SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
April 26, 2011
TOWN OF BABYLON,
LIMS, INC., AS AGENT,
Appeals from an order of the District Court of Suffolk County, Second District (Joseph A. Santorelli, J.), dated December 21, 2009.
Babylon v Lims, Inc.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 26, 2011
PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ.
The order granted plaintiff's motion to dismiss defendant's counterclaims in each of three separate actions.
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the order is modified, by providing that the branch of each of plaintiff's motions seeking to dismiss defendant's second counterclaim in each action is denied; as so modified, the order is affirmed, without costs.
Plaintiff commenced three actions to recover civil penalties for alleged violations of the New York State Fire Code and the Town Code of Babylon. Defendant served a verified answer in each action, which contained a counterclaim alleging, as relevant to this appeal, that plaintiff had violated its First Amendment right to access the courts by commencing the action against it in retaliation for defendant's refusal to plead guilty to, and its subsequent filing of a motion to dismiss, appearance tickets alleging the same violations in a criminal proceeding. In a second counterclaim in each action, defendant alleged that, by prosecuting these civil actions, plaintiff had not treated it as other similarly situated parties and thus had acted in violation of the Equal Protection Clause of the Fourteenth Amendment. Defendant sought damages for these alleged violations pursuant to 42 USC § 1983.
Subsequently, plaintiff moved in each action, over objection, to dismiss defendant's counterclaims. By a single order dated December 21, 2009, the District Court granted plaintiff's motions.
As section 1983 does not create any substantive rights, but serves as a vehicle for enforcing rights arising under the laws or Constitution of the United States (see Thomas v Roach, 165 F3d 137, 142 [2d Cir 1999]), to pursue a remedy under this provision, defendant was required to show that plaintiff's decision to pursue the civil actions violated its First Amendment or Equal Protection rights.
In each action, defendant failed to sufficiently allege its First Amendment retaliation counterclaim (CPLR 3211 [a] ). Defendant alleged that its right to access the courts, which right is protected by the First Amendment (Wolff v McDonnell, 418 US 539 ), was violated by plaintiff's commencement of each action. However, defendant failed to make any allegation which, if true, would support the conclusion that there was an actual chilling of its right to petition the courts (Curley v Village of Suffern, 268 F3d 65, 72-73 [2d Cir 2001]; Abel v Morabito, 2009 WL 321007, *4 [SD NY 2009]), as defendant did not make any assertions from which it could be inferred that the filing of the civil action hindered its effort to seek a non-frivolous legal remedy (see Berrios v State University of New York at Stony Brook, 518 F Supp 2d 409, 417 [ED NY 2007], citing Whalen v County of Fulton, 126 F3d 400, 406-407 [2d Cir 1997]). Thus, the District Court properly granted the branch of plaintiff's motion in each action to dismiss the first counterclaim.
Defendant sufficiently alleged its equal protection selective enforcement cause of action claiming that by prosecuting each of the three civil actions, plaintiff was treating defendant differently from similarly situated individuals and such differential treatment was motivated by plaintiff's intent to punish defendant for exercising its First Amendment right to have free and unfettered access to the courts (see Supreme Assoc., LLC v Suozzi, 65 AD3d 1219, 1220 ). Therefore, irrespective of defendant's ultimate ability to establish the truth of its averments (see 219 Broadway Corp. v Alexander's Inc., 46 NY2d 506, 509 ), the branch of each of plaintiff's motions seeking to dismiss the second counterclaim should have been denied.
Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: April 26, 2011
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