Petition for Writ of Certiorari — Rhodes v. Town of Alexander, New York (No. 06-664)

Supreme Car Court U.S.

t) 06-664 SEP 8 - 2006

No, @FFIGE OF THE CLERK

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM 2006

DENNY RHODES - PETITIONER

VS.

THE TOWN OF ALEXANDER,

EDWYN HISE and KARL BENDER

“RESPONDENTS

ON APPEAL FROM COURT OF

APPEALS - STATE OF NEW YORK

PETITION FOR WRIT OF CERTIORARI

RICHARD D. GRISANTI, ESQ.

ATTORNEY FOR PETITIONER

1925 GALAXY DRIVE

ARCADE, NY 14009

(716) 492-3113

~ GALLO & IACOVANGELO, LLP

~ATTORNEY FOR RESPONDENTS

39 STATE STREET, SUITE 700

ROCHESTER, NEW YORK 14614

(585) 454-7145

STATEMENT -

The Petitioner was convicted by the Justice Respondent when

Petitioner pled “not guilty” to violating a zoning ordinance; didn’t

~ withdraw that plea and also not afforded a trial; that said Petitioner

was sentenced to jail for 10 days and fined. He then complained to

- the Judicial Conduct Commission resulting in sacting of admonition .

The lower courts apparently felt the Judge was immuned for his

unlawful and illegal acts, as was contended by Respondents.

QUESTIONS PRESENTED

Did the New York State Courts wrongfully deny the Petitioner

relief after his civil rights and due process rights under the United

States Constitution were violated in the Town Justice; and after the

Respondent Judge was sanctioned by the Judicial Conduct

Commission?

5 St. —.

JURISDICTION

The Decision of the Appellate Division Fourth Department

was dated April 28, 2006. Subsequently, an application for

permission for leave to appeal to the New York Court of Appeal was

denied by decision dated July 5, 2006. Petitioner has 90 days to file

this petition. Decisions herein have not as yet been reported.

TABLE OF CONTENTS

. Questions Presented

. Table of Authorities

. Statement of the Case and

Conclusion

. Appendix State Court

Decisions and Orders

Page i

Pages iii - iv

Pages 1 - 5

Pages i - ix

TABLES OF AUTHORITIES

In re Elsworthy 77 NY 2d 280

. Mc Gee vs. State 59 NY 2d 870

. Sardino vs. State 58 NY 2d 36

. Davidson vs. Scully 69 F 2d 50

. Reese vs. Nelson 598 F 2d 822

. Marks vs. Groff 521 F 2d 1376

_ Brisk vs: City of Miami 726 F Supp 1305

. Mason vs. Melendez 525 F Supp 27

. Pierce vs. Mullnomah Grinty Or. 76 F 3d 1032

. Hafer vs. Melo 502 US 21

. Berman Enterprise Inc vs. Joiling 3 F 3d 602 (2™ Circuit)

12. Buckley vs. Fitzsimmons 509 US 259

13.

14.

15.

16.

17.

18.

19.

20.

21.

Scotlo vs. Amenos

Marty’s Adult World of New Britian,

Inc vs. Gruda

Mandell vs. County of Suffolk

Locurto vs. State

Sheppard vs. Berman

42 USC § 1983 -

Moneel vs. Department of Social

Security of NYC

Dangler vs. New York City

Off Track Betting Corp.

Pembaner vs. City of Cincinnati

iv

143 F 3d 105 (2 Circuit)

453 F Supp 810

316 F 3d 368 (2™ Circuit)

164 F 3d 169-70

948 3d 823 (2™ Circuit)

436 US 694

F 3d 130 (2™ Circuit)

475 US 469

STATEMENT OF THE CASE

POINT 1

THE LOWER COURT ERRED IN DISMISSING

PETITIONERS CIVIL RIGHTS ACTION AND GRANTING

* SUMMARY JUDGEMENT ON THE GROUNDS OF JUDICIAL

AND QUASI-JUDICIAL IMMUNITY

The Petitioner DENNY RHODES served Notice of Claim on

the Respondent TOWN OF ALEXANDER and the action which was

commenced against all Respondents on August 30, 2003. Issue was

joined by service of an Motion of lieu of an answer and subsequently

by service of an Answer.

That an argument on the motion in lieu of an answer was

heard before Hon. Robert C. Noonan, Acting Supreme Court Justice

of Genesee County, New York, which resulted in his dismissal of the

State Court actions as contained in the complaint but upheld the

action based on a violation of Federal Civil Rights statutes, on

December 8, 2003.

After full discovery herein a further motion was made by

Respondents to dismiss the Federal Civil Rights action and said

Justice granted summary judgement on April 29, 2005.

A notice of appeal was timely and duly served and filed herein

from both orders.

That the Petitioner was charged with a violation of zoning

ordinances of the Respondent TOWN OF ALEXANDER and by the

zoning inspector Respondent CARL BENDER on March 30, 2000;

that Petitioner felt and still feels that Respondents set upon a pattern

of harassment in view of the fact that the so called junk and debris

was not junk and debris but consisted basically of 6 operable

automobiles, two of them registered and other items of property

belonging to other persons which Petitioner was repairing for them as

an electrician and welder and which were still to be claimed by

various owners; that further there were also valuable pieces of metal.

These were located on 280 acres of land owned by Petitioner,

concentrated near his home and adjacent barns approximately 100’

from the roadway; that none of these items bothered any neighbors,

nor did they create anything hazardous or unsightly; nor did neighbors

complain to authorities.

During various appearances before the Respondent EDWYN

HISE, Petitioner did make a bonafide removal of various items, even

though he didn’t agree with the charges, including the removal of a 32

foot trailer; even though the Respondent BENDER would report to

the Court that Petitioner did nothing. ;

The result was that after the Petitioner pled “not guilty”, to the

charge and without a trial, the Respondent EDWYN HISE found him

guilty and sentenced him to 10 days in jail and imposed a fine of

$350; even though he never changed his plea to “guilty”. The

Petitioner then filed a complaint with the Judicial Conduct

Commission who found in his favor, issuing a decision which resulted

in a sanction of admonition against said Respondent.

_The Petitioner, thereafter, commenced Action against all three

Respondents alleging causes of actions for negligence, intentional

torts of malicious prosecution, false arrest, and imprisonment and

civil rights violations.

The Lower Court on December 8, 2003 dismissed the state

court actions as being untimely and after allowing the Federal Civil

Rights actions to proceed as having been commenced with in the 3

year Federal statute, dismissed that action, subsequently, on April 29,

2005 and granted summary judgement.

The authorities are uniform in holding that summary

judgement shall not be granted if there is any issue of fact to be

determined by the triers of the facts. To hold otherwise would block a

plaintiff having his day in Court with such a drastic summary

dismissal. This principal of law is so well established that counsel

submits it does not require the setting forth of any citations.

The first issue is that of “probable cause” which always has

been a question of fact. The lower court found as-a matter of law that

the Respondent BENDER had “probable cause” in issuing the

summons for town zoning law violations. The Petitioner claims that

the Respondent TOWN and BENDER have been harassing him since

1993, which culminated in the violation, in question. Even though he

disagreed with the zoning ordinances in relation to his situation, after

appearances in court, he each time removed some of the items set

forth in the violation summons. Further, BENDER at one point

informed the Court that nothing was removed when a 32’ trailer had

been removed by RHODES; hardly unnoticeable!

The Petitioner was so cooperative that he even gave BENDER

his pager number but the latter never contacted him.

Further again, all items were contained in Petitioner’s 280 acre —

tract, 100' from the road near his house and bar, not interfering with

. neighbors nor creating an unsightly hazzard. Even the Deputy who

served him with the summons commented he didn’t see anything

wrong with his property.

Counsel submits, therefore, that there certainly is a question of

fact on the probable cause issue herein.

With regards to the second issue the court further found

privilege, quasi-privilege and absolute or qualified immunity. None

of these protect a judge, a municipality or quasi-judicial officer where

illegal or unlawful acts were committed. In the ease of a judge that has

never been considered to be within his jurisdiction.

None of the Cases cited by the Lower Court apply to the facts

in our case; nor does counsel have any quarrel with those cases.

There are many cases where judges have been removed for

routinely failing to advise defendants of their constitutional rights. In

Re Elsworthy 77 N.Y. 2d. 280; McGee vs. State 59 N.Y. 2d. 870;

Scardino vs. State 58 N.Y. 2d. 36 cases hold that immunity is an

affirmative defense and does not go to the existence of a cause of

action under § 1983 prohibiting the deprivation of civil rights under

color of law. Davidson vs. Scully 69 F. 2D.50.

Further, as a general proposition the question of qualified

immunity of a State official is a matter for factual resolution Reese vs.

Nelson 598 F. 2D. 822; Marks vs. Groff 521 F. 2d. 1376; Brisk vs.

City of Miami Beach Florida 726 F. Supp. 1305; Mason vs. Melendez

525 F. Supp. 27.

See also Pierce vs. Mullnomah County Or. 76 F. 3 1032;

certiorari denied.

Cases also hold that an action against an official in his

individual capacity rather than his official capacity is not barred by the

11" Amendment even though the State or Municipality may

ultimately reimburse him. Hafer vs. Melo 502 U.S. 21; Berman

Enterprises Inc. Vs. Jorling 3 F. 3" 602 (2™ Circuit). Also many of

the authorities have held the absolute immunity under § 1983 is rare

Buckley vs. Fitzsimmons 509 U.S. 259 113 S. Ct. 125; Scotto vs.

Almenos 143 F. 3 105 ( 2™ Circuit); Marty’s Adult World of New

Britain, Inc. Vs. Guida 453 F. Supp 810.

In the case’ ~ ‘andell vs. County of Suffolk 316 F 3d 368 (2™

Circuit), Judge Car. .* one wrote the majority opinion and reversed

and remanded the case for further proceedings and said with regards

to “qualified immunity” that:

“Under the doctrine of qualified immunity, a government

official performing discretionary functions is shielded from liabilites

for civil damages if his conduct did not violate plaintiff's clearly

established rights or if it would have been objectively reasonable for

the official to believe that his conduct-did not violate the plaintiff s

rights. Where specific intent of a defendant is an element of

plaintiff's claim under clearly established law, and plaintiff has

adduced sufficient evidence of that intent to defeat summary

judgement, summary judgement on qualified immunity grounds is

inappropriate. See Locurto, 264 F. 3d. At 169-70; Sheppard v.

Beerman, 94 F 3d. 823, 828 (2d Cir. 1996). In the present case

retaliatory intent is an element of plaintiff's claim, and we have

already noted that plaintiff's evidence of retaliatory animus is

sufficient to make defendants’ motivation a triable issue of fact. Until

that issue is resolved by a fact finder, therefore, the retaliation claim

against defendant Gallagher cannot be dismissed on qualified

immunity grounds.” and with regards to municipal liability the Court

stated:

“A municipal entity may be liable under 42 U.S.C. § 1983 only

if the alleged constitutional violation was caused as the entities

“policy or custom.” Monell vs. Department of Social Services of the

City of New York 436 U.S. at 694, 98 S. Ct. 2018. The “policy or

custom” requirement, however, is intended simply to distinguish acts

of the municipality from acts of its employees in order that the

municipal liability be related to conduct for which the municipality is

actually responsible. Dangler v. New York City Off Track Betting

Corp., F 3 130, 142 (2d Cir. 1999). Thus, if the challenged action is

directed by an official with “final policymaking authority,” the -

municipally may be liable even in the absence of a broader policy.

See Pembauer v. City of Cincinnati, 475 U.S. 469, 481-83, 89 L. Ed.

2d 452 (1986) (“municipal liability attaches only where the decision

maker possesses final authority to establish municipal policy with _

regards to the action ordered.”) Here, plaintiff challenges as retaliatory

4

employment decisions made by Gallagher, who, as the Suffolk County

Police Commissioner, had authority to set department-wide personal

policies. Gallagher’s position provides a sufficient basis for holding

the county liable for his adverse decisions with respect to plaintiff.”

I respectfully submit to this Court that this was a flagrant error

on the part of the New York State Courts and that this court ought to

accept this case for review.

CONCLUSION

Based upon the within, this Court should grant the Writ of Certiorari

herein on the grounds that no one is imntune from unlawful and illegal

violations of a persons civil rights.

| Respectfully Submitted,

RICHARD D. GRISANTI, ESQ.

STATE OF NEW YORK

SUPREME COURT : COUNTY OF GENESEE

DENNY RHODES, -

Plaintiff,

V. Index No. 51380

THE TOWN OF ALEXANDER,

EDWYN HISE AND KARL BENDER,

Defendants.

RICHARD D. GRISANTI, ESQ.

Attorney for Plaintiff

AMY R. COTE, ESQ.

Attorney for Defendants

DECISION AND ORDER

ROBERT C. NOONAN, J.

Plaintiff brought the captioned action against the Town of

Alexander, defendant Hise as Town Justice, and defender Bender as

Town Zoning Enforcement Officer, alleging negligence and/or the

intentional torts of malicious prosecution, false arrest and false

imprisonment. By Decision and Order of

December 8, 2003, this Court previously granted defendants’ motion

to dismiss the complaint as time-barrred (CPLR 321 1(A\(5)) to the

extent of the state law claims, but permitted the comparable federal

‘claims to go forward (42 USC § 1983). Issue having been joined and

discovery conducted, defendants now move for summary judgment

dismissing the balance of the complaint on the merits (CPLR §3212).

Plaintiff opposes upon the affidavit and memorandum of counsel.

Argument was heard at the April 28, 2005 Special Term of this Court.

The limited record submitted on motion reveals that on

defendant Bender’s complaint, plaintiff was cited; by both appearance

ticket and criminal summons, to appear in Town Court for failure to

remedy unsightly conditions and unregistered motor vehicles on his

property, an alleged violation of the Town Zoning Ordinance. On

June 27, 2000, plaintiff appeared without counsel before defendant

Justice Hise and, without entering a plea, indicated only that he had

been working on cleaning up his property. The matter was then

adjourned in contemplation of defendant’s compliance with the

Zoning Ordinance.

After failing to satisfactorily remedy the situation by

September of 2000, the Court was notified by Zoning Enforcement

Officer Bender and plaintiff was again directed to appear in Court on

October 17, 2000. On that occasion, defendant acknowledged that he

had not yet cleaned up his property. In view of what the Court

considered an

admission to the underlying allegations, defendant Justice Hise then

summarily sentenced plaintiff to a fine of $350.00 and 10 days in jai’,

without benefit of counsel, plea or trial. Defendant then spent

approximately 28 hours in jail before obtaining his release.

While state common law rights may parallel constitutional

claims, only the violation of a constitutional right is actionable under

42 USC §1983 (Ruggiero v. Phillips, 292 AD2d 41). “To prevail

against a government entity or employee in a claim under that section,

a plaintiff must demonstrate the existence of ‘(1) an official policy or

custom that (2) causes [the plaintiff] to be subjected to (3) a denial of

a constitutional right’ “ (Linen v. County of Rensselaer, 274 AD2d

911, 913; quoting, Howe v. Village of Trumansburg, 199 AD2d

749, 751).

While plaintiff undoubtedly had a protected constitutional

right to his liberty (Linen v. County of Renssealaer, supra),

plaintiff's defense to the underlying criminal proceeding was his

disagreement in principle with the zoning laws. Piaintiff has failed to

raise a genuine issue of fact that defendant Bender did’not, as put

forward by defendants, have probable cause to lodge a complaint

under the existing ordinance based upon the condition of plaintiff's

premises. Such probable cause is a complete defense to the federal

civil rights action against defendant Bender (Restey v. Higgins

252AD2d 954

For his part, respondent Justice Hise was subsequently admonished by

the State Judicial Conduct Commission for convicting and sentencing

defendant in violation of “fundamental statutory procedures”.

Nonetheless, although his actions were unauthorized, it does not

. appear that Justice Hise acted completely outside his jurisdiction since

he was the local magistrate having jurisdiction over both the subject

matter and person of the defendant. Defendant Justice Hise is

therefore immune from personal liability (cf. Alvarez v. Snyder, 264

AD2d 27; Mullen v. State of New York, 122 AD2d 300; Word v.

City of Mt. Vernon, 65 AD2d 622; 62ANYJur2d, Government Tort

Liability §144). :

Finally, absent an official custom or policy, a municipality

such as the Town of Alexander cannot be held liable for violation of

an individual’s federal civil rights solely because it employs a

torfeasor (Monell v. Department of Social Services, 436 US 658;

Brown v. City of New York, 289 AD2d 95; Schulik v. County of

Monroe, 202 AD2d 960; Howe v. Village of Trumansburg, supra).

Accordingly, defendants are entitled to summary judgment

dismissing the balance of plaintiff's complaint. Submit Judgment

accordingly. ~

Dated: April 29, 2005 *s/ vs

Batavia, New York HON. ROBERT C. NOONAN

GRANTED: ~ Acting Supreme Court Justice

Date: 4/29/05

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COURT CLERK

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SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

479

CA 05-01927

PRESENT: PIGOTT, JR., P.J. HURLBUTT, GORSKI,

MARTOCHE, AND HAYES, JJ.

DENNY RHODES, PLAINTIFF-APPLANT,

V

TOWN OF ALEXANDER, EDWYN HISE AND

CARL BENDER, DEPFENDANTS-RESPONDENTS.

RICHARD D. GRISANTI, ARCADE, FOR PLAINTIFF-

APPEALLANT.

GALLO & IACOVANGELO, LLP, ROCHESTER (CHRISTIAN A.

CATALANO OF COUNSEL), FOR DEFENDANTS-

RESPONDENTS.

Appeal from an order of the Supreme Court, Genesee County

(Robert C. Noonan, A.J.), dated April 29, 2005. The order granted

defendants’ motion for summary judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from be and

the same hereby is unanimously affirmed without costs for reasons

stated in decision at Supreme Court. _

Entered: April 28,2006 JoAnn M. Wahl

sy Clerk of the Court

Supreme Court

APPELLATE DIVISION, ‘

Fourth Judicial Department, .

Clerk’s Office, Rochester, N.Y. }

I, JOANN M. WAHL, Clerk of the Appellate Division of the

~

Supreme Court in the Fourth Judicial Department, do hereby certify

that this is a true copy of the original order, now on file in this office.

SUPREME COURT IN WITNESS WHEREOPF, I have

APPELLATE DIVISION hereunto set FOURTH

DEPARTMENT my hand and affixed the

seal of said Court in the City of

Rochester, New York, this APR 28

2006

*e/ ”

Clerk

vi

State of New York,

Court of Appeals

At a session of the Court, held at Court of

Appeals Hall in the City of Albany

on the .....:........ + ER day

Present, HON. JUDITH S. KAYE, Chief Judge, presiding.

4-10 Mo. No. 607

Denny Rhodes,

Appellant,

v.

Town of Alexander, et al.,

Respondents.

A motion for leave to appeal to the Court of Appeals in the

above cause having heretofore been made upon the part of the

appellant herein and papers having been submitted thereon and due

deliberation having been thereupon had, it is

ORDERED, that the said motion be and the same hereby is

denied with one hundred dollars costs and necessary reproduction

disbursements.

“o/ ”

Stuart M. Cohen

Clerk of the Court

Vil

At a special term of the Supreme

Court of the State of New York

held in and for the County of

Genesee, Bativia, New York on

the 28" day of April, 2005.

. PRESENT : Honorable Robert C. Noonan

Supreme Court Justice

STATE OF NEW YORK

SUPREME COURT : COUNTY OF GENESEE

DENNY RHODES,

Plaintiff,

V. Index No. 51380

THE TOWN OF ALEXANDER,

EDWYN HISE AND KARL BENDER,

Defendants.

Upon reading the Notice of Motion, dated March 4, 2005, of

the Defendants, THE TOWN OF ALEXANDER, EDWYN HISE, and

KARL BENDER, seeking summary judgment dismissing the

Plaintiffs Complaint, with supporting Affirmation of Amy R. Cote,

Esq., dated March 4, 2005, and the exhibits annexed thereto, served in

support of the Motion; and the Opposing Affidavit of Richard D.

Grisanti, Esq., dated “April _, 2005,” served on behalf of the

Plaintiff in opposition to the Motion;

And, the Motion having duly come before the Court for oral

argument, at the above-referenced Special Term thereof, and the

Plaintiff having appeared by Richard D. Grisanti, Esq.; and the

Defendants having appeared by Gallo & Iacovangelo, LLP, Amy R.

Cote. Esq., Of Counsel; and after due deliberation the Court having

rendered its Decision and Order, dated April 29, 2005, a copy of which

is annexed hereto as Exhibit “A;” it is hereby

ORDERED that the Defendants motion is granted dismissing

Viil

the Plaintiff's Complaint in its entirety; and it is further

ORDERED that the requirement for filing of papers considered

in connection with this motion is hereby dispensed with pursuant to

CPLR §2220.

Dated: Batavia, NY ENTER

May12, 2005

-— is

Hon Robert C. Noonan

Supreme Court Justice(Acting)

GRANTED

May i2, 2005

we s/ 39

COURT CLERK

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