Dellutri v. Vill. of Elmsford

• Decision Date: 28 September 2012
• Docket Number: Case No. 10–CV–01212 (KMK).
• Citation: 895 F.Supp.2d 555
• Parties: Michael DELLUTRI, Plaintiff, v. VILLAGE OF ELMSFORD, Defendant.
• Court: U.S. District Court — Southern District of New York

895 F.Supp.2d 555

Michael DELLUTRI, Plaintiff,

v.VILLAGE OF ELMSFORD, Defendant.

Case No. 10–CV–01212 (KMK).

United States District Court,

S.D. New York.

Sept. 28, 2012.

David A. Menken, Mitchell Ian Weingarden, Law Offices of Mitchell I. Weingarden, PLLC, White Plains, NY, for Plaintiff.

Kiera Meehan, Esq., Steven C. Stern, Esq., Sokoloff Stern LLP, Westbury, NY, for Defendant.

OPINION AND ORDER

KENNETH M. KARAS, District Judge.

Plaintiff Michael Dellutri (“Plaintiff”) has filed a Second Amended Complaint following removal of this action by Defendant Village of Elmsford (“Defendant” or “Elmsford”) from New York Supreme Court. Plaintiff alleges that officials of Elmsford engaged in various acts relating to Plaintiff's family dwelling in Elmsford, which constituted federal constitutional deprivations in violation of the Due Process and Equal Protection clauses of the Fourteenth Amendment, as well as state law torts of malicious prosecution, abuse of process, and prima facie tort.¹

Defendant has moved to dismiss Plaintiff's Second Amended Complaint (“SAC”) in its entirety. For the reasons stated herein, the motion is granted with respect to the federal claims, supplemental jurisdiction over the state law claims is declined, and the Second Amended Complaint is dismissed in its entirety.

I. Background

A. Facts

For purposes of deciding the instant motion to dismiss, the Court accepts as true the allegations contained in Plaintiff's Second Amended Complaint.

Plaintiff is a longtime owner of real property located at 15 Paulding Street in Elmsford, New York, which contains a second kitchen and bath. (SAC ¶ 1.) Elmsford's Building Department issued Plaintiff a “Certificate of Compliance with Zoning and Building Regulations, dated on or about October 17, 1984,” permitting Plaintiff's property to have a second kitchen and bath and describing it as a “two[-]family dwelling.” ² ( Id. ¶ 6.) In February 2005, Plaintiff alleges that an Elmsford Building Inspector, Antonio Capicotto, and an Assistant Building Inspector, Martin Rogers, served him with a notice of violation charging unlawful operation of the premises as a two-family residence. ( Id. ¶ 4.) Plaintiff also claims that Defendant served upon him an “order to cease renting the basement unit” which resulted in lost rent. ( Id. ¶ 14.) Plaintiff does not specify the precise time that this order was served, or which Village official issued it.

More than a year after the notice of violation, the Village Attorney of Elmsford, served Plaintiff with an appearance ticket on July 17, 2006, to appear and answer the charges in the Elmsford Justice Court on August 9, 2006. ( Id. ¶ 7.) Following a subsequent trial before Elmsford Village Judge Richard Leone, Plaintiff was convicted on October 18, 2006, ( id. ¶ 11; Mem. of Law in Supp. of Def.'s Mot. to Dismiss (“Def.'s Mem.”) 1) for violations under both the New York Property Maintenance Code and the Village of Elmsford Code. See People v. Dellutri, 21 Misc.3d 136(A), No. 2007–CR–1591, 2008 WL 4814911, at *1 (N.Y.App.Term Oct. 30, 2008). Plaintiff's conviction was then reversed by the New York Supreme Court on October 30, 2008. Id. The Supreme Court held that the New York State Code charge was inapplicable, and that Plaintiff “was improperly charged and convicted” under it. Id. On the Village Code violation, the Supreme Court noted that during the trial the building inspector testified that he had been aware of both an original certificate of occupancy for Plaintiff's property, as a one-family dwelling, and a later conversion of the property to a two-family dwelling based upon a second dwelling unit in the basement. Id. However, the building inspector suspected another illegal dwelling unit over the garage of Plaintiff's property, in effect making the premises a three-family dwelling. Id. The Supreme Court, noting that the building inspector had not actually visited this unit, held that there was no “valid line of reasoning and permissible inferences from which a rational trier of fact could have found the elements of the offenses proved beyond a reasonable doubt,” and reversed Plaintiff's conviction. Id. (alterations and internal quotation marks omitted).

Plaintiff alleges that the building inspectors were “actually or constructively aware” of Plaintiff's 1984 compliance certificate, that the Village Attorney “knew or should have known” the charges were false, and that Judge Leone was not only aware of the compliance certificate, but had actually assisted in its procurement on behalf of Plaintiff. (SAC ¶¶ 6, 8, 13–14.)

B. Procedural History

Plaintiff originally commenced this action in state court. In the original complaint, Plaintiff named the Village of Elmsford as a defendant, along with Antonio Capicotto and Martin Rogers, who were an Elmsford Building Inspector and Assistant Building Inspector, respectively, and who were sued in their official capacities. Defendant removed the action to this Court on February 17, 2010, pursuant to 28 U.S.C. §§ 1331 and 1441(b). (Dkt. No. 1.) Plaintiff has since amended his complaint twice and stipulated to the dismissal of Capicotto and Rogers as defendants, with prejudice. (Dkt. Nos. 1, 6, 10–12.) In the Second Amended Complaint, Plaintiff's claims are for damages arising from: (1) “Abuse of [p]rocess/[m]alicious and [u]nlawful [p]rosecution,” (2) violations of procedural and substantive due process, (3) violations of “Plaintiff's right to equal protection,” and (4) prima facie tort under state law. (SAC ¶¶ 21–40.) Plaintiff seeks damages of at least $100,000 plus interest, costs, punitive damages, and attorneys' fees. ( Id. ¶ 43.)

Defendant moved to dismiss the complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 16.) On May 3, 2012, the Court issued an order for supplemental briefing on the question of why all claims against Elmsford should not be deemed to have been dismissed by virtue of the dismissal with prejudice of Capicotto and Rogers. (Dkt. No. 23.) Supplemental briefing was submitted by the Parties on May 14, 2012. (Dkt. Nos. 24, 25.) The Court held oral argument on July 24, 2012.

II. Discussion

A. Standard of Review

“On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiff's factual allegations as true and draw all reasonable inferences in [the plaintiff's] favor.” Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y.2008); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (“We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor.” (internal quotation marks omitted)). In adjudicating a 12(b)(6) motion, a court must confine its consideration to “facts stated in the complaint or documents attached to the complaint as exhibits or incorporated by reference,” and facts of which the Court may take judicial notice. Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005); see also Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original) (citations omitted). Instead, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. A complaint cannot rest solely on conduct consistent with behavior that raises a right to relief; a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).

B. Federal Claims Against Elmsford

Plaintiff makes multiple claims against Elmsford, presumably asserted pursuant to 42 U.S.C. § 1983, including violations of substantive due process, procedural due process, equal protection, malicious prosecution, and abuse of process.³ Plaintiff's claims are based upon the alleged actions of “the Village of Elmsford Judge” who presided over Plaintiff's trial, the Elmsford Building Inspector and Assistant Building Inspector who served a notice of violation upon Plaintiff, and the Village Attorney who served Plaintiff with an appearance ticket and subsequently prosecuted Plaintiff. (SAC ¶¶ 6, 8, 26, 33–34.) As described below, these claims fail on multiple grounds.

1. Res Judicata

As noted above, prior to the current motion to dismiss, Plaintiff stipulated to the dismissal of Capicotto and Rogers as defendants, with prejudice. (Dkt. No. 10.) Noting that an “official capacity suit against a public servant is treated as one against the governmental entity itself,” Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir.2007), the Court ordered Plaintiff, on May 3, 2012, to submit supplemental briefing on the question of “why all claims against Elmsford should not be deemed to have been dismissed with prejudice by virtue of the voluntary dismissal with prejudice of Capicotto and Rogers.” (Dkt. 23 (citing Muhammad v. City of Peekskill, 06–CV–1899, 2008 WL 4452355, at *3 (S.D.N.Y. Sept. 30, 2008)).) Plaintiff's supplemental filing argues that Elmsford's “liability is not solely based on [the] acts” of Capicotto and Rogers, and that, therefore, even if the acts attributable to those two individuals are dismissed “the remaining claims should stand.” (Dkt. No. 25.)

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