The Coalition of Landlords, Homeowners, and Merchants Inc. v. Suffolk County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

THE COALITION OF LANDLORDS,

HOMEOWNERS, AND MERCHANTS INC.,

and PAUL PALMIERI,

Plaintiffs,

- against –

SUFFOLK COUNTY, aka The COUNTY OF

SUFFOLK, GARY ZANELLI a/k/a RAYMOND

ZANELLI, individually and in his

capacity as a police officer,

RICCARDO MASCIO a/k/a RICK MASCIO, MEMORANDUM & ORDER

individually and in his capacity as

a police officer and sergeant, 24-CV-3323 (KAM)(LGD)

CHRISTOPHER INGWERSEN individually

and in his capacity as a police

officer and sergeant, of the Suffolk

County Police Department, JOHN/JANE

DOE 1-5 and any other unknown

agents, assigns and/or employees of

Suffolk County Police Department,

individually and in their capacity

of each as employees for the Suffolk

County Police Department, THE

SUFFOLK COUNTY POLICE DEPARTMENT,

STEVEN PALOUBIS, CHRISTOPHER

PALOUBIS, individually and in their

official capacities as officers of

S&A Neocronin Inc, Anthi New

Neocronin Inc and GERARD GLASS

individually and GERARD GLASS AND

ASSOCIATES, PC,

Defendants.

-----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

On May 4, 2024, Plaintiffs The Coalition of Landlords,

Homeowners, and Merchants Inc. (“Coalition”), and Paul Palmieri

(“Palmieri”) brought this action against Defendants Steven

Paloubis and Christopher Paloubis, (together, the “Paloubis

Defendants”); Gerard Glass, Esq., and the law firm of Gerard Glass

and Associates, P.C., (together, the “Glass Defendants;” and the

Paloubis Defendants and Glass Defendants together are referred to

herein as the “private actor Defendants” or “non-State

Defendants”); Suffolk County Police Officers Raymond Zanelli, Rick

Mascio, and Christopher Ingwersen (the “Police Officer

Defendants”); and Suffolk County along with the Suffolk County

Police Department. The Complaint alleged Constitutional claims,

namely violations of the First, Fourth, Fifth, Sixth, Eighth and

Fourteenth Amendments, as well as state law tort claims of false

imprisonment, trespass, and conversion, against the Defendants.

(ECF No. 1, Complaint (“Compl.”).)

On July 29, 2024, the Court Ordered Plaintiffs to Show Cause

why:

(1) Plaintiffs' claims against: (1) Steven Paloubis; (2)

Christopher Paloubis; (3) Gerard Glass; and (4) Gerard

Glass and Associates, PC; should not be dismissed for

lack of subject matter jurisdiction. Plaintiffs are both

New York citizens for purposes of diversity

jurisdiction, as are the four aforementioned defendants

therefore, diversity subject matter jurisdiction is not

present. See 28 U.S.C. § 1332(a). It is not clear to the

Court what other basis for jurisdiction exists regarding

the private actors named in the complaint. See

Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d

Cir. 2002) (explaining the limited set of circumstances

under which a private entity can be shown to be acting

in concert with a state actor).

and:

(2) the Suffolk County Police Department and Suffolk

County should not be dismissed as defendants, given

"[i]t is well settled that an entity such as the

Suffolk County Police Department is an 'administrative

arm' of the same municipal entity as Suffolk County

and thus lacks the capacity to be sued" and

"[m]unicipal governments, like Suffolk County, may be

sued only for unconstitutional or illegal policies,

not for the illegal acts of their employees." Carthew

v. County of Suffolk, 709 F. Supp. 2d 188, 195

(E.D.N.Y. 2010) (citations omitted).

(Docket Order dated July 29, 2024). Plaintiffs submitted a letter

response to the Court’s Order to Show Cause on August 23, 2024,

and also attached a proposed amended complaint and moved for leave

to amend. (ECF No. 23, Response to Order to Show Cause (“Pl.

Resp.”); ECF No. 24, Proposed Amended Complaint Redline (“Proposed

Amended Compl.”).)

Subsequently, on September 6, 2024, the Court held a combined

show cause hearing and pre-motion conference (regarding

Defendants’ anticipated motions to dismiss) to discuss Plaintiffs’

responses to the pre-motion letters and the Order to Show Cause.

(See Minute Entry dated September 6, 2024.) At the conference,

Plaintiffs’ counsel conceded that the claims set forth in the

original Complaint were not viable, and that there were no

remaining claims over which this Court had jurisdiction.

Furthermore, Plaintiffs’ counsel did not offer any additional

factual allegations outside of those set forth in the Complaint or

Proposed Amended Complaint that would justify further leave to

amend. Accordingly, for the reasons stated on the record at the

conference, as well as the reasons set forth below, the Court

dismisses Plaintiffs’ claims (1) against Steven Paloubis,

Christopher Paloubis, Gerard Glass, and Gerard Glass and

Associates, PC, for failure to state a claim and lack of subject

matter jurisdiction; (2) against Suffolk County and the Suffolk

County Police Department for failure to state a claim; and (3)

against Officers Gary Zanelli, Riccardo Mascio, and Christopher

Ingwersen for failure to state a claim. Plaintiffs’ motion for

leave to amend is further denied as futile as the amended complaint

submitted would not correct the infirmities discussed and conceded

by Plaintiffs’ counsel on the record at the conference, or as

described below.

BACKGROUND

I. Factual Background

Plaintiffs’ complaint arises out of an alleged self-help

eviction of Plaintiff Coalition conducted by the Paloubis

Defendants in May of 2021. (See generally Compl.) Plaintiff

Coalition is a New York corporation with a principal office in

Suffolk County, New York. (Id. ¶ 1.) Plaintiff Paul Palmieri is

a New York resident. (Id. ¶ 2.) Defendants Raymond Zanelli, Rick

Mascio, and Christopher Ingwersen are police officers with the

Suffolk County Police Department. (Id. ¶¶ 3-5.) The Paloubis

Defendants, previously Plaintiff Coalition’s landlord, are both

New York residents. (Id. ¶¶ 7-8.) Defendant Gerard Glass, Esq.,

is a New York resident, and Gerard Glass and Associates, PC does

business in Suffolk County, and according to the Division of

Corporations1, is a New York professional service corporation.

(Id. ¶¶ 11-12); see also Division of Corporations Entity

Information, https://apps.dos.ny.gov/publicInquiry/EntityDisplay

(last visited Sep. 6, 2024).

Plaintiffs had previously leased a space in an office building

at 28 East Main Street in Babylon, N.Y. since about 2001, and their

landlord was Defendant Steven Paloubis, who was assisted by his

son Christopher Paloubis. (Compl. ¶¶ 37, 40.) In the two years

before the May 2021 eviction of Plaintiffs, Plaintiffs made

complaints to the Suffolk County Police Department regarding

Steven Paloubis’s attempts to forcibly evict Plaintiffs by turning

off utilities, flooding the space, and other acts. (Id. ¶ 38.)

On May 5, 2021, Palmieri received a phone call from his secretary

who informed him that there were people in the Coalition’s office

removing items from the office. (Id. ¶¶ 44-45.) Palmieri

instructed his secretary to call the police, and Palmieri arrived

at the office, where he encountered Officer Zanelli. (Id. ¶¶ 46-

47.)

1 The Court may take judicial notice of Division of Corporations records. See

Haru Holding Corp. v. Haru Hana Sushi, Inc., No. 13-CV-7705 (RWS), 2016 WL

1070849, at *2 (S.D.N.Y. Mar. 15, 2016) (using public documents to take judicial

notice of defendant's business status).

Palmieri asked Officer Zanelli to arrest the Paloubis

Defendants “and the other people participating there for the

illegal eviction.” (Id. ¶ 48.) Although Plaintiff became aware

of the eviction on May 5, 2021, he “later found out” that the

eviction had “commenced on May 3, 2021.” (Id.) Officer Zanelli

stated that he had been at the property the day before, and

Christopher Paloubis had informed Officer Zanelli that he had a

warrant of eviction. (Id. ¶ 49.) Officer Zanelli stated to

Palmieri that he had not entered the property. (Id.) Palmieri

asked Officer Zanelli further questions, and Officer Zanelli

stated that “this was a civil matter” and was not his concern.

(Id. at ¶¶ 51-52.) Palmieri stated that he would like to enter

the property to retrieve some items, but Officer Zanelli “would

not allow [Palmieri] to enter the premises.” (Id. ¶ 53.) Palmieri

subsequently requested a supervisor’s presence. (Id.)

Subsequently, Police Sergeant Mascio (“Sergeant Mascio”)

arrived at the scene, and provided the same explanation to Palmieri

– because the eviction was a “civil issue and not a criminal issue”

the police would not intervene. (Id. ¶ 54.) Palmieri argued to

Sergeant Mascio that only the Sheriff could effectuate an eviction,

not a landlord, and that he was currently “in [c]ourt” with his

landlord regarding the matter, but “Sergeant Mascio did not change

his opinion.” (Id.) Palmieri also called Newsday and the State

Police to no avail. (Id.)

Palmieri called the Sheriff’s office, which confirmed that

their office had not executed the warrant of eviction, but Sergeant

Mascio and Officer Zanelli continued in their refusal to intervene.

(Id. ¶ 57.) Subsequently, at Palmieri’s request, Officer Zanelli

“escorted” him to the mailbox and observed as Palmieri opened the

mailbox and removed his mail. (Id. ¶ 58.) Palmieri also asked

for an envelope that was under the door to the office, and

Christopher Paloubis handed the envelope to Officer Zanelli, who

gave it to Palmieri. (Id. ¶ 59.) Sergeant Mascio subsequently

told Palmieri that he was going to report the incident as “an

illegal eviction taking place” but changed his position after

speaking to Gerard Glass, Esq., the Paloubis Defendants’ attorney

who was “handling the landlord-tenant action in the district

court.” (Id. ¶¶ 60-61.) Palmieri argued extensively with the

police officers to no avail. (Id. ¶¶ 62-64.)

On May 6, 2021, Palmieri filed a police report related to the

eviction and called the police precinct numerous times. (Id. ¶¶

65-67.) Palmieri subsequently submitted documents related to the

incident to Sergeant Ingwersen in the Crime Control section. (Id.

¶¶ 68-69.)

Plaintiffs allege in the complaint that it was the Defendants’

individual and collective, omission and commission of actions that

caused the Plaintiffs to suffer false imprisonment, loss of

liberty, illegal eviction, trespass, conversion, and other

violations of their rights. (Id. ¶¶ 77-131.) Plaintiffs also

allege that the Defendant police officers acted according to the

policies, practices and customs of the police department, which

led to the violation of Plaintiffs’ Constitutional rights. (Id.)

Plaintiffs seek a jury trial, compensatory damages, punitive

damages, and attorney’s fees. (Id. p. 30.)

As discussed supra, Plaintiffs included a proposed amended

complaint along with a motion for leave to amend as part of their

response to the Court’s Order to Show Cause. (See generally

Proposed Amended Compl.) Plaintiffs’ Proposed Amended Complaint

additionally alleges that Defendant Gerard Glass, Esq., was acting

“in his capacity of Village of Babylon N.Y. prosecutor and

attorney” in aiding Steven Paloubis and Christopher Paloubis but

does not offer any facts in support of this statement. (Id. ¶¶

41-42, 68.) The Proposed Amended Complaint further alleges that

Palmieri “overheard the police, the Paloubis, and Glass co-

defendants” making several allegedly racist statements about how

“getting rid of the Coalition” would allow them to “eat their pizza

together” in the village without minorities present. (Id. ¶ 69.)

Plaintiffs’ Proposed Amended Complaint further attempts to clarify

that state claims previously brought in state court against the

Paloubis Defendants and Gerard Glass, Esq., “did not include the

Constitutional violations under 1983 or 1985, 1988 etc.” (Id. ¶

89.) Plaintiffs’ Proposed Amended Complaint also includes

numerous conclusory statements without supporting facts that all

Defendants colluded and conspired together, and that the private

actor Defendants were state actors. (See, e.g., id. ¶¶ 42, 43,

50.)

II. Procedural Background

Plaintiffs initially filed the instant action on May 4, 2024,

but did not begin to serve the Defendants until mid-July 2024.

(See ECF No. 16, Summons Returned Executed.) Subsequently, the

Glass Defendants appeared on July 25, 2024, and requested a pre-

motion conference in anticipation of filing a motion to dismiss,

and the Paloubis Defendants similarly appeared and requested a

pre-motion conference on July 26, 2024. (ECF Nos. 10, 13.) The

undersigned was subsequently assigned to the case on July 29, 2024,

as Magistrate Judge Dunst had previously been presiding over the

matter. As discussed supra, the Court issued an Order to Show

Cause on July 29, 2024, and also granted the pending requests by

the Glass and Paloubis Defendants for pre-motion conferences.

Counsel appeared on behalf of the Suffolk County Defendants,

including the Police Officer Defendants, on July 30, 2024, and

requested a pre-motion conference on August 3, 2024, also in

anticipation of filing a motion to dismiss, which the Court granted

and scheduled for the same date as the previous Defendants’ pre-

motion conference. (ECF Nos. 16, 17.) Plaintiffs responded to

the pre-motion conference requests and the Order to Show Cause on

August 23, 2024, as discussed supra.

The combined pre-motion conference and show cause hearing was

held on September 6, 2024. At the conference, Plaintiffs’ counsel

made several concessions regarding the infirmities in the

complaint.2 Plaintiffs’ counsel agreed that there were no facts

alleged in the complaint to suggest that the parties in the instant

action are diverse, and therefore he conceded that diversity

jurisdiction did not exist. Regarding the Glass Defendants,

Plaintiffs’ counsel conceded that no alleged facts suggest that

the Glass Defendants had any role in the alleged constitutional

violations, notwithstanding Gerard Glass's occasional role as a

town attorney. Plaintiffs’ counsel also agreed that the Glass

Defendants are not state actors and that Plaintiffs' negligence

claims against the Glass Defendants were barred by res judicata

and collateral estoppel. Accordingly, Plaintiffs’ counsel agreed

to dismiss the claims against the Glass Defendants in the original

complaint.

Next, regarding the Paloubis Defendants, Plaintiffs’ counsel

agreed to dismiss the federal claims against the Paloubis

2 As noted in the Court’s Minute Entry summarizing the conference, Plaintiffs’

counsel of record, Judith N. Berger, Esq., did not appear, an absence that was

both unexplained and unexcused. (See Minute Entry dated September 6, 2024.)

Instead, Anthony M. Vassallo, Esq., entered a notice of appearance on behalf of

Plaintiffs and appeared at the conference, explaining that he was of counsel to

Ms. Berger. Mr. Vassallo represented to the court that he was familiar with

the procedural and factual background of the case and was prepared to proceed

with the conference.

Defendants because they were not state actors. Finally, regarding

the Suffolk County Defendants, Plaintiffs’ counsel conceded that

the Suffolk County Police Department was not a proper party, and

that Suffolk County itself was the correct defendant, and agreed

to dismiss the Suffolk County Police Department as a Defendant.

Plaintiffs’ counsel also conceded that no county policy or practice

that violated Plaintiffs’ constitutional rights was alleged in the

complaint, and that, therefore, a viable Monell claim did not exist

against Suffolk County itself, which he also agreed to dismiss as

a defendant. Finally, Plaintiffs’ counsel agreed that, based on

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) and Barrett v.

Harwood, 189 F.3d 297 (2d Cir. 1999), there were no allegations

stating a viable claim against the individual police officers based

on the self-help eviction of Plaintiffs' office space, and the

officers’ mere presence during the eviction to prevent a breach of

the peace. Accordingly, Plaintiffs’ counsel agreed that there

were no viable claims to sustain the complaint.

Based on the concessions made by Plaintiffs’ counsel, the

Court concluded that no federal claims over which this Court has

jurisdiction remained in the original complaint, declined to

exercise supplemental jurisdiction over any remaining state law

claims, and dismissed the complaint. The Court also ruled that

although leave to amend should freely be granted, the Proposed

Amended Complaint filed previously by Plaintiffs’ counsel did not

correct the deficiencies discussed at the conference, and thus

granting leave to amend would be futile, and the amendment was

denied.

LEGAL STANDARD

Federal courts “have an independent obligation to determine

whether subject-matter jurisdiction exists, even in the absence of

a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S.

500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 583 (1999)). When a federal court concludes that it lacks

subject-matter jurisdiction, the court must dismiss the complaint

in its entirety. Id., see also Fed. R. Civ. P. 12(h)(3).

Furthermore, “[a] district court may dismiss an action sua sponte

for failure to state a claim so long as the plaintiff is given

notice of the grounds for dismissal and an opportunity to be

heard.” Grant v. County of Erie, 542 F. App'x 21, 24 (2d Cir.

2013) (citing Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991)).

“Additionally, even if a plaintiff has paid the filing fee, a

district court may dismiss the case, sua sponte, if it determines

that the action is frivolous.” Chapman v. United States Dep't of

Just., 558 F. Supp. 3d 45, 49 (E.D.N.Y. 2021) (citing Fitzgerald

v. First East Seventh Street Tenants Corp., 221 F.3d 362, 363-64

(2d Cir. 2000). An action is frivolous as a matter of law when,

inter alia, it is “based on an indisputably meritless legal

theory”– that is, when it “lacks an arguable basis in law . . .,

or [when] a dispositive defense clearly exists on the face of the

complaint.” Livingston v. Adirondack Beverage Co., 141 F.3d 434,

473 (2d Cir. 1998) (citations omitted).

I. Subject Matter Jurisdiction

Federal court jurisdiction exists only when a “federal

question” is presented, or when there is “diversity of citizenship”

between the plaintiffs and defendants and the amount in controversy

exceeds $75,000.00. 28 U.S.C. §§ 1331, 1332. Subject matter

jurisdiction based on 28 U.S.C. § 1332 “requires ‘complete

diversity,’ i.e. all plaintiffs must be citizens of states diverse

from those of all defendants.” Pa. Pub. Sch. Emps.' Ret. Sys. v.

Morgan Stanley & Co., 772 F.3d 111, 117–18 (2d Cir. 2014).

A case may also be filed in federal court pursuant to 28

U.S.C. § 1331 “‘when a federal question is presented on the face

of the plaintiff’s properly pleaded complaint.’” Vera v. Saks &

Co., 335 F.3d 109, 113 (2d Cir. 2003) (quoting Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987)). A well-pleaded complaint may

raise a federal question either by (1) asserting a federal cause

of action, or (2) presenting state claims that “‘necessarily raise

a stated federal issue, actually disputed and substantial, which

a federal forum may entertain without disturbing any

congressionally approved balance of federal and state judicial

responsibilities.’” Broder v. Cablevision Sys. Corp., 418 F.3d

187, 194 (2d Cir. 2005) (quoting Grable & Sons Metal Prods. v.

Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005)).

II. Failure to State a Claim

To survive a motion to dismiss under Rule 12(b)(6),

“a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citation

omitted). Although “detailed factual allegations” are not

required, “[a] pleading that offers labels or conclusions or a

formulaic recitation of the elements of a cause of action will not

do.” Id. (internal quotation marks and citation omitted).

III. Leave to Amend

Under Rule 15(a) of the Federal Rules of Civil Procedure,

“[a] party may amend its pleading once as a matter of course no

later than . . . 21 days after serving it, or . . . if the pleading

is one to which a responsive pleading is required, 21 days after

service of a responsive pleading or 21 days after service of a

motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.

R. Civ. P. 15(a)(1). “In all other cases, a party may amend its

pleading only with the opposing party's written consent or the

court's leave. The court should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a)(2). The Second Circuit has

stated that “[t]his permissive standard is consistent with our

strong preference for resolving disputes on the merits.” Williams

v. Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (internal

quotation marks and citation omitted).

Under Rule 15, leave to amend should be given “absent evidence

of undue delay, bad faith or dilatory motive on the part of the

movant, undue prejudice to the opposing party, or futility.”

Monahan v. New York City Dep't of Corrs., 214 F.3d 275, 283 (2d

Cir. 2000). The touchstone for determining futility is whether

the proposed amendment would survive a motion to dismiss under

Federal Rule of Civil Procedure 12(b). See IBEW Local Union No.

58 Pension Tr. Fund & Annuity Fund v. Royal Bank of Scotland Grp.,

783 F.3d 383, 389 (2d Cir. 2015).

DISCUSSION

Plaintiffs argued in their response to the Order to Show Cause

that the Court should not dismiss the complaints against the

private actor Defendants because (1) Gerard Glass also serves as

a village attorney; and (2) the remaining private actor Defendants

“became state actors” when they “conspired” and “colluded” with

the police officer Defendants. (Pl. Resp. 4-10.) Plaintiffs did

not address the Court’s Order to Show Cause regarding Suffolk

County and the Suffolk County Police Department directly, but their

amended complaint included several paragraphs devoted to a 2014

Settlement Agreement with the United States Department of Justice

regarding practices of the Suffolk County Police Department.

(Proposed Amended Compl. ¶¶ 103-05.) Subsequent to their response

to the Order to Show Cause, Plaintiffs’ counsel made several

concessions at the September 6, 2024, conference, ultimately

acknowledging that the Complaint did not set forth any viable

federal causes of action.

The Court finds that diversity jurisdiction is not present in

the instant action, as all parties are citizens of New York. The

Court further finds that Plaintiffs’ complaint fails to allege any

facts suggesting any state action that deprived Plaintiffs of their

Constitutional rights. In the absence of diversity jurisdiction,

the Court lacks original jurisdiction over Plaintiffs’ state law

claims, and in the absence of federal claims, the Court declines

to exercise supplemental jurisdiction over Plaintiffs’ state law

claims. Based on these findings, the Court accordingly dismisses

Plaintiffs’ complaint in its entirety. Moreover, because the

Plaintiffs’ Proposed Amended Complaint fails to cure the

aforementioned deficiencies, the Court finds that amendment would

be futile, and declines to grant leave to amend.

I. Diversity Jurisdiction

Although the Complaint alleges that this Court may exercise

diversity jurisdiction over this matter “as the amount of the

controversy exceeds $75,000,” Plaintiffs ignore the central

requirement of the statute – diversity of citizenship between the

parties. (Compl. ¶ 24.) “Federal courts only have diversity

jurisdiction when there is complete diversity between the parties—

that is, when all plaintiffs are citizens of different states from

all defendants.” Battaglia v. Shore Parkway Owner LLC, 249 F.

Supp. 3d 668, 670 (E.D.N.Y. 2017) (citing 28 U.S.C. § 1332; Lincoln

Prop. Co. v. Roche, 546 U.S. 81, 89 (2005)). “This means that if

any plaintiff is a citizen of the same state as any defendant,

complete diversity does not exist, and diversity jurisdiction is

lacking.” Id.

Here, both Plaintiffs are citizens of New York, and every

Defendant is also a citizen of New York. (See Compl. ¶¶ 1-12.)

As such, even minimal diversity between the parties is lacking,

let alone complete diversity. In the absence of complete

diversity, this Court is unable to exercise diversity jurisdiction

over this dispute. See Pa. Pub. Sch. Emps’ Ret. Sys. v. Morgan

Stanley & Co., 772 F.3d 111, 117-18 (2d Cir. 2014) (“Subject matter

jurisdiction based on 28 U.S.C. § 1332 . . . requires ‘complete

diversity,’ i.e. all plaintiffs must be citizens of states diverse

from those of all defendants.”). Therefore, the only other basis

for this Court to assert jurisdiction over the instant case would

be the presence of a claim “arising under the Constitution, laws,

or treaties of the United States.” 28 U.S.C. § 1331. Accordingly,

the Court will proceed to examine the viability of Plaintiffs’

claims that are alleged to arise under 42 U.S.C. § 1983.

II. State Actor for Purposes of 42 U.S.C. § 1983

Although it is not clearly specified, Plaintiffs’ first,

second, third, and fifth causes of action against appear to arise

under 42 U.S.C. § 1983, and allege violations of Plaintiffs’ First,

Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment

rights. (Compl. ¶¶ 13, 25, 77-106, 111-26.)

“In order to state a claim under § 1983, a plaintiff must

allege that he was injured by either a state actor or a private

party acting under color of state law.” Ciambriello v. County of

Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (citing Spear v. Town of

West Hartford, 954 F.2d 63, 68 (2d Cir. 1992)). “Because the

United States Constitution regulates only the Government, not

private parties, a litigant claiming that his constitutional

rights have been violated must first establish that the challenged

conduct constitutes ‘state action.’” United States v. Int'l Bhd.

of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 941 F.2d

1292, 1295–96 (2d Cir. 1991) (citing Blum v. Yaretsky, 457 U.S.

991, 1002 (1982)). Plaintiffs make no allegations that the

Paloubis Defendants are state actors. Rather, in the original

Complaint, Plaintiffs alleges that the Paloubis Defendants were

“aided and abetted by [the Police Officer Defendants].” (Compl.

¶ 40.) Subsequently, in the Proposed Amended Complaint, Plaintiff

alleged in conclusory fashion and without specific facts that the

Paloubis Defendants acted under color of state law by conspiring

with the Suffolk County police officers. (Proposed Amended Compl.

¶ 43.) Plaintiffs’ negligible and deficient conspiracy

allegations are as follows:

By the individual Co-Defendants self-executing and

enforcing a warrant of the District Court as was told to

Officer Zanelli on May 3, 2021, May 4, 2021, all the Co-

Defendants became state actors with the police to

enforce a state act on May 5th and 6th with the aid,

encouragement, colluding, conspiring with the police.

(Id.) Plaintiffs’ conclusory allegations that the enforcement of

a District Court warrant by private actors in the presence of

police officers who were present to ensure peace and order, neither

transforms the private actors into state actors, nor states an

adequate conspiracy claim. See, e.g., Ciambriello, 292 F.3d at

324 (“A merely conclusory allegation that a private entity acted

in concert with a state actor does not suffice to state a § 1983

claim against the private entity.”); Brewster v. Nassau County,

349 F. Supp. 2d 540, 547 (E.D.N.Y. 2004) (“‘A complaint containing

only conclusory, vague, or general allegations of conspiracy to

deprive a person of constitutional rights cannot withstand a motion

to dismiss.’” (quoting Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.

1983)).

Here, the crux of Plaintiffs’ claims is that the Paloubis

Defendants, who had sought legal counsel from the Glass Defendants,

were undertaking an illegal self-help eviction, and the Police

Officer Defendants were present but took no action to intervene or

prevent the eviction from taking place. The Supreme Court has

held that a state actor's mere inaction or acquiescence in private

allegedly wrongful conduct does not convert that private conduct

into state action. Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

164–66 (1978) (stating that “a State is responsible for the . . .

act of a private party when the State, by its law, has compelled

the act” and that the Supreme Court “has never held that a State's

mere acquiescence in a private action converts that action into

that of the State”).

The conduct of the police officers in the instant case is

analogous to the circumstances considered by the Second Circuit in

Barrett v. Harwood, 189 F.3d 297, 303 (2d Cir. 1999). In that

case, a private individual engaged another private actor to assist

with the repossession of a truck owned by the plaintiffs. Id. at

299. The private actors, both of whom were named as defendants,

took steps to prepare for the repossession by contacting the

Village Police Department to “request that a police officer be

dispatched to the scene where [the private actor] planned to

repossess the vehicle.” Id. A police officer was subsequently

ordered to the scene in anticipation of a breach of the peace.

Id. The plaintiff subsequently arrived at the scene and asked

what was going on, and the police officer informed him that the

individual was repossessing his truck. Id. The plaintiff objected

and his wife brought documents purportedly showing ownership of

the truck, but the police officer informed the plaintiff and his

wife that the incident was “a civil matter” in which the police

could not get involved. Id. Plaintiff subsequently struck the

defendant that was effectuating the repossession, and the police

officer warned Plaintiff that “If you start any trouble here,

you'll be going in the back seat of my car. Do you understand me,

mister?” Id. Plaintiff then handed the keys to the truck to the

individual repossessing it, stating he did so due to the “officer’s

threat of arrest.” Id. at 300.

The Second Circuit found, as the district court previously

had, that the police officer’s “actions amounted to no more than

the carrying out of his duty to prevent violence in the event of

a breach of the peace and that there was no state action to

facilitate the repossession.” Id. at 303. The Court finds the

situation in Barrett to be closely analogous to the instant case.

As in Barrett, the police officers at the scene of the

eviction explained to Palmieri that the self-help eviction of his

office space was a civil matter in which they would not get

involved. (Proposed Amended Compl. ¶ 59.) The police officers

did not allow Palmieri to enter the premises while the eviction

was ongoing, similar to the conduct of the police officer in

Barrett who sought to prevent a physical confrontation between the

individual repossessing the truck and the plaintiff in that case.

(Id. ¶ 60.) When Palmieri asked to retrieve his mail, and asked

for a document from the office, the police officers on the scene

coordinated with Steven and Christopher Paloubis to allow Palmieri

to retrieve the documents without incident. (Id. ¶¶ 65-66.)

Plaintiff alleges that the police officers told him “that he was

not free to go” and leave the scene, but such an action would in

no way facilitate the ongoing eviction by the private actors.3

(Id. ¶¶ 67-68.)

Plaintiff alleges that Defendant Glass used “his status and

position as the Village of Babylon and Village of Lindhurst

attorney and prosecutor” to “keep [Palmieri] detained” and

convince the police officers to “reverse their decision to treat

the eviction as a crime,” but these conclusory allegations, which

are not supported by any factual statements as to what was actually

said or done by Defendant Glass, do not convert Glass’s acts as an

attorney for the Paloubis landlords during the self-help eviction

into state action. (Id. ¶ 68.)

In conclusion, the Court finds that the police officers’

presence at the eviction did not convert the non-State Defendants’

3 The Court also notes that Plaintiffs’ pleadings are inconsistent with one

another, as the original Complaint alleges that Officer Zanelli told Plaintiff

Palmieri he “was free to go” but told him to “wait” while the police spoke to

the Paloubis Defendants and Gerard Glass, Esq. (Compl. ¶¶ 60-61.) The Amended

Complaint changes Palmieri’s allegations regarding this interaction to instead

allege Officer Zanelli told Plaintiff Palmieri that “he was not free to go.”

(Proposed Amended Compl. ¶¶ 67-68.)

acts from a private self-help eviction into state action.

Accordingly, the non-State Defendants cannot be considered state

actors for purposes of 42 U.S.C. § 1983. In the absence of

Plaintiffs’ 42 U.S.C. § 1983 claims against the non-State

Defendants, the Court declines to exercise supplemental

jurisdiction over any of Plaintiffs’ state law claims against the

non-State Defendants.

III. Supplemental Jurisdiction

“[A] district court ‘may decline to exercise supplemental

jurisdiction’ if it ‘has dismissed all claims over which it has

original jurisdiction.’” Kolari v. New York-Presbyterian Hosp.,

455 F.3d 118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)).

“Once a district court's discretion is triggered under §

1367(c)(3), it balances the traditional ‘values of judicial

economy, convenience, fairness, and comity’ in deciding whether to

exercise jurisdiction.” Id. (citing Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 (1988)). Weighing the values of judicial

economy, convenience, fairness, and comity, the Court finds no

reason to exercise supplemental jurisdiction over Plaintiffs’

remaining claims against the non-State Defendants, which are

dismissed without prejudice to their being refiled in state court.

This matter is in its nascent stage, and no party alleges that New

York state courts in Suffolk County would be unable to adjudicate

a matter which is, at its heart, an allegedly unlawful eviction

case. Accordingly, Plaintiffs’ state law claims against the

private actor Defendants,4 specifically Steven Paloubis,

Christopher Paloubis, Gerard Glass, Esq., and Gerard Glass and

Associates, P.C., are dismissed without prejudice to their being

refiled in state court.

IV. Claims against Suffolk County and the Suffolk County Police

Department

In the Order to Show Cause dated July 29, 2024, this Court

noted that "[i]t is well settled that an entity such as the Suffolk

County Police Department is an 'administrative arm' of the same

municipal entity as Suffolk County and thus lacks the capacity to

be sued" and "[m]unicipal governments, like Suffolk County, may be

sued only for unconstitutional or illegal policies, not for the

illegal acts of their employees." Carthew v. County of Suffolk,

709 F. Supp. 2d 188, 195 (E.D.N.Y. 2010) (citations omitted).

Plaintiffs did not respond to this specific aspect of the

Show Cause order that the Suffolk County Police Department lacks

the capacity to be sued, nor did Plaintiffs offer any case law to

the contrary. Because the Suffolk County Police Department does

not have a legal identity separate and apart from Suffolk County,

4 The Court notes that Plaintiffs’ counsel conceded at the September 6, 2024,

Conference that the state law claims against the Glass Defendants were barred

by res judicata or collateral estoppel, but in the absence of the underlying

state court decision, the Court is unable to determine whether those claims

are, in fact, barred by either doctrine and therefore subject to dismissal with

prejudice. Rather than retaining supplemental jurisdiction to make such a

determination, the Court instead dismisses Plaintiffs’ claims against the Glass

Defendants without prejudice, confident that New York state courts will be able

to appropriately apply either doctrine if appropriate.

the Court dismisses the Suffolk County Police Department as a

defendant in this case. See Razzano v. County of Nassau, 599 F.

Supp. 2d 345, 351 (E.D.N.Y. 2009) (“under New York law, departments

that are merely administrative arms of a municipality do not have

a legal identity separate and apart from the municipality and,

therefore, cannot sue or be sued” (quoting Davis v. Lynbrook Police

Dept., 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002))).

Plaintiffs likewise did not offer any arguments in their Show

Cause response explaining what municipal policy or custom was

implicated by the Complaint or offer any facts that would state a

Monell claim against Suffolk County. Plaintiffs’ Proposed Amended

Complaint includes several pages discussing and quoting a 1986

Consent Decree and 2014 Settlement Agreement between the United

States Department of Justice and the Suffolk County Police

Department, but does not offer any facts suggesting that a

municipal policy in effect at the time of the events giving rise

to this action caused the injuries Plaintiffs allegedly suffered.

(Proposed Amended Compl. ¶¶ 103-05.)

To state a Monell claim for municipal liability, a plaintiff

must first demonstrate “the existence of a municipal policy or

custom in order to show that the municipality took some action

that caused his injuries beyond merely employing the misbehaving

officer.” Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d

Cir. 1985). And, “[s]econd, the plaintiff must establish a causal

connection—an ‘affirmative link’—between the policy and the

deprivation of his constitutional rights.” Id. (quoting Okla.

City v. Tuttle, 471 U.S. 808, 823 (1985)). A searching review of

the Complaint, the Proposed Amended Complaint, and Plaintiffs’

response to the Orde to Show Cause reveals no facts alleging the

existence of an official municipal policy or custom that resulted

in the deprivation of Plaintiffs’ constitutional rights.5

Plaintiffs’ references to a nearly thirty-year-old Consent Decree

and a ten-year-old settlement between the Department of Justice

and the Suffolk County Police Department, which are not connected

with any alleged facts to the officers’ conduct during the self-

help eviction, fail to state a claim. (Proposed Amended Compl. ¶¶

103-05.)

Ultimately, Plaintiff has offered no facts regarding any

official municipal policy, either as a formally promulgated policy

or as a pattern or practice, that is relevant to the Police

Officers Defendants’ conduct during the self-help eviction. As a

result, Plaintiffs’ claims against Suffolk County are dismissed

with prejudice for failure to state a claim. See Montero v. City

of Yonkers, New York, 890 F.3d 386, 403–04 (2d Cir. 2018) (“[t]he

mere assertion . . . that a municipality has [] a custom or policy

is insufficient in the absence of allegations of fact tending to

5 Plaintiffs’ counsel conceded that the necessary factual allegations were

lacking at the September 6, 2024, conference. (See Minute Entry dated September

6, 2024.)

support, at least circumstantially, such an inference” (internal

quotation marks and citation omitted)). The Court declines to

exercise supplemental jurisdiction over any remaining state law

claims against Suffolk County, which are dismissed without

prejudice, for the reasons set forth in Discussion Section III,

supra.

V. Claims against the Police Officer Defendants

With respect to the Police Officer Defendants, because the

Court has concluded, in Discussion Section II, that the self-help

eviction conducted by the non-State Defendants could not be

considered state action to support a federal constitutional claim,

Plaintiffs’ claims against the individual police officers also

fail and are dismissed. See Flagg Bros. v. Brooks, 436 U.S. 149,

164 (1978) (stating that the Supreme Court “has never held that a

State's mere acquiescence in a private action converts that action

into that of the State”). Plaintiffs allege no facts suggesting

the Police Officer Defendants engaged in any independent conduct,

beyond being present to preserve peace and order during the self-

help eviction, that could serve as the basis for a 42 U.S.C. §

1983 claim. Instead, the facts alleged in both the Complaint and

the Proposed Amended Complaint show that the Police Officer

Defendants’ actions “amounted to no more than the carrying out of

[their] duty to prevent violence in the event of a breach of the

peace and that there was no state action to facilitate the

[eviction].” Barrett v. Harwood, 189 F.3d 297, 303 (2d Cir. 1999).

As a result, there was no state action that deprived Plaintiffs of

any constitutional right, and therefore no constitutional

violation.6

Furthermore, to the extent Palmieri claims that he was seized

when Officer Zanelli instructed him not to enter the property at

28 East Main Street while the Paloubis Defendants undertook the

self-help eviction, (Proposed Amended Compl. ¶¶ 60, 67), the Court

finds that Officer Zanelli would be shielded from liability by

qualified immunity.

“Qualified immunity shields government officials from claims

for money damages unless a plaintiff adduces facts showing that

‘(1) the official violated a statutory or constitutional right,

and (2) the right was clearly established at the time of the

challenged conduct.’” Mara v. Rilling, 921 F.3d 48, 68 (2d Cir.

2019) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

“[A] court that decides this second question in a defendant's favor

may award qualified immunity without conclusively answering the

first.” Id.

For the law to be clearly established, “the law must be so

clearly established with respect to the ‘particular conduct’ and

the ‘specific context’ at issue that ‘every reasonable official

6 The Court notes that Plaintiffs’ counsel conceded this point at the September

6, 2024, conference and Show Cause hearing. (See Minute Entry dated September

6, 2024.)

would have understood’ that his conduct was unlawful.” Id. at 68–

69 (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). “In short,

if at least some reasonable officers in the defendant's position

could have believed that the challenged conduct was within the

bounds of appropriate police responses, the defendant officer is

entitled to qualified immunity.” Id. at 69 (internal quotation

marks and citation omitted). “Even if an officer is mistaken . . .

the officer will not be held liable if he acted reasonably and in

good faith.” Washpon v. Parr, 561 F. Supp. 2d 394, 403 (S.D.N.Y.

2008) (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir.

1994).

The facts alleged in the Complaint and Proposed Amended

Complaint show that Officer Zanelli did not allow Palmieri to enter

the property at 28 East Main Street while the Paloubis Defendants

were executing the eviction, but did allow Palmieri to check a

mailbox for which Palmieri had a key, and facilitated the retrieval

of other mail inside the property with the Paloubis Defendants.

(Proposed Amended Compl. ¶¶ 65-66.) Plaintiffs admit in the

Proposed Amended Complaint that the Paloubis Defendants did, in

fact, have a warrant of eviction from a landlord-tenant action.

(Id. ¶ 68.)

Furthermore, under New York law, a commercial landlord “may,

under certain circumstances, utilize self-help to regain

possession of demised commercial premises.” Sol De Ibiza, LLC v.

Panjo Realty, Inc., 911 N.Y.S.2d 567, 569 (1st Dep’t 2010).

Consequently, it was not unreasonable for Officer Zanelli to

prevent Palmieri from entering the premises, especially given the

possibility that Palmieri might have attempted to resist the

eviction, causing a breach of the peace. Plaintiffs identify no

constitutional right to enter and be present during a court-ordered

eviction of commercial property. The Supreme Court has stated

that qualified immunity “provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). The Court finds no

evidence that Officer Zanelli’s conduct in preventing Plaintiff

from entering 28 East Main Street during the eviction fits into

either category, and it is therefore protected by qualified

immunity.

Accordingly, Plaintiffs’ federal claims against the Police

Officer Defendants are dismissed with prejudice for failure to

state a claim, and the Court declines to exercise supplemental

jurisdiction over any remaining state law claims asserted against

the Police Officer Defendants, for the reasons set forth in

Discussion Section III, supra.

Finally, the John/Jane Doe Defendants, who are mentioned in

the caption but about whom no facts are alleged, are dismissed

because Plaintiffs have failed to state a claim against the unnamed

defendants.

CONCLUSION

For the foregoing reasons, Plaintiffs’ complaint is dismissed

in its entirety. The non-State Defendants do not constitute state

actors for purposes of 42 U.S.C. § 1983, and thus Plaintiffs’ §

1983 claims against the non-State Defendants are dismissed with

prejudice. The Suffolk County Police Department is dismissed as

a defendant because it lacks a legal identity separate and apart

from Suffolk County. The claims against Suffolk County brought

under federal law are dismissed because Plaintiffs have failed to

establish that a county policy was implicated and caused a

constitutional violation. The claims against the Police Officer

Defendants arising under federal law are dismissed for failure to

state a claim. The Court declines to exercise supplemental

jurisdiction over Plaintiffs’ surviving state law claims against

all Defendants, which are dismissed without prejudice to being

refiled in state court.

The Clerk of Court is respectfully directed to enter judgment

in favor of Defendants and close this case.

SO ORDERED. b “7 YY, _—

Dated: September 13, 2024 i) oe ws

Brooklyn, New York

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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