Appeal from an order of the District Court of Nassau County, First District (Gary F. Knobel, J.), entered September 2, 2009.
Lambdin v Town of Hempstead
Decided on December 23, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: TANENBAUM, J.P., NICOLAI and MOLIA, JJ
The order, insofar as appealed from, (1) upon in effect granting plaintiff's motion for leave to reargue his opposition to a prior motion by the individual defendants to dismiss the complaint insofar as asserted against them for failure to state a cause of action, adhered to the prior determination, and (2) granted defendant Town of Hempstead's cross motion for summary judgment dismissing the complaint as against it.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
Plaintiff commenced this action to recover damages for trespass as well as for various civil rights violations under 42 USC § 1983, alleging that "defendants building inspectors, employees, agents and/or assigns of defendant Town of Hempstead" had unlawfully entered onto his premises in violation of his Fourth and Fourteenth Amendment rights. As relevant to this appeal, after a motion by the individual defendants to dismiss the complaint as against them for failure to state a cause of action was granted, the District Court, in effect, granted plaintiff leave to reargue his opposition to the prior motion and, upon reargument, adhered to its prior determination, and denied a cross motion by the Town of Hempstead (Town) for summary judgment dismissing the complaint insofar as asserted against it.
Accepting the allegations in the pleadings and in plaintiff's motion papers as true, and according every favorable inference to the complaint (see Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192 ; see also 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 ; Leon v Martinez, 84 NY2d 83, 88 ), we find that the District Court properly dismissed the complaint, insofar as asserted against the individual defendants, for failure to state a cause of action.
The trespass cause of action does not lie, as plaintiff failed to allege facts from which it can be inferred that any of the named individuals entered onto his property (see generally Ward v City of New York, 15 AD3d 392 ).
Plaintiff's various claims against the individual defendants to recover damages under 42 USC § 1983 were also properly dismissed, as such claims do not lie against a state or municipal official in his or her individual capacity or under a respondeat superior theory (see Shelton v New York State Liq. Auth., 61 AD3d 1145, 1148 ). Instead, plaintiff was required to set forth particular facts indicating that each individual defendant "was personally involved in the deprivation of the plaintiff's constitutional rights; mere bald assertions and conclusions of law do not suffice" (id. [internal quotation marks omitted]). Plaintiff's complaint contains only general allegations and does not include any allegations of personal involvement by any of the individual defendants. As such, the complaint failed to set forth cognizable section 1983 causes of action against the individual defendants.
We also find that the District Court properly granted summary judgment dismissing the complaint against the Town. We note that when considering a motion for summary judgment, the initial test is whether the movant established prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see id.; Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d at 200). Trespass is an intentional entry onto land of another without justification or permission (see Woodhull v Town of Riverhead, 46 AD3d 802 ). As the Town demonstrated that its building inspector was justified in entering onto the premises at 2530 Island Channel Road to deliver a notice of the alleged code violations (see Hempstead Town Code § 88-3 [A] ), there was, as a matter of law, no trespass (see Woodhull v Town of Riverhead, 46 AD3d 802).
A section 1983 action may lie against a municipality if the plaintiff shows that the action purported to be unconstitutional either implements or executes a policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers or has occurred pursuant to a practice so permanent and well settled as to constitute a custom or usage with the force of law (see Bassett v City of Rye, 69 AD3d 667 ). Here, in opposition to the Town's prima facie showing of entitlement to judgment as a matter of law, plaintiff failed to raise a triable issue of fact as to whether the alleged violations of his constitutional rights resulted from the Town's policy, practice or illegal custom. We note that, contrary to plaintiff's contention, since the building inspector merely entered onto the property for the purpose of delivering a notice of violation and did not search or inspect the property, there was, as a matter of law, no search under the Fourth Amendment or other unlawful conduct (see Nasca v Town of Brookhaven, US Dist Ct, ED NY, 05 Civ ...