Terry v Incorporated Vil. of Patchogue

[*1] Terry v Incorporated Vil. of Patchogue 2009 NY Slip Op 50818(U) [23 Misc 3d 1118(A)] Decided on April 17, 2009 Supreme Court, Suffolk County Sgroi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided 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.