Pirro v. Bd. of Trs. of Vill. of Groton

2022 NY Slip Op 01358

Norfe J. Pirro et al., Appellants, v. Board of Trustees of the Village of Groton et al., Respondents.

No. 532307

Supreme Court of New York, Third Department

March 3, 2022

Calendar Date:January 11, 2022

Allen & Maines, Ithaca (Russell E. Maines of counsel), for appellants.

Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel), for respondents.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and Ceresia JJ.

Lynch J.

Appeal from an order of the Supreme Court (McBride, J.), entered October 1, 2020 in Tompkins County, which granted defendants' motion for summary judgment dismissing the complaint.

This matter has its origins in a challenge to a former local law of defendant Village of Groton, entitled the "Property and Building Nuisance Law" (hereinafter the Nuisance Law). As more fully set forth in two prior decisions of this Court (Board of Trustees of the Vil. of Groton v Pirro, 170 A.D.3d 1479 [2019] [hereinafter Pirro II ]; Board of Trustees of the Vil. of Groton v Pirro, 152 A.D.3d 149 [2017] [hereinafter Pirro I ]), defendant Board of Trustees of the Village of Groton (hereinafter the Board) brought an action against plaintiffs - owners of rental properties in the Village - alleging that they had maintained unabated public nuisances on certain of their properties in violation of the Nuisance Law. Plaintiffs answered and commenced a CPLR article 78 proceeding seeking to enjoin enforcement of the Nuisance Law.

Supreme Court (Rumsey, J.) partially granted plaintiffs' motion for summary judgment to the extent of holding that the Nuisance Law's administrative remedies were unconstitutional and enjoining enforcement of that article, but otherwise declined to invalidate the law in its entirety (see Board of Trustees of the Vil. of Groton v Pirro, 170 A.D.3d at 1480). Upon plaintiffs' appeal, this Court modified by granting plaintiffs' motion for summary judgment in its entirety and declaring that the Nuisance Law was "overbroad and facially invalid under the First Amendment" (Board of Trustees of the Vil. of Groton v Pirro, 152 A.D.3d at 160-161). As to the finding of facial invalidity under the First Amendment, this Court held that, because the Nuisance Law did not prohibit the assessment of nuisance points against a property for police involvement thereat, the law violated the right of plaintiffs' tenants to petition the government for redress of grievances by deterring them from calling the police in response to crimes committed at their properties (id. at 157-160). This Court later increased an award of counsel fees in plaintiffs' favor under 42 USC § 1988 (Board of Trustees of the Vil. of Groton v Pirro, 170 A.D.3d at 1480-1481).

In June 2018, plaintiffs commenced the instant action against defendants asserting four causes of action in connection with enforcement of the Nuisance Law: (1) malicious prosecution; (2) claims under 42 USC § 1983 for violations of plaintiffs' rights under the First, Fifth and Fourteenth Amendments; (3) negligent supervision; and (4) violations of the Fair Housing Act (see 42 USC § 3601 et seq. [hereinafter FHA]). After joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Supreme Court (McBride, J.) granted defendants' motion, finding insufficient proof to sustain any of the causes of action. Plaintiffs appeal.

Contrary to plaintiffs' contention, Supreme Court properly dismissed the first cause of action for malicious prosecution. "The elements of the tort of malicious prosecution of a civil action are (1) prosecution of a civil action against the plaintiff, (2) by or at the instance of the defendant, (3) without probable cause, (4) with malice, (5) which terminated in favor of the plaintiff, and (6) causing special injury" (347 Cent. Park Assoc., LLC v Pine Top Assoc., LLC, 144 A.D.3d 785, 785-786 [2016] [internal quotation marks and citations omitted], lv denied 29 N.Y.3d 909 [2017]; see Minasian v Lubow, 49 A.D.3d 1033, 1034 [2008]). A defendant need not establish probable cause for each claim underlying the civil action to defend against a malicious prosecution claim. Rather, it is sufficient that "probable cause existed for the prior proceeding as a whole" (Perryman v Village of Saranac Lake, 41 A.D.3d 1080, 1080 [2007]). The "want of probable cause must be patent" (Fink v Shawangunk Conservancy, Inc., 15 A.D.3d 754, 755 [2005] [internal quotation marks and citation omitted]) and, if "at least some causes of action in the underlying complaint had potential merit," such a claim will fail (Perryman v Village of Saranac Lake, 41 A.D.3d at 1082 [internal quotation marks and citations omitted; emphasis added]).

In dismissing the first cause of action, Supreme Court correctly noted that the Nuisance Law had not yet been invalidated by the time that defendants commenced the civil action against plaintiffs thereunder. The record demonstrates that several alleged Nuisance Law violations had occurred at plaintiffs' properties by the time the action was commenced and, notably, other property owners also received points under the Nuisance Law - negating an inference that plaintiffs were singled out for enforcement. In these circumstances, defendants have satisfied their prima facie burden to demonstrate that the action, "'considered as a whole, was not entirely without probable cause'" (347 Cent. Park Assoc., LLC v Pine Top Assoc., LLC, 144 A.D.3d at 786, quoting Perryman v Village of Saranac Lake, 41 A.D.3d at 1082).

In opposition, plaintiffs did not "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Matter of Fernandez v Town of Benson, 196 A.D.3d 1019, 1023 [2021] [internal quotation marks and citations omitted]). Plaintiffs' submissions tend to substantiate defendants' assertion that the civil action was commenced upon a good-faith belief that plaintiffs had violated the Nuisance Law and not due to any malice on the part of defendants. To that end, plaintiffs submitted, among other things, police reports and lists of incidents that occurred at their properties, which formed the basis of their accrual of nuisance points. The record also contains a January 2016 affidavit from Charles Rankin, the Village clerk at the time of enforcement, who averred that the Board commenced its action against plaintiffs when it was clear that plaintiffs did not intend to abate the alleged nuisances. Not to be overlooked is the fact that defendants waited approximately one year to commence the action against plaintiffs after they notified them of the alleged nuisances, tending to negate an inference of malice. In these circumstances, we agree with Supreme Court that plaintiffs did not raise a triable issue of fact on the malicious prosecution claim (see 347 Cent. Park Assoc., LLC v Pine Top Assoc., LLC, 144 A.D.3d at 786).

Nor did Supreme Court err in dismissing the second cause of action asserting violations of the First, Fifth and Fourteenth Amendments to the U.S. Constitution. As for the First Amendment claim, Supreme Court found, in essence, that plaintiffs lacked standing to assert their tenants' constitutional rights. On appeal, plaintiffs imply that Supreme Court improperly considered the standing issue because defendants failed to raise standing as a defense in their answer. Although the defense of standing will generally be waived if a defendant fails to raise it in an answer or pre-answer motion (see CPLR 3211 [e]; US Bank N.A. v Nelson, 36 N.Y.3d 998, 999 [2020]), the complaint provided no notice of a potential standing issue, as it explicitly stated that "[t]he actions of defendants violated the rights of... plaintiffs secured by the Constitution of the United States, including their rights of petition or association under the First Amendment" (emphasis added). Because the complaint asserted a violation of plaintiffs' own constitutional rights - which they clearly had standing to litigate - and was devoid of any implication that plaintiffs were asserting the rights of their tenants, defendants cannot be faulted for failing to raise a standing defense in their answer.

In subsequent submissions and during oral argument before this Court, plaintiffs clarified that they were "not purporting to assert a right of the tenants," but rather, were "claiming that the violation of the tenants' rights caused [plaintiffs] economic harm." However, 42 USC § 1983 would not provide plaintiffs with relief in these circumstances. "The essential elements of [a] cause of action [under 42 USC § 1983] are conduct committed by a person acting under color of state law, which deprived the plaintiff of rights, privileges, or immunities secured... by the Constitution or laws of the United States" (Maio v Kralik, 70 A.D.3d 1, 11-12 [2009] [internal quotation marks and citations omitted]; see American Mfrs. Mut. Ins. Co. v Sullivan, 526 U.S. 40, 49-50 [1999]; Pitchell v Callan, 13 F.3d 545, 547 [2d Cir 1994]; Everett v Eastchester Police Dept., 157 A.D.3d 658, 659 [2018], Lucas v Devlin, 139 A.D.3d 1196, 1197 [2016], lv denied 28 N.Y.3d 901 [2016]). The person acting under color of state law is "liable to the party injured" by the constitutional deprivation (42 USC § 1983). Stated differently, damages under 42 USC § 1983 are available for a violation of a litigant's own constitutional rights, not for the deprivation of the rights of others (see Nnebe v Daus, 644 F.3d 147, 156 [2d Cir 2011] [interpreting the rights secured by 42 USC § 1983 "to be personal to those purportedly injured" (internal quotation marks and citation omitted)]; Archuleta v McShan, 897 F.2d 495, 497 [10th Cir 1990] [recognizing the "well-settled principle that a (42 USC §) 1983 claim must be...