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Abel v. Morabito

February 9, 2009


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


In this action, Plaintiff Bernard Abel brings claims under 42 U.S.C. § 1983 against the Town of Rye, the town's elected supervisor (Defendant Morabito) and four elected members of the town council (Defendants Walter, Daly, Borrelli and Lagana). Plaintiff asserts that the defendants violated his rights under the First and Fourteenth Amendments by authorizing a retaliatory lawsuit against him for unpaid property taxes after he authored and published newspaper columns criticizing town officials.*fn1 (Cmplt. ¶¶ 7-24) Defendants have moved for summary judgment on both claims, arguing that they are entitled to judgment as a matter of law on the merits and that the individual defendants are entitled to qualified immunity. For the reasons set forth below, Defendants' motion (Docket No. 23) is DENIED.


Summary judgment is warranted if the moving party shows that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). The Court "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001).


Plaintiff Bernard Abel was the author of a column called the "Town Crier" in the Westmore News, a weekly newspaper that he founded. (Pltf. Rule 56.1 Response ¶¶ 1-2)*fn2 Defendant Morabito was Town Supervisor for the Town of Rye from 1994 through at least 2005. (Pltf. Rule 56.1 Response ¶ 3; Morabito Dep. 6:14-17) Defendants Walter, Daly, Borrelli and Lagana were the Town of Rye's town council members from the mid- to late-1990s through at least 2004. (See Pltf. Rule 56.1 Response ¶ 3; Walter Dep. 6:11-14 (member since approximately 1997); Daly Dep. 5:21-23 (member since approximately 1995); Borrelli Dep. 6:19-21 (member since approximately 1998); Lagana Dep. 5:16-18 (member since approximately 1996).)

This lawsuit concerns Defendants' alleged reaction to the "Town Crier" columns that Plaintiff wrote in 2003 and 2004. The columns undisputedly portray the defendants in a negative light. Defendants characterize the columns as "critical of the individual defendants in the manner that they conducted their governmental duties." (Def. Rule 56.1 Statement ¶ 2) Plaintiff characterizes them as expressing his opinions regarding "matters of public concern including corruption, municipal corporate stupidity, incompetence, nonfeasance, and malfeasance" by the individual defendants. (Pltf. Rule 56.1 Response ¶ 2)

The conduct most directly at issue here is Defendants' authorization of a suit for back taxes against Plaintiff. In 2004, the Town Assessor, Mitchell Markowitz, made a presentation to the Town Council concerning Plaintiff's property tax exemption. (Pltf. Rule 56.1 Response ¶ 31) Since late 2002, Markowitz had been in communication with the assessor's office in Broward County, Florida concerning Plaintiff's Florida property tax exemption, and those communications had raised questions about whether Plaintiff had improperly claimed residents' exemptions in both Florida and New York. (Pltf. Rule 56.1 Response ¶¶ 22-25, 30) During Defendants' tenure as town officials, the town had never previously sued a property owner for back taxes. (September 26, 2006 Aff. of Bernard Abel ¶ 5; Morabito Dep. 25:5-14; Walter Dep. 19:13-20) However, after Markowitz's presentation, the individual defendants voted unanimously in an executive session of the Town Council to commence a suit for back taxes against Plaintiff. (Pltf. Rule 56.1 Response ¶ 34; Daly Dep. 7:4-20) The suit was commenced in July 2004. (Abel Aff. ¶ 3)

After the lawsuit was filed, it appears that Plaintiff wrote only one additional "Town Crier" column, which was published on September 10, 2004. (Id. ¶ 6) Three days later, Plaintiff commenced this action, in which he asserts that the suit for back taxes was filed in retaliation for his "Town Crier" columns and in violation of his First Amendment and Fourteenth Amendment rights.


In order to prevail on his First Amendment retaliation claim, Plaintiff "must prove [that]: (1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right." Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). Defendants argue that Plaintiff cannot establish the second or third elements of his claim. (Def. Br. at 2, 9-10) However, Plaintiff has met his burden of offering sufficient evidence for a jury to find in his favor on both elements.*fn3

A. A Reasonable Jury Could Find that Plaintiff Has Satisfied the Second Element of the Curley Test

To show that Defendants' decision to file the suit for back taxes was "motivated or substantially caused by his exercise of [his First Amendment rights]," Plaintiff must provide "[s]pecific proof of improper motivation." Curley, 268 F.3d at 73. Circumstantial evidence such as temporal proximity between Plaintiff's speech and the act in question, or direct evidence such as comments by the defendants, may suffice to meet this burden. Webster v. City of New York, 333 F. Supp. 2d 184, 202 (S.D.N.Y. 2004). Here, Plaintiff has offered sufficient evidence from which a jury could conclude that Defendants' authorization and initiation of the back taxes lawsuit was motivated by a desire to retaliate against Plaintiff because of his "Town Crier" columns.

The temporal proximity between Plaintiff's publication of the "Town Crier" columns and the filing of the lawsuit is circumstantial evidence of Defendants' alleged improper motive. Plaintiff published his columns from 2003 through September 10, 2004. (Pltf. Rule 56.1 Stat. ΒΆΒΆ 2, 60) The alleged retaliatory conduct occurred toward the end of this time period: the individual defendants voted to commence the tax suit in April or May 2004, and ...

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