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September 11, 1997

DAVID WILLNER and KERREN WILLNER, Plaintiffs, against TOWN OF NORTH HEMPSTEAD; DONALD ALBERTO, Individually and as Building Commissioner of the Town of North Hempstead; MAY NEWBURGER, Individually and as Town Supervisor of the Town of North Hempstead; ROBERT SCHROETER, Individually and as Building Inspector of the Town of North Hempstead; PHILIP ZARNY, Individually and as Building Commissioner of the Town of North Hempstead, Defendants.

Hon. Arthur D. Spatt, United States District Court.

The opinion of the court was delivered by: SPATT


SPATT, District Judge.

 Presently before the Court is the defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6), and the plaintiffs' cross-motion for summary judgment, pursuant to Fed. R. Civ. P. 56 on Counts IV and V.


 The following facts are taken from the amended complaint and any documents submitted by the defendants which were incorporated by reference in the amended complaint. In or about 1992, the Town, a municipal corporation, issued a building permit for the construction of a new single family dwelling to be located on a parcel of land designated as 65 Ryder Road, Manhasset, New York (the "premises"). This parcel of land was among the last undeveloped parcels in the neighborhood and was situated geographically at a low point of a hilly area of homes. The parcel required a variance, which was issued, from the Town's Zoning Board of Appeals prior to the issuance of the building permit. The plaintiffs' contractor filed the building plans, which included a drainage plan, in order to obtain the building permit.

 On or about July 29, 1993, the Town issued a certificate of occupancy for the premises. On or about that same day, the plaintiffs closed title to the premises. Subsequently, the plaintiffs installed approximately two inches of topsoil when they were landscaping the grounds. Thereafter, on or about November 1, 1993, Schroeter, the building inspector for the Town, on behalf of Zarny and the Town, issued a Notice of Violation citing improper drainage, setback requirements and filling of land without a permit. Zarny was the Building Commissioner until on or about December 31, 1993. On or about December 13, 1993, Zarny wrote to the plaintiffs demanding that "all water run-off from your property must be retained on your property without flowing onto adjoining sites." The plaintiffs were allegedly compelled to meet with Schroeter and Alberto, Zarny's successor as Building Commissioner, in an attempt to resolve the violation.

 On or about February 4, 1994, a three-count criminal information was filed against the plaintiff, David Willner, which was based on the same allegations as the previous Notice of Violation. Count I alleged that the plaintiffs had an improper storm water drainage plan. Count II alleged that the plaintiffs had improperly installed an air conditioning unit. Count III alleged that the plaintiffs had an improper grading of their land. Count III was withdrawn by the defendants prior to trial. After trial in the District Court of Nassau County, Third District, Great Neck Part, before Judge Ute Wolff Lally, the plaintiffs made a post-trial motion to dismiss the information. By a decision dated August 11, 1995, Judge Lally dismissed the remaining two counts for the following reasons: (1) Count I of the information was dismissed for failure the allege any facts to establish a prima facie case; and (2) Count II was dismissed because it would be mooted by compliance with the variance granted by the Town.

 Upon the failure of the defendants to obtain a conviction, the plaintiffs allege that Newburger, the Supervisor of the Town, induced and compelled the Town to connect the plaintiffs' neighbor's old, non-functioning drywell to the Town's storm sewer system, at the public's expense.


 A. Defendants' motion to dismiss

 1. Fed. R. Civ. P. 12(b)(6) standard

 On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'". Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994). The Second Circuit stated that in deciding a Rule 12(b)(6) motion, a court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Rent Stabilization Ass'n of the City of New York v. Dinkins, 5 F.3d 591, 593-94 (2d Cir. 1993) (citing Samuels, 992 F.2d at 15).

 It is not the Court's function to weigh the evidence that might be presented at a trial; the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the Court must accept the allegations of the complaint as true, see Leeds v. Meltz, 85 F.3d 51 (2d Cir. 1996); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 110 S. Ct. 723, 107 L. Ed. 2d 743 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Leeds, supra, 85 F.3d at 51; Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 109 S. Ct. 1642, 104 L. Ed. 2d 158 (1989).

 The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief", Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice," Fed. R. Civ. P. 8(f).

 The issue before the Court on a Rule 12(b)(6) motion "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, U.S. , 117 S. Ct. 50, 136 L. Ed. 2d 14 (1996) (citing Scheuer, supra, 416 U.S. at 235-36). Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal under Rule 12(b)(6). Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (citing Scheuer, 416 U.S. at 236).

 It is within this framework that the Court addresses the present motion to dismiss.

 2. Malicious prosecution

 The plaintiffs' malicious prosecution claims seem to be based on the three-count criminal indictment alleging zoning and building violations. Indeed, the plaintiffs cite the following as their alleged injury for Counts I-VI:

As a direct and proximate cause of the Defendants' acts, Plaintiffs, and each of them, suffered the denial, deprivations, and violation of their civil rights, privileges, and immunities of not being subject to a seizure of their person and property in a criminal proceeding without probable cause.

 In order to state a claim for malicious prosecution under New York State law, a plaintiff must demonstrate: (1) the initiation and continuation of criminal process against the plaintiff; (2) the lack of probable cause for commencing the proceeding, and; (3) actual malice as the motivation for the defendant's actions; (4) termination of the proceeding in the plaintiff's favor. Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997); Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Rounseville v. Zahl, 13 F.3d 625, 628 (2d Cir. 1994); see also Colon v. City of New York, 60 N.Y.2d 78, 82, 455 N.E.2d 1248, 1250, 468 N.Y.S.2d 453, 455 (1983); Martin v. City of Albany, 42 N.Y.2d 13, 16, 364 N.E.2d 1304, 1307, 396 N.Y.S.2d 612, 614 (1977).

 However, Section 1983 claims based on malicious prosecution are subject to a much more rigorous analysis as the result of the Supreme Court's decision in Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994). In Albright, Illinois authorities issued an arrest warrant for the plaintiff, Kevin Albright, charging him with the sale of something which looked like a controlled substance. Upon learning of the warrant, he surrendered to the defendant, Detective Roger Oliver, but denied his guilt. He was released after posting bond upon, among other conditions, that he not leave the state without court permission. At a preliminary hearing, the court found probable cause to hold Albright for trial. At a subsequent pretrial hearing, the charges were dismissed on the ground that they failed to state an offense under Illinois law.

 Albright then filed a Section 1983 lawsuit against Oliver alleging that his substantive due process right to be free from criminal prosecution, a "liberty interest," were violated under the Fourteenth Amendment. The case was appealed to the Supreme Court on the issue of whether such a constitutional right exists. With seven justices answering this question in the negative and six opinions, Chief Justice Rehnquist, joined by Justices Scalia, Ginsburg and O'Connor, recognized that Section 1983 "'is not itself a source of substantive rights,' but merely provides 'a method of vindicating federal rights elsewhere conferred.'" 510 U.S. 266 at 271, 114 S. Ct. 807 at 811 (plurality Rehnquist, CJ.) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694, 61 L. Ed. 2d 433 (1979)). The first step of the inquiry is to identify the constitutional right infringed. Id.

 In conducting the analysis, the plurality recognized that where "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.'" Id. 510 U.S. at 281, 114 S. Ct. at 813 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989)). Applying this standard, Chief Justice Rehnquist found that pretrial deprivations of liberty are addressed in the Fourth Amendment which protects against "unreasonable searches and seizures" and the issuance of warrants without probable cause. Id. Accordingly, the plaintiff's claim for malicious prosecution was held to be untenable under the rubric of substantive due process. 510 U.S. at 281, 114 S. Ct. at 813-14.

 Chief Justice Rehnquist's determination that a Section 1983 malicious prosecution claim cannot be maintained as a violation of substantive process due process does not conclude the analysis. In his concurring opinion, which was joined by Justice Thomas, Justice Kennedy reasoned that although the Due Process Clause protects interests other than the freedom from personal restraint, and that some of those interests overlap with the common law of torts, "a state actor's random and unauthorized deprivation of [a due process] interest cannot be challenged under 42 U.S.C. § 1983 so long as the State provides an adequate post-deprivation remedy." Id. at 283, 114 S. Ct. at 818 (Kennedy, J. concurring) (citing Parratt v. Taylor, 451 U.S. 527, 535-44, 101 S. Ct. 1908, 1913-17, 68 L. Ed. 2d 420 (1981)). He found that a contrary approach would convert any tort committed by a state official into a Section 1983 claim. Id. Accordingly, because Illinois provides a remedy for malicious prosecution, the plaintiff should be unable to invoke a Section 1983 cause of action. 510 U.S. at 285, 114 S. Ct. at 819.

 a. Constitutional injury

 The Second Circuit further developed the principles set forth in Albright in Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995), cert. denied, U.S. , 116 S. Ct. 1676, 134 L. Ed. 2d 779 (1996), and Murphy, 118 F.3d 938. In Singer, the plaintiff Daniel Singer, "a maverick in local politics" with an "ability to influence public opinion," was employed as a ranger by the New York State Department of Environmental Conservation. 63 F.3d at 112-13. On October 21, 1991, Singer received an emergency call that he join a search party forming to look for a missing hunter. On the way, he stopped at a local convenience store to pick up food supplies. According to the store clerk, Singer took the provisions, stated his circumstances, and advised the clerk that he would return later to pay for them. Singer claims the clerk consented the arrangement. The clerk disagreed.

 Some time later Singer was arrested and charged with petty larceny. The charges were later dismissed in the "interests of justice" as "the prosecution was unable to locate its primary witness," the store clerk. Id. at 113. Singer then filed a complaint in federal district court alleging, among other things, two claims for malicious prosecution, one pursuant to Section 1983 and one under state common law. Granting summary judgment, the District Court dismissed both claims.

 In affirming the decision of the District Court, the Second Circuit, interpreting Albright, recognized that "the Fourteenth Amendment right to substantive due process will not support a federal claim for malicious prosecution; however, Albright, does not bar [plaintiffs] from asserting a federal claim for malicious prosecution under the Fourth Amendment." Id. at 114. "Once a plaintiff presents a claim for malicious prosecution under § 1983, the court must engage in two inquiries: whether the plaintiff's conduct was tortious; and whether the plaintiff's injuries were caused by the deprivation of liberty guaranteed by the Fourth Amendment." Id. at 116.

 Addressing the second issue first, namely, the constitutional injury, the court recognized that the inquiry begins with the common law of torts because "'in some cases, the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right.'" Id. (quoting Carey v. Piphus, 435 U.S. 247, 258, 98 S. Ct. 1042, 1049, 55 L. Ed. 2d 252 (1978)). The validity of the claim however, must be judged against a specific constitutional standard; in the case of a malicious prosecution claim, the Fourth Amendment. Singer, 63 F.3d 110 at 116.

 "The Fourth Amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person--i.e., the right to be free of unreasonable or unwarranted restraints on personal liberty." Id. Accordingly, the plaintiff asserting a Section 1983 malicious prosecution claim must demonstrate a deprivation of liberty "consistent with the concept of 'seizure.'" Id. This added requirement is to ensure that any damages awarded for such a claim compensates for a constitutional deprivation. As a result, not all official conduct which might give rise to a malicious prosecution claim under state law would suffice to establish a similar claim under Section 1983.

 In a novel constitutional decision, the Second Circuit in Murphy, supra, expanded the concept of a deprivation of liberty that would satisfy the requirement of a constitutional injury for the purpose of establishing a malicious prosecution claim. In Murphy, the plaintiff, Ernesto Murphy, had been charged with disorderly conduct and resisting arrest, both misdemeanors, and with two counts of felony assault, arising from a traffic stop initiated by John Lynn, one of the defendants, in Clarkstown, New York. After arraignment of these charges, Murphy was released on his own recognizance, on the condition that he return to court when his appearance was required and that he not leave the State of New York while the criminal charges were pending. During the following year, Murphy made approximately eight court appearances.

 The indictment was subsequently dismissed on speedy trial grounds, due to the prosecutor's failure to bring Murphy to trial within six months. Murphy then brought a Section 1983 action for false arrest, use of excessive force during the arrest and malicious prosecution, in violation of the First, Fourth, Fifth and Fourteenth Amendments, against Lynn and Weisberg, one of the police officers who and arrived at the scene, as well as the town of Clarkstown, its police department and its police chief. The district court dismissed all claims as barred by the statute of limitations. Murphy appealed only the dismissal of his Section 1983 claim of malicious prosecution and the Second Circuit reversed and remanded. Following the remand, a jury trial was held. At the close of evidence, the district court dismissed the claims against the town and its police department and the police chief. A verdict was returned in the plaintiff's favor and against Lynn. The defendants appealed, contending that they were entitled to a judgment as a matter of law. The defendants maintained that (1) the restriction on Murphy's ability to leave the State of New York did not implicate a constitutional right under the Fourth Amendment and (2) a speedy-trial dismissal is not a "favorable termination" of proceedings for the purposes of a claim of malicious prosecution.

 The Second Circuit rejected the defendants' contentions and affirmed the jury award. On the issue of "seizure" under the Fourth Amendment, the Second Circuit noted that liberty deprivations are not limited to physical detentions. It went on to hold that the restriction of out-of-state travel imposed as a condition of release and the obligation to appear in ...

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