Woodhull v. Town of Riverhead, 2006-11179

• Decision Date: 18 December 2007
• Docket Number: 2006-11179
• Citation: 46 A.D.3d 802,849 N.Y.S.2d 79,2007 NY Slip Op 10141
• Parties: JAMES WOODHULL, Respondent, v. TOWN OF RIVERHEAD, Appellant.
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 802

849 N.Y.S.2d 79

2007 NY Slip Op 10141

JAMES WOODHULL, Respondent, v. TOWN OF RIVERHEAD, Appellant.

2006-11179

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 18, 2007.

In an action, inter alia, to recover damages for trespass and civil rights violations pursuant to 42 USC § 1983, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated October 11, 2006, as denied those branches of its motion which were for summary judgment dismissing the first, third, fourth, and sixth causes of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were for summary judgment dismissing the first, third, fourth, and sixth causes of action are granted.

The plaintiff is the owner of real property upon which he maintains and rents five trailers. On October 1, 2001, Richard Downs, a code enforcement officer for the defendant Town of Riverhead, was on property adjoining the plaintiff's land investigating a litter complaint when he observed that substantial improvements had been made to one of the plaintiff's trailers. On October 18, 2001, after ascertaining that the plaintiff had not obtained a building permit to make such improvements, Downs returned to the plaintiff's property to issue him a summons. Upon arriving there, he saw an unlicensed contractor performing work on the trailer. As a result, Downs radioed another code enforcement officer Matthew White, and requested that he bring a stop-work order to the property. Once White arrived with the stop-work order, Downs completed it and asked White to post it on the trailer. At that point, White entered the property, walked over to the trailer upon which work was being performed and, with a staple gun, affixed the stop-work order to the handrail of the trailer's front steps. White then returned to the public right-of-way where he and Downs had been standing. While both officers testified at their deposition that they never saw a "no trespassing" sign posted on the property, the plaintiff stated to the contrary. A few minutes later, the plaintiff arrived at the property and was issued a summons for violating section 52-6 (A) of the Code of the Town of Riverhead. Subsequently, a settlement was reached and the summons was dismissed. The plaintiff then commenced the instant action alleging, inter alia, trespass, and, pursuant to 42 USC § 1983, a violation of his constitutional right to be free from unreasonable searches based on White's entry onto the property for the purpose of posting the stop-work order.

The Fourth Amendment to the United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects from unreasonable searches." Contrary to the plaintiff's contention, no search occurred here. A search involves "look[ing] over or through for the purpose of finding something" (Kyllo v United States, 533 US 27, 32 n 1 [2001], quoting...