Norton v. Town of Islip

97 F.Supp.3d 241

Howard J. NORTON, Plaintiff

v.TOWN OF ISLIP, County of Suffolk, Alicia S. O'Connor, Erin Sidaras, Patricia A. Waite, Michael P. Walsh, Daniel C. Eckert, and Jason Mistretta, all individually and in their official capacities, Defendants.

No. 12 CV 4463PKC.

United States District Court, E.D. New York.

Signed March 31, 2015.

Rick Ostrove, Bryan L. Arbeit, Leeds Brown Law, P.C., Carle Place, NY, for Plaintiff.

Edward Michael Ross, Judah Serfaty, Rosenberg Calica & Birney LLP, Garden City, NY, Brian C. Mitchell, Hauppauge, NY, for Defendants.

MEMORANDUM OPINION & ORDER

PAMELA K. CHEN, District Judge.

Plaintiff Howard J. Norton brings this action against Defendants the Town of Islip (“the Town”); the County of Suffolk (“the County”); and Town of Islip attorneys Alicia S. O'Connor, Erin Sidaras, Patricia Waite, and Michael Walsh, and Town of Islip investigators Daniel C. Eckert and Mistretta (collectively, the “Individual Town Defendants”). The thirteen-count Second Amended Complaint alleges several theories of liability against the defendants stemming from the Town of Islip's issuance of appearance tickets to Norton in 2010 and subsequent attempts to prosecute Norton for violations of the Town's Rental Permit and Prohibited Storage laws. The Town Defendants¹ and the County have moved to dismiss the Second Amended Complaint. Norton has cross-moved for summary judgment on his claim seeking the invalidation of the Town's Rental Permit law.

For the reasons set forth below, the Court dismisses Norton's claims pled under 42 U.S.C. § 1983 (First Amendment retaliation, malicious prosecution, Fourth Amendment violation, due process violation, and related Monell liability against the Town and County). Thus, the following counts are dismissed: Count 1 (First Amendment retaliation), Count 2 (malicious abuse of process), Count 4 (Fourth Amendment search), Count 5 (procedural due process), Count 6 (Monell liability against the Town based on malicious prosecution and malicious abuse of process), Count 8 (Monell liability against the County based on malicious prosecution and malicious abuse of process), Count 12 (attorneys' fees), and Count 13 (malicious prosecution).

The Court also dismisses Norton's claims pled under the federal Declaratory Judgment Act because they cannot independently support subject matter jurisdiction. Count 9 (pattern/practices of the Town), Count 10 (pattern/practices of the County) and Count 11 (invalidation of the Town Rental Code) are thus dismissed from the complaint.

Having disposed of Norton's claims pled under federal law, the Court declines to exercise supplemental jurisdiction over the remaining state law claims in the complaint. The Court thus dismisses, without prejudice, the following claims for lack of independent subject matter jurisdiction: Count 3 (malicious prosecution under New York law) and Count 7 (respondeat superior liability against the Town for malicious prosecution). The Court also dismisses Norton's cross-motion for summary judgment on Count 11.

I. BACKGROUND

The following facts are drawn from the allegations in Norton's Second Amended Complaint (“the complaint” or “SAC”), which are assumed to be true in deciding the Defendants' Motion for Judgment on the Pleadings. See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir.2001). All reasonable inferences are drawn in favor of Norton as the non-moving party. Id.

A. Parties

Norton resides in Lynbrook, New York and owns residential property in the Town of Islip. (SAC, ¶ 4). From October 2009 through June 2012, he owned a 25% interest in the property located at 204 Claywood Drive in the Town of Islip (“the Claywood Property”). (SAC, ¶¶ 4, 96). The remaining 75% interest in the Claywood Property was severally owned by his brothers. (SAC, ¶ 98).

The Town of Islip is located in Suffolk County, New York. During the time relevant to this action, the Town employed Alicia O'Connor as the Town Attorney for the Office of the Town of the Town of Islip (“Town Attorney's Office”). (SAC, ¶ 7). Also employed by the Town Attorney's Office were Erin Sidaras, Deputy Town Attorney; Patricia Waite, Assistant Town Attorney; and Michael Walsh, Assistant Town Attorney. (SAC, ¶¶ 8–10). Norton alleges that Sidaras and O'Connor were the policymakers in the Town Attorney's Office. (SAC, ¶¶ 7–8).

During the time relevant to this action, the Town's Division of Code Enforcement employed Daniel Eckert as an investigator and Jason Mistretta as senior investigator. (SAC, ¶¶ 11–12).²

B. Plaintiff's Prior and Ongoing Litigation Against The Town

The present action is Norton's third against the Town of Islip in the Eastern District of New York and his fourth total. The first action, No. 98–CV–6745 (“Norton I ” ) arose out of a 1997 accusatory instrument filed against Norton for the alleged use of a one-family dwelling in non-conformity with its last-issued certificate of occupancy. (SAC, ¶ 13). During the pendency of that criminal action, Norton commenced Norton I in 1998, alleging that the Town and certain Town officials deprived him of his right to a non-conforming use of the property without due process. (SAC, ¶¶ 14–17). The parties then agreed to adjourn the criminal action pending the resolution of Norton I . (SAC, ¶ 17). In January 2003, the Honorable Nicholas G. Garaufis found a violation of Norton's right to procedural due process and awarded declaratory relief recognizing the non-conforming use of the property. (SAC, ¶¶ 20–21). A week after entry of judgment against the Town, the Town filed a notice of appeal. (SAC, ¶¶ 22–23). Norton sought dismissal of the criminal action, but the Town opposed his motion. (SAC, ¶¶ 25–26). The State Court ultimately dismissed the criminal action on April 23, 2003. (SAC, ¶ 27). On October 9, 2003, the Second Circuit affirmed Norton I . (SAC, ¶ 28). The Town sought certiorari from the Supreme Court but was denied on June 14, 2004. (SAC, ¶¶ 28–30). On October 5, 2004, Judge Garaufis awarded Norton a fee award of $299,471.98 against the Town. (SAC, ¶ 31).

On July 21, 2004, Norton commenced a second action, No. 04–CV–3079 (“Norton II ” ) in the Eastern District of New York against the Town, certain individual officers of the Town and the County for malicious prosecution and abuse of process under state and federal law arising out of the Town's criminal prosecution of Norton during Norton I . (SAC, ¶ 32). Norton moved to disqualify Sidaras or any other Town Attorney from representing the Town in Norton II, arguing a conflict of interest in having any Town Attorney represent the Town when Norton had named the Town Attorney and Deputy Town Attorney as defendants. (SAC, ¶ 33).³ Sidaras remained on Norton II , however, because Norton's bid to disqualify her failed. (SAC, ¶¶ 36–40). On March 27, 2009, Judge Garaufis granted defendants' motion for summary judgment in part and denied it in part. (SAC, ¶ 42). The Town appealed to the Second Circuit, and on May 25, 2010, the Second Circuit reversed the district court's decision denying federal qualified immunity to certain individual defendants and remanding the state law, Monell liability, and declaratory judgment claims to the district court. (SAC, ¶ 49). A review of the docket sheet in Norton II shows that discovery is ongoing.⁴

Prior to filing Norton II , Norton filed three separate record demands with the Town pursuant to New York's Freedom of Information Law (“FOIL”). (SAC, ¶ 55). A long-running dispute over the requested records and the Town's production ensued. (SAC, ¶¶ 56–94). During the course of the proceeding, Norton filed a motion for civil contempt against the Town and individual defendants, including Sidaras, and sanctions against the Town. (SAC, ¶ 86). On July 26, 2007, the Suffolk County Supreme Court denied the motion for contempt and for sanctions, and ordered the Town to produce redacted records. (SAC, ¶ 89). Both sides appealed. (SAC, ¶ 90). On February 9, 2010, the Appellate Division, Second Department reversed the lower court's 2007 decision and remitted the case to determine whether the Town had violated a 2006 order to produce and also to re-examine Norton's motion for civil contempt and sanctions. (SAC, ¶ 91).

C. Issuance of First Set of Appearance Tickets and First Prosecution

The present action arises from the Town's issuance of appearance tickets and accusatory instruments with respect to Norton's Claywood Property. On February 3, 2010, the Claywood Property suffered a fire in its garage. (SAC, ¶ 99). Eckert, an investigator with the Town, went to the Claywood Property the same day to conduct an investigation. (SAC, ¶ 100). Norton alleges that the Town's practice is to have the Fire Marshal's office deploy investigators to investigate violations of the Rental Permit Code and that Eckert went there “based on the belief that the Claywood Property was being used as a rental.” (SAC, ¶¶ 100–01).

Eckert entered the property and conducted a search of the interior of the house, garage and curtilage. (SAC, ¶¶ 102, 104, 106). Norton alleges the search was unauthorized because Norton did not consent and Eckert had no warrant. (SAC, ¶¶ 102, 106). While at the property, Eckert spoke with Ralph Voehl and Joseph Atkins and asked them to execute an affidavit of tenancy regarding the Claywood Property. (SAC, ¶ 109). Voehl explained the terms of his lease to Eckert, but declined to execute an affidavit. (SAC, ¶¶ 109, 122).

On February 3, 2010, Eckert issued an appearance ticket to Norton for “allow [ing] and maintain[ing] the rental of the [Claywood Property] without a permit from the Town of Islip.” (Town Def. Ex. D–1 at 1 (“Rental Appearance 1”); SAC, ¶ 110). After several attempts of service at the Claywood Property, Eckert mailed Rental Appearance 1 to Norton's brother in Syosset with a copy to the Claywood Property. (SAC, ¶¶ 112–16). Eckert also called the Town's Housing Bureau to see if Norton had a rental permit. (SAC, ¶ 114).

On February 17, 2010, Eckert...