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Sherwyn Toppin Marketing Consultants, Inc. D/B/A Temptations v. Evan Gluck

September 25, 2012


The opinion of the court was delivered by: Margo K. Brodie, United States District Judge:


Plaintiffs Sherwyn Toppin Marketing Consultants, Inc., d/b/a Temptations Tavern ("Sherwyn Toppin") and Ewart Burton filed the above-captioned action pursuant to 42 U.S.C. § 1983 and § 1985 against Defendants Evan Gluck, Gabriel Taussig, Mohammed Quhshi, the City of New York (collectively, the "City Defendants") and Mike Jones. Plaintiffs allege malicious prosecution, First Amendment retaliation, abuse of process and a Monell claim under § 1983, as well as a conspiracy claim under § 1985. The City Defendants moved for summary judgment on all claims, and Defendant Jones moved to dismiss all claims. The Court heard oral argument on July 27, 2012. For the reasons set forth below, the motion for summary judgment and motion to dismiss are granted in their entirety.


Plaintiff Sherwyn Toppin operates the Temptations Tavern in Brooklyn, New York. (City Def. 56.1 ¶¶ 1, 3.) Temptations Tavern opened in October 2004, and Plaintiff Ewart Burton has served as the manager of Temptations Tavern since it opened. Id. at ¶ 5. On May 13, 2005, the City of New York commenced an action pursuant to the Nuisance Abatement Law to abate a public nuisance at Temptations Tavern. Id. at ¶ 29. The proceeding was resolved by stipulation, and Temptations Tavern agreed not to serve alcohol after 4:00 a.m. Id. at ¶ 31. On May 3, 2006, the City of New York commenced another nuisance abatement proceeding. Id. at ¶ 32. That proceeding was resolved by stipulation, and Temptations Tavern agreed that it would not serve alcohol after 4:00 a.m. and would not permit the consumption of alcohol after 4:30 a.m. Id. at ¶ 34. On October 9, 2007, the City of New York commenced another nuisance abatement proceeding, which was resolved by stipulation on February 6, 2008. Id. at ¶¶ 35--36. Temptations Tavern agreed that it would not violate any Alcoholic Beverage Control Law ("ABC Law") and that it would be subject to immediate closure based upon a violation of the terms of the stipulation. Id. at ¶ 36.

On April 3, 2008, Plaintiffs filed a Section 1983 action in this Court against the City of New York and several law enforcement individuals, alleging that their constitutional rights were violated as a result of the enforcement actions of the New York City Police Department ("NYPD") at Temptations Tavern (the "2008 federal lawsuit").*fn1 (City Def. 56.1 ¶ 15; Declaration of Nicholas Ciappetta ("Ciappetta Decl.") Ex. C.) Plaintiffs alleged, among other things, that the defendants in the 2008 federal lawsuit were violating their right to equal protection by targeting Black and Caribbean-owned establishments and subjecting them to a pattern of harassing activity. (City Def. 56.1 ¶ 8.) On August 13, 2008, the City of New York sought the immediate closure of Temptations Tavern based upon a violation of the ABC Law.

Id. at ¶ 37. In a December 3, 2008 Decision & Order, Justice Miller of the Supreme Court, Kings County found that Temptations Tavern had violated the terms of the February 6, 2008 stipulation and directed that Temptations Tavern be closed for 90 days. (City Def. 56.1 ¶ 38; Ciappetta Decl. Ex. E at 55.)

The City Defendants claim that in August 2010, Defendant Quhshi, an agency attorney in the Civil Enforcement Unit ("CEU") of the NYPD's Legal Bureau, received a request from the Brooklyn South Vice Enforcement Division to commence a new abatement proceeding against Temptations Tavern. (City Def. 56.1 ¶¶ 8--11, 39.) Defendant Quhshi assigned Defendant Gluck, also an agency attorney in the CEU, to prepare legal documents to support the City's application to initiate a nuisance abatement proceeding against Temptations Tavern. Id. at ¶ 41. Defendant Gluck notarized 19 police affidavits, but none of the police officers signed in his presence. (Pl. Opp'n 7.) After Defendant Gluck prepared the City's application, Defendant Taussig, an Assistant Corporation Counsel for the New York City Law Department, reviewed the legal papers and verified the complaint. Id. at ¶¶ 42--43. The City filed a nuisance action against Temptations Tavern and the State Liquor Authority ("SLA") in Supreme Court, Kings County on March 17, 2011. (City Def. 56.1 ¶ 44; Am. Compl. ¶ 10(c).) The City also obtained a temporary restraining order ("TRO") ex parte,forcing Plaintiffs to cease operations on March 21, 2011. (Am. Compl. ¶ 10(c).) A hearing was held March 24, 2011 in Supreme Court, Kings County, and, after five days of testimony, Justice Velasquez issued an interim decision denying the City's request for a preliminary injunction and ordering that the TRO be lifted. (Affirmation of Ambrose Wotorson ("Wotorson Aff.") Ex. 10 at 8.) In his interim decision, Justice Velasquez attacked the quality of the evidence submitted by the City and the credibility of the police officer witnesses. Id.

On March 17, 2011, the SLA served a Notice of Pleading against Plaintiffs. (Declaration of Jason Buskin ("Buskin Decl.") Ex. A.) The SLA suspended Temptation Tavern's liquor license the next day. (Buskin Decl. Ex. B.) On April 6, 2011, Justice Velasquez granted a temporary stay of the suspension of Temptation Tavern's liquor license, pending a final decision by the SLA. (Wotorson Aff. Ex. 14.) The SLA filed an amended pleading on May 13, 2011. (Buskin Decl. Ex. C.) The SLA held an administrative hearing and the administrative law judge ("ALJ") sustained multiple charges against Plaintiffs. (Wotorson Aff. Ex. 14.) Plaintiffs allege that their liquor license was revoked in November 2011 after they "refused to accede to a demand by the Chairman of the New York State Liquor Authority, acting in open concert with defendants herein, to withdraw all pending claims against defendants' employers and/or supervisory personnel, and to pay a $25,000 fine."*fn2 (Am. Compl. ¶ 10(bb).)

On June 15, 2011, Justice Velasquez issued a final decision, which denied the City's motion for injunctive relief and expressed concern regarding the decision to prosecute an entity without first spending more time investigating the alleged violations. (City Def. 56.1 ¶ 45; Wotorson Aff. Ex. 15.) The City filed an appeal of Justice Velasquez's decision.*fn3 (Wotorson Aff. Ex. 21.) The 2011 nuisance abatement proceeding has not been dismissed or discontinued and is currently pending in New York Supreme Court. (City Def. 56.1 ¶ 46.)


a.Standard of Review

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must "accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party." Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir. 2009)). A complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson, 631 F.3d at 63 (quoting Iqbal, 556 U.S. at 678). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quotingFed. R. Civ. P. 8(a)(2)). In deciding whether to dismiss a complaint under Rule 12(b)(6), a district court "is generally limited to the facts as presented within the four corners of the complaint, to documents attached to the complaint, or to documents incorporated within the complaint by reference."*fn4 Taylor v. Vt. Bd. of Educ., 313 F.3d 768, 776 (2d Cir. 2002).

Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonablyfind for the plaintiff." Id. "The trial court's function in deciding such a motion is not to weigh the evidence ...

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