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Goldring v. Zumo

United States District Court, E.D. New York

January 12, 2015

DET. JASON ZUMO, et al., Defendants.


BRIAN M. COGAN, District Judge.

Before me is defendants' partial motion to dismiss (which would be better phrased as a motion for partial dismissal) for failure to state a claim. Defendants move to dismiss plaintiff James Goldring's claim of "harassment, " which arises from economic harm allegedly done to his barbershop business by certain of the defendant police officers in the months following plaintiff's arrest for accidentally shooting his son. For the reasons that follow, defendants' motion is granted and this claim is dismissed.


This case is principally concerned with plaintiffs' unlawful search and false arrest claims arising from an incident in which plaintiff James Goldring accidentally shot his teenaged son while cleaning a firearm in their home in Queens County. The allegations that are the subject of the instant motion concern certain conduct by police officers occurring in the months following, and allegedly related to, that incident. The following facts are assumed true for the purpose of deciding this motion.

About two months after the shooting incident that gave rise to plaintiffs' other claims in this case, five N.Y.P.D. officers from the 113th Precinct entered plaintiff James Goldring's barbershop to inspect his business and professional licenses.[1] On the same day, a customer smoking outside of the shop was arrested for loitering. Two days later, two officers entered the barbershop and examined the same licenses. About five months later, nine of the named defendant officers entered the shop for the same reason. Plaintiff was then issued three summonses for failure to display his barber's license; having unswept hair on the floor; and failure to display the address of his barbershop on the front door.[2] All of these charges were ultimately dismissed.

Several weeks later, a customer who had just come out of the shop was stopped and questioned by five police officers traveling in unmarked cars. He was told that he had been stopped because "the shop was known to be a place of criminal activity." About one week later, six of the named defendants entered the barbershop and issued three summonses for an unswept floor; for an uncovered garbage can; and for the presence of paper towels that had not been thrown into the garbage can.[3] All of these charges were ultimately dismissed.

About two months later, several officers entered the barbershop and demanded the licenses of the two barbers present, and then issued four summonses to each of them for having hair on the floor of the shop, not having a cover on the garbage can, not having an address on the front door of the premises, and not having licenses displayed. As a result of this "constant harassment, " plaintiff's business began to suffer, lost customers and employees, fell behind on its rent, and was forced to close.


I. The Nature of Plaintiff's Claim

The Complaint suggests, and plaintiff's opposition to the instant motion confirms, that the claim at issue is one for violation of plaintiff's procedural due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution, via 18 U.S.C. § 1983, based on the constitutional tort of malicious abuse of process. See Savino v. City of New York, 331 F.3d 63 (2d Cir. 2003). This has not been agreed to from the outset, so I address it briefly.

The crux of plaintiff's claim is that the summonses issued to him were issued "with the intention, ultimately successful, not of enforcing those statutes and ordinances, but of harming and interfering with [plaintiff]'s business to the point that it was destroyed." No other constitutional violation is argued in plaintiff's opposition, and the Complaint alleges no purpose beyond a campaign "maliciously aimed at harming his business."

During the off-the-record Initial Status Conference in this case, the Court and the parties attempted to clarify the cause of action stated by these allegations. In light of that attempt, which was inconclusive, defendants' motion addressed procedural due process claims arising both from deprivation of property and from malicious abuse of process which, in a criminal context, is "by definition" a violation of procedural due process. See Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994); Hoffman v. Town of Southampton, 893 F.Supp.2d 438, 446-47 (E.D.N.Y. 2012), aff'd sub nom. Peter L. Hoffman, Lotte, LLC v. Town of Southampton, 523 F.Appx. 770 (2d Cir. 2013).[4] Defendants' motion therefore includes an argument that plaintiff has failed to allege the inadequacy of state remedies. This is an argument they expressly addressed only "[t]o the extent plaintiff attempts to state a claim for deprivation of property, " where (unlike in abuse of process claims), exhaustion of state remedies is a requirement. See Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194 (1984).

Plaintiff's opposition to the instant motion makes clear that he is not asserting a deprivation of property claim, but only an abuse of process claim. Although both are actionable as violations of procedural due process under § 1983, they are distinct claims, and plaintiff only asserts the latter. For example, he styles his submission an "opposition to defendants' motion to strike that portion of plaintiffs' complaint that alleges a cause of action for malicious abuse of process in violation of plaintiffs' right to due process of law." Moreover, the parties cite no authority suggesting that a deprivation of property claim is appropriate on the facts at bar, and I am aware of ...

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