Sauer v. Town of Cornwall

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK □□ □□ Teale ENED

DOC #:

DATE FILED: 9/30/2022

MARTIN J. SAUER,

Plaintiff, No. 7:20-CV-04881 (NSR)

-against- OPINION AND ORDER

TOWN OF CORNWALL and TODD HAZARD,

Town of Cornwall Police Chief,

Defendants.

NELSON S. ROMAN, United States District Judge:

Plaintiff Martin Sauer (‘Plaintiff’), a 74-year-old partially blind veteran, commenced this

civil action pursuant to 42 U.S.C. § 1983 (“Section 1983”) on June 25, 2020, asserting five causes

of action sounding in violation of his substantive due process rights, unlawful arrest and seizure,

violation of equal protection, and unlaw deprivation of property rights. (ECF No. 1.) Plaintiffs

claims are asserted under the United States Constitution, as well as the New York State

Constitution, against Defendants Town of Cornwall (“Town”) and Police Chief Todd Hazard

(“Chief Hazard”) (collectively, “Defendants”). Plaintiff’s various claims arise from his arrest by

Chief Hazard for purportedly peddling or giving away corn on the side of a road without a

peddler’s permit issued by the Town, even though Plaintiff had a New York State-issued peddler’s

license. (See Complaint (“Compl.”), ECF No. 1.)

Specifically, Plaintiff asserts claims! for: violation of his Fourth and Fourteenth

Amendments and State Article I, Section 12, regarding his right not to be arrested without probable

cause and not to be unreasonably seized; violation of his Fourteenth Amendment and State Article

Plaintiff withdrew his Substantive Due Process claim, the first cause of action in the complaint. (See Plaintiff's

Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Pl. Opp.”), ECF No. 38.)

I, Section 11, right to be guaranteed equal protection of the law(s); and violation of his right not to

be deprived of property without due process of law as guaranteed by the Due Process Clauses of

the United States and New York Constitutions. (Compl. ¶¶ 56–65.) Before the Court is Defendants’

motion to dismiss the Complaint for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6) (“Rule 12(b)(6)”). (ECF No. 30.)

For the following reasons, Defendants’ motion is GRANTED in part and DENIED in part.

BACKGROUND

I. Factual Background

The following facts are derived from the Complaint or matters of which the Court may take

judicial notice, are taken as true, and constructed in the light most favorable to Plaintiff for this

motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Nicosia v. Amazon.com, Inc., 834 F.3d

220, 230 (2d Cir. 2016).

Plaintiff is a partially blind 74-year-old veteran of the United States Armed Forces who

sold sweet corn, along with other items, from a truck along the side of Route 32 in the Town of

Cornwall for over twenty years (approximately between 1992 and 2018). (See Compl. ¶¶ 9–10.)

Plaintiff sold his sweet corn pursuant to (1) a peddler’s license issued by the State of New York in

1992 that conferred a lifetime right to veterans to peddle, vend, and sell goods or merchandise on

the highways within a specific jurisdiction (the “State Peddler’s License”), and (2) an annual

peddler’s license issued by the Town Clerk for the Town of Cornwall between 2011 and 2017

(“Town Peddler’s License”). (Id. ¶¶ 11–15.)

In the Town of Cornwall, along Route 32, New York State created two pull-off lots for

vehicular use which are both located on the right side of the highway as one travels from the Town

of Cornwall to the Town of Woodbury. (Id. ¶ 12.) During the workweek, Monday through Friday,

customers of Short Line Bus, a private bus company, park in the first lot (“Lot 1”). (Id. ¶ 13.)

Plaintiff has routinely used the second lot (“Lot 2”) for the purpose of selling his sweet corn and

produce, and on weekends he would also use the Short Line parking lot. (Id. ¶ 14.)

In 2018, the Town denied Plaintiff’s applications for a Town peddler’s license based, in

part, upon Chief Hazard’s assessment that the sale of sweet corn on the side of the road was a

public nuisance, a danger to the community. (Id. ¶¶ 16–17.) After his license was denied, Plaintiff

decided to “park his truck along Route 32 in the Town of Cornwall and give away his sweet corn

and produce to customers who had been loyal to him for over twenty years” because he no longer

had a market for his produce as a result of the Town’s license denial. (Id. ¶¶ 18–21.) Prior to giving

away his corn, Plaintiff placed signs along Route 32 indicating free sweet corn and produce, with

the expectation that his customers would stop by and that he would give them free produce. (Id.

¶ 20.)

On July 21, 2018, while off-duty, Chief Hazard approached Plaintiff as he was giving away

his corn and produce along Route 32. (Id. ¶ 21.) Plaintiff informed Chief Hazard that he was not

selling produce but was giving it away pursuant to his New York State Peddler’s License. (Id.)

Despite this, Chief Hazard, with malice disregard, arrested Plaintiff for unlicensed peddling in

violation of Town Code Section 111-4.2 (Id. ¶¶ 22–23.) Chief Hazard arranged to have Plaintiff’s

vehicle towed which caused damage to it and Plaintiff incurred a $400 fee to recover the vehicle.

(Id. ¶ 22.) At the time of his arrest, Plaintiff possessed a State Peddler’s License, which exempted

him from the requirements of Town Code Section 111-4 as provided in Town Code Section 1l1-

2 Town Code Section 111-4 states: “It shall be unlawful for any person to conduct or operate a transient retail

business, roadside farm market or food vending business or engage in hawking, peddling, or soliciting sales of any

products to which this chapter applies with the town without first obtaining a license from the Town Clerk.”

3(C).3 (Id. ¶ 24.)

On September 12, 2018, on the motion of the Town, all the charges against Plaintiff were

dismissed in the interest of justice, acknowledging Plaintiff’s possession of a State Peddler’s

License. (Id. ¶ 45.) The dismissal of Plaintiff’s charges affected a series of legal battle in state

court. (Id. ¶¶ 25–55.) Plaintiff’s counsel had previously notified the Town that it could not deny

Plaintiff the right to sell produce along Route 32. (Id. ¶ 29.) In response to Plaintiff’s counsel

notification, on August 16, 2018, the Town commenced an action in New York State Supreme

Court, Orange County, seeking to, in part, enjoin Plaintiff from selling produce along Route 32 on

the theory that his conduct constituted a public nuisance. (Id. ¶ 30.) Also on August 16, 2018,

Plaintiff filed a Notice of Claim against the Town alleging, inter alia, false arrest. (Id. ¶ 31.) On

August 17, 2018, the Plaintiff and Town appeared before New York State Supreme Court Justice

Elaine Slobod for the purpose of providing oral argument on the Town’s application for a

temporary restraining order (“TRO”) seeking to enjoin Plaintiff for selling along Route 32. (Id.)

At the hearing, the parties informed Justice Slobod that Short Line customers entered and exited

Route 32 at the same location that Plaintiff utilized to sell, that Short Line dropped customers off

at the same location, and that some Short Line buses dropped their customers off on the opposite

side of Route 32, who then physically crossed the highway to access the parking lot. (Id. ¶ 35.)

The Court inquired of the Town whether it had any intention to ask Short Line to abandon their

parking lots on Route 32, to which the Town attorney responded in the negative. (Id. ¶¶ 35, 37.)

Following oral argument, the Court denied the Town’s application for a TRO. (Id.)

3 Town Code Section 1l1-3(C) states: “The provisions of this chapter shall not apply to any person or persons engaged

in the sale or solicitations of sales of any product or service for which the person or persons hold a valid license from

the State of New York.”

On October 17, 2018, the Cornwall Town Board enacted Local Law #4 of 2018, which

required a local license for all vendors and eliminated the exemption for persons holding state

licenses. (Id. ¶ 47.) The enactment, according to Town counsel, mooted the Town’s equitable

action against Plaintiff. (Id.) On November 8, 2018, the parties filed a Stipulation of

Discontinuance in New York State Supreme Court, discontinuing all claims and counterclaims

without prejudice, but it did not serve to withdraw the Notice of Claim filed by Plaintiff against

the Town. (Id. ¶¶ 48–49.)

II. Procedural Background

On June 18, 2020, Plaintiff filed his Complaint against the Town and Chief Hazard. (ECF

No. 1.) On November 12, 2020, Defendants filed a motion to dismiss Plaintiff’s Complaint for

failure of personal service and failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(5) and

12(b)(6), respectively. (ECF No. 16.) On September 7, 2021, the Defendants’ motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(5) was granted solely on the grounds of improper service. (ECF

No. 25.) Plaintiff was granted leave to serve properly, and the Complaint was not dismissed

because the Court did not reach the merits of Defendants’ dismissal arguments pursuant to Rule

12(b)(6). (Id.)

On October 15, 2021, Defendants moved to dismiss Plaintiff’s Complaint for failure to

state a claim pursuant to Rule 12(b)(6). (ECF No. 30.) Defendants submitted an affidavit in support

of their motion (ECF No. 31), along with Exhibit A: Plaintiff’s Complaint (ECF No. 31-1). On

November 13, 2021, Plaintiff opposed the motion to dismiss (ECF No. 38). In support of his

opposition, Plaintiff submitted (ECF No. 37), along with three Exhibits: Exhibit 1: Plaintiff’s 1992

lifetime New York State veteran’s peddlers license (issued through the Orange County Clerk’s

Office) (ECF No. 37-1); Exhibit 2: Plaintiffs’ affidavit, sworn to September 5, 2018, submitted to

the Orange County Supreme Court (ECF No. 37-2); and Exhibit 3: Transcript of Plaintiff’s Section

50-h hearing, conducted on March 21, 2019 (ECF No. 37-3).

On November 30, 2021, Defendants filed their reply papers. (ECF No. 41.) Defendants

also submitted an affidavit in further support of their motion and in reply to Plaintiff’s opposition.

(ECF No. 40.) Defendants’ affidavit was annexed to Exhibit B: Letter from Christopher Kleister

of the Town of Cornwall Police Department dated August 7, 2018 (ECF No. 40-1); Exhibit C:

Letter from the Town of Cornwall Police Department to Plaintiff dated October 5, 2017 (ECF No.

40-2); and Exhibit D: Letter from the New York State Department of Transportation to Plaintiff

dated September 14, 2018 (ECF No. 40-3).

STANDARD OF REVIEW

Under Rule 12(b)(6), a court must determine whether the complaint “contain[s] sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556

U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court must take

all material factual allegations as true and draw reasonable inferences in the non-moving party’s

favor, but the Court is “not bound to accept as true a legal conclusion couched as a factual

allegation,” or to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of

a cause of action.” Id. (quoting Twombly, 550 U.S. at 555). A claim is facially plausible when the

factual content pleaded allows a court “to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id.

Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its

consideration to facts stated on the face of the complaint, in documents appended to the complaint

or incorporated in the complaint by reference, and to matters of which judicial notice may be

taken.” Leonard F. v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (internal

quotation marks and citation omitted). However, a “court may consider the facts as asserted within

the four corners of the complaint together with the documents attached to the complaint as exhibits,

and any documents incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC

v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (internal quotation and citation omitted).

“Even where a document is not incorporated by reference, the court may nevertheless consider it

where the complaint relies heavily upon its terms and effect, which renders the document integral

to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal

quotation marks and citations omitted).

DISCUSSION

Plaintiff asserts claims against Defendants under Section 1983, alleging Fourth and

Fourteenth Amendment violations of (1) arrest without probable cause; (2) unreasonable seizure; (3)

equal protection; and (4) deprivation of property without due process. (Compl. ¶¶ 59, 61, 63, 65.)

Plaintiff also asserts claims pursuant to the New York state constitution for similar alleged

violations. (Id.)

Defendants move to dismiss all claims under Rule 12(b)(6) for failure to state a claim on the

basis that the operative complaint contains no allegations to support a Monell claim against the

Town, Chief Hazard is entitled to qualified immunity, and the Court lacks supplemental jurisdiction

over Plaintiff’s state law claims. (See Defendant’s Memorandum of Law in Support of Dismissal

(“Defs. Mot.”) and Defendants’ Reply Memorandum of Law in Support of Dismissal (“Defs. Re.”),

ECF Nos. 32, 41.) Moreover, Defendants argue that (1) the first and second causes of actions,

presumptively false arrest and false imprisonment claims, must be dismissed because there was

probable cause (or at minimum, arguable probable cause) for the arrest and that Chief Hazard was

entitled to qualified immunity; (2) the third cause of action is construed to be a selective

enforcement claim; however, it is not adequately pled as the complaint does not allege Plaintiff

was selectively adversely treated compared to others similarly situated; and (3) the fourth cause of

action fails to plausibly allege a procedural due process claim based upon a property right in the

issuance of the State Peddler’s License. (See Defs. Mot. at 5–9.) The Court will address each claim

below.

I. Section 1983 Claims

Plaintiff brings several claims pursuant to Section 1983 against Defendants. Section 1983

provides, in the relevant part, that “[e]very person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the

United States . . . to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured . . . .” 42 U.S.C. § 1983.

“Section 1983 provides a cause of action against any person who deprives an individual of

federally guaranteed rights ‘under color’ of state law.” Filarsky v. Delia, 566 U.S. 377, 383 (2012).

Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights

elsewhere conferred by those parts of the United States Constitution and federal statutes it

describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see also Patterson v. Cnty. of

Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004). To state a Section 1983 claim, a plaintiff must

allege: (1) that the challenged conduct was “committed by a person acting under color of state

law,” and (2) that such conduct “deprived [the plaintiff] of rights, privileges, or immunities secured

by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)

(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)); see also Castilla v. City of New York,

No. 09 Civ. 5446(SHS), 2013 WL 1803896, at *2 (S.D.N.Y. Apr. 25, 2013).

A. Monell Liability

Defendants contend that Plaintiff has failed to plausibly state any claim against the Town

for municipality liability pursuant to Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.

658 (1978), and its progeny. (Defs. Mot. at 11.) Municipalities may only be held liable under

Section 1983 where

[T]he action that is alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted or promulgated by those

whose edicts or acts may fairly be said to represent official policy. In addition, local

governments, like every other § 1983 “person,” may be sued for constitutional deprivations

visited pursuant to governmental “custom” even though such custom has not received

formal approval through the government's official decision-making channels.

Monell, 436 U.S. at 659.

Courts in the Second Circuit apply a two-prong test for Section 1983 claims brought against

a municipality. See Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (citation

omitted). First, the plaintiff must “prove the existence of a municipal policy or custom to show

that the municipality took some action that caused his injuries beyond merely employing the

misbehaving officer.” Id. (citation omitted). Second, the plaintiff must establish a “‘direct causal

link between a municipal policy or custom and the alleged constitutional deprivation.’” Hayes v.

Cnty. of Sullivan, 853 F. Supp. 2d 400, 439 (S.D.N.Y. 2012) (quoting City of Canton v. Harris,

489 U.S. 378, 385 (1989)).

To satisfy the first requirement, a plaintiff must prove the existence of (1) a formal policy

that is officially endorsed by the municipality; (2) actions taken or decisions made by government

officials responsible for establishing municipal policies that caused the alleged violation of the

plaintiff's civil rights; (3) a practice so persistent and widespread that it constitutes a custom or

usage and implies the constructive knowledge of policy-making officials; or (4) a failure by official

policy-makers to properly train or supervise subordinates to such an extent that it amounts to

deliberate indifference to the rights of those with whom municipal employees will come into

contact. Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (internal citations and

quotation marks omitted); see also Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77

(S.D.N.Y. 2010) (collecting cases).

Upon a review of the allegations and assuming them to be true, the Court determines the

allegations fail to support a plausible Monell claim against the Town. Of significance, the

Complaint is void of any specific municipal “policy, custom, or widespread practice” as required

under Monell that resulted in the conduct complained of by Plaintiff. See, e.g., Ross v. Port Chester

Hous. Auth., No. 17-CV-4770 (NSR), 2019 WL 4738941, at *11 (S.D.N.Y. 2019) (plaintiff must

identify a “specific municipal policy or custom that caused his injuries or provide any allegations

supporting a plausible inference of a pattern and practice through a failure to train or supervise.”)

(citing Zachary v. City of Newburgh, No. 13 CV 5737 VB, 2014 WL 1508705, at *5 (S.D.N.Y.

2014)). Plaintiff’s primary allegations are that the Town denied him a peddler’s license in 2018,

that Chief Hazard wrote a letter to the Town stating that Plaintiff’s presence along Route 32 was

an unsafe condition, and that Chief Hazard arrested Plaintiff for giving away corn and produce

despite Plaintiff possessing a valid state issued peddler’s license. While Plaintiff’s allegations

appears to focus on the conduct of Chief Hazard, he does not allege that the Defendant Town had

a “policy, custom, or widespread practice” of denying peddler’s permits to other peddlers in the

Town or any other “policy, custom, or widespread practice” that resulted in the denial Plaintiff’s

application for a Town license. Merely identifying a single instance of alleged misconduct is

insufficient to establish a custom or policy by the municipality. See Newton v. City of New York,

566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008).

Similarly, the Town’s denial of Plaintiff’s peddler’s license application, coupled with the

knowledge that Plaintiff had sold produce within the Town limits for over twenty years, his arrest,

and the Town’s purported selectively targeting of Plaintiff, which includes the Town’s

commencement of a legal action against him on the theory that he was a public nuisance, and the

subsequent enactment of Local Law # 4 of 2018, which in essence repealed the exemption for

those holding a New York State peddler’s license, does not amount to a policy, custom or practice

under Monell. See Buari v. City of New York, 530 F. Supp. 3d 356, 398 (S.D.N.Y. 2021) (internal

citations omitted) (A policy or “custom” can be demonstrated in a variety of ways including that

an act was performed pursuant to a custom was formally approved by an appropriate

decisionmaker but is so widespread as to have the force of law). To demonstrate the existence of

a de facto policy or custom through a widespread practice, a plaintiff must allege that the

policymaker was aware of a subordinate’s unconstitutional actions, and consciously chose to

ignore them, effectively sanctioning or approving the conduct. See Amnesty America v. Town of

West Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (citing Sorlucco v. New York City Police Dept.,

971 F.2d 864, 870–71). Plaintiff’s allegations are insufficient to plausibly allege an official Town

policy or practice as defined under Monell. For all the reasons given, to the extent Plaintiff’s

complaint seeks to assert a Monell claim, such claims are deemed dismissed.

B. Claims Against Chief Hazard in his Official Capacity

Liberally interpreting the complaint, Plaintiff asserts claims against Chief Hazard in his

official capacity. Suits against state officials in their official capacities “generally represent only

another way of pleading an action against an entity of which an officer is an agent.” Hafer v. Melo,

502 U.S. 21, 25 (1991) (internal quotation marks omitted). Generally, “[b]ecause the real party in

interest in an official-capacity suit is the governmental entity and not the named official, the

entity’s policy or custom must have played a part in the violation of federal law.” Id. at 25 (internal

quotation marks omitted); see also Brown v. City of Oneonta, New York, 235 F.3d 769, 70 n.2 (2d

Cir. 2000). Here, Plaintiff alleges all the acts of the Chief Hazard were done by him under his

authority as Police Chief of the Town of Cornwall. (Compl. ¶ 5.) As previously discussed in the

Monell liability section supra, since Plaintiff fails to plausibly allege or identify a broader policy

or custom that caused, or even played a role, in the deprivation of his constitutional rights, such

allegations must be dismissed.

C. Fourth Amendment Violations

Plaintiff claims that he was unlawfully seized and detained in violation of his Fourth

Amendment rights when he was falsely arrested without probable cause and subjected to

unreasonable search and seizure. (Compl. ¶¶ 58–61.) Plaintiff asserts that such conduct amounts

to false arrest and his subsequent detention, false imprisonment.4 The Fourth Amendment protects

citizens’ “persons, houses, papers, and effects, against unreasonable searches and seizures . . . and

no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend.

IV. When analyzing a claim under Section 1983 for false arrest and imprisonment, courts

“generally looked to the law of the state in which the arrest occurred.” Russo v. City of Bridgeport,

479 F.3d 196, 203 (2d Cir. 2007). Plaintiff was arrested in the Town of Cornwall in the State of

New York, so the Court will look to New York state law to analyze these claims.

“A false imprisonment claim under New York law is identical to a false arrest claim.”

Rebenstorf v. City of N.Y., No. 15 Civ. 5784(BMC), 2015 WL 6438765, at *2 (E.D.N.Y. Oct. 21,

2015) (citing Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991)). To state a claim under Section 1983

4 Plaintiff’s claims for false arrest and imprisonment are the second and third causes of action pled in the complaint.

for false arrest or false imprisonment, a plaintiff must allege that “(1) the defendant intended to

confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to

the confinement, and (4) the confinement was not otherwise privileged.” See Ackerson v. City of

White Plains, 702 F.3d 15, 19 (2d Cir. 2012). In other words, “[t]o establish a claim for false arrest

under Section 1983, a plaintiff must show that ‘the defendant intentionally confined him without

his consent and without justification.’” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)

(quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).

“The existence of probable cause to arrest constitutes [legal] justification and ‘is a complete

defense to an action for false arrest,’ whether that action is brought under state law or under

§ 1983.” Weyant, 101 F.3d at 852 (citation omitted); see also Kent v. Katz, 312 F.3d 568, 573 (2d

Cir. 2002) (“A § 1983 claim of false arrest based on the Fourth Amendment right to be free from

unreasonable seizures may not be maintained if there was probable cause for the arrest.”). Probable

cause “requires an officer to have ‘knowledge or reasonably trustworthy information sufficient to

warrant a person of reasonable caution in the belief that an offense has been committed by the

person to be arrested.’” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (quoting Martinez

v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)). Probable cause may exist “even where it is based

on mistaken information, so long as the arresting officer acted reasonably and in good faith in

relying on that information.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (citation

omitted).

Once an officer possesses facts sufficient to establish probable cause, he is “neither

required nor allowed to sit as prosecutor, judge or jury”; rather, his “function is to apprehend those

suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence.”

Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989); see also Panetta v. Crowley, 460 F.3d at

395–96 (2d Cir. 2006) (citation omitted). “It is well-established that a law enforcement official has

probable cause to arrest if he received his information from some person, normally the putative

victim or eyewitness.” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (quoting

Miroslavsky v. AES Eng’g Soc’y, 808 F. Supp. 351, 355 (S.D.N.Y. 1992)). Where the facts

surrounding the arrest are uncontroverted, the determination as to whether probable cause existed

may be made by the Court as a matter of law. Weyant, 101 F.3d at 852.

Plaintiff’s allegations support a finding that Chief Hazard intended to confine Plaintiff, that

Plaintiff was conscious of his confinement, that Plaintiff did not consent, and that the confinement

was not otherwise privilege. Though Defendants contend that Chief Hazard had probable cause to

arrest, a review of the Complaint indicates otherwise. Plaintiff alleges that prior to his arrest he

sold corn and produce in the Town for more than twenty years. An inference that it was common

knowledge. While Plaintiff admits that sometime prior to his arrest he was denied a Town peddler’s

license, he also alleges that at the time of his arrest he possessed a valid state license. The state

license provided him with the lifetime right to peddle, vend, and sell goods or merchandise on the

highways. The Town Code, Section 1l1-4, exempted individuals with a state license, like Plaintiff,

from the requirement of obtaining a Town license. It was only after Plaintiff’s arrest that the

Cornwall Town Board enacted Local Law #4 of 2018, which eliminated the state license

exemption. Relevant to the Court’s determination is Plaintiff’s assertion that Chief Hazard was

aware of his state peddler’s license. Thus, it cannot be said that Chief Hazard, as the lead law

enforcement officer of the Town of Cornwall, responsible for of enforcement of all Town

ordinance, including the local peddler’s license ordinance, having knowledge that Plaintiff

possessed a state permit, which exempt him from obtaining a local license, had probable cause to

arrest.5 Accordingly, the Court finds that Plaintiff has sufficiently pled alleged a Fourth

Amendment violation for false arrest and imprisonment in his complaint as against Chief Hazard

in his individual capacity.6

D. Fourteenth Amendment Equal Protection Claim

In his complaint, Plaintiff seeks to assert an Equal Protection claim.7 (Compl. ¶¶ 62, 63.)

The Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection

Clause ‘is essentially a direction that all persons similarly situated should be treated alike.’”

Brown, 221 F.3d at 337 (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

(1985)). “To state a violation of the Equal Protection Clause, a plaintiff must allege ‘that he [or

she] was treated differently than others similarly situated as a result of intentional or purposeful

discrimination.’” Lopez v. Cipolini, 136 F. Supp. 3d 570, 590–91 (S.D.N.Y. 2015) (quoting

Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005)).

The Equal Protection Clause prohibits the selective enforcement or prosecution by a state

official pursuant to a lawful regulation. See LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir. 1980).

The failure to prosecute other offenders for similar conduct is not a basis for a finding of denial of

equal protection.” Id. (citing United States v. Rickenbacker, 309 F.2d 462, 464 (1962)). To state a

plausible equal protection claim based upon selective enforcement, a plaintiff must allege establish

that: (1) the person, compared with others similarly situated, was selectively treated, and (2) the

selective treatment was motivated by an intention to discriminate on the basis of impermissible

5 Plaintiff attempts to draw a distinction between giving away the corn versus selling the corn. The Court, however,

deems such distinction irrelevant.

6 In paragraph 5 of the complaint, Plaintiff asserts that Chief Hazard is being sued in his official and individual

capacity.

7 Plaintiff’s Equal Protection claim is the fourth cause of action asserted in the complaint.

considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or

by a malicious or bad faith intent to injure the person. See Zahra v. Town of Southold, 48 F.3d 674,

683 (2d Cir.1995) (internal citations omitted)

A review of the complaint, which is the operative document, reveals that Plaintiff’s

allegations are deficient. Plaintiff fails to allege that he was adversely treated compared to others

similarly situated and does not plead discriminatory intent or impact. Though Plaintiff asserts that

“[t]he Town . . . admitted in open Court that it was selectively targeting [Plaintiff] while permitting

the same alleged traffic hazard to exist with Short Line customers entering and exiting the same

parking lot” (Compl. ¶¶ 35–36, 38–39), such allegations do not constitute “similarly situated

comparators.” In a selective enforcement claim, a plaintiff must identify comparators whom a

prudent person would think were roughly equivalent but is not required show an exact correlation

between themselves and the comparators. See AYDM Assocs., LLC v. Town of Pamelia, 205 F.

Supp. 3d 252, 265 (N.D.N.Y. 2016), aff’d, 692 F. App’x 78 (2d Cir. 2017) (citing Mosdos Chofetz

Chaim, Inc. v. Village of Wesley Hills, 815 F. Supp. 2d 679, 696 (S.D.N.Y. 2011). Plaintiff also

fails to allege “selective treatment was based on impermissible considerations, such as race,

religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith

intent to injure a person.” Giordano v. City of New York, 274 F.3d 740, 750–51 (2d Cir. 2001)

(quoting Lisa’s Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999)). Mere

conclusory assertions are insufficient.

To the extent Plaintiff attempts to asserts a “class-of-one” claim under the Fourteenth

Amendment, such claim also fails. (Pl. Opp. at 11.) In “class-of-one” equal protection claim,

plaintiffs must show that: (1) no rational person could regard the circumstances of the plaintiff as

differing from those of a comparator to a degree that would justify the differential treatment based

on a legitimate government policy, and (2) the similarity in circumstances and difference in

treatment are sufficient to exclude the possibility that the defendants acted based on a mistake.

Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). To establish a “class-of-one” equal

protection claim, a plaintiff must show an “extremely high degree of similarity between themselves

and the persons to whom they compare themselves.” Ruston v. Town Bd. for Town of Skaneateles,

610 F.3d 55, 59 (2d Cir. 2010) (quoting Clubside, Inc. v. Valentin, 468 F.3d at 159 (2d Cir. 2006)).

In order to succeed on a class-of-one claim, a plaintiff must establish that (i) 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 (ii) the

similarity in circumstances and difference in treatment are sufficient to exclude the possibility that

the defendants acted on the basis of a mistake.” Rusto v. Town Bd. for Town of Skaneateles, 610

F.3d at 59 (quoting Clubside, Inc., 468 F.3d at 159).

Here, Plaintiff again does not allege treatment different than those “similarly situated” or

even identify similarly situated individuals. Although the complaint alleges that Plaintiff was

singled out, under a class-of-one theory a plaintiffs must allege an extremely high degree of

similarity between themselves and the persons to whom they compare themselves. No such

showing is alleged or made in the complaint. Accordingly, Defendants’ motion to dismiss

Plaintiff’s equal protection claim is granted and the claim is dismissed without prejudice.

E. Fourteenth Amendment Procedural Due Process Claim

In his complaint, Plaintiff attempts to assert a deprivation of property right(s) without due

process.8 The complaint, however, fails to specify whether such deprivation concerns the Town’s

denial of the peddler’s license or the alleged unlawful taking of his vehicle following his arrest.

8 Plaintiff’s deprivation of property right claim is the fifth cause of action asserted.

To assert a due process claim, a plaintiff must allege he possessed a protected liberty or property

interest, and that he was deprived of that interest without due process.” See McMenemy v. City of

Rochester, 241 F.3d 279, 286 (2d Cir. 2001) (internal citations omitted); Colson v. New York

Police Dep’t, No. 13-CV-5394 JG, 2015 WL 64688, at *9 (E.D.N.Y. Jan. 5, 2015). The threshold

issue is whether the plaintiff has a property interest in the alleged deprivation which is protected

by the Constitution. See Gizzo v. Ben-Habib, 44 F. Supp. 3d 374, 381(S.D.N.Y. 2014) (citing

Morales v. New York, 22 F. Supp. 2d 256, 276 ( 2014)). Notably, a deprivation of liberty or

property through the conduct of a state employee whose acts are random and unauthorized,

however, does not constitute a procedural due process violation so long as the state provides a

meaningful remedy thereafter. See, e.g., Zinermon v. Burch, 494 U.S. 113, 130 (1990); Hudson v.

Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

Here, Plaintiff allegations suggest that he possessed a property interests conferred by the

Town’s Peddler’s license which he possessed from 2011 through 2017, which was later denied in

2018. Without determining whether Plaintiff in-fact had a property interest in the peddler’s license,

Plaintiff’s allegations are insufficient. Plaintiff does not allege the absence of or any inadequacy

in the process by which he could have challenged the denial of his peddler’s license application.

See Hawthorne by Hawthorne v. Cnty. of Putnam, 492 F. Supp. 3d 281, 304 (S.D.N.Y. 2020)

(dismissing procedural due process claim regarding impoundment of car where plaintiff “has not

alleged the absence or inadequacy of any post-deprivation hearing following the impoundment”)

(quoting Clynch v. Chapman, 285 F. Supp. 2d 213, 223 (D. Conn. 2003)). As Defendants assert in

support of their motion to dismiss, Plaintiff could have commenced a proceeding in state court,

pursuant to New York C.P.L.R. Article 78, challenging the Town’s denial. Similarly, to the extent

Plaintiff asserts a due process claims in regards to the unlawful seizure of his vehicle or as it relates

to his state license, he fails to alleged the absence or inadequacy of any post-deprivation process.

Accordingly, Defendants’ motion to dismiss Plaintiff’s procedural due process claim under the

Fourteenth Amendment is granted and this claim is dismissed without prejudice.

II. Qualified Immunity

Defendants contend that Chief Hazard is entitled to qualified immunity. (Defs. Mot. at 12.)

Qualified immunity is “a complete defense to false arrest claims.” Ackerson v. City of White Plains,

702 F.3d 15, 21 (2d Cir. 2012). The doctrine of qualified immunity shields government officials

acting in their official capacity from suits for damages unless their actions violate clearly

established rights of which an objectively reasonable official would have known. See Jones v.

Parmley, 465 F.3d 46, 55 (2d Cir. 2006). To be clearly established right, “[t]he contours of the

right must be sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

To be entitled to qualified immunity, an arresting officer need only have possessed

“arguable” probable cause, not actual probable cause. See Cerrone v. Brown, 246 F.3d 194, 202

(2d Cir. 2001). Arguable probable cause exists when “a reasonable police officer in the same

circumstances and possessing the same knowledge as the officer in question could have reasonably

believed that probable cause existed in the light of well-established law.” Id. (citing Lee v.

Sandberg, 136 F.3d 94, 102 (2d Cir.1997)).

The Court concludes that Chief Hazard is not entitled to qualified immunity. It is well

settled that an individual has a right to be free from unlawful seizure. U.S. Const., Fourth

Amendment. As alleged in the complaint, Chief Hazard arrested Plaintiff despite being informed

that Plaintiff possessed a state peddler’s license. As previously discussed, Chief Hazard lacked

probable cause to arrest. Plaintiff was not required to obtain a local peddler’s license because as

an individual with a state license he was exempt. At the time of Plaintiffs arrest, Chief Hazard

was the principal law enforcement officer, responsible for knowing and enforcing all local

ordinance, including the local peddler’s ordinance. Nor can it be said that Chief Hazard possessed

arguable probable upon being informed that Plaintiff possessed a state peddler’s permit.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part. Plaintiff shall have until October 24, 2022, to file an Amended Complaint in

accordance with this Opinion. If Plaintiff fails to timely file an Amended Complaint, those claims

dismissed without prejudice shall be deemed dismissed with prejudice. Defendants shall file have

until November 14, 2022, to file a responsive pleading.

The Clerk of Court is respectfully directed to terminate the motion at ECF No. 30.

Dated: September 30, 2022 SO ORDERED:

White Plains, New York

-NELSONS.ROMAN

United States District Judge

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