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BALABER-STRAUSS v. TOWN/VILLAGE OF HARRISON

December 15, 2005.

BARBARA BALABER-STRAUSS, as Trustee of The Estate of Loronda Murphy, LORONDA MURPHY, Individually, and VINCENT MURPHY, Plaintiffs,
v.
THE TOWN/VILLAGE OF HARRISON, FRANK ALLEGRETTI, in his official and individual capacities, STEPHEN MALFITANO, in his official and individual capacities, and "JOHN DOE" and "RICHARD ROE," two unknown Detectives employed by the Town of Harrison Police Department, Defendants.



The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge

OPINION AND ORDER

Plaintiffs Loronda Murphy, Vincent Murphy, her husband, and Barbara Balaber-Strauss, trustee of the bankrupt estate of Mrs. Murphy, bring this action pursuant to 42 U.S.C. § 1983 against (1) the Town/Village of Harrison (the "Town"); (2) Frank Allegretti, the Town attorney; (3) Stephen Malfitano, the Town mayor; and (4) John Doe and Richard Roe, unidentified Town detectives (collectively, "defendants"). Plaintiffs claim defendants abused their respective governmental powers to retaliate against plaintiffs and chill plaintiffs' First Amendment rights by making defamatory comments about the Murphys at a public meeting during which the Town's foreclosure of the Murphy's home was discussed. Plaintiffs also allege violations of their Fifth and Fourteenth Amendment rights, as well as a state law claim for defamation.

Defendants now move to dismiss the Second Amended Complaint (the "Complaint") pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. For the reasons set forth herein, the motion to dismiss is granted as to all the federal claims asserted in the Complaint. As this Court declines to exercise supplemental jurisdiction over the remaining state law defamation claim, that cause of action is dismissed without prejudice.

  BACKGROUND

  The following statement of facts, which, for the purposes of this motion, we assume to be true, is based on plaintiffs' Complaint and the exhibits incorporated therein by reference. Mrs. Murphy purchased a residential home located at 1596 Old Orchard Street in the Town (the "Property") for $545,000 and took title to the Property by deed dated June 29, 2000. (Complt. ¶ 11.) By December 16, 2002, Mrs. Murphy had not paid real property taxes on the Property, accruing an arrearage of $28,673.28. (Id. ¶ 12.) As a result, the Town commenced an in rem tax foreclosure proceeding in New York State Supreme Court for the County of Westchester against the Property and nineteen other properties also delinquent in the payment of real property taxes. (Id. ¶ 13.)

  The Town set a redemption date of May 9, 2003 (id. ¶ 13) and allegedly served Mrs. Murphy and her mortgagor, Washington Mutual Bank, F.A., with notice of the proceeding via ordinary mail. (Id. ¶ 14.) After the redemption date passed with no payment having been made, the Town moved for entry of a default judgment against Mrs. Murphy's property. (Id. ¶ 16.) At that point, Mrs. Murphy filed her opposition to the motion, claiming no notice was given. (Id. ¶ 17.) The New York Sate Supreme Court nevertheless granted the Town's motion for default judgment, awarding legal title to the Property to the Town. (Id. ¶ 18.) By deed dated September 26, 2003, the Town's Receiver of Taxes officially conveyed title to the Town. (Id. ¶ 19.)

  Through an agreement with the Town, the Murphys and their two children continued living on the Property while negotiations toward a resolution of the debt proceeded. (Id. ¶¶ 20, 22.) During this period, Mrs. Murphy, with the assistance of an organization called Concerned Harrison Homeowners ("CHH"), mailed letters to Town residents explaining her situation and urging the residents to contact the Town to voice their opposition. (Id. ¶ 39 & Ex. A.) The campaign proved effective, garnering support for the Murphy's cause and leading residents to contact Town officials to express their disapproval of the Town's actions. (Id. ¶ 40 & Ex. B.)

  On or about February 26, 2004, negotiations broke down. (Id. ¶ 23.) The Town held a scheduled public meeting that evening, at which the CHH campaign was addressed. (Id. ¶¶ 41-42.) At the beginning of the public comment and participation portion of the meeting, during which time Mrs. Murphy was registered to speak,*fn1 Malfitano stated:
Over the past several days, as most of you are aware, there was a mailing that was sent to the residents of Harrison by an organization that is referred to in the mailing as "Concerned Harrison Homeowners." The purpose of the mailing was to call attention to the Town of Harrison's foreclosure on (the Subject Property). I want all of you to know who are here this evening and who are listening that the mailing does contain false and misleading information.
(Id. ¶ 42.) Malfitano then turned the meeting over to Allegretti, who commented:
As the town attorney for the Town of Harrison, I feel I have an obligation to set the record straight on the misinformation that is being distributed to the public in connection with a certain tax foreclosure proceeding that I had brought on behalf of the Town of Harrison against certain properties within the town, one of them including property located at 1596 Old Orchard Street in Harrison whose title owner is Loronda Murphy. Ms. Murphy purchased this property following a mortgage foreclosure sale in June of 2000, for what appears to be the price of $200,000.00. Mrs. Murphy was able to take cash from the closing for herself as she obtained a mortgage in the amount of $485,000.00.
. . .
It has also come to the attention of the Town that Mrs. Murphy and her husband claimed tax deductions on their personal tax returns submitted to both the IRS and the New York State Commission for the years 2001 and 2002, years in which they paid absolutely no taxes to the Town.
(Id. ¶¶ 55, 57.) The meeting was broadcast on local cable television three times each day for two weeks, and the statements were published in the March 5, 2004 edition of the Harrison Report, a local Town newspaper.*fn2 (Id. ¶¶ 57, 64.) Plaintiffs deny the truth of these assertions. On March 1, 2004, Mrs. Murphy filed a voluntary petition seeking relief under Chapter 13 — later converted to Chapter 7 — of the Bankruptcy Code with the United States Bankruptcy Court for the Southern District of New York ("Bankruptcy Court"). (Id. ¶ 24.) Balaber-Strauss was appointed trustee of the bankruptcy estate at that time. (Id. ¶ 25.)

  Three days later, Allegretti and several Town police officers came to the Property. (Id. ¶ 27.) The parties agree that Mr. Murphy informed Allegretti that any action by the Town would be in violation of 11 U.S.C. § 362, the automatic stay of enforcement proceeding provision of the Bankruptcy Code.*fn3 (Id. ¶ 28.) Plaintiffs allege Allegretti responded that the "`Federal Bankruptcy Court means nothing to Harrison' and that the automatic bankruptcy stay did not apply." (Id. ¶ 29.) At some point during this meeting, an unidentified attorney representing Mrs. Murphy reached an agreement with Allegretti whereby Allegretti and the Town's building inspector would inspect the Property and then leave the premises. (Id. ¶ 30.) According to the Complaint, Allegretti left the premises after the inspection but returned some hours later with a "phalanx" of Town police officers and "forcibly evicted" the Murphys from the Property. (Id. ¶¶ 31-32.)

  On or about April 23, 2004, plaintiffs allege detectives Doe and Roe appeared at Mr. Murphy's mortgage business looking for Mrs. Murphy, who worked for her husband, in order to question her in connection with a criminal investigation relating to the Property. (Id. ¶ 71; Pls. Mem. Opp. Mot. Dismiss at 8-9.) According to the Complaint, the detectives read Mr. Murphy his Miranda rights and proceeded to interrogate him about doors and windows missing from the Property. (Complt. ¶ 72.) The detectives left without arresting Mr. Murphy, and no criminal charges were filed against him or his wife. (Id. ¶ 73.)

  On May 4, 2004, Balaber-Strauss commenced an action in Bankruptcy Court against the Town seeking to set aside the conveyance of the Property. Plaintiffs filed the instant action on February 7, 2005.

  DISCUSSION

  I. Standard of Review

  On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984). A court's task in determining the sufficiency of a complaint is "necessarily a limited one." Id. A complaint should not be dismissed for failure to state a claim "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." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10 (1980)). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not ...


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