MEMORANDUM AND ORDER
On October 23, 2006, pursuant to 42 U.S.C. § 1983, plaintiffs John Mangino (“Mr. Mangino”) and Elaine Mangino (“Ms. Mangino”) (together “plaintiffs”) brought this action against defendants Incorporated Village of Patchogue (“the Village” or “Patchogue”), Fire Marshall John P. Poulos (“Poulos”), Code Enforcement Officer James Nudo (“Nudo”), the Patchogue Fire Department
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(“the Fire Department”), Fire Chief Joseph Wagner (“Wagner”), Unidentified Employees and Agents of the Incorporated Village of Patchogue and Unidentified Employees and Agents of the Patchogue Fire Department,
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(collectively “defendants”), alleging that defendants violated plaintiffs’ rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. Plaintiffs also allege claims for conspiracy under § 1983 against the Fire Department defendants and claims for municipal liability against the Fire Department and the Village. The Fire Department defendants and the Village defendants now move, separately, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants’ motions are granted in part and denied in part. In particular, the Court grants the Fire Department defendants’ motion for
I. Facts
The Court has taken the facts set forth below from the parties’ depositions, affidavits, and exhibits, and from the parties’ respective Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party.
See Capobianco v. City of N.Y.,
A. Background
As of October 2007, plaintiff John Mangino was the owner of 21 Church Street in Patchogue, New York. (Pl. Vill. 56.1 ¶ 1.) 3 Mr. Mangino and his wife, plaintiff Elaine Mangino, purchased 21 Church Street some time between 2001 and 2003. (Id. ¶ 2.) There were eight tenants living at 21 Church Street when plaintiffs acquired the property. (Id. ¶ 12.) Mr. Mangino became the sole owner of 21 Church Street on September 6, 2005. (Id. ¶ 3.) Mr. Mangino never resided at 21 Church Street or in the Village of Patchogue. (Id. ¶¶ 4-5.) 4 21 Church Street was a three-story, wood-framed, eight-family apartment house that was built in approximately 1900. (Id. ¶¶ 10-11.) There were three apartments on the first floor, four apartments/boarding rooms on the second floor, and one apartment on the third floor. (Id. ¶ 13.) The boarding rooms on the second floor shared one bathroom. (Id. ¶¶ 14-15.) Apartments 2, 3, 4, 5, and 6 used the main lobby door as an entrance to the apartment building. (Id. ¶ 17.) The building also had a basement that was used for storage. (Id. ¶¶ 17-18.) Plaintiffs charged some tenants an additional fee in order to use the basement for personal storage. (Id. ¶ 20.) Mr. Mangino also maintained a double-locked private room in the basement with security equipment set up in the room, as well as other personal items. (Id. ¶ 19.) The tenants could not access this room.
B. The Rental Permit Law
In 1997, the Village of Patchogue Board of Trustees enacted Local Law No. 8 to add Chapter 56 of the Village Code to regulate rental dwelling units. (Id. ¶ 22.) The stated purpose of the law is that the “public health, safety, welfare, and good order governance of the Village of Patchogue will be enhanced by the enactment of Chapter 56.” (Id. ¶23.) The Rental Permit Law applies to “all Rental Dwelling Units located within the Village of Patchogue.” (Id. ¶25.) According to the terms of the Rental Permit Law:
It shall be unlawful and a violation of this Article and an offense within the meaning of the Penal Law of the State of New York for any person or entity who owns a Dwelling Unit in the Village of Patchogue to use, establish, maintain, operate, let, lease, rent or suffer or permit the occupancy and use thereof as a Rental Occupancy by someone other than the owner or his immediate family, without first having obtained a valid Rental Occupancy Permit therefor. Failure or refusal to procure a Rental Occupancy Permit hereunder shall be deemed a violation.
Rental Permit Law § 56-4(A). A property owner who desires to rent out a dwelling unit is thus required to obtain a rental occupancy permit from the Village Building Department. Rental Permit Law § 56 — 5(B).
C. Village Housing Inspector James Nudo
Defendant James Nudo was employed as the Housing Inspector and Code Enforcement Officer for the Village of Patchogue from 1992 until 2006. (PI. Vill. 56.1 ¶¶ 33-34.) Nudo’s job required him to perform field inspections of houses and enforce the Village Code. (Id. ¶ 35.) Nudo was also required to investigate complaints and issue summonses for noncompliance with the Village Code; Nudo had the authority to determine whether to issue a summons in a given situation. (Id. ¶¶ 35-36.) Nudo’s primary job, as Village Housing Inspector, was to perform rental inspections. (Id. ¶ 37.)
A Village Housing Inspector has discretion to issue tickets to a landlord for failing to secure a rental occupancy permit. (Vill. 56.1 ¶ 117.) The decision of whether to issue a summons is based upon the number and seriousness of the offense(s). (Id. ¶ 118.) Moreover, each day that a property is in violation of the Village Code is a separate violation. (Id. ¶¶ 120-21.)
D. Plaintiffs’ Rental Permit History and January 2005 Tickets
Plaintiffs applied for a two-year rental permit when they purchased 21 Church Street. (PI. Vill. 56.1 ¶38.) When plaintiffs submitted their application, in or about 2002, Nudo conducted a rental occupancy permit inspection, during which he took notes regarding his observations at the premises. (Id. ¶¶ 39-41.) Both plaintiffs and the Village defendants acknowledge that the inspection by defendant Nudo was tense, but the precise details of any exchanges between the parties are disputed. (Compare Vill. 56.1 ¶¶ 42-45 with PL 56.1 ¶¶ 42^5.) Due to their disagreements, Nudo left 21 Church Street without finishing the inspection. (Vill. 56.1 ¶ 56.) Housing Inspector William Powell went to 21 Church Street to finish the rental occupancy permit inspection. (Id. ¶ 47.) Plaintiffs were not issued any violations or tickets at that time. (Id. ¶ 49.)
On February 2, 2002, Mrs. Mangino was issued a rental occupancy permit for 21 Church Street. (Id. ¶ 50.) Plaintiffs paid a $200 flat fee for a two-year eight-unit dwelling rental occupancy permit for the property. (Id. ¶ 51.) This permit expired in approximately 2004. (Id. ¶ 52.) Plaintiffs refused to renew their rental occupancy permit for 21 Church Street. (Id. ¶ 53.) As of October 2007, Mr. Mangino still did not have a valid rental occupancy permit for 21 Church Street. (Id. ¶ 54.)
Plaintiffs’ rental occupancy permit expired in or around February 2004. (Vill. 56.1 ¶ 60.) Mr. Mangino was aware that the Village Code required that the owner of a dwelling unit obtain a rental occupancy permit prior to renting the dwelling, and the Village mailed a rental occupancy permit renewal application for 21 Church Street prior to January 2005.
(Id.
¶¶ 61-
According to Nudo’s testimony, while driving around the Village in January 2005, he drove by 21 Church Street and saw some broken or missing screens and a rip in the screen door. (Id. ¶ 65.) Nudo testified that he thereafter checked the property files to see when 21 Church Street was due for a rental occupancy permit inspection. (Id. ¶ 66.) Nudo noticed, and Mr. Mangino concedes, that as of January 2005, 21 Church Street did not have a valid rental occupancy permit. (Id. ¶¶ 68, 70.) On January 12, 2005, Nudo issued appearance tickets to plaintiffs for their failure to apply for or secure a rental permit for 21 Church Street as required by the Village Code. (Vill. 56.1 ¶ 72.) Each plaintiff received a summons because, as co-owners of the property, each was responsible for obtaining a rental occupancy permit. (Id. ¶ 73.)
After being issued these summonses in January 2005 for failure to obtain a rental permit, plaintiffs challenged the summonses in court. They challenged both the individual summonses and the validity of the rental permit law, as well as the manner of service of the tickets by the Village defendants. (Pl. Vill. 56.1 ¶81.) While their challenge to the tickets was ongoing, plaintiffs allege that the Village prosecutor threatened plaintiffs, stating that if they did not settle the pending litigation against the Village (challenging their tickets and the constitutionality of the permit law) — or accept a plea bargain — they would be hit with a barrage of summonses. (Id.; see also PL Ex. 5 Notice of Claim 11-15-06; Raskin Dep. at 132-33; Mangino 50-h 3-16-07 at 92-100, 201.)
E. Elinor Kolb’s Complaints
In 2005, Elinor Kolb was a resident in Apartment 5 at 21 Church Street. (Vill. 56.1 ¶ 143.) Kolb visited the Village Housing Department to complain about 21 Church Street (id. ¶ 144), however, the parties dispute the frequency of Kolb’s visits to the Housing Department. The Village documented Kolb’s visits to the Housing Department on two occasions: May 6, 2005 and July 22, 2005. (Pl. Vill. 56.1 ¶ 145.) On May 6, 2005, Kolb filed a written complaint with the Housing Department stating that the bathroom sink and bathtub on the second floor of 21 Church Street were clogged and unusable. (Vill. 56.1 ¶¶ 146-47.) 5 This bathroom was shared by three tenants, and Kolb also complained that the bathroom was filthy and vandalized. (Id. ¶¶ 149-50.) Kolb stated that Mr. Mangino was aware of the problem with the sink but had not repaired it or called a plumber after seven days. (Pl. Vill. 56.1 ¶ 148.) Kolb also stated that she was afraid of Mr. Mangino and feared that he would evict her, but plaintiffs dispute the veracity of this statement. (Id. ¶ 152-53.)
On July 22, 2005, Kolb went to the Housing Department and stated that she was having additional issues with 21 Church Street.
(Id.
¶ 156.) According to the incident report, Kolb stated that the “toilet does not flush properly and the bathroom is shared with other tenants.”
F. Apartment 2
Dawn Gucciardo (“Gucciardo”) was a resident of 21 Church Street who resided in Apartment 2 from November 2004 until October 2005. (Vill. 56.1 ¶ 165.) Gucciardo had one child and was pregnant with a second when she moved into Apartment 2. (Id. ¶ 166.) Gucciardo lived in Apartment 2 with her two children, and, periodically, her boyfriend also stayed with her. (Id. ¶ 167.) Gucciardo’s lease stated that the rent was $950 per month, but Mr. Mangino and Gucciardo both testified that they believed it was $900 per month or $1200 per month, with the Department of Social Services (“DSS”) paying $900 per month. (Pl. Vill. 56.1 ¶ 170.) Gucciardo’s rent was paid, in part or in full, by DSS. (Id. ¶ 171.) Pursuant to a separate agreement with Mr. Mangino, Gucciardo paid a fee in order to store a few boxes in the basement and for the additional tenants (her newborn child and, possibly, her boyfriend) that resided in the apartment with her since the date on which she signed the lease. (Id. ¶¶ 172-73.)
As of October 2007, there had been two fires at 21 Church Street since plaintiffs purchased it — one involving a refrigerator, and another involving a candle next to a drape. 6 (Id. ¶ 187.) On May 9, 2004, the Patehogue Fire Department responded to a reported structural fire at 21 Church Street. (Id. ¶ 188.) An electrical fire was found in Apartment 2; specifically, there was a fire in the refrigerator motor/switch. (Id. ¶ 189.) The electrical outlet in the kitchen was “damaged” and “burned from the fire.” (Id. ¶ 191.) Defendant Poulos, the Village’s Chief Fire Marshal, responded to the fire in Apartment 2 and determined that the refrigerator was the point of origin of the fire. (Id. ¶¶ 192-93.) According to Poulos’s fire report, on May 9, 2004, “[t]he most burnt area was around the electrical switch mounted to the ... right hand side wall about two inches [above] the floor.” (Pl. Ex. 70, Poulos Fire Report 5-9-04.) As a result of the incident, Mr. Mangino was issued a Fire Prevention Order. (Vill. 56.1 ¶ 197.) The electrical outlet in the kitchen had to be repaired as a result of the fire because it was melted. (Pl. Vill. 56.1 ¶ 198.)
After the fire, the electrical system in Apartment 2 had to be certified by a licensed electrician, all smoke detectors in the house had to be checked, the sprinkler system had to be tested and certified, and the fire escape had to be repainted. (Vill. 56.1 ¶¶ 199-202.) Mr. Mangino complied with the Fire Prevention Order. (Id. ¶ 203.)
G. John Poulos
Defendant John Poulos became the Village Chief Fire Marshal in 2003. (Vill. 56.1 ¶ 174.) Prior to his employment with the Village, Poulos had been trained at the Fire Academy, had a background in fire prevention, was a New York City firefighter, and was a certified Fire Marshal and investigator. (Id. ¶ 175.) Poulos had also passed the civil service exam for New York City Fire Lieutenant. (Id. ¶ 176.) As of October 2007, Poulos had twenty-seven years of experience as a firefighter. (Id. ¶ 177.) Poulos was also certified by New York State as a Building Inspector, and certified in building codes, fire prevention, and “cause and origin.” (Id. ¶¶ 178-79.)
The Village Fire Marshal is required to inspect buildings for fire hazards and
In July 2005, Poulos, as Chief Fire Marshal, was responsible for inspecting building code violations, determining the cause and origin of fires, answering fire department complaints, and informing the fire department of fire hazards. (Vill. 56.1 ¶¶ 183-84.) The Village defendants contend that if firefighters find fire hazards or violations in a building, they report them to the Village Fire Marshal. (Id. ¶ 185.) Plaintiffs stated that: “Captain Welsh and defendant Chief Wagner testified that there is a chain of command [whereby firemen] report perceived concerns to the Captain, who is the senior officer inside, and then it is up to the Captain to report to the Chief. It is the Chiefs call whether or not to inform the Fire Marshal.” (Pl. Vill. 56.1 ¶ 185.) Nonetheless, Poulos did investigate complaints reported by the Fire Department, although, according to plaintiffs, those investigations were not always immediately performed. (Vill. 56.1 ¶ 186; Pl. Vill. 56.1 ¶ 186.) Poulos testified that he did not perform inspections based on the owner of the property; rather, the inspections he performed were completely random and performed at his discretion. (Vill. 56.1 ¶¶ 365-67, 369, 372.)
H. Gucciardo’s Complaints Regarding Apartment 2
Gucciardo did not like living at 21 Church Street; she testified that she wanted to break the lease with Mr. Mangino and move into a larger apartment because the apartment was too small for her to live in with her growing children. (Pl. Vill. 56.1 ¶¶ 211-12.) As a result, Gucciardo called David Knepp, an investigator for DSS, and requested that he inspect her apartment. (Id. ¶ 213.) On July 21, 2005, Gucciardo called the Village Housing Department regarding her apartment; specifically, she requested that the someone come check the power. (Pl. Vill. 56.1 ¶ 214.) Nudo answered Gucciardo’s phone call to the Housing Department. (Id. ¶ 215.) According to the incident report from the phone call, Gucciardo stated that:
she’s having a problem with the landlord. He’s allegedly made promises that have not been kept regarding repairs to her apartment. She said her windows don’t remain in an open position, there are holes in her floor, her refrigerator malfunctions, she’s experienced electrical problems and the basement has a large amt of debris. She’s lived there with her 2 small children since Nov ’04 and pays $950 per month. She fears the stated conditions will result in a fire.
(Vill. Defs.’ Ex. RR, Gucciardo Incident Report 7-21-05.) 7 Gucciardo testified at her deposition that she wanted the Village to check the refrigerator because it was not cold enough from time to time and denied that she had called to report several items in the incident report. (Pl. Vill. 56.1 ¶ 219.)
After the phone call to the Housing Department, Gucciardo set up a Village Inspection for the same day that Knepp was scheduled to be at her apartment.
(Id.
¶ 221.) According to Nudo’s testimony, because the Village Fire Marshal had to be alerted whenever there was a concern of
On July 22, 2005, Gucciardo called the Village Housing Department to report that things were “getting fixed.” (Vill. 56.1 ¶ 224.) Poulos was not at work on July 20, 21, 22 or 23 of 2005 (id. ¶ 225); thus, he was not present when Gucciardo called the Housing Department on July 21 or 22.
I. Gucciardo’s Alleged July 25, 2005 Report to Village Housing Department
On July 25, 2005, all eight apartments at 21 Church Street were occupied by tenants; Gucciardo still resided in Apartment 2. (Id. ¶¶ 227-28.)
On the morning of July 25, 2005, Poulos reported to work at the Village Building and Housing Department office. (Id. ¶ 229.) At this point, the parties present conflicting versions of the facts. According to the Village defendants, Gucciardo called the Village Housing Department to complain that the outlets in her apartment were sparking or arcing. (Id. ¶¶ 230-32.) The parties agree that a report of sparking or arcing outlets is considered an emergency. (Vill. 56.1 ¶ 234.) Gallo claims that she did not write down Gucciardo’s complaint because Poulos was in the office that day. (Vill. 56.1 ¶ 236.) When Poulos arrived at the Village Building and Housing Department office, Gallo informed him that Gucciardo had complained about sparking outlets in her apartment. (Id. ¶237.) The Village defendants contend that Poulos considered Gucciardo’s complaint an emergency, so he left immediately to go to 21 Church Street to investigate the situation. (Id. ¶ 238.)
According to plaintiffs, Gucciardo did not call the Village that morning, and the last time she had contacted the Village regarding her apartment was her call on July 22 to state that “things were getting fixed.” (Pl. Vill. 56.1 ¶¶ 230-31.) Gucciardo denies making any call on July 25, 2005. (Gucciardo Dep. at 230-31.) Plaintiffs also point to the fact that it is the usual custom of the Village to document or keep records of all complaints made; accordingly, they argue that the lack of a record of Gucciardo’s alleged call on July 25, 2005 establishes that there was no call. (Id. ¶ 230.) Plaintiffs argue that Gucciardo called the Village on July 21, 2005 to have them come check the power on her refrigerator and that she did not call to complain about other problems. (Id.)
Plaintiffs also have noted a number of alleged inconsistencies in defendants’ evidence; plaintiffs contend these inconsistencies demonstrate that the alleged complaint on July 25, 2005 regarding “arcing or sparking wires” never occurred. Plaintiffs first note that the Village defendants’ evidence demonstrates that Poulos did not arrive until after Gallo had completed the alleged call with Gucciardo. (Pl. Vill. 56.1 ¶ 236.) However, later in their statement of undisputed facts, plaintiffs assert that, according to Poulos’s testimony, Gallo was still on the phone with Gucciardo at the time she advised Poulos of the alleged arcing or sparking wires.
(Id.
¶ 237.) Plaintiffs also argue that Poulos testified that Kolb was physically present in the Village office when Poulos received the message about Gucciardo’s complaint.
(Id.)
Poulos also testified that Giglio, who was at the counter with Kolb “yelled” the complaint about the toilet bowl to Poulos as he was going out to the premises.
(Id.)
Giglio testified that Kolb was in the office making a complaint at the same time Gallo received the call from Gucciardo regarding “arcing or sparking” wires.
(Id.)
Plaintiffs argue that Kolb was only in the office making a complaint on July 22, 2005, and,
J. Poulos’s July 25, 2005 Arrival at 21 Church Street
The Village defendants contend that, upon receipt of Gueciardo’s complaint, Poulos was concerned, so he left immediately to go to 21 Church Street to investigate. (Vill. 56.1 ¶ 239.) Plaintiffs argue that, had Poulos considered the situation a legitimate emergency, he would have called the Fire Department immediately. (Pl. Vill. 56.1 ¶ 239.) Poulos testified that he did not immediately call the Fire Department because he wanted to determine if the outlet was sparking or arcing before doing so. (Id.) He further testified that it took only minutes to drive to the premises and that, while en route to 21 Church Street, he called Mr. Mangino on his cell phone. (Id.; Vill. 56.1 ¶ 342.) Poulos arrived at the premises at approximately 11 a.m. (Vill. 56.1 ¶ 245.) 8
Mr. Mangino was at 21 Church Street when Poulos arrived. (Id. ¶ 246.) Poulos told Mr. Mangino that he had come to check the outlet in Apartment 2. (Id. ¶ 248.) At some point before, during, or after his exchange with Poulos, Mr. Mangino called his lawyer, Edward Raskin (“Raskin”). (PL Vill. 56.1 ¶¶ 248-50.) Mr. Mangino refused to let Poulos in the house to check the outlet without a warrant. (Vill. 56.1 ¶ 251.) Plaintiffs contend that that Mr. Mangino put Poulos on the phone with Raskin, who told Poulos he could not enter the house without a warrant. (Pl. Vill. 56.1 ¶ 363.) Poulos called Nudo to request his assistance at 21 Church Street. (Vill. 56.1 ¶ 252.) Poulos informed Mr. Mangino that, if Mr. Mangino would not allow Poulos in, Poulos would call the Fire Department to investigate. (Id. ¶ 255.)
K. The Search of 21 Church Street
At 11:01 a.m., because Mr. Mangino would not permit Poulos to enter the building, Poulos radioed the Village Fire Department with a code “Signal 13,” which is an all-encompassing general alarm for a structure. (Pl. Vill. 56.1 ¶235; Vill. 56.1 ¶ 256.) The certified Dispatch Communications Sheet indicates a report of “wires burning in building.” (PL Ex. 73, VP Ambulance Co. Call Sheet 7-25-05.) This type of alarm is considered an emergency that the Fire Department responds to as quickly as possible. (Pl. Vill. 56.1 ¶ 235) The Fire Department received the alarm at 11:01 a.m. and arrived at 11:04 a.m. at 21 Church Street with four fire trucks, one fire rescue truck, and three other Fire Department vehicles. (Id. ¶ 256, 258, 259.)
Fire Chief Wagner arrived at the premises and asked Poulos what the problem was. (FD 56.1 ¶ 6.) Poulos explained that there had been a report of arcing or sparking outlets or wires and that the house was very old and had a previous fire.
(Id.
¶ 7.) The parties dispute whether Mr. Mangino initially would allow the Fire Department to enter the building; however, Mr. Mangino ultimately permitted the Fire Department personnel to enter the premises. (PL Vill. 56.1 ¶ 268; FD 56.1 ¶¶ 8-10.) Wagner informed Mr. Mangino that, since
Captain Welsh of the Patchogue Fire Department entered 21 Church Street with two to four firemen to look for an electrical problem or file. (Pl. Vill. 56.1 ¶ 281; Vill. 56.1 ¶ 281; FD 56.1 ¶ 13.) The firemen entered the house with thermal imaging cameras that allowed them to see through walls. (Vill. 56.1 ¶289.) Mr. Mangino entered the house with the firemen (Id. ¶ 282), while Wagner and Poulos remained outside. (Id. ¶ 284; FD 56.1 ¶ 14.) The Fire Department inspected the entire building, including the basement, because the main electrical service entered the building through the basement. (FD 56.1 ¶ 15.) Plaintiffs state that the fire personnel did not, however, evacuate any persons who may have been in the building. (Pl. FD 56.1 ¶ 15.)
The parties dispute whether the Fire Department entered Gucciardo’s apartment because the door was open, because they received consent from Gucciardo, or because the firemen represented to Gucciardo that there was an emergency and “barged” in. (Compare Vill. 56.1 ¶ 291 with Pl. Vill. 56.1 ¶ 291.) Plaintiffs assert that Gucciardo “did not have [an] opportunity to object” to the Fire Department’s entry. (Pl. Vill. 56.1 ¶ 292.) To the plaintiffs’ knowledge, the firemen did not enter any other apartments. (Id. ¶ 293.) According to Welsh, the firemen checked Apartment 2 for outlet or wire problems. (Id. ¶ 294.) There was also testimony that they searched the walls with the thermal imaging camera to make sure that there was not a fire in the walls and checked the basement to make sure there was no fire or arcing wires. (Id. ¶¶ 294-95.)
Mr. Mangino escorted the firemen into the basement, where the firemen searched the basement walls with thermal imaging cameras and checked where the wiring and burner were located. (Pl. Vill. 56.1 ¶ 297.) The group entered the basement via the staircase that was accessible from within Apartment 2. (Id. ¶ 298.) Wagner testified that the firemen checked the basement because the main electrical conduit enters residential buildings through the basement. (Id. ¶ 299.)
The Fire Chief has authority to send a Fire Marshal into the building. (Vill. 56.1 ¶ 286.) According to Captain Welsh, he noticed two issues/ potential hazards while in the basement. (FD 56.1 ¶ 16; PL FD 56.1 ¶ 16; Vill. 56.1 ¶ 301.) Welsh radioed to Wagner from inside the premises. (FD 56.1 ¶ 17.) The parties dispute what Welsh told Wagner. (Compare FD 56.1 ¶ 18 with Pl. FD 56.1 ¶ 18.)
Captain Welsh and Fire Chief Wagner testified that there is a chain of command in the Fire Department. Specifically, firemen are responsible for reporting perceived concerns to the Captain, who is the senior officer inside. The Captain may then report the concerns to the Chief, who then has the discretion to decide whether to inform the Fire Marshal. (Pl. Vill. 56.1 ¶ 302.) 9
Poulos testified that he was standing next to Wagner when the radio call came in to request the Fire Marshal’s assistance. (Pl. Vill. 56.1 ¶ 311.) Wagner testified it is possible that Poulos could have walked in without his knowledge, and Wagner did not remember asking Poulos to enter. (Id.) The Village defendants assert that Wagner invited Poulos in to the house to help investigate. (Vill. 56.1 ¶ 312.) The Fire Department thereafter turned the investigation over to Poulos. (Id. ¶ 313.) The scene was deemed clear at 11:35 a.m., and the Fire Department left. (Id. ¶ 314.)
L. Fire Prevention Violation Order
Poulos entered 21 Church Street with three police officers and went into the basement where the firemen had noted potential hazards or violations. (Vill. 56.1 ¶ 317.) Mr. Mangino objected to Poulos’s presence in the house but did not tell the police officers to leave. (Id. ¶¶ 318-19.) According to defendants, Captain Welsh and the firemen pointed out to Poulos the allegedly potential hazardous conditions regarding the electrical box, staircase stringer, and structural issues under the foundation area in the front of the building. (Id. ¶ 321.) Poulos wrote down his observations and issued a Fire Prevention Violation Order. (PI. Vill. 56.1 ¶322.) Volunteer firemen, such as those present on July 25, 2005, may note violations or perceived unsafe conditions while on the scene of a fire investigation. (Id. ¶ 323; Vill. 56.1 ¶ 323.) The parties dispute the nature of the perceived unsafe conditions, the attendant exigent circumstances that accompanied the alleged conditions, and whether the conditions were of such a nature that the firemen were obligated to report their concerns to the Fire Marshal. (E.g., Vill. 56.1 ¶¶ 326-27, 335-38, 340; PI. Vill. 56.1 ¶¶ 326-27, 335-38, 340.) Captain Welsh and the firemen pointed out that the electrical box had open and exposed wiring, which, Captain Welsh testified, is considered an electrical or shock hazard. (Vill. 56.1 ¶ 332; PI. Vill. 56.1 ¶332.) The parties also dispute whether Gucciardo remained in her apartment in order to point out additional violations to the Fire Marshal or Fire Department. (Compare PI. Vill. 56.1 ¶¶ 343-45, 347 with Vill. 56.1 ¶¶ 343-45, 347.)
Poulos noted that the sprinkler system had to be re-certified, per an annual requirement by law. (Vill. 56.1 ¶ 341-42.) Poulos added Kolb’s complaint regarding the toilet bowl to the Fire Prevention Violation Order because nobody had been able to investigate the complaint on the day it was made. (Id. ¶ 348.)
The Fire Prevention Order required plaintiffs to repair the hazardous conditions and/or supply the Village with a licensed engineer’s report stating that no corrective action was necessary.
(Id.
¶ 354.) The issues identified in the order had to be addressed by September 1, 2005
(id.
¶ 355), but Poulos gave plaintiffs an extension of time, until October 31, 2005, to resolve the issues.
(Id.
¶ 356.) Al
M. The Subsequent Tickets
Plaintiffs did not obtain a rental occupancy permit at any point between January 2005 and August 2005. (Pl. Vill. 56.1 ¶ 76.) Plaintiffs continued to rent out apartments at 21 Church Street during that time period. {Id. ¶ 77.)
Plaintiffs thereafter received appearance tickets for failure to apply for or secure a rental occupancy permit on the following dates: August 5, 2005, August 8, 2005, August 9, 2005, 10 August 11, 2005, August 12, 2005, August 13, 2005, August 14, 2005, 11 August 15, 2005, and August 16, 2005. {Id. ¶¶ 81, 85, 89, 93, 97, 101, 105, 109, 113.) These summonses were served on plaintiffs on August 27, 2005. During this time period, Mr. Mangino admitted that 21 Church Street did not have a valid rental permit but that plaintiffs continued to rent out apartments in the building. {Id. ¶¶ 102-03,106,110.)
On August 11, 2005, Nudo and Village Housing Coordinator Joanne Gallo went to 21 Church Street, allegedly to investigate Gucciardo’s July 21, 2005 complaints. {Id. ¶ 384.) Nudo testified that he waited to investigate because Gucciardo had called to say that “things were getting fixed” and because he wanted to give plaintiffs time to resolve the issues. (Vill. 56.1 ¶¶ 385-86.) Plaintiffs note, however, that the Fire Prevention Order states that “start date will be August 1st, 2005,” which gave plaintiffs thirty days — until August 31, 2005 — to correct the violations. (Pl. Vill. 56.1 ¶ 387.)
Nudo told Gucciardo he would not enter 21 Church Street unless she signed an affidavit authorizing his entry. (Vill. 56.1 ¶ 392.) Gucciardo had allegedly already signed an affidavit authorizing Nudo to enter her apartment on July 25, 2005. {Id. ¶ 393; see also Pl. Ex. 83 Gucciardo Authorization for Entry 8-11-05.) However, plaintiffs note that this affidavit is dated and notarized August 11, 2005. (Pl. Vill. 56.1 ¶ 383.) 12 DSS Inspector David Knepp was also present at the inspection at Gucciardo’s request. {Id. ¶ 395.) Gucciardo pointed out issues with her apartment, including the floor. (Pl. Vill. 56.1 ¶ 396.) Knepp also performed an inspection of Apartment 2. (Vill. 56.1 ¶ 398.) Gucciardo insisted that the apartment was an unsafe place for her children to live; Gucciardo’s intent was to get a larger place and stay on the SHARP program. (Pl. Vill. 56.1 ¶ 399.)
On August 11, 2005, Nudo issued plaintiffs an additional eighteen separate sum
All of the tickets issued to plaintiffs for violation of the Rental Permit Law were dismissed. (Vill. 56.1 ¶ 115.) Nudo did not appear in court to testify against plaintiffs for the summonses, allegedly because he lived in Arizona at the time. (Pl. Vill. 56.1 ¶ 470.) The parties dispute Nudo’s purpose and intention in issuing plaintiffs multiple summonses for not having a rental permit. (Compare Vill. 56.1 ¶ 124 with Pl. Vill. 56.1 ¶ 124.) Nudo testified that he did not know that plaintiffs were challenging the Rental Permit Law at the time he issued any of the tickets, but plaintiffs dispute this fact based upon, inter alia, the small size of the Village’s government. (Pl. Vill. 56.1 ¶ 140.) Plaintiffs were never arrested or detained by the police as a result of the violations. (Vill. 56.1 ¶ 463.) The Village issued a warrant for the arrest of plaintiffs that resulted in them having to post bail (Pl. Ex. 88, Notice of Impending Warrants, 9-23-05), however, this warrant was issued for their failure to appear at their scheduled court appearances. (Id.)
N. Nudo’s Issuance of Tickets in the Village of Patchogue
The parties dispute whether Nudo’s practice was to issue multiple summonses to every owner of a rental dwelling that continually failed to secure a rental occupancy permit. (Compare Vill. 56.1 ¶¶ 125-26 with Pl. Vill. 56.1 ¶¶ 125-26.) However, Mr. Mangino testified that he did not know any other individuals in the Village who failed to obtain a rental occupancy permit and did not receive a ticket. (Pl. Vill. 56.1 ¶ 127.) Mr. Mangino testified that he did not have any problems with Building Inspector Powell (Vill. 56.1 ¶ 128), but the parties dispute whether Powell issued tickets to plaintiffs of his own initiative or based upon explicit direction from Nudo. (Compare Pl. Vill. 56.1 ¶¶ 130-31 with Vill. 56.1 ¶¶ 130-31.)
The parties also dispute whether other landlords in the Village received summonses on consecutive days for not having a valid rental occupancy permit. (Compare Pl. Vill. 56.1 ¶ 132 with Vill. 56.1 ¶ 132.) Frank Giorgio was issued tickets on August 11, 2005 and August 13, 2005 for failing to secure a rental occupancy permit. (Vill. 56.1 ¶ 133.) 13 The Passilaqua property was issued multiple subsequent tickets for exterior deterioration while their initial ticket was being contested in court. (Vill. 56.1 ¶ 134.) 14 The Hooghkirks were issued multiple subsequent tickets for misuse of single room occupancy while their initial ticket was being contested in court. (Id. ¶ 135.) The Deraos were also issued multiple tickets for failing to secure a rental occupancy permit, although these tickets were issued roughly one year apart. (Id. ¶ 136.) The Williams were issued multiple tickets for failure to secure a rental occupancy permit, among other violations. (Id. ¶ 137.) The Todisco property was also issued multiple tickets. (Id. ¶ 138.)
Plaintiffs filed the complaint in this action on October 23, 2006. On January 17, 2007, plaintiffs filed an Amended Complaint. On March 16, 2007, defendants answered the Amended Complaint. On February 14, 2008, plaintiffs filed a Second Amended Complaint. Defendants answered this complaint on March 17, 2008.
On October 22, 2009, defendants requested a pre-motion conference in anticipation of filing a motion for summary judgment. The Fire Department defendants submitted their motion for summary judgment on February 16, 2010. The Village defendants submitted their motion for summary judgment on February 19, 2010. Plaintiffs submitted their opposition on June 18, 2010. Defendants submitted their replies on August 20, 2010. The Court held oral argument on August 31, 2010. The Village defendants filed supplemental letters with the Court on September 3, 2010 and September 10, 2010, addressing additional issues raised at oral argument. Plaintiffs filed supplemental letters with the Court on September 7, 2010 and September 8, 2010. The Court has fully considered the submissions of the parties.
III. Standard Of Review
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
Reiseck v. Universal Commc’ns of Miami, Inc.,
Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.’” Caldarola v. Calabrese,
IV. Section 1983 Claims
As stated
supra,
plaintiffs bring their constitutional claims pursuant to § 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.”
Baker v. McCollan,
A. Fourth Amendment
Under the Fourth Amendment, plaintiffs assert claims for malicious prosecution, malicious abuse of process, and unreasonable warrantless search. 16 For the reasons set forth below, defendants’ motions for summary judgment are granted with respect to the malicious prosecution claim and denied with respect to the malicious abuse of process claim. The Court grants the Fire Department defendants’ motion for summary judgment on plaintiffs’ claims against them relating to the alleged unlawful search of the house, but denies the Village defendants’ motion for summary judgment with respect to the alleged unlawful search of the basement.
1. Malicious Prosecution
Plaintiffs assert claims for malicious prosecution against the Village defendants under § 1983 and under New York state law. For the reasons set forth below, the Village defendants’ motion for summary judgment with respect to the malicious prosecution claims is granted.
“Claims for ... malicious prosecution, brought under § 1983 to vindicate the Fourth and Fourteenth Amendment right to be free from unreasonable seizures, are ‘substantially the same’ as claims for ... malicious prosecution under state law.”
Jocks v. Tavernier,
316 F.3d
a. Section 1983 Claim
Malicious prosecution claims under § 1983 require that there “be a seizure or other ‘perversion of proper legal procedures’ implicating the claimant’s personal liberty and privacy interests under the Fourth Amendment.”
Conte v. Cnty. of Nassau,
06-CV-4746 (JFB)(ETB),
b. State Law Claim
Unlike federal law, a seizure is not required for a malicious prosecution claim under state law. However, as noted
supra,
under both state and federal law, a plaintiff asserting a malicious prosecution claim must demonstrate that the proceeding terminated in that plaintiffs favor. New York law does not require a malicious prosecution plaintiff to prove her innocence, or even that the termination of the criminal proceeding was indicative of innocence. Instead, the plaintiffs burden is to demonstrate a final termination that is not inconsistent with innocence.
See, e.g., Cantalino v. Danner,
In
Fulton v. Robinson,
Plaintiffs have not provided sufficient evidence that there was a favorable
In order to demonstrate malicious abuse of process under § 1983, a plaintiff must establish the claim’s elements under state law.
See Cook v. Sheldon,
The first element of a claim of malicious abuse of process requires that the defendant have employed regularly issued legal process to compel performance or forbearance of some act. Here, under the facts and circumstances of this case, the Court concludes that the issuance of repeated tickets is a process capable of being abused.
See TADCO Constr. Corp. v. Dormitory Auth. of N.Y.,
To the extent that the Village defendants argue that the issuance of tickets to plaintiffs did not constitute regularly issued legal process, this argument is flawed. “ ‘Appearance tickets’ issued for the alleged commission of a misdemeanor may be deemed a process in light of section 215.58 of the Penal Law (L. 1968, ch. 510, s 4), wherein a penalty is prescribed
Finally, a claim of malicious abuse of process requires process be issued for a collateral objective outside the legitimate ends of process. In evaluating this element, the Second Circuit expressly distinguishes between a “malicious motive” and an “improper purpose”; only the latter suffices to meet the “collateral objective” prong of the abuse of process standard.
See Savino,
Here, plaintiffs have alleged that defendants acted with an ulterior purpose in issuing the tickets. In particular, plaintiffs have submitted evidence that the Village prosecutor threatened plaintiffs that if they did not plead guilty and accept a plea deal for the tickets issued in January 2005 (which they were challenging in court, along with the constitutionality of the statute), they would be buried under a whole bunch of new charges. There remains a disputed issue of fact regarding whether the defendants attempted to get plaintiffs to discontinue their challenges to the Rental Permit Law by specifically warning plaintiffs’ counsel, Raskin, that there would be new charges if plaintiffs did not relinquish their attempt to challenge the tickets and the constitutionality of the statute. (See Raskin Dep. at 132-33; see also Mangino Vill. 50-h Dec. 1, 2005, at 73-76.) Specifically, plaintiffs further argue that “the improper threat by the Village prosecutor in an effort to coerce plaintiffs from pursuing their right to defend themselves against the criminal prosecution commenced by the Village defendants is an abuse and violation of law.” (Pl. Opp. at 36.)
The Village defendants argue that there was probable cause for the issuance of the tickets. Probable cause, as such, is not an element of the tort of abuse of process.
See Music Center S.N.C. v. Prestini Musical Instruments Corp.,
3. Warrantless Entry
a. Standing
The Village defendants argue that plaintiffs have no standing to bring a Fourth Amendment warrantless entry claim because they are absentee landlords. The Court concludes that plaintiffs have put forward sufficient evidence to establish their standing to challenge the search of the basement of 21 Church Street, but not Gucciardo’s apartment.
To have standing to object to an entry and search of a home under the Fourth Amendment, a plaintiff must show that he had a “ ‘legitimate expectation of privacy’ ” in the place searched.
United States v. Hamilton,
The Village defendants argue that plaintiffs were “absentee landlords” of 21 Church Street and, therefore, have no standing to bring an unlawful search claim. Plaintiffs concede that they were absentee landlords of 21 Church Street. (PL Vill. 56.1 ¶ 5.) Plaintiffs argue, however, that they may claim standing to challenge the entry of 21 Church Street generally as landlords. A landlord generally does not have a reasonable expectation of privacy with respect to property that he has rented to a tenant and that is occupied by that tenant.
See, e.g., Johnson v. Weaver,
Plaintiffs argue that
Beatty v. Township of Elk,
Civil No. 08-2235 (RBK/JS),
Nonetheless, even if plaintiffs lack standing to challenge the search of Gucciardo’s apartment, they have presented sufficient evidence of standing with respect to the search of the basement. In particular, Mr. Mangino has submitted evidence that, at minimum, creates an issue of fact regarding whether he had a reasonable expectation of privacy in the basement area of 21 Church Street. Mr. Mangino submitted an affidavit that stated that he granted two tenants the right to access and use “specific areas of the basement of the premises for storage, in exchange for additional rent.” (Mangino Aff. ¶ 2.) In the basement,
there was a separate and private room which [Mr. Mangino] continuously had exclusive possession and sole use of. The door to this private room had a double pad lock, and [Mr. Mangino] was the only person that possessed a key to this room. [He] used the room in the basement for [his] own personal use. This room contained, amongst other things, DVR electronic security equipment for the premises, a monitor, desk and chair, tools, CD’s, and personal papers. [He] had an expectation of privacy in [his] private room, and kept the door locked at all times to preserve [his] privacy as well as to secure [his] personal belongings.
(Id. ¶ 4; see also Pl. Vill. 56.1 ¶ 19.) Mr. Mangino contends that, on July 25, 2005, during the search of the premises by the Fire Department, he was ordered to unlock the door to his private room by the Fire Department. (Mangino Aff. ¶ 5.) He further claims that this door was left open while various personnel were present on the premises, where the contents of the private room were in plain view to all, including Fire Marshall Poulos. (Id. ¶¶ 6-8; see also Mangino Vill. 50-h at 45-48.) Because Mr. Mangino has presented evidence that he had not only a possessory right but also exclusive access to this room, which was kept double locked, plaintiffs have presented sufficient factual evidence from which a reasonable jury could conclude that he has standing to present his Fourth Amendment unlawful search claims. Thus, plaintiffs have demonstrated that Mr. Mangino has standing to challenge any unlawful entry and search of the basement at 21 Church Street.
b. Unlawful Search
The Fourth Amendment protects individuals in their homes “against unrea
Even though defendant Poulos’s search was administrative in nature, administrative searches cannot be made without the owner’s consent unless a search warrant is first obtained. Searches for administrative purposes, like searches for evidence of crime, are encompassed by the Fourth Amendment. Under the Fourth Amendment, “one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”
Camara v. Mun. Court of S.F.,
(i) Exigent Circumstances
The Court first examines whether exigent circumstances justified the warrant-less entry of the Fire Department defendants and Poulos into 21 Church Street. The Court determines that exigent circumstances warranted the Fire Department defendants’ entry into the home but concludes that there are disputed issues of fact regarding whether exigent circumstances justified Poulos’s subsequent entry into the house.
A warrantless search is permissible if exigent circumstances require state officials’ immediate entry to the property. The Supreme Court has stated that
the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions, see, e.g., United States v. Santana,427 U.S. 38 , 42-43,96 S.Ct. 2406 ,49 L.Ed.2d 300 (1976) (hot pursuit of a fleeing felon); Warden v. Hayden,387 U.S. 294 , 298-99,87 S.Ct. 1642 ,18 L.Ed.2d 782 (1967) (same); Schmerber v. California,384 U.S. 757 , 770-71,86 S.Ct. 1826 ,16 L.Ed.2d 908 (1966) (destruction of evidence); Michigan v. Tyler,436 U.S. 499 , 509,98 S.Ct. 1942 ,56 L.Ed.2d 486 (1978) (ongoing fire), and has actually applied only the “hot pursuit” doctrine to arrests in the home, see Santana, supra.
Welsh v. Wisconsin,
(a) Fire Department
The Supreme Court has held that “[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry ‘reasonable.’ Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze.”
Michigan v. Tyler,
Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire’s origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims. For these reasons, officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.
Id. at 510.
Plaintiffs concede that defendant Poulos called the Fire Department on July 25, 2005 and requested its assistance for arcing or sparking outlet wires at 21 Church Street. (PI. FD 56.1 ¶ 1.) Plaintiffs also concede that the Fire Department should be called for a complaint of sparking or arcing wires. (Id. ¶2.) Thereafter, the Fire Department received a structural fire alarm at 11:01 a.m. (Id. ¶ 3.) Fire trucks responded to the call, and the Fire Department arrived at 21 Church Street at 11:04 a.m. (Id. ¶¶ 4-5.) Upon the Fire Department’s arrival, Poulos informed the Fire Department that there was a report of arcing wires and that the house was very old and had a previous fire. (Id. ¶¶ 6-7.) At that point, Mr. Mangino informed Wagner that he would only allow the firefighters to enter the house to resolve the problem, but that Poulos was not allowed in the house. (Id. ¶¶ 8-9.) 28 Wagner then explained to Mr. Mangino that, since the Fire Department received an emergency call, it had an obligation to investigate. (Id. ¶¶ 10-11.) Pursuant to Village of Patchogue Town Law § 170, emergency personnel are permitted and authorized to enter premises when there has been an emergency call for such premises.
At that time, Wagner assigned firemen to go into the house to investigate. (Id. ¶ 12.) Captain Matthew Welsh of the Fire Department entered 21 Church Street with two to four firemen to inspect the premises. (Id. 56.1 ¶ 13.) Under these circumstances, the firefighters had an objectively reasonable basis for believing that there was a fire inside 21 Church Street. The Court notes that:
[n]othing in the Fourth Amendment required [the firefighters] to wait until they saw actual smoke or flames to enter a building that they reasonably believed might be on fire.... Nor is it relevant that no fire or smoke was found. The objective standard for assessing reasonableness focuses on what the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe.
[Moreover,] the Supreme Court has made clear that the subjective intent of government agents is irrelevant to determining whether a particular searchwas reasonable under the Fourth Amendment.... Rather, “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ ”
United States v. Klump,
The record supports the contention that the Fire Department defendants’ actions were for the purpose of securing safety.
29
Upon arriving at 21 Church Street, responding to reports of sparking or arcing outlets, the Fire Department was permitted to enter without a warrant to inspect the premises in order to determine the location of any alleged fire or perceived fire danger. Even once the Fire Department defendants had determined that there was no fire, once in the building, Fire Department officials were permitted to lawfully remain there for a reasonable time to investigate the cause of the alleged dangers at the premises.
See Tyler,
(b) Village Defendants
The Village defendants contend that exigent circumstances existed that also justified Poulos’s entry into 21 Church Street. For the reasons set forth below, the Court concludes that issues of disputed fact exist, which precludes summary judgment on whether an emergency still existed at the time of Poulos’s subsequent entry.
“A warrantless inspection of a private dwelling by a municipal administrative officer without the consent of the owner is generally unreasonable absent specifically delineated circumstances.... However, searches pursuant to a regulatory scheme need not adhere to the usual requirements where special governmental needs are present.”
Shapiro v. City of Glen Cove,
No. CV 03-0280(WDW),
The Village defendants first contend that exigent circumstances were created based upon Gucciardo’s call to the Village Housing Department. On July 21, 2005, Gucciardo called the Village Housing Department regarding her apartment. (Vill. Defs.’56.1 ¶ 214; Pl. Vill. 56.1 ¶ 214.) Defendant Nudo took the call from Gucciardo and created an Incident Report as a result of this call. (Pl. 56.1 ¶¶ 214-15.) Plaintiffs and the Village defendants dispute the nature of Gucciardo’s call. The Village defendants argue that Gucciardo was calling to make a “complaint” regarding her apartment (Vill. Defs.’ 56.1 ¶¶ 214-16), whereas plaintiffs argue that Gucciardo was merely calling to have the power checked (Pl. 56.1 ¶ 214). Specifically, the incident report associated with Gucciardo’s call stated:
The undersigned Village of Patchogue Housing Inspector received a call on this date from a Dawn Gucciardo. She stated she’s a tenant in Unit #2 at 21 Church Street in the Village of Patchogue. Ms. Gucciardo stated she’s having a problem with her landlord. He’s allegedly made promises that have not been kept regarding repairs to her apartment. She said her windows don’t remain in an open position, there are holes in her floor, her refrigerator malfunctions, she’s experienced electrical problems and the basement has a large amt of debris. She’s lived there with her 2 small children since Nov ’04 and pays $950 per month. She fears the stated conditions will result in a fire.
(Pl. Ex. 67, Gucciardo Incident Report 7-21-05 with 7-22-05 note.) There was evidence that on July 22, 2005, Gucciardo called the Village back and “stated that things are getting fixed.” (See id.; see also, e.g., Giglio Dep. at 74.) Gucciardo testified that Nudo came on July 22 and checked the outlet. (Gucciardo Dep. at 125, 128-29, 135-37.)
Poulos testified, however, that, on July 25, 2005, he was “informed of sparking wires in an apartment at the Village office, the girl was — a tenant was on the phone and she wanted someone over there right away. That’s when I went right over to determine what the problem was.” (Poulos Dep. at 211.) Thus, Poulos claims that Gucciardo called the Village on the morning of July 25 to complain about the arcing or sparking wires in her apartment.
(See id.
at 211-13.)
30
Gucciardo testified that, on the morning of July 25, 2005, she did not call the Fire Department, did not call the Suffolk County Police Department, did not call for an ambulance, and did not call the Village of Patchogue. (Gucciardo Dep. at 230-31.) The Village defendants have failed to present any evidence establishing that a call or complaint regarding Gucciardo’s apartment was made to the Village on July 25, which is notable, because it is the usual custom and practice of the Village to document and/or keep records of corn-
The Village defendants argue, in the alternative, that even if exigent circumstances did not exist to justify Poulos’s entry of 21 Church Street prior to the Fire Department’s arrival on July 25, 2005, exigent circumstances existed after the Fire Department entered the home. In particular, the Village defendants contend that Poulos entered the building because the firemen inside observed potential electrical and structural hazards and asked Fire Chief Wagner to send the Fire Marshal inside to inspect it. (Vill. Defs.’ Mem. of Law at 17 (citing Ex. I at 102-03; Ex. LL at 272).) However, plaintiffs have presented evidence from which a reasonable jury could conclude that there were no exigent circumstances necessitating Poulos’s entry into the building at that time. At the deposition of Fire Chief Wagner, he testified:
Q: If there were a hazard, would you have noted it, put it that way?
A: If there was a major hazard, it would have been noted.
Q: Is there a difference between major and minor hazards?
A: Sure there is.
Q: So a non-imminent hazard may not necessarily be noted; is that what you’re trying to say?
A: Yes.
Q: There were apparently, according to documentation, some kind of complaint about stairs. That day, did any of the fire personnel going up or down the steps have any problems with the steps?
A: Don’t remember.
(Wagner Dep. at 173-75.) Wagner also did not recall if he instructed Poulos to enter the premises and, if so, the reason that he called Poulos in:
Q: In this particular instance, it was referred over to the fire marshal, are we able to, as we sit here today, determine for what reasons you referred it to the fire marshal?
A: I don’t recollect what the exact cause was for turning it over to the fire marshal.
Q: Do you have any records that indicate, in fashion, what any of the causes or cause of the fire were?
A: No, I don’t.
Q: If there were some causes that were significant, would they have been noted in this fire report?
A: It’s possible.
Q: When you say “it’s possible,” under what circumstances would it be reported and what circumstances would it not?
A: Again, if there was an imminent problem, I would expect it to have been put down in a document.
(Wagner Dep. at 205-07.) Matthew Welsh, a firefighter who was present on July 25, 2005, stated:
Q: The whole time you were in there from the time you arrived at the premises until the time you signed the sheet, you didn’t find any flames?
A: No flame.
Q: You didn’t find any smoldering?
A: No.
Q: Didn’t see any smoke?
A: No.
Q: No sparking or arcing wires?
A: No.
Q: Nothing in the walls either you or your men may have noticed that was hot or any kind of urgent situation? When I say hot, I mean temperature-wise?
A: Right, no.
Q: Did you see anything that would cause immediate cause of fire, meaning something imminently about to com-bust?
A: No.
(Welsh Dep. at 169.) 31 Thus, plaintiffs have presented factual evidence from which a reasonable jury could find that there were no exigent circumstances justifying Poulos’s entry of the apartment. Thus, there is a disputed issue of fact regarding whether exigent circumstances that warranted Poulos’s warrantless entry of 21 Church Street arose once the Fire Department arrived and inspected the building on the morning of July 25, 2005.
(ii) Consent
The Court next examines whether Poulos had consent to enter 21 Church Street, including the basement, -without a warrant. If Poulos had consent to enter the premises, his warrantless entry was justified even if exigent circumstances did not exist. The Court determines that it is undisputed that Poulos did not have Mr. Mangino’s consent to enter the building and that there are disputed issues of fact regarding whether (1) Gucciardo had actual or apparent authority to consent to a search of 21 Church Street; and (2) if so, and if she did provide consent, whether that consent was voluntary.
“To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable
per se,
one jealously and carefully drawn exception recognizes the validity of searches with the voluntary consent of an individual possessing authority.”
Georgia v. Randolph,
(a) Mr. Mangino’s Consent
Although the Village defendants move for summary judgment on this claim, there remain issues of fact that preclude this claim from being resolved by way of summary judgment. In particular, although it is undisputed that Mr. Mangino allowed the Fire Department to enter the residence without a warrant, he specifically did not allow Poulos to enter the residence. (Pl. FD 56.1 ¶ 9; see
also
Poulos Dep. at 229.) Poulos, as conceded at oral argument by the Village Defendants, was not a member of the Fire Department, as the Fire Marshal is not affiliated with the Fire Department, but rather is an official employed by the Village of Patchogue. Mr. Mangino’s consent for the Fire Department to enter was not a broad consent for the Fire Marshal, Poulos, to enter as well. “The standard for measuring the scope of [an individual’s] consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?”
Florida v. Jimeno,
(b) Gucciardo’s Consent
The Village Defendants argue that Gucciardo’s consent was sufficient to justify Poulos’s entry into the building, including the basement. However, the Court finds that, on the issue of Gucciardo’s consent, there are clear issues of fact that preclude summary judgment. Specifically, the Court concludes that there are disputed issues of fact regarding the following issues: (1) if Gucciardo had actual or apparent authority to consent to a search of 21 Church Street (including the entire basement area); (2) whether she did consent to the search; and (3) if so, whether her consent was voluntary.
(1) Authority to Consent
“The law in this circuit is well settled that a third party’s consent will validate a search of places or items in which another maintains a privacy interest if two conditions are satisfied: the third party had (1) ‘access to the area searched,’ and (2) either ‘(a) common authority over the area; or (b) a substantial interest in the area; or (c) permission to gain access [to the area].”’
United States v. Snype,
However, even if a third party “lacks
actual
authority to consent to a search of a particular area, he still may have apparent authority to consent to the search.”
Moore v. Andreno,
There is undisputed evidence that Mr. Mangino “granted approximately two tenants the right to access and use specific areas of the basement of the premises for storage, in exchange for additional rent.” (Mangino Aff. ¶ 2.) There was also a staircase to the basement from within Gucciardo’s apartment. {See Mangino Vill. 50-h at 45 (“Q: There’s a way to get to the basement from Apartment 2? A: Yes.”).) However, there is also evidence that Mr. Mangino kept a “separate and private room” in the basement, over which he “continuously had exclusive possession and sole use of.” (Mangino Aff. ¶ 4.) He kept the door to this room locked at all times, and defendants have presented no evidence suggesting that any other individual had access to, or control over, this area. {See id.) Mr. Mangino further stated that “[o]n July 25, 2005, [he] was ordered, over [his] objection, to unlock the locked door” to this room, by the Fire Department. (Id. ¶ 5.) Mr. Mangino asserts that, once the door was unlocked and the door was open, Poulos entered the premises over his objection and entered the basement to conduct an inspection. (Id. ¶ 8.) As a result, Poulos allegedly was able to view the contents of Mr. Mangino’s private room. Therefore, plaintiffs have created a genuine issue of disputed fact as to whether Gucciardo had actual or apparent authority to consent to a search of the entire basement area, including Mr. Mangino’s private basement room at 21 Church Street. 34
Even assuming Gucciardo did have actual or apparent authority to consent to a search of the basement areas, a consent to a warrantless search must be freely and voluntarily given in order to be valid.
Schneckloth,
On July 25, 2005, when the Fire Department arrived at 21 Church Street, defendant Nudo was also present. Gucciardo testified that Nudo asked Gucciardo to sign a form that was an affidavit authorizing entry into the dwelling. (Gucciardo Dep. at 103-04.) However, there is conflicting evidence regarding when this authorization was actually signed. Notably, the authorization itself is dated August 11, 2005 and notarized August 11, 2006. 35 (See Pl. Ex. 83, Gucciardo Authorization for Entry 8-11-05.) Moreover, the Village defendants did not argue, in their papers or at oral argument, that fhis consent formed the basis for Poulos’s authorization to enter the premises.
Gucciardo testified that she signed the authorization when there were “over 100 personnel, ambulances, fire trucks, police cars,” present at the premises. (Gucciardo Dep. at 104.) Gucciardo testified at her deposition that Nudo “came over and said, ‘Please, we need you to sign this.’ ” (Id.) Although Gucciardo initially testified that she read the document before she signed it and did not have a problem signing it (id. at 105), she revised her testimony and stated that “I changed my thought there. I still don’t understand why this whole thing happened. I open my door and the whole brigade was out there.” (Id.) Gucciardo testified that she was concerned and frightened when she signed the consent form:
I could not see an inch of grass on my lawn that’s how I thought there was a five alarm fire somewhere. That’s how many personnel were there. Three fire trucks came. One blocked the end of the street with a siren. One blocked one end of Church Street and one truck was in the rear of the house blocking the rear entrance. There had to be two, three, four ambulances. ' I don’t know how many cop cars. All the fire chiefs — their cars were all out front. I opened the door and the fire department came through with axes in hand, full gear, marched straight through the apartment and went right down in the basement.... That’s when Mr. Nudocame over. I know the lady was present and they asked me to sign that form.
(Id. at 145-46; see also id. at 146-49.) She further stated that she thought that the presence of the Fire Department and other officials meant that there was an emergency on the premises. (Id. at 151-52 (“Q: Did you think there was an emergency? A: Of course, with them all coming through the house like that. Q: You thought there was an emergency? A: Common sense, yes.”).) She further testified that “[t]here was no permission asked to get in the house [by the Fire Department],” on July 25, 2005. (Id. at 161; see also id. at 225-26 (“Q: ‘These firemen were carrying axes, but they did not show me any warrants.’ Is that an accurate statement? A: Yes. Q: The next sentence says, ‘They pushed past me into my apartment and then went downstairs into the basement.’ Is that generally what we were just discussing? A: Yes. Q: So is that an accurate statement? A: Yes.”).)
Voluntariness is a factual inquiry determined by reference to the totality of the circumstances, and “[a]ccount must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.”
United States v. Guzman,
No. 09 Crim. 0656(LAK),
c. Damages
The Village defendants argue that plaintiffs cannot succeed on their claim because they have not suffered any actual damages as a result of Poulos’s entry. “Victims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy— including (where appropriate) damages for physical injury, property damage, injury to reputation,” and related damages.
Townes v. City of N.Y.,
B. First Amendment
Plaintiffs argue that the Village improperly threatened plaintiffs — specifically, plaintiffs contend that they were told that they should accept a plea offer or else the Village would issue additional summonses as retaliation for the pursuit of plaintiffs’ legal claims. As set forth below, the Court concludes that plaintiffs’ First Amendment claim cannot withstand summary judgment.
The elements of a First Amendment retaliation claim are dependent on the “factual context” of the case.
Williams v. Town of Greenburgh,
Moreover, plaintiffs have put forth sufficient evidence to raise a triable issue of fact regarding whether defendants’ actions were motivated or substantially caused by plaintiffs’ exercise of their right. Plaintiffs rely on more than generalized allegations of malice.
See Kerman v. City of N.Y.,
In order to meet the third element, or the chilling requirement, a plaintiff must come forward with evidence showing either that (1) defendants “silenced” him or (2) defendants’ actions had some “actual, nonspeculative chilling effect” on his speech.
Colombo v. O’Connell,
[a] plaintiff must show, with respect to the third element, that his First Amendment rights were “actually chilled.” Davis v. Vill. Park II Realty Co.,578 F.2d 461 , 464 (2d Cir.1978). The Supreme Court has held that “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum,408 U.S. 1 , 13-14,92 S.Ct. 2318 ,33 L.Ed.2d 154 (1972). In the case at bar, despite plaintiffs charge that he was arrested in retaliation for his comments made during the 1993 mayoral campaign, he continued his 1994 campaign for village trustee even after the arrest and ranagain for village public office in 1995. Although plaintiff insists that his 1995 campaign was affected by his arrest— namely, that it was demoralized and only amounted to a token effort — the fact remains that Curley chose to run for public office even after the events of August 1994. Where a party can show no change in his behavior, he has quite plainly shown no chilling of his First Amendment right to free speech. See Singer [v. Fulton County Sheriff ], 63 F.3d 110 , 120 (2d Cir.1995) (finding no chilling effect where, after an arrest, the plaintiff continued to publish his newspaper through which he criticized the village government); Spear v. Town of W. Hartford,954 F.2d 63 , 67 (2d Cir.1992) (finding no chilling effect where, after the filing of a lawsuit, the plaintiff continued to write criticizing editorials in the same manner as before the lawsuit).
Curley,
Here, plaintiffs make no argument that their behavior was altered as a result of the Village defendants’ alleged actions. They do not state that they dismissed their lawsuit regarding the constitutionality of the rental permit law, nor do they argue that they thereafter obtained a rental permit or forewent contesting the tickets in court. Without evidence of such an actual chill, the undisputed evidence indicates that plaintiffs’ conduct was not, in fact, chilled by defendants’ alleged retaliatory conduct. Accordingly, plaintiffs’ First Amendment claim must fail, and the Village defendants’ motion to dismiss this claim is granted.
C. Fourteenth Amendment Claims
1. Procedural Due Process
Plaintiffs argue that, because they have put forward sufficient evidence supporting their claim for malicious abuse of process, that they have similarly stated a claim for denial of procedural due process. The Court disagrees.
In order to assert a violation of procedural due process rights, a plaintiff must “first identify a property right, second show that the [government] has deprived him of that right, and third show that the deprivation was effected without due process.”
Local 342, Long Island Pub. Serv. Emps., UMD, ILA AFL-CIO v. Town Bd. of Huntington,
To support their claim of denial of procedural due process, plaintiffs rely upon the same factual basis upon which they rely to support their malicious abuse of process claim. Specifically, they argue that “[i]n the criminal context, malicious abuse of process is by definition a denial of procedural due process....” (Pl. Mem. of Law at 36 (citing
Cook v. Sheldon,
Accordingly, because plaintiffs assert their procedural due process claim upon the same factual basis as their malicious abuse of process claim, this claim must fail. The Fourth Amendment’s guarantee of freedom from unreasonable seizures thus provides the appropriate framework of analysis for plaintiffs’ claim. As discussed supra, plaintiffs’ malicious abuse of process claim withstands defendants’ motion for summary judgment, and plaintiffs may assert their claims regarding the issuance of the summonses to plaintiffs on that ground. Thus, defendants’ motion for summary judgment on plaintiffs’ procedural due process claim is granted.
2. Substantive Due Process
Plaintiffs also assert a substantive due process claim based upon the Village defendants’ alleged attempt to threaten plaintiffs into dismissing their lawsuit challenging the January 2005 tickets. The Court determines that plaintiffs’ substantive due process claim is duplicative of their malicious abuse of process claim and grants defendants’ summary judgment on the substantive due process claim.
As the Second Circuit has explained, “[t]he touchstone of due process is protection of the individual against arbitrary action of government.” In particular, the Fourteenth Amendment affords “[substantive due-process rights against the government’s exercise of power without any reasonable justification in the service of a legitimate governmental objective.”
Tenenbaum v. Williams,
As with the procedural due process claim, the substance of plaintiffs’ substantive due process claim is based on the same factual predicate as plaintiffs’ abuse of process claim. The Court concludes, as discussed
supra,
that plaintiffs have presented sufficient evidence to withstand summary judgment with respect to their abuse of process claim. Accordingly, plaintiffs’ claim relating to the issuance of the summonses falls under the Fourth Amendment’s protection against the abuse of process. “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.”
Albright v. Oliver,
3. Equal Protection Claims
The Equal Protection Clause of the Fourteenth Amendment requires the government to treat all similarly situated individuals alike.
City of Cleburne v. Cleburne Living Ctr., Inc.,
a. Selective Enforcement
(i) Legal Standard
The Second Circuit has “described selective enforcement as a ‘murky corner
First, plaintiff must demonstrate that he “was treated differently from other similarly situated [individuals].”
Id.
(citations and quotation marks omitted);
see also Church of the Am. Knights of the Ku Klux Klan v. Kerik,
Further, the Second Circuit has held that, to the extent a municipality is selectively enforcing land use restrictions, a plaintiff would be “hard pressed” to demonstrate selective treatment without also demonstrating the municipality's knowledge of the other, unenforced violations.
See LaTrieste Rest. v. Vill. of Port Chester, 188
F.3d 65, 69 (2d Cir.1999); see,
e.g., Zavatsky v. Anderson,
No. 3:00cv844,
We do not hold that knowledge will be required in every case. It is conceivable that selective treatment could be shown where, for example, proof was offered that a municipality did not know of prior violations because it adhered to a see-no-evil policy of not enforcing an ordinance, and then abandoned that policy with respect to a violator engaged in protected activity.
LaTrieste,
(ii) Application
Based on the undisputed facts of this case, the Court concludes that no rational jury could find that plaintiff has satisfied the first prong of a similarly situated equal protection claim. The Village defendants have presented evidence that Nudo issued multiple summonses for failure to obtain a rental occupancy permit to other rental property owners that rented out their property without first obtaining a rental occupancy permit. (See Vill. Defs.’ Ex. M. at 97-98, 206.) Other property owners in the Village received summonses on consecutive days for code violations. (See Vill. Defs.’ Ex. H at 101-02; Vill. Defs.’ Ex. K at 167, 179; Vill. Defs.’ Ex. N at 99-101.) Moreover, the Passilaquas and Hooghkirks were issued tickets while challenging prior tickets in court. (Vill. Defs.’ Ex. K at 166, 177-79; Vill. Defs.’ Ex. L at 150-51; Vill. Defs.’ Ex. N at 101.)
In their opposition, to attempt to show that similarly situated individuals were treated differently, plaintiffs submitted affidavits from Rocco Todisco, Celia R. Durao, and Angelo Passalacqua. These individuals’ affidavits stated that, to the best of their recollections, “none of the summonses issued by the Village of Patchogue were repetitive of any other summonses
Plaintiffs’ evidence misses the mark. To make it past the summary judgment stage on a selective enforcement equal protection claim, it is plaintiffs’ burden to demonstrate similarly situated individuals who were treated differently. Here, plaintiffs’ burden is to demonstrate that other residents who were issued tickets for, e.g., lack of a rental permit, continued to not comply with the law at issue, e.g., the rental permit law, but did not receive subsequent summonses for their continued non-compliance. Plaintiffs have failed to do so. Mr. Mangino even testified that he did not know any other individuals in the Village who failed to obtain a rental occupancy permit but did not receive a ticket. (Pl. Vill. 56.1 ¶ 127.) Accordingly, plaintiffs’ selective enforcement claim must fail, and summary judgment for defendants is granted on this claim.
b. “Class of One”
In Prestopnik v. Whelan, the Second Circuit explained the difference between “class of one” equal protection claims and more traditional equal protection claims:
“The Equal Protection Clause requires that the government treat all similarly situated people alike.” Harlen Assocs. v. Inc. Vill. of Mineola,273 F.3d 494 , 499 (2d Cir.2001). While this clause “is most commonly used to bring claims alleging discrimination based on membership in a protected class,” it may also be used to bring a “class of one” equal protection claim. Neilson v. D’Angelis,409 F.3d 100 , 104 (2d Cir.2005); see also Vill. of Willowbrook v. Olech,528 U.S. 562 , 564,120 S.Ct. 1073 ,145 L.Ed.2d 1060 (2000). In a “class of one” case, the plaintiff uses “the existence of persons in similar circumstances who received more favorable treatment than the plaintiff ... to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose — whether personal or otherwise— is all but certain.” Neilson, 409 F.3d at 105 .
249 Fed.Appx 210, 212-13 (2d Cir.2007);
see also King v. N.Y. State Div. of Parole,
First, in order to prevail on a class of one claim,
the plaintiff “must demonstrate that [[h]e was] treated differently than someone who is prima facie identical in all relevant respects.” Neilson [v. D'Angelis,409 F.3d 100 , 104 (2d Cir.2005)] (quoting Purze v. Vill. of Winthrop Harbor,286 F.3d 452 , 455 (7th Cir.2002)). This requires a showing that the level of similarity between the plaintiff and the person(s) with whom she compares herself is “extremely high” — so high (1) that “no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy,” and (2) that “the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendant acted on the basis of a mistake.” Neilson,409 F.3d at 104-05 .
Prestopnik,
As an initial matter, plaintiffs’ class of one claim fails because, as with their selective enforcement claim, plaintiffs cannot show that they were treated differently than similarly situated individuals. Although some district courts in the Second Circuit has stated that “the standard for ‘similarly situated’ when bringing a selective enforcement claim is the same as in a ‘class of one’ claim,”
see, e.g., Kamholtz v. Yates Cnty.,
No. 08-CV-6210,
The third element of a class-of-one claim also bears particular emphasis in the instant case. A class of one claim cannot be based on treatment that was the result of a discretionary or subjective decision. Specifically, in Engquist v. Oregon Department of Agriculture, the Supreme Court held that plaintiffs asserting a class of one claim must show that the differential treatment received resulted from non-discretionary state action:
There are some forms of state action ... which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be ‘treated alike, under like circumstances and conditions’ is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.
One such discretionary action — discussed at length in the Engquist opinion itself — is the issuance of tickets by law enforcement officials. The Supreme Court stated that the issuance of a ticket to one individual who is breaking the law does not warrant a class of one claim — even if other lawbreakers were not ticketed:
Suppose, for example, that a traffic officer is stationed on a busy highway where people often drive above the speed limit, and there is no basis upon which to distinguish them. If the officer gives only one of those people a ticket, it may be good English to say that the officer has created a class of people that did not get speeding tickets, and a “class of one” that did. But assuming that it is in the nature of the particular government activity that not all speeders can be stopped and ticketed, complaining that one has been singled out for no reason does not invoke the fear of improper government classification. Such a complaint, rather, challenges the legitimacy of the underlying action itself — the decision to ticket speeders under such circumstances. Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal protection concerns. But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action. It is no proper challenge to what in its nature is a subjective, individualized decision that it was subjective and individualized.
Engquist,
Accordingly, under the facts of this case, particularly in light of plaintiffs’ inability to demonstrate the existence of similarly situated individuals in the Village of Patchogue, plaintiffs have not shown that the issuance of tickets for their violation of the rental permit law was anything other than the discretionary issuance of tickets, and, thus, plaintiffs’ class-of-one claim fails to survive summary judgment.
See Casciani,
D. Conspiracy Claims Against Fire Department
Plaintiffs also raise conspiracy claims against the Fire Department defendants. 43 Specifically, plaintiffs allege that the Fire Department defendants participated in a conspiracy, with the Village defendants, to deprive plaintiffs of their right to equal protection, in violation of 42 U.S.C. § 1985(3). The Fire Department defendants move for summary judgment on this claim on the ground that plaintiffs have not set forth any evidence of conspiracy. The Court agrees.
Section 1985(3) prohibits conspiracies by two or more persons that interfere with and injure any person’s civil rights. More specifically, the four elements of a § 1985(3) claim are:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States.
Mian v. Donaldson, Lufkin & Jenrette Sec.,
Furthermore, if plaintiffs were attempting assert a claim of conspiracy against the Fire Department under § 1983, that claim too would fail. To prove a § 1983 conspiracy claim, a plaintiff must show: (1) an agreement between two or more state actors, (2) concerted acts to inflict an unconstitutional injury, and (3) an overt act in furtherance of the goal.
See Ostensen v. Suffolk Cnty.,
236 Fed.
As established supra, the Fire Department’s entry and search of the premises at 21 Church Street was warranted based on exigent circumstances. Plaintiffs do not dispute the facts that justify the Fire Department’s entry. Plaintiffs do, however, contend that the Fire Department engaged in a conspiracy with Poulos to commit various constitutional violations against plaintiffs. This claim must fail. At oral argument, counsel for plaintiffs argued that plaintiffs have presented evidence of a “conspiracy” because, even though Fire Chief Wagner agreed to keep Poulos out of the apartment, he then called Poulos in to the apartment. As an initial matter, at oral argument, plaintiffs asserted the theory that the entry by Poulos was not warranted because he had not been called in by the Fire Department.
Moreover, plaintiffs offer no evidence other than their own “unsubstantiated speculation, to suggest that anything untoward took place.”
See Scotto v. Almenas,
E. Municipal Liability
As an initial matter, because plaintiffs have not demonstrated any constitutional violations by the Fire Department defendants, there is no basis on which they could predicate
Monell
liability against the Fire Department. When plaintiffs lack any underlying claim of a deprivation of a constitutional right, the claim of municipal liability on the part of the municipal defendant must be dismissed as well.
See Kelsey v. Cnty. of Schoharie,
The Village of Patchogue argues that it is entitled to summary judgment on the grounds that plaintiffs have failed to demonstrate municipal liability as a matter of law. However, as set forth below, because the Court finds that genuine issues of ma
1. Legal Standard
a. Evidence of Municipal Custom or Policy
The Supreme Court expressly rejected liability pursuant to a theory of
respondeat superior
for purposes of § 1983 in
Monell. See Monell v. Dep’t of Soc. Servs.,
“The policy or custom need not be memorialized in a specific rule or regulation.”
Kern v. City of Rochester,
b. Policymakers
In addition to demonstrating directly that a municipality has a custom or policy that led to a constitutional violation, the Second Circuit has held that a plaintiff may demonstrate municipal liability by showing that a municipal “policymaker” violated plaintiffs constitutional rights:
Where plaintiffs allege that their rights were deprived not as a result of the enforcement of an unconstitutional official policy or ordinance, but by the unconstitutional application of a valid policy, or by a [municipal] employee’s single tortious decision or course of action, the inquiry focuses on whether the actions of the employee in question may be said to represent the conscious choices of the municipality itself. Such an action constitutes the act of the municipality and therefore provides a basis for municipal liability where it is taken by, or is attributable to, one of the [municipality’s] authorized policymakers.
Amnesty Am. v. Town of W. Hartford,
In particular, where a municipal official “‘has final authority over significant matters involving the exercise of discretion,’ his choices represent government policy.”
Gronowski,
2. Application
As an initial matter, plaintiffs have pointed to no policies or customs within the Village of Patchogue upon which municipal liability could be predicated. Plaintiffs also claim that municipal liability is warranted under a failure to train or supervise theory. However, as stated by one court in this Circuit:
the “mere assertion that a municipality has such a policy is insufficient to establish Monell liability,” Perez v. City of N.Y., 97 Civ. 2915, [2002 WL 398723 , at *2],2002 U.S. Dist. LEXIS 4297 , at *4 (E.D.N.Y. Mar. 14, 2002), and in any case Plaintiff may not overcome summary judgment by relying “merely on allegations or denials in its own pleading,” Fed.R.Civ.P. 56(e). Here, Plaintiff has not shown a set of facts, by affidavit, deposition or otherwise, that could lead a reasonable juror to conclude that Monell liability is appropriate for the City of New York. The standard for liability based on a claim of failure to train is a high hurdle to overcome. A plaintiff must establish through admissible evidence that “the failure to train amounts to deliberate indifference to the rights of those whom municipal employees will come into contact,” and “only where a failure ... reflects a deliberate or conscious choice by a municipality ... can a city be liable for such failure under § 1983.” City of Canton v. Harris,489 U.S. 378 , 388-89,109 S.Ct. 1197 ,103 L.Ed.2d 412 (1989).
Manganiello v. City of N.Y.,
No. 07 Civ. 3644(HB),
The Court, however, denies Patchogue’s motion with respect to liability predicated upon the acts of a policymaker. The matter of whether a given official is a municipal policymaker for § 1983 purposes is a question of law for determination by the Court.
See Bliven v. Hunt,
Q: When you say “setting procedures,” meaning chief fire marshal is the person who sets procedures?
A: Yes.
Q: What kind of procedures would the chief fire marshal set, generally speaking?
A: What’s going to be inspected at what time frames. What is going to be done when. Who is going to do that. How you are going to do an investigation. What the order is. How you are going to do numerous activities.
Q: Is it fair to say that the chief fire marshal is the person who is making all these decisions for those under him?
A: Yes.
Q: Does chief fire marshal decide who gets inspected?
A: Yes.
Q: Does the chief fire marshal determine what a proper investigation is and how it is conducted?
A: Yes. imposed based on this theory for Nudo’s actions.
Q: Does the chief fire marshal determine the circumstances under which an inspection should be performed, just generally speaking?
A: Yes.
Q: When you’re setting out the procedures for inspections, that means you are determining the policies of the fire department — I’m sorry, the subordinates under you and how they should perform; is that a correct statement? * * *
A: Yes.
(Poulos Dep. at 25-27.) Municipal liability may attach under § 1983 when a policymaker takes action that violates an individual’s constitutional rights, and such liability may be based on one individual action by a policymaker.
See Gronowski
II. Qualified Immunity
The remaining individual defendants — namely, Poulos and Nudo — also contend that they are entitled to summary judgment on qualified immunity grounds for all of the constitutional violations claimed by plaintiffs.
46
For the reasons set forth below, however, the Court denies
A. Legal Standard
According to the Second Circuit, government actors may be shielded from liability for civil damages if their “conduct did not violate plaintiffs clearly established rights, or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiffs rights.”
Mandell v. Cnty. of Suffolk,
As the Second Circuit has also noted, “[t]his doctrine is said to be justified in part by the risk that the ‘fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.’”
McClellan v. Smith,
With respect to the summary judgment stage in particular, the Second Circuit has held that courts should cloak defendants with qualified immunity at this juncture “only ‘if the court finds that the asserted rights were not clearly established, or if the evidence is such that, even when it is viewed in the light most favorable to the plaintiff[] and with all permissible inferences drawn in [his] favor, no rational jury could fail to conclude that it was objectively reasonable for the defendants to believe that they were acting in a fashion that did not violate a clearly established right.’”
Ford v. McGinnis,
B. Application
Here, the Court examines qualified immunity only with respect to plaintiffs’ surviving claims — namely, their claims for malicious abuse of process (which implicate defendant Nudo) and unreasonable search and seizure (which implicate defendant Poulos). The Court concludes that the Village defendants have failed to set forth undisputed evidence that establishes that these individual defendants are entitled to qualified immunity; rather, there are disputed issues of fact in this case that must be resolved in order to determine whether qualified immunity would be warranted. Accordingly, the Village defendants’ motion for summary judgment for the individual defendants based on qualified immunity is denied at this juncture.
1. Malicious Abuse of Process
The constitutional right to be free from a malicious abuse of process is well established, and was clearly established at the time of the alleged abuse of process in the instant case.
See Jovanovic v. City of N.Y.,
No. 04 Civ. 8437(PAC),
2. Unreasonable Search
“[T]he right to be free from a warrant-less search of a private dwelling executed under color of municipal building law has been clearly established for decades, as both the Supreme Court and the New York Court of Appeals long ago recognized that the Fourth Amendment protects the owner of a private dwelling from warrant-less administrative inspections of that dwelling.”
Cullen v. Vill. of Pelham Manor,
No. 03-CV-2168 (CS),
However, if Poulos had an objectively reasonable belief that (1) a warrantless search without consent was justified based on his belief that there were exigent circumstances requiring his immediate attention, or (2) he had consent to search from an individual authorized to give it, he is entitled to qualified immunity.
See Ehrlich v. Town of Glastonbury,
If all of plaintiffs’ evidence is credited, and the jury finds that (1) there was no exigency justifying Poulos’s entry of 21 Church Street on July 25, 2005; (2) Poulos was not informed by the Fire Department that there was an exigent circumstance in the building that required his immediate entry on July 25, 2005, such that Poulos obtained a reasonable belief that his warrantless entry was justified; and (3) Gucciardo did not consent — or, if she did provide consent, did not voluntarily consent— to the search of 21 Church Street; and (4) Poulos did not reasonably believe that Gucciardo, if she consented to the search, had the apparent authority to consent to a search of the locked room in the basement, then Poulos’s violation of plaintiffs’ constitutional rights was not objectively reasonable, and qualified immunity is not warranted to shield Poulos from liability. 47 Accordingly, the Village defendants’ motion for summary judgment on the issue of qualified immunity is denied.
In sum, as described above, the Court has found that genuine issues of material fact preclude the Court from determining as a matter of law that plaintiffs’ clearly
III. Conclusion
For the foregoing reasons, the Court grants the Fire Department defendants’ motion for summary judgment in its entirety, and those defendants are dismissed from the case. The Court denies the Village defendants’ motion for summary judgment with respect to plaintiffs’ malicious abuse of process claim, Fourth Amendment unreasonable search claim as pertaining to the basement at 21 Church Street, and municipal liability claims. The Court grants the Village defendants summary judgment with respect to plaintiffs’ First Amendment, Fourteenth Amendment, and remaining Fourth Amendment claims. The Court also denies defendants’ motion for summary judgment with respect to the issue of qualified immunity.
SO ORDERED.
Notes
. The proper name of the fire department in Patchogue is the Patchogue Fire District. However, because the entity has been referred to as the "Patchogue Fire Department” throughout the course of this case, the Court refers to it as the Patchogue Fire Department.
. For ease of reference in this Memorandum & Order, the Patchogue Fire Department, Joseph Wagner, and unidentified employees and agents of the Fire Department are referred to collectively as "the Fire Department defendants.” The Village of Patchogue, Poulos, Nudo, and the unidentified employees and agents of the Village are referred to collectively as "the Village defendants.”
. The Court refers to the 56.1 statement submitted by the plaintiffs in opposition to the Village defendants' motion for summary judgment as "Pl. Vill. 56.1.” The Court refers to the 56.1 statement submitted by plaintiffs in opposition to the Fire Department defendants' motion for summary judgment as "Pl. FD 56.1. ” , The Court refers to the defendants’ 56.1 statements as "Vill. 56.1” and "FD 56.1, ” respectively.
. As of October 2007, Mr. Mangino also owned 448 South Ocean Avenue in Patchogue, New York, which he had purchased in January 2005. (Id. ¶ 7.) 448 South Ocean Avenue was a three to four family house, at which plaintiffs never resided. (Id. ¶¶ 8-9.) 448 South Ocean Avenue is not the subject of the claims in the instant lawsuit.
. Plaintiffs assert that Kolb had a “fragile mental state” and complained about rather basic, non-problematic issues, such as that "she has to wait for the hot water to get hot when she turned it on.” (See, e.g., Pl. Vill. 56.1 ¶ 147, 163.) The parties dispute whether Kolb’s complaints were of a serious nature. (See id.)
. The second fire involving the candle occurred in October 2005, after the dates of the significant events at issue in this action. (PI. Vill. 56.1 ¶¶ 187, 204-06.)
. According to Gucciardo's deposition, she does not recall saying that she feared the conditions would result in a fire. (Gucciardo Dep. at 132-33.) Plaintiffs insist that Gucciardo’s primary purpose in calling the Village was to have someone check her refrigerator.
. Plaintiffs emphasize that Gallo testified that, after she informed Poulos of Gucciardo’s complaint, Poulos went to his desk and left the office in under one hour. (PI. Vill. 56.1 ¶ 239.) Plaintiffs argue that it also took Poulos at least forty-five minutes after informing Mr. Mangino of the complaint to arrive at the premises, because Mr. Mangino’s cell phone records indicate that the only incoming call he received that morning was at 10:11 a.m., and the drive to 21 Church Street from the Village office was only a few minutes. (Id.) On that call, Mr. Mangino testified that he informed Poulos that there was no problem with the outlet or any other emergency requiring Poulos to come to the building. (Vill. 56.1 ¶¶ 242-43.)
. Plaintiffs note that Chief Wagner testified that in a non-emergent hazard situation, the Fire Marshal may address the problem, “at any point in time, whether it's five minutes, five hours, five days.” (Wagner Dep. at 192-93.)
. Plaintiffs contend that there is evidence that summons 16518, issued on August 9, 2005, was written one day before the crime being alleged. {See Pl. Vill. 56.1 ¶ 89.)
. Plaintiffs also contend that there is evidence that summons 16537, issued on August 14, 2005, was written one day before the date of the crime being alleged. {See Pl. Vill. 56.1 ¶ 105.)
. Technically the affidavit is notarized August 11, 2006, but there is reason to believe that the year is a mistake on the part of the notary, Joann Gallo, whose notary authorization expired in April 2006, prior to August 11, 2006. Nonetheless, there still appears to be conflicting evidence regarding the date on which Gucciardo signed this authorization. The authorization is indeed dated August 11, 2005. However, at Gucciardo's deposition, her testimony suggested that she signed it on July 25, 2005. {See Gucciardo Dep. at 103-OS, 145-46, 151-52.)
. Plaintiffs argue that these summonses were issued by different inspectors, and there is no evidence that Giorgio was contesting any previous summons on the same issue. (Pl. Vill. 56.1 ¶ 133.)
. Plaintiffs argue that it is noteworthy that the Passilaquas were not issued repetitive tickets on consecutive days in the same manner and frequency as plaintiffs were. (Pl. Vill. 56.1 ¶ 134.)
. Specifically, § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....
42 U.S.C. § 1983.
. Plaintiffs' opposition to the instant motions does not address the Village defendants’ motion to dismiss the false arrest claim and plaintiffs' counsel confirmed at oral argument that plaintiffs were withdrawing their false arrest claim.
. As discussed infra, malicious prosecution claims under § 1983 also require that there be a seizure or other perversion of proper legal procedures.
. Although plaintiffs allege that an arrest warrant was issued and they were required to post bail, the Court notes that this occurred only after plaintiffs failed to appear in Court on the required return date.
. Plaintiffs do not contend that the tickets themselves were not warranted for their noncompliance with the rental permit statute. Instead, plaintiffs' arguments center around the number of tickets issued due to their noncompliance. However, the Court notes that, although multiple tickets were issued, the return date for all the tickets issued in August
. In. any event, in the alternative, plaintiffs' § 1983 malicious prosecution claim should be dismissed because, as discussed infra, plaintiffs have failed to demonstrate "favorable termination” of the proceedings against them.
. The Court notes that the dismissal in MacFawn was a dismissal for facial insufficiency without prejudice — thus, the dismissal was not final, and the trial court's ruling was not a "final termination” for purposes of the malicious prosecution inquiry. However, as discussed infra, the lapsing of the statute of limitations is not sufficient to establish a favorable final termination in these instances.
. The Court notes that the malicious prosecution claim also fails because of the existence of probable cause with respect to each of the tickets. Plaintiffs conceded in their papers, and at oral argument, that probable cause existed for all but two of the tickets at issue. With respect to the remaining two, although plaintiffs concede that the violations existed on the dates in question, they speculate (based upon the ticket numbers) that the tickets were written prior to the dates of the violation and, thus, probable cause could not exist at the time those two tickets were written because the date did not occur yet. How
. Specifically, in TADCO, the court stated:
It remains unclear whether New York law permits abuse of process claims “based on the issuance of the process itself,” as opposed to some abuse of the process after it is issued. Compare Webster v. City of N.Y.,333 F.Supp.2d 184 , 208 (S.D.N.Y.2004) (suggesting issuance might be enough), with Richardson v. N.Y. City Health & Hosps. Corp., 05-CV-6278,2009 WL 804096 , at *16 (S.D.N.Y. Mar. 25, 2009) (collecting Southern District of New York cases requiring further abuse of process after issuance); Jones v. Maples, 98-CV-7132,2002 WL 287752 , at *7 (S.D.N.Y. Feb. 26, 2002) (holding that "without an allegation that the process has been improperly perverted 'after' its issuance, a claim of abuse of process must be dismissed, even though the defendant acted maliciously in initiating the process”). The New York Court of Appeals, however, has noted in dicta that “nothing in this Court's holdings would seem to preclude an abuse of process claim based on the issuance of the process itself.” Parkin v. Cornell Univ., Inc.,78 N.Y.2d 523 ,577 N.Y.S.2d 227 ,583 N.E.2d 939 , 943 (1991); see also Mitchell v. Cnty. of Nassau, 05-CV-4957,2007 WL 1580068 , at *12 (E.D.N.Y.2007) (explaining that whether “the mere act of issuing process” fails to give rise to a claim of abuse of process "has been called into doubt by the New York Court of Appeals”). Recognizing the split of opinion on this issue and not foreclosing the possibility that defendants could later challenge DeMartino's § 1983 abuse of process claim on this ground should he choose to pursue it, at least at this stage, DeMartino will be considered to have plausibly alleged abuse of process in violation of his constitutional rights under § 1983.
Id.
. At least one court has articulated the relevance of the probable cause inquiry in the context of an abuse of process claim as follows: "the absence of probable cause is pro
.
But see, e.g., Hickey
v.
City of N.Y.,
No. 01 Civ. 6506(GEL),
.
But see Granato,
. To the extent that plaintiffs present evidence of the lease agreements signed by their tenants, this does not indicate that plaintiffs had an expectation of
privacy
in those apartments, but rather indicates that plaintiffs had an immediate right to entry in emergency situations. A right of entry to or even occasional use of an apartment is not synonymous with an expectation of privacy.
United States v. Brown,
. The Fire Department contends that Mr. Mangino told Wagner that he did not want anybody in the house and that he would not let the firemen inside. (FD 56.1 ¶ 9.) For the purposes of this analysis, the Court construes the facts favorably to the nonmoving party, plaintiffs, and thus accepts plaintiffs’ version of the exchange regarding permission to enter the premises.
. In fact, plaintiffs' counsel conceded at oral argument that the Fire Department's entry of the building was appropriate.
. Poulos also testified that at the time he was informed of Gucciardo's call, Kolb was physically present in the office registering a complaint about her toilet bowl. (Poulos Dep. at 287-89.) The only evidence that there was a call from Gucciardo at a time when Kolb was present was on July 22, 2005. (See Pl. Ex. 67, Gucciardo Incident Report 7-21-05 with 7-22-05-note.)
. At oral argument, the Village Defendants argued that there was testimony that Welsh informed Wagner of issues with 21 Church Street that required Poulos’s attention. Specifically, Welsh testified as follows:
Q: When you say you report items that you had seen, at least two items that you recall. That being the wiring and the bricks supporting some kind of structure, correct?
A: Correct.
Q: Tell me about who you reported to and when.
A: I just passed it on to the chief and ask him if he wants to call the fire marshal.
Q: Do you recall what you told him specifically?
A: Just — I probably told him about the two violations and that he might want to have the fire marshal take a look at it. Something along those lines.
Q: Did you ask him to call the fire marshal in right then and there or did you ask any other instruction?
A: Usually if he is around and see if he can respond.
(Welsh Dep. at 159-60.) However, this does not conclusively demonstrate the urgency or exigency of the situation, nor does it conclusively demonstrate that Wagner did, in fact, radio to Poulos regarding these items. It is possible that there were code violations on the premises that were not exigencies. Moreover, as mentioned supra, Wagner testified that he did not recall what he told the Fire Marshal.
. The Court recognizes that, although an individual may "delimit as he chooses the scope of the search to which he consented],”
Jimeno,
The fact that Hamilton was a member of a different police department than Lewis or was acting in his position as Special Investigator lor the County Department of Social Services Lewis does not require a different result. For example, Rubio involved "a group of local, state and federal officers.” Id. at 796. The Ninth Circuit did not find the involvement of federal, state, and local police agencies to be determinative of the defendant's expectation of privacy. Similarly, in Wildauer, the plaintiff consented only to the entry of an employee of the department of social services into her home. Nevertheless, members of the sheriff's department, who had accompanied the social worker to the plaintiff's home, also entered. The Fourth Circuit, in agreeing with the Ninth Circuit, stated that "once a person consents to the search ... he may not qualify the number of officials allowed to search. Having consented to [the social worker's] entry, [plaintiff] could not deny access to other members of the party.” Wildauer,993 F.2d at 372 . Here, Hoffman knew that Hamilton, the Department of Social Services, and the County Sheriff were involved in his case. Thus, having givenconsent to Officer Lewis to enter his residence, he no longer had any expectation of privacy and could not limit that consent to exclude Hamilton.
Similarly, whether Hoffman specifically told Hamilton not to enter the apartment without a warrant does not alter the Court's conclusion. The only case to arguably support Hoffman's position is
Mickelson
v.
State,
Mickelson is distinguishable from the instant case because, here, Hoffman’s consent was not induced upon a promise that only one officer would enter the apartment.
Hoffman,
. In 2006, the Supreme Court held that "a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”
Georgia v. Randolph,
. It is worth noting that Poulos testified that his entry was based upon the invitation to enter from the Fire Department; Poulos did not testify that he entered based on Gucciardo's consent.
{See, e.g.,
Poulos Dep. at 272-73 ("A; I was going down at the request to go down. Q; Did Fire Chief Joseph Wagner then instruct you to go down? ... A: I think, yes. He indicated go ahead because I think I' asked him.... He told me to go down and I said to the effect, 'Are you sure you want me to go in?' ”).) However, as noted
supra,
there are disputed issues of fact regarding whether
. Presumably, the "2006" year of the notarization is a mistake, as the document also notes that Joann Gallo’s, the notary’s, commission expires on April 30, 2006, which would be prior to the date of notarization, if that date were August ! 1, 2006.
. Plaintiffs argue, and the Court notes, that the Second Circuit has described the elements of a First Amendment retaliation claim differently in different contexts: "We have described the elements of a First Amendment retaliation claim in several ways, depending on the factual context.”
Williams v. Town of Greenburgh,
. The Village defendants argue, and plaintiffs dispute, that a plaintiff must plead and prove the absence of probable cause as an element of a First Amendment retaliation claim. The Court need not reach the probable cause inquiry because plaintiffs have failed to demonstrate chilled speech as part of their prima facie claim of First Amendment retaliation.
. At least one court has merged the two claims, characterizing the claim as a "due process claim based on abuse of process.”
See Jones v. J.C. Penney’s Dep’t Stores, Inc.,
No. 03-CV-920A,
. The Court acknowledges that there is authority within the Second Circuit that a claim for violation of the right to a fair trial may coexist with a Fourth Amendment claim, such as a claim for false arrest or malicious prosecution. However, a "claim under § 1983 for violation of the right to a fair trial lies where a police officer 'creates false information likely to influence a jury’s decision and forwards that information to prosecutors.'”
Brandon v. City of N.Y.,
. In any event, to meet the first prong of the test for substantive due process violations, a plaintiff must show that he has a "valid property interest.”
Cine SK8 v. Town of Henrietta,
. "While the Second Circuit has not resolved the question of whether there truly is a distinction between selective enforcement and class of one equal protection theories, courts in this circuit have repeatedly treated them as distinct theories with distinct elements of proof and have accordingly evaluated them as separate claims.”
Bonenfant v. Kewer,
No. 3:05cv01508,
. The Court notes that since
Engquist,
at least two circuits have held that class of one claims cannot be raised in the law enforcement context.
See, e.g., Flowers v. City of
. The Court confirmed at oral argument that this claim is only asserted against the Fire Department.
. Plaintiffs attempt to create an issue of fact regarding whether Fire Chief Wagner instructed or authorized Poulos to enter or search the premises. However, as conceded at oral argument, the Village Fire Marshal is an employee of the Village, while the Fire District is a separate political subdivision. The Fire Chief does not have control or authority over the Village Fire Marshal. Accordingly, the Fire District is not responsible for the Fire Marshal's actions.
. Plaintiffs did not present any evidence that suggests that — and plaintiffs do not argue in their opposition papers that — Code Enforcement Officer James Nudo was a policymaker. Accordingly, municipal liability could not be
. The issue of qualified immunity does not affect the Village of Patchogue because "[m]unicipalities do not enjoy either absolute or qualified immunity from suit under Section 1983.”
White River Amusement Pub, Inc. v. Town of Hartford,
. The Court further notes that in 2006, the Supreme Court decided
Georgia v. Randolph, 547
U.S. 103,
. The Court notes that, in order to determine the availability of the qualified immunity defense in this case at trial, the Court is prepared to follow the procedures set forth by the Second Circuit in
Zellner v. Summerlin,