| Cozzani v County of Suffolk |
| 2011 NY Slip Op 04407 [84 AD3d 1147] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Henry Cozzani, Appellant, v County of Suffolk et al.,Respondents. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Susan A. Flynn of counsel), forrespondents.
In an action, inter alia, pursuant to 42 USC § 1983 to recover damages for civil rightsviolations, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gazzillo,J.), dated April 23, 2010, which granted the defendants' motion pursuant to CPLR 3211 (a) (7) todismiss the complaint for failure to state a cause of action.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted the defendants'motion to dismiss the complaint for failure to state a cause of action. Although the complaintalleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy orcustom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported byany allegations of fact identifying the nature of that conduct or the policy or custom which theconduct purportedly advanced (see Ashcroft v Iqbal, 556 US —, —, 129 SCt 1937, 1950-1951 [2009]; Dwares v City of New York, 985 F2d 94, 100 [1993];see generally Hudson Val. Mar., Inc. v Town of Cortlandt, 79 AD3d 700, 703-704[2010]).
The individual causes of action likewise were inadequate, since there was no allegation insupport of the retaliation claim that the plaintiff's First Amendment free speech rights werechilled (see Williams v Town of Greenburgh, 535 F3d 71, 76-78 [2008]; Curley vVillage of Suffern, 268 F3d 65, 73 [2001]; MacPherson v Town of Southampton,738 F Supp 2d 353, 369-370 [2010]), and the plaintiff's selective prosecution/equal protectionclaim failed to identify any individual or group which was similarly situated to the plaintiff andthe manner in which he was treated differently from that individual or group (see Zahra vTown of Southold, 48 F3d 674, 684 [1995]; MacPherson v Town of Southampton,738 F Supp 2d at 370-371). The claim sounding in abuse of process also was deficient, sincethere was no allegation that process was improperly used for a purpose other than lawfullyauthorized, and "malicious motive alone . . . does not give rise to a cause of actionfor abuse of process" (Curiano v Suozzi, 63 NY2d 113, 117 [1984]; see Savino v Cityof New York, 331 F3d 63, 76 [2003]; Tenore v Kantrowitz, Goldhamer & Graifman,P.C., 76 AD3d 556, 557 [2010]). Furthermore, it is clear from the allegations of thecomplaint that the act complained of by the plaintiff was performed solely [*2]by the Suffolk County District Attorney's Office, rather than by orwith the participation of the defendants.
The plaintiff's remaining contentions are without merit. Mastro, J.P., Hall, Lott and Cohen,JJ., concur.