Peter L. Hoffman & Lotte, LLC v. Town of Southampton

• Decision Date: 28 September 2012
• Docket Number: No. 11–CV–3690 (JFB)(ARL).,11–CV–3690 (JFB)(ARL).
• Citation: 893 F.Supp.2d 438
• Parties: Peter L. HOFFMAN and Lotte, LLC, Plaintiffs, v. TOWN OF SOUTHAMPTON, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

893 F.Supp.2d 438

Peter L. HOFFMAN and Lotte, LLC, Plaintiffs,

v.TOWN OF SOUTHAMPTON, et al., Defendants.

No. 11–CV–3690 (JFB)(ARL).

United States District Court,

E.D. New York.

Sept. 28, 2012.

Brian S. Cohen, Cohen Law Group, Greenwich, CT, for Plaintiffs.

Richard C. Cahn, Cahn & Cahn, LLP, Huntington, NY, and Kathryn Valentine Garvin, Southampton Town Attorney, Southampton, NY, for Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiffs Peter Hoffman (“Hoffman”) and Lotte, LLC (“Lotte”), together (“plaintiffs”) bring this action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the Town of Southampton (“Town”), the Board of Trustees of the Freeholders and Commonalty of the Town of Southampton (“Trustees”), Trustee Frederick C. Havemeyer (“Trustee Havemeyer”), Trustee Scott A. Strough (“Trustee Strough”), Senior Assistant Town Attorney Joseph R. Lombardo (“SATA Lombardo”), and Senior Bay Constable Theodore H. Sadleir (“SBC Sadleir”) (collectively, “defendants”), for malicious abuse of process in connection with defendants' efforts to have plaintiffs remove a dock from plaintiffs' property. ¹ Plaintiffs also seek a declaratory judgment pursuant to 28 U.S.C. § 2201, that the Trustees' policy of revoking legal preexisting, nonconforming uses and structures, is unconstitutional. Finally, plaintiffs assert state law claims for malicious prosecution and abuse of process.

Defendants filed a motion to dismiss plaintiffs' amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the federal and state malicious abuse of process claims should be dismissed because plaintiffs have not sufficiently alleged that defendants employed process with intent do harm or in order to obtain a collateral objective outside the legitimate ends of the process, and that the state malicious prosecution claim should be dismissed because defendants had probable cause to initiate the action and lacked malice.

For the reasons set forth below, the Court grants defendants' motion to dismiss the federal malicious abuse of process claim, but will give plaintiffs leave to replead to attempt, if they wish, to address the pleading defects identified in this Memorandum and Order. The Court will not address the state claims at this time because, if the plaintiffs cannot plead a federal claim that survives a motion to dismiss in an amended complaint, the Court will decline to exercise supplemental jurisdiction over any state law claims.

I. Background

A. Factual History

The following facts are taken from the amended complaint and are not findings of fact by the Court. Instead, the Court assumes these facts to be true for purposes of deciding the pending motion to dismiss and will construe them in a light most favorable to plaintiff, the non-moving party.

1. The Property

The property that is the subject of this action is located at 474 Jobs Lane, Bridgehampton, Town of Southampton, New York (the “property”). (Amended Complaint (“AC”) at ¶ 17.) It was built in the late 1950s by Hoffman's mother, Lotte Hoffman. ( Id.) Hoffman was granted sole ownership of the property in June 2005, then transferred ownership to Lotte, of which Hoffman is the sole and managing member. ( Id. at ¶ 22.)

The property is situated off of Mecox Bay and includes “the waters and land under the waters of Jobs Creek in front of and adjacent to the premises.” ( Id. at ¶ 18.) The westerly line of the property extends into Jobs Creek. ( Id.) The property includes a driveway, residence, 4' by 36' catwalk and 10' by 20' fixed dock. ( Id.) The dock lies entirely on the property and is beyond the jurisdiction of the Trustees. ( Id. at ¶ 19.) The catwalk and dock have been in place since the 1960s and, therefore, pre-date the requirements of the Trustees limiting the width of docks to six feet. ( Id. at ¶ 21.)

2. Attempts to Secure the Permits

At some point after April 23, 2005, Hoffman called the New York State Department of Environmental Conservation (“NYSDEC”) to determine the requirements for obtaining a NYSDEC Tidal Wetlands Permit to legalize the catwalk and dock. ( Id. at ¶ 25.) Hoffman presented evidence confirming that the dock pre-dated the NYSDEC wetlands regulations, which were adopted in 1977. ( Id. at ¶ 26.) On January 6, 2006, NYSDEC forwarded a “Warning Letter” to Hoffman which stated that NYSDEC observed a potential violation—specifically, the unpermitted catwalk and dock—but considered “this violation resolved” and reminded Hoffman that “any future regulated activity will require the appropriate permits.” ( Id. at ¶ 27.) NYSDEC told Hoffman several times that the “Warning Letter” operated as a permit. ( Id. at ¶ 28.)

In November 2006, Hoffman contacted the Trustees to discuss the requirements for obtaining a dewatering permit. ( Id. at ¶ 29.) Shortly thereafter, Trustee Strough, who, at the time, was President of the Trustees, spoke with Hoffman at the property concerning the dewatering permit. ( Id. at ¶ 30.) The matter of the preexisting dock was raised, and Trustee Strough recommended that Hoffman simultaneously submit a permit application for the dock and the dewatering permit, along with the January 6, 2006 NYSDEC letter. ( Id.) Strough stated that the permit application would be approved without hindrance in light of the NYSDEC approval and upon submission of the Trustee permit application, $250 filing fee, and NYSDEC warning letter. ( Id.) Plaintiffs allege that the Trustees' permit for the dock was not required since the dock and catwalk were beyond the Trustees' jurisdiction. ( Id. at ¶ 32.) Nonetheless, Hoffman submitted the application for the permits in January 2007. ( Id.)

3. Threats of Prosecution

On January 23, 2007, Hoffman received a letter from Trustee Havemeyer, written on behalf of the Trustees, indicating that his application was incomplete and that the Trustees “do not permit dock floats larger than 6' by 20'.” ( Id. at ¶ 33.) The letter also stated, “It is important that you know that we do not grandfather pre-existing but nonconforming structures ... [and] do not allow oversize 10' by 29' platforms as part of a 4' wide catwalk.” ( Id.) After receiving this letter, Hoffman attempted to reach Trustee Strough by phone several times, but Strough did not return Hoffman's calls. ( Id. at ¶ 34.) On March 7, 2007, Hoffman received another letter from Trustee Havemeyer, which plaintiffs allege was written at Trustee Strough's direction. ( Id. at ¶ 35.) The letter advised, “The serious problem is that the dock structure on your property does not have a permit and in its present form does not conform to our regulations.... [T]he [Trustees] discussed this situation at our March 5th meeting, and the [Trustees'] decision was that the structure is illegal and has to be removed immediately.” ( Id.) Hoffman attempted to contact Havemeyer, but Havemeyer instead “complained to Southampton Town Bay Constable Chris Kohnkon, who subsequently inspected the property on April 10, 2007.” ( Id. at ¶ 36.)

On April 16, 2007, Hoffman received another letter from Havemeyer, again written on behalf of the Trustees. ( Id. at ¶ 37.) The letter stated that the dock was “constructed without a permit” and “cannot be legalized” because it violates Trustees' regulations. ( Id.) The letter stated that the structure “must be removed immediately,” and if it “is not removed within two (2) weeks of the date of this letter, the Bay Constables will be notified to file a list of violations with the court.” ( Id.)

According to Steven C. Resler, Deputy Bureau Chief of the Resources Management Bureau of the New York State Department of State (“NYSDOS”), removal of the catwalk and replacement with a new structure “would likely cause unnecessary physical damage to the area.” ( Id. at ¶ 41.) Shawn Barron, an environmental consultant opined that “removing the existing dock and catwalk would destabilize the shoreline and cause extensive damage to existing wetlands vegetation.” ( Id. at ¶ 42.) Plaintiffs did not remove the dock. ( Id. at ¶ 45.)

4. Criminal Prosecution of Plaintiffs

On August 16, 2007, SBC Sadleir, acting upon the order of the Trustees, Strough and/or Havemeyer, filed with the Justice Court Appearance Ticket No. 13849, charging plaintiffs with a violation of Section 111–30(A) of the Town of Southampton Town Code (“Town Code”) for allegedly constructing an illegal dock at the property without a Trustees permit. ( Id. at ¶ 46.) Appearance Ticket No. 13849 was never served on plaintiffs. ( Id.) At the time, under Section 111–39(A) of the Town Code, a first violation of Section 111–30(A) was punishable by a fine up to $350 and/or imprisonment up to 15 days. ( Id. at ¶ 47.)

On August 18, 2007, Sadleir filed with the Justice Court a Criminal Court Information (“August 18, 2007 Information”), which was also not served on plaintiffs. ( Id. at ¶ 49.) The August 18, 2007 Information stated that “on or about Thursday, August 16, 2007, at about 1:00 P.M.” plaintiffs “wrongfully, intentionally, knowingly committed the offense of CONSTRUCTION WITHOUT A PERMIT in violation of” Section 111–30(A) of the Town Code and that plaintiffs “did construct, place and maintain upon town waters and within the bay beach area a catwalk and dock without first obtaining the required permit from the Town Trustees contrary to said provisions of this statute in such case made and provided.” ( Id. at ¶ 49.)

On September 23, 2007, plaintiffs were served with Appearance Ticket No. 13852, which charged plaintiffs with a violation of Section 111–30(A) of the Town Code. ( Id. at ¶ 50.) On September 24, 2007, Sadleir filed with the Justice Court a Criminal Court Information (“September 24, 2007 Information”), which was also not served on plaintiffs, and again charged a violation of Section 111–30(A) of the Town Code.² ( Id. at ¶ 52.) On September 27, 2007, Hoffman learned of Appearance Ticket No. 13849 by email from Sadleir, with a copy sent to Assistant Town...