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Marom v. Town of Greenburgh

United States District Court, S.D. New York

February 23, 2015



NELSON S. ROMN, District Judge.

Plaintiff Michael Marom ("Plaintiff") commenced this action against defendants Town of Greenburgh (the "Town"), Joseph Decarlo, Chris McNerney (named as "Chris McNurney"), John Herighty, Keira Knoesel, Gabe Gouveia (named as "Gebe Gouveia"), Mark Gordon, Audrey Pierot, Deborah Salemo, Rocco Salemo, and the Estate of Steve Belasco, by complaint filed July 9, 2013 and amended November 1, 2013 (dkt. no. 11). On July 15, 2014, Plaintiff voluntarily dismissed the action with prejudice as against defendants Gordon and Pierot. See dkt. no. 98. All other defendants remain in the action and now move to dismiss certain claims pursuant to Federal Rule of Civil Procedure 12(b)(6), and in the case of two claims, pursuant to Rule 12(c). All pending motions are consolidated for purposes of this opinion and order. The Court GRANTS the motions in part, and DENIES them in part, for the reasons stated below.


The Town is a municipality. Joseph Decarlo, Chris McNerney, John Herighty, and Keira Knoesel are Town police officers of varying rank. Gabe Gouveia is a Town code enforcement officer. Mark Gordon and Audrey Pierot are private citizens who owned or occupied a piece of real property adjacent to property that was of concern to Plaintiff, as discussed below. Deborah and Rocco Salerno are private citizens who encountered Plaintiff at a town hall meeting, as discussed below. The late Steve Belasco is the former chairman of the Town's Zoning Board of Appeals ("ZBA"). The individual defendants will be referred to by last name in this opinion where appropriate for ease of reference.

The complaint asserts fifteen causes of action, which will be addressed seriatim below. The pleading is scattershot, but the Court is mindful that pro se complaints must be construed leniently to raise the strongest claims they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006).

In summary, Plaintiff contends that on February 16, 2012, in the Greenburgh town hall lobby, defendant Deborah Salerno attacked him with a shoe. Amended Complaint ("Compl.") (dkt. no. 11) ¶ 1. Although later conceding that he slapped Salerno in response, Plaintiff contends that she and her husband, defendant Rocco Salerno, falsely accused Plaintiff of assault. Id. ¶ 2. The police were called, and ultimately, Plaintiff was charged with third-degree assault. Id. ¶¶ 11-13. The complaint indicates that the prosecution concluded with an acquittal, id. ¶ 76, and defendants do not dispute this.

Plaintiff alleges that certain defendants collaborated with the police to suppress evidence and to discriminate against Plaintiff in connection with his arrest and the charges. Id. ¶ 10. In support of a false arrest claim, he contends there was no probable cause for his arrest, and in the alternative, that the probable cause to arrest him was "no greater than the probable cause for arresting Deborah Salerno." Id. ¶¶ 12-13. For damages, Plaintiff contends he "suffered mental, emotional despair and anguish, " having been paraded before the public on nightly news after his false arrest. Id. ¶ 15.

More broadly, Plaintiff contends that his constitutional rights under the Fourth, Eighth, and Fourteenth Amendments were violated. Id. In addition to false arrest, he asserts malicious prosecution, and he alleges that the arresting police officers refused to take his or his wife's eyewitness statements. Id. ¶ 20. He alleges that the officers referred the matter for prosecution without viewing a videotape of the incident. Id. ¶¶ 22-26.

He also claims negligence, predicated on unconstitutional police "patterns and practices." Id. ¶ 30. As one example, he contends the police refrained from investigating Plaintiff's complaints over the last three years (2011 to 2013) concerning vandalism on real property at 201 South Healy Avenue (a/k/a 11 Elizabeth Street) in Greenburgh. Id. ¶¶ 30-32. Plaintiff also resurrects a grievance from "years ago, " relating to summonses that code enforcement officer Gabe Gouveia issued on that property. Id. ¶¶ 40-41.

Plaintiff further alleges that in 2010, a police captain, Chris McNerney, failed to investigate some sort of insurance fraud involving downed power lines which implicated former defendants Gordon and Pierot. Id. ¶¶ 47-51. Gordon and Pierot own or occupy a property adjacent to the Elizabeth Street lot, and apparently clashed with Plaintiff over real property rights. In particular, the use of a driveway that runs between the two properties was in dispute.

Returning to 2012, Plaintiff asserts "illegal towing from private property" on the part of the Town and officer Joseph Decarlo, after Plaintiff's vehicle tires were slashed on February 18, 2012, two days after the incident at town hall. Id. ¶¶ 55-60. Plaintiff also asserts a claim for trespass onto private property against Decarlo and the Town. Id. ¶¶ 62-66.

Referencing apparently unrelated events in 2011, 2012, and 2013, Plaintiff claims discrimination and equal protection violations by police, including by officers Decarlo and McNerney. Id. ¶¶ 68-72, 74-80. Plaintiff again cites a pattern of ignoring his complaints from 2011 to 2013, most of which involved vandalism, id. ¶ 78, and Plaintiff attributes the purported discrimination to his national origin and possibly his religion, id. ¶ 80.

Referencing events in 1994, 2009, and 2011, Plaintiff reasserts negligence, and he also pleads "bad faith" and "unfair tax assessments" by the Town and ZBA chairman Steve Belasco, whose estate is named as a defendant. See id. ¶¶ 82 et seq. These final grievances are rooted in the Town's denial of a zoning variance for the Elizabeth Street property (a decision later reversed after Article 78 litigation), and in the Town's subdivision of, tax assessments on, and school district delineation for, the Elizabeth Street property. See id.


On a motion to dismiss for "failure to state a claim upon which relief can be granted, " Fed.R.Civ.P. 12(b)(6), dismissal is proper unless the complaint "contain[s] 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679.

When there are well-pleaded factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Ultimately, determining whether a complaint states a facially plausible claim upon which relief may be granted must be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.


A. Claim One - False Arrest

Plaintiff asserts a false arrest claim against the Town, officers Herighty and Knoesel, and Deborah and Rocco Salerno. A false arrest claim requires that a defendant, while acting under color of state law, confined the plaintiff without his consent and that such confinement was not otherwise privileged. Singer v. Fulton Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).[1] An arrest is privileged if probable cause to arrest existed under applicable state law. Dunaway v. New York, 442 U.S. 200, 208 n. 9 (1979); see also Boyd, 336 F.3d at 75.

The complaint does not contain any factual allegations suggesting that Deborah and Rocco Salerno were acting under color of state law in connection with Plaintiff's February 16, 2012 arrest at the Greenburgh town hall. The complaint alleges, rather, that the Salernos were private parties who reported the town hall incident to the police. The Salernos therefore move to dismiss the false arrest claim against them for lack of well-pleaded state action. See San Filippo v. U.S. Trust, 737 F.2d 246, 256 (2d Cir. 1984) ("a private party giving testimony is not acting under color of state law'"). Their motion is granted on that basis.

The Salernos also argue that Plaintiff concedes that he slapped Deborah Salerno, and further concedes that probable cause to arrest Plaintiff existed, insofar as the complaint compares such probable cause to the probable cause that existed to arrest Deborah Salerno. A concession regarding probable cause to arrest Plaintiff would undercut the false arrest claim as well. Curly v. Village of Suffferen, 268 F.3d 65, 70 (2d Cir. 2001) ("no federal civil rights claim for false arrest can exist where the arresting officer had probable cause"). On a motion to dismiss, however, the Court must draw reasonable inferences in Plaintiff's favor, and, as noted, pleadings from pro se litigants are construed leniently. Boddie v. Schieder, 105 F.3d 857, 860 (2d Cir. 1997). Generously read, the complaint asserts, at least in the first instance, an absence of probable cause to arrest Plaintiff for assault. See, e.g., Compl. ¶ 2 ("I was defending myself and my wife...."). This contention raises factual questions about what exactly transpired at town hall which are inappropriate for resolution on a motion to dismiss. The Court thus declines to grant the Salerno's motion on grounds that the allegations concede the existence of probable cause.

The Town and officers Herighty and Knoesel do not challenge the state action allegations against them. Nor do they move to dismiss the false arrest claim based on concessions in the complaint regarding probable cause. The Town does not move to dismiss the false arrest claim at all, while Herighty and Knoesel move to dismiss it only in part - they argue that the conspiracy aspect of the claim is barred by the res judicata effect of the voluntary dismissal against ...

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