Posted by: Patricia Salkin | May 7, 2014

Fed. Dist Court in NY Dismisses Claims of Malicious Prosecution

Plaintiff Rubin Sterngass, owner of several plots of land in the Town of Clarkstown, New York (“Town”), brought a Section 1983 action against Asheim (the Deputy Building Inspector) and the Town alleging malicious prosecution, abuse of process, and violation of his First Amendment rights.

In March 2008, Asheim responded to a complaint regarding a particular parcel. Upon inspection, Asheim saw numerous trees had been removed to create a clearing to create a large parking area. Because the Planning Board had not approved the project, Asheim issued a stop-work order. When Asheim returned, the land had been graded and covered with gravel, and tree stumps had been removed. Asheim spoke with the contractor, who stated he was building a parking lot for commercial vehicles “at the direction of the property manager, Mr. Sterngass.” Asheim filed an information in the Town Justice Court, charging plaintiff with violating the Town Code by failing to obtain site-plan approval. The following day, Asheim met with plaintiff to discuss the violation and to give plaintiff an opportunity to avoid prosecution by correcting it, which Plaintiff refused to do.

In October 2008, Asheim returned to the parcel and saw a commercial tractor-trailer parked on the property. Asheim learned the trailer was owned by a town resident who was using it to store tools and equipment for his recycling business. Asheim issued plaintiff a violation and when the trailer was not removed, filed an information in Town Justice Court.

In March 2009, Asheim discovered a crew of workers was making structural repairs to the roof at a parcel at plaintiff’s direction without a permit. Asheim posted a stop-work order and sent plaintiff a violation. Plaintiff was again given an opportunity to avoid prosecution by correcting the violation, but again refused to do so. Asheim filed an information against plaintiff in Town Justice Court.

In May 2009, Asheim sent plaintiff a violation notice for operating a commercial outdoor retail business in an R–15 zone at the parcel. When the violation was not corrected, Asheim filed an information against plaintiff in Town Justice Court.

In December 2009, Asheim learned an office building located on another nearby lot had been converted to residential apartment units without a permit. Asheim issued a violation and filed an information against plaintiff in Town Justice Court.

At trial, plaintiff maintained he enjoyed “vested rights” under a 1939 Zoning Ordinance to do as he wished with his properties. The trial court vacated the convictions on the ground that the informations were facially insufficient and therefore jurisdictionally defective.

On the matter of malicious prosecution, defendants contended plaintiff could not establish the “favorable termination” element of his claim as a matter of law. Moreover, the defendants argued that the 1974 Rockland County Supreme Court decision cited in the complaint (“1974 Action”) did not deprive them of probable cause to prosecute for the violations. The Court agreed stating that under New York law, a criminal proceeding terminates favorably to the accused when the final disposition of the proceeding involves the merits and indicates the accused’s innocence. A dismissal based on the facial insufficiency of the information cannot support a claim for malicious prosecution, because it is not indicative of innocence. Moreover, because a dismissal for facial insufficiency is without prejudice it is not a final judgment.

Here, because plaintiff’s convictions were reversed on the facial insufficiency of the informations, plaintiff could not establish the “favorable termination” element. Further, the 1974 Action was irrelevant because it involved a parcel of land that was not the subject of any of the violations. Under New York law, “the protection of vested rights in a nonconforming structure existing at the time a prohibitory code is enacted does not extend to subsequent construction,” or to contiguous parcels of land, and there is no right to extend or enlarge a nonconforming use.

On the matter of abuse of process and first amendment retaliation, Plaintiff argued defendants maliciously abused process to achieve the collateral objectives of “retribution” and of “muzzling” him. Specifically, the various lawsuits he had filed against the Town constitute speech on a matter of public concern, which the Town improperly sought to chill by issuing and prosecuting the violations. The gist of the tort of abuse of process, as distinguished from malicious prosecution, is not commencing an action or causing process to issue without justification, but misusing or misapplying process once it is issued. The court stated that it was evidenced that once the violations were issued, Asheim gave plaintiff multiple opportunities to avoid prosecution. Moreover, there was no evidence in the record to suggest Asheim attempted to use the violations, once issued, to coerce plaintiff into ceasing his various lawsuits against the Town. Further, it was found that Asheim issued the violations “solely for the purpose of securing compliance with the Code of the Town of Clarkstown.” Moreover, there was no evidence defendants’ actions had effectively chilled the exercise of plaintiff’s First Amendment rights, and plaintiff made no such allegation. Defendants, by contrast, submitted judicial decisions issued subsequent to the issuance of the violations, remarking upon plaintiff’s “incorrigibility” and ordering him to cease filing frivolous lawsuits against the Town.

Therefore, the motion for summary judgment was granted.

Sterngass v Asheim, 2013 WL 8284985 (SDNY 11/26/2013)

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