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LAVERNE v. CORNING

May 21, 1974

ERWINE LAVERNE and ESTELLE LAVERNE, Plaintiffs,
v.
HOWARD J. CORNING, JR., et al., Defendants



The opinion of the court was delivered by: KNAPP

KNAPP, District Judge.

 The events underlying this civil rights case had their origin twenty years ago. Since then something like a dozen judicial decisions have been entered on various aspects of the case. Village of Laurel Hollow v. Laverne Originals, Inc. (2d Dept. 1954) 283 A.D. 795, 128 N.Y.S. 2d 326, aff'd, 307 N.Y. 784, 121 N.E. 2d 618; People v. Laverne (1964) 14 N.Y. 2d 304, 251 N.Y.S. 2d 452, 200 N.E.2d 441; Village of Laurel Hollow v. Laverne, Inc. (Nassau County 1964) 43 Misc. 2d 248, 250 N.Y.S. 2d 951; (2d Dept. 1965) 24 A.D.2d 615, 262 N.Y.S. 2d 622; Village of Laurel Hollow v. Laverne Originals, Inc. (2d Dept. 1965) 24 A.D.2d 616, 262 N.Y.S. 2d 625; aff'd, 17 N.Y. 2d 900, 271 N.Y.S. 2d 996, 218 N.E.2d 703; Laverne v. Corning et al. (2d Dept. 1965) 24 A.D.2d 602, 262 N.Y.S. 2d 711; appeal dismissed, 16 N.Y. 2d 866, 264 N.Y.S. 2d 103, 211 N.E.2d 523; Laverne v. Inc. Village of Laurel Hollow (2d Dept. 1965) 24 A.D.2d 842, 263 N.Y.S. 2d 695; Laverne v. Inc. Village of Laurel Hollow et al., (2d Dept. 1964) 22 A.D.2d 826, 255 N.Y.S. 2d 146; 25 A.D.2d 564, 267 N.Y.S. 2d 756, aff'd, 18 N.Y. 2d 635, 272 N.Y.S. 2d 780, 219 N.E.2d 294, appeal dismissed, 386 U.S. 682, 87 S. Ct. 1324, 18 L. Ed. 2d 403; Laverne v. Corning (S.D.N.Y. 1970) 316 F. Supp. 629; Laverne v. Corning (S.D.N.Y. 1972) 354 F. Supp. 1402. It is therefore my fond hope now to finally (naturally with the exception of an appeal) dispose of the matter.

 The procedural history of the case can be briefly related:

 In 1954 the Village of Laurel Hollow brought an action against Erwine and Estelle Laverne (or, more accurately, against their wholly-owned corporation) to enjoin the Lavernes from using property located in the Village in violation of a zoning ordinance that forbade commercial use. The Village alleged that wallpaper was being manufactured on the Laverne property. The Lavernes apparently did not dispute the allegation, but instead bottomed their defense on the doctrine of prior nonconforming use. This defense failed, and the resulting injunction was affirmed as modified by the Appellate Division, Laurel Hollow v. Laverne Originals, Inc. (2d Dept. 1954), 283 A.D. 795, 128 N.Y.S. 2d 326, and by the Court of Appeals (1954), 307 N.Y. 784, 121 N.E. 2d 618.

 Years passed, during which time some correspondence was exchanged between the Village and the Lavernes indicating that the Lavernes' use of their property remained a sore point.

 On July 24, 1962 the Building Inspector of the Village, Hugh Johnson, was driving by the Laverne property and noticed that the gate -- normally locked -- was open. His curiosity having recently been aroused by a neighbor's offhand comment to the effect that trucks were parading in and out of the Laverne driveway, Mr. Johnson drove in. A Laverne employee, unaware of Mr. Johnson's official status, showed him around. In the course of the tour Mr. Johnson discovered what to him appeared to be evidence that the Lavernes were violating the 1954 injunction -- viz., vats, drying tables, etc.

 Mr. Johnson reported what he had seen to the Village Trustees, and they voted to conduct a second inspection, which took place on October 18, 1962. Photographs taken by the Village officials were accidentally overexposed, and thus a third and final inspection occurred on December 17, 1962 for the purpose of taking additional photographs.

 The Lavernes were not asked to consent to these inspections, the purported authority for them being derived from a Village Ordinance which provided:

 
It shall be the duty of the Building Inspector, and he hereby is given authority, to enforce the provisions of this ordinance. The Building Inspector in the discharge of his duties shall have authority to enter any building or premises at any reasonable hour. (Art. X, § 10.1)"

 There are conflicting versions of exactly what happened next (about which more will be said later) but it is undisputed that three separate criminal informations, two contempt proceedings and a penalty proceeding were brought against the Lavernes on the basis of the evidence obtained from the inspections. Judgments against the Lavernes resulted in every proceeding.

 On June 10, 1964 the New York Court of Appeals, in a landmark decision, reversed Mr. Laverne's conviction on the three criminal informations on the ground that the Village ordinance which purported to authorize the three inspections was unconstitutional, and that therefore the fruits of those inspections could not lawfully be used against the defendant (14 N.Y. 2d 304, 251 N.Y.S. 2d 452, 200 N.E.2d 441).

 Following that decision, the other judgments against the Lavernes were reversed. *fn1"

 The instant suit was commenced in 1967 by the Lavernes against the various Village officials who had played some part in the three inspections. The complaint alleged that under 42 U.S.C. §§ 1983-88 plaintiffs were entitled to damages -- basically the legal fees expended in connection with the above-described litigations -- for the violation of their Fourth Amendment rights.

 In 1970 both sides moved for summary judgment solely on the question of liability, and Judge Tenney granted judgment to the plaintiffs (316 F. Supp. 629). Judge Tenney's opinion held that the New York Court of Appeals' decision in People v. Laverne, supra, 14 N.Y. 2d 304, 200 N.E.2d 441, 251 N.Y.S.2d 452 precluded any finding other than that the Lavernes' Fourth Amendment rights had been violated. Judge Tenney also held that the question of fact as to whether the Village officials had acted in good faith would not have to be resolved by a trial because good faith was not a defense to plaintiffs' action.

 The following year, the Second Circuit Court of Appeals decided Bivens v. Six Unknown Federal Narcotics Agents (1972), 456 F.2d 1339, on remand from the Supreme Court (1971), 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619. The Second Circuit held that federal narcotics agents are not immune from liability for violation of the Fourth Amendment rights of other ...


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