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Alroy v. City of New York Law Dep't

United States District Court, S.D. New York

November 24, 2014

DANIEL A.L.R.OY, Plaintiff,

Page 394

Daniel Alroy, Plaintiff, Pro se, New York, NY.

For The City of New York Law Department, Michael A. Cardozo, William A. Grey, Defendants: Omar Hani Tuffaha, LEAD ATTORNEY, New York City Law Department, New York, NY.

For AvalonBay Communities, Inc., Timothy J. Naugton, Harrington, Ocko & Monk, LLP, Michael W. Freudenberg, Defendants: Kevin James Harrington, LEAD ATTORNEY, Harrington Ocko & Monk, LLP, White Plains, NY.

For Frederick S. Harris, Defendant: Kevin James Harrington, Harrington Ocko & Monk, LLP, White Plains, NY.

Page 395


VALERIE CAPRONI, United States District Judge.

This action arises out of the destruction of a sculpture owned by pro se Plaintiff Daniel Alroy that had been displayed in a community park, and his disappointment with the course of the ensuing state court litigation. Defendants have moved to dismiss the complaint.


On October 1, 2007, Plaintiff commenced an action (the " City Action" ) against the City of New York Parks and Recreation Department (the " Parks Department" or " City Defendant" ) in the Supreme Court of the State of New York, County of New York, alleging that the Parks Department was responsible for the destruction of his sculpture and that the destruction was an illegal taking without just compensation in violation of his Fifth and Fourteenth Amendment rights. Harrington Decl. Ex. B.[1] On September 29, 2009, Plaintiff brought a second action (the " Avalon Action" )

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against AvalonBay Communities, Inc. (" AvalonBay" ), Tony Casale, Inc., and Antonio Casale. Harrington Decl. Ex. C.[2] The two actions were consolidated for all purposes in 2010 (collectively, the " State Action" ), Avalon Mem. at 2, and the State Court granted summary judgment in favor of the City Defendants on June 21, 2012, see Harrington Decl. Ex. F. The Avalon Action is still pending in State Court. City Mem. at 3 n.2.

Plaintiff commenced this action on September 24, 2013, and filed an Amended Complaint on January 29, 2014. Dkt. 1, 7. Principally, Plaintiff alleges that the Defendants' conduct of the State Court proceeding constituted an abuse of process and a " denial of his constitutional right to due process and fair and equal access to the Courts." Compl. at 12.[3] Defendants have moved pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.[4]

For the following reasons, Defendants' motions are GRANTED and Plaintiff's Complaint is DISMISSED.


In 1995, Plaintiff agreed to provide a sculpture he had commissioned, allegedly from marble extracted from the same quarry used by Michelangelo, for display in a private community garden known as the Rock & Rose Garden located at the northwest corner of Houston Street and Second Avenue in Manhattan, New York. Compl. ¶ D1; Compl. Ex. 1. The agreement provided that Plaintiff would remove the sculpture within 24 hours upon written notice. Compl. ¶ D3. Thereafter, the Parks Department assumed jurisdiction of all community gardens, including the Rock & Rose Garden. Compl. ¶ D5. In 2005, the Parks Department undertook to integrate the Rock & Rose Garden with an adjacent garden and contracted with AvalonBay to oversee the project. Compl. ¶ D7.[6] AvalonBay

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subcontracted with Tony Casale, Inc. (" Casale" ) for certain aspects of the project. Compl. ¶ D7. On December 4, 2006, workers employed by Casale demolished the sculpture in order to remove it from the garden; Plaintiff had not been given advance notice of the removal or provided an opportunity to remove his sculpture. Compl. ¶ ¶ D8, D10.

Plaintiff brought an action against the City in 2007 for damages alleging that Casale acted at the direction of a Parks Department representative when it demolished the sculpture rather than removing it intact. Compl. ¶ D10, 12. The City denied liability and asserted that AvalonBay and Casale were liable for the destruction of the sculpture, prompting Plaintiff to commence the Avalon Action. Compl. ¶ D13. Plaintiff alleged that AvalonBay initially told the City and his attorney that two AvalonBay witnesses would testify that the City had directed the demolition of the sculpture. Compl. ¶ D14. When the AvalonBay witnesses were deposed, however, they testified that they did not remember the decision having been made by a representative of the City. Compl. ¶ ¶ D17. Plaintiff alleges that the witnesses " changed" their testimony as a result of improper conduct (not further defined or described) on the part of the City's attorney and collusion between the City and AvalonBay. Compl. ¶ ¶ D16, D17, D19.

Plaintiff claims these changed circumstances caused his attorney to " throw in the towel" and take actions that were contrary to Plaintiff's interests. Compl. ¶ E3; Pl. Mem. ¶ ¶ 5.4, 6.4. During the course of the State Action, Plaintiff terminated his ...

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