| Hudson Val. Mar., Inc. v Town of Cortlandt |
| 2010 NY Slip Op 09104 [79 AD3d 700] |
| December 7, 2010 |
| Appellate Division, Second Department |
| Hudson Valley Marine, Inc., Appellant, v Town of Cortlandt etal., Respondents. |
—[*1] Clifton Budd & DeMaria, LLP, New York, N.Y. (Kristin M. Burke of counsel), and Edmund V.Caplicki, Jr., Lagrangeville, N.Y., for respondents (one brief filed).
In an action, inter alia, to recover damages for malicious prosecution, the plaintiff appeals, aslimited by its brief, from stated portions of an order of the Supreme Court, Westchester County(Scheinkman, J.), entered September 22, 2009, which, inter alia, granted those branches of thedefendants' motion which were for summary judgment dismissing the causes of action to recoverdamages for malicious prosecution, abuse of process, negligent training and supervision, and violationsof 42 USC §§ 1983 and 1985 (3).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff is a corporation that owns a parcel of land on the Hudson River on which it operates amarina. The defendant Barbara Miller was employed by the defendant Town of Cortlandt as theDeputy Director of the Division of Code Enforcement. The defendant Robert Conlon was employed bythe Town as a fire inspector. On April 19, 2000, a stop work order written by Miller was issued to theplaintiff for placing fill in the Hudson River without obtaining a permit. A few days later, the Townissued three appearance tickets written by Miller citing the plaintiff for violating the Town Code byillegally depositing fill into the Hudson River without a permit and by failing to obtain a special permit toengage in certain uses of the subject land as required under the Town Code (see Town ofCortlandt Code §§ 307-14, 307-67). A fourth appearance ticket written by Conlondated June 16, 2000, was issued by the Town citing the plaintiff for violating the stop work order. TheTown subsequently commenced an action against the plaintiff seeking a permanent injunction barring theplaintiff from, inter alia, continuing to engage in construction work on or near the marina until the plaintiffobtained the requisite approvals and permits from the Town. The Town also moved for a preliminaryinjunction to prevent the plaintiff from conducting any further activity on its property pending the finaloutcome of the action, which was denied by the Supreme Court upon a finding that the Town failed todemonstrate a likelihood of success on the merits. Thereafter, the Town voluntarily discontinued theaction for a permanent injunction without prejudice. The Town subsequently dropped the criminalcharges against the plaintiff without prejudice.
Thereafter, the plaintiff commenced this action, alleging, inter alia, that the Town's [*2]issuance of the stop work order, the commencement of the civil actionseeking a permanent injunction, and the prosecution of criminal charges caused the plaintiff, amongother things, a loss of income. The plaintiff alleged various causes of action to recover damages for,inter alia, malicious prosecution of a civil action, abuse of process, negligent training and supervision,and violations of 42 USC §§ 1983 and 1985 (3). The Supreme Court, among otherthings, granted the defendants' motion for summary judgment dismissing the complaint. We affirm theorder insofar as appealed from.
"In order to prevail on [an abuse of process] claim, the plaintiff must establish that the defendants(1) used regularly-issued process, either civil or criminal, (2) intended to do harm without excuse orjustification, and (3) used the process in a perverted manner to obtain a collateral objective"(Johnson v Kings County Dist. Attorney's Off., 308 AD2d 278, 288-289 [2003]).
As the Supreme Court correctly determined, the defendants established their prima facieentitlement to judgment as a matter of law dismissing the causes of action to recover damages for abuseof process by demonstrating that they issued the stop work order and the appearance tickets, as well ascommencing the civil action, to accomplish the lawful purpose of requiring the plaintiff to comply withthe Town Code and not to obtain a collateral objective (see Berisic v Winckelman, 40 AD3d 561, 562 [2007]; Pomeranz vBourla, 257 AD2d 516 [1999]; seegenerally Sipsas v Vaz, 50 AD3d 878, 879 [2008]). In opposition, the plaintiff failed to raisea triable issue of fact. Furthermore, the plaintiff's causes of action relying on the defendants' allegednegligent conduct cannot support a claim for abuse of process since it is an intentional tort (seeJohnson v Kings County Dist. Attorney's Off., 308 AD2d at 289).
"The elements of the tort of malicious prosecution of a civil action are (1) prosecution of a civilaction 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" (Castro vEast End Plastic, Reconstructive & Hand Surgery, P.C., 47 AD3d 608, 609 [2008]; see Furgang & Adwar, LLP v Fiber-ShieldIndus., Inc., 55 AD3d 665, 666 [2008])."The favorable termination element must beestablished by evidence that 'the court passed on the merits of the charge or claim . . .under such circumstances as to show . . . nonliability,' or evidence that the action wasabandoned under circumstances 'which fairly imply the plaintiff's innocence' " (Castro v East EndPlastic, Reconstructive & Hand Surgery, P.C., 47 AD3d at 609, quoting Pagliarulo vPagliarulo, 30 AD2d 840, 840 [1968]).
Contrary to the plaintiff's contention, the denial of the Town's motion for a preliminary injunction inthe civil action does not demonstrate that the civil action was terminated in its favor, since that denialwas not an adjudication on the merits (see Castro v East End Plastic, Reconstructive & HandSurgery, P.C., 47 AD3d at 609; IcySplash Food & Beverage, Inc. v Henckel, 14 AD3d 595, 596 [2005]; Peterson vCorbin, 275 AD2d 35, 40 [2000]). Additionally, that action was discontinued without prejudice byagreement entered into by the parties to this action. Under the circumstances, there was no terminationof the action favorable to the plaintiff which would give rise to a cause of action to recover damages formalicious prosecution (see Furgang & Adwar, LLP v Fiber-Shield Indus., Inc., 55 AD3d at666; Pagliarulo v Pagliarulo, 30 AD2d 840 [1968]).
42 USC § 1983 provides that "[e]very person who, under color of any statute, ordinance,regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of theUnited States . . . to the deprivation of any rights, privileges, or immunities secured by theConstitution and laws, shall be liable to the party injured." A municipality is not liable under 42 USC§ 1983 for an injury inflicted solely by its employees or agents (see Monell v New York CityDept. of Social Servs., 436 US 658, 694 [1978]; Johnson v Kings County Dist. Attorney'sOff., 308 AD2d at 293). However, "[a] 42 USC § 1983 action may lie against amunicipality if the plaintiff shows that the action that is alleged to be unconstitutional either implement[s]or execute[s] a policy statement, ordinance, regulation, or decision officially adopted and promulgatedby that body's officers or has occurred pursuant to a practice so permanent and well settled as toconstitute a custom or usage with the force of law" (Maio v Kralik, 70 AD3d 1, 10-11 [2009] [internal citations andquotation marks omitted]; see Bassett v Cityof Rye, 69 AD3d 667, 668 [2010]; Johnson v Kings County Dist. [*3]Attorney's Off., 308 AD2d at 293).
Here, the Town presented evidence sufficient to establish its prima facie burden of entitlement tojudgment as a matter of law dismissing the cause of action alleging a violation of 42 USC § 1983insofar as asserted against it, by demonstrating that the criminal charges brought against the plaintiff,which the plaintiff alleged violated its rights under 42 USC § 1983, did not result from a policy,regulation, or custom of the Town (see Ellisonv City of New Rochelle, 62 AD3d 830 [2009]). In opposition, the plaintiff failed to raise atriable issue of fact as to the existence of any such relevant policy, regulation, or custom (see Ellisonv City of New Rochelle, 62 AD3d at 833; Serpa v County of Nassau, 280 AD2d 596[2001]).
As for the plaintiff's 42 USC § 1983 claims asserted against Miller and Conlon, theyestablished, prima facie, their entitlement to qualified immunity by demonstrating that it was objectivelyreasonable for them to believe that their acts did not violate clearly established constitutional orstatutory rights regardless of whether they made a mistake of law or fact in applying the Town Code(see Pearson v Callahan, 555 US 223, —, 129 S Ct 808, 815 [2009]; Sonne v Board of Trustees of Vil. ofSuffern, 67 AD3d 192, 206 [2009]; STS Mgt. Dev., Inc. v New York State Dept. of Taxation & Fin., 40 AD3d620, 623 [2007], cert denied 552 US 1143 [2008]). In opposition, the plaintiff failed toraise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557[1980]).
The plaintiff's cause of action alleging a violation of 42 USC § 1985 (3) was also properlydismissed because the defendants established, prima facie, that the plaintiff failed to allege that theyharbored a " ' "class-based invidious discriminatory animus" ' against any particular group of individualsand 'that this prejudice motivated the alleged wrongful conduct against the plaintiff[ ]" (SuffolkCounty Democratic Comm. v Gaffney, 196 AD2d 799, 801 [1993], quoting Nicoleau vBrookhaven Mem. Hosp. Ctr., 181 AD2d 815, 817 [1992]; see Griffin v Breckenridge,403 US 88, 101 [1971]; Carpenters v Scott, 463 US 825, 829 [1983]; Gleason vMcBride, 869 F2d 688, 695 [1989]). In opposition, the plaintiff failed to raise a triable issue offact.
Furthermore, the Town established its prima facie entitlement to judgment as a matter of lawdismissing the cause of action alleging negligent training and supervision against it by submitting proofthat the notice of claim filed by the plaintiff did not mention this claim (see General MunicipalLaw § 50-e; Finke v City of GlenCove, 55 AD3d 785, 786 [2008]; Urena v City of New York, 221 AD2d 429[1995]; Bryant v City of New York, 188 AD2d 445, 446 [1992]). In opposition, the plaintifffailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; Zuckerman v City of New York, 49 NY2d at 562).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dickerson, Lott and Roman,JJ., concur.