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Keith A. Kent v. Gladys M. Drought

August 29, 2012

KEITH A. KENT, PLAINTIFF,
v.
GLADYS M. DROUGHT, ET AL., DEFENDANTS.



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

BACKGROUND

Defendants Drought, Stymus, and Leo have moved, pursuant to Fed. R. Civ. P. 12(b)(6), for an order dismissing the plaintiff's cause of action for false arrest as time-barred and for an order, pursuant to Rule 56, granting summary judgment on the plaintiff's remaining claims for malicious prosecution and civil conspiracy (Item 63).

This action was originally commenced in New York State Supreme Court, Orleans County, and was removed to this court on June 4, 2008 (Item 1). In his complaint, plaintiff alleged that he and defendant Gladys Drought entered into a contract by which plaintiff agreed to remove 79 designated trees on her property, in addition to an unspecified number of cull trees to be logged at plaintiff's discretion (Item 1, Exh. F, ¶ 7). Under the contract, plaintiff was to pay defendant Drought $11,000.00 for the designated trees, and plaintiff would pay defendant an additional sum for the cull trees based on timber volume.

Id., ¶¶ 8-9. Plaintiff gave defendant Drought a check in the amount of $1,000.00 as a down payment. Id., ¶ 11.

Plaintiff further alleged that on February 2, 2006, he started to cut the trees in accordance with the contract (Item 1, Exh. F, ¶¶ 15--16). On February 20, 2006, defendant Stymus, Drought's brother, accused plaintiff of theft for cutting more trees than was contemplated in the contract. Id., ¶¶ 17-18. Plaintiff agreed not to dispose of the cut trees so that a representative of defendants could evaluate them. Id., ¶ 19. After two weeks, in which no one came to evaluate the trees, plaintiff sold the logs. Id., ¶¶ 20-21.

Plaintiff alleges that on May 23, 2006, at the instigation of defendants Drought, Stymus, and Leo, Drought's daughter, plaintiff was arrested by the New York State Police and charged with the crimes of grand larceny in the third degree, unlawful removal of protected plants, and trespass. He was arraigned and released on his own recognizance on the same day (Item 1, ¶¶ 25-28). Plaintiff alleges that in April of 2007, the grand jury returned an indictment charging him only with tampering with evidence. That charge was dismissed by Orleans County Court Judge Punch in August of 2007. Id., ¶¶ 38-39.

Plaintiff has alleged three causes of action against defendants Drought, Stymus and Leo--false arrest, malicious prosecution, and conspiracy to violate plaintiff's civil rights.*fn1

Defendants Drought, Stymus, and Leo filed an answer to the complaint on July 16, 2008 (Item 5). At that time, they interposed a counterclaim alleging that plaintiff had added the language regarding the cull trees after Drought had signed the contract. They further alleged that plaintiff cut 198 trees on plaintiff's property, well in excess of the 79 trees originally designated. Defendants obtained an appraisal of the cut timber and noted that plaintiff had paid only the $1,000.00 down payment. Id., ¶¶ 14 - 22. Accordingly, they sought a judgment in the amount of $21,726.00.

On December 29, 2009, the defendants filed a motion to dismiss and for summary judgment (Item 16). Plaintiff then filed a motion seeking to dismiss the counterclaim (Item 23). In a Decision and order dated October 29, 2010, the court denied both motions (Item 38). Thereafter, the parties proceeded to conduct discovery.

Defendants filed the current motion to dismiss and/or for summary judgment on January 30, 2012 (Item 63). Plaintiff filed a response to the motion on May 7, 2012 (Items 69 - 80). Defendants filed a reply on June 12, 2012 (Item 84). The court determined that oral argument was not necessary. For the reasons that follow, the defendants' motion to dismiss and/or for summary judgment is granted.

FACTS

In support of the motion, defendants have submitted the deposition testimony of Gladys Drought (Item 63, Exh. C), Sharon Leo (Item 63, Exh. D), Edward Stymus (Item 63, Exh. E), and Benjamin Litfin (Item 63, Exh. G), supporting depositions given by defendants Drought and Stymus to the New York State Police (Item 63, Exh. H), and e-mails from defendant Leo to State Police Investigator Michael Notto (Item 63, Exh. H). New York State Trooper Benjamin Litfin testified that he was instructed by Investigator Michael Notto to interview and obtain statements from defendants Drought and Stymus (Item 63, Exh. G, p. 5). He was told to obtain the depositions so that the New York State Police could make an arrest of plaintiff. Id., p. 8.

On February 25, 2006, defendant Gladys Drought gave a supporting deposition to Trooper Litfin (Item 63, Exh. H, att. 43). In it, she stated that she agreed to allow plaintiff to take 79 trees from her property for $11,000. Plaintiff gave her a check for $1,000.00. Defendant Drought further stated that plaintiff agreed to leave the trees on the property until she could have their value assessed, but plaintiff subsequently removed the logs. Defendant Drought stated that her daughter counted 188 to 190 tree stumps. The deposition states that defendant Drought "would like an arrest made for the missing and stolen property and full reimbursement/restitution." Id. In his supporting deposition, defendant Stymus stated that on February 20, 2006, he spoke to plaintiff and told him that he thought plaintiff was taking too many trees for the agreed price of $11,000 (Item 63, Exh. H, att. 49). He instructed plaintiff to leave the logs on the property so that they could be appraised. On February 26, 2006, he and defendant Leo counted approximately 188 tree stumps. He "felt Gladys was being scammed and more trees were being removed than contracted." Id. Stymus further stated that he "would like to see Gladys be paid restitution and this agreement made right." Id.

Ms. Leo testified in an examination before trial that in February 2006, one of her uncles told her that plaintiff was cutting more trees than was allowed by the terms of the contract with defendant Drought, (Item 63, Exh. D, p. 6). On February 26, 2006, Ms. Leo took some photographs of the affected area of her mother's property and telephoned the New York State Department of Environmental Conservation ("DEC"). Her call was then transferred to the New York State Police Id., p. 12. Ms. Leo told the State Police that plaintiff had taken more trees than was allowed by the contract. Id., p. 13. She saw the provision in the contract allowing plaintiff to take additional cull trees at his discretion, but felt that her mother had been taken advantage of due to the recent death of her son, and that the contract was "not a good ...


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