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Gjekote Curanaj v. Peter Cordone

September 19, 2012


The opinion of the court was delivered by: Ramos, D.J.:


Gjekote Curanaj and his family have fought for several years with their neighbors, Peter and Deborah Cordone, over their shared driveway in Yorktown, New York (the "Town"). The dispute escalated into a confrontation on September 4, 2008, in which Mr. Cordone alleged Mr. Curanaj threatened him while carrying an ax. The Town police arrested Mr. Curanaj and charged him with Menacing in the Second Degree and later added charges of Criminal Possession of a Weapon in the Fourth Degree and Harassment in the Second Degree. A jury acquitted Mr. Curanaj of all of the charges.

Mr. Curanaj then brought this action pursuant to 42 U.S.C. § 1983 and New York state law against the Cordones, the Town, and three Town police officers, Sergeant Thomas Gentner, Officer Samuel Sansone, and Chief Daniel McMahon (collectively "the Officers"), alleging false arrest, malicious prosecution, selective prosecution, and malicious abuse of process claims. The Cordones and the Town Defendants alleged crossclaims against each other in the event they were found liable. Each of the Defendants moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, the Court GRANTS judgment to Defendants on the federal claims against them. The Court declines to retain supplemental jurisdiction over the state law claims and dismisses the crossclaims.


A. Facts

1. Events Prior to the September 4, 2008 Confrontation

Plaintiff Gjekote Curanaj lives next door to and shares a common driveway with Defendants Peter Cordone and Deborah Cordone in the Town. Compl. ¶¶ 4-5. Since 2006, the Curanaj and Cordone families have had continuing disputes over their shared driveway. See id. ¶¶ 11-18. These disputes have frequently resulted in one or the other family making a complaint to the police and other Town agencies. For example, Mr. Curanaj alleges that, in August 2007, he reported Mr. Cordone to the Town for parking commercial vehicles on the shared property, and Town officials advised Mr. Cordone that he was in violation of Town ordinances but took no further action. See id. ¶ 11. Around October 2007, Mr. Curanaj filed a civil action against the Cordone family for interfering with his use of the shared driveway. Id. ¶ 13.

Mr. Curanaj alleges that the Cordones filed a series of baseless complaints against him in retaliation for the lawsuit. Id. ¶ 14. On December 19, 2007, the Cordones' daughter Casey complained to the Town police that Mr. Curanaj had trespassed on their driveway. Id. The police responded, but told the two families the matter should be resolved civilly. Id. On April 16, 2008, Deborah and Casey Cordone allegedly attempted to file a harassment charge against Mr. Curanaj, but the police again took no criminal action. Id. Mr. Curanaj further alleges that, on June 2, 2008, Mr. Cordone called the police to report a vehicle blocking his driveway, and, on June 16, 2008, "an unknown caller" made a similar complaint. Id. On July 5, 2008, the Cordones again complained that a vehicle was blocking their driveway. Id. The police responded and again urged the families to find a civil resolution. Id. In each of these incidents, Mr. Curanaj alleges, the Cordones specifically told the Town police about the civil lawsuit Mr. Curanaj had filed against them. Id. ¶ 15.

On August 10, 2008, the families had another confrontation which resulted in Mr. Curanaj complaining to the police. See id. ¶¶ 16-17. Mr. Curanaj alleges that Mr. Cordone had his dog run onto the Curanaj property and jump up on Mr. Curanaj and Mr. Curanaj's wife and daughter. Id. ¶ 16. Mr. Curanaj responded by telling Mr. Cordone that he would kill the dog if necessary to protect his family. Id. Mr. Curanaj alleges that Mr. Cordone then threatened to kill him. Id. Mr. Curanaj then called the police and "opined that [Mr.] Cordone let the dog run over and jump on them because of the ongoing lawsuit between them." Id. at 17. The police took no action. Id.

A police report entered that day by an officer not named in this lawsuit states that each of Mr. Curanaj and Mr. Cordone claimed that the other had threatened to kill him. Declaration of Mark A. Radi in Support of Motion to Dismiss ("Radi Dec."), Ex. C.

Two days later, on August 12, the Curanaj family again complained to the Town police about the incident, but were referred to an animal control officer, who informed them that a summons would be issued. Compl. ¶ 18. Mr. Cordone allegedly received this summons on September 13, 2008. Id.

2. September 4, 2008 Confrontation and Immediate Aftermath

On September 4, Mr. Cordone allegedly released two dogs in a fenced-in area of his property while Mr. Curanaj was walking with his daughter down the common driveway. Id. ¶ 19. While there is no dispute that the dogs were on the Cordone's property, or that they were securely fenced in, the area was apparently close enough to scare Mr. Curanaj's daughter, and when Mr. Curanaj asked Mr. Cordone to control the dogs, he allegedly refused. Id. ¶¶ 19-20. Mr. Curanaj alleges that, "[a]t the time, [he] had been carrying an ax to bring it to the woodpile at the bottom of the driveway, his daughter's school bag and holding his daughter's hand. At no time did [he] threaten [Mr.] Cordone with harm, raise the ax or waive it." See id. ¶ 20. Mr. Cordone, however, called the police, and, according to Mr. Curanaj, said he was "having troubles with [his] neighbor again." Id. ¶ 21.*fn1

Police Sergeant Thomas Gentner and Officer Samuel Sansone responded to the scene. Id. ¶22. Mr. Curanaj alleges that Mr. Cordone told the police that Mr. Curanaj had approached him "and while five feet away raised the ax, began waving it around and stated: 'I'll take care of you and your dogs and whoever else.'" Id.; see also Radi Dec., Ex. E (police report of the incident).*fn2 When questioned at the scene, Mr. Curanaj denied that he had threatened Mr. Cordone and explained that he only had the ax in his hands because he was chopping wood. Id. ¶ 23. Mr. Curanaj alleges that the police found the ax in the woodpile and that Mr. Cordone admitted having heard Mr. Curanaj chop wood earlier. Id. Sergeant Gentner arrested Mr. Curanaj. Id. ¶24.

Mr. Curanaj alleges that, while in police custody, Sergeant Gentner "stated in substance that he now had [Mr. Curanaj] under arrest and even if the Cordones were lying or making things up he was going to throw [Mr. Curanaj] in jail." Id. ¶ 25.

In a police report entered that day, Officer Sansone stated that Mr. Cordone had told him at the scene that "[Mr. Curanaj] raised the ax and began waving it around and stated, 'I'll take care of you and your dogs and whoever else.'" Radi Dec., Ex. E. He also stated that Ms. Cordone "informed [him] that she witnessed the entire incident." Id.

Officer Sansone, with Sergeant Gentner as a witness, executed a misdemeanor information against Mr. Curanaj on the charge of Menacing in the Second Degree. Compl. ¶ 28. The information states that Mr. Curanaj "display[ed] a deadly weapon . . . while waving an ax in his hand and while saying I'll kill you and your dogs and anyone else who tries to stop me, which placed the victim in reasonable fear of physical injury." Affidavit of Kim Berg in Opposition ("Berg Aff.") to Motion to Dismiss, Ex. C.*fn3

Mr. Cordone stated in a deposition supporting the information on the day of the incident that Mr. Curanaj had "raised the ax in his hand and waved it and said I'll kill you and your dogs and anyone else that try's [sic] to stop me." Radi Dec., Ex. F.*fn4 In a separate deposition, Ms. Cordone stated that she heard Mr. Curanaj say "that he would kill [Mr. Cordone] and the dogs and kept on screaming and hollering and told [Mr. Cordone that he was] going to have an awful life. [Mr. Curanaj] had an ax in his hand the whole time. It started down and came up to a point [sic] he was holding it a short way over his head, [sic] he was holding up while he was verbally threatening" Mr. Cordone. Id., Ex. G.*fn5

Mr. Curanaj claims that these "supporting depositions were not only materially false but also contained allegations that were inconsistent with their initial reports to the police." Compl. ¶ 27. Mr. Curanaj was formally charged, and at his arraignment he was ordered to have no contact with the Cordones. Id. ¶ 29.

3. Events Subsequent to the September 4, 2008 Confrontation

Mr. Curanaj alleges that, between his arrest and his trial, "the Cordones continued to maliciously pursue a series of baseless claims against" him and his wife. Id. ¶ 32. He raises five specific incidents. First, on September 16, 2008, the Cordones allegedly complained to the Town Board about work Mr. Curanaj was doing on his property, which ultimately led the Town to require that he install a dry well. Id. Second, around September 19, 2008, the Cordones allegedly contacted the local riverkeeper about work on Mr. Curanaj's property. Id. Third, on October 4, 2008, the Cordones contacted the police over a new dispute involving the driveway and Officer "Sansone advised [Sergeant] Gentner of the situation[,] and they concluded it was a civil matter." Id. Fourth, in October 2008, the Cordones allegedly contacted the Department of Environmental Protection over Mr. Curanaj's work on the property, but the Department took no action. Id. Fifth, around April 29, 2009, the Cordones allegedly filed a complaint against the Curanajs with Child Protective Services, which the agency allegedly determined was "unfounded." Id.

Over the same period, the Curanaj family repeatedly filed complaints against the Cordone family on which the police allegedly took no action. See id. ¶ 33. On September 16, 2008, the Curanajs complained about the Cordones interfering with the driveway by digging up an irrigation line. Id. In December 2008, the Curanajs complained that Mr. Cordone had taken gravel that the Curanajs had bought for the driveway onto his property. Id. Upon hearing that complaint, Sergeant Gentner allegedly threatened Mr. Curanaj with arrest for violation of the no contact order. Id. Mr. Curanaj further alleges that, at some point around this time, an unknown person who identified himself as a friend of the Cordones threatened him, and, when he reported the incident to the police, he was told that the police were "sick and tired" of responding to his complaints. Id.

On September 12, 2009, Ms. Curanaj asked Casey Cordone's boyfriend to remove his car from the shared driveway and he allegedly responded with a series of racial slurs. See id. Mr. Curanaj alleges that, when his wife reported this incident to the police, she was threatened with prosecution if she pursued the charges. Id. She pressed charges nonetheless. Id. The police arrested the boyfriend. Radi Dec., Ex. H.*fn6 Finally, Mr. Curanaj sought to convince the Town board to sanction the Cordones for illegally parking commercial vehicles on the shared driveway, but the charges were dismissed. Id.

Mr. Curanaj finally alleges that, "[o]n at least three occasions in early to mid 2009," the Curanajs raised concerns with Chief McMahon, who once responded that the disputes were civil in nature and twice ignored their complaints. Id. ¶ 36. Mr. Curanaj alleges that Chief McMahon's actions were "part of the policy and practice of Defendant Town to treat citizens differently on account of who they know and/or their national origin." Id. ¶ 37.

On February 12, 2009, Officer Sansone swore out a superseding misdemeanor information, which included the initial charge of Menacing in the Second Degree and added Criminal Possession of a Weapon in the Fourth Degree and Harassment in the Second Degree.

See Berg Aff., Ex. C.*fn7 Mr. Curanaj alleges that the information included "fabricated allegations." Compl. ¶ 34. The information stated that Mr. Curanaj "did wave an ax in his hand in front of Peter Cordone while saying, 'I'll kill you and your dogs and anyone else who tries to stop me,' thereby placing the victim in reasonable fear of physical injury." Berg Aff., Ex. C.

On December 3, 2009, a jury found Mr. Curanaj not guilty of the criminal charges. Id. ¶ 35.

B. Procedural History

On July 27, 2010, Mr. Curanaj filed the instant action. He alleged six causes of action against the Defendants jointly: (1) a Fourth Amendment false arrest claim; (2) a New York common law false arrest claim; (3) a Fourth Amendment malicious prosecution claim; (4) a New York common law malicious prosecution claim; (5) a Fourteenth Amendment selective prosecution claim; and, (6) a Fourth Amendment malicious abuse of process claim. Id. ¶¶ 39-50.

The Town and the Officers answered and asserted crossclaims against the Cordones in the event of liability. The Cordones answered and likewise asserted crossclaims against the Town and Officers in the event of liability. The Officers filed an amended answer adding the defense of qualified immunity.

On February 17, 2012, the Town and Officers moved to dismiss pursuant on Federal Rule of Civil Procedure 12(c). On February 21, 2012, the Cordones likewise moved to dismiss under Rule 12(c).


A. Standard for Rule 12 (c) Motions

The Second Circuit has held that "the standards for dismissal pursuant to Rule 12(c) are the same as for a dismissal pursuant to Rule 12(b)(6) . . . and the standard set . . . for evaluation of the viability of the pleading is the same under each Rule." Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 324 (2d Cir. 2011).

On a motion to dismiss a complaint under Rule 12(b)(6), district courts are required to accept as true all factual allegations and to draw all reasonable inferences in the plaintiff's favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). However, this requirement does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (same). In order to satisfy the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Accordingly, a plaintiff is required to support his claims with sufficient factual allegations to show "more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

B. Background Law on Section 1983

In this case, Mr. Curanaj alleges two causes of action under New York common law and four causes of action under 42 U.S.C. § 1983. In order to state a claim under Section 1983, a plaintiff must allege that: (1) a right secured by the Constitution or federal law was violated by defendants; and (2) the alleged violation was committed by a person acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

"Section 1983 is only a grant of a right of action; the substantive right giving rise to the action must come from another source." Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)). Thus, a civil rights action brought under ยง 1983 will stand only insofar as the ...

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