MANGINO v. INCORPORATED VILLAGE OF PATCHOGUE

se it adhered to a see-no-evil policy of not enforcing an ordinance, and then abandoned that policy with respect to a violator engaged in protected activity. LaTrieste, 188 F.3d at 70 n. 1.

(ii) Application

Based on the undisputed facts of this case, the Court concludes that no rational jury could find that plaintiff has satisfied the first prong of a similarly situated equal protection claim. The Village defendants have presented evidence that Nudo issued multiple summonses for failure to obtain a rental occupancy permit to other rental property owners that rented out their property without first obtaining a rental occupancy permit. ( See Vill. Defs.' Ex. M. at 97-98, 206.) Other property owners in the Village received summonses on consecutive days for code violations. ( See Vill Defs.' Ex. H at 101-02; Vil. Defs.' Ex. K at 167, 179; Vill. Defs.' Ex. N at 99-101.) Moreover, the Passilaquas and Hooghkirks were issued tickets while challenging prior tickets in court. (Vill. Defs.' Ex. K at 166, 177-79; Vill. Defs.' Ex. L at 150-51; Vill. Defs.' Ex. N at 101.)

In their opposition, to attempt to show that similarly situated individuals were treated differently, plaintiffs submitted affidavits from Rocco Todisco, Celia R. Durao, and Angelo Passalacqua. These individuals' affidavits stated that, to the best of their recollections, "none of the summonses issued by the Village of Patchogue were repetitive of any other summonses issued during the calendar year" to him. ( See Todisco Aff.; Durao Aff.; Passalacqua Aff.) In his affidavit, Passalacqua acknowledged that he has had approximately seventy or more summonses issued to him by the Village of Patchogue for alleged violations since 1997, if not earlier. Sixteen of those tickets were repetitive of previously issued tickets and were issued by Nudo. Those tickets were issued approximately one month apart. (Passalacqua Aff.) Passalacqua further states that, in 1997, he received two tickets on consecutive days for the same alleged violation but that they were issued by a different enforcement officer other than Nudo. ( Id.) Moreover, plaintiffs present evidence that a review of all of the tickets issued by Powell and Nudo for the year 2005 does not indicate the issuance of any repetitive tickets with as great a scope and frequency as that issued to plaintiffs. ( See Pl. Ex. 62 A-D; Pl. Ex. 63 AC.) Nonetheless, in their reply, the Village defendants submit evidence of tickets issued to other landlords in the Village of Patchogue. Their submissions indicate that Frank DiGiorgio, owner of a property at 45 Rider Avenue, received summonses for not having a rental permit on August 10, 2005, August 11, 2005, and August 13, 2005. (Vill. Defs.' Ex. DDDD.) Eugenia Carr, landlord of 26 Baker Street, received five summonses on June 1, 2005, and four summonses on August 16,

2005. (Vill. Defs.' Ex. EEEE.) Defendants also present evidence of husbands and wives receiving individual summonses for the same violations. Ricardo Durao received nine summonses, for violations, including the lack of a rental permit on February 9, 2005. His wife, Cecilia Durao, received nine summonses, including for lack of a rental permit, on the same date. Thus, the Duraos received eighteen summonses on one day, issued by defendant Nudo. (Vill. Defs.' Ex. FFFF.) David Rosenberg, landlord of 44 Terry Street, received 12 summonses in one day, including for lack of a rental permit, on January 29, 2005. ( Id.)

Plaintiffs' evidence misses the mark. To make it past the summary judgment stage on a selective enforcement equal protection claim, it is plaintiffs' burden to demonstrate similarly situated individuals who were treated differently. Here, plaintiffs' burden is to demonstrate that other residents who were issued tickets for, e.g., lack of a rental permit, continued to not comply with the law at issue, e.g., the rental permit law, but did not receive subsequent summonses for their continued non-compliance. Plaintiffs have failed to do so. Mr. Mangino even testified that he did not know any other individuals in the Village who failed to obtain a rental occupancy permit but did not receive a ticket. (Pl. Vill. 56.1 ¶ 127.) Accordingly, plaintiffs' selective enforcement claim must fail, and summary judgment for defendants is granted on this claim.

b. "Class of One"

In Prestopnik v. Whelan, the Second Circuit explained the difference between "class of one" equal protection claims and more traditional equal protection claims:

"The Equal Protection Clause requires that the government treat all similarly situated people alike." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). While this clause "is most commonly used to bring claims alleging discrimination based on membership in a protected class," it may also be used to bring a "class of one" equal protection claim. Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). In a "class of one" case, the plaintiff uses "the existence of persons in similar circumstances who received more favorable treatment than the plaintiff . . . to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose — whether personal or otherwise — is all but certain." Neilson, 409 F.3d at 105.

249 F. App'x 210, 212-13 (2d Cir. 2007); see also King v. N.Y. State Div. of Parole, 260 F. App'x 375, 379 (2d Cir. 2008) ("In [ Olech], the Supreme Court recognized the viability of an Equal Protection claim `where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." (quoting Olech, 528 U.S. at 564)). In particular, as the Court sets forth below, in order to prevail on a class of one claim, a plaintiff must demonstrate that (1) he was treated differently from a similarly situated individual; (2) the differential treatment was arbitrary and irrational; and (3) the treatment was not based on a discretionary or subjective decision.

First, in order to prevail on a class of one claim,

the plaintiff "must demonstrate that [[h]e was] treated differently than someone who is prima facie identical in all relevant respects." Neilson [ v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005)] (quoting Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002)). This requires a showing that the level of similarity between the plaintiff and the person(s) with whom she compares herself is "extremely high" — so high (1) that "no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy," and (2) that "the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendant acted on the basis of a mistake." Neilson, 409 F.3d at 104-05.

Prestopnik, 249 F. App'x at 213; see also Doninger v. Niehoff, 527 F.3d 41, 53 (2d Cir. 2008) ("[A] class-of-one plaintiff must show . . . an `extremely high degree of similarity between [himself] and the persons to whom [he] compare[s] [himself]' in order to succeed on an equal protection claim." (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006))); King, 260 F. App'x at 379-80 (explaining that, subsequent to Olech, the Second Circuit has "held that `the level of similarity between [class of one] plaintiffs and the persons with whom they compare themselves must be extremely high'" (quoting Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005))); Clubside, Inc., 468 F.3d at 159 ("We have held that class-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves. This showing is more stringent than that used at the summary judgment stage in the employment discrimination context." (citation omitted)).

As an initial matter, plaintiffs' class of one claim fails because, as with their selective enforcement claim, plaintiffs cannot show that they were treated differently than similarly situated individuals. Although some district courts in the Second Circuit has stated that "the standard for `similarly situated' when bringing a selective enforcement claim is the same as in a `class of one' claim," see, e.g., Kamholtz v. Yates Cnty., No. 08-CV-6210, 2008 WL 5114964, at *5 (W.D.N.Y. Dec. 3, 2008); Dones v. City of N.Y., No. 07 Civ. 3085, 2008 U.S. Dist. LEXIS 53681, at *28 (S.D.N.Y. July 9, 2008), the Court employs the slightly different formulations set forth by the Second Circuit for each claim. If anything, the two standards differ only in that the similarly situated standard for class of one claims is more stringent. See Casciani v. Nesbitt, 659 F. Supp. 2d 427, 456 (W.D.N.Y. 2009) ("With respect to the existence of similarly situated persons, the standard of proof is even higher on a class-of-one claim than it is on a selective-enforcement claim."). Thus, because plaintiffs have failed to satisfy the similarly situated element of a selective enforcement claim, they cannot satisfy it for a class of one claim. Everitt v. DeMarco, No. 3:08-cv-543 (VLB), 2010 WL 1286940, at *10 (D. Conn. Mar. 30, 2010) ("The Court holds that the Plaintiffs' equal protection claim fails under either a selective enforcement or `class of one' theory because they have neither alleged nor produced any evidence that they were treated differently from similarly situated individuals.

Indeed, Kathleen Everitt admitted during her deposition that she is unaware of any other spouses of Town police officers who have written a letter of complaint to the Commission. . . . Accordingly, the Defendants are entitled to summary judgment on the Plaintiffs' equal protection claim."); Casciani, 659 F. Supp. 2d at 457 ("The Court has already discussed plaintiff's alleged comparators in connection with his selective-enforcement claim, and will not repeat that discussion here. Suffice it to say that since plaintiff's showing was insufficient to withstand defendants' motion for summary judgment as to his selective-enforcement claim, his class-of-one claim falters on this ground as well."); Tarantino v. City of Hornell, 615 F. Supp. 2d 102, 116 (W.D.N.Y. 2009) ("First, to succeed on a class-of-one claim, plaintiff must show an extremely high degree of similarity between [himself] and the persons to whom [he] compare[s himself]. . . . For the reasons stated [in the selective enforcement discussion], plaintiff has not done so." (internal quotations and citations omitted)).

The third element of a class-of-one claim also bears particular emphasis in the instant case. A class of one claim cannot be based on treatment that was the result of a discretionary or subjective decision. Specifically, in Engquist v. Oregon Department of Agriculture, the Supreme Court held that plaintiffs asserting a class of one claim must show that the differential treatment received resulted from nondiscretionary state action:

There are some forms of state action . . . which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be `treated alike, under like circumstances and conditions' is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.

553 U.S. 591, 603 (2008); see also Siao-Pao v. Connolly, 564 F. Supp. 2d 232, 245 (S.D.N.Y. 2008) ("Additionally, the Supreme Court recently clarified the Olech holding by limiting class of one claims in contexts characterized by individualized and subjective determinations. . . .").

One such discretionary action — discussed at length in the Engquist opinion itself — is the issuance of tickets by law enforcement officials. The Supreme Court stated that the issuance of a ticket to one individual who is breaking the law does not warrant a class of one claim — even if other lawbreakers were not ticketed:

Suppose, for example, that a traffic officer is stationed on a busy highway where people often drive above the speed limit, and there is no basis upon which to distinguish them. If the officer gives only one of those people a ticket, it may be good English to say that the officer has created a class of people that did not get speeding tickets, and a "class of one" that did. But assuming that it is in the nature of the particular government activity that not all speeders can be stopped and ticketed, complaining that one has been singled out for no reason does not invoke the fear of improper government classification. Such a complaint, rather, challenges the legitimacy of the underlying action itself — the decision to ticket speeders under such circumstances. Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal protection concerns. But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action. It is no proper challenge to what in its nature is a subjective, individualized decision that it was subjective and individualized.

Engquist, 553 U.S. at 603-04. "When officials act within their discretion, basing their decision on a variety of factors that could yield different results on a case by case basis, the rationale of Engquist precludes a class of one challenge." DePietro v. City of N.Y., No. 09-CV-932, 2010 WL 449096, at *10 (E.D.N.Y. Feb. 2, 2010).

Accordingly, under the facts of this case, particularly in light of plaintiffs' inability to demonstrate the existence of similarly situated individuals in the Village of Patchogue, plaintiffs have not shown that the issuance of tickets for their violation of the rental permit law was anything other than the discretionary issuance of tickets, and, thus, plaintiffs' class-of-one claim fails to survive summary judgment. See Casciani, 659 F. Supp. 2d at 457 ("Even after the ordinance was passed, any action taken by the Town to enforce the ordinance was necessarily discretionary."); Tarantino, 615 F. Supp. 2d at 117 n. 11 ("[I]n a class-of-one case, the plaintiff must show that the difference in treatment resulted from non-discretionary governmental action. . . . Enforcement of the Code provisions at issue here clearly involved a degree of discretion on the part of the code enforcement officer, Aiken [and therefore] this claim must therefore be dismissed against all the defendants."); Nasca v. Town of Brookhaven, No. 05-CV-122, 2008 WL 4426906, at *11 n. 4 (E.D.N.Y. Sept. 25, 2008) ("Although the Engquist decision was applied in the public employment context, the analysis by the Supreme Court suggests that `class of one' challenges can only be made to non-discretionary decisions. Therefore, to the extent plaintiff is challenging the discretionary decisions by the Town as to the enforcement of its perrmit laws and code provisions, Engquist suggests that `class of one' challenges cannot be asserted as to such decisions."); Occhionero v. City of Fresno, No. 05-1184, 2008 WL 2690431, at *9 (E.D. Cal. July 3, 2008) ("This Court will not legislate a class-of-one equal protection claim under the guise of a First Amendment retaliation claim to permit second guessing of the City's code enforcement measures at issue here."). Thus, the Court grants defendants' motion for summary judgment on plaintiffs' class-of-one claim.

The Court notes that since Engquist, at least two circuits have held that class of one claims cannot be raised in the law enforcement context. See, e.g., Flowers v. City of Minneapolis, 558 F.3d 794, 799-800 (8th Cir. 2009) ("[W]hile a police officer's investigative decisions remain subject to traditional class-based equal protection analysis, they may not be attacked in a class-of-one equal protection claim."); United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008) (holding that class of one claims cannot challenge the exercise of prosecutorial discretion); see also Tarantino, 615 F. Supp. 2d at 117 (finding that a class of one claim cannot be used to challenge the enforcement of a rental property ordinance). But see Alfaro v. Labrador, No. 06-CV-1470 (JS) (WDW), 2009 WL 2525128, at *9 (E.D.N.Y. Aug. 14, 2009) ("Considering the case at hand, and the established case law, the Court respectfully disagrees with the Eighth and Seventh Circuits that class of one claims can never be brought in the law enforcement context."). This Court's holding need not be so broad. Instead, the Court bases its holding on the facts and circumstances of the instant case, particularly where plaintiff has not demonstrated the existence of similarly situated individuals, and where all appearance dates on the summonses issued to plaintiffs were the same — namely, September 21, 2005.

D. Conspiracy Claims Against Fire Department

Plaintiffs also raise conspiracy claims against the Fire Department defendants. Specifically, plaintiffs allege that the Fire Department defendants participated in a conspiracy, with the Village defendants, to deprive plaintiffs of their right to equal protection, in violation of 42 U.S.C. § 1985(3). The Fire Department defendants move for summary judgment on this claim on the ground that plaintiffs have not set forth any evidence of conspiracy. The Court agrees.

The Court confirmed at oral argument that this claim is only asserted against the Fire Department.

Section 1985(3) prohibits conspiracies by two or more persons that interfere with and injure any person's civil rights. More specifically, the four elements of a § 1985(3) claim are:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States.

Mian v. Donaldson, Lufkin Jenrette Sec., 7 F.3d 1085, 1087-88 (2d Cir. 1993) (citation omitted). "Furthermore, the conspiracy must also be motivated by `some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Id. (quoting United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 829 (1983)). Because plaintiffs' Second Amended Complaint fails to allege any class-based, invidious discrimination, and plaintiffs have failed to present any evidence that any alleged discrimination was class-based, they have failed to raise a claim under § 1985(3). See Lucas v. N.Y. City, 842 F. Supp. 101, 104 (S.D.N.Y. 1994) (holding plaintiff failed to state claim under § 1985(3) when complaint was devoid of any such allegations). Therefore, summary judgment for the Fire Department defendants is warranted on this claim.

Furthermore, if plaintiffs were attempting assert a claim of conspiracy against the Fire Department under § 1983, that claim too would fail. To prove a § 1983 conspiracy claim, a plaintiff must show: (1) an agreement between two or more state actors, (2) concerted acts to inflict an unconstitutional injury, and (3) an overt act in furtherance of the goal. See Ostensen v. Suffolk Cnty., 236 F. App'x 651, 653 (2d Cir. 2007); Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).

As established supra, the Fire Department's entry and search of the premises at 21 Church Street was warranted based on exigent circumstances. Plaintiffs do not dispute the facts that justify the Fire Department's entry. Plaintiffs do, however, contend that the Fire Department engaged in a conspiracy with Poulos to commit various constitutional violations against plaintiffs. This claim must fail. At oral argument, counsel for plaintiffs argued that plaintiffs have presented evidence of a "conspiracy" because, even though Fire Chief Wagner agreed to keep Poulos out of the apartment, he then called Poulos in to the apartment. As an initial matter, at oral argument, plaintiffs asserted the theory that the entry by Poulos was not warranted because he had not been called in by the Fire Department.

Moreover, plaintiffs offer no evidence other than their own "unsubstantiated speculation, to suggest that anything untoward took place." See Scotto, 143 F.3d at 115. Evidence of one exchange between Fire Chief Wagner and Fire Marshal Poulos, in which, if it occurred, Wagner reported to Poulos potential housing violations inside 21 Church Street, is insufficient to demonstrate the existence of a conspiracy. Plaintiffs offer no further evidence in support of this theory. Accordingly, the Court grants summary judgment in favor of defendants on plaintiffs' claim of conspiracy.

Plaintiffs attempt to create an issue of fact regarding whether Fire Chief Wagner instructed or authorized Poulos to enter or search the premises. However, as conceded at oral argument, the Village Fire Marshal is an employee of the Village, while the Fire District is a separate political subdivision. The Fire Chief does not have control or authority over the Village Fire Marshal. Accordingly, the Fire District is not responsible for the Fire Marshal's actions.

E. Municipal Liability

As an initial matter, because plaintiffs have not demonstrated any constitutional violations by the Fire Department defendants, there is no basis on which they could predicate Monell liability against the Fire Department. When plaintiffs lack any underlying claim of a deprivation of a constitutional right, the claim of municipal liability on the part of the municipal defendant must be dismissed as well. See Kelsey v. Cnty. of Schoharie, 567 F.3d 54, 65 (2d Cir. 2009) (citing Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995)); see also De Asis v. N.Y. City Police Dep't, 352 F. App'x 517, 518 (2d Cir. 2009) ("We further note that the district court did not err in failing to address Appellant's claim of municipal liability for negligent supervision, in light of its correct finding that Appellant alleged no underlying constitutional violation."); Jennis v. Rood, 310 F. App'x 439, 440 (2d Cir. 2009) ("There cannot be an independent claim against the Department for municipal liability unless Jennis could prove a constitutional violation by one of the Onondaga County jail deputies."); Segal v. City of N.Y., 459 F.3d 207, 219-20 (2d Cir. 2006) (holding that district court need not reach municipal liability claim where due process claims failed). Accordingly, the Fire Department defendants' motion for summary judgment on the Monell claim is granted. Thus the Court grants the Fire Department defendants' motion for summary judgment in entirety.

The Village of Patchogue argues that it is entitled to summary judgment on the grounds that plaintiffs have failed to demonstrate municipal liability as a matter of law. However, as set forth below, because the Court finds that genuine issues of material fact exist as to Patchogue's municipal liability, the Court rejects Patchogue's argument and denies its motion for summary judgment on this ground without prejudice to its renewing it prior to the jury's receipt of the case.

1. Legal Standard a. Evidence of Municipal Custom or Policy

The Supreme Court expressly rejected liability pursuant to a theory of respondeat superior for purposes of § 1983 in Monell. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978) ("[A] municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory."). Thus, "[a] municipality will not be held liable under § 1983 unless plaintiffs can demonstrate that the allegedly unconstitutional action of an individual law enforcement official was taken pursuant to a policy or custom officially adopted and promulgated by that [municipality's] officers." Abreu v. City of N.Y., No. 04-CV-1721, 2006 U.S. Dist. LEXIS 6505, at *11 (E.D.N.Y. Feb. 22, 2006) (quotation marks omitted) (citing Monell, 436 U.S. at 690). However, "`the mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.'" Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (quoting Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993)). The plaintiff in a § 1983 action bears the burden of establishing municipal liability. See Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985).

"The policy or custom need not be memorialized in a specific rule or regulation." Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (citing Sorlucco v. N.Y. City Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992)). A policy, custom, or practice of the municipal entity may be inferred where "`the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'" Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (quoting Kern, 93 F.3d at 44). "A municipality's failure to train or supervise its officers can rise to the level of an actionable policy or custom where it amounts to `deliberate indifference' to the constitutional rights of its citizens." Hall v. Marshall, 479 F. Supp. 2d 304, 315-16 (E.D.N.Y. 2007) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989) and Thomas v. Roach, 165 F.3d 137, 145 (2d Cir. 1999) ("A municipality may be liable under § 1983 . . . where the City's failure to supervise or discipline its officers amounts to a policy of deliberate indifference.")).

b. Policymakers

In addition to demonstrating directly that a municipality has a custom or policy that led to a constitutional violation, the Second Circuit has held that a plaintiff may demonstrate municipal liability by showing that a municipal "policymaker" violated plaintiff's constitutional rights:

Where plaintiffs allege that their rights were deprived not as a result of the enforcement of an unconstitutional official policy or ordinance, but by the unconstitutional application of a valid policy, or by a [municipal] employee's single tortious decision or course of action, the inquiry focuses on whether the actions of the employee in question may be said to represent the conscious choices of the municipality itself. Such an action constitutes the act of the municipality and therefore provides a basis for municipal liability where it is taken by, or is attributable to, one of the [municipality's] authorized policymakers.

Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004); see also Gronowski v. Spencer, 424 F.3d 285, 296 (2d Cir. 2005) ("Municipal liability may attach under § 1983 when a [municipal] policymaker takes action that violates an individual's constitutional rights."); Davis v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 478 (E.D.N.Y. 2002) ("A plaintiff can show a municipal custom, policy or practice by establishing that an official who is a final policymaker directly committed or commanded the constitutional violation. . . ."). Indeed, "[e]ven one episode of illegal retaliation may establish municipal liability under § 1983 if ordered by a person whose edicts or acts represent official city policy." Gronowski, 424 F.3d at 296; see also Amnesty Am., 361 F.3d at 126 ("Thus, even a single action by a decisionmaker who `possesses final authority to establish municipal policy with respect to the action ordered' is sufficient to implicate the municipality in the constitutional deprivation for the purposes of § 1983." (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986))). "Whether the official in question possessed final policymaking authority is a legal question, which is to be answered on the basis of state law. . . . The relevant legal materials[] include state and local positive law, as well as custom or usage having the force of law." Jeffes v. Keenan, 208 F.3d 49, 57 (2d Cir. 2000). Specifically, "`[t]he matter of whether the official is a final policymaker under state law is to be resolved by the trial judge before the case is submitted to the jury.'" Richardson v. Metro. Dist. Comm'n, No. 3-00-CV-1062, 2003 U.S. Dist. LEXIS 12757, at *20 (D. Conn. July 23, 2003) (quoting Jeffes, 208 F.3d at 57).

In particular, where a municipal official "`has final authority over significant matters involving the exercise of discretion,' his choices represent government policy." Gronowski, 424 F.3d at 296 (quoting Rookard v. Health and Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)); see also Diodati v. City of Little Falls, No. 6:04-CV-446, 2007 U.S. Dist. LEXIS 4322, at *6 (N.D.N.Y. Jan. 18, 2007) ("A policymaker is an individual whose `decisions, at the time they are made, for practical or legal reasons constitute the municipality's final decisions.'" (quoting Anthony v. City of N.Y., 339 F.3d 129, 139 (2d Cir. 2003) (internal citation and quotation marks omitted))). Moreover, "the official in question need not be a municipal policymaker for all purposes. Rather, with respect to the conduct challenged, he must be responsible under state law for making policy in that area of the [municipality's] business." Jeffes, 208 F.3d at 57 (citation and quotation marks omitted) (emphasis in original). "Thus, the Court must ask whether [the] governmental official [is a] final policymaker[] for the local government in a particular area, or on [the] particular issue involved in the action." Id. (citations and quotation marks omitted); see also Doe v. City of Waterbury, 453 F. Supp. 2d 537, 543 (D. Conn. 2006) ("The critical inquiry is not whether an official generally has final policymaking authority; rather, the court must specifically determine whether the government official is a final policymaker with respect to the particular conduct challenged in the lawsuit.") (emphasis in original). However, "[a]lthough the official in question does not have to be a final policymaker for all purposes, but only with respect to the conduct challenged, simply exercising discretion in an area where that official is not the final policymaker under state law cannot, by itself, establish municipal liability." Barry v. N.Y. City Police Dept., No. 01 Civ. 10627, 2004 U.S. Dist. LEXIS 5951, at *43 (S.D.N.Y. Apr. 7, 2004; see also Diodati, 2007 U.S. Dist. LEXIS 4322, at *6 ("An individual who merely has discretion to handle a particular situation is not a policymaker."); Richardson, 2003 U.S. Dist. LEXIS 12757, at *20 ("Mere discretion in the performance of his duties is not sufficient. However, the official need only have the power to make official policy on a particular issue."). On the other hand, where a policymaker "exceeded the bounds of the authority granted to him," his actions "cannot be fairly said to represent official policy." Doe v. City of Waterbury, 453 F. Supp. 2d 537, 544 (D. Conn. 2006) ("[A]lthough Giordano is generally a final policymaker for Waterbury, Giordano's specific actions in this case cannot be fairly said to represent official policy, because under state law, he exceeded the bounds of the authority granted to him.").

2. Application

As an initial matter, plaintiffs have pointed to no policies or customs within the Village of Patchogue upon which municipal liability could be predicated. Plaintiffs also claim that municipal liability is warranted under a failure to train or supervise theory. However, as stated by one court in this Circuit:

the "mere assertion that a municipality has such a policy is insufficient to establish Monell liability," Perez v. City of N.Y., 97 Civ. 2915, 2002 U.S. Dist. LEXIS 4297, at *4 (E.D.N.Y. Mar. 14, 2002), and in any case Plaintiff may not overcome summary judgment by relying "merely on allegations or denials in its own pleading," Fed.R.Civ.P. 56(e). Here, Plaintiff has not shown a set of facts, by affidavit, deposition or otherwise, that could lead a reasonable juror to conclude that Monell liability is appropriate for the City of New York. The standard for liability based on a claim of failure to train is a high hurdle to overcome. A plaintiff must establish through admissible evidence that "the failure to train amounts to deliberate indifference to the rights of those whom municipal employees will come into contact," and "only where a failure . . . reflects a deliberate or conscious choice by a municipality . . . can a city be liable for such failure under § 1983." City of Canton v. Harris, 489 U.S. 378, 388-89 (1989).

Manganiello v. City of N.Y., No. 07 Civ. 3644 (HB), 2008 WL 2358922, at *10 (S.D.N.Y. June 10, 2008). The Court agrees with this analysis and concludes that plaintiffs have failed to provide evidence of any policy or procedure whereby the Village defendants permitted, encouraged, or trained their employees to engage in constitutional violations.

The Court, however, denies Patchogue's motion with respect to liability predicated upon the acts of a policymaker. The matter of whether a given official is a municipal policymaker for § 1983 purposes is a question of law for determination by the Court. See Bliven v. Hunt, 579 F.3d 204, 214 (2d Cir. 2009). Plaintiffs argue that defendant Poulos, as the Fire Marshal, was a policymaker for the Village of Patchogue. The Court agrees. Poulos's deposition testimony provides ample basis for the Court to conclude that Poulos possesses "final authority over significant matters involving the exercise of discretion." Gronowski, 424 F.3d at 297 (quotation omitted). Specifically, Poulos testified as follows:

Plaintiffs did not present any evidence that suggests that — and plaintiffs do not argue in their opposition papers that — Code Enforcement Officer James Nudo was a policymaker. Accordingly, municipal liability could not be imposed based on this theory for Nudo's actions.

Q: When you say "setting procedures," meaning chief fire marshal is the person who sets procedures?

A: Yes.

Q: What kind of procedures would the chief fire marshal set, generally speaking?

* * *

A: What's going to be inspected at what time frames. What is going to be done when. Who is going to do that. How you are going to do an investigation. What the order is. How you are going to do numerous activities.

Q: Is it fair to say that the chief fire marshal is the person who is making all these decisions for those under him?

* * *

A: Yes.

Q: Does chief fire marshal decide who gets inspected?

* * *

A: Yes.

Q: Does the chief fire marshal determine what a proper investigation is and how it is conducted?

* * *

A: Yes.

Q: Does the chief fire marshal determine the circumstances under which an inspection should be performed, just generally speaking?

* * *

A: Yes.

Q: When you're setting out the procedures for inspections, that means you are determining the policies of the fire department — I'm sorry, the subordinates under you and how they should perform; is that a correct statement?

* * *

A: Yes.

(Poulos Dep. at 25-27.) Municipal liability may attach under § 1983 when a policymaker takes action that violates an individual's constitutional rights, and such liability may be based on one individual action by a policymaker. See Gronowski, 424 F.3d at 296. Because there are disputed issues of fact regarding whether Poulos's behavior was a violation of plaintiffs' Fourth Amendment rights, and because the Court determines that Poulos is a policymaker within the Village of Patchogue, the Village defendants' motion for summary judgment regarding municipal liability is denied.

II. QUALIFIED IMMUNITY

The remaining individual defendants — namely, Poulos and Nudo — also contend that they are entitled to summary judgment on qualified immunity grounds for all of the constitutional violations claimed by plaintiffs. For the reasons set forth below, however, the Court denies summary judgment to the individual defendants on this ground because disputed issues of fact exist that must be resolved before the issue of qualified immunity could be decided in this case.

The issue of qualified immunity does not affect the Village of Patchogue because "[m]unicipalities do not enjoy either absolute or qualified immunity from suit under Section 1983." White River Amusement Pub, Inc. v. Town of Hartford, 412 F. Supp. 2d 416, 429 n. 6 (D. Vt. 2005) (citing Leatherman v. Tarrant Cnty. Narcotics Intelligence Coordination Unit, 507 U.S. 163, 166 (1993)), aff'd, 481 F.3d 163 (2d Cir. 2007).

A. Legal Standard

According to the Second Circuit, government actors may be shielded from liability for civil damages if their "conduct did not violate plaintiff's clearly established rights, or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiff's rights." Mandell v. Cnty. of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003); see also Fielding v. Tollaksen, 257 F. App'x 400, 401 (2d Cir. 2007) (explaining that government officers "are protected by qualified immunity if their actions do not violate clearly established law, or it was objectively reasonable for them to believe that their actions did not violate the law"). "A right is clearly established when the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . The unlawfulness must be apparent." Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir. 1998) (citations and quotation marks omitted). In addition, the Second Circuit has repeatedly stated that qualified immunity only protects officials performing "discretionary functions." See Simons v. Fitzgerald, 287 F. App'x 924, 926 (2d Cir. 2008) ("`Qualified immunity shields government officials performing discretionary functions from liability for civil damages . . .'" (quoting Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007))); Piscottano v. Town of Somers, 396 F. Supp. 2d 187, 208 (D. Conn. 2005) ("`The qualified immunity doctrine protects government officials from civil liability in the performance of discretionary functions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.'" (quoting Lee v. Sandberg, 136 F.3d 94, 100 (2d Cir. 1997))).

As the Second Circuit has also noted, "[t]his doctrine is said to be justified in part by the risk that the `fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.'" McClellan v. Smith, 439 F.3d 137, 147 (2d Cir. 2006) (quoting Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (quotation marks omitted)). Thus, qualified immunity is not merely a defense but is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, courts should determine the availability of qualified immunity "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991).

With respect to the summary judgment stage in particular, the Second Circuit has held that courts should cloak defendants with qualified immunity at this juncture "only `if the court finds that the asserted rights were not clearly established, or if the evidence is such that, even when it is viewed in the light most favorable to the plaintiff[] and with all permissible inferences drawn in [his] favor, no rational jury could fail to conclude that it was objectively reasonable for the defendants to believe that they were acting in a fashion that did not violate a clearly established right.'" Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003) (quoting Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir. 1996)); see also Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994) ("Though [qualified] immunity ordinarily should be decided by the court, that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required." (citations and quotation marks omitted)); Stancuna v. Sherman, tancuna v. Sherman, 563 F. Supp. 2d 349, 356 (D. Conn. 2008) ("Here, the court finds that summary judgment on qualified immunity grounds is inappropriate. As the Second Circuit has held, [w]hen a motion for summary judgment is made in the context of a qualified immunity defense, the question of whether the factual disputes are material is even more critical. As noted above, there are issues of material fact in this case that this court may not decide. These issues of fact are critical to determining whether Sherman was operating under a reasonable belief as to what kind of search he was permitted to conduct." (citation and quotation marks omitted)).

B. Application

Here, the Court examines qualified immunity only with respect to plaintiffs' surviving claims — namely, their claims for malicious abuse of process (which implicate defendant Nudo) and unreasonable search and seizure (which implicate defendant Poulos). The Court concludes that the Village defendants have failed to set forth undisputed evidence that establishes that these individual defendants are entitled to qualified immunity; rather, there are disputed issues of fact in this case that must be resolved in order to determine whether qualified immunity would be warranted. Accordingly, the Village defendants' motion for summary judgment for the individual defendants based on qualified immunity is denied at this juncture.

1. Malicious Abuse of Process

The constitutional right to be free from a malicious abuse of process is well established, and was clearly established at the time of the alleged abuse of process in the instant case. See Jovanovic v. City of N.Y., No. 04 Civ. 8437 (PAC), 2006 WL 2411541, at *12 (S.D.N.Y. Aug. 17, 2006) ("If Plaintiff is able to provide additional facts to support his abuse of process claim, then he will have adequately alleged the violation of his constitutional right to be free from malicious abuse of process, as guaranteed by the Fourteenth Amendment's procedural due process clause. This constitutional right was clearly established at the time that Bonilla arrested Jovanovic and filed charges against him in 1996."); Phelps v. City of N.Y., No. 04 CIV. 8570 (DLC), 2006 WL 1749528, at *8 (S.D.N.Y. June 27, 2006) ("There can be no dispute that the prohibitions against arrest without probable cause, malicious prosecution, and malicious abuse of process are clearly established under the law."); see also Cook, 41 F.3d at 80 (declaring, in 1994, that, "[i]n the criminal context, malicious abuse of process is `by definition a denial of due process'"). If, as alleged by plaintiffs, Nudo issued plaintiffs' summonses and tickets for their violation of the rental permit law as an attempt to compel plaintiffs to cease their challenge to the constitutionality of the Rental Permit Law, with the intent to do harm without excuse or justification, then Nudo will not be entitled to qualified immunity on plaintiffs' abuse of process claims. Accordingly, the Village defendants' motion for summary judgment on this ground is denied at this juncture.

2. Unreasonable Search

"[T]he right to be free from a warrantless search of a private dwelling executed under color of municipal building law has been clearly established for decades, as both the Supreme Court and the New York Court of Appeals long ago recognized that the Fourth Amendment protects the owner of a private dwelling from warrantless administrative inspections of that dwelling." Cullen v. Vill. of Pelham Manor, No. 03-CV-2168 (CS), 2009 WL 1507686, at *11 (S.D.N.Y. May 28, 2009) (citing Camara v. Mun. Court of City Cnty. of S.F., 387 U.S. 523, 534 (1967)); Sokolov v. Vill. of Freeport, 420 N.E.2d 55, 57 (N.Y. 1981) (finding "rental permit ordinance . . . unconstitutional insofar as it effectively authorizes and . . . requires a warrantless inspection of residential rental property"). Accordingly, the Village defendants cannot argue that it was not clearly established at the time of the events giving rise to this action that the Fourth Amendment warrant requirement applied to administrative searches such as Poulos's search of 21 Church Street. See Cullen, 2009 WL 1507686, at *11.

However, if Poulos had an objectively reasonable belief that (1) a warrantless search without consent was justified based on his belief that there were exigent circumstances requiring his immediate attention, or (2) he had consent to search from an individual authorized to give it, he is entitled to qualified immunity. See Ehrlich v. Town of Glastonbury, 348 F.3d 48, 61 (2d Cir. 2003) (holding that officers were entitled to qualified immunity where defendant officers could have reasonably believed that they were given sufficient third party consent to search); see also Simms v. Vill. of Albion, N.Y., 115 F.3d 1098, 1109 (2d Cir. 1997) (holding that defendant officers were entitled to qualified immunity as a matter of law where they relied upon consent of property owner to perform search); Ostroski v. Town of Southold, 443 F. Supp. 2d 325, 344 (E.D.N.Y. 2006) ("[T]he search and seizure was reasonable under the emergency aid doctrine because the officers reasonably believed that it was necessary to protect the occupants of the residence from imminent injury." (citing Brigham City v. Stuart, 547 U.S. 398 (2006))).

If all of plaintiffs' evidence is credited, and the jury finds that (1) there was no exigency justifying Poulos's entry of 21 Church Street on July 25, 2005; (2) Poulos was not informed by the Fire Department that there was an exigent circumstance in the building that required his immediate entry on July 25, 2005, such that Poulos obtained a reasonable belief that his warrantless entry was justified; and (3) Gucciardo did not consent — or, if she did provide consent, did not voluntarily consent — to the search of 21 Church Street; and (4) Poulos did not reasonably believe that Gucciardo, if she consented to the search, had the apparent authority to consent to a search of the locked room in the basement, then Poulos's violation of plaintiffs' constitutional rights was not objectively reasonable, and qualified immunity is not warranted to shield Poulos from liability. Accordingly, the Village defendants' motion for summary judgment on the issue of qualified immunity is denied.

The Court further notes that in 2006, the Supreme Court decided Georgia v. Randolph, 547 U.S. 103 (2006), and held that, under the circumstances of that case, a physically present co-occupant's stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him. See id. at 106. This decision was issued a year after the alleged events of July 25, 2005. However, because the Court determines that disputed issues of fact exist with respect to Gucciardo's alleged consent, the Court need not determine at this juncture whether this rule regarding the presence of nonconsenting persons during a warrantless search was "clearly established" on July 25, 2005, such as to abrogate Poulos's qualified immunity on that ground.

* * *

In sum, as described above, the Court has found that genuine issues of material fact preclude the Court from determining as a matter of law that plaintiffs' clearly established rights were not violated. Thus, the critical question is whether it was objectively reasonable for the individual Village defendants to believe that they were not committing such violations, and the Court declines to so conclude as a matter of law that it was objectively reasonable for the Village defendants to believe that they were not violating plaintiffs' rights. Here, for the reasons stated supra, the Court has determined that — if plaintiffs' version of events is credited in its entirety (i.e., there was no consent to search by Gucciardo and no exigent circumstances warranting Poulos's search of the house) — the individual Village defendants subjected plaintiffs to an unauthorized warrantless search and seizure, and there could be no basis to conclude that the individual defendants' conduct was objectively reasonable. Accordingly, the Court denies the individual Village defendants' summary judgment motion on qualified immunity grounds.

The Court notes that, in order to determine the availability of the qualified immunity defense in this case at trial, the Court is prepared to follow the procedures set forth by the Second Circuit in Zellner v. Summerlin, 494 F.3d 344, 367-68 (2d Cir. 2007). Specifically, although "the ultimate question of whether it was objectively reasonable for [defendants] to believe that [their] conduct did not violate a clearly established right, i.e., whether officers of reasonable competence could disagree as to the lawfulness of such conduct, is to be decided by the court," id. at 367, the jury must first "resolve[] any disputed facts that are material to the qualified immunity issue." Id. at 368. Further, "[t]o the extent that a particular finding of fact is essential to a determination by the court that the defendant is entitled to qualified immunity, it is the responsibility of the defendant to request that the jury be asked the pertinent question. Id. (citations omitted) (noting that "if the defendant does not make such a request, he is not entitled to have the court, in lieu of the jury, make the needed factual finding"). In particular, "`the jury should decide these issues on special interrogatories.'" Id. (quoting Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990)). Once the jury has determined these factual issues, the Court will — if necessary — afford defendants an additional opportunity to renew their motion with respect to qualified immunity. See, e.g., id. at 364.

V. CONCLUSION

For the foregoing reasons, the Court grants the Fire Department defendants' motion for summary judgment in its entirety, and those defendants are dismissed from the case. The Court denies the Village defendants' motion for summary judgment with respect to plaintiffs' malicious abuse of process claim, Fourth Amendment unreasonable search claim as pertaining to the basement at 21 Church Street, and municipal liability claims. The Court grants the Village defendants summary judgment with respect to plaintiffs' First Amendment, Fourteenth Amendment, and remaining Fourth Amendment claims. The Court also denies defendants' motion for summary judgment with respect to the issue of qualified immunity.

Dated: September 23, 2010.