Opinion

Mangino v. Incorporated Village of Patchogue

739 F. Supp. 2d 205
2010 U.S. Dist. LEXIS 99766
2010 WL 3719898

Court: District Court, E.D. New York
Filed: Sep 23, 2010
Status: Published
Author: Bianco
On the bench: Joseph F. Bianco
Cited by: 37 cases
Authority: More cited than 74.8%

holding that “[t]o 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”

How later courts described this case

holding that “[t]o 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”
acknowledging that more courts have treated selective enforcement and “class of one” as separate claims with distinct elements of proof
noting that malicious prosecution claims may be brought under state law or under Section 1983
noting that when a plaintiff lacks “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”

Written by the judges who cited it.

The opinion

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

On October 23, 2006, pursuant to 42 U.S.C. § 1983 , plaintiffs John Mangino (“Mr. Mangino”) and Elaine Mangino (“Ms. Mangino”) (together “plaintiffs”) brought this action against defendants Incorporated Village of Patchogue (“the Village” or “Patchogue”), Fire Marshall John P. Poulos (“Poulos”), Code Enforcement Officer James Nudo (“Nudo”), the Patchogue Fire Department

(“the Fire Department”), Fire Chief Joseph Wagner (“Wagner”), Unidentified Employees and Agents of the Incorporated Village of Patchogue and Unidentified Employees and Agents of the Patchogue Fire Department,

(collectively “defendants”), alleging that defendants violated plaintiffs’ rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. Plaintiffs also allege claims for conspiracy under § 1983 against the Fire Department defendants and claims for municipal liability against the Fire Department and the Village. The Fire Department defendants and the Village defendants now move, separately, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants’ motions are granted in part and denied in part. In particular, the Court grants the Fire Department defendants’ motion for

*214

summary judgment in its entirety. 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. The Court grants the Village defendants’ motion for summary judgment on the remaining claims.

I. Facts

The Court has taken the facts set forth below from the parties’ depositions, affidavits, and exhibits, and from the parties’ respective Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party.

See Capobianco v. City of N.Y.,

422 F.3d 47 , 50 n. 1 (2d Cir.2005). Unless otherwise noted, where a party’s 56.1 statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.

A. Background

As of October 2007, plaintiff John Mangino was the owner of 21 Church Street in Patchogue, New York. (Pl. Vill. 56.1 ¶ 1.)

Mr. Mangino and his wife, plaintiff Elaine Mangino, purchased 21 Church Street some time between 2001 and 2003.

(Id.

¶ 2.) There were eight tenants living at 21 Church Street when plaintiffs acquired the property.

(Id.

¶ 12.) Mr. Mangino became the sole owner of 21 Church Street on September 6, 2005.

(Id.

¶ 3.) Mr. Mangino never resided at 21 Church Street or in the Village of Patchogue.

(Id.

¶¶ 4-5.)

21 Church Street was a three-story, wood-framed, eight-family apartment house that was built in approximately 1900.

(Id.

¶¶ 10-11.) There were three apartments on the first floor, four apartments/boarding rooms on the second floor, and one apartment on the third floor.

(Id.

¶ 13.) The boarding rooms on the second floor shared one bathroom.

(Id.

¶¶ 14-15.) Apartments 2, 3, 4, 5, and 6 used the main lobby door as an entrance to the apartment building.

(Id.

¶ 17.) The building also had a basement that was used for storage.

(Id.

¶¶ 17-18.) Plaintiffs charged some tenants an additional fee in order to use the basement for personal storage.

(Id.

¶ 20.) Mr. Mangino also maintained a double-locked private room in the basement with security equipment set up in the room, as well as other personal items.

(Id.

¶ 19.) The tenants could not access this room.

B. The Rental Permit Law

In 1997, the Village of Patchogue Board of Trustees enacted Local Law No. 8 to add Chapter 56 of the Village Code to regulate rental dwelling units.

(Id.

¶ 22.) The stated purpose of the law is that the “public health, safety, welfare, and good order governance of the Village of Patchogue will be enhanced by the enactment of Chapter 56.”

(Id.

¶23.) The Rental Permit Law applies to “all Rental Dwelling Units located within the Village of Patchogue.”

(Id.

¶25.) According to the terms of the Rental Permit Law:

*215

It shall be unlawful and a violation of this Article and an offense within the meaning of the Penal Law of the State of New York for any person or entity who owns a Dwelling Unit in the Village of Patchogue to use, establish, maintain, operate, let, lease, rent or suffer or permit the occupancy and use thereof as a Rental Occupancy by someone other than the owner or his immediate family, without first having obtained a valid Rental Occupancy Permit therefor. Failure or refusal to procure a Rental Occupancy Permit hereunder shall be deemed a violation.

Rental Permit Law § 56-4(A). A property owner who desires to rent out a dwelling unit is thus required to obtain a rental occupancy permit from the Village Building Department. Rental Permit Law § 56 — 5(B).

C. Village Housing Inspector James Nudo

Defendant James Nudo was employed as the Housing Inspector and Code Enforcement Officer for the Village of Patchogue from 1992 until 2006. (PI. Vill. 56.1 ¶¶ 33-34.) Nudo’s job required him to perform field inspections of houses and enforce the Village Code.

(Id.

¶ 35.) Nudo was also required to investigate complaints and issue summonses for noncompliance with the Village Code; Nudo had the authority to determine whether to issue a summons in a given situation.

(Id.

¶¶ 35-36.) Nudo’s primary job, as Village Housing Inspector, was to perform rental inspections.

(Id.

¶ 37.)

A Village Housing Inspector has discretion to issue tickets to a landlord for failing to secure a rental occupancy permit. (Vill. 56.1 ¶ 117.) The decision of whether to issue a summons is based upon the number and seriousness of the offense(s).

(Id.

¶ 118.) Moreover, each day that a property is in violation of the Village Code is a separate violation.

(Id.

¶¶ 120-21.)

D. Plaintiffs’ Rental Permit History and January 2005 Tickets

Plaintiffs applied for a two-year rental permit when they purchased 21 Church Street. (PI. Vill. 56.1 ¶38.) When plaintiffs submitted their application, in or about 2002, Nudo conducted a rental occupancy permit inspection, during which he took notes regarding his observations at the premises.

(Id.

¶¶ 39-41.) Both plaintiffs and the Village defendants acknowledge that the inspection by defendant Nudo was tense, but the precise details of any exchanges between the parties are disputed.

(Compare

Vill. 56.1 ¶¶ 42-45

with

PL 56.1 ¶¶ 42^5.) Due to their disagreements, Nudo left 21 Church Street without finishing the inspection. (Vill. 56.1 ¶ 56.) Housing Inspector William Powell went to 21 Church Street to finish the rental occupancy permit inspection.

(Id.

¶ 47.) Plaintiffs were not issued any violations or tickets at that time.

(Id.

¶ 49.)

On February 2, 2002, Mrs. Mangino was issued a rental occupancy permit for 21 Church Street.

(Id.

¶ 50.) Plaintiffs paid a $200 flat fee for a two-year eight-unit dwelling rental occupancy permit for the property.

(Id.

¶ 51.) This permit expired in approximately 2004.

(Id.

¶ 52.) Plaintiffs refused to renew their rental occupancy permit for 21 Church Street.

(Id.

¶ 53.) As of October 2007, Mr. Mangino still did not have a valid rental occupancy permit for 21 Church Street.

(Id.

¶ 54.)

Plaintiffs’ rental occupancy permit expired in or around February 2004. (Vill. 56.1 ¶ 60.) Mr. Mangino was aware that the Village Code required that the owner of a dwelling unit obtain a rental occupancy permit prior to renting the dwelling, and the Village mailed a rental occupancy permit renewal application for 21 Church Street prior to January 2005.

(Id.

¶¶ 61-

*216

62.) Plaintiffs did not renew their rental occupancy permit. According to plaintiffs, they did not do so because the Village “raised the rental permit fee five to ten times over the previous levels, charged non-owner occupied houses different than owner occupied houses, [and] effectuated other questionable practices.” (PL Vill. 56.1 ¶ 64.)

According to Nudo’s testimony, while driving around the Village in January 2005, he drove by 21 Church Street and saw some broken or missing screens and a rip in the screen door.

(Id.

¶ 65.) Nudo testified that he thereafter checked the property files to see when 21 Church Street was due for a rental occupancy permit inspection.

(Id.

¶ 66.) Nudo noticed, and Mr. Mangino concedes, that as of January 2005, 21 Church Street did not have a valid rental occupancy permit.

(Id.

¶¶ 68, 70.) On January 12, 2005, Nudo issued appearance tickets to plaintiffs for their failure to apply for or secure a rental permit for 21 Church Street as required by the Village Code. (Vill. 56.1 ¶ 72.) Each plaintiff received a summons because, as co-owners of the property, each was responsible for obtaining a rental occupancy permit.

(Id.

¶ 73.)

After being issued these summonses in January 2005 for failure to obtain a rental permit, plaintiffs challenged the summonses in court. They challenged both the individual summonses and the validity of the rental permit law, as well as the manner of service of the tickets by the Village defendants. (Pl. Vill. 56.1 ¶81.) While their challenge to the tickets was ongoing, plaintiffs allege that the Village prosecutor threatened plaintiffs, stating that if they did not settle the pending litigation against the Village (challenging their tickets and the constitutionality of the permit law) — or accept a plea bargain — they would be hit with a barrage of summonses.

(Id.; see also

PL Ex. 5 Notice of Claim 11-15-06; Raskin Dep. at 132-33; Mangino 50-h 3-16-07 at 92-100, 201.)

E. Elinor Kolb’s Complaints

In 2005, Elinor Kolb was a resident in Apartment 5 at 21 Church Street. (Vill. 56.1 ¶ 143.) Kolb visited the Village Housing Department to complain about 21 Church Street

(id.

¶ 144), however, the parties dispute the frequency of Kolb’s visits to the Housing Department. The Village documented Kolb’s visits to the Housing Department on two occasions: May 6, 2005 and July 22, 2005. (Pl. Vill. 56.1 ¶ 145.) On May 6, 2005, Kolb filed a written complaint with the Housing Department stating that the bathroom sink and bathtub on the second floor of 21 Church Street were clogged and unusable. (Vill. 56.1 ¶¶ 146-47.)

This bathroom was shared by three tenants, and Kolb also complained that the bathroom was filthy and vandalized.

(Id.

¶¶ 149-50.) Kolb stated that Mr. Mangino was aware of the problem with the sink but had not repaired it or called a plumber after seven days. (Pl. Vill. 56.1 ¶ 148.) Kolb also stated that she was afraid of Mr. Mangino and feared that he would evict her, but plaintiffs dispute the veracity of this statement.

(Id.

¶ 152-53.)

On July 22, 2005, Kolb went to the Housing Department and stated that she was having additional issues with 21 Church Street.

(Id.

¶ 156.) According to the incident report, Kolb stated that the “toilet does not flush properly and the bathroom is shared with other tenants.”

*217

(Id.;

Vill. 56.1 ¶¶ 158-60.) The Village did not follow up on Kolb’s complaint at that time.

F. Apartment 2

Dawn Gucciardo (“Gucciardo”) was a resident of 21 Church Street who resided in Apartment 2 from November 2004 until October 2005. (Vill. 56.1 ¶ 165.) Gucciardo had one child and was pregnant with a second when she moved into Apartment 2.

(Id.

¶ 166.) Gucciardo lived in Apartment 2 with her two children, and, periodically, her boyfriend also stayed with her.

(Id.

¶ 167.) Gucciardo’s lease stated that the rent was $950 per month, but Mr. Mangino and Gucciardo both testified that they believed it was $900 per month or $1200 per month, with the Department of Social Services (“DSS”) paying $900 per month. (Pl. Vill. 56.1 ¶ 170.) Gucciardo’s rent was paid, in part or in full, by DSS.

(Id.

¶ 171.) Pursuant to a separate agreement with Mr. Mangino, Gucciardo paid a fee in order to store a few boxes in the basement and for the additional tenants (her newborn child and, possibly, her boyfriend) that resided in the apartment with her since the date on which she signed the lease.

(Id.

¶¶ 172-73.)

As of October 2007, there had been two fires at 21 Church Street since plaintiffs purchased it — one involving a refrigerator, and another involving a candle next to a drape.

(Id.

¶ 187.) On May 9, 2004, the Patehogue Fire Department responded to a reported structural fire at 21 Church Street.

(Id.

¶ 188.) An electrical fire was found in Apartment 2; specifically, there was a fire in the refrigerator motor/switch.

(Id.

¶ 189.) The electrical outlet in the kitchen was “damaged” and “burned from the fire.”

(Id.

¶ 191.) Defendant Poulos, the Village’s Chief Fire Marshal, responded to the fire in Apartment 2 and determined that the refrigerator was the point of origin of the fire.

(Id.

¶¶ 192-93.) According to Poulos’s fire report, on May 9, 2004, “[t]he most burnt area was around the electrical switch mounted to the ... right hand side wall about two inches [above] the floor.” (Pl. Ex. 70, Poulos Fire Report 5-9-04.) As a result of the incident, Mr. Mangino was issued a Fire Prevention Order. (Vill. 56.1 ¶ 197.) The electrical outlet in the kitchen had to be repaired as a result of the fire because it was melted. (Pl. Vill. 56.1 ¶ 198.)

After the fire, the electrical system in Apartment 2 had to be certified by a licensed electrician, all smoke detectors in the house had to be checked, the sprinkler system had to be tested and certified, and the fire escape had to be repainted. (Vill. 56.1 ¶¶ 199-202.) Mr. Mangino complied with the Fire Prevention Order.

(Id.

¶ 203.)

G. John Poulos

Defendant John Poulos became the Village Chief Fire Marshal in 2003. (Vill. 56.1 ¶ 174.) Prior to his employment with the Village, Poulos had been trained at the Fire Academy, had a background in fire prevention, was a New York City firefighter, and was a certified Fire Marshal and investigator.

(Id.

¶ 175.) Poulos had also passed the civil service exam for New York City Fire Lieutenant.

(Id.

¶ 176.) As of October 2007, Poulos had twenty-seven years of experience as a firefighter.

(Id.

¶ 177.) Poulos was also certified by New York State as a Building Inspector, and certified in building codes, fire prevention, and “cause and origin.”

(Id.

¶¶ 178-79.)

The Village Fire Marshal is required to inspect buildings for fire hazards and

*218

make recommendations to correct unsafe conditions, report violations, perform compliance inspections, report repeated violations to the authorities, and investigate complaints of fire hazards. (Vill. 56.1 ¶¶ 180-82.) Poulos performed administrative investigations for Village Code violations. (PL Vill. 56.1 ¶ 180.)

In July 2005, Poulos, as Chief Fire Marshal, was responsible for inspecting building code violations, determining the cause and origin of fires, answering fire department complaints, and informing the fire department of fire hazards. (Vill. 56.1 ¶¶ 183-84.) The Village defendants contend that if firefighters find fire hazards or violations in a building, they report them to the Village Fire Marshal.

(Id.

¶ 185.) Plaintiffs stated that: “Captain Welsh and defendant Chief Wagner testified that there is a chain of command [whereby firemen] report perceived concerns to the Captain, who is the senior officer inside, and then it is up to the Captain to report to the Chief. It is the Chiefs call whether or not to inform the Fire Marshal.” (Pl. Vill. 56.1 ¶ 185.) Nonetheless, Poulos did investigate complaints reported by the Fire Department, although, according to plaintiffs, those investigations were not always immediately performed. (Vill. 56.1 ¶ 186; Pl. Vill. 56.1 ¶ 186.) Poulos testified that he did not perform inspections based on the owner of the property; rather, the inspections he performed were completely random and performed at his discretion. (Vill. 56.1 ¶¶ 365-67, 369, 372.)

H. Gucciardo’s Complaints Regarding Apartment 2

Gucciardo did not like living at 21 Church Street; she testified that she wanted to break the lease with Mr. Mangino and move into a larger apartment because the apartment was too small for her to live in with her growing children. (Pl. Vill. 56.1 ¶¶ 211-12.) As a result, Gucciardo called David Knepp, an investigator for DSS, and requested that he inspect her apartment.

(Id.

¶ 213.) On July 21, 2005, Gucciardo called the Village Housing Department regarding her apartment; specifically, she requested that the someone come check the power. (Pl. Vill. 56.1 ¶ 214.) Nudo answered Gucciardo’s phone call to the Housing Department.

(Id.

¶ 215.) According to the incident report from the phone call, Gucciardo stated that:

she’s having a problem with the landlord. He’s allegedly made promises that have not been kept regarding repairs to her apartment. She said her windows don’t remain in an open position, there are holes in her floor, her refrigerator malfunctions, she’s experienced electrical problems and the basement has a large amt of debris. She’s lived there with her 2 small children since Nov ’04 and pays $950 per month. She fears the stated conditions will result in a fire.

(Vill. Defs.’ Ex. RR, Gucciardo Incident Report 7-21-05.)

Gucciardo testified at her deposition that she wanted the Village to check the refrigerator because it was not cold enough from time to time and denied that she had called to report several items in the incident report. (Pl. Vill. 56.1 ¶ 219.)

After the phone call to the Housing Department, Gucciardo set up a Village Inspection for the same day that Knepp was scheduled to be at her apartment.

(Id.

¶ 221.) According to Nudo’s testimony, because the Village Fire Marshal had to be alerted whenever there was a concern of

*219

fire, Nudo memorialized Guceiardo’s complaint in an Inspection/Incident Report and forwarded it to Poulos, as well as Mayor Pontieri and Commissioner McGiff.

(Id.

¶ 223.)

On July 22, 2005, Gucciardo called the Village Housing Department to report that things were “getting fixed.” (Vill. 56.1 ¶ 224.) Poulos was not at work on July 20, 21, 22 or 23 of 2005

(id.

¶ 225); thus, he was not present when Gucciardo called the Housing Department on July 21 or 22.

I. Gucciardo’s Alleged July 25, 2005 Report to Village Housing Department

On July 25, 2005, all eight apartments at 21 Church Street were occupied by tenants; Gucciardo still resided in Apartment 2.

(Id.

¶¶ 227-28.)

On the morning of July 25, 2005, Poulos reported to work at the Village Building and Housing Department office.

(Id.

¶ 229.) At this point, the parties present conflicting versions of the facts. According to the Village defendants, Gucciardo called the Village Housing Department to complain that the outlets in her apartment were sparking or arcing.

(Id.

¶¶ 230-32.) The parties agree that a report of sparking or arcing outlets is considered an emergency. (Vill. 56.1 ¶ 234.) Gallo claims that she did not write down Gucciardo’s complaint because Poulos was in the office that day. (Vill. 56.1 ¶ 236.) When Poulos arrived at the Village Building and Housing Department office, Gallo informed him that Gucciardo had complained about sparking outlets in her apartment.

(Id.

¶237.) The Village defendants contend that Poulos considered Gucciardo’s complaint an emergency, so he left immediately to go to 21 Church Street to investigate the situation.

(Id.

¶ 238.)

According to plaintiffs, Gucciardo did not call the Village that morning, and the last time she had contacted the Village regarding her apartment was her call on July 22 to state that “things were getting fixed.” (Pl. Vill. 56.1 ¶¶ 230-31.) Gucciardo denies making any call on July 25, 2005. (Gucciardo Dep. at 230-31.) Plaintiffs also point to the fact that it is the usual custom of the Village to document or keep records of all complaints made; accordingly, they argue that the lack of a record of Gucciardo’s alleged call on July 25, 2005 establishes that there was no call.

(Id.

¶ 230.) Plaintiffs argue that Gucciardo called the Village on July 21, 2005 to have them come check the power on her refrigerator and that she did not call to complain about other problems.

(Id.)

Plaintiffs also have noted a number of alleged inconsistencies in defendants’ evidence; plaintiffs contend these inconsistencies demonstrate that the alleged complaint on July 25, 2005 regarding “arcing or sparking wires” never occurred. Plaintiffs first note that the Village defendants’ evidence demonstrates that Poulos did not arrive until after Gallo had completed the alleged call with Gucciardo. (Pl. Vill. 56.1 ¶ 236.) However, later in their statement of undisputed facts, plaintiffs assert that, according to Poulos’s testimony, Gallo was still on the phone with Gucciardo at the time she advised Poulos of the alleged arcing or sparking wires.

(Id.

¶ 237.) Plaintiffs also argue that Poulos testified that Kolb was physically present in the Village office when Poulos received the message about Gucciardo’s complaint.

(Id.)

Poulos also testified that Giglio, who was at the counter with Kolb “yelled” the complaint about the toilet bowl to Poulos as he was going out to the premises.

(Id.)

Giglio testified that Kolb was in the office making a complaint at the same time Gallo received the call from Gucciardo regarding “arcing or sparking” wires.

(Id.)

Plaintiffs argue that Kolb was only in the office making a complaint on July 22, 2005, and,

*220

thus, this call could not have occurred on July 25, 2005.

(Id.

¶ 239.)

J. Poulos’s July 25, 2005 Arrival at 21 Church Street

The Village defendants contend that, upon receipt of Gueciardo’s complaint, Poulos was concerned, so he left immediately to go to 21 Church Street to investigate. (Vill. 56.1 ¶ 239.) Plaintiffs argue that, had Poulos considered the situation a legitimate emergency, he would have called the Fire Department immediately. (Pl. Vill. 56.1 ¶ 239.) Poulos testified that he did not immediately call the Fire Department because he wanted to determine if the outlet was sparking or arcing before doing so.

(Id.)

He further testified that it took only minutes to drive to the premises and that, while en route to 21 Church Street, he called Mr. Mangino on his cell phone.

(Id.;

Vill. 56.1 ¶ 342.) Poulos arrived at the premises at approximately 11 a.m. (Vill. 56.1 ¶ 245.)

Mr. Mangino was at 21 Church Street when Poulos arrived.

(Id.

¶ 246.) Poulos told Mr. Mangino that he had come to check the outlet in Apartment 2.

(Id.

¶ 248.) At some point before, during, or after his exchange with Poulos, Mr. Mangino called his lawyer, Edward Raskin (“Raskin”). (PL Vill. 56.1 ¶¶ 248-50.) Mr. Mangino refused to let Poulos in the house to check the outlet without a warrant. (Vill. 56.1 ¶ 251.) Plaintiffs contend that that Mr. Mangino put Poulos on the phone with Raskin, who told Poulos he could not enter the house without a warrant. (Pl. Vill. 56.1 ¶ 363.) Poulos called Nudo to request his assistance at 21 Church Street. (Vill. 56.1 ¶ 252.) Poulos informed Mr. Mangino that, if Mr. Mangino would not allow Poulos in, Poulos would call the Fire Department to investigate.

(Id.

¶ 255.)

K. The Search of 21 Church Street

At 11:01 a.m., because Mr. Mangino would not permit Poulos to enter the building, Poulos radioed the Village Fire Department with a code “Signal 13,” which is an all-encompassing general alarm for a structure. (Pl. Vill. 56.1 ¶235; Vill. 56.1 ¶ 256.) The certified Dispatch Communications Sheet indicates a report of “wires burning in building.” (PL Ex. 73, VP Ambulance Co. Call Sheet 7-25-05.) This type of alarm is considered an emergency that the Fire Department responds to as quickly as possible. (Pl. Vill. 56.1 ¶ 235) The Fire Department received the alarm at 11:01 a.m. and arrived at 11:04 a.m. at 21 Church Street with four fire trucks, one fire rescue truck, and three other Fire Department vehicles.

(Id.

¶ 256, 258, 259.)

Fire Chief Wagner arrived at the premises and asked Poulos what the problem was. (FD 56.1 ¶ 6.) Poulos explained that there had been a report of arcing or sparking outlets or wires and that the house was very old and had a previous fire.

(Id.

¶ 7.) The parties dispute whether Mr. Mangino initially would allow the Fire Department to enter the building; however, Mr. Mangino ultimately permitted the Fire Department personnel to enter the premises. (PL Vill. 56.1 ¶ 268; FD 56.1 ¶¶ 8-10.) Wagner informed Mr. Mangino that, since

*221

the Fire Department received an emergency call, it was no longer Mr. Mangino’s house until Wagner deemed it safe and that he was going to send firemen inside. (PL Vill. 56.1 ¶ 269.) Mr. Mangino agreed to allow only the firemen to enter the building, but Mr. Mangino would not allow Poulos inside the house. (Vill. 56.1 ¶¶ 273-74.) Wagner agreed with Mr. Mangino’s request.

(Id.

¶ 275.) Police officers and defendant Nudo also arrived at 21 Church Street. (M ¶¶ 277-78.)

Captain Welsh of the Patchogue Fire Department entered 21 Church Street with two to four firemen to look for an electrical problem or file. (Pl. Vill. 56.1 ¶ 281; Vill. 56.1 ¶ 281; FD 56.1 ¶ 13.) The firemen entered the house with thermal imaging cameras that allowed them to see through walls. (Vill. 56.1 ¶289.) Mr. Mangino entered the house with the firemen

(Id.

¶ 282), while Wagner and Poulos remained outside.

(Id.

¶ 284; FD 56.1 ¶ 14.) The Fire Department inspected the entire building, including the basement, because the main electrical service entered the building through the basement. (FD 56.1 ¶ 15.) Plaintiffs state that the fire personnel did not, however, evacuate any persons who may have been in the building. (Pl. FD 56.1 ¶ 15.)

The parties dispute whether the Fire Department entered Gucciardo’s apartment because the door was open, because they received consent from Gucciardo, or because the firemen represented to Gucciardo that there was an emergency and “barged” in.

(Compare

Vill. 56.1 ¶ 291

with

Pl. Vill. 56.1 ¶ 291.) Plaintiffs assert that Gucciardo “did not have [an] opportunity to object” to the Fire Department’s entry. (Pl. Vill. 56.1 ¶ 292.) To the plaintiffs’ knowledge, the firemen did not enter any other apartments.

(Id.

¶ 293.) According to Welsh, the firemen checked Apartment 2 for outlet or wire problems.

(Id.

¶ 294.) There was also testimony that they searched the walls with the thermal imaging camera to make sure that there was not a fire in the walls and checked the basement to make sure there was no fire or arcing wires.

(Id.

¶¶ 294-95.)

Mr. Mangino escorted the firemen into the basement, where the firemen searched the basement walls with thermal imaging cameras and checked where the wiring and burner were located. (Pl. Vill. 56.1 ¶ 297.) The group entered the basement via the staircase that was accessible from within Apartment 2.

(Id.

¶ 298.) Wagner testified that the firemen checked the basement because the main electrical conduit enters residential buildings through the basement.

(Id.

¶ 299.)

The Fire Chief has authority to send a Fire Marshal into the building. (Vill. 56.1 ¶ 286.) According to Captain Welsh, he noticed two issues/ potential hazards while in the basement. (FD 56.1 ¶ 16; PL FD 56.1 ¶ 16; Vill. 56.1 ¶ 301.) Welsh radioed to Wagner from inside the premises. (FD 56.1 ¶ 17.) The parties dispute what Welsh told Wagner.

(Compare

FD 56.1 ¶ 18

with

Pl. FD 56.1 ¶ 18.)

Captain Welsh and Fire Chief Wagner testified that there is a chain of command in the Fire Department. Specifically, firemen are responsible for reporting perceived concerns to the Captain, who is the senior officer inside. The Captain may then report the concerns to the Chief, who then has the discretion to decide whether to inform the Fire Marshal. (Pl. Vill. 56.1 ¶ 302.)

*222

Captain Welsh testified that he radioed Fire Chief Wagner from the basement. (Vill. 56.1 ¶ 303.) The parties dispute whether Captain Welsh reported the potential hazards to Fire Chief Wagner and whether any alleged hazards that existed were exigencies.

(Compare

Vill. 56.1 ¶ 304

with

Pl. Vill. 56.1 ¶ 304.) Fire Chief Wagner does not recall firemen calling him regarding any hazards or dangers in the building, although he acknowledges that it is possible that they did. (Pl. FD 56.1 ¶ 22.) Fire Chief Wagner also does not recall whether he relayed the message regarding any potential hazards to Poulos, but stated that he “must have” because of the paperwork and because he was being deposed. (Pl. Vill. 56.1 ¶ 311.)

Poulos testified that he was standing next to Wagner when the radio call came in to request the Fire Marshal’s assistance. (Pl. Vill. 56.1 ¶ 311.) Wagner testified it is possible that Poulos could have walked in without his knowledge, and Wagner did not remember asking Poulos to enter.

(Id.)

The Village defendants assert that Wagner invited Poulos in to the house to help investigate. (Vill. 56.1 ¶ 312.) The Fire Department thereafter turned the investigation over to Poulos.

(Id.

¶ 313.) The scene was deemed clear at 11:35 a.m., and the Fire Department left.

(Id.

¶ 314.)

L. Fire Prevention Violation Order

Poulos entered 21 Church Street with three police officers and went into the basement where the firemen had noted potential hazards or violations. (Vill. 56.1 ¶ 317.) Mr. Mangino objected to Poulos’s presence in the house but did not tell the police officers to leave.

(Id.

¶¶ 318-19.) According to defendants, Captain Welsh and the firemen pointed out to Poulos the allegedly potential hazardous conditions regarding the electrical box, staircase stringer, and structural issues under the foundation area in the front of the building.

(Id.

¶ 321.) Poulos wrote down his observations and issued a Fire Prevention Violation Order. (PI. Vill. 56.1 ¶322.) Volunteer firemen, such as those present on July 25, 2005, may note violations or perceived unsafe conditions while on the scene of a fire investigation.

(Id.

¶ 323; Vill. 56.1 ¶ 323.) The parties dispute the nature of the perceived unsafe conditions, the attendant exigent circumstances that accompanied the alleged conditions, and whether the conditions were of such a nature that the firemen were obligated to report their concerns to the Fire Marshal.

(E.g.,

Vill. 56.1 ¶¶ 326-27, 335-38, 340; PI. Vill. 56.1 ¶¶ 326-27, 335-38, 340.) Captain Welsh and the firemen pointed out that the electrical box had open and exposed wiring, which, Captain Welsh testified, is considered an electrical or shock hazard. (Vill. 56.1 ¶ 332; PI. Vill. 56.1 ¶332.) The parties also dispute whether Gucciardo remained in her apartment in order to point out additional violations to the Fire Marshal or Fire Department.

(Compare

PI. Vill. 56.1 ¶¶ 343-45, 347

with

Vill. 56.1 ¶¶ 343-45, 347.)

Poulos noted that the sprinkler system had to be re-certified, per an annual requirement by law. (Vill. 56.1 ¶ 341-42.) Poulos added Kolb’s complaint regarding the toilet bowl to the Fire Prevention Violation Order because nobody had been able to investigate the complaint on the day it was made.

(Id.

¶ 348.)

The Fire Prevention Order required plaintiffs to repair the hazardous conditions and/or supply the Village with a licensed engineer’s report stating that no corrective action was necessary.

(Id.

¶ 354.) The issues identified in the order had to be addressed by September 1, 2005

(id.

¶ 355), but Poulos gave plaintiffs an extension of time, until October 31, 2005, to resolve the issues.

(Id.

¶ 356.) Al

*223

though the Village defendants state that plaintiffs resolved the issues in the Fire Prevention Order to the satisfaction of Poulos, plaintiffs note that they nonetheless received thirty summonses in August 2005, as discussed

infra. {See

Vill. 56.1 ¶ 358; Pl. Vill. 56.1 ¶ 358-59.) Poulos himself never issued any summonses to plaintiffs. (Vill. 56.1 ¶ 361.)

M. The Subsequent Tickets

Plaintiffs did not obtain a rental occupancy permit at any point between January 2005 and August 2005. (Pl. Vill. 56.1 ¶ 76.) Plaintiffs continued to rent out apartments at 21 Church Street during that time period.

{Id.

¶ 77.)

Plaintiffs thereafter received appearance tickets for failure to apply for or secure a rental occupancy permit on the following dates: August 5, 2005, August 8, 2005, August 9, 2005,

August 11, 2005, August 12, 2005, August 13, 2005, August 14, 2005,

August 15, 2005, and August 16, 2005.

{Id.

¶¶ 81, 85, 89, 93, 97, 101, 105, 109, 113.) These summonses were served on plaintiffs on August 27, 2005. During this time period, Mr. Mangino admitted that 21 Church Street did not have a valid rental permit but that plaintiffs continued to rent out apartments in the building.

{Id.

¶¶ 102-03,106,110.)

On August 11, 2005, Nudo and Village Housing Coordinator Joanne Gallo went to 21 Church Street, allegedly to investigate Gucciardo’s July 21, 2005 complaints.

{Id.

¶ 384.) Nudo testified that he waited to investigate because Gucciardo had called to say that “things were getting fixed” and because he wanted to give plaintiffs time to resolve the issues. (Vill. 56.1 ¶¶ 385-86.) Plaintiffs note, however, that the Fire Prevention Order states that “start date will be August 1st, 2005,” which gave plaintiffs thirty days — until August 31, 2005 — to correct the violations. (Pl. Vill. 56.1 ¶ 387.)

Nudo told Gucciardo he would not enter 21 Church Street unless she signed an affidavit authorizing his entry. (Vill. 56.1 ¶ 392.) Gucciardo had allegedly already signed an affidavit authorizing Nudo to enter her apartment on July 25, 2005.

{Id.

¶ 393;

see also

Pl. Ex. 83 Gucciardo Authorization for Entry 8-11-05.) However, plaintiffs note that this affidavit is dated and notarized August 11, 2005. (Pl. Vill. 56.1 ¶ 383.)

DSS Inspector David Knepp was also present at the inspection at Gucciardo’s request.

{Id.

¶ 395.) Gucciardo pointed out issues with her apartment, including the floor. (Pl. Vill. 56.1 ¶ 396.) Knepp also performed an inspection of Apartment 2. (Vill. 56.1 ¶ 398.) Gucciardo insisted that the apartment was an unsafe place for her children to live; Gucciardo’s intent was to get a larger place and stay on the SHARP program. (Pl. Vill. 56.1 ¶ 399.)

On August 11, 2005, Nudo issued plaintiffs an additional eighteen separate sum

*224

monses for a variety of alleged violations of the Village Code. (Pl. Vill. 56.1 ¶ 93.) At oral argument, plaintiffs conceded that there was probable cause to issue these tickets. At his deposition testimony, when asked why he issued multiple summonses before serving the previous ones, Nudo acknowledged that he wanted to get Mr. Mangino’s attention with the summonses. (Nudo Dep. at 196-97, 200, 203.)

All of the tickets issued to plaintiffs for violation of the Rental Permit Law were dismissed. (Vill. 56.1 ¶ 115.) Nudo did not appear in court to testify against plaintiffs for the summonses, allegedly because he lived in Arizona at the time. (Pl. Vill. 56.1 ¶ 470.) The parties dispute Nudo’s purpose and intention in issuing plaintiffs multiple summonses for not having a rental permit.

(Compare

Vill. 56.1 ¶ 124

with

Pl. Vill. 56.1 ¶ 124.) Nudo testified that he did not know that plaintiffs were challenging the Rental Permit Law at the time he issued any of the tickets, but plaintiffs dispute this fact based upon,

inter alia,

the small size of the Village’s government. (Pl. Vill. 56.1 ¶ 140.) Plaintiffs were never arrested or detained by the police as a result of the violations. (Vill. 56.1 ¶ 463.) The Village issued a warrant for the arrest of plaintiffs that resulted in them having to post bail (Pl. Ex. 88, Notice of Impending Warrants, 9-23-05), however, this warrant was issued for their failure to appear at their scheduled court appearances.

(Id.)

N. Nudo’s Issuance of Tickets in the Village of Patchogue

The parties dispute whether Nudo’s practice was to issue multiple summonses to every owner of a rental dwelling that continually failed to secure a rental occupancy permit.

(Compare

Vill. 56.1 ¶¶ 125-26

with

Pl. Vill. 56.1 ¶¶ 125-26.) However, Mr. Mangino testified that he did not know any other individuals in the Village who failed to obtain a rental occupancy permit and did not receive a ticket. (Pl. Vill. 56.1 ¶ 127.) Mr. Mangino testified that he did not have any problems with Building Inspector Powell (Vill. 56.1 ¶ 128), but the parties dispute whether Powell issued tickets to plaintiffs of his own initiative or based upon explicit direction from Nudo. (Compare Pl. Vill. 56.1 ¶¶ 130-31 with Vill. 56.1 ¶¶ 130-31.)

The parties also dispute whether other landlords in the Village received summonses on consecutive days for not having a valid rental occupancy permit. (Compare Pl. Vill. 56.1 ¶ 132

with

Vill. 56.1 ¶ 132.) Frank Giorgio was issued tickets on August 11, 2005 and August 13, 2005 for failing to secure a rental occupancy permit. (Vill. 56.1 ¶ 133.)

The Passilaqua property was issued multiple subsequent tickets for exterior deterioration while their initial ticket was being contested in court. (Vill. 56.1 ¶ 134.)

The Hooghkirks were issued multiple subsequent tickets for misuse of single room occupancy while their initial ticket was being contested in court.

(Id.

¶ 135.) The Deraos were also issued multiple tickets for failing to secure a rental occupancy permit, although these tickets were issued roughly one year apart.

(Id.

¶ 136.) The Williams were issued multiple tickets for failure to secure a rental occupancy permit, among other violations.

(Id.

¶ 137.) The Todisco property was also issued multiple tickets.

(Id.

¶ 138.)

*225

II. Procedural History

Plaintiffs filed the complaint in this action on October 23, 2006. On January 17, 2007, plaintiffs filed an Amended Complaint. On March 16, 2007, defendants answered the Amended Complaint. On February 14, 2008, plaintiffs filed a Second Amended Complaint. Defendants answered this complaint on March 17, 2008.

On October 22, 2009, defendants requested a pre-motion conference in anticipation of filing a motion for summary judgment. The Fire Department defendants submitted their motion for summary judgment on February 16, 2010. The Village defendants submitted their motion for summary judgment on February 19, 2010. Plaintiffs submitted their opposition on June 18, 2010. Defendants submitted their replies on August 20, 2010. The Court held oral argument on August 31, 2010. The Village defendants filed supplemental letters with the Court on September 3, 2010 and September 10, 2010, addressing additional issues raised at oral argument. Plaintiffs filed supplemental letters with the Court on September 7, 2010 and September 8, 2010. The Court has fully considered the submissions of the parties.

III. Standard Of Review

The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);

Reiseck v. Universal Commc’ns of Miami, Inc.,

591 F.3d 101, 104 (2d Cir.2010). The moving party bears the burden of showing that he or she is entitled to summary judgment.

See Huminski v. Corsones,

396 F.3d 53, 69 (2d Cir.2005). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.”

Amnesty Am. v. Town of W. Hartford,

361 F.3d 113, 122 (2d Cir.2004);

see Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).

Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a

genuine issue for trial.’” Caldarola v. Calabrese,

298 F.3d 156, 160 (2d Cir.2002) (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986) (emphasis in original)). As the Supreme Court stated in

Anderson ,

“[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”

Anderson,

477 U.S. at 249-50 , 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of

some

alleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment.

Id.

at 247-48 , 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth “ ‘concrete particulars’ ” showing that a trial is needed.

R.G. Group, Inc. v. Horn & Hardart Co.,

751 F.2d 69, 77 (2d Cir.1984) (quoting

SEC v. Research Automation Corp.,

585 F.2d 31 , 33 (2d Cir.1978)). Accordingly, it is insufficient for a party opposing summary judgment “ ‘merely to assert a conclusion with

*226

out supplying supporting arguments or facts.’ ”

BellSouth Telecomms., Inc. v. W.R. Grace & Co.,

77 F.3d 603, 615 (2d Cir.1996) (quoting

Research Automation Corp.,

585 F.2d at 33).

IV. Section 1983 Claims

As stated

supra,

plaintiffs bring their constitutional claims pursuant to § 1983. 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 that it describes.”

Baker v. McCollan,

443 U.S. 137 , 145 n. 3, 99 S.Ct. 2689 , 61 L.Ed.2d 433 (1979).

For claims under § 1983, a plaintiff must prove that “(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.”

Snider v. Dylag,

188 F.3d 51, 53 (2d Cir.1999) (citation omitted). Here, the parties do not dispute that all defendants were acting under color of state law. The question presented, therefore, is whether defendants’ conduct deprived plaintiffs of the rights they assert under the First, Fourth, and Fourteenth Amendments. As set forth below, the Court grants the Fire Department defendants’ motion for summary judgment in its entirety. The Court denies the Village defendants summary judgment with respect to plaintiffs’ malicious abuse of process and unreasonable search claims under the Fourth Amendment, and to the municipal liability claims. The Court grants the Village defendants summary judgment with respect to plaintiffs’ First Amendment, Fourteenth Amendment, and remaining Fourth Amendment claims.

A. Fourth Amendment

Under the Fourth Amendment, plaintiffs assert claims for malicious prosecution, malicious abuse of process, and unreasonable warrantless search.

For the reasons set forth below, defendants’ motions for summary judgment are granted with respect to the malicious prosecution claim and denied with respect to the malicious abuse of process claim. The Court grants the Fire Department defendants’ motion for summary judgment on plaintiffs’ claims against them relating to the alleged unlawful search of the house, but denies the Village defendants’ motion for summary judgment with respect to the alleged unlawful search of the basement.

1. Malicious Prosecution

Plaintiffs assert claims for malicious prosecution against the Village defendants under § 1983 and under New York state law. For the reasons set forth below, the Village defendants’ motion for summary judgment with respect to the malicious prosecution claims is granted.

“Claims for ... malicious prosecution, brought under § 1983 to vindicate the Fourth and Fourteenth Amendment right to be free from unreasonable seizures, are ‘substantially the same’ as claims for ... malicious prosecution under state law.”

Jocks v. Tavernier,

316 F.3d

*227

128, 134 (2d Cir.2003) (citing

Conway v. Vill. of Mount Kisco,

750 F.2d 205 , 214 (2d Cir.1984)).

“ ‘Because there are no federal rules of decision for adjudicating § 1983 actions that are based upon claims of malicious prosecution, [courts] are required by 42 U.S.C. § 1988 to turn to state law ... for such rules.’”

Alicea v. City of N.Y.,

No. 04-CV-1243 (RMB), 2005 WL 3071274 , at *6 (S.D.N.Y. Nov. 15, 2005) (quoting

Conway,

750 F.2d at 214). “A malicious prosecution claim under New York law requires the plaintiff to prove ‘(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for [the defendants’] actions.’ ”

Blake v. Race,

487 F.Supp.2d 187, 211 (E.D.N.Y.2007) (quoting

Jocks,

316 F.3d at 136) (internal quotation marks omitted). The Court addresses plaintiffs’ § 1983 and state-law malicious prosecution claims in turn.

a. Section 1983 Claim

Malicious prosecution claims under § 1983 require that there “be a seizure or other ‘perversion of proper legal procedures’ implicating the claimant’s personal liberty and privacy interests under the Fourth Amendment.”

Conte v. Cnty. of Nassau,

06-CV-4746 (JFB)(ETB), 2008 WL 905879 , at *11 (E.D.N.Y. Mar. 31, 2008) (quoting

Washington v. Cnty. of Rockland,

373 F.3d 310 , 316 (2d Cir.2004)). For this reason, plaintiffs’ malicious prosecution claim under § 1983 must fail. The Second Circuit recently held that “the issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restrictions, does not constitute a Fourth Amendment seizure.”

Burg v. Gosselin,

591 F.3d 95, 98 (2d Cir.2010). As in

Burg ,

the tickets issued to plaintiffs did “no more than require [plaintiffs] to appear in court on a single occasion, and operate[d] to effectuate due process.”

Id.

Plaintiffs were neither arrested nor detained as a direct result of these violations.

(See

Vill. Defs.’ Ex. D at 77.)

Moreover, there were no restrictions on plaintiffs’ travel. Plaintiffs contend that multiple court appearances were required of them — because they were issued multiple tickets. In

Albright v. Oliver,

510 U.S. 266 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994), Justice Ginsburg’s concurrence noted that restrictive conditions of pretrial release on a “serious criminal charges,” i.e., “a felony charge, constitute a Fourth Amendment seizure.”

Burg,

591 F.3d at 97 (emphasis added) (citing

Albright v. Oliver,

510 U.S. 266, 271 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994)). However, the Second Circuit noted that “[t]he number of appearances may bear upon whether there was a seizure — though it is hard to see how multiple appearances required by a court, for the convenience of the person answering the summons, can be attributed to the conduct of the officer who issues it.”

Id.

at 98. Here, because plaintiffs were issued separate summonses for their admitted continued non-compliance

*228

with the rental permit statute, the Court concludes that under the circumstances of this case, plaintiffs have not identified a seizure implicating their personal liberty and privacy interests under the Fourth Amendment.

Cf. Corcoran v. Higgins,

No. 08 Civ. 10734(HB), 2010 WL 1957231 , at *4 (S.D.N.Y. May 13, 2010) (“Corcoran received summonses for two alleged misdemeanors, as shown on the face of the Uniform Traffic Tickets that she was issued. She was not subject to any other encumbrances on her liberty. Corcoran claims that she made ‘multiple appearances’ before the East Fishkill Town Court, but alleges nothing more to suggest that her repeated visits to the court, collectively, rose to the level of a Fourth Amendment seizure. Accordingly, Higgins’s motion for summary judgment on the malicious prosecution claim is granted.”);

Rotenberg v. Town of Mamaroneck,

No. 08 Civ. 4703(JSR), 2010 WL 3468051 , at *3 (S.D.N.Y. Aug. 24, 2010) (“[T]he Court concludes that requiring plaintiffs to appear in court twice in connection with the summons — for an initial appearance and a one-day trial — is not a sufficient deprivation of liberty to rise to the level of a constitutional injury.”). Accordingly, plaintiffs are unable to bring a malicious prosecution claim based on the tickets issued for alleged violations of the Village Code.

See Manbeck v. Micka,

640 F.Supp.2d 351, 370 (S.D.N.Y.2009) (“Here, in the criminal actions, Gennimi was merely issued appearance tickets to appear in Town Justice Court to answer misdemean- or charges of violations of the Town’s Zoning Laws. There is no evidence in the record that she was ever physically detained in any way. Likewise, there is no evidence that the civil proceedings commenced against Gennimi in Westchester County resulted in any ‘seizure’ sufficient to satisfy the constitutional element of a Section 1983 action. Thus, Gennimi’s malicious prosecution claims under Section 1983 must be dismissed on this basis alone.”);

Richardson v. N.Y. City Health & Hosps. Corp.,

No. 05 Civ. 6278(RJS), 2009 WL 804096 , at *15 (S.D.N.Y. Mar. 25, 2009) (“[A] pre-arraignment summons does not constitute a seizure when evaluating a malicious prosecution claim[ ], and [a] § 1983 malicious prosecution claim requires more than a single court appearance to constitute a deprivation of liberty.... The single court appearance was not a Fourth Amendment ‘seizure’ caused by the initiation of criminal proceedings, and these events cannot support a constitutional claim for malicious prosecution.” (collecting cases) (internal quotations omitted));

Wang v. City of N.Y,

Nos. 05 Civ. 4679(AKH), 05 Civ. 5943(AKH), 2008 WL 2600663 , at *4 (S.D.N.Y. June 26, 2008) (“In order to show that the tort of malicious prosecution is also a § 1983, or constitutional violation, plaintiff must show some post-arraignment deprivation of liberty. ... Plaintiffs also allege 43 malicious prosecution claims involving the issuances of summons returnable to the ECB and the NYC Criminal Courts. I hold that a pre-arraignment summons does not constitute a seizure when evaluating a malicious prosecution claims.” (internal citations omitted));

see also

Mangino Vill. 50-h Dec. 1, 2005, at 73-76.) Specifically, plaintiffs further argue that “the improper threat by the Village prosecutor in an effort to coerce plaintiffs from pursuing their right to defend themselves against the criminal prosecution commenced by the Village defendants is an abuse and violation of law.” (Pl. Opp. at 36.)

The Village defendants argue that there was probable cause for the issuance of the tickets. Probable cause, as such, is not an element of the tort of abuse of process.

See Music Center S.N.C. v. Prestini Musical Instruments Corp.,

874 F.Supp. 543, 556 (E.D.N.Y.1995). Moreover, the existence of probable cause is not determinative of a claim of malicious abuse of process.

See Lodges 713 and 1716,

*233

Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. United Aircraft Corp.,

534 F.2d 422 , 465 n. 85 (2d Cir.1975) (“Since the Company unquestionably had probable cause to file a suit in this case, there is no allegation of malicious prosecution. Abuse of process, however, does not depend upon whether or not the action was brought without probable cause or upon the outcome of the litigation.”);

VanZandt v. Fish & Wildlife Serv.,

524 F.Supp.2d 239, 247 (W.D.N.Y.2007) (“[P]rocess properly issued on probably cause can nonetheless be abused.”).

This is because “process properly issued on probable cause can nonetheless be abused.”

VanZandt,

524 F.Supp.2d at 247 .

The Second Circuit has stated that “ ‘the gist of the tort’ of abuse of process, [as] distinguished from malicious prosecution, ‘is not commencing an action or causing process to issue without justification, but misusing or misapplying process

justified in itself

for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance.’”

Weiss v. Hunna,

312 F.2d 711, 717 (2d Cir.1963) (emphasis added) (citing Prosser, Torts, at 667-68 (2d ed. 1955)). Under the facts of this case, the Court determines that, even if probable cause existed to warrant the issuance of the tickets to plaintiffs, plaintiffs have put forward sufficient evidence to create a genuine issue of disputed fact as to whether defendants attempted to use this “process justified in itself’ for an end other than that which it was designed to accomplish — namely, to pressure plaintiffs into ceasing their challenge to the constitutionality of the Rental Permit Law.

3. Warrantless Entry

a. Standing

The Village defendants argue that plaintiffs have no standing to bring a Fourth Amendment warrantless entry claim because they are absentee landlords. The Court concludes that plaintiffs have put forward sufficient evidence to establish their standing to challenge the search of the basement of 21 Church Street, but not Gucciardo’s apartment.

To have standing to object to an entry and search of a home under the Fourth Amendment, a plaintiff must show that he had a “ ‘legitimate expectation of privacy’ ” in the place searched.

United States v. Hamilton,

538 F.3d 162, 167 (2d Cir.2008) (quoting

Rakas v. Illinois,

439 U.S. 128, 143 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978)). “This inquiry involves two distinct questions: first, whether the individual had a subjective expectation of privacy; and second, whether that expectation of privacy is one that society accepts as rea

*234

sonable.”

Id.

“A protected privacy interest has been found in a wide array of circumstances, ranging from ownership or regular occupancy of a home, to status as an overnight guest in someone else’s home, or even in someone else’s hotel room, to a rental storage unit, to one’s business premises, including the desk drawers and file cabinets contained therein, as well as the contents of one’s office computer.”

Nieves v. N.Y. City Police Dep’t,

716 F.Supp.2d 299, 307 (S.D.N.Y.2010).

The Village defendants argue that plaintiffs were “absentee landlords” of 21 Church Street and, therefore, have no standing to bring an unlawful search claim. Plaintiffs concede that they were absentee landlords of 21 Church Street. (PL Vill. 56.1 ¶ 5.) Plaintiffs argue, however, that they may claim standing to challenge the entry of 21 Church Street generally as landlords. A landlord generally does not have a reasonable expectation of privacy with respect to property that he has rented to a tenant and that is occupied by that tenant.

See, e.g., Johnson v. Weaver,

248 Fed.Appx. 694, 697 (6th Cir.2007) (concluding that state department of natural resources officers did not violate property owner’s Fourth Amendment rights when they knocked on door of tenant’s house, notwithstanding owner’s prior order to officers to stay off his property, since the tenant lived there, and plaintiffs “ownership alone d[id] not create a reasonable expectation of privacy”);

Steinhauser v. City of St. Paul,

595 F.Supp.2d 987, 1006-07 (D.Minn.2008) (landlords did not have reasonable expectation of privacy in their tenants’ apartments, and therefore lacked standing to bring § 1983 claims based on searches of tenants’ apartments),

rev’d in part on other grounds by Gallagher v. Magner,

619 F.3d 823 (8th Cir.2010);

United States v. Cruz,

475 F.Supp.2d 250, 257 (W.D.N.Y.2007) (“Ownership of premises alone does not automatically confer standing”);

Dearmore v. City of Garland,

400 F.Supp.2d 894, 900 (N.D.Tex.2005) (“[T]he property owner has no expectation of privacy if the property is leased.”).

Plaintiffs argue that

Beatty v. Township of Elk,

Civil No. 08-2235 (RBK/JS), 2010 WL 1493107 , 2010 U.S. Dist. LEXIS 36673 (D.N.J. Apr. 14, 2010) provides support for their position that, as landlords, they have standing to challenge an unlawful search.

Beatty

asserted that certain factors may be examined in order to determine whether a landlord has standing to challenge a warrantless search of a tenant’s property. Those factors include whether the landlord/owner had: (1) a proprietary or possessory interest in the property; (2) the right to exclude others; (3) taken precautions to maintain privacy; (4) exhibited a subjective expectation of privacy; or (5) been legitimately on the premises.

Id.

at *8 , 2010 U.S. Dist. LEXIS 36673 at *25-26. Other factors include whether the landlord had immediate right to exclusive possession of the property, had a key to the property, lived in the property, kept personal clothing there, frequently used the property, and had permission to frequently use the property.

Id.

at *8-9 , 2010 U.S. Dist. LEXIS 36673 at *26-27. Plaintiffs, as landlords, own 21 Church Street. However, plaintiffs admit that they did not live at 21 Church Street; plaintiffs rent out eight units on the premises. (Mangino Aff. ¶ 2.) Plaintiffs have not presented evidence demonstrating that they possessed a reasonable expectation of privacy in the apartment units that they were leasing to tenants. First, aside from their conclusory assertions that they possessed a subjective expectation of privacy in their tenants’ apartments, plaintiffs have provided no evidence that they, in fact, did have a subjective expectation of

*235

privacy there.

Beatty ,

the court determined that the landlords’ claims of standing to challenge an unlawful entry survived summary judgment because the landlords presented evidence that the alleged tenant “was a mere guest ... which seems to infer the Beattys maintained a contemporaneous right of possession. Further, the Court’s own review of the record reveals that perhaps the Beattys indeed maintained property at 535 8th Avenue, such that they had an expectation of privacy.”

Beatty,

2010 WL 1493107 , at *8-9, 2010 U.S. Dist. LEXIS 36673 , at *27-28. In the instant case, plaintiffs acknowledge that they rented the apartments at 21 Church Street to tenant's. They do not allege that the tenants were “mere guests,” or that they maintained property in the tenants’ apartments.

Nonetheless, even if plaintiffs lack standing to challenge the search of Gucciardo’s apartment, they have presented sufficient evidence of standing with respect to the search of the basement. In particular, Mr. Mangino has submitted evidence that, at minimum, creates an issue of fact regarding whether he had a reasonable expectation of privacy in the basement area of 21 Church Street. Mr. Mangino submitted an affidavit that stated that he granted two tenants the right to access and use “specific areas of the basement of the premises for storage, in exchange for additional rent.” (Mangino Aff. ¶ 2.) In the basement,

there was a separate and private room which [Mr. Mangino] continuously had exclusive possession and sole use of. The door to this private room had a double pad lock, and [Mr. Mangino] was the only person that possessed a key to this room. [He] used the room in the basement for [his] own personal use. This room contained, amongst other things, DVR electronic security equipment for the premises, a monitor, desk and chair, tools, CD’s, and personal papers. [He] had an expectation of privacy in [his] private room, and kept the door locked at all times to preserve [his] privacy as well as to secure [his] personal belongings.

(Id.

¶ 4;

see also

Pl. Vill. 56.1 ¶ 19.) Mr. Mangino contends that, on July 25, 2005, during the search of the premises by the Fire Department, he was ordered to unlock the door to his private room by the Fire Department. (Mangino Aff. ¶ 5.) He further claims that this door was left open while various personnel were present on the premises, where the contents of the private room were in plain view to all, including Fire Marshall Poulos.

(Id.

¶¶ 6-8;

see also

Mangino Vill. 50-h at 45-48.) Because Mr. Mangino has presented evidence that he had not only a possessory right but also exclusive access to this room, which was kept double locked, plaintiffs have presented sufficient factual evidence from which a reasonable jury could conclude that he has standing to present his Fourth Amendment unlawful search claims. Thus, plaintiffs have demonstrated that Mr. Mangino has standing to challenge any unlawful entry and search of the basement at 21 Church Street.

b. Unlawful Search

The Fourth Amendment protects individuals in their homes “against unrea

*236

sonable searches and seizures.” U.S. Const, amend. IV. “A warrantless search is ‘per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.’” Uni

ted States v. Elliott,

50 F.3d 180, 185 (2d Cir.1995) (quoting

Schneckloth v. Bustamonte,

412 U.S. 218, 219 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973)).

Even though defendant Poulos’s search was administrative in nature, administrative searches cannot be made without the owner’s consent unless a search warrant is first obtained. Searches for administrative purposes, like searches for evidence of crime, are encompassed by the Fourth Amendment. Under the Fourth Amendment, “one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”

Camara v. Mun. Court of S.F.,

387 U.S. 523, 528-29 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 (1965).

(i) Exigent Circumstances

The Court first examines whether exigent circumstances justified the warrant-less entry of the Fire Department defendants and Poulos into 21 Church Street. The Court determines that exigent circumstances warranted the Fire Department defendants’ entry into the home but concludes that there are disputed issues of fact regarding whether exigent circumstances justified Poulos’s subsequent entry into the house.

A warrantless search is permissible if exigent circumstances require state officials’ immediate entry to the property. The Supreme Court has stated that

the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions,

see, e.g., United States v. Santana,

427 U.S. 38, 42-43 , 96 S.Ct. 2406 , 49 L.Ed.2d 300 (1976) (hot pursuit of a fleeing felon);

Warden v. Hayden,

387 U.S. 294, 298-99 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967) (same);

Schmerber v. California,

384 U.S. 757, 770-71 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) (destruction of evidence);

Michigan v. Tyler,

436 U.S. 499, 509 , 98 S.Ct. 1942 , 56 L.Ed.2d 486 (1978) (ongoing fire), and has actually applied only the “hot pursuit” doctrine to arrests in the home,

see Santana, supra.

Welsh v. Wisconsin,

466 U.S. 740, 749-50 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 (1984). A search may be reasonable under the emergency aid doctrine when officers reasonably believe that it is necessary to protect the occupants of the residence from imminent injury.

Brigham City, Utah v. Stuart,

547 U.S. 398, 403 , 126 S.Ct. 1943 , 164 L.Ed.2d 650 (2006) (“[L]aw enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” (citation omitted)).

(a) Fire Department

The Supreme Court has held that “[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry ‘reasonable.’ Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze.”

Michigan v. Tyler,

436 U.S. 499, 509 , 98 S.Ct. 1942 , 56 L.Ed.2d 486 (1978). Moreover, the right to warrantless entry following reports of a fire does not end

*237

immediately upon discovery of a fire. Instead, the Supreme Court noted:

Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire’s origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims. For these reasons, officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.

Id.

at 510 .

Plaintiffs concede that defendant Poulos called the Fire Department on July 25, 2005 and requested its assistance for arcing or sparking outlet wires at 21 Church Street. (PI. FD 56.1 ¶ 1.) Plaintiffs also concede that the Fire Department should be called for a complaint of sparking or arcing wires.

(Id.

¶2.) Thereafter, the Fire Department received a structural fire alarm at 11:01 a.m.

(Id.

¶ 3.) Fire trucks responded to the call, and the Fire Department arrived at 21 Church Street at 11:04 a.m.

(Id.

¶¶ 4-5.) Upon the Fire Department’s arrival, Poulos informed the Fire Department that there was a report of arcing wires and that the house was very old and had a previous fire.

(Id.

¶¶ 6-7.) At that point, Mr. Mangino informed Wagner that he would only allow the firefighters to enter the house to resolve the problem, but that Poulos was not allowed in the house.

(Id.

¶¶ 8-9.)

Wagner then explained to Mr. Mangino that, since the Fire Department received an emergency call, it had an obligation to investigate.

(Id.

¶¶ 10-11.) Pursuant to Village of Patchogue Town Law § 170, emergency personnel are permitted and authorized to enter premises when there has been an emergency call for such premises.

At that time, Wagner assigned firemen to go into the house to investigate.

(Id.

¶ 12.) Captain Matthew Welsh of the Fire Department entered 21 Church Street with two to four firemen to inspect the premises.

(Id.

56.1 ¶ 13.) Under these circumstances, the firefighters had an objectively reasonable basis for believing that there was a fire inside 21 Church Street. The Court notes that:

[n]othing in the Fourth Amendment required [the firefighters] to wait until they saw actual smoke or flames to enter a building that they reasonably believed might be on fire.... Nor is it relevant that no fire or smoke was found. The objective standard for assessing reasonableness focuses on what the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe.

[Moreover,] the Supreme Court has made clear that the subjective intent of government agents is irrelevant to determining whether a particular search

*238

was reasonable under the Fourth Amendment.... Rather, “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ ”

United States v. Klump,

536 F.3d 113, 118-19 (2d Cir.2008) (internal citations omitted). In the instant case, the firemen inspected the entire building, including the basement. (Pl. FD 56.1 ¶ 15.) Furthermore, Poulos testified, and plaintiffs have not provided evidence to refute, that firemen would normally investigate the staircase stringer and structural issues during a structural fire alarm for their own safety.

(Id.

¶ 29; FD 56.1 ¶ 29.) To the extent that plaintiffs contend that a search of the basement was not justified, the Court concludes that such a search was reasonable under the circumstances.

See Klump,

536 F.3d at 119 (“[Defendant] asserts that the firefighters and agents had no reason to search the first and second floors of the warehouse because the burning smell appeared to originate from the top of the building. He contends that the firefighters and agents should have proceeded directly to the third floor and, having found no fire or smoke there, immediately left the warehouse. We disagree. Under the totality of the circumstances, the firefighters acted reasonably in searching all three floors to locate the source of the burning smell and determine whether the warehouse was on fire.”).

The record supports the contention that the Fire Department defendants’ actions were for the purpose of securing safety.

Upon arriving at 21 Church Street, responding to reports of sparking or arcing outlets, the Fire Department was permitted to enter without a warrant to inspect the premises in order to determine the location of any alleged fire or perceived fire danger. Even once the Fire Department defendants had determined that there was no fire, once in the building, Fire Department officials were permitted to lawfully remain there for a reasonable time to investigate the cause of the alleged dangers at the premises.

See Tyler,

436 U.S. at 510-11 , 98 S.Ct. 1942 . Accordingly, the Court concludes that the Fire Department defendants’ entry of 21 Church Street was justified by exigent circumstances and grants them summary judgment on plaintiffs’ Fourth Amendment unlawful entry claim.

(b) Village Defendants

The Village defendants contend that exigent circumstances existed that also justified Poulos’s entry into 21 Church Street. For the reasons set forth below, the Court concludes that issues of disputed fact exist, which precludes summary judgment on whether an emergency still existed at the time of Poulos’s subsequent entry.

“A warrantless inspection of a private dwelling by a municipal administrative officer without the consent of the owner is generally unreasonable absent specifically delineated circumstances.... However, searches pursuant to a regulatory scheme need not adhere to the usual requirements where special governmental needs are present.”

Shapiro v. City of Glen Cove,

No. CV 03-0280(WDW), 2005 WL 1076292 , at *13 (E.D.N.Y. May 5, 2005) (citing

Palmieri v. Lynch,

392 F.3d 73, 79-80 (2d Cir.2004) (internal citations and quotation marks omitted)). “The circumstances in which a warrantless search

*239

of a private dwelling is deemed constitutional are narrow and specific,” but “Warrantless searches have regularly been allowed when they were conducted pursuant to some legislated regulatory scheme in situations in which there was found to exist a diminished expectation of privacy.”

Palmieri,

392 F.3d at 79 -80

n. 3. Here, there is a disputed issue of fact regarding whether exigent circumstances existed that required Poulos to inspect the building site for serious violations.

The Village defendants first contend that exigent circumstances were created based upon Gucciardo’s call to the Village Housing Department. On July 21, 2005, Gucciardo called the Village Housing Department regarding her apartment. (Vill. Defs.’56.1 ¶ 214; Pl. Vill. 56.1 ¶ 214.) Defendant Nudo took the call from Gucciardo and created an Incident Report as a result of this call. (Pl. 56.1 ¶¶ 214-15.) Plaintiffs and the Village defendants dispute the nature of Gucciardo’s call. The Village defendants argue that Gucciardo was calling to make a “complaint” regarding her apartment (Vill. Defs.’ 56.1 ¶¶ 214-16), whereas plaintiffs argue that Gucciardo was merely calling to have the power checked (Pl. 56.1 ¶ 214). Specifically, the incident report associated with Gucciardo’s call stated:

The undersigned Village of Patchogue Housing Inspector received a call on this date from a Dawn Gucciardo. She stated she’s a tenant in Unit #2 at 21 Church Street in the Village of Patchogue. Ms. Gucciardo stated she’s having a problem with her landlord. He’s allegedly made promises that have not been kept regarding repairs to her apartment. She said her windows don’t remain in an open position, there are holes in her floor, her refrigerator malfunctions, she’s experienced electrical problems and the basement has a large amt of debris. She’s lived there with her 2 small children since Nov ’04 and pays $950 per month. She fears the stated conditions will result in a fire.

(Pl. Ex. 67, Gucciardo Incident Report 7-21-05 with 7-22-05 note.) There was evidence that on July 22, 2005, Gucciardo called the Village back and “stated that things are getting fixed.”

(See id.; see also, e.g.,

Giglio Dep. at 74.) Gucciardo testified that Nudo came on July 22 and checked the outlet. (Gucciardo Dep. at 125, 128-29, 135-37.)

Poulos testified, however, that, on July 25, 2005, he was “informed of sparking wires in an apartment at the Village office, the girl was — a tenant was on the phone and she wanted someone over there right away. That’s when I went right over to determine what the problem was.” (Poulos Dep. at 211.) Thus, Poulos claims that Gucciardo called the Village on the morning of July 25 to complain about the arcing or sparking wires in her apartment.

(See id.

at 211-13 .)

Gucciardo testified that, on the morning of July 25, 2005, she did not call the Fire Department, did not call the Suffolk County Police Department, did not call for an ambulance, and did not call the Village of Patchogue. (Gucciardo Dep. at 230-31.) The Village defendants have failed to present any evidence establishing that a call or complaint regarding Gucciardo’s apartment was made to the Village on July 25, which is notable, because it is the usual custom and practice of the Village to document and/or keep records of corn-

*240

plaints made.

(See

Gallo Dep. at 17-19, 20-22, 58; Giglio Dep. at 55-57, 65, 71; Pontieri Dep. at 298; Poulos Dep. at 217; Nudo Dep. at 105, 114.) Plaintiffs have presented evidence from which a reasonable jury could conclude that Poulos called the Fire Department on the morning of July 25, 2005 to gain access to 21 Church Street to inspect for code violations and not due to immediate concerns about an imminent fire in Gucciardo’s apartment.

The Village defendants argue, in the alternative, that even if exigent circumstances did not exist to justify Poulos’s entry of 21 Church Street prior to the Fire Department’s arrival on July 25, 2005, exigent circumstances existed after the Fire Department entered the home. In particular, the Village defendants contend that Poulos entered the building because the firemen inside observed potential electrical and structural hazards and asked Fire Chief Wagner to send the Fire Marshal inside to inspect it. (Vill. Defs.’ Mem. of Law at 17 (citing Ex. I at 102-03; Ex. LL at 272).) However, plaintiffs have presented evidence from which a reasonable jury could conclude that there were no exigent circumstances necessitating Poulos’s entry into the building at that time. At the deposition of Fire Chief Wagner, he testified:

Q: If there were a hazard, would you have noted it, put it that way?

A: If there was a major hazard, it would have been noted.

Q: Is there a difference between major and minor hazards?

A: Sure there is.

Q: So a non-imminent hazard may not necessarily be noted; is that what you’re trying to say?

A: Yes.

Q: There were apparently, according to documentation, some kind of complaint about stairs. That day, did any of the fire personnel going up or down the steps have any problems with the steps?

A: Don’t remember.

(Wagner Dep. at 173-75.) Wagner also did not recall if he instructed Poulos to enter the premises and, if so, the reason that he called Poulos in:

Q: In this particular instance, it was referred over to the fire marshal, are we able to, as we sit here today, determine for what reasons you referred it to the fire marshal?

A: I don’t recollect what the exact cause was for turning it over to the fire marshal.

Q: Do you have any records that indicate, in fashion, what any of the causes or cause of the fire were?

A: No, I don’t.

Q: If there were some causes that were significant, would they have been noted in this fire report?

A: It’s possible.

Q: When you say “it’s possible,” under what circumstances would it be reported and what circumstances would it not?

A: Again, if there was an imminent problem, I would expect it to have been put down in a document.

(Wagner Dep. at 205-07.) Matthew Welsh, a firefighter who was present on July 25, 2005, stated:

Q: The whole time you were in there from the time you arrived at the premis

*241

es until the time you signed the sheet, you didn’t find any flames?

A: No flame.

Q: You didn’t find any smoldering?

A: No.

Q: Didn’t see any smoke?

A: No.

Q: No sparking or arcing wires?

A: No.

Q: Nothing in the walls either you or your men may have noticed that was hot or any kind of urgent situation? When I say hot, I mean temperature-wise?

A: Right, no.

Q: Did you see anything that would cause immediate cause of fire, meaning something imminently about to com-bust?

A: No.

(Welsh Dep. at 169.)

Thus, plaintiffs have presented factual evidence from which a reasonable jury could find that there were no exigent circumstances justifying Poulos’s entry of the apartment. Thus, there is a disputed issue of fact regarding whether exigent circumstances that warranted Poulos’s warrantless entry of 21 Church Street arose once the Fire Department arrived and inspected the building on the morning of July 25, 2005.

(ii) Consent

The Court next examines whether Poulos had consent to enter 21 Church Street, including the basement, -without a warrant. If Poulos had consent to enter the premises, his warrantless entry was justified even if exigent circumstances did not exist. The Court determines that it is undisputed that Poulos did not have Mr. Mangino’s consent to enter the building and that there are disputed issues of fact regarding whether (1) Gucciardo had actual or apparent authority to consent to a search of 21 Church Street; and (2) if so, and if she did provide consent, whether that consent was voluntary.

“To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable

per se,

one jealously and carefully drawn exception recognizes the validity of searches with the voluntary consent of an individual possessing authority.”

Georgia v. Randolph,

547 U.S. 103, 109 , 126 S.Ct. 1515 , 164 L.Ed.2d 208 (2006) (quotations and citations omitted);

accord United States v.

*242

Matlock,

415 U.S. 164, 171 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974);

Koch v. Town of Brattleboro,

287 F.3d 162, 167 (2d Cir.2002) (“A search conducted pursuant to consent by an authorized third party does not require probable cause or a warrant.”) (citing

Matlock,

415 U.S. at 171 n. 7, 94 S.Ct. 988 ). Depending on the circumstances, “[t]hat person might be the householder against whom evidence is sought, or a fellow occupant who shares common authority over property, when the suspect is absent.”

Randolph,

547 U.S. at 109 , 126 S.Ct. 1515 (citing

Schneckloth,

412 U.S. at 222 , 93 S.Ct. 2041 and

Matlock,

415 U.S. at 170 , 94 S.Ct. 988 ).

(a) Mr. Mangino’s Consent

Although the Village defendants move for summary judgment on this claim, there remain issues of fact that preclude this claim from being resolved by way of summary judgment. In particular, although it is undisputed that Mr. Mangino allowed the Fire Department to enter the residence without a warrant, he specifically did not allow Poulos to enter the residence. (Pl. FD 56.1 ¶ 9; see

also

Poulos Dep. at 229.) Poulos, as conceded at oral argument by the Village Defendants, was not a member of the Fire Department, as the Fire Marshal is not affiliated with the Fire Department, but rather is an official employed by the Village of Patchogue. Mr. Mangino’s consent for the Fire Department to enter was not a broad consent for the Fire Marshal, Poulos, to enter as well. “The standard for measuring the scope of [an individual’s] consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?”

Florida v. Jimeno,

500 U.S. 248, 251 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991);

see also

Mangino Vill. 50-h Dec. 1, 2005, at 73-76.) Fourteen of the thirty tickets issued to the Manginos in August 2005 were for rental permit violations.

(See

Pl. Exs. 28-57.)

In order to meet the third element, or the chilling requirement, a plaintiff must come forward with evidence showing either that (1) defendants “silenced” him or (2) defendants’ actions had some “actual, nonspeculative chilling effect” on his speech.

Colombo v. O’Connell,

310 F.3d 115, 117 (2d Cir.2002). In particular, “[t]he Supreme Court has held that ‘allegations of a subjective chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”

Curley,

268 F.3d at 73 . (quoting

Laird v. Tatum,

408 U.S. 1, 13-14 , 92 S.Ct. 2318 , 33 L.Ed.2d 154 (1972)). In

Curley v. Village of Suffern,

268 F.3d 65 (2d Cir.2001), the Second Circuit stated that:

[a] plaintiff must show, with respect to the third element, that his First Amendment rights were “actually chilled.”

Davis v. Vill. Park II Realty Co.,

578 F.2d 461, 464 (2d Cir.1978). The Supreme Court has held that “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”

Laird v. Tatum,

408 U.S. 1, 13-14 , 92 S.Ct. 2318 , 33 L.Ed.2d 154 (1972). In the case at bar, despite plaintiffs charge that he was arrested in retaliation for his comments made during the 1993 mayoral campaign, he continued his 1994 campaign for village trustee even after the arrest and ran

*249

again for village public office in 1995. Although plaintiff insists that his 1995 campaign was affected by his arrest— namely, that it was demoralized and only amounted to a token effort — the fact remains that Curley chose to run for public office even after the events of August 1994. Where a party can show no change in his behavior, he has quite plainly shown no chilling of his First Amendment right to free speech.

See Singer [v. Fulton County Sheriff

], 63 F.3d 110, 120 (2d Cir.1995) (finding no chilling effect where, after an arrest, the plaintiff continued to publish his newspaper through which he criticized the village government);

Spear v. Town of

Hartford,

954 F.2d 63 , 67 (2d Cir.1992) (finding no chilling effect where, after the filing of a lawsuit, the plaintiff continued to write criticizing editorials in the same manner as before the lawsuit).

Curley,

268 F.3d at 73 . Thus, “[t]he allegation of a chill is indispensable for private plaintiffs.”

Ford v. Reynolds,

167 Fed.Appx. 248, 250 (2d Cir.2006) (citing

Morrison v. Johnson,

429 F.3d 48, 51 (2d Cir.2005));