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Kent v. Thomas

August 9, 2010


The opinion of the court was delivered by: John T. Curtin United States District Judge


This case arises out of a contract dispute between plaintiff Keith Kent, a logger, and Gladys Drought regarding the logging of timber on Ms. Drought's property located in Albion. New York.*fn1 Plaintiff brought this action on July 30, 2008, against New York State Police Investigator Michael Notto and New York State Department of Environmental Conservation ("DEC") Investigator Richard Thomas, seeking money damages pursuant to 42 U.S.C. § 1983 for false arrest and malicious prosecution in violation of his rights under the Fourth and Fourteenth Amendments (see Item 1). Defendants have moved for summary judgment dismissing the complaint (Item 12).

For the reasons that follow, defendants' motion is granted.


On January 30, 2006, plaintiff entered into a contract with Gladys Drought ("Drought") for the sale of timber on her property in Albion, New York (Item 14, ¶ 5). The contract specified plaintiff would cut 79 "sawtimber" trees for $11,000 and "[c]ull trees to be cut at Buyers [sic] discretion Pallet and Firewood value only." (Item 21, Exh. A).

On February 25, 2006 New York State Trooper Benjamin Litfin ("Litfin") responded to a complaint made by Drought's daughter, Sharon Leo ("Leo"), regarding trees allegedly stolen by plaintiff (Item 15, Exh. A, p. 2). In the Incident Report, Litfin stated that Leo and Drought's brother, Edward Stymus ("Stymus"), told him plaintiff had agreed to cut 79 trees, but "when they checked the property they discovered Kent had cut approximately 188 trees . . . and was in the process of removing them." Id. Litfin obtained a sworn statement from Drought, in which she stated that she asked Kent to stop logging on February 20 and to leave the cut trees so she could have someone come to assess their value. Id., p. 12. She stated Kent later returned to her property and removed the logs. Id.

With this information, Litfin contacted Investigator Notto of the New York State Police, who initiated a criminal investigation (Item 15, Exh. A, p. 2). He also obtained a sworn statement from Stymus affirming Leo's report that plaintiff cut 188 trees. Id., p. 13. The same day, Notto was contacted by Patrick Balkin ("Balkin") who stated that he was the plaintiff's attorney. Id., p. 2. Notto informed Balkin of the "nature of the complaint and . . . nothing could go further until an independent forester could evaluate the property." Id. Later, plaintiff called Notto and told him the additional trees were covered by the contract and he planned on paying Drought the $11,000 specified by the contract. Id., p. 3. According to the Incident Report, "Kent was advised that a criminal investigation had been initiated and not to go onto the Drought property or have contact with her until such time as the complaint could be resolved." Id.

On February 28, 2006, Leo contacted Notto via e-mail (Item 15, Exh. A, p. 81). She stated, "I found out yesterday, after a review of the contract by Dave Colligan, the forestry lawyer in Buffalo, that there is really no recourse for my mother. . . . If there is any other way to go after Kent, I'm willing to keep at it." Id.

On March 3, 2006, Notto contacted the DEC to assist with the investigation (Item 15, Exh. A, p. 26). DEC Investigator Thomas was assigned to the case (Item 15, ¶ 12). Thomas and Notto met on March 7, 2006 and Thomas advised that his department would provide a forester to evaluate the number and value of trees cut and removed from Drought's property. Id., ¶ 13. Notto and Thomas toured Drought's property on March 8, 2006. Id., ¶ 14. They re-interviewed Drought and Stymus and observed that the property was marked with "no trespassing" signs. Id., ¶¶ 14, 15. Drought stated she had not given plaintiff permission to be on her property prior to the contract, but because the trees were already marked before the contract, she stated he must have trespassed. Id., ¶ 15.

DEC Foresters Mark Gooding and Patrick Marren, accompanied by Thomas, evaluated the Drought property on March 15, 2006 (Item 16, ¶ 16). They conducted a field investigation and inventory of all freshly-cut stumps. Id. The foresters determined that 201 trees were removed and characterized 198 of those trees as "sawtimber" (Item 15, Exh. A, p. 41). They estimated the value of the cut trees between $23,000 and $26,000. Id.

Following the receipt of the DEC foresters' report, Notto and Thomas consulted with Joseph Cardone ("Cardone"), the District Attorney of Orleans County (Item 16, ¶ 19). Cardone indicated that there was probable cause for the plaintiff's arrest. Id. Accordingly, on May 23, 2006, plaintiff was charged with one count of Grand Larceny in the Third Degree (N.Y. Penal Law § 155.35) and 100 counts of Unlawful Cutting of Trees Without Property Owners Consent (N.Y. Envtl. Conserv. § 9-1501). Id. Notto arranged for the plaintiff to surrender himself on May 23, 2006 (Item 15, ¶ 20). Plaintiff was processed, arraigned, and released on his own recognizance. Id.

The Grand Jury declined to indict plaintiff on either of the charges. However, plaintiff was charged with Tampering With Physical Evidence (N.Y. Penal Law § 215.40) (Item 15, ¶ 21). This charge was later dismissed by the Hon. James P. Punch, Orleans County Court, based on the insufficiency of the evidence and in the interests of justice. Id.

Plaintiff commenced this action on July 30, 2008, seeking money damages for false arrest and malicious prosecution (Item 1). Defendants filed an answer on October 2, 2008 (Item 4). They filed the motion for summary judgment on August 5, 2009 (Item 12), and plaintiff filed a response to the motion on September 18, 2009 (Item 21). Defendants filed a reply on October 8, 2009 (Item 22). The court determined that oral argument was ...

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