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Kanciper v. Suffolk County Soc. for Prevention of Cruelty to Animals, Inc.

United States District Court, E.D. New York

February 23, 2013

Mona T. KANCIPER, Plaintiff,
SUFFOLK COUNTY SOCIETY FOR the PREVENTION OF CRUELTY TO ANIMALS, INC., Roy Gross, Gerald Lauber, Shawn A. Dunn, Michael Norkelun, John and Jane Does 1-10, Defendants.

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Alan Edward Sash, Esq., Steven Jay Hyman, Esq., Of Counsel, McLaughlin & Stern, New York, NY, for Plaintiff.

Brian Maurice Oubre, Esq., Joseph Salvo, Esq., Mercedes Colwin, Esq., Of Counsel, Gordon & Rees, LLP, New York, NY, for Defendants.


SPATT, District Judge.

The Plaintiff Mona T. Kanciper (the " Plaintiff" or " Kanciper" ) commenced this civil rights action on April 30, 2012, pursuant to 42 U.S.C. § 1983, et seq. (" Section 1983" ), as well as Article IV, Section 1 of the New York State Constitution and Section 30 of the New York State Executive Law, stemming from the execution of a search warrant on her property bye the agents of the Defendant, the Suffolk County Society for the Prevention of Cruelty to Animals Inc. (" SPCA" ), and her subsequent arrest and prosecution. Further, the Plaintiff seeks a declaratory judgment that New York State Criminal Procedure Law § 2.10(7)— a statute pertaining to the peace officer status of the SPCA's agents— is unconstitutional both on its face and as applied. Presently pending before

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the Court is the Defendants' motion to dismiss and the Plaintiff's motion to amend her complaint. For the reasons set forth below, the Court grants the Defendants' motion to dismiss this action and thus need not address the Plaintiff's motion to amend.


The following facts are drawn from the complaint and construed in a light most favorable to the Plaintiff. As another district judge aptly phrased it, " [t]his case, brought under the Fourth Amendment, involves the need to reconcile human rights with the obligation to protect other species from harm caused by human activity." Suss v. Am. Soc. For Prevention of Cruelty to Animals, 823 F.Supp. 181, 184 (S.D.N.Y.1993).

The Defendant the Suffolk County Society for the Prevention of Cruelty to Animals, Inc. (" SPCA" ) is a not-for-profit corporation organized and existing under the laws of the State of New York. The SPCA is governed by a six person Board of Directors: the Defendant Roy Gross (the Executive Director and Chief), his wife Lois Gross, Alex Parathyrus, Herbert Kellner, the Defendant Gerald Lauber (Chief of Detectives), and William Wexler. The Plaintiff alleges that the SPCA has approximately 30 individuals who have been given Peace Officer status and are part-time agents. The Defendants Michael Norkelun and Shawn A. Dunn are " detectives" with the SPCA and in doing so, investigate, prosecute, and enforce alleged violations of the New York State Penal Law and the Agriculture and Markets Law.

The SPCA was formed in or about 1983 pursuant to the New York State Not-For-Profit Corporation Law, § 1403, which authorizes one corporation per county whose purpose is the prevention of cruelty to animals. See N.Y. NPC Law § 1403(a)(1) (" A corporation for the prevention of cruelty to animals shall not hereafter be incorporated for the purpose of conducting its operations ... in any other county if thereby two or more such corporations would exist in such county ..." ). It has no oversight by any governmental body or official. Nevertheless, the SPCA is empowered under Criminal Procedure Law § 2.10(7) to grant its employees or agents " peace officer status", which in turn, empowers these individuals to search and arrest, carry a weapon, and act to enforce the laws of the State of New York in the same manner as governmental employees.

The Defendants Lauber, Dunn and Norkelun are such peace officers. In order to qualify as a peace officer, an individual must complete a short training course sponsored by the New York State Division of Criminal Justice. However, appointed peace officers take no oath of office; they do not report to any public official; and they are not under the auspices or control of any public agency. They are accountable only to the Board of Directors of the SPCA. The peace officers are assigned to one division of the SPCA— the " Law Enforcement Division" — as opposed to the " Humane Division", which focuses on pet clinics and programs.

Prior to August 2009, SPCA issued badges to its peace officers. According to the Plaintiff, these badges bear a virtual copy of the New York State Device of Arms and are embossed with the public officer title of " Detective", in violation of New York General Business Law § 136. The SPCA also issues its peace officers shield numbers, patches, epaulettes, and uniforms. In addition, they issue public officer titles to allegedly give the appearance of police officer status, such as " Officer", " Detective", " Chief", " Sergeant", and " Lieutenant" .

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Kanciper owns and resides on a 50-acre horse farm in Manorville, New York, which is located in Suffolk County. This horse farm is the location of a corporation called The New York Horse Rescue Corporation, which rescues discarded and unwanted horses. According to the Plaintiff, since 1998, her horse farm has rescued more than 1,500 horses, many of whom were bound for auction kill buyers. These horses were then either adopted by families or lived the remainder of their lives on the horse farm, sometimes being used to provide horseback riding lessons. Kanciper's husband, who is now deceased, was the farm's resident veterinarian. The Plaintiff's two children also live on the property.

On or about August 5, 2009, a woman called SPCA to make a complaint regarding " equine abuse" at the horse farm. The Plaintiff claims that this complaint was outrageous and untrue, and was made only because the complainant had a personal vendetta against her. Regardless, the SPCA assigned a case number to the complaint and referred it to Defendant Dunn for investigation. According to the Complaint, Dunn went to the Plaintiff's horse farm unannounced on August 18, 2009 at approximately 1:30pm. He knocked on the front door. The Plaintiff's husband answered, and Dunn announced that he was a " detective" and there to investigate a complaint about horse abuse. Kanciper's husband, who was frail and mentally impaired due to past injuries, told Dunn to come back when Kanciper was home. However, the Complaint states that Dunn nevertheless intimidated and threatened him, saying that he would lose his veterinary license if he did not cooperate. After repeatedly telling Dunn to leave because he was ill, Dunn eventually left the residence.

On August 28, 2009, Dunn once again visited the Plaintiff's horse farm. On this date, Kanciper and her children were outside the residence. Dunn allegedly approached Kanciper and her children, revealing that he was wearing a firearm and displaying an SPCA " badge" on a chain around his neck. He introduced himself as " detective" . The Plaintiff claims that she told Dunn to leave the premises and that if he had any questions, he should contact her lawyer, to which Dunn responded, " if you have an attorney, you must be guilty." (Compl., ¶ 56.) Eventually, Dunn left the premises and threatened " We'll see about this." He also called the Kanciper home on November 16, 2009. Dunn eventually closed the case file against Kanciper in December 2009, finding no probable cause that Kanciper or her husband was abusing horses or any other animal.

On December 23, 2009, another woman with a supposed personal vendetta against the Plaintiff called SPCA to allege that Kanciper was abusing horses. Once again, SPCA assigned a case number to the complaint, this time assigning the case to Defendant Norkelun. On Christmas Day, December 25, 2009, Norkelun made an unannounced visit to the horse farm to question Kanciper at approximately 12:50pm. He drove a vehicle with SPCA markings all over it, which the Plaintiff alleges had the appearance of a police car. He called the Plaintiff's house phone from his car and informed her that he was a " detective" waiting to speak with her about a starving horse. The Plaintiff states that she informed Norkelun that there was no starving horse, but Norkelun nevertheless requested permission to walk around the residence. Due to his persistence, Kanciper proceeded to walk Norkelun around the property, despite the fact that it was Christmas Day and her husband had recently passed away. At the conclusion of this tour, Norkelun told the Plaintiff that

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while he could not tell her who was making the complaints, he was familiar with the farm and knew that all the horses were fine. In his official report, he wrote that Kanciper " did show this officer several horses inside a large barn that appeared healthy." (Compl., ¶ 81.)

Nonetheless, four days later, on December 28, 2009, Norkelun visited the home of the complainant to collect written statements. However, as to the Plaintiff, he did not interview any of the employees or tenants of her house farm, nor did he make firsthand observations. Instead, Norkelun concluded based upon the complainant's statements, that Kanciper had euthanized dogs and horses by herself without a veterinarian present. The Plaintiff alleges that these sources should not have been utilized, because the complainants' statements were riddled with hearsay and driven by a motivation to fabricate.

Between January 2010 and March 2010, the SPCA, including Gross, Lauber, Norkelun and Dunn, apparently made no efforts to corroborate, verify, or otherwise obtain firsthand accounts of the allegations made against Kanciper. Instead, they considered only the complainants' statements and prepared an application for a search warrant. Accordingly, on March 18, 2010, Norkelun applied for a search warrant pursuant to N.Y. CPL § 690 from a local district court on behalf of the SPCA. He submitted an affidavit in support of the application, which stated that he was a detective and that the source of the relevant information was his personal knowledge. He did not include information indicating that Kanciper showed him several horses that appeared healthy. In addition, Norkleun apparently also included allegations that Kanciper had endangered the welfare of a child. The Plaintiff alleges that the request for a search warrant was in violation of Criminal Procedure Law § 690 because as a " peace officer", Norkelun was not authorized to request a search warrant, and that because the search warrant was based upon allegations of the Penal Law (endangering the welfare of a child), it was for matters outside of his role for prevention of cruelty to animals.

On March 20, 2010, Norkulen, Lauber and eight other members of the SPCA arrived unannounced at the horse farm to execute the search warrant. At 9:25am, four employees from the Suffolk County Department of Public Works, with heavy digging machinery, also arrived at the horse farm. The machinery was used to dig up large portions of Kanciper's property without her consent. In addition, agents of the SPCA restrained Kanciper's movement without her consent and did not let her leave the horse farm while the search warrant was being executed, despite the absence of an arrest warrant. They also are alleged to have ruthlessly interrogated her during the search, despite her request to speak with counsel. Kanciper was not read her Miranda rights by the SPCA agents until 4:00pm, which was approximately eight hours after the search began.

The SPCA searched the horse farm for a total of ten hours. They also alerted a news crew from News 12 television about the search warrant so that a news van, cameraman, and reporter were present at the horse farm during the search.

During the execution of the first search, Norkelun requested a second warrant to search the Plaintiff's home. Once it was obtained, he returned to her premises, entered her home, and allegedly seized her personal property.

In July 2010, a grand jury indicted the Plaintiff on three counts of animal cruelty solely with regard to dogs, not horses, and two counts of endangerment of a minor. The Plaintiff subsequently surrendered to

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the 7th Precinct where Norkelun was waiting for her. He handcuffed her to a desk for several hours while processing her. However, the 7th Precinct and the Suffolk County Police Department were not involved with the investigation or arrest of the Plaintiff. Eventually Kanciper went to trial on the five counts against her. Ultimately, on October 13, 2011, the court dismissed one charge and found Kanciper not guilty on all of the other charges except one, endangerment of a child. This count was based upon allegations that Kanciper, in front of a 10-year-old, injected a dog who was dangerous and aggressive with a tranquilizer. As the Plaintiff points out in the Complaint, there were no counts sustained against her related to animal cruelty, which are the only laws that SPCA is permitted to enforce. The endangerment of a child charge was being appealed at the time that the Complaint was filed. However, on November 14, 2012, a unanimous panel of the New York Appellate Division, Second Judicial Department, reversed that conviction, holding that the evidence failed to establish that witnessing the injection of the tranquilizer was likely to result in harm to the physical, mental, or moral welfare of the child. See New York v. Mona Kanciper, 100 A.D.3d 778, 954 N.Y.S.2d 146 (2012). Accordingly, the Plaintiff has been exonerated on all charges brought against her by the Defendants.

Meanwhile, on February 4, 2011, while the criminal case was still pending, Kanciper brought suit in New York State Supreme Court, County of Suffolk, against the SPCA and other individuals, titled New York Horse Rescue Corporation, M. Butler Farm, LLC and Mona T. Kanciper v. Suffolk County Society for the Prevention of Cruelty to Animals, Roy Gross, Michael Norkelun, Ann Marie Fergo, Emily Holder, and Ann Collins Studer, Index No. 4263/2011 (the " Suffolk County Action" ). In this action, which appears to still be pending, the Plaintiff seeks civil damages from SPCA with regard to their alleged abuse of process; negligent investigation of witness complaints and in the obtaining and execution of search warrants; tortious interference with prospective business relations; fraud and misrepresentation; negligent misrepresentation; and intentional infliction of emotional distress. ( See Oubre Decl., Ex. E.)

Further, on February 1, 2012, the Plaintiff also initiated a currently pending Article 78 Petition in New York State Supreme Court, Suffolk County, Index No. 3473/2012, to declare the SPCA a " public entity" pursuant to New York State law, and therefore subject to the Freedom of Information Law (" FOIL" ). ( See Oubre Decl., Ex. F.)

Kanciper then initiated the present lawsuit on April 30, 2012. In this case, the Plaintiff brought several causes of action against the Defendants. First, she brought a cause of action for a declaratory judgment and a permanent injunction, asserting that N.Y. Criminal Procedure Law § 2.10(7) is unconstitutional, because it unlawfully delegates to a private advocacy group police powers to investigate, search, seize, and arrest individual citizens of the United States in derogation of the Fourth and Fifth Amendments. Second, she brought a cause of action for violations of 42 U.S.C. § 1983, alleging that the Defendants acting under color of state law subjected Kanciper to a deprivation of her constitutional rights by exceeding their authority; conducting an illegal search of her home and property; unlawfully restraining her; improperly applying for an executing a search warrant; unlawfully interrogating her; and depriving her of the right to counsel. Third, she brought a cause of action for violations of the

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New York State Constitution, Article IV, Section I, and New York State Executive Law § 30.

The Plaintiff asserts that the legal issues in the Suffolk County Action have nothing to do with civil rights or the constitutionality of Criminal Procedure Law § 2.10(7)— which is the gravamen of Kanciper's complaint against the SPCA Defendants in this lawsuit. She also contends that the sole legal issue in the Article 78 proceeding— whether SPCA is subject to FOIL— is wholly independent from the question of whether the Defendants violated Kanciper's civil rights or whether Criminal Procedure Law § 2.10(7) is unconstitutional.


A. Legal Standards

1. Motion Pursuant to Fed.R.Civ.P. 12(c)

In general, " the standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006).

Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is " plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Second Circuit has explained that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles. Harris v. Mills, 572 F.3d 66 (2d Cir.2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

" First, although ‘ a court must accept as true all of the allegations contained in a complaint,’ that ‘ tenet’ ‘ is inapplicable to legal conclusions,’ and ‘ [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ " Id. at 72 (quoting Iqbal, 129 S.Ct. at 1949). " ‘ Second, only a complaint that states a plausible claim for relief survives a motion to dismiss' and ‘ [d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ " Id. (quoting Iqbal, 129 S.Ct. at 1950). Thus, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and ... determine whether they plausibly give rise to an entitlement of relief." Iqbal, 129 S.Ct. at 1950.

In considering a motion to dismiss, this Court accepts as true the factual allegations set forth in the complaint and draws all reasonable inferences in the Plaintiff's favor. Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990); In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir.2007). Only if this Court is satisfied that " the complaint cannot state any set of facts that would entitle the plaintiff to relief will it grant dismissal pursuant to Rule 12(b)(6)" . Hertz Corp. v. City of N.Y., 1 F.3d 121, 125 (2d Cir.1993). The issue on a motion to dismiss is " not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

2. Motion to Amend

Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend its pleading by leave of court and leave to amend " shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see also Monahan v. N.Y. City Dep't. of Corr., 214 F.3d 275, 283 (2d Cir.2000) (citing

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Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Generally, amendments are favored because they " tend to facilitate a proper decision on the merits." Sokolski v. Trans Union Corp., 178 F.R.D. 393, 396 (E.D.N.Y.1998) (internal quotation marks and citations omitted).

Where, as here, a proposed amendment adds new parties, the propriety of amendment is governed by Fed.R.Civ.P. 21, which provides that " [o]n motion or on its own, the court may at any time, on just terms, add or drop a party." Fed.R.Civ.P. 21; see Garcia v. Pancho Villa's of Huntington Vill., Inc., 268 F.R.D. 160, 165 (E.D.N.Y.2010) (citing Duling v. Gristede's Operating Corp., 265 F.R.D. 91 (S.D.N.Y.2010)); see also City of Syracuse v. Onondaga Cty., 464 F.3d 297, 308 (2d Cir.2006) (" Although Rule 21 ‘ contains no restrictions on when motions to add or drop parties must be made, the timing of the motion may influence the court's discretion in determining to grant it. Thus, the court typically will deny a request that comes so late in the litigation that it will delay the case or prejudice any of the parties to the action." ) (quoting 7 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, Civil 3d § 1688.1 ...

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