and time for oral argument, the Order included the following statement: "ORDERED, that any party's failure to appear at that time, either in person or by counsel, may result in sanctions being imposed against that party, up to an including dismissal of the action with prejudice." Amended Motion Scheduling Order [#99].
On October 4, 2004, at approximately 9:10 a.m., counsel for the defendants, as well as Mr. Heberle, were present in the courtroom, but plaintiff was not. At that time, the Court called plaintiff's home telephone number, and after plaintiff did not answer, the Court left a message on plaintiff's answering machine. The Court then adjourned the matter to 9:30 to allow for the possibility that plaintiff was delayed in traffic. At approximately 9:40 a.m., seeing that plaintiff still had not appeared, the Court announced that it would dismiss plaintiff's action with prejudice, as a result of his unexcused failure to appear. At that time, Heberle's counsel indicated that in light of the Court's decision, Heberle was withdrawing his motion for summary judgment on the counterclaim.
Later that same day, the Court received a fax letter, on stationery bearing the heading, "Thomas W. O'Connell Attorney at Law," signed by a Marlene Northrup. Ms. Northrup, whose relationship to the plaintiff is unknown, indicated that plaintiff was sleeping, and that he "apparently . . . had taken additional sleeping pills at about 5 a.m. in order to get some sleep because of his pemphigoid condition," although it is unclear how Northrup would draw such a conclusion, since plaintiff was supposedly asleep at the time she wrote the letter. In any event, Northrup further stated:
Tom never did receive any notification of the hearing today. I, myself, just called the Palmyra Post Office and talked to the clerk named Jan and also the Post Master and they told me that there is a certified letter sitting there from the Court, which they were about to return to you after 15 days.
Upon receipt of this fax, the Court scheduled the matter for another appearance on the following day, October 5, 2004. The Court also had its secretary check with both the Court Clerk's office and the Palmyra Post Office. These inquiries confirmed the following facts: 1) the Court sent the Order to plaintiff by certified mail on or about September 21, 2004, and by regular mail on September 24, 2004; 2) the post office sent plaintiff multiple notifications that a certified letter was being held for him at the post office; and 3) plaintiff did not need to leave his home in order to receive the certified letter, since the notification cards from the post office advised plaintiff that, by signing and returning the card, he could have the certified letter delivered to his home.
On October 5, 2004, plaintiff and counsel for defendants again appeared before the undersigned. When asked by the Court to explain his failure to appear the previous day, plaintiff began by stating that he had not been concerned about the certified letter notice, since he assumed that the certified letter concerned some other legal matter which he was ignoring. Plaintiff later stated that he had only become aware of the notification card from the post office on Sunday, October 3, 2004, when he was going through some mail.
ANALYSIS
Plaintiff's action is dismissed with prejudice due to his failure, on two consecutive occasions, to appear before the Court as directed, pursuant to Rules 16(f) and 37(b)(2)(C) of the Federal Rules of Civil Procedure. In deciding to impose this sanction, the Court has considered many factors, including the fact that plaintiff is an experienced attorney who has now twice wasted the valuable time of three different opposing counsel, not to mention the Court's time. Plaintiff failed to appear on September 16, 2004, without making any attempt to notify either the Court or opposing counsel in advance. As for the appearance on October 4, 2004, the Court finds that plaintiff's failure to appear was willful, after plaintiff was specifically warned by the Court that his failure to appear could result in the dismissal of the action with prejudice. The Court finds that plaintiff received actual notice of the appearance by regular mail, notwithstanding his willful failure to have the certified letter delivered. Moreover, based upon the entire record in this case, the Court does not believe that any lesser sanction would deter such conduct in the future. In that regard, and as discussed more fully below, the Court believes that this action is so lacking in merit that it appears plaintiff brought it merely to harass the defendants. In other words, inconveniencing the defendants, and not obtaining a victory on the merits, seems to be plaintiff's primary objective.
Alternatively, considering the motions on the merits, the Court grants defendants' motions, except Heberle's motion for summary judgment on his counterclaim, and denies plaintiff's motion to amend.
Plaintiff's Motion to Amend the Complaint
Plaintiff seeks leave to amend the complaint to add a new cause of action for "abuse of process" against Sykes and O'Bine, arising from the issuance of the citations for creation of an illegal subdivision and illegal flooding. "An abuse of process claim has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective." O'Bradovich v. Village of Tuckahoe, 325 F.Supp.2d 413, 434 (S.D.N.Y. 2004). Motions to amend pleadings are governed by Rule 15(a) of the Federal Rules of Civil Procedure. It is well settled that "[l]eave to file an amended complaint shall be freely given when justice so requires, Fed.R.Civ.P. 15(a), and should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility." Milanese v. Rust-Oleum Corp. 244 F.3d 104, 110 (2d Cir. 2001) ( quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); internal quotation marks omitted).
Plaintiff's motion is denied, since the Court finds that plaintiff has unduly delayed bringing the motion until more than two years into this litigation, after the completion of discovery. Plaintiff states, without explanation, that he wants to amend the complaint "to conform to the evidence." However, the Court fails to see any reason why the requested amendment could not have been sought two years ago. Further, the Court finds that defendants would be prejudiced by the amendment, since discovery is completed and dispositive motions have been filed. The proposed amendment is also futile, as plaintiff has failed to produce any evidence that the defendants intended to harm him without justification or that they were seeking some collateral objective.
Heberle's Motion for Summary Judgment Dismissing the Complaint
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been established, the burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).
Plaintiff is asserting claims for violation of his 14th Amendment Equal Protection Rights under 42 U.S.C. §§ 1983 and 1985, as well as claims under New York State law for false arrest, malicious prosecution, and prima facie tort.
Section 1983 imposes liability on anyone who, under color of state law, deprives a person of "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983; see also Blessing v. Freestone, 520 U.S. 329, 340 (1997). . . . The elements of a Section 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; and (3) an act in furtherance of the conspiracy; (4) whereby a person is deprived of any right of a citizen of the United States. See . . . Mian v. Donaldson, Lufkin Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).Judge v. New York City Transit Auth., No. 99 Civ. 0927 (JGK), 1999 WL 1267462 at *3, n. 3 (S.D.N.Y. Dec. 29, 1999) (citation omitted). As for the equal protection claim,
[t]he equal protection clause directs state actors to treat similarly situated people alike. Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). . . . An equal protection claim requires "purposeful discrimination, directed at an identifiable or suspect class." Id. (internal citation omitted). . . . It is possible for [a plaintiff] to allege a `class of one,' where the plaintiff alleges that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Under the "class of one" theory of equal protection, a plaintiff is required to show either that there was no rational basis for the unequal treatment received or that the denial of the application was motivated by animus. Harlen Assoc. v. Inc. Village of Mineola, 273 F.3d 494, 500 (2d Cir. 2001)Foy v. City of New York, No. 03 Civ. 7318(HB), 2004 WL 2033074 at *3 (S.D.N.Y. Sep. 10, 2004) (some internal quotation marks omitted).
As for the false arrest and malicious prosecution claims,
[i]n order to establish a claim of false arrest or false imprisonment, a plaintiff must prove that: (1) the defendants intended to confine plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991). In order to state a claim for malicious prosecution, a plaintiff must establish the following elements: (1) the defendant either commenced or continued a criminal proceeding against him; (2) the proceeding terminated in plaintiff's favor; (3) there was no probable cause for the criminal proceeding; and (4) the criminal proceeding was instituted with actual malice. Gaskins [ v. City of New York, 03 Civ. 0605], 2004 U.S. Dist. LEXIS 15424, at *9 [(S.D.N.Y. Aug. 5, 2004)] ( citing DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir. 1996)). Therefore, "[a] finding of probable cause is a complete defense to both an action for false arrest [and false imprisonment] and an action for malicious prosecution." Gaskins [ v. City of New York], 2004 U.S. Dist. LEXIS 15424, at *9 (citation omitted).
In general, probable cause exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). "Whether or not an officer had probable cause to make an arrest is a question of what the officer knew at the time of the arrest and whether she or he was reasonable in relying on that knowledge." Gaskins, 2004 U.S. Dist. LEXIS 15424, at *10 (citation omitted).Berdugo v. City of New York, No. 03 Civ. 7319 (HB), 2004 WL 1900357 at *2-3 (S.D.N.Y. Aug. 24, 2004) (some internal quotation marks omitted). Moreover,
it is well settled in New York that a civilian complainant will not be held liable for false arrest or malicious prosecution merely for "seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed."Ellison v. Sobeck-Lynch, No. 97-CV-0424E(F), 2000 WL 1047798 at *3 (W.D.N.Y. Jul. 26, 2000) ( quoting Du Chateau v. Metro-North Commuter R.R. Co., 688 N.Y.S.2d 12, 15 (1st Dep't 1999)); see also, Colon v. Wal-Mart Stores, Inc., 182 Misc.2d 921, 926, 703 N.Y.S.2d 863, 867 (N.Y.Sup.,1999) ("Merely providing information to the police, even when subsequently found to be in error, does not subject the informant to liability for false arrest unless he or she instigated the plaintiff's arrest or persuaded the police to arrest plaintiff.").
With regard to the required element of "confinement" in a false arrest claim, a plaintiff must actually have been confined, such that his liberty of movement was significantly limited. Colon v. Wal-Mart Stores, Inc., 182 Misc.2d at 926, 703 N.Y.S.2d at 867 ("[A]s it is undisputed that plaintiffs were not taken into custody and as the request to produce the receipt did not subject them to police intrusion of such magnitude that their liberty of movement was significantly interrupted, plaintiffs cannot establish the requisite element of confinement."); Secard v. Dep't of Soc. Servs. of County of Nassau, 204 A.D.2d 425, 426, 612 N.Y.S.2d 167, 168 (2d Dept. 1994) ("[D]efendants neither intended to confine [plaintiff] nor actually confined him. Accordingly, insofar as the plaintiff's claim seeks damages against the defendants predicated upon the tort of false arrest and imprisonment, it must be dismissed.")
The elements of a claim for prima facie tort under New York law are: "(1) the intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawful." DeMicco Bros., Inc. v. Consol. Edison Co. of New York, Inc., 779 N.Y.S.2d 10, 11-12 (1st Dept. 2004). Moreover, as to intent,
there is no recovery in prima facie tort unless malevolence is the sole motive for defendant's otherwise lawful act or, in Justice Holmes' characteristically colorful language, unless defendant acts from "disinterested malevolence" ( American Bank Trust Co. v. Federal Bank, 256 U.S. 350, 358, 41 S.Ct. 499, 500, 65 L.Ed. 983) by which is meant that the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another.Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 721 (1983) (citations and internal quotation marks omitted). The term "special damages" refers to "an actual, definite loss, capable of proof, and of measurement with approximate accuracy." Horton v. State, 50 Misc.2d 1017, 1022, 272 N.Y.S.2d 312, 318 (N.Y.Ct.Cl. 1966). A plaintiff's unsupported estimates are insufficient to create a triable issue of fact as to the existence of special damages. See, Shaitelman v. Phoenix Mut. Life Ins. Co., 517 F.Supp. 21, 25 (S.D.N.Y. 1981).
Applying the legal principles set forth above, it is clear that Heberle is entitled to summary judgment on plaintiff's claims against him. Heberle supports his motion with an affidavit in which he denies all of plaintiff's allegations. More specifically, he denies that he engaged in any conspiracy to violate plaintiff's constitutional rights or that he committed any torts against plaintiff, and in that regard, he further denies that he had anything to do with the various legal proceedings that were initiated against plaintiff by the Town of Farmington. Rather, Heberle contends, it is he and his wife who have been harassed by plaintiff at various times over several decades. Heberle further notes, correctly, that many of the matters to which plaintiff alludes are time-barred under 42 U.S.C. § 1983's three-year statute of limitations.
Heberle has also submitted other evidentiary proof in admissible form, including deposition testimony from Martz and Bounds, both of whom indicate that Heberle was not involved in the issuance of the various citations by the Town, or in any conspiracy to violate plaintiff's rights. Heberle has also submitted plaintiff's interrogatory responses and deposition testimony, which indicate that plaintiff's charges against Heberle are based on nothing more than conjecture. For example, while plaintiff alleged in his interrogatory responses that Heberle had notified the Town about the illegal transfer of land to Parrot, subsequently at his deposition plaintiff admitted, "I don't know if he [Heberle] had anything to do with it." O'Connell Dep., p. 59. And with regard to the citation concerning plaintiff allegedly digging a ditch within the Town's right of way, plaintiff testified that his belief that Heberle had gotten the Town involved was based only on the fact that he had seen Heberle talking with Martz. Id. However, Martz testified that he was already aware of plaintiff's activities when he spoke with Heberle, and that Heberle had nothing to do with the action subsequently taken by the Town. With regard to the citation for the flooding of Syke's property, plaintiff testified that he believed that Heberle and Sykes had conspired to have the citation issued, merely because they had worked together to circulate a petition against plaintiff's proposed gravel pit project fourteen years earlier. Id. at pp. 59-61.
In response to Heberle's summary judgment motion, plaintiff offers his conclusion that Heberle "stalks" him by using the public highway to drive past plaintiff's house on a regular basis. In short, plaintiff has produced no evidentiary proof in admissible form to defeat Heberle's motion, let alone any good faith basis for the very serious charges that he has leveled at Mr. Heberle. Accordingly, Heberle's motion for summary judgment is granted.
Heberle's Motion for Summary Judgment on his Counterclaim
Heberle withdrew this claim based upon the Court's expressed intention to dismiss the action. However, the Court notes that it would have denied the counterclaim on the merits in any event. Heberle's counterclaim is brought pursuant to New York Civil Rights Law sections 70-a and 76-a. Section 70-a, entitled "Actions involving public petition and participation; recover of damages," provides that "[a] defendant in an action involving public petition and participation" may recover damages, including costs and attorney's fees, against any person commencing such an action, where the action "was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law." New York Civil Rights Law § 70-a (McKinney 2004). An "action involving public petition and participation" is defined as "an action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission." Heberle contends that plaintiff's lawsuit fits that description, since, "[t]here can be no doubt that O'Connell's § 1983 action was brought against Heberle, in part, because Heberle opposed O'Connell's application in 1986 and 1987 when O'Connell sought a special use permit from the Town of Farmington to operate a gravel pit." However, even assuming that to be true, the Court finds that New York Civil Rights Law section 70-a is inapplicable here, since plaintiff's underlying action does not fit the statutory definition of an "action involving public petition and participation." Although he was at one time, plaintiff is not presently a "public applicant or permittee." Moreover, the Court does not believe that the present lawsuit is "materially related" to the parties' fourteen-year-old dispute over the gravel pit.
Sykes's Motion for Summary Judgment
Like Heberle, Sykes maintains that he did nothing to violate plaintiff's constitutional rights and committed no torts against him. In that regard, Sykes denies that he had anything to do with the Town's decision to issue citations against plaintiff concerning the ditch being dug in the Town's right of way or the illegal subdivision of the parcel conveyed to Parrot. As for the citation alleging that plaintiff illegally flooded Sykes's property, Sykes acknowledges that he wrote a letter to O'Bine concerning the matter, but denies that he asked to have plaintiff charged with a code violation. Indeed, Sykes's letter to O'Bine requested only that the Town require plaintiff to "install a culvert under the driveway to provide access to the original drainage ditch, or complete the new drainage ditch along Yellow Mills Road (on his property) and provide access to a new culvert under the driveway at this point."
Although Sykes's April 27, 2001, letter to O'Bine refers to plaintiff's ditch, the Town was already taking action against plaintiff regarding the ditch at that time.
In response to Sykes's motion, plaintiff has not produced any evidentiary proof in admissible form to support the claims in the Amended Complaint or to refute Sykes's affidavit. Instead, plaintiff has submitted pages of irrelevant allegations concerning events which allegedly occurred in June and August of 2003, more than a year after this action was commenced, in which Sykes and a town official named Teed supposedly urged an officer of the New York State Department of Environmental Conservation to issue a citation for dumping gravel into a protected wetland to a steam shovel operator performing work on plaintiff's land. Nor has plaintiff produced any evidentiary proof to support his claim that Sykes's property was a wetland and therefore properly flooded, or that the drainage pipe that had previously drained Syke's property was somehow illegal. Accordingly, Sykes's motion for summary judgment is granted.
The Town's, O'Bine's, and Martz's Motion for Summary Judgment
Defendants have moved for moved both to dismiss for failure to state a claim and for summary judgment. However, pursuant to Rule 12(b), the Court will treat this motion as one for summary judgment.
These defendants contend that they are entitled to judgment on all claims, because they did not violate plaintiff's equal protection rights, because plaintiff was never "arrested," and because even if he was, they had probable cause for their actions. The Court agrees that there is no evidence that either Martz or O'Bine violated plaintiff's 14th Amendment equal protection rights. In this regard, the record contains no evidence that the defendants acted arbitrarily toward plaintiff or treated him any differently than any other similarly situated town resident. Because there was no constitutional violation, the Court need not discuss the issue of qualified immunity.
Turning to the false arrest and malicious prosecution claims, the Court agrees that Martz and O'Bine had probable cause for their actions concerning the ditch right-of-way. To the extent that plaintiff blames Martz for the issuance of the citation by O'Bine, the record indicates that Martz was relying upon a map when he determined that plaintiff was digging within the Town's right of way. The record further indicates that in January 2001, Martz consulted with the Ontario County Public Works Division regarding the width of the right of way, and was advised that it was a "four-rod (66') right-of-way," contrary to plaintiff's unsupported assertion that it was only a "two-rod road." Moreover, before issuing plaintiff a citation for flooding Sykes's property, O'Bine consulted with the Town's engineering firm, which advised him that plaintiff's "construction of the gravel road [w]as block[ing] the natural drainage course causing backup of water onto Mr. Sykes's property." Finally, with regard to the illegal subdivision, the record indicates that the subdivision of the O'Connell parcel to Parrot was illegal, since no subdivision approval was obtained. Moreover, although the citation was mistakenly issued to plaintiff instead of his son, plaintiff had informed O'Bine that he owned the property shortly before O'Bine issued the citation. Moreover, the illegal subdivision charge was withdrawn prior to trial once the error was discovered. Accordingly, Martz and O'Bine are entitled to summary judgment on the false arrest malicious prosecution claims. Finally, as with Heberle and Sykes, there is no support for plaintiff's prima facie tort claim. Apart from failing to come forward with proof that defendants committed such a tort, plaintiff has also failed to demonstrate that he suffered any special damages.
CONCLUSION
Defendants' motions [#49] [#81] [#83] are granted, except for that portion of Heberle's motion seeking summary judgment on his counterclaim, which is withdrawn. Plaintiff's cross-motion [#87] to amend the complaint is denied. The action is dismissed in its entirety, with prejudice.
SO ORDERED.