Posted by: Patricia Salkin | January 24, 2012

Fed. Dist. Court in NY Dismisses Malicious Prosecution Claims Against Town for Enforcing Zoning Violations

The property in question had been used for commercial purposes.  In 2003, the town had rezoned the property as solely residential.  Plaintiffs purchased the property in 2005, under the assumption that the property could continue to be used as commercial under a qualified pre-existing use.  The defendant town asserted that the property was not a qualified pre-existing use, however, plaintiffs continued to use the property for commercial uses.  Subsequently, in January 2006, the town sent a letter to plaintiffs explaining that the commercial use was a violation of permitted uses.  Plaintiffs ignored this letter and in March 2006 and October 2006, court appearance tickets were issued to plaintiff.  Related to this action, plaintiff contributed to a campaign of a state assembly candidate beginning in June 2006. 

Criminal informations were filed against the plaintiff in December 2006.  Other court appearance tickets were issued to the plaintiffs through 2007, 2008, and again in 2010.  In 2008, the town reassessed plaintiff’s property and raised the taxes substantially.  Plaintiff filed this action alleging that there was no probable cause to issue the tickets and, further, that the sole purpose was retaliation for the plaintiff’s political support of the assembly candidate. 

First, plaintiff alleged defendant had no probable cause for issuing the tickets against plaintiff and, thus, it must have been based on plaintiff’s political support.  The court found that plaintiff was in violation of the zoning laws and further that defendant’s letter was sent prior to any campaign donations.  Although the plaintiff asserts support of the candidate before the first letter was sent, the court found this argument implausible and insufficiently plead.  Thus, the court found that the defendant had probable cause for issuing the tickets and informations.  

Next, the plaintiff alleged malicious prosecution by defendants.  The court explained that a malicious prosecution requires the plaintiff to show seizure.  Seizure can be shown by either proving a liberty was deprived or that an unreasonable search of property occurred.  Here, the court found plaintiff had shown neither, thus, there was no seizure and no basis for a malicious prosecution claim.  Similarly, the court found that probable cause existed and that the plaintiff failed to show malice by defendants.  Thus, the plaintiff failed to prove any element of malicious prosecution. 

The court quickly dismissed the plaintiff’s abuse of process claim because of plaintiff’s failure to allege any plausible facts of defendant’s intent to harm them.  The court next discussed plaintiff’s First Amendment retaliation claim; retaliation for political speech.  The court again dismissed this claim for two reasons.  First, the court found that purchase of a parcel of land is not protected speech under the First Amendment and also because plaintiff has failed to present a causal connection between the plaintiffs political support and alleged retaliation as defendant’s letter was sent prior to plaintiff’s contribution. 

The court dealt next with plaintiff’s claim of selective enforcement.  The court asserted that in a successful selective enforcement claim, the plaintiff must give specific persons who are similarly situated but treated differently.  Plaintiff, found the court, failed to present specific persons, instead making conclusory statements alleging selective enforcement.  Although the court found plaintiff has standing to bring a 1983 challenge to a tax assessment in the district court, the court held that they again failed to prove this claim.  Finally, the court found that the prosecutor had prosecutorial immunity and was acting in his official capacity in prosecuting the plaintiff’s zoning violations.  Thus, the prosecutor was immune from civil liability.  In concluding, the court said punitive damages were unavailable for 1983 actions against municipalities and refused to award them. 

Parkash v. Town of Southeast, 2011 WL 5142669 (S.D.N.Y. 9/30/2011) 

The opinion can be accessed at:


  1. This decision illustrates how important it is to support a complaint with enough facts to survive a motion to dismiss.

    Bell Atlantic v. Twombley sets a fairly low bar: The complaint must contain the grounds upon which the claim rests through factual allegations sufficient “to raise a right to relief above the speculative level.”

    Ashcrift v. Iqbal doesn’t raise the bar much higher : A plaintiff is obliged to amplify a claim with some factual allegations to allow the court to draw the reasonable inference that the defendant is liable for the alleged conduct.

    This decision suggests that the plaintiffs may have had viable claims but did not allege sufficient facts to overcome the court’s belief that their allegations were merely conclusory.

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