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Serby v. Town of Hempstead

September 30, 2006


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

On Motions for Summary Judgment


The instant case arises from a municipality's attempted enforcement of N.Y. Agricultural and Markets Law § 121, the State's so-called "dangerous dog statute" ("dangerous dog statute") and related civil proceedings initiated by the municipality. In short, pursuant to the dangerous dog statute, certain municipal employees sought to temporarily seize Plaintiff's dog, "Wingo". The dog was never taken from the Plaintiff, but, as a result of the municipality's attempt to do so, together with its related civil proceedings, Plaintiff brought suit in this Court against the municipality and others alleging violations of his civil rights and of common law, and demanding punitive and treble damages.

Plaintiff is Victor M. Serby ("Plaintiff" or "Serby") who brings the present suit against Defendants The Town of Hempstead ("Town"); The Incorporated Village of Hewlett Neck ("Village"); The County of Nassau ("County"); The Police Department of Nassau County ("Police Department"); Denise Ayre ("Ayre"); Denise Willix ("Willix"); Sergeant Frank Sabella ("Sabella"); P.O. John Lutz ("Lutz"); Animal Control Officer Gary Shaw ("Shaw"); Animal Control Officer Kominski ("Kominski"); Jack Olson ("Olson"); John Doe ("Doe"); and Mario Bove ("Bove")*fn1 for (1) violations of his Fourth Amendment right against unlawful seizure and right to travel ("First Cause of Action"); (2) trespass ("Second Cause of Action"); (3) violations of his Fifth Amendment civil rights depriving him of his property right to his dog and intentional infliction of emotional distress ("Third Cause of Action"); (4) false imprisonment ("Fourth Cause of Action"); (5) malicious prosecution and abuse of process ("Fifth Cause of Action"); and (6) mail fraud and wire fraud, violating 18 U.S.C. § 1964, resulting from the Village's tardy execution of its animal control contract with the Town ("Sixth Cause of Action"). (See Pl.'s Second Amended Compl.). In addition to punitive damages and treble damages, Serby seeks declaratory judgment that the "dangerous dog statute" is unconstitutional ("Seventh Cause of Action") and seeks an injunction prohibiting the Defendants from seizing Plaintiff's dog ("Eighth Cause of Action").

Defendants Town, Willix, Shaw, Kaminski, Olson and Bove (collectively, the "Town Defendants") move for summary judgment, claiming: (1) Bove is entitled to absolute immunity as a government attorney prosecuting a civil matter; (2) Willix, Shaw, Kaminski and Olson have qualified immunity from liability as they were carrying out their official duties pursuant to a valid state statute; (3) the Town cannot be held liable under a theory of respondeat superior and a municipality is not liable for its employees' actions pursuant to a valid state statute; and (4) each of Plaintiff's causes of action are not supported by the facts of his case. (See Town Defs.' Mem. of Law in Support of Summ. J. ("Town's S.J. Mem.").)

Village Defendant also moves for summary judgment. It raises four main arguments in support of its summary judgment motion: (1)(a) the dangerous dog statute is a valid statute and the individual defendants enforced that statute within the scope of their employment with the Town; (1)(b) since there was probable cause for the individual defendants' actions, Plaintiff's causes of action for trespass, malicious prosecution, and false arrest should be dismissed; (2) because there was no extreme conduct by the individual defendants, as they were lawfully performing their job duties under a valid state statute, there is no basis for Plaintiff's intentional infliction of emotional distress claim; (3) the Village's tardy execution of its animal control contract with the Town was the parties' ordinary course of business; therefore, there was no wire or mail fraud committed when the Village caused the subject contract to be executed and applied retroactively; and (4) all of Plaintiff's claims against the Village sound in respondeat superior and should be dismissed against the Village. (See Village's Mem. of Law ("Village's S.J. Mem.").)

As to Town Defendants, the submitted evidence demonstrates that the Town Defendants are entitled to judgment as a matter of law; therefore, the Court GRANTS Town Defendants' motion for summary judgment. As to Village Defendant, the submitted evidence demonstrates that the Village is also entitled to judgment as a matter of law; therefore, the Court GRANTS Village Defendant's motion for summary judgment.

The Court will first address the Town Defendants' motion for summary judgment and then the Village Defendants' motion for summary judgment.



The following summary of the facts is based upon Town Defendants' Local Rule 56.1 Statements, Plaintiff's Local Rule 56.1 Counterstatement and affidavits in opposition, and the submitted evidence. The recited facts, infra, are undisputed unless otherwise noted.

Plaintiff Serby lives in the Village of Hewlett Neck, in Nassau County, with his dog, Wingo. In late January 2003, Defendant Denise Ayre*fn2 called the Village of Hewlett Neck Clerk to make a complaint about Plaintiff's dog. On February 7, 2003, Town Animal Control Officer Willix was dispatched to Ayre's house to follow up on the complaint. As a result, pursuant to N.Y. Agriculture and Markets law § 121, Ayre signed a "Dangerous Dog Complaint" ("dog complaint") against Wingo. Serby contends that Ayre was "egged on" to fill out the dog complaint; she would not have done so if she had not been pressured by Willix.

Serby also disputes the Town's authority to investigate the dog complaint asserting that, at the time of Ayre's dog complaint, no dog seizure contract existed between the Village and the Town. Serby also takes issue with the characterization of his dog, Wingo, as dangerous.

Willix filed the dog complaint with the Nassau County district court. Finding probable cause, the judge set a hearing in early March 2003 and issued an order directing (a) the immediate seizure of Wingo and (b) that Wingo be held pending the March 2003 hearing. Plaintiff disputes that there was probable cause to issue the order. He further asserts that the order is facially defective, but does not elaborate his reasons for this contention.

In compliance with the order, at approximately 10:00 a.m. on March 3, 2003, Town Animal Control Officers Olson and Kaminski, together with Nassau County P.O. Lutz, went to Serby's house to seize Wingo. It is Town policy to have a police officer accompany animal control officers when they attempt to seize an animal. Plaintiff refused to comply with the court's order, keeping Wingo with him in the house. Seeking backup, the Animal Control Officers contacted their supervisor, Defendant Gary Shaw, and P.O. Lutz contacted Sergeant Frank Sabella, his supervisor. When both supervisors arrived at Plaintiff's home, another attempt was made to seize Wingo. Like the first, the second attempt was unsuccessful. The Town Defendants state that this entire exchange lasted approximately 40 minutes, after which they left Plaintiff's property. Plaintiff disputes the Town Defendants' time estimation, countering that he was not able to leave his house until around 2:30 p.m. Serby also counters that he was denied the use and enjoyment of his dog because P.O. Lutz threatened to arrest him and to seize Wingo if either left the house.

Thereafter, Plaintiff filed an Order to Show Cause with the Nassau County district court seeking to vacate the Dangerous Dog Order and to declare the dangerous dog statute unconstitutional. The judge signed the Order to Show Cause, stayed the enforcement of the Dangerous Dog Order, and set a March 5, 2003 hearing date.

The Town was originally represented by Deputy Town Attorney Mario Bove, now a defendant in this action, who represented Defendant Willix at her deposition held in that action. Plaintiff contends that Bove's prosecution of the action was malicious. Eventually, the Town retained outside counsel to prosecute the dangerous dog action against Serby. Ultimately, though, because dog complainant Defendant Ayre declined to appear to testify in the Town's case (despite being subpoenaed to do so), the Complaint was withdrawn. Thus, no rulings were made on Serby's motions filed in that action.

Based on the attempted seizure of Wingo and the related prosecution of the dog complaint against Serby, Plaintiff brought his claims of constitutional violations and of state common law violations to this Court.


Summary judgment is generally appropriate where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994) (quoting Fed. R. Civ. P. 56(c)). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying those materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party has offered some evidence that no genuine issue of material fact remains to be tried, the burden shifts to the non-moving party to provide similar evidence indicating that a genuine, triable issue remains. See Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(e). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55.

In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). That being said, it is well-established that a non-movant cannot defeat summary judgment with nothing more than "unsupported assertions," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), or the allegations in its pleadings. See Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed. R. Civ. P. 56(e). More particularly, although "summary judgment should be used sparingly" in cases where the material fact at issue is the defendant's intent or motivation, the plaintiff must nevertheless offer some "concrete evidence" in his favor, and is "not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1998). "The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).


Town Defendants make four main arguments in support of their motion for summary judgment: (1) all claims against Bove must be dismissed on the basis of absolute immunity; (2) all claims against the Animal Control Officers must be dismissed on the basis of qualified immunity; (3) the Town cannot be held liable for the conduct of its employees; and (4) Serby's claims are not supported by the facts of the case. The Court will address each argument in turn.

1. Absolute Immunity for Bove?

In his Fifth Cause of Action, Serby raises a malicious prosecution claim. Within that claim, he alleges that Defendant Bove, the Town's deputy attorney, "abused process and improperly used civil procedure by obstructing the deposition of DENISE WILLIX to increase Plaintiff's costs of getting her truthful testimony." (Pl.'s Second Amend. Compl. ¶ 99 (emphasis in original).) The Town Defendants counter that Bove, as a government attorney initiating a civil proceeding under N.Y. Agric. & Mkts. Law § 121, is entitled to absolute immunity. (See Town's Summ. J. Mem. at 3.)

"Absolute immunity is reserved for officials who perform 'special functions' and deserve absolute protection from damages liability." Bernard v. County of Suffolk, 356 F.3d 495, 502 (2d Cir. 2004); Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005). This Circuit has held that one such group of officials are prosecutors. See id. When a party claims entitlement to absolute immunity, though, courts focus on "the nature of the function performed, not the identity of the actor who performed it." Id. at 503 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)). This is referred to as the "functional approach." Id.; see also, e.g., Butz v. Economou, 438 U.S. 478, 514 (1978) (holding that persons presiding at agency hearings, performing adjudicatory functions within agency, are entitled to absolute immunity from damages liability for their judicial acts). Thus, "where a prosecutor is sued under § 1983 for unconstitutional abuse of his discretion to initiate prosecutions, a court will begin by considering whether relevant statutes authorize prosecution for the charged conduct." Id. at 504 (2d Cir. 2004). In other words, "[a] defendant engaged in advocative functions will be denied absolute immunity only if he acts 'without any colorable claim of authority.'" Id. (quoting Schloss v. Bouse, 876 F.2d 287, 291 (2d Cir. 1989) (further citation omitted)).

The Court agrees with the Town Defendants that all Plaintiff's claims against Bove "involve actions taken by him as a government official, in enforcing a valid state statute for the seizure of a dangerous dog." (Town's S.J. Mem. at 4.) First, the dangerous dog statute authorizes the commencement of a civil proceeding, such as the dog complaint proceeding brought against Serby. See N.Y Agric. & Mkts. Law § 121. Second, the record before the Court supports a finding that the nature of the functions Bove performed, including representing Defendant Willix at her deposition (despite the allegedly annoying manner in which he did so), were prosecutorial. See, e.g., Buckely, 509 U.S. at 273 ("acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate [], are entitled to the protections of absolute immunity"). Given the record here, no reasonable fact-finder could find otherwise. Therefore, as a matter of law, Bove is entitled to absolute immunity from all claims brought against him in this suit. See Bernard, 356 F.3d at 503 ("once a court determines that challenged conduct involves a function covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness or his motive or the degree of injury caused") (further citation omitted). As such, the Town Defendants' request for summary judgment on this basis is granted.

2. Qualified Immunity for the Animal Control Officers?

"The qualified immunity doctrine shields governmental officials performing discretionary functions from liability for civil damages 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Poe v. Leonard, 282 F.3d 123, 131 (2d Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir. 2002).

Courts perform a two-part inquiry to determine whether an official is entitled to qualified immunity. Loria, 306 F.3d at 1281. First, a court questions whether "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right.'" Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). By first answering this question, " a clear standard ...

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