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FERRAN v. TOWN OF GRAFTON

October 6, 1997

NADIA FERRAN and MARK FERRAN, Plaintiffs,
v.
TOWN OF GRAFTON, NANCY S. JONES, ESQ., individually and as former Town Attorney; MERRITT WAGAR, MARGARET CLAUS, JOSEPH MAHONEY, ELIZABETH MURPHY, JANET SMITH, individually and as present and former Town Council Members; and JOHN DARLING, individually and as Supervisor, Town of Grafton, Defendants.



The opinion of the court was delivered by: SCULLIN

 Introduction

 This is a pro se civil rights action alleging violations of the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983. Plaintiffs' claims stem from a dispute between Plaintiffs and the Town of Grafton over a road that runs through Plaintiffs' property.

 The Court held a bench trial in this matter on June 24 and 25, and August 13, 1996, in Albany, New York. This Decision and Order constitutes the Court's findings of fact and conclusions of law required by Rule 52(a) of the Federal Rules of Civil Procedure. *fn1"

 Discussion

 As an initial matter, the Court notes that despite numerous admonitions during the course of these proceedings, the vast majority of the evidence presented by the Plaintiffs was both cumulative and irrelevant. Also, for the most part, Plaintiffs have failed to demonstrate how each defendant was personally involved in the alleged constitutional deprivations. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Notwithstanding these serious defects in the record, the Court will evaluate the merits of Plaintiffs' claims based on the evidence admitted at trial.

 I. Fourth Amendment - Malicious Prosecution

 The Court will first address Plaintiffs' malicious prosecution claims against the Town of Grafton and the individual Defendants. Plaintiffs' claims arise out of a decision by the Town to bring a civil action against Rocco Ferran to quiet title to a road running through a certain parcel of Ferran property. *fn2" Plaintiffs claim that the Town maintained the action in a malicious attempt to publicly humiliate and harass the Ferran family. *fn3"

 In order to state a claim for malicious prosecution under § 1983, a plaintiff must, at the very least, prove the elements of a malicious abuse of process claim under state law. See Easton, 947 F.2d at 1018 (citations omitted). To state a claim for malicious abuse of process under New York law, plaintiffs must establish (1) that defendants maliciously commenced and continued an action against plaintiffs, (2) termination of the proceeding in plaintiffs' favor, (3) probable cause for the proceeding was lacking, and (4) plaintiffs' person or property was interfered with through the issuance of a provisional remedy such as attachment or arrest. See O'Brien v. Alexander, 898 F. Supp. 162, 165-66 (S.D.N.Y. 1995) (citing Molinoff v. Sassower, 471 N.Y.S.2d 527 at 528 (2d Dep't 1994)).

 In this case, the evidence reveals that in 1983, Town of Grafton Officials, including Janet Smith, the Town Supervisor at the time, and Nancy Jones, the Town Attorney, had a good faith belief that Rocco Ferran was wrongfully preventing people from traveling on what the Town believed was a public highway running through Plaintiffs' property. See Ex. P-50. Acting on this belief, the Town of Grafton commenced an action in New York State Supreme Court against Rocco Ferran seeking a judgment declaring that the road running through his property was, on that date, a town road. The Town also sought to enjoin Mr. Ferran from preventing individuals from using the road.

 On July 10, 1985, the State Supreme Court held that the road was not a public highway, and was, in fact, a private road. *fn4" See Town of Grafton v. Rocco Ferran, No. 147639 (N.Y. Sup. Ct., Rensselear Co. July 10, 1985). The Town of Grafton appealed the Order to the Appellate Division, Third Department, but the Town failed to perfect its appeal, and the appeal was dismissed by Order dated February 14, 1989.

 Turning to the first element of a claim under New York law, the relevant evidence received at trial fails to show that anyone acting on behalf of the Town of Grafton pursued the action against Rocco Ferran out of any malice or ill will toward the Plaintiffs. In fact, Herbert S. Hasbrouck, the Town Highway Supervisor, testified that following the court ruling, the Town erected "No Thru Traffic" signs at the entrance to Plaintiffs' road in an attempt to prevent people from traveling on Plaintiff's road. (Transcript at 3). Thus, the Court finds that Plaintiffs have failed under New York law to establish the first element of their malicious abuse of process claim as to any of the Defendants. Moreover, there is absolutely no evidence that Plaintiffs' persons or property were interfered with through the issuance of a provisional remedy such as attachment or arrest. Thus, Plaintiffs' claims fail under the fourth element as well.

 Additionally and finally, because any cause of action for malicious abuse of process would have accrued when Judge Cholakis issued his favorable ruling on July 10, 1985, these claims are also barred by the three year statute of limitations applicable to § 1983 claims. See Reed Co. v. International Container Corp., 43 F. Supp. 644, 645 (S.D.N.Y. 1942) ...


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