Terry v Incorporated Vil. of Patchogue
Annotate this CaseDecided on April 17, 2009
Supreme Court, Suffolk County
Henry R. Terry, Plaintiffs,
against
The Incorporated Village of Patchogue, CAROL GIGLIO, JEFFREY T. KRACHT, EDWARD IHNE, STEPHEN KEEGAN, LOUIS TOMEO, JAMES NUDO, PAUL PONTIERI, PETER SARACH, J. LEE SNEAD, PATRICIA M. SEAL, STEVE MCGIFF and HAROLD TRAIBOLD, Defendants.
3320/2007
BRUCE VETRI, ESQ.
Attorney for Plaintiff
606 C Montauk Highway
Bayport, NY 11705
LAW OFFICE OF VINCENT R. FONTANA, PC
Attorney for Defendant
1010 Franklin Ave, Suite 200
Garden City, NY 11530
Sandra L. Sgroi, J.
It is, ORDERED that the motion by the Defendants, Village of Patchogue,
Carol Giglio, J. Lee Snead, Paul Pontieri, Peter Sarach, Steve McGiff and Patricia M. Seal, to
dismiss the complaint of the Plaintiff is granted as to these Defendants only. Enter Judgment.
On or about January 30, 2007, the Plaintiff, Henry Terry, then acting pro se, filed a
summons with notice naming only the Village of Patchogue as a Defendant. The notice stated:
The nature of this action and the relief sought are: Illegal writing and issuance of
tickets issued by Incorporated Village of Patchogue constable; Conspiracy; Fraud; Conversion;
Racketeer Influence and Corrupt Organization Act, 18 U.S.C. § 1961 [*2]et seq., the Civil Rights Act of 1871, 42 U.S.C. § 1983, the
Driver Privacy Protection Act and the laws of the state of New York. Plaintiff seeks
compensatory and punitive damages, and the costs of this suit, interest, reasonable attorney's
fees, and other ancillary relief as of the result of Defendants' scheme of running an illegal,
illegitimate private police force.Upon your failure to appear,
judgment will be taken against you, by default for five hundred thousand ($500,000.00) in
compensatory damages, one million ($1,000,000.00) in punitive or exemplary damages, together
with interest thereon, and the plaintiff's costs, disbursements and attorneys
fees.
The Village of Patchogue served a demand for a verified
complaint on the Plaintiff on or about May 30, 2007. On July 2, 2007, the Plaintiff Terry served
a copy of a complaint on the Village of Patchogue Village Clerk. This complaint named John
Does, Carol Giglio, Jeffrey Kracht, Edward Ihne, Stephen Keegan, James Nudo, Paul Pontieri,
Peter Sarach , J. Lee Snead, and Patricia Seal as individual defendants in both their personal and
official capacity. On July 24, 2007, the Village of Patchogue was served with an amended
complaint by the Plaintiff before it filed an answer to the first complaint. This amended
complaint added Steve McGiff, John Poulus, Harold Traibold and Kevin MacCabee as
Defendants.
The Village moved to dismiss the first amended complaint on September 25, 2007,
but the Plaintiff then withdrew his first amended complaint and , as a consequence, the Village
withdrew its motion to dismiss the complaint. The Plaintiff served a copy of the second amended
complaint on or about March 17, 2008, on the Village. This second amended complaint contains
twenty-eight individual causes of action. The attorney for the Village of Patchogue did not
accept service of the second amended complaint on behalf of James Nudo, John Poulos, Edward
Ihne, Steve Keegan, Jeffrey Kracht, Louis Tomeo or Harold Traibold because these individuals
were no longer employed by the Village of Patchogue. In the preliminary statement in the
Amended Memorandum of Law, the attorney for the moving Defendants specifically states that
this motion to dismiss was not made on behalf of Jeffrey Kracht, Louis Tomeo, Edward Ihne,
Steve Keegan, James Nudo, John Poulus and Harold Traibold and that these Defendants were
named as parties in this action but they were not served with process. There is no motion
pending before this Court to dismiss the Plaintiff's complaint against these Defendants. Whether
the service made on these Defendants was proper or not is, therefore, not before this Court at this
time and this decision will not address the issue of whether the Court has acquired jurisdiction of
these parties.
According to the moving Defendants' attorney, the first amended complaint served
by the Plaintiff contained only seven causes of action and the only causes of action in the first
amended complaint that appeared in the second amended complaint are the
USC § 1983 claim, the violation of due process claim and the Hobb's Act
claim.[FN1]
[*3]
On or about March 17, 2008, the Plaintiff served
his second amended complaint, and it is this complaint that the Defendants' motion to dismiss
attacks. This second amended complaint alleges nine causes of action for fraud, a violation of the
Hobb's Act, Abuse of Process, Malicious Prosecution, a violation of civil rights pursuant to
USC § 1983, libel and slander, prima facie tort, intentional or negligent
infliction of emotional distress, violation of constitutional rights, disparagement of business
name and reputation and other untitled claims for a total of twenty eight causes of action in 103
pages of allegations.[FN2]
The facts as alleged in the second amended complaint primarily relate to events that
occurred between the time period of 1999 through 2003, concerning acrimonious interactions
between Village officials, Village employees and the Plaintiff. While it is difficult to summarize
the second amended complaint, essentially the Plaintiff, an individual doing business in the
Village of Patchogue, alleges that he was repeatedly harassed in a myriad of ways while he
pursued his business interests which included real estate development.
The Plaintiff purchased property located in the Village of Patchogue known as the
"Academy building" with the apparent purpose of subdividing it and re-selling it. As part of this
business venture, the Plaintiff made applications to the Zoning Board of Appeals and appeared at
the Building Department seeking relief. It is alleged in the complaint and these papers that the
Plaintiff and the developers of the "Academy building" were forced to meet requirements that
they should not have had to meet in their effort to develop the property. The Plaintiff does not
allege that it ever civilly challenged the actions of the employees of the Village by either
administrative proceedings or Article 78 proceedings before this law suit was commenced in
2007. It appears that these events occurred between the years of 1999 and 2001.
It is further alleged by the Plaintiff that Town employees told potential purchasers of
the "Academy building" in 2006 that it was a problem building and that those potential
purchasers should not buy that real property. The persons who uttered these alleged statements
and the alleged persons who solicited the comments are not identified clearly in these papers.
In addition to the property known as the "Academy building", the Plaintiff also
sought to purchase another parcel of real property in 1999 known as the "Weinstein Estate." The
"Weinstein Estate" was contiguously located to the business that the Plaintiff was operating as
"Terry's Anything Marine" or "Terry's Marine." According to the Plaintiff in Paragraph 105 of
the second amended complaint:
[*4]
Beginning in 2001, Terry has finished dealing with the Incorporated Village of
Patchogue's Building Department and Village's ZBA with regards to the Academy Street
Building. On or about March 2001, after all the problems that Terry has had with the Village's
Building Department and Code Enforcers, and after all the problems that Terry has had with the
Village's Building Department and Code Enforcers, and the ZBA, Terry meets with Sarach to
inform him that he is in negotiations to purchase the Martin Weinstein Estate. At this time
Sarach informs Terry, that the Inc. Village of Patchogue is also interested in purchasing the
Martin Weinstein Estate and that if Terry buys the Weinstein Estate he will have to deal with the
wrath of the Village, "We are a bigger dog than you." Sarach backs up his threat against Terry
informing Terry that if he buys the property the Village will simply take it away from him.
Sarach also threatens Terry stating that they will simply ticket the property through the use of
Code Enforcers/Constables and tickets Terry's marine business.
The
Plaintiff then avers in his second amended complaint that various Village employees also took
actions that affected his business known as "Terry's Anything Marine" by requiring him to apply
to the Zoning Board of Appeals in 2002, and by issuing appearance tickets for Code violations.
Terry did not purchase the "Weinstein Estate" and eventually, the "Weinstein Estate" real
property was sold to an individual named Bruemmer. Terry states that he became aware of this in
2006 (Paragraph 146 of the complaint).
In addition to those occurrences described above, it is alleged that in July of 2006,
the Defendants Snead and Seal improperly denied Plaintiff's request for access to records
concerning the Local Waterfront Revitalization Program and that other Village agents refused to
disclose information to the Plaintiff despite requests for that information. No proceeding was
commenced to obtain those records.
The Plaintiff also liberally references a Federal District Court case entitled
Wood v. Village of Patchogue in his response to this motion to dismiss. The
Wood v. Village of Patchogue case involved issues that arose concerning the
Patchogue Village Constables issuing tickets for violations of New York's Vehicle and Traffic
regulations. It is not alleged that the Plaintiff received any such traffic tickets issued by the
Village Constables although Plaintiff did receive citations given by Code Enforcement Officers
of the Village for alleged violations of Patchogue's Building Codes. At this point, it is irrelevant
whether the Code Enforcement Officers were improperly carrying fire arms when they had
contact with the Plaintiff over the years and there are no allegations herein that the Village Code
Enforcement Officers improperly brandished weapons during their numerous interactions with
the Plaintiff.
On a motion to dismiss for failure to state a cause of action under
CPLR 3211(a)(7), the Court must determine whether from the four corners of
the pleading "factual allegations are discerned which taken together manifest any cause of action
cognizable at law" (Morad v.
Morad, 27 AD3d 626, 627, 812 NYS2d 126). The second amended complaint must
be afforded liberal [*5]construction, the facts alleged in this
complaint will be accepted as true, and the Plaintiff must be provided the benefit of every
possible favorable inference (see, Leon v. Martinez, 84 NY2d 83, 87-88, 614
NYS2d 972, 638 NE2d 511).
The moving Defendants have requested dismissal on various grounds but the
challenges to the second amended complaint center upon statute of limitations objections and the
failure of the pleading to state a cause of action. With regard to the expiration of the relevant
statute of limitations, as a blanket statement, the Court can state that any cause of action that has
its genesis in the events that occurred between 2001 and 2003 and has a one or three year statute
of limitation, must be dismissed.
The Court will address the fraud claims in the second amended complaint first. The
Plaintiff's factual underpinnings for the fraud claim arise in part from the failure to provide
documents to him pursuant to demands made under the Freedom of Information Law. On July
10, 2006, the Defendants J. Lee Snead, the Village attorney, and Patricia M. Seal, the Village
Clerk of Patchogue, denied the Plaintiff's requests of June 20, 2006, and June 29, 2006, for
access to Village records concerning the Local Waterfront Revitalization Program.
Under the facts herein, the allegations in the second amended complaint simply do
not rise to the level of actionable fraud to the extent that the Plaintiff bases those causes of action
upon the failure to respond to the Freedom of Information Law requests and provide him with
Village records. The Plaintiff failed to utilize the administrative remedies available to him after
denial of the requests and he did not commence an Article 78 proceeding to obtain those
documents that he now alleges should have been provided by the Village (see, Tinker Street
Cinema v. State Dept. of Transp., 254 AD2d 293, 678 NYS2d 124). The alleged failure of a
municipality and its employees to provide documents after a Freedom of Information request
does not support a fraud cause of action especially where the Plaintiff did not take the
appropriate legal steps available to obtain those documents after the initial denial.
There are additional allegations in the first nine causes of action that sound in fraud
including events that occurred prior to 2001. In cause of action six, the Plaintiff complains that
Village officials lied to him about their intentions concerning the real estate known as the
"Weinstein Estate" and it appears that this conduct occurred before April 17, 2002. The Plaintiff
alleges that this is sufficient to plead a claim for fraud while the Defendants counter that such
acts do not give rise to fraud but to a cause of action for "false words causing special damages,"
which has a one year statute of limitations.
Fraud must be pled with sufficient particularity to withstand a motion to dismiss.
Particularity is not demonstrated by prolix, disjointed allegations with no direct connection to an
alleged fraud. To the extent that the Plaintiff complains that the Defendants have not provided
him with documents pursuant to Freedom of Information Law requests, those alleged actions,
even if true, in no way demonstrate an attempt to defraud the Plaintiff. The alleged claim that
some officials of the Village may have made statements that possibly inhibited the Plaintiff from
purchasing the [*6]"Weinstein Estate" property or statements the
may have discouraged potential purchasers of the "Academy building"similarly does not
demonstrate fraud. The fraud claims based upon these allegations are dismissed.
The seventh cause of action which seems to center around an alleged fraud created
by a breach of the Village Ethics Code is also dismissed. If the Plaintiff wished to challenge the
Board of Ethics failure to produce or keep a written record of their proceedings or to challenge
their findings, the remedy is to bring an Article 78 proceeding. The actions of the members of the
Village Board of Ethics as alleged in the second amended complaint do not demonstrate any acts
constituting fraud.
Therefore, since the allegations in the second amended complaint are insufficient to
support fraud, all of the fraud claims in causes of action one through nine are dismissed as
against the moving Defendants only (see, Haberman v. Zoning Bd. of Appeals of City of Long Beach, 53 AD3d
490, 861 NYS2d 745).
The tenth cause of action also alleges that it sounds in "fraud" and but it states that it
was brought for a violation of the Hobb's Act. The Hobb's Act (18 U.S.C.
§ 1951) involves a knowing, willful and unlawful attempt to obstruct, delay and effect
commerce by extortion. Under the Hobb's Act, 18 U.S.C. § 1951, it is an
offense to attempt or conspire to obstruct, delay or affect commerce, or the movement of any
article or commodity in commerce, in any way or degree, by means of robbery or extortion (see,
18 U.S.C. § 1951). A person commits extortion by obtaining property
from another, with his consent, which consent was induced by the wrongful use of actual or
threatened force, violence, or fear, or under color of official right(see 18 U.S.C.
§ 1951). A violation of the Hobb's Act is a predicate act constituting "racketeering activity"
for the purpose of a civil RICO claim ( see 18 U.S.C. § 1961).
The Court notes that there is no right to a private cause of action under the Hobb's
Act and a private right of action does not exist under the federal extortion statute (see,
Wisdom v. First Midwest Bank, of Poplar Bluff, C.A.8 (Mo.) 1999, 167 F.3d 402, rehearing and rehearing en banc denied.; Campbell v. Austin Air Systems, Ltd., 423 F. Supp. 2d 61, 2005-2 Trade Cases P 75,023 ). Therefore, the motion to dismiss that claim must
be granted.
The State Courts have concurrent jurisdiction of Racketeer Influenced and Corrupt
Organizations Act (hereinafter "RICO") (18 U.S.C. §§ 1961-1968)
actions with the Federal Courts (see, Simpson Elec. Corp. v. Leucadia, Inc., 72 NY2d
450, 534 NYS2d 152, 530 NE2d 860). Although civil liability may be predicated upon a
violation of the RICO statute ( see, 18 U.S.C. § 1964[c] ), civil RICO
claims are subject to heightened pleading requirements ( Besicorp Ltd. v.
Kahn, 290 AD2d 147, 151, 736 NYS2d 708, lv. app'l den'd 98 NY2d 601, 744 NYS2d
761, 771 NE2d 834). Therefore to the extent that the Plaintiff has attempted to plead a RICO
claim in the tenth cause of action, it must also be dismissed because it is not pled with sufficient
particularity and the factual allegations as they presently exist do give rise to a RICO claim (see,
CFJ Assoc. of NY v. Hanson Indus., 274 AD2d 892, 896, 711 NYS2d 232;
United Knitwear Co., Inc. v. [*7]North Sea Ins. Co., 203
AD2d 358, 612 NYS2d 596).
The eleventh cause of action alleges
(t)hat on or about dates and time, the Defendants Nudo, Defendants Cruz,
Defendant Poulos, and other Village code enforcement/constables that were under the
supervision of other Defendants including Village Mayors, Defendant Sarach, Defendant Giglio,
all Defendant (sic) the Village, its policies and determinations, its officials, agents servants and
employees operated, controlled, directed and/or supervised, worked in concert with other
officials, agents, servants and employees, including code enforcement officers/constables and
fire marshal, together in concert with other Village employees and each other, attempted to
trespass and at other times trespassed on Terry's property, abused process against Terry,
intentionally inflicted harms and emotional distress upon Terry, invaded Terry's privacy,
attempted to negligently seized and detained Terry' (sic) property and also curtailed his right to
property-the recognized "value" of property being both concrete and tangible attributes and an
abstraction derived from the economic uses of which property may be put and violated Terry's
rights under the law and Constitution of the United States.[FN3]
It is difficult to
determine the cause of action since it alleges violations of constitutional rights, trespass,
conversion, right to privacy, intentional harm and abuse of process, but it is dismissed both for
failure to plead a cause of action and statute of limitation grounds.
The Plaintiff also has interposed a claim for abuse of process in the twelfth cause of
action. Since a claim for abuse of process must be commenced within one year of the occurrence
of the event, the Defendant's motion to dismiss must be granted because this action has been
commenced after the Statute of Limitations has run (see, Dinerman v. City of New York Admin. for Children's Services, 50
AD3d 1087, 857 NYS2d 221; Bittner v. Cummings, 188 AD2d 504, 591 NYS2d
429).
The causes of action to recover damages for misrepresentation, intentional infliction
of emotional distress, and malicious prosecution (thirteenth cause of action) are also barred by
the one-year statute of limitations ( see, CPLR 215[3]; Yong Wen Mo v. Gee Ming
Chan, 17 AD3d 356, 358, 792 NYS2d 589; Bittner v. Cummings,
188 AD2d 504, 591 NYS2d 429). The Plaintiff's causes of action to recover damages for civil
rights violations under 42 USC § 1983 are barred by the three-year statute
of limitations ( see, Owens v. Okure, 488 U.S. 235, 251, 109 S. Ct. 573, 102
L.Ed.2d 594).
[*8]
The fourteenth cause of action (which alleges
that the employees of the Village were improperly and negligently trained and hired), the
fifteenth cause of action ( which alleges that the employees of the Village were improperly
trained and supervised), the sixteenth cause of action (which alleges that the Village and its
officials and employees were negligent and criminal in the performance of their duties) and
seventeenth cause of action (which alleges a myriad of violations of constitutional
dimensions[FN4]) must also
be dismissed.
These claims appear to be an attempt to allege causes of action against the Village of
Patchogue and its employees for the failure to train employees properly and/or negligently hiring
certain employees. The three year statute of limitations on these causes of action have run since
the claims center around the appearance tickets issued between April of 2001 and September of
2003 (see, Schrank v. Lederman, 52
AD3d 494, 860 NYS2d 556; Hyacinthe v. Edwards, 10 AD3d 629, 781 NYS2d 771). Further,
any claim sounding in negligence would require a notice of claim (see, Palmieri v. Village of Babylon, 26
AD3d 423, 809 NYS2d 566).
The eighteenth and nineteenth causes of action in the complaint for libel and slander
must also be dismissed because the action was not commenced within the statute of limitations
for the alleged slander or libel (see, Ruggiero v. Phillips, 292 AD2d 41, 739 NYS2d
797). The Plaintiff first raised his claim for libel and slander in his second amended complaint
dated March 17, 2008, and, therefore, any alleged defamation is time barred. Further, these
causes of action as pleaded are deficient because they do not set forth the words alleged to be
actionable (see, O'Donnell v. Westchester Community Service Council, Inc.,
96 AD2d 885, 466 NYS2d 41).
[*9]
As with the libel and slander causes action, the
twentieth cause of action of injurious falsehood fails to specify with particularity the alleged
falsehood ( see, Alexander & Alexander of NY v. Fritzen, 114 AD2d 814,
816-817, 495 NYS2d 386), and it is also dismissed.
The twenty-first cause of action alleges that it is a claim for "conspiracy, extortion,
abuse of power and breach of the public trust" and refers the reader to the first 364 paragraphs of
the Complaint for the facts to support this claim. The Court first notes that there is no civil cause
of action for conspiracy(see, Salvatore
v. Kumar, 45 AD3d 560, 845 NYS2d 384, app'l den'd 10 NY3d 703, 883 NE2d 1011,
854 NYS2d 104). As the Appellate Division, Second Department stated in Salvatore v.
Kumar:
"New York does not recognize civil conspiracy to commit a tort as an independent cause of
action" ( Pappas v. Passias, 271 AD2d 420, 421, 707 NYS2d 178). Such a
claim stands or falls with the underlying tort ( see, Sokol v. Addison, 293
AD2d 600, 601, 742 NYS2d 311). Thus, as all of the other underlying causes of action were
properly dismissed, the cause of action to recover damages based on civil conspiracy was also
properly dismissed ( see, Ward v.
City of New York, 15 AD3d 392, 393, 789 NYS2d 539).
As the Court noted when it was discussing the Hobb's Act claims, extortion and
attempted extortion are criminal offenses. These criminal offenses do not imply a private right of
action separate and apart from the traditional tort claims that would or could be available if
properly pled (see, Minnelli v.
Soumayah, 41 AD3d 388, 839 NYS2d 727 app'l dism'd 9 NY3d 1028, 881 NE2d 1198,
852 NYS2d 11). While breach of public trust and abuse of power are recognized causes of
action, the allegations in this complaint are not sufficient to support those claims. The
twenty-first cause of action for "conspiracy, extortion, abuse of power and breach of public trust"
is dismissed.
The twenty-second cause of action for tortious interference with business
relationships must be dismissed both for failure to state a cause of action and on statute of
limitations grounds. The complaint fails to state who interfered with the contract or contracts of
the Plaintiff other than to state that some employees made disparaging remarks about the
Plaintiff. At most, the Plaintiff has shown that he had the desire to purchase two parcels of
property, the "Academy building" and the "Weinstein Estate" but he has not connected his
inability to consummate those two real estate transactions to his satisfaction with the actions of
employees of the Village. The complaint does not state the specific manner in which Patchogue
Village employees interfered with the Plaintiff's contracts to involving these properties other
than the allegation that employees made a few disparaging comments. The statute of limitations
has run on this cause of action as well (see, Buller v. Giorno, 57 AD3d 216, 868 NYS2d 639).
The Plaintiff's twenty-fourth and twenty-fifth causes of action are dismissed. These
causes of [*10]action wherein the Plaintiff seeks only attorneys
fees arises out of the previously discussed alleged civil rights violations that this Court has
dismissed. In New York, the issue of attorneys fees is not the proper subject for an independent
cause of action and since the causes of action that would permit the Court to assess attorney's
fees have been dismissed, these two caused of action must be dismissed as well.
The claim for intentional infliction of emotional distress against the Incorporated
Village of Patchogue (the twenty-sixth cause of action) is dismissed because a Plaintiff cannot
recover for intentional emotional distress against a governmental entity (see, Lauer v. City of
New York, 240 AD2d 543, 659 NYS2d 57). The Second Department stated in Lauer
v. City of New York that:
(P)ublic policy bars claims sounding in intentional infliction of emotional distress against a
governmental entity ( see, Wheeler v. State of New York, 104 AD2d 496, 498,
479 NYS2d 244; LaBelle v. County of St. Lawrence, 85 AD2d 759, 761, 445
NYS2d 275; Van Buskirk v. Bleiler, 46 AD2d 707, 360 NYS2d 88; see also,
Adams v. New York City Tr. Auth., 211 AD2d 285, 294, 626 NYS2d 455,
affd. 88 NY2d 116, 643 NYS2d 511, 666 NE2d 216).
and the Court of Appeals has not disturbed that finding (see, Lauer v. City of
New York 95 NY2d 95, 733 NE2d 184, 711 NYS2d 112). Further, the statute of
limitations for intentional infliction of emotional distress is one year. Therefore, this claim is
untimely and must be dismissed as against all of the moving Defendants (see, Dinerman v. City of New York Admin. for
Children's Services, 50 AD3d 1087, 857 NYS2d 221). There is no showing that the
alleged actions giving rise to the infliction of emotional distress involved any negligence on the
part of the Village or the other Defendants in this action.
In an attempt to plead a cause of action sounding in prima facie tort, the Plaintiff has
incorporated each and every allegation in the preceding 409 paragraphs of the complaint. Here,
complete relief would have been available within the traditional tort causes of action, and,
therefore, the twenty-seventh cause of action for prima facie tort must be dismissed ( See,
Jones v. City of New York, 161 AD2d 518, 555 NYS2d 788; Springer v. Viking
Press, 90 AD2d 315, 317, 457 NYS2d 246; aff'd, 60 NY2d 916, 470 NYS2d
579, 458 NE2d 1256).
The twenty-eighth cause of action, after incorporating the preceding 412 paragraphs,
states:
By reason of all of the foregoing, the defendants have violated Plaintiff's rights
under the Constitution of the United States of America including, but not limited to, the First,
Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments thereto and the Constitution of
the State of New York.[*11]
All of the
prior causes of action have been dismissed on statute of limitations and/or sufficiency grounds,
and this catch-all cause of action is not adequate to save this complaint from dismissal.
The causes of action in this second amended complaint contained a potpourri of
traditional claims including libel, slander and abuse of power coupled with allegations of breach
of the public trust, extortion and conspiracy while directing and incorporating numerous prior
paragraphs of the Complaint. As noted before, the untimely interposition of these claims, the
failure to use available administrative remedies and Article 78 proceedings, and the inability to
connect the acts of various and sundry officials committed over several years with the inability
to purchase two parcels of property has resulted in the dismissal of this complaint in its entirety.
Dated:_______________________SANDRA L. SGROI, J. S. C.
Footnotes
Footnote 1:This Court does not have a copy
of the first amended complaint as part of these motion papers.
Footnote 2:The Court will not address
whether the Plaintiff may rely upon the doctrine of relation back (see, CPLR
203 [f]), because the action is being dismissed on other grounds. However, for the
relation back doctrine to apply the second amended complaint should be a mere expansion'
(A to Z Assoc. v. Cooper, 215 AD2d 161, 626 NYS2d 143 ) of the two prior
pleadings(see, Krioutchkova v. Gaad
Realty Corp., 28 AD3d 427, 814 NYS2d 171 {28 AD3d 427} ; Alharezi v.
Sharma, 304 AD2d 414, 414-415, 758 NYS2d 48 {304 AD2d 414} ).
Footnote 3:The Court notes that while the
Plaintiff commenced this action without an attorney, Bruce Vetri, Esq., an attorney admitted
since 1987, submitted this pleading.
Footnote 4:This cause of action states in
part:
Defendant the Village, its policies and determinations, Village Building Department,
Village Code Enforcement Bureau, Village Fire Department, Office of the Village Constable,
village Clerk as a matter of policy and practice, have with deliberate indifference failed to
property(sic) sanction or discipline employees, including the Defendants in this case, thereby
causing Defendants in this case, to engage in unlawful conduct.
That the aforesaid Village, Defendants, Defendants' employees and each of them,
separately, and in concert, acted under the color of law, to wit: under color of the statutes,
ordinances, regulations, customs and usages of the Village and its Village Building Department,
Village Code Enforcement Bureau, Village Fire Department, Office of the Village Constable,
Village Clerk and Defendants here, separately and in concert, engaged in the illegal conduct
above mentioned to injure Terry and deprive him of his right under the Constitution of the
United States and the laws of the United States and the State of New York.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.