United States District Court, E.D. New York
POSR A. POSR, Plaintiff,
DEPUTY INSPECTOR PASCALE and CITY OF NEW YORK, Defendants. KRIS GOUNDEN, Plaintiff,
CITY OF NEW YORK, DEPUTY INSPECTOR PASCALE, and ANTHONY POLLINA, Con Ed Revenue Specialist, Defendants.
MEMORANDUM DECISION AND ORDER
M. Cogan U.S.D.J.
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.
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.
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.
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.
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.
Edison is the holder of an easement granting Con Edison and
its employees access to both 1 Bayview Avenue and 152
Broadway. 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
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
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.
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 . . . .
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.
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.
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
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.
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.
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.
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.
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.
filed a Notice of Claim relating to his August 8, 2013 arrest
on February 19, 2015. Posr filed no ...