Kiss v. Torres

Daniel Kiss Poughkeepsie,

Daniel S. Kirschbaum, Esq.

James A. Randazzo, Esq.

Drew W. Sumner, Esq.

Portale Randazzo LLP

OPINION & ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE:

Plaintiff Daniel Kiss ("Plaintiff) brings this Action pro se against Hyde Park Police Officers Rafael Torres ("Torres"), Daniel Ferrara ("Ferrara"), Michael Stallone ("Stallone"), and Joshua Tucker ("Tucker"), as well as New York State Trooper James Schulhoff ("Schulhoff," and collectively the "Officer Defendants" or the "Officers"); and the Town of Hyde Park ("Hyde

Park," and with the Officer Defendants, the "Defendants").^[1] (See Am. Compl. (Dkt. No. 39).) As in his initial Complaint, Plaintiff raises various claims pursuant to 42 U.S.C. § 1983 ("§ 1983"), alleging violations of his rights under the Fourth and Fourteenth Amendments, and also-construing his pleadings liberally as the Court must-brings a number of claims under New York state law, including unlawful detainer, unlawful eviction, conversion, false arrest, unlawful seizure of Plaintiff s person and property, negligence, and intentional and negligent infliction of emotional distress. (See Am. Compl. ¶¶ 4, 66-88; Pi's Opp'n to Schulhoff s Mot. To Dismiss ("Pi's Schulhoff Opp'n") 2, 22-24 (Dkt. No. 60); Pi's Opp'n to Hyde Park Defs' Mot. To Dismiss ("Pi's Hyde Park Opp'n") 2, 22-24 (Dkt. No. 61).)^[2] Before the Court are Schulhoff s and the Hyde Park Defendants' respective Motions To Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "Motions"). (See Schulhoff Not. of Mot. (Dkt. No. 47); Hyde Park Defs' Not. of Mot. (Dkt. No. 49).)^[3] For the reasons that follow, Defendants' Motions are granted in part, and denied in part.

I. Background

A. Materials Considered

Beyond the allegations in his Amended Complaint, Plaintiff has-again, (see Op. & Order ("March 2023 Op.") 2 & n.l (Dkt. No. 36))-raised numerous additional factual assertions in his Opposition briefs, (see generally, e.g., Pi's Schulhoff Opp'n.)^[4]

Generally, "[w]hen considering a motion to dismiss, the Court's review is confined to the pleadings themselves" because "[t]o go beyond the allegations in the Complaint would convert the Rule 12(b)(6) motion into one for summary judgment pursuant to [Rule] 56." Thomas v. Westchester Cnty. Health Care Corp., 232 F.Supp.2d 273, 275 (S.D.N.Y. 2002). "Nevertheless, the Court's consideration of documents attached to, or incorporated by reference in the Complaint, and matters of which judicial notice may be taken, would not convert the motion to dismiss into one for summary judgment." Id.; see also Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (explaining that "when ruling on Rule 12(b)(6) motions to dismiss," courts may "consider the complaint in its entirety . . ., documents incorporated into the complaint by reference, and matters of which a court may take judicial notice" (quotation marks omitted)); Hu v. City of New York, 927 F.3d 81, 88 (2d Cir. 2019) ("In deciding a Rule 12(b)(6) motion, the court may consider 'only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matters of which judicial notice may be taken.'" (alteration adopted) (quoting Samuels v. Air Transp. hoc. 504, 992 F.2d 12, 15 (2d Cir. 1993))).

However, when reviewing a complaint submitted by a pro se plaintiff, the Court may also consider "materials outside the complaint to the extent that they are consistent with the

allegations in the complaint," Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (quotation marks omitted), including "[the plaintiffs] opposition memorandum," Godson v. Goord, No. 96-CV-7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997), "documents that a pro se litigant attaches to his opposition papers," Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted), statements by the plaintiff "submitted in response to [a defendant's] request for a pre-motion conference," Jones v. Fed. Bureau of Prisons, No. 1 l-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y.Sept. 19, 2013), and "documents either in [the plaintiffs] possession or of which [the] plaintiff[] had knowledge and relied on in bringing suit," Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation marks omitted).

Because Plaintiff is proceeding pro se, the Court will again consider the factual assertions raised for the first time in his Opposition briefs to the extent they are consistent with the Amended Complaint. See Gadson, 1997 WL 714878, at *1 n.2; accord Walker v. Schult, 717F.3d 119, 122 n. 1 (2d Cir. 2013) ("A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion." (italics omitted)); Haywood v. Annucci, No. 18-CV-10913, 2020 WL 5751530, at *1 n.l (S.D.N.Y. Sept. 25, 2020) ("Where appropriate, the Court also considers factual allegations contained in Plaintiffs opposition papers, to the extent that those allegations are consistent with the Amended Complaint."). (See also March 2023 Op. 2 & n.l (considering Plaintiffs Opposition briefs in connection with deciding Defendants' first Motions To Dismiss).)

B. Factual Background

Unless otherwise stated, the following facts are drawn from the Amended Complaint and Plaintiffs Opposition briefs. (See generally Am. Compl.; Pi's Schulhoff Opp'n.) The facts alleged are assumed true for the purpose of resolving the instant Motions.

See Div. 1181 Amalgamated Transit Union-N.Y.Emps. Pension Fund v. N.Y.C. Dep 't of Educ., 9 F. 4th 91, 94 (2d Cir. 2021) (per curiam). However, given that Plaintiffs Amended Complaint is replete with legal conclusions, (see, e.g., Am. Compl. ¶ 57 ("As the legitimate tenant in the Residence [at issue] on February 13, 2020, Plaintiff had a reasonable expectation of privacy and a right to due process, including notice of termination of his tenancy and a reasonable opportunity to recover his personal belongings, prior to being forcibly evicted from his home."), the Court emphasizes at the outset that it need not-and will not-accept such conclusions as true, Cadet v. All. Nursing Staffing of N.Y., Inc., 632 F.Supp.3d 202, 219 (S.D.N.Y. 2022) ("Even in the pro se context, the Court is not bound to accept 'conclusory allegations or legal conclusions masquerading as factual conclusions.'" (italics omitted) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008))).

1. Plaintiff s Arrangement with Members of the Kenny Family

Since as early as 2010, Plaintiff helped care for Jules Kenny ("Jules"), the ailing father of his close friend Sharon Kenny ("Sharon"), and in return was paid "an hourly rate." (Am. Compl. ¶¶ 11-12.) Years before that, Plaintiff and Sharon had been engaged-though they did not, in fact, marry-"and continued to remain very close friends" over the years, such that Sharon trusted Plaintiff with Jules' care. (Id. ¶ 11.) In or around 2018, following a divorce, Sharon "confided in Plaintiff that she was feeling emotionally and physically overwhelmed by taking care of Jules, who was [then around eighty years old], physically frail[,] and suffering from dementia[,]" so she asked Plaintiff to "increase his hours assisting with Jules' care." (Id. ¶ 12.) Although he was willing to increase his hours caring for Jules, Plaintiff was living in New Jersey at that time, and was therefore not interested in commuting to Sharon and Jules' home at 4 Potter Bend, Hyde Park, New York (the "Residence"). (Id. ¶ 13; Pi's Schulhoff Opp'n 3.) So, Sharon "suggested a solution" that "offered a mutually beneficial living arrangement[,]" where "she

would give Plaintiff [and his wife access to their] own room in the Residence [for an indefinite period of time] and, in addition to assisting with Jules at the same hourly rate, Plaintiff would contribute to expenses[,] and would provide maintenance and repair around the Residence." (Am. Compl. ¶ 13; Pi's Schulhoff Opp'n 2-3.)^[5]

Ultimately, Plaintiff took Sharon up on her offer and, in June 2019, he "moved all of his personal belongings into the Residence," "storing quite a few of his belongings in the basement and attic." (Am. Compl. ¶¶ 14, 16.) As alleged, Plaintiff and his wife received a second-floor bedroom for their own, exclusive use, and they shared the remainder of the Residence, except for Sharon's bedroom, with Sharon and Jules. (See Id. ¶14; Pi's Schulhoff Opp'n 3.) Plaintiff and Sharon had an understanding pursuant to which Plaintiff "would . . . contribute to the maintenance and cost of the Residence." (Am. Compl. ¶ 14.)

From June 2019 until December 17, 2019, Plaintiff and his wife made the Residence their home. (Am. Compl. ¶15; Pi's Schulhoff Opp'n 3.) During that time, "Plaintiff continued helping Sharon with caretaking for Jules at the same hourly rate as before, but in return for the exclusive use of [his r]oom and shared access to the rest of the Residence, he also contributed to the maintenance and cost of the Residence and provided companionship to Sharon." (Am. Compl. ¶ 15.) In terms of improvements and maintenance, Plaintiff built a shed in the backyard of the Residence, repaired and painted the "back deck" and various areas in the Residence, and repaired or replaced various fixtures in the residence, "all using his own money." (Id.; Pi's Schulhoff Opp'n 4.) "Plaintiff also contributed regularly and meaningfully to the ongoing

maintenance and living expenses at the Residence, including utilities, landscaping, cleaning and grocery shopping." (Id. ¶ 15.)^[6]

On December 17, 2019, Sharon died suddenly in a skiing accident. (Id. ¶ 17.) At that time, "Sharon's family assured...