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Posr v. Pascale

United States District Court, E.D. New York

April 12, 2017

POSR A. POSR, Plaintiff,


          Brian M. Cogan U.S.D.J.

         Plaintiffs Kris Gounden and Posr A. Posr, both proceeding pro se, filed separate actions, pursuant to 42 U.S.C. § 1983 and state law, arising from their arrests on August 8, 2013, at 152 Broadway and 1 Bayview Avenue in Howard Beach, Queens, New York (collectively, the “Servient Estates”). Plaintiffs allege claims for false arrest, false imprisonment, malicious prosecution, and selective enforcement, for which they seek damages. They also request that this Court enjoin the police from ever arresting either of them at either of the Servient Estates.

         Plaintiffs are serial litigants in this Court, and the Court is familiar with the history of the litigation arising out of the Servient Estates. Although plaintiffs attempt to refer to issues raised in their prior cases, which relate to property law and public rights of easement by the City of New York, the instant matters are much more straight-forward cases, involving Con Edison's utility easement and basic principles of probable cause. For the reasons that follow, the Court grants defendants' motions for summary judgment and denies plaintiffs' motions for summary judgment.


         The following facts are taken from defendants' Local Rule 56.1 Statements and certain of the exhibits attached to the Declaration of Gary Moy. Plaintiffs failed to dispute the facts in defendants' Statements, which are supported by admissible evidence; thus, the Court deems defendants' Statements admitted. Although plaintiffs submitted their own Local Rule 56.1 Statements, the Court struck the vast majority of the Statements as impermissible legal arguments or irrelevant and unsupported statements.

         In June 2006, Gounden purchased a series of adjoining parcels of real property located on a peninsula in Queens County, New York. The properties are Lots 755, 759, 161, and 162 on Block 14338. Lot 162 encompasses the property located at 1 Bayview Avenue, Howard Beach, Queens, New York, and the deed to that property is in the name of plaintiff Gounden. Lot 759 encompasses the property located at 152 Broadway, Howard Beach, Queens, New York, and the deed to that property is in the name of plaintiff's wife, Sona Gounden. From approximately 2006 until 2012, Gounden lived at 1 Bayview Avenue with his wife and children. In 2012, Gounden and his wife separated, and he moved to his parents' home in South Ozone Park, Queens, New York. It is unclear when exactly, but it appears that sometime after the separation, Ms. Gounden moved to 152 Broadway.

         Between 2007 and approximately 2011, Gounden was the Con Edison customer of record for the property located at 1 Bayview Avenue. From some time prior to and including August 8, 2013, Ms. Gounden was the Con Edison customer of record for the property located at 152 Broadway.

         Con Edison is the holder of an easement granting Con Edison and its employees access to both 1 Bayview Avenue and 152 Broadway.[1] The easement arose by grant on May 31, 1923, from Hamilton Beach Estates, Inc., the then-owner and developer for the land encompassing the Servient Estates, to the New York and Queens Electric Light and Power Company (the “Power Company”). On July 31, 1945, a certificate of merger was filed with the State of New York Department of State, noting the merger between the Power Company and Con Edison.

         The 1923 easement, in relevant part, conveys to the

Power Company, its successors and assignees, the right, privileges, and easement from time to time hereafter of entering upon the said premises and constructing, maintaining and operating, through, along, on, under and over the tract, its ducts, conduits, manholes, poles, cables, wires and other fixtures and apparatus, and conducting and transmitting electricity in and through such streets, courts and avenues, and supplying the same to the premises abutting thereon, and to the occupants of such premises, and to such other property or persons as the [Power Company] from time to time may desire.

         There are Con Edison utility poles that provide power on each of the Servient Estates. To reach the Con Edison utility pole at 152 Broadway, which is a landlocked property, Con Edison travels through 1 Bayview Avenue.

         In addition to the easement, the New York State Public Service Commission issued a tariff that allows the following:

[Con Edison's] duly authorized representatives shall have the right of access to the premises of the Customer and to all of [Con Edison's] property thereon at all reasonable times for the purpose of reading and testing meters, inspecting equipment used in connection with its service, metering the demand, ascertaining and counting the connected load of the Customer's installation, installing, inspecting, maintaining and replacing where necessary, its load equipment, removing its property, or any other proper purpose . . . .

         Con Edison had previously gone to the Servient Estates to read the electric meters. Prior to August 8, 2013, Gounden did not stop or prevent Con Edison from accessing his property at 1 Bayview Avenue to read his electric meter.

         Plaintiff's wife had failed to pay her Con Edison bills for an extended period of time for 152 Broadway, and she came to owe approximately $5, 000 in missed payments. On August 8, 2013, employees of Con Edison were present at 1 Bayview Avenue to disconnect power to 152 Broadway for this non-payment of service. Gounden was aware that his wife had not paid her electric bill for some time and that Con Edison was coming to the property to shut off service to 152 Broadway.

         However, at the exact time the Con Edison employees arrived at 152 Broadway (by way of ingress through 1 Bayview Avenue), Gounden and Posr were at Queens Family Court. While both men were at Queens Family Court, Gounden received a phone call from his employee, Lloyd Sentine, who was present at 1 Bayview Avenue to do some work on the property. Sentine informed Gounden that Con Edison had trespassed on his property. Gounden then instructed Sentine to move a minivan, which was already present at the property, to block the Con Edison truck's way of egress, thus preventing the Con Edison truck, and therefore the Con Edison employees, from leaving.

         Sentine complied with Gounden's direction and moved the minivan. With the path blocked by the minivan, the Con Edison truck had no alternative path to leave the general location of 152 Broadway. After speaking to Sentine, Gounden and Posr left Queens Family Court and headed to 1 Bayview Avenue.

         Having been blocked from leaving 152 Broadway by the minivan, the Con Edison employees called another Con Edison employee, Anthony Pollina, and advised him that they were being blocked from leaving and that they felt threatened. Pollina arrived on the scene to find the minivan blocking the Con Edison truck. Pollina then called 911 to report that an individual was using a vehicle to prevent the Con Edison vehicle from leaving 152 Broadway.

         Officers from the 106th Precinct responded to the 911 call and were already on the scene when Gounden and Posr arrived. When Gounden and Posr arrived on scene, they told the police that the Con Edison truck and the employees were trespassing on Gounden's property. Approximately thirty minutes later, defendant Deputy Inspector Pascale arrived on the scene and surveyed the scene himself. Deputy Inspector Pascale asked Gounden for the keys to the minivan, and Gounden refused to provide the keys. Deputy Inspector Pascale subsequently asked Gounden twice to move the minivan, and both times Gounden refused. After Gounden refused the second time, Deputy Inspector Pascale directed one of the officers to place Gounden under arrest. The arrest record indicates that he was arrested for unlawful imprisonment.

         After Gounden was arrested, Posr perched himself on the trunk of the minivan to prevent a tow truck, which had arrived on scene, from moving the minivan. Deputy Inspector Pascale requested that Posr remove himself from the minivan, and Posr refused. Posr also refused Deputy Inspector Pascale's request for the keys. Thereafter, Deputy Inspector Pascale also ordered Posr's arrest.

         Gounden eventually received a Desk Appearance Ticket for the arrest and was released from the 106th Precinct. Gounden's criminal case, which cites a charge for Disorderly Conduct pursuant to N.Y. Penal Law § 240.20, was dismissed on December 1, 2014, on speedy trial grounds. Posr was charged with Unlawful Imprisonment in the Second Degree pursuant to N.Y. Penal Law § 135.05, Obstructing Governmental Administration pursuant to N.Y. Penal Law § 195.05, and Disorderly Conduct pursuant to N.Y. Penal Law § 240.20. Posr was arraigned, and on October 17, 2013, Posr's criminal case was dismissed in the interest of justice.

         Gounden filed a Notice of Claim relating to his August 8, 2013 arrest on February 19, 2015. Posr filed no ...

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