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September 3, 1996

ELEANORA D'ANGELO, individually and as a housing inspector of the Town of Huntington, New York and the TOWN OF HUNTINGTON, New York, Defendants.

The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 The plaintiff, Vincent Subirats (the "plaintiff" or "Subirats") commenced this lawsuit against the defendants Eleanora D'Angelo, in her individual and official capacities as a housing inspector for the Town of Huntington ("D'Angelo"), and the Town of Huntington (the "Town"), pursuant to 42 U.S.C. §§ 1983 and 1988 alleging violation of his constitutional due process and equal protection rights. The gravamen of the complaint is that the plaintiff was the victim of a malicious prosecution when the defendants issued two summonses for violation of the Town Code which were later dismissed on Subirats' motion.

 Presently before the Court is the defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative for summary judgment in their favor pursuant to Fed. R. Civ. P. 56. The plaintiff opposes the motion arguing that he has sufficiently established his claim and that there are issues of fact as to the merits of this case.

 I. Background

 The following facts are taken from the affidavits submitted by the defendants and are uncontroverted. The plaintiff is the owner of two buildings located on a single parcel of land with the addresses 199 Mill Dam Road ("199") and 34 Crossman Drive ("34") in Centerport, New York. In November 1987, the Town of Huntington Building, Engineering and Housing Department received two anonymous complaints regarding 199 and 34. *fn1" The basis for each complaint was the existence of an illegal apartment at these locations. The complaints were referred to Inspector D'Angelo for investigation.

 On December 2, 1987 D'Angelo went to 199 where she identified "a cottage with a garage at street level and apparent living space above it." Because no one was home, D'Angelo left her business card and proceeded to 34. However, she was "unable to locate . . . 34 . . . because no such number was posted or in view and because the house numbers on Crossman Drive were randomly situated." A subsequent search at the Town Assessor's Office revealed that the owners of the parcel were "Vimon Rich, Inc." and "Vincent and Monica Subirats." On January 25, 1988 D'Angelo sent Vimon Rich, Inc. by mail a Notice of Violation based on the original complaints. This Notice was returned unclaimed.

 The next day, on January 26, 1988, D'Angelo received another anonymous call explaining for the first time that 199 and 34 were situated on the same lot. The caller explained that 34 was adjacent to his mother's home located at 20 Ridgefield Road in Centerport. On January 28, 1988, D'Angelo sent another Notice of Violation to Vimon Rich, Inc. citing a violation of Town Code section 87-25(A) for having no Certificate of Occupancy and section 198-10G for maintaining two dwellings on a single parcel. The Town again received no response to this Notice.

 On February 8, 1988 D'Angelo went to 20 Ridgefield Road where she met with a "Mrs. Anglisano," who advised her that building extensions had been added to the structure at 34, without a permit, and confirmed that 199 and 34 sat on the same parcel of land. Further, Mrs. Anglisano confirmed that the plaintiff, Subirats, was the owner of the property.

 After a continued search D'Angelo discovered that building permits had been issued to one "Johanna Rocca, c/o Monica Subirats," the plaintiff's wife, on March 20, 1974 and on April 4, 1978 for additions to the "dwelling at the S/E corner of Mill Dam Rd. and Crossman Dr.," which was previously identified by the plaintiff's neighbor as the "main house." She also discovered a Certificate of Occupancy, dated April 20, 1978 (the "Certificate"), issued for extensions to the structure at the same location, and a Letter in Lieu of a Certificate of Occupancy dated May 11, 1978 (the "Letter") referring to a structure located at "199 Mill Dam Road" as having been built prior to establishment of the Town Building Code. As a pre-existing non-conforming use, the structure would not be subject to the Town Code's enforcement provisions. The application for the Letter was signed by Monica Subirats, the plaintiff's wife, "covering 199 Mill Dam Road on March 2, 1978."

 However, based on a visual observation of the premises, which established that the building modifications were made on 34 and not 199, and her reading of the foregoing permits, certificate and letter, as well as the building plans for the modifications, D'Angelo determined that the aforementioned documents were issued with respect to 34 rather than 199 as the Letter in Lieu indicates.

 As a result of her determinations, D'Angelo issued to the plaintiff two summonses dated February 16, 1988 charging violations of (1) Town Code section 198-120(A) for failure to obtain a certificate of occupancy pertaining to the garage with the alleged dwelling at 199; and (2) Town Code section 198-10(G) for maintaining two dwellings on one lot. On March 30, 1988 the Code Enforcement Division of the Town Building Department issued Prosecutorial Informations against the plaintiff.

 A trial was held in November 1990 in the Suffolk County District Court (Trotto, J.), only with respect to the alleged section 198-120(A) violation for lack of a Certificate of Occupancy for the garage with an apparent dwelling. At the trial, the charge was dismissed on Subirats' motion based on the Town's failure to establish a prima facie case that a Certificate of Occupancy for 199 was necessary under the circumstances.

 The plaintiff does not dispute any of the facts stated above. The Complaint, which is virtually devoid of any factual allegations, invokes the "Fifth and Fourteenth Amendment rights to substantive due process . . . and equal protection," alleging merely that the plaintiff's prosecution pursuant to the Huntington Town Code was "maliciously" commenced "without probable cause" by D'Angelo "for some purpose personal to her, including the purpose of benefitting politically well-connected neighbors of [the] plaintiff at his expense." This "abuse . . was consistent with an institutionalized practice of the Town" which took no "action to prevent . . . D'Angelo from continuing to engage in such misconduct."

 In his opposing papers, Subirats submitted evidence for the first time by way of affidavits, alleging that issuance of the two summonses and the related trial described above are part of an overall scheme undertaken ...

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