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Norton v. Town of Islip

March 27, 2009

HOWARD NORTON, PLAINTIFF,
v.
TOWN OF ISLIP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.

MEMORANDUM & ORDER

In a previous case before this court, Plaintiff Howard Norton ("Plaintiff" or "Norton") successfully sued the Town of Islip (the "Town") and Town officials Thomas Isles and Carl P. Maltese for violating his procedural due process rights when they revoked his right to maintain a legal nonconforming use of his property. See Norton v. Town of Islip, 239 F. Supp. 2d 264 (E.D.N.Y. 2003) ("Norton I"). The Town's actions culminated in an enforcement proceeding against Norton in the Fifth District Court for the County of Suffolk (the "Suffolk District Court"), charging that his use of the property was unauthorized (the "Criminal Action"). The Criminal Action was ultimately dismissed following this court's decision in Norton I.*fn1 In this case, Norton raises new claims related to the Criminal Action for malicious prosecution and malicious abuse of process under 42 U.S.C. § 1983 against the Town, Town officials Vincent J. Messina, Richard Hoffman, Richard C. Sherman, Joanne Huml, J. Timothy Shea, Jr., Ronald P. Stabile, Jr., and Carl Maltese (the "Individual Defendants," together with the Town, the "Town Defendants"), and the County of Suffolk (the "County") (collectively, "Defendants").

Defendants have moved for summary judgment. (See Docket Entry # 101, County Mot.; Docket Entry # 95, Town Mot.; Docket Entry # 96, Indiv. Def. Mot.). For the reasons set forth below, the Motions of the Town and Individual Defendants are GRANTED in part and DENIED in part. The County's Motion is DENIED.

I. Background

The parties have not yet conducted discovery in this case. The parties do not dispute, however, the underlying facts set forth in Norton I. Plaintiff owns a house located at 725 Ferndale Boulevard (the "Premises") in Central Islip which was converted by previous owners into a two-family dwelling in 1933. Norton I, 239 F. Supp. 2d at 266. At the time of the conversion, the two-family use was maintainable as a matter of right under the laws of the Town of Islip (the "Town"). Sometime after 1933, the Town adopted a zoning ordinance providing that the area encompassing the Premises would be restricted to single-family detached dwellings. Id. The Town also issued a letter on April 27, 1965, however, recognizing the two-family dwelling located at the Premises as a legal nonconforming use. Id. On November 21, 1986, Plaintiff purchased the Premises in reliance upon a certificate of occupancy ("C/O") in the Town's records that certified the Premises as a legal nonconforming two-family dwelling. Id. After Plaintiff's purchase, a Town official advised him that he needed to obtain a rental permit in order to rent the Premises. Id. On March 23, 1988, Plaintiff submitted an application to the Town for a rental permit. On April 13, 1988, the Town issued a new C/O certifying the Premises' status as a legal nonconforming two-family dwelling. Id. The Town denied the application for a rental permit and also sent a brief letter dated May 14, 1988 to Plaintiff informing him that the Town "had studied your file and has determined that you must go before the Board of Appeals, with regard to your non-conforming use." Id. at 266-67. Following the issuance of that letter, the Town again issued at Plaintiff's request two C/O's on May 23, 1988 and October 28, 1988, certifying the Premises as a legal nonconforming two-family dwelling. Id. at 267.

In September 1988, Norton commenced an Article 78 proceeding to compel the Town to issue a rental permit for the Premises. Id. The Town defended its denial of the rental permit on the grounds that the Premises had forfeited its nonconforming status after a fire damaged the home in 1984, prompting the previous owners to leave it vacant for over a year. Id. (citing Town Code § 68-15 ("Discontinuance of any non-conforming use for a period one (1) year or more terminates such nonconforming use....")). However, the Town also acknowledged that it had never officially revoked the nonconforming use of the Premises, a determination still left to the Town Zoning Board of Appeals. Id. The New York Supreme Court denied Plaintiff's Article 78 petition to compel the Town to issue a rental permit, but offered no opinion as to the status of the Premises' legal nonconforming use. Id.

The Town never undertook further steps to discontinue the nonconforming status of the Premises, and no party initiated a proceeding before the Town Zoning Board of Appeals. Id. In 1990, the Town again issued, at Plaintiff's request, a C/O certifying the Premises established status as a legal conforming two-family dwelling (the "1990 C/O"). Id.

On March 20, 1997, the Town Attorney's Office commenced the Criminal Action against Plaintiff by issuing an accusatory instrument (the "Accusatory Instrument") charging Plaintiff with violating Section 68-40 of the Town Code for allegedly using the Premises as a two-family dwelling in violation of the "last issued" C/O for the building. (See Accusatory Instrument dated March 20, 1997, Docket Entry # 93, Town Defendants' Joint Appendix ("JA") 112.) The Accusatory Instrument did not specify or attach the C/O to which it referred. (Docket Entry # 5, Am. Compl. ¶¶ 30-31.) On April 17, 1997, the Fifth District Court for the County of Suffolk (the "Suffolk District Court") issued a criminal summons to Plaintiff on the basis of these charges. (Suffolk District Court Summons, dated April 17, 1997, JA 113.) The Accusatory Instrument threatened penalties of a fine up to $1,000 and up to fifteen days imprisonment. (Accusatory Instrument, JA 112.) Plaintiff appeared, and following arraignment, he was released on his own recognizance pending trial. (Am. Compl. ¶ 33.) In support of the criminal allegations, Defendant Joanne Huml, Assistant Town Attorney, faxed an unsigned and undated document purporting to be the "last issued" C/O for the Premises to Plaintiff's counsel on September 12, 1997 (the "File Copy C/O"). (Id. ¶ 77; Facsimile Cover Sheet and File Copy C/O, JA 114-115.) The File Copy C/O was stamped "DEPT. COPY" contained additional notations (the "Revoking Notations") not found in the 1990 C/O that stated, in pertinent part:

*Fire to Structure 26 Mar 84 Premises Vacated Repaired Fr Damage Permit Required Prior to Reoccupancy *Rental permit for two-family DENIED 23 Mar 88 Non-conforming use of two-family lost due to non-use in excess of one consecutive year and failure to apply for repair permits. Denial sustained by SCS court 27 Feb 89. Withdrawal from Court of Appeals 23 Mar 90. (Id.) Discovery in Norton I revealed that Rim Giedraitis, the former Commissioner of the Town Department of Building and Engineering, added these notations to the C/O in the Town's files sometime in 1990. (Town Def. 56.1 Statement & Pl. Response ¶¶ 2, 3; Giedraitis Dep., JA 275, 288-89.) The Revoking Notations were based upon his review of the prior Article 78 proceeding which upheld the Town's denial of a rental permit to Plaintiff. (Id.) Plaintiff was never notified of the Revoking Notations prior to the commencement of the Criminal Action. See Norton I, 239 F. Supp. 2d at 278.

Plaintiff moved to dismiss the Criminal Action on or about October 8, 1997, on the ground that the operative "last issued" C/O was the 1990 C/O, which expressly certified the Premises as a legal nonconforming dwelling and permitted its use as a two-family home. (See Declaration of Erin A. Sidaris in Support of Town Motion for Summary Judgment, dated Oct. 26, 2007 ("Sidaris Decl."), Ex. C., Motion to Dismiss Accusatory Instrument ("Suffolk Motion to Dismiss") and Affidavit of Howard Norton in Support, dated Oct. 8, 1997 ("First Norton Aff.")) Citing the 1990 C/O, Plaintiff contended that his use of the Premises as a two-family dwelling could not constitute a violation of the Town Code. (First Norton Aff. ¶¶ 11-13.) In response, the Town produced a new "last issued" C/O signed and dated October 21, 1997 (the "1997 C/O") by Carl Maltese, the Director of the Building Department of the Town of Islip. (Sidaris Decl. Ex. C., Affirmation of Richard C. Sherman in Opposition to Norton's Suffolk Motion to Dismiss, dated Oct. 27, 1997 ("Sherman Aff."), ¶¶ 5-6 & Ex. A.) The 1997 C/O featured the Revoking Notations first seen on the File Copy C/O. (Id.; see also Am. Compl. ¶ 36.)

While contesting the Criminal Action, Plaintiff filed Norton I, a Section 1983 action in this court seeking, inter alia, to vindicate his right to procedural due process and to obtain a declaratory judgment that the 1990 C/O was the last valid C/O for the Premises. (Id. ¶ 40.) Plaintiff asserted claims for money damages as well, but they were eventually withdrawn. (Town Def. 56.1 Statement & Pl. Response, ¶ 14.) During the pendency of Norton I, Plaintiff requested and obtained approximately 30 consent adjournments to defer the criminal proceeding in Suffolk District Court. (Am. Compl. ¶ 43.)

On January 2, 2003, I issued a judgment for Plaintiff holding that the Town had denied his rights to procedural due process when it issued the revised 1997 C/O for the Premises without providing Plaintiff any notice or an opportunity to be heard. Norton I, 239 F. Supp. 2d at 274 & n.6. I also granted Plaintiff's application for a declaratory judgment recognizing the 1990 C/O as the last validly issued C/O for the Premises, and ordered that the Premises would retain its status as a legal nonconforming use, until the Town revoked that status in a manner conforming with the requirements of due process. Id. at 276.

After my ruling in Norton I, Plaintiff requested that the Town withdraw the Criminal Action against him. The Town declined and instead sought to stay the Criminal Action on the grounds that the Town was appealing the decision in Norton I. (Sidaris Decl. Ex. K, Declaration of Timothy J. Shea, dated March 20, 2003 ("Shea Decl."), ¶¶ 5-8, 12-13.) Norton moved to dismiss. (Sidaris Decl. Ex. K, Motion to Dismiss the Accusatory Instrument, dated February 10, 2003.) On April 23, 2003, the Suffolk District Court dismissed the Criminal Action because the due process violation established in Norton I constituted a "legal impediment to conviction of the defendant for the offense charged," and because the Town had failed to put forth either "a legal or a factual predicate" to support the prosecution. (Sidaris Decl. Ex. K, Suffolk District Court Order (Toomey, J.).) The court rejected the Town's request to stay the Criminal Action as an alternative to dismissal, finding that "no statutory or case law authority has been proffered upon which this court could impose such a stay." (Id.) The Town's appeal of the federal civil rights action was ultimately unsuccessful, and the Town's petition for certiorari to the United States Supreme Court was denied. See Norton v. Town of Islip, No. 03-7066, 2003 WL 22318570 (2d Cir. Oct. 9, 2003), cert. denied, 124 S.Ct. 2838 (2004).

II. Standard of Review

Summary judgment is appropriate where "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment. SeeAdickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "Therefore, summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002) (citation omitted).

In ruling on a motion for summary judgment, the court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments...." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996) (citations omitted).As such, the non-movant "will have [his or her] allegations taken as true, and will receive the benefit of the doubt when [his or her] assertions conflict with those of the movant." Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996) (internal quotation marks and citation omitted).

III. Claims in the Current Action

Plaintiff's current action alleges malicious prosecution and malicious abuse of process in violation of 42 U.S.C. § 1983 and New York law. (Am. Compl. ¶ 1.)*fn2 These causes of action primarily concern the commencement of the Criminal Action and its maintenance despite the litigation and ultimate outcome in Norton I. Norton claims that "[i]n order to pursue its single-minded policy of eliminating non-conforming uses in the Town of Islip, the Town and its officials consciously and with malice commenced a criminal prosecution without probable cause, and manufactured false evidence of the revocation of a Certificate of Occupancy, on specious grounds." (Id. ¶ 2.) Plaintiff also seeks attorney's fees pursuant to 42 U.S.C. § 1988 and a declaratory judgment vindicating his claims.

The elements of a Section 1983 action are borrowed from analogous state law. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994). To prevail on a malicious prosecution claim under § 1983, a plaintiff must show a deprivation of his liberty under the Fourth Amendment, such as detention following arraignment, and establish the elements of a state law malicious prosecution claim. Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002); Rohman v. New York City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (requiring "a sufficient post-arraignment liberty restraint to implicate plaintiff's Fourth Amendment rights"); Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997). Under New York law, a plaintiff must demonstrate: "(1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice." Kinzer v. Jackson, 289 F.3d 188, 143 (2d Cir. 2003).

Plaintiff's malicious prosecution claim alleges that the criminal proceeding against him was commenced and maintained in the absence of probable cause because the 1997 C/O he purportedly violated was invalid. (Id. ¶¶ 126-134.) Plaintiff contends that Defendants issued the 1997 C/O to maliciously "manufacture[] false evidence" once "[c]onfronted with the lack of a validly issued C/O to support the [criminal] allegations." (Id. ¶¶ 82-89.) Further, he states that "malicious and improper motives" drove Defendants to maintain the criminal proceeding for "nearly four months" after this court's Norton I decision invalidated the 1997 C/O on which the prosecution relied. (Id. ¶ 136.) These events restrained Plaintiff's liberty because Section 510.40 of the New York Criminal Procedure Law required him to "render himself at all times amenable to the orders and processes of the court" once the Criminal Action was commenced. See Rohman, 215 F.3d at 215-16 (determining this same allegation sufficient to state a claim where defendant was required to return to court on "at least five occasions"); (Docket Entry # 97, Affidavit of Howard Norton in Opp. to Mot. Summ. J., dated Feb. 27, 2008 ("Second Norton Aff."), ¶ 2 (noting that he was required to return to Suffolk District Court on "four or five occasions")).

Plaintiff argues that these facts also give rise to a malicious abuse of process claim. Malicious abuse of criminal process is actionable under Section 1983 where the elements under New York law are met. Savino v. City of New York, 331 F.3d 63, 76-77 (2d Cir. 2003). New York law dictates that "a malicious abuse-of-process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse of justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Id. at 76.

Plaintiff alleges two theories of ulterior motives for the Criminal Action "outside the legitimate ends of process." (Am. Compl. ¶ 146.) First, he claims that "Defendants' motives in commencing the criminal proceeding against [him] were improper in that Defendants sought to have the criminal court assist in the Town's unlawful deprivation of the Plaintiff's property right without due process of law." (Id. ¶ 150.) Second, Plaintiff claims that Defendants sought "to provoke Plaintiff, through settlement of the criminal prosecution, to submit to a de novo review before the Town of Islip Zoning Board of Appeals to 're-establish' the non-conforming use of Plaintiff's Premises" in order "to shift to Plaintiff the burden of proving... the legitimacy of his Premises' non-conforming status, rather than allowing the burden to remain on the Town." (Id. ¶¶ 150-51.) Plaintiff asserts that this abuse of process violated his constitutional rights, including his rights to be free from unreasonable search and seizure, criminal prosecution without probable cause, or criminal prosecution based upon falsified evidence, unreasonable interference with his right to travel, and unreasonable interference with his right to privacy. (Id. ¶ 148; see also Pl. Opp. 25 n.4.)

Defendants move for summary judgment, arguing: (1) Plaintiff's claims are largely precluded by Norton I; (2) Plaintiff's claims are barred by the relevant statute of limitations, with the exception of the malicious prosecution claim; (3) the Individual Defendants who served as counsel for the Town Attorney's Office are entitled to absolute prosecutorial immunity; (4) the Complaint fails to state a claim against Defendant Maltese; (5) the Complaint fails to state a claim against Defendant Stabile; (6) all Individual Defendants are entitled to qualified immunity; (7) the County cannot be held liable for the acts of the Town Attorneys; (8) the Town cannot be held liable for the acts of the Town Attorneys; and (9) Plaintiff's claims for declaratory judgment should be dismissed because such relief would be inappropriate in these circumstances.

No discovery has occurred in this action, though the parties have submitted documentary evidence that was obtained in connection with Norton I in support of their positions. (See Second Norton Aff. ¶¶ 4-6; Docket Entry # 83, Order of Magistrate Judge Wall dated Sept. 6, 2007 (staying discovery pending decision on Defendants' motions for summary judgment).) Plaintiff opposes the Defendants' Motions on the merits, and has submitted an affidavit pursuant to Rule 56(f) of the Federal Rules of Civil Procedure detailing his outstanding discovery needs. (See Second Norton Aff.); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ("[P]remature motions can be adequately dealt with under Rule 56(f), which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery.").

IV. Discussion

A. Preclusion Based on Norton I

The Town Defendants argue that Plaintiff's "claims for relief premised on conduct which plainly occurred prior to the January 2, 2003 date when this Court issued its summary judgment order in Norton I" are precluded because Plaintiff presented and withdrew claims "concerning the very same transactions and occurrences" in Norton I. (Town Mot. 12.) They urge the court to dismiss nearly all of Plaintiff's claims on the basis of "the doctrine of res judicata, the related rule against claim-splitting, and the doctrine of collateral estoppel." (Id. at 13.)*fn3 The court reviews the history of Plaintiff's Norton I claims, then turns to the preclusion analysis.

i. The Norton I Stipulation

Plaintiff's complaint in Norton I included the following allegations concerning the Criminal Action:

3. Despite the fact that plaintiff was given no notice of this purported revocation of the nonconforming use, defendants charged plaintiff criminally for continuing to use the two-family dwelling as such, and they continue to prosecute that action, which could result in plaintiff being imprisoned for up to 15 days, fined up to $1,000, or both.

4. In this action, plaintiff not only seeks damages as a result of defendants' unlawful acts, but a declaration from the Court that the 1990 certificate of occupancy was the last validly issued certificate of occupancy... In accordance with the declaration, plaintiff also seeks an injunction against defendants preventing them from punishing plaintiff for, or prohibiting plaintiff from, using his property as a two-family dwelling. (See Town Def. 56.1 Statement & Pl. Response ¶ 15.) Plaintiff's first cause of action sought damages based upon his deprivation of due process. The accompanying allegations included the following:

38. In addition [to the deprivation of Plaintiff's property interest], plaintiff's liberty is threatened since defendants continue to prosecute the Criminal Proceeding, which may result in plaintiff being imprisoned for up to 15 days, fined up to $1,000, or both.

39. Defendants unlawful actions... (iii) have caused and will continue to cause plaintiff to be threatened with fines and imprisonment in both the Criminal Proceeding and possible future criminal proceedings; and (iv) has forced and will continue to force plaintiff to expend substantial sums of money for attorney's fees, costs and expenses in defending the Criminal Proceeding. (Id. ¶ 17.) Plaintiff's third cause of action referred again to the continued prosecution of the Criminal Action and sought an injunction preventing the Norton I defendants "from taking any action against plaintiff under §§ 68-15, 68-40, or any other provision of the [Town] Code to punish plaintiff for, or prohibit plaintiff from, using the premises as a two-family dwelling." (Id. ¶ 18.)

In Norton I, Plaintiff withdrew his first cause of action through an oral stipulation entered at his deposition (the "Oral Stipulation"). (Town Mot. 12.) At Plaintiff's deposition in Norton I, he invoked the Fifth Amendment in response to questions concerning his rental of the Premises without a permit. (See Town Def. 56.1 Statement & Pl. Response ¶ 20.) At this point, the parties entered into an oral stipulation on the deposition record withdrawing with prejudice "any claim for economic relief based upon the first claim in the action," deprivation of due process, in exchange for the Town's agreement to adjourn the Criminal Action pending the outcome of Norton I. Id.; (Dep. of Howard Norton ("Norton Dep.") dated Oct. 26, 2000, JA 343-44).

The parties dispute whether the Oral Stipulation was broad enough to withdraw, with prejudice, any claim by Plaintiff concerning the Criminal Action. (See Town Mot. 14; Pl. Response to Town Def. 56.1 Statement ¶ 19.)

ii. Res Judicata

Under res judicata, or claim preclusion, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94-96 (1980). The doctrine bars successive suits involving the same "claim" or "nucleus of operative fact." See Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000). In evaluating the identity of the claims, "the fact that both suits involved essentially the same course of wrongful conduct is not decisive; nor is it dispositive that the two proceedings involved the same parties, similar or overlapping facts, and similar legal issues." S.E.C. v. First Jersey Securities, Inc., 101 F.3d 1450, 1463-64 (2d Cir. 1996). To ascertain whether the second suit is barred, courts inquire whether "the transaction or connected series of transactions at issue in both suits is the same," that is, "whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first." Id. (emphasis added); NLRB v. United Tech. Corp., 706 F.2d 1254, 1260 (2d Cir. 1983).

Res judicata will not bar a suit, however, "based upon legally significant acts occurring after the filing of a prior suit that was itself based upon earlier acts." Waldman, 207 F.3d at 113. The principle stands that a prior judgment "cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case." Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, ...


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