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April 29, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


In this action, plaintiff Suzanne Levy, a self-proclaimed animal lover, seeks untold compensatory and punitive damages from her next-door neighbor, Joyce Alfano, the City of New Rochelle and certain of its employees, including the Mayor and a functionary in the office of the Building Official (i.e., Inspector). The underlying situation attracted considerable media attention in 1997, when it arose. During February 1997 — National Feed the Birds Month — Plaintiff Levy purchased a tall*fn1 prefabricated bird feeder from Home Depot and put it in the yard between her home and that of Defendant Alfano. The feeder attracted numerous pesky pigeons and a number of squirrels, all of which left droppings in the area. Mrs. Alfano was not happy about this development. She complained to the Westchester County Board of Health. After a visit from the Board of Health, plaintiff constructed a "catch" platform so that the seed would not fall on the ground and attract rodents. This did not alleviate the problem in Alfano's eyes — it may have exacerbated it, as the birds and squirrels loved to feed on the rather large (3 feet by 4 feet) platform — and so Alfano turned to certain New Rochelle City officials (defendants Mayor Idoni and Councilman Fosina, and the supervisor of defendant Pasqua, Building Official Goodman), who also happened to be her friends. Alfano asked everyone to "do something" about the "structure" that she believed was creating both a health hazard and an eyesore.

Goodman, the City Building Official, caused Pasqua, his subordinate and the Senior Construction Building Inspector to visit the site. Pasqua saw the feeder. He did not measure it, but observed that it was about six feet high. Pasqua therefore issued a Notice of Violation, first on April 2 (to the owner of the premises) and then again on April 7, 1997 (to Levy, the tenant). A criminal citation was issued on April 15, one day after Mayor Idoni, who had received a second complaint from Alfano, inquired about what was being done. Levy's alleged infraction was having erected or constructed a "structure" (the bird feeder) that was more than four feet high without first obtaining a building permit.

Clearly, Goodman and Pasqua overreacted to a situation that had arisen between two not-so-friendly neighbors — although their charge to enforce the provisions of the law "literally" left them little discretion. (New Rochelle City Code § 331-67.) Unfortunately, it was only the first in a series of overreactions. Local and national press coverage ridiculing the issuance of the summons abounded, and everyone got his or her back up. Levy declined to accept Mayor Idoni's offer of a settlement (three bags of bird seed and the construction of a small catching pan to replace the wooden platform) and went to trial. There, the Hon. Gail Rice, a sensible local judge, ruled solomonically. While noting that the bird feeder met the definition of a "structure" articulated by the New York Court of Appeals in Lombardi v. Stout, 80 N.Y.2d 290, 295, 55, 604 N.E.2d 117 (1992) 590 N.Y.S.2d ("a structure is any production or piece of work artificially built up or composed of parts joined together in some definite manner"), she concluded that City officials had failed to prove beyond a reasonable doubt that the New Rochelle City Council had so broad a definition in mind when it passed the Building Code. Judge Rice also stated that, to the extent it might be deemed to apply to bird feeders, swing sets, and the like, the law was "vague" and hence unenforceable. People v. Levy, Decision Docket No. 029580, City Court of the City of New Rochelle, County of Westchester, June 4, 1997, attached as Exh. Q to Aff. of Christopher Cartier. The charges were dismissed.

Even this did not end the matter. Instead, someone (unidentified in the complaint, and there is no evidence it was any of the named defendants) issued Levy a summons because her grass Was too tall. Levy, not to be outdone, went to a White Plains law firm and filed the instant complaint. After endless discovery, defendants have moved for summary judgment.

The plaintiff's pleading contains several admitted errors. For example, it purports to allege a claim pursuant to 42 U.S.C. § 1985 — the Ku Klux Klan Act — which requires proof of a conspiracy against an individual based on race, color or national origin. Plaintiff has withdrawn this claim, asserting (in a footnote to a brief filed AFTER defendants had been put to the expense of moving for summary judgment) that the citation to § 1985 was "erroneous" and that "No claim pursuant to Section 1985 is advanced in this case." I for one do not believe that plaintiff's counsel committed an innocent or typographical error here (if they did, they committed that same mistake any number of times), but I am pleased that they have seen the error of their ways and I dismiss any claim against any defendant that purports to rely on § 1985.

Plaintiff's complaint also "erroneously" includes Councilman Fosina as a defendant. Plaintiff admits that this too was a mistake, albeit one not realized until after discovery. She offers to dismiss him as well. This Court accepts the offer on Mr. Fosina's behalf and the complaint is dismissed as against him, with prejudice and with costs to the dismissed defendant.

After reviewing the voluminous motion papers supporting and opposing the defendants' motions for summary judgment, I have concluded that several similar errors necessitate dismissal of the entire action. I therefore grant the motions for summary judgment.

Defendant Alfano's Motion for Summary Judgment is Granted

Joyce Alfano moves for summary judgment, on the ground that she is not a State actor for purposes of 42 U.S.C. § 1983, and on the further ground that the only thing she is alleged to have done — complaining to City officials about Levy's bird feeder — is itself constitutionally protected activity that would be chilled if it subjected citizens to suit. Her motion is granted.

It is, of course, well settled that a private person who is not acting under color of State law may not be sued under Section 1983. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Lugar v. Edmondson Oil, 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). It is equally settled that private citizens have the right to seek redress from public officials for real or fancied wrongs, and if the public official thereafter violates anybody's constitutional rights, the private person who activated that official is ordinarily not liable under the civil rights law. Sluys v. Gribetz, 842 F. Supp. 764, 767 (S.D.N.Y. 1994); see also, Aknin v. Phillips, 404 F. Supp. 1150 (S.D.N.Y. 1975). The only way to rope in a private citizen in such circumstances is to establish that the private person conspired with State officials to violate the plaintiff's rights, or that there was either State compulsion or sufficient State involvement in the actions of the private person. Mullarkey v. Borglum, 323 F. Supp. 1218, 1224 (S.D.N.Y. 1970). Here, plaintiff relies on the first prong of the Mullarkey test and asserts that the record discloses enough evidence of a conspiracy to get her to the jury. That — I fear I cannot resist the pun — is a lot of malarkey.

Plaintiff takes care to identify Mrs. Alfano as an employee of the New Rochelle Board of Education and as the friend and political supporter of Councilman Fosina, (who was erroneously sued by plaintiff's own admission) and Mayor Idoni, as well as a friend of Building Official Goodman's and a life-long friend of Inspector Pasqua. This, apparently, is supposed to give Alfano the aura of a State actor, even though she is in no way alleged to have been acting other than as a private citizen when she complained about the bird feeder. These facts also purport to entitle plaintiff to a jury trial, since a reasonable juror is supposed to be able to infer that Alfano's personal relationship with these men necessarily meant that they were in cahoots in hatching a plot to charge Levy with a Building Code violation.

But the fact that Alfano had friends in high places does not mean that she lost her First Amendment right to petition local officials to take action on her behalf. It certainly does not give rise to any inference that she plotted with defendants about what sort of nefarious action to take against Levy. There is no evidence in this record that Alfano did anything other than lodge a complaint. She lodged it forcefully, she lodged it repeatedly and she lodged it with people she thought would assist her. But there is nothing in this record to indicate that she lodged that complaint as part of a conspiracy to haul her neighbor in front of a criminal court. Indeed, when asked point blank what evidence she had of Alfano's involvement in the decision to prosecute her (other than the filing of the complaint), plaintiff testified, "No, I have nothing to support that." Dep. of Suzanne Levy, p. 95, line 12.

Plaintiff would have this Court conclude that an issue of fact exists because Alfano was the first person to use the allegedly vague word "structure" in her complaint. From this, the jury is supposed to be able to infer a conspiracy, since the City Defendants "picked up on" Alfano's word and charged Levy with a Building Code violation relating to "structures."

In the absence of any evidence demonstrating that the various defendants met with each other to cook up Alfano's complaint, or that Alfano was acquainted with the intricacies of New Rochelle's Building Code (and there is none), I decline to accept plaintiff's tortured reasoning. The fact of the matter is, the bird feeder IS a "structure," under both the word's common meaning and the definition articulated by the New York Court of Appeals, our State's highest court. That it is not the sort of "structure" contemplated by the New Rochelle City Council when it adopted the Building Code (which is what the City Court found when it interpreted the terms "legislatively rather than judicially," see Opinion at 3) does not mean that it cannot be described as a "structure" in colloquial English. Plaintiff's papers are full of speculation, but there is no EVIDENCE in this record to indicate that Mrs. Alfano was being anything other than colloquial when she filed her complaint.

Mrs. Alfano is simply not a State actor. The complaint against her is dismissed, with prejudice and with costs to the dismissed defendant.

The First Amendment Retaliation Claim Against Defendants Idoni and Pasqua is Dismissed

However, one of the things that is "settled" about third party standing is that it can rarely be invoked. The United States Supreme Court has narrowly limited the circumstances in which one party will be accorded standing to protect the rights of another. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 80, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). A ...

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