Wilner v. Village of Roslyn
952 N.Y.S.2d 71
N.Y. App. Div.2012Background
- Plaintiff owns a house in the Village of Roslyn; a rain storm beginning Oct. 7, 2005 undermined hillside and collapsed the retaining wall.
- Landslide damaged plaintiff’s property and also damaged the Village Hall about 130 feet downhill.
- Village Code Enforcement Officer Wade Curry concluded a faulty storm drain on plaintiff’s property caused the slide and issued criminal summons.
- An investigation later showed the damage was caused by a clogged/damaged manhole on a Village drain at the hilltop.
- The Village pursued the criminal action through Aug/Sep 2006, then moved to dismiss.
- Plaintiff sued the Village defendants and Village Attorney Gibbons for abuse of process, malicious prosecution, and§ 1983 claims; the trial court granted summary judgment for the Village defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Abuse of process- collateral objective requirement | Pl's last name (P) asserts abuse of process for wrongful use of criminal process. | Village argues no collateral objective; process not abused. | Village summary judgment on abuse of process affirmed. |
| Malicious prosecution elements and probable cause | P can prove lack of probable cause and malice. | Village contends insufficient evidence of lack of probable cause/malice. | Question of probable cause/malice unresolved; reversible error by trial court in part. |
| 42 U.S.C. § 1983 malicious prosecution standard | § 1983 claim should survive if criminal proceeding was improper. | Proceeding prearraignment, nonfelony summons limits liberty impact. | Dismissal upheld for § 1983 malicious prosecution claim. |
| § 1983 equal protection claim viability | Village violated equal protection through improper prosecution. | Defendants disputing equal protection merits. | Court erred in granting summary judgment on equal protection claim; issue preserved. |
Key Cases Cited
- Hudson Valley Med. Ctr. v Town of Cortlandt, 79 A.D.3d 700 (2010) (abuse of process elements and collateral objective)
- Johnson v Kings County Dist. Attorney’s Off., 308 A.D.2d 278 (2003) (elements of abuse of process)
- Broughton v. State of New York, 37 N.Y.2d 451 (1975) (malicious prosecution elements and burden)
- Smith-Hunter v Harvey, 95 N.Y.2d 191 (2000) (malicious prosecution elements; probable cause and malice)
- Mangino v. Village of Patchogue, 739 F. Supp. 2d 205 (2010) (§ 1983 malicious prosecution standard; federal framing)
- Parkash v Town of Southeast, 2011 WL 5142669 (2011) (discusses prearraignment summons and § 1983 standards)
- Burg v. Gosselin, 591 F.3d 95 (2010) (§ 1983 malicious prosecution standard in Second Circuit)
- Mangino v. Incorporated Vil. of Patchogue, 739 F. Supp.2d 205 (2010) (federal Malicious Prosecution standard)
- Albright v. Oliver, 510 U.S. 266 (1994) (§ 1983 Fourth Amendment per se rights)
- Washington v. County of Rockland, 373 F.3d 310 (2004) (Fourth Amendment per se rights in § 1983 context)
- Holland v City of Poughkeepsie, 90 A.D.3d 841 (2011) (§ 1983 procedural standards)