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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANNA NICOLE MOHA and NANCY BRUNO, Plaintiffs,
-

12 Civ. 5075 (PED)

against

MEMORANDUM AND ORDER

BARBARA DUNN, et al., Defendants. PAUL E. DAVISON, U.S.M.J.: I. INTRODUCTION

Before the Court are the following motions: (1) defendant Barbara Dunn (Dunn)s motion for summary judgment on plaintiffs malicious prosecution claim (Dkt. 44); (2) defendant Putnam County Humane Society, Inc. (PHS)s motion for summary judgment on all claims asserted against it (Dkt. 49); (3) defendants Donald Blame Smith (Smith) and the County of Putnam (Putnam County or the County)s motion for judgment on the pleadings as to all claims except the malicious prosecution claim (Dkt. 53); and (4) plaintiffs Anna Nicole Moha f/k/a Anna Nicole Bruno (Moha) and Nancy Bruno (Bruno)s motions to amend their pleading to add a cause of action for replevin and for summary judgment on that claim (Dkt. 57). The parties have consented to my jurisdiction for all purposes. (Dkt. 35.) For the reasons set
forth below, Dunns motion is GRANTED; PHSs motion is GRANTED; Smith and the

Countys motion is GRANTED; and plaintiffs motions are DENIED. The case is
DISMISSED. II. BACKGROUND

of 42 U.S.C.

1983 and state law arising from events relating

L)

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to Mohas 2005 arrest and prosecution on animal abuse charges. The pertinent allegations and disputed and undisputed facts are summarized below.
A. The Arrest and the Initiation of the Criminal Proceeding

At some point prior to December 6, 2005, Bruno adopted a thoroughbred horse named Colby as a gifi for her daughter, Moha. Both plaintiffs owned and exercised control and/or custody over their familys horse. (Am. Compi.

37, 41.) On December 6, 2005, an

accusatory instrument was filed in the Town of Putnam Valley Justice Court that charged Moha with one count of animal cruelty, in violation of Section 353 of the New York State Agriculture and Markets Law, 1 for beating Colby on the head with a weapon. 2 The accusatory information was based on three supporting depositions by eyewitnesses who described the attack in detail. (Witness Statements (attached to Aronwald Affirm. (Dkt. 45). at Ex. A); Def. Barbara Dunns Statement of Undisputed Material Facts Pursuant to Local Civ. R. 56.1 (Dunns 56.1(a))

(Dkt. 47); Pis. Response to Def. Barbara Dunns Statement of Undisputed Facts Pursuant to

A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who wilfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a class A misdemeanor and.. shall be treated as a misdemeanor defined in the penal law.
.

N.Y. Agric. & Mkts. Law

2

353.

Specifically, the information alleged that on November 17, 2005, Moha beat the horse with a chain lead shank, causing two severe injuries to his face requiring veterinary treatment, stitches and surgical staples. (Information (attached to Marzolla Aff. (Dkt. 58), at Ex. G).)
2

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Local Civil R. 56.1 (Pl.s 56.1(b) to Dunn)

2 (Dkt.

72); Def. Putnam County Humane

Societys Statement of Undisputed Facts Pursuant to Local R. 56.1 CPHSs 56.1(a))

4 (Dkt.

51); Pls. Resp. to Def. Putnam County Humane Societys Undisputed Facts Pursuant to Local Civ. R. 56.1 (PIs. 56.1(b) to PHS) 4 (Dkt. 71).) The information was subscribed by Dunn, then employed as a Deputy Sheriff for the County. (Information; Am. Compl. 56.1(a) 1; Pls. 56.1(b) to PHS

8, 39-40;

PHSs

1; Pis. Local R. 56.1 Statement of Facts (Pls. 56.1(a))

(Dkt. 60); Def. Putnam Humane Societys Resp. to Pls. Statement of Material Facts Pursuant to Local Civ. R. 56.1 (PHSs 56.1(b))

1 (Dkt. 66); Defs. Dunn & Halls Resp. to Pls.

Statement of Material Facts Pursuant to Local Civ, R. 56.1 (Dunns 56.1(b))

1 (Dkt. 87).) A

temporary order of protection was issued requiring Moha to stay away from the farm where Colby boarded. (Am. Compl. PHSs 56.1(a)

46.)

Dunn arrested Moha on December 17, 2005. (j 47;

3; Pis.

56.1(b) to PHS

4.)

At some point thereafter, Moha retained counsel.

PHSs 56.1(a) Statement states: The Information and appearance ticket were issued Exhibit A to on complaints and sworn handwritten statements of three witnesses. based the Affirmation of William Aronwald. (PHSs 56.1(a) 4.) Plaintiffs counter-statement states simply: Deny. The document speaks for itself and Plaintiffs respectfully refer all questions of law to the Court. (Pls. 56.1(b) to PHS 4.) Plaintiffs response to a similar paragraph in Dunns 56.1(a) statement is the same. (Dunns 56.1(a) 2; Pls. 56.1(b) to Dunn 2.) These counter-statements do not comply with Local Rule 56.1(d), which requires that [ejach statement (b), including each statement controverting any by the. opponent pursuant to Rule 56.1 statement of material fact,. be followed by citation to evidence which would be admissible, set forth by Fed. R. Civ. P. 56(c). Local R. 56.1(d). Plaintiffs 56.1(b) statements cite no admissible evidence to controvert the material fact that the accusatory was based upon the sworn statements of three eyewitnesses. Plaintiffs failure to comply with the local rule by citing admissible evidence in support of their controverted statement deems the defendants statements admitted. R. 56.1(c); Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003).
. . . . . . .

Plaintiffs maintain that Dunn simultaneously served as President of PHS during this time. PHS and Dunn dispute this and admit only that Dunn served as President in June 2006 when Moha pled guilty. (Pls. 56.1(a) 2; PHSs 56.1(b) 2; Dunns 56.1(b) 2.) 3

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Dunn was aware that Moha had engaged legal representation. (Am. Compi.

51-52.) Moha

pled not guilty and posted bail. (Pre-Arraignment Bail and Appearance Ticket (attached to Sauter Decl., at Ex. C (Dkt. 50))): Am. Compl. B.

48, 53.)

Communications Between Dunn and Moha

Plaintiffs allege that, at some point after Mohas arrest and before disposition of the charge, Dunn communicated with Moha outside the presence of counsel. (Am. Compi. 81; see PHSs 56.1(a)

54-

8; Pls. 56.1(b) to PHS 8.) One such contact occurred in June 2006 60;

when Dunn visited plaintiffs home dressed in her sheriffs uniform. (Am. Compl. PUSs 56.1(a)

J 8-9; Pls. 56.1(b) to PHS 8-9.) Dunn talked to Moha about her criminal case 71; see PHSs 56.1(a) 8-10; Pls.

and encouraged her to accept a plea bargain. (Am. Compl. 56.1(b) to PHS

8-10.) Among other things, Dunn promised that if Plaintiffs forfeited Colby

upon [Moha]s guilty plea, [Moha] would still be able to interact with Colby on a regular basis at Tilly Foster Farm, a farm utilized by the [PHS] as a boarding facility for Colby. (Am. Compi. 72.) Dunn also promised a quid pro quo whereby if Plaintiff forfeited Colby as part of the plea deal then.
. .

Dunn would ensure that Plaintiff could continue to visit and care for the forfeited

horse after sentence was imposed[ and] could get Colby back in the future. id.
C.

(i 76; see also

79.) Dunn instructed Moha not to tell her attorney about the visit. (Ij 80-81.)
The Guilty Plea Sentence, and Ownership Interests in the Horse

Moha maintains that she relied upon Dunns representations when she decided to plead guilty. On June 28, 2006, Moha pled guilty in the Town of Southeast Justice Court to a reduced charge of one count of attempted animal cruelty. 5 (July 19, 2006 Certificate of Disposition

A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. N.Y. Penal 4

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(attached to Marzolla Aff., at Ex. H); Am. Compl. j 82-86; Pis. 56.1(a) 3; PHSs 56.1(b) Dunns 56.1(b)

3;

3; PHSs 56.1(a) 13; Pis, 56.1(b) to PHS 13.) She was sentenced on June

28, 2006 to a conditional discharge that included a condition that Colby be forfeited to PHS. 6 (July 19, 2006 Certificate of Disposition; PHSs 56.1(a) Compi.

14; Pls. 56.1(b) to PHS 14; Am.

J 87-88.) Moha alleges that she complied with the terms of the sentence. (Am. Compi.

89.) In particular, Bruno (not Moha), signed an agreement dated June 13, 2006 that
surrendered Colby to PHS. (Agreement Surrendering Animals to Humane Society (attached to Aronwald Affirm., at Ex. B); PHSs 56.1(a) 12; PIs. 56.1(b) to PHS

12.)

By letter dated April 24, 2007, Dunn directed Moha to refrain from further interaction with Colby at the farm where he boarded. (Apr. 24, 2007 Letter (attached to Marzolla Aff., at Ex. M); Am. Compi.

95; Pls. 56.1(a) 12; PHSs 56.1(b) 12; Dunns 56.1(b) 12.) In late

May and early June 2007, Dunn and her sister, defendant Kathleen Dunn Hall (Hall) adopted Colby from PHS. (May 20, 2007 Adoption Appl. (attached to Marzolla Aff., at Ex. N); May 22, 2007 Adoption Appi. (attached to Marzolla Aff., at Ex. N); June 1, 2007 Receipt (attached to Marzolla Aff., at Ex. N); June 1, 2007 Adoption Contract (attached to Marzolla Aff., at Ex. N);

Law 110.00. The Certificate of Disposition included the following conditions: (1) Horse forfeiture to Putnam County Humane Society, (2) Order of Protection for the eyewitnesses who supplied the supporting depositions, and (3) Anger Management classes to be completed within 90 days. (July 19, 2006 Certificate of Disposition.) Although the sentencing took place on June 28, 2006, the Certificate of Disposition is dated July 19, 2006. Plaintiffs maintain that, although they agreed to surrender Colby and forfeit ownership to the Putnam Humane Society on June 13, 2006, (Am. Compl. 85), the signed Agreement remained in counsels possession until after the June 28, 2006 sentence, (Aff. of Anna Nicole Moha f/k/a Anna Nicole Bruno in Oppn 24 (Dkt. 68); Aff. of Nancy Bruno in Oppn 14 (Dkt. 69)). 5

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Am. Compi.

J 98-100: Pis. 56.1(a) 15-21; PHSs 56.1(b) 15-21; Dunns 56.1(b) J 15-

21.) On January 7, 2008, Dunn transferred her ownership interest in Colby to defendant Janet Cundari (Cundari). (Jan. 7, 2008 Doe. (attached to Marzolla Aff., at Ex.

Q); Am. Compi. f

101-02; PIs. 56.1(a) 23; Dunns 56.1(b) 1 23.) On April 10. 2009. Cundari transferred her ownership interest back to Dunn. (cc Apr. 8, 2013 Letter (attached to Marzolla Aff., at Ex. AA).) D. Post-Conviction Procceding By motion dated December 11, 2008, Moha moved in the Town of Southeast Justice Court to (1) dismiss the information on the ground that it was facially insufficient, 8 and (2) vacate her conviction on the grounds that: (a) it was obtained by duress, fraud, or 9 (b) new evidence was discovered after the entry ofjudgment; and (c) it was misrepresentation;

After arraignment upon an information.. the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that. [ut is defective, within the meaning of[N.Y. Crim. Proc. Law ] 170.35. N.Y. Crim. Proc. Law 1 70.30(1)(a). An information. is defective within the meaning of [N.Y. Crim. Proc. Law 170.35(1)(a)] when. [i]t is not sufficient on its face pursuant to the requirements of[N.Y. Crim. Proc. Law 100.40. Id. 170.35(1)(a).
.
. .

An information, or a count thereof, is sufficient on its face when. [ijt substantially conforms to the requirements prescribed in [N.Y. Crim. Proc. Law 100.15; and. [tjhe allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and.. [njon-hearsay allegations of the factual part of the information or of any supporting depositions establish, if true, every element of the offense 1 and charged and the defendants commission thereof.
. . .

Id.

100.40(1).
9

At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that... [tjhe 6

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obtained in violation of her state and/or federal constitutional rights. (Notice of Mot. (attached to Sauter Dccl.. at Ex. E); PHSs 56.1(a)

15; Pls. 56.1(b) to PHS 15.) The motion was based

on substantially the same factual allegations that are alleged in this action. (S PHSs 56.1(a) 16; Pis. 56.1(b) to PHS

16.) By decision and order dated May 19, 2009, the motion was

denied. (May 19, 2009 Decision & Order (attached to Sauter Decl., at Ex. F): PBSs 56.1(a) 17; Pis. 56.1(b) to PHS

17.) Moha appealed and by order dated February 9,2011, the Second

Department reversed the lower courts ruling and remitted the matter. (Apr. 1, 2011 Decision (attached to Sauter Dccl., at Ex. G); PBSs 56.1(a)

J 18-20; Pls. 56.1(b) to PHS J 18-20.)

Thereafter, Moha filed a new motion in the Town of Southeast Justice Court that sought: (1) to

judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor. N.Y. Crim. Proc. Law
I0

440.10(1)(b).

At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that.. [n]ew evidence has been discovered since the entry of judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.
.

N.Y. Crirn. Proc. Law

440.10(g).

At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that.. [tjhe judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.
.

N.Y. Crim. Proc. Law

440.10 (amended by 2010 N.Y. Sess. Laws. ch. 332, 1(2010)).

7

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vacate the judgment of her conviction, inter a/ia, on the ground that it was procured on the basis of misrepresentations made by Dunn; (2) to dismiss the information on the ground that it was not supported by non-hearsay allegations; and (3) to set aside the guilty plea on the ground that Moha was deprived of her right to a speedy trial, (Notice of Mot. to Dismiss (attached to Sauter Dccl., at Ex. J).) By order dated December 27, 2011, the motion was granted and the conviction was vacated pursuant to N.Y. Crim. Proc. Law

440.10(1)(b).

(Dec. 27, 2011 Town of

Southeast Justice Ct. Decision & Order (attached to Marzolla Aff., at Ex. Y). 12) A certificate of disposition dismissing the case was filed on January 9, 2012. (Jan. 9, 2012 Certificate of Disposition (attached to Marzolla Aff., at Ex. Z).)
E. Procedural History

Plaintiffs filed their complaint in this Court on June 28, 2012. (Compl. (Dkt. 1).) With leave of the Court, plaintiffs filed an amended complaint on December 7, 2012. The amended pleading contains the following causes of action: (1) (2) a violation of Moha s right to counsel under federal and state constitutions against all defendants, (Am. Compl. 125-29); a violation of plaintiff(s)s right to be free from abuse of process under federal and state constitutions and common law against all defendants, (id. f 130-38); malicious prosecution of plaintiff(s) in violation of federal and state constitutions and common law against all defendants, (id. J 139-46); violations of plaintiff(s)s rights to due process, a fair trial, and confrontation of witnesses under federal and state constitutions against all defendants, (id. 147-52); fraud against PHS, Hall, Dunn, and Cundari, (jd. 153-57); and a Monell claim against Putnam County and Smith, (ij, 158-64).

(3) (4)

(5) (6)

During a May 2, 2013 pre-motion conference, the parties were granted leave to file the

The order incorrectly cites N.Y. Penal Law

440.10(1)(b).

Monell v. Dept of Soc. Servs., 436 U.S. 658 (1978). 8

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instant motions. Dunn and Hall seek summary judgment with respect to the third cause of action. P1-IS seeks summary judgment with respect to all of the claims asserted against it (claims one through five). Smith and the County seek partial judgment on the pleadings and dismissal of all of the

1983 claims against them, with the exception of the malicious prosecution claim. By

letters dated May 21. 2013, Cundari. Dunn, and Hall join each of the motions made by their co defendants. Plaintiffs seek to further amend their complaint to add a seventh cause of action for replevin against PHS. Dunn, Hall, and Cundari. Plaintiffs also seek summary judgment on that claim. The parties have filed memoranda in opposition to the motions as well as replies. The Court heard oral argument on July 29, 2013.
III. DISCUSSION A. Lea1 Standards

1.

Motion to Amend Standard

Leave to amend a pleading should be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). [Tihe grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules. Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, leave should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (citing Foman, 371 U.S. at 182). One appropriate basis for evaluating the productivity of a proposed amendment lies in the relative futility of accepting the proposed amended complaint. If the proposed amendment 9

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would not survive a motion to dismiss, then it is appropriately denied as futile. Talley v. Brentwood Union Free Sch. Dist., 728 F. Supp. 2d 226, 23 1-32 (E.D.N.Y, 2010) (internal quotation marks and citations omitted).
2. Motion to Dismiss Standard

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the.
. .

claim is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a forrnulaic recitation of the elements of a cause of action will not do. (internal quotation marks and citations omitted). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. (quoting Twombly, 550 U.5. at 556). Where a complaint pleads facts that are

merely consistent with a defendants liability, it stops short of the line between possibility and plausibility of entitlement to relief. i (quoting Twombly, 550 U.S. at 557). While Federal Rule of Civil Procedure 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era.. 10
.
.

it does not unlock the doors of

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discovery for a plaintiff armed with nothing more than conclusions. Porrazzo v. Bumble Bee Foods, LLC, 822 F. Supp. 2d 406, 410 (S.D.N.Y. 2011) (quoting lqbaL 556 U.S. at 678-79). In considering whether a complaint states a claim upon which relief can be granted, the court may begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth, and then determine whether the remaining well-pleaded factual allegations, accepted as true, plausibly give rise to an entitlement to relief [Iqbal, 556 U.S. at 679.] Deciding whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. jj., [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has allegedbut it has not show[n]ihat the pleader is entitled to relief. Id. (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)). Id. 3. Judgment on the Pleadings Standard

Rule 12(c) of the Federal Rules of Civil Procedure provides that [a]fier the pleadings are closedbut early enough not to delay triala party may move for judgment on the pleadings. Fed. R. Civ. p. 12(c). The same standard applicable to [Rule] 12(b)(6) motions to dismiss applies to [Rule] 12(c) motions for judgment on the pleadings. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994)). However, on a 12(c) motion, the court considers the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case. L-7 Designs, Inc. v. Old Navy, LLQ 647 F.3d 419, 422 (2d Cir. 2011) (quoting Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009) (per curiam)). A pleading is [also] deemed to include any written instrument attached to

it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to it. jj (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). 11

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4.

Summary Judgment Standard

Summary judgment may be granted where the pleadings, discovery materials, and any affidavits show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. p. 56(a); see also Celotex Corp. v. Catrett.
477 U.S. 317, 322 (1986). A genuine issue of material fact exists 1f the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). When ruling on a summary judgment motion, the district court

must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant. Dallas Aerospace. Inc. v.
CIS Air Corp.. 352 F.3d 775, 780 (2d Cir. 2003). At summary judgment, the Court is not

charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. West v. Whitehead, No. 04 Civ. 9283(KMK), 2008 WL 4201130, at *10 (S.D.N.Y. Sept. 11, 2008); see Knight v. U.S. Fire Ins. Co., 804 F.2d 9. 11 (2d Cir. 1986) (the courts responsibility on summary judgment is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party). While disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [fjactual disputes that are irrelevant or unnecessary will not be counted. Anderson, 477 U.S. at 248.
The burden of showing that no genuine issue of material fact exists rests on the movant.

See Celotex, 477 U.S. at 322-23; Atl. Mut. Ins. Co. v. CSX Lines, LLC, 432 F.3d 428, 433 (2d Cir. 2005). When the burden of proof at trial would fall on the nonmoving party, it ordinarily is
12

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sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovants claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of material fact for trial in order to avoid summary judgment. Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the nonmoving party must offer concrete evidence from which a reasonable juror could return a verdict in his favor, Anderson, 477 U.S. at 256, and may not rely on conclusory allegations or unsubstantiated speculation, Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). 5. 42U.S.C.1983

Section 1983 provides, in relevant part, that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State subjects, causes to be subjected, any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
. . .
. . .

42 U.S.C.

1983. Accordingly, [tb state a claim under 1983, a plaintiff must allege 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). 6. Limitations Periodfor 1983 Actions

In New York State, the statute of limitations for most claims arising under

1983 and

alleging personal injury is three years. See, e.g., Paige v. Police Dept of City of Schenectady, 264 F.3d 197, 199 n.2 (2d Cir. 2001) (per curiam); see also Dellutri v. Vill. of Elmsford, 895 F. Supp. 2d 555, 563 n.5 (S.D.N,Y. 2012) (citing Romag Fasteners, Inc. v. Bauer, No. 11 Civ. 3181(PAC), 2011 WL 5513380, at *8 (S.D.N.Y. Nov. 9,2011)); N.Y. C.P.L.R.

214(5).

13

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While state law supplies the statute of limitations for claims under

1983, federal law

determines when a federal claim accrues. Van Wormer v. City of Rensselaer, 293 F. Appx 783, 783 (2d Cir. 2008) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)); see also Wallace v. Kato, 549 LI.S. 384. 388 (2007) (emphasis omitted) (the accrual date of a

1983

cause of action is a question of federal law that is not resolved by reference to state law). The general rule under federal law is that the time of accrual [isi that point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action. Covington v. City of New York, 171 F.3d 117, 121 (2d Cir. 1999) (internal quotation marks and citations omitted); see also Wallace, 549 U.S. at 388 (internal quotation marks and citations omitted) (a

1983

claim accrues when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.). The Supreme Court carved out an exception to this general rule in Heck v. Humphrey. 512 U.S. 477 (1994). In Heck, the Court considered whether a state prisoner may challenge the constitutionality of his conviction in a suit for damages under 42 U.S.C.

1983. 512 U.S. at

478. In that case, the plaintiffs complaint alleged malicious prosecution, sought monetary relief, and was filed while the plaintiff was incarcerated and serving a sentence of imprisonment for the conviction that was the subject of the civil complaint. The Court noted that the case lay at the intersection of the two most fertile sources of federal-court prisoner litigation, and the federal habeas corpus statute.

1983

at 480. It also noted that a required element of a

malicious prosecution claim is the termination of the criminal proceeding in the plaintiffs favor.

i at 484. This element is sufficient to prevent a plaintiff from collaterally attacking his
conviction through a civil suit for monetary relief because it necessarily requires the plaintiff to 14

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show that the conviction no longer stands. See id, at 484-85 (citation omitted). The Court reflected on its long expressed.
. .

concern[ j for finality and consistency ofjudgments and

stated that the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to

1983 damages actions that necessarily

.

require the plaintiff to prove the unlawfulness of his conviction or confinement. Specifically, the Court held that:

at 484-86.

[un order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal courts issuance of a writ of habeas corpus, 28 U.S.C. 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under 1983. Thus, when a state prisoner seeks damages in a 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence: if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Rh at 486-87 (emphasis in original).

Some years later, the Court addressed the applicability of the Heck rule to a claim for false arrest. In Wallace v. Kato, 549 U.S. 384 (2007), the plaintiff tiled a

1983 suit in 2003,

shortly after he prevailed on direct appeal and the 1996 criminal charges against him were dismissed. When the case reached the Supreme Court, the Court first noted the general rule that a cause of action accrues when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief. Wallace, 549 U.S. at 388 (internal quotation marks and citations omitted). The Court then found that, in the context of a false arrest action, a

15

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plaintiff can file suit when his false arrest officially terminates, which is when his confinement has been legitimized pursuant to some legal process. See id. at 389. Accordingly, the Court rejected the plaintiffs argument that his false arrest claim accrued only after his conviction as reversed and the charges against him were dismissed. The statute of limitations began to run on the date that the plaintiff appeared before a magistrate and was arraigned on the charges stemming from his false arrest. See id. at 390-91. The Court specifically rejected the plaintiffs theory.
. .

that the initial Fourth Amendment violation set the wheels in motion for his

subsequent conviction and detention[. i.e. ] [t]he unlawful arrest lead to the coerced confession, which was introduced at his trial, producing his conviction and incarceration]. Instead, it held that a cause of action accrues even though the full extent of the predictable.
injury is not

then known or

Ri. at 391 (internal quotation marks and citation omitted). Were it otherwise, the

statute would begin to run only after a plaintiff became satisfied that he had been harmed enough, placing the supposed statute of repose in the sole hands of the party seeking relief Id.
B. Application

1.

Timeliness ofPlaintiffs

1983 claims

Defendants argue that all of plaintiffs

1983 claimsapart from the malicious

5 In response, plaintiffs argue that, as in Heck, the statute of prosecution claimare time-barred) limitations on their claims did not begin to run until Mohas conviction was vacated. Plaintiffs Plaintiffs have voluntarily discontinued their first cause of action, which alleged a right to counsel claim. (PIs. Mem. of Law in Oppn to Defs. Mot. for Summ. J. (PIs. Mem. in Oppn), at 2 (Dkt. 70).) Accordingly, that claim is dismissed without further discussion.
W

Defendants tacitly concede that Heck applies to the malicious prosecution claim, and have not argued that that claim is time-barred. But see Poventud v. City of New York, 715 F.3d 57 (2d Cir. 2013)(rehearing en banc pending) (Heck rule does not apply to 1983 plaintiff who is not in custody and consequently has no habeas corpus remedy).
IS

16

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also argue that the Heck rule bars all

1983 claims until the criminal conviction has been 1983

invalidated where an actual, existing conviction exists. Finally, plaintiffs argue that their

claims are inextricably intertwined with Mohas judgment of conviction and sentence. and that this intertwining prevented the statutes from running until her conviction was set aside. (See Pls. Mern. in Oppn. at 1 112.)I6 Defendants dispute plaintiffs legal analysis and argue that the general federal rule for accrual applies. (See generally Mem. of Law in Supp. of Summ. J. Mot. of the Def. Putnam County Humane Society alk!a Putnam Humane Society (PHSs Mem.) (Dkt. 52); Mem. of Law in Supp. of Defs. Donald Blame Smith & the County of Putnams Mot. for Partial J. on the Pleadings (Smith & the Countys Mem.) (Dkt. 55); May 21, 2013 Richard G. Monaco Letter (Dkt. 61) (joining each argument on behalf of Cundari); May 21. 2013 William 1. Aronwald Letter (Dkt. 62) (joining each argument on behalf of Dunn and Hall).) I agree with defendants.
i. Abuse of Process Claim

Plaintiffs second cause of action alleges abuse of process in violation of the Fifth, Sixth, and Fourteenth Amendments against all defendants. ( Am. Compl. J 130-38.) Defendants argue that this claim accrued no later than December 11, 2008, when Moha moved to vacate her conviction based on substantially the same facts alleged here, and that the three-year limitations

Plaintiffs also suggest that they are entitled to equitable tolling because Wallace changed the law regarding accrual of their claims in a way they could not have foreseen. Pis. Mem. in Oppn, at 14.) However, equitable tolling requires a showing of diligence, and plaintiffs have not explained why they waited more than five years to file suit after Wallace was decided in February 2007. f, Wharton v. Cnty. of Nassau, No. 07 Civ. 2137(RRM)(ETB), 2010 WL 3749077, at *4 (E.D.N.Y. Sept. 20, 2010) (equitable tolling warranted despite short three-month delay in filing claim after Wallace was decided). 17

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period therefore expired by December 11, 2011, long before plaintiffs filed suit in June 2012.17 (See PH5s Mem.. at 6-8; Smith & the Countys Mem.. at 4-6; May 21. 2013 Richard G. Monaco Letter; May 21, 2013 William 1. Aronwald Letter.) The torts of malicious prosecution and abuse of process are closely allied. While malicious prosecution concerns the improper issuance of process. [tihe gist of abuse of process is the improper use of process after it is regularly issued. Cook v. Sheldon. 41 F.3d 73, 80 (2d Cir. 1994) (internal quotation marks and citation omitted). In New York, a malicious abuse of process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.

i4 The claim accrues at the time that the plaintiff is aware, or ought to be aware, of those facts
providing a basis for his claim. Duamutefv. Moffis, 956 F. Supp. 1112, 1118 (S.D.N.Y. 1997). Here, plaintiffs allege that they were duped by Dunns false promisesi.e., among other things, that if Moha pled guilty, Dunn would allow Moha to visit Colby and plaintiffs could hope to regain possession of Colby in the future. Plaintiffs learned, or should have learned, that Dunns promises were false when Dunn wrote to Moha on or about April 24, 2007 and instructed her to have no further contact with Colby. Plaintiffs subsequently learned that Dunn herself had adopted the animal. Moha then moved on December 11, 2008 to vacate her conviction on the basis that Dunns actions were fraudulent, misleading, and undertaken so as to

Some authority suggests that an abuse of process claim under New York law may be subject to a one-year statute of limitations period as an intentional tort. See, e.g., Korova Milk Bar of White Plains, Inc. v. PRE Props., LLC, No. 11 Civ. 3327(ER), 2013 WL 417406, at *15 (S.D.N.Y. Feb. 4, 2013); Dellutri, 895 F. Supp. 2d at 563 n.5 (citing Romag, 2011 WL 5513380, at *8); see also N.Y. C.P.L.R. 2 15(3). However, because defendants have not argued that a one-year period bars the claim, this Court will assume the three-year period applies. 18

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further a personal interest unrelated to her legal responsibilities as Deputy Sheriff. (S Kelly Affirm. 17-45.) Thus, plaintiffs were plainly aware of the facts which underlie their abuse of process claim by the time that motion was filed. Plaintiffs maintain that an abuse of process claim is similar to a malicious prosecution claim in that it cannot accrue until the underlying action which is the basis for the claim is conclusively terminated in Plaintiffs favor. (Pis. Mem. in Oppn, at 15 (quoting Kennedy Bifulco v. Town of Huntington, No. 08 Civ. 1612(ERK)(ETB), 2010 WL 6052343, at *10 (E.D.N.Y. Oct. 29, 2010) (Report & Recommendation), adopted in part on other grounds by 2011 WL 883697 (E.D.N.Y. Mar. 10, 2011)); see id. at 15-16.) Accordingly, they argue that pursuant to Heck, the claim was not cognizable until Mohas conviction was vacated. I disagree. First, the Court in Heck focused on the fact that an essential element of a malicious prosecution claim is a favorable termination of the criminal proceedings. This element is not required in an abuse of process claim. Indeed, the Heck court specifically suggested that a successful abuse of process claim would not undermine the validity of the underlying criminal conviction. 8 Other courts within this district have similarly $ Heck, 512 U.S. at 486 n.5.

The Court noted in a footnote, Justices SOUTERs discussion of abuse of process,. does not undermine th[e] principle [that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal convictions]. It is true that favorable termination of prior proceedings is not an element of that cause of actionbut neither is an impugning of those proceedings one of its consequences. The gravamen of that tort is not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends. Cognizable injury for abuse of process is limited to the harm caused by the misuse of process, and does not include harm (such as conviction and confinement) resulting from that processs being carried through to its lawful conclusion.
. .

19

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concluded that accrual of an abuse of process claim is not linked to favorable termination of the criminal proceedings, See, e.g., Korova Milk Bar, 2013 WL 417406, at *15 (quoting Lucas v. Nov ogratz. 01 Civ. 5445(GEL). 2002 WL 31844913. at *6 (S.D.N.Y. Dec. 18. 2002)) (since accrual of a cause of action for abuse of process need not await the termination of an action in claimants favor, the statute of limitations expires one year from institution of the process, that is, from the
...

complaint); Dellutri, 895 F. Supp. 2d at 563-64 (collecting cases and holding

that the plaintiffs abuse of process claim accrued at the time he was clearly aware of his injuries, and not on the date that his conviction was reversed); see also, e.g., Duamutef. 956 F. Supp. at 1118-19 (abuse of process claim accrued on the date the plaintiff became aware of the facts underlying the cause of action). The cases that plaintiffs rely on do not support a different conclusion.

( Pis. Mem. in

Oppn, at 15-16.) First, although the Report and Recommendation in Kennedy-Bifulco states that a claim for malicious prosecution or abuse ofprocess cannot accrue until the underlying action which is the basis for the claim is conclusively terminated in plaintiffs favor, 2010 WL 6052343, at *10 (emphasis added), the court did not actually apply that rationale when it analyzed the issue. Instead, the court found that the abuse of process claim was untimely based upon the date that the criminal proceeding against the plaintiff was initiatednot when it terminated favorably.
.

at * 15. Plaintiffs reliance on Romag and Grandome is also

misplaced. Those cases applied New York law in holding that an abuse of process claim accrues upon the termination of the proceeding. Romg, 2011 WL 5513380, at *9 (citing 10 Ellicott Square Court Corp. v. Violet Realty, Inc., 916 N.Y.S.2d 705 (App. Div. 4th Dept 2011));

Heck, 512 U.S. at 486 n.5 (internal citations omitted and emphasis added).
20

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Grandome Enters.. Inc. v. Stillrnan, No. 92 Civ. 7525(LAP), 1993 WL 119800 (S.D.N.Y. Apr. 13. 1993) (citing Cunningham v. State. 53 N.Y.2d 851 (1981). Keller v. Butler. 246 N.Y. 249 (1927), and Pico Prods., Inc. v. Eagle Comtronics. Inc., 465 N.Y.S.2d 628 (App. Div. 4th Dept 1983)). It is clear that [wjhile state law supplies the statute of limitations for claims under

1983, federal law determines when a federal claim accrues. Van Wormer, 293 F. Appx at 783 (quoting Eagleston. 41 F.3d at 871): see also Wallace, 549 U.S. at 388 (emphasis omitted) Cthe accrual date of a

1983 cause of action is question of federal law that is not resolved by

reference to state law). Plaintiffs reliance on cases applying state law is therefore unavailing. Second, the Court in Heck was concerned with the intersection of the prisoner litigation statutes found in42 U.S.C.

1983 and 28 U.S.C.

2254. 512 U.S. at 480. The Court

held that when a state prisoner seeks damages in a

1983 suit, the district court must consider

whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. at 487 (emphasis

added). Here, Moha was not imprisoned prior to the vacatur of her conviction and therefore did not have access to federal habeas relief. Her remediesand the consequences to finality and consistency ofjudgments that flow from themwere different from those that the Court was concerned with in Heck. See id. at 484-86. Accordingly, her contention that she could not have asserted this claim, under Heck, until her conviction was vacated, is rejected. Plaintiffs failure to raise the

1983 abuse of process claim within three years after learning of its factual

basisi.e., by at least December 11, 2011requires the dismissal of the claim now. ii.
Fair Trial, Due Process, and Confrontation of Witnesses Claims

Plaintiffs fourth cause of action alleges a violation of Mohas rights to a fair trial, due
21

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process, and to confront witnesses pursuant to the Fifth, Sixth, and Fourteenth Amendments against all defendants.

( Am. Compi. J 147-52.) Specifically, the claim states that

defendants intentionally and actively concealed, withheld, suppressed and manipulated certain evidence and information that was material and favorable to plaintiffs as exculpatory and/or impeaching.

(, 148.) PHS moves for summary judgment on two grounds. First, it

argues that the allegations fail to state a claim upon which relief may be granted. Specifically, PHS argues that plaintiffs insufficiently pled the claim because the pleading contains conclusory allegations and fails to identify what evidence was allegedly withheld or concealed. PHSs Mem., at 8-9.) Dunn, Hall, and Cundari join this argument.

($ May 21, 2013 Richard

G. Monaco Letter; May 21, 2013 William I. Aronwald Letter.) Plaintiffs dispute this and argue that the claim is sufficiently pled because its allegations state that [t]he defendants, by misrepresentation and fraud secured a conviction and sentence that included a term of forfeiture of Colby.
. .

[a]nd, after the conviction was vacated and the sentence lifted, the Defendants did

not return the horse. (Pls. Mem. in Oppn, at 31.) Second, PHS moves for summary judgment on the ground that the claim was untimely filed. Specifically, it argues that any claim alleging that Moha was improperly coerced into pleading guilty (and thereby causing her to forego her right to trial, to confront witnesses, and to due process) accrued on the date of the coercionthat is, on the date that Dunn spoke to Moha at her home and persuaded her to plead guilty. PHSs Mem., at 8-9.) Smith and the County

move for judgment on the pleadings on statute of limitations grounds as well. (Smith & the Countys Mem., at 6-7.) Dunn, Hall, and Cundari join these arguments. (S May 21, 2013 Richard G. Monaco Letter; May 21, 2013 William I. Aronwald Letter.) Plaintiffs dispute this and argue that, pursuant to Heck, the claim was not cognizable until Mohas conviction was 22

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vacated because the claim is inextricably intertwined with the judgment of conviction, and therefore necessarily impl[ies] the invalidity of the conviction. 16.) I agree with defendants that the claim must be dismissed as time-barred.
a. Fair Trial

(S. Pis. Mem. in Oppn, at

A successful fair trial claim under

1983 must allege that (1) an investigating official

(2) fabricate[dj evidence (3) that [was] likely to influence a jurys decision, (4) forward[ed] that information to prosecutors, and (5) the plaintiff suffer[edj a deprivation of liberty as a result. Jovanovic v. City of New York, 486 F. Appx 149, 152 (2d Cir. 2012) (citing Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir. 2003) and Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). As an initial matter, the amended complaint here contains no factual allegations which, accepted as true, would enable this Court to draw a reasonable inference that Dunn fabricated evidence that could have been used against Moha at trial. Igbal, 556 U.S. at 678;

Twombly, 550 U.S. at 556. Moreover, plaintiffs have failed to identify any such evidence in their opposition to summary judgment. Without more, their conclusory and vague allegation that Dunn fabricated evidence is insufficient to defeat the motion. See Scotto, 143 F.3d at 114. Accordingly, to the extent the fourth cause of action alleges a must be dismissed. In any event, even if the claim were sufficiently pled and plaintiffs produced affirmative evidence to establish a genuine issue of triable fact, the claim is untimely. It is clear that the factual basis of this claim must have accrued at some point prior to Mohas conviction in 2006i.e., at a time when Dunn could have forwarded fabricated evidence to prosecutorsor at least by the time that plaintiffs were aware of such impermissible conduct. See, e.g., Brandon v. 23

1983 fair trial claim, that claim

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City of New York, 705 F. Supp. 2d 261, 278 n.4 (S.D.N.Y. 2010) (quoting Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994)) (distinguishing a malicious prosecution claim from a fair trial claim and noting that, [fjor statute of limitations purposes, a

1983 claim, including a Sixth

Amendment fair trial claim, accrues when the alleged conduct has caused the claimant harm and the claimant knows or has reason to know of the allegedly impermissible conduct and the resulting harm); Mitchell v. Home, 377 F. Supp. 2d 361, 374 (S.D.N.Y. 2005) (citing Yi. 23 F.3d at 724-25) (fair trial claim premised on fabrication of evidence by investigating officer accrued at the time plaintiff knew or should have known that the evidence was fabricated and that she had suffered some injury as a result). As discussed above, plaintiffs were aware of these facts no later than the time that Moha filed her motion to vacate in 2008. Accordingly, plaintiffs failure to raise this claim within three years after learning of its factual basisi.e., by December 11, 2011requires dismissal of the claim now.
b. Due Process

To state a due process violationprocedural or substantivePlaintiff[s] must first show a deprivation of a constitutionally protected property or liberty interest. S.C. v. Monroe Woodbury Cent. Sch. Dist., No. 11 Civ. 1672(CS), 2012 WL 2940020, at *5 (S.D.N.Y. July 18, 2012) (quotation and citations omitted). Although not specifically stated in the paragraphs that make up the pleadings fourth cause of action, the Court reads plaintiffs memorandum in opposition to defendants motions to indicate that plaintiffs are referring here to their property interests in the horse. ( Pis. Mem. in Oppn, at 31.) Accordingly, the Court construes their due process claim as a takings claim. See, e.g., Cangemi v. United States, No. 12 Civ. 3989(JS)(WDW), 2013 WL 1332842, at *7 (E.D.N.Y. Mar. 29, 2013) (construing separately raised due process claim alleging defendants deprived plaintiffs of their property without due 24

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process of law, in violation of the Fourteenth Amendment, as a takings claim). Such a claim requires a plaintiff to show: (1) a property interest; (2) that has been taken under the color of state law; (3) without due process or just compensation. Anderson v. N.Y.S. Office of Court Admin. of the Unified Court Svs., 614 F. Supp. 2d 404, 426 (S.D.N.Y. 2009)). The Court agrees with defendants insofar as it finds that the due process claim was untimely filed. Again, plaintiffs argument that any due process claim is inextricably intertwined with the vacatur of Mohas conviction is rejected. As discussed above, plaintiffs were aware of the facts underlying their claim that their property was allegedly wrongfully taken no later than the date that Moha filed her motion to vacate. See, e.g., Dellutri, 895 F. Supp. 2d at 563-64 (collecting eases and holding that plaintiffs due process claim accrued when he was clearly aware of his injuries, and not on date conviction was reversed). Plaintiffs reliance on Rosato v. New York County District Attorneys Office, No. 09 Civ. 3742(DLC), 2009 WL 4790849 (S.D.N.Y. Dec. 14, 2009). for their contention that Heck precludes malicious prosecution and other due process violations, (PIs. s Mem. in Oppn, at 16 (emphasis in original)), is misguided. It is clear that the due process violations that the court in Rosato referred to involved claims of malicious prosecution, fabrication of evidence, and failure to investigatenot a property taking. 2009 WL 4790849, at *2. Accordingly, plaintiffs failure to raise this claim within three yearsi.e., by December 11, 2011 at the latestnow requires its dismissal.
c.

Confrontation of Witnesses

The Confrontation Clause of the Sixth Amendment provides that a criminal defendant enjoy[s] the right.
. .

to be confronted with the witnesses against hint U.S. Const. amend. VI.

Moha waived this right when, with the assistance of counsel, she pleaded guilty. To the extent
25

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plaintiffs contend that this right was involuntarily waived because Moha relied upon Dunns statements she later learned to be false, that information was discovered by plaintiffs more than three years prior to the initiation of this lawsuit. Accordingly, as discussed above, the claim accrued at least by December 11, 2008 when Moha filed her motion to vacate on the basis of this information. The statute of limitations therefore expired no later than December 11, 2011. The claim must now be dismissed. 2. Malicious Prosecution Claim

PHS, Dunn, and Hall seek summary judgment on the third cause of action alleging malicious prosecution. They maintain that no genuine dispute of material fact exists with respect to: (1) the probable cause that existed when the proceeding initiated; (2) the unfavorable termination of the proceeding; and (3) the absence of any liberty deprivation. (S PHSs Mem., at 12-20; Mem. of Law in Supp. of Def. Barbara Dunns Mot. for Summ. J. Dismissing the 3rd Cause of Action for Malicious Prosecution (Dunns Mem.), at 2-4 (Dkt. 46).) Cundari joins this argument.

($ May 21, 2013 Richard G. Monaco Letter.) Plaintiffs dispute this and

contend that: (1) probable cause was absent; (2) the proceeding terminated favorably; and (3) a seizure of property supplants the deprivation of liberty requirement. (Pis. Mem. in Oppn, at 21-27.) 1 agree with defendants that summary judgment is warranted. Malicious prosecution claims brought under

1983 and New York state law are

substantially the same. Jocks, 316 F.3d at 134. 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 defendants actions. Id. at 136 (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)), 26

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In addition, a plaintiff must show some sufficient deprivation of liberty to prevail on a malicious prosecution claim. See id. (citing Muhy, 118 F.3d at 947) (holding the

1983

requirements of attending criminal proceedings and obeying the conditions of bail suffice as sufficient deprivations of liberty): see also Garrett v. Port Auth. of N.Y. & N.J., No. 04 Civ. 7368(DC). 2006 WL 2266298, at *7 (S.D.N.Y. Aug. 8. 2006) (collecting cases). [T]he existence of probable cause is a complete defense to a claim of malicious prosecution in New York, Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)
(citing

Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)), unless th[e] officer, following the arrest but prior to initiating prosecution, learned of facts that would negate his earlier determination of probable cause, Moscoso v. City of New York. 92 F. Supp. 2d 310, 313 (S.D.N.Y. 2000). Courts evaluating probable cause for an arrest must consider those facts available to the officer at the time of the arrest and immediately before it. Lowth v. Town of Cheektowaga, 82 F.3d 563, 469 (2d Cir. 1996). Probable cause exists when there are facts and circumstances sufficient to warrant a prudent man that the [suspect] had committed or was committing an offense. jj. (quoting Gerstein v. Pugh, 420 U.S. 103, 111(1975)). In New York State, a prosecution is commenced upon the filing of an accusatory instrument. S. N.Y. Crim. Proc. Law

100.05.19

]9

A criminal action is commenced by the filing of an accusatory instrument with a criminal court, and if more than one such instrument is filed in the course of the same criminal action, such action commences when the first of such instruments is filed. The only way in which a criminal action can be commenced in a superior court is by the filing therewith by a grand jury of an indictment against a defendant who has never been held by a local criminal court for the action of such grand jury with respect to any charge contained in such indictment. Otherwise, a criminal action can be commenced only in a local criminal court, by the filing therewith of 27

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In this case, on December 6, 2005, three eyewitnesses provided written statements to Dunn that described in detail the incident between Moha and Colby. Specifically, the witnesses stated that they saw, among other things: [Moha] kept shanking [the horse] hard, he was trying to get away and she proceeded to shank him harder and harder, pulling down hard on him when he tried to rear up. Then she put him in a stall, I heard a lot of banging, commotion, yelling. He escaped from her at one point, terrorized he was trying to climb the outside barn on the stall in the aisle. She got him back in the stall and kept zanking [sic] on the shank.... There was blood all over the water buckets and on the wall of the stall. There was no visably [sic] noticeable injury to Colbys face when he was in the aisleway. (Except for his swollen eye.) When he went into the stall he cut his face. When the vet arrived Colby came out ofthe stall full of blood all over his entire face. (Witness Statements, at 1-2 (unpaginated).) The witness described a shank as the metal part of the leather lead rope

the metal part was on the halter over his nose which when pulled, or

applied pressure is very painful. (jj at 3.) A second witness stated that when Moha and Colby arrived at the barn, Moha [A]nnounced that she had a terrible ride with [Colby] and that he [sic] was going to punish him for his errant behavior.... [Moha] then returned to further discipline her horse by pulling hard on the lead shank which was wrapped around his nose, over & over relentlessly. The horse began to rear and become agitated as a result of her abusive and harsh treatment. (Id. at 6.) At that time, the witness observed no facial injury on the horse other than a swollen left eye. (Id. at 7.) Moha then brought the horse into a stall, the witness heard much commotion coming from the stall, and then saw Colby when he came out of the stall. (Ij, at 8-9.) When Colby emerge[] from his stall to be treated by the vet I saw a huge cut on Colbys face which

a local criminal court accusatory instrument, namely: 1. An information; or 2. A simplified information; or 3. A prosecutors information; or 4. A misdemeanor complaint; or 5. A felony complaint. N.Y. Crim. Proc. Law

100.05.
28

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started over his right eye and went down to his nose. During the treatment Colby was bleeding profusly [sic] in the aisle. The vet proceeded to place 21 metal staples on his face to close the wound. (Id. at 9.) A third witness stated that after Moha returned to the barn with Colby, she: [S]tarted to yell at him and using great force and shanking him so hard she wasnt letting up on him.... She kept shanking him and trying to force him in the stall. He reared up and he was trying to get away from her. She finally got him in the stall and I heard banging and screaming at him.... He was trying to get away from her. I notice all blood every where in the stall as I walk by. (Id. at 12-13.) Before the horse was placed into the stall, the witness observed no injuries to his face. (Id. at 14.) Afterwards, the vet came out to stitch the horse up and blood was all over the floor. (Id.) These statements clearly provided probable cause to support a charge of animal abuse against Moha. The prosecution of Moha then commenced with the filing of the accusatory 2 information that Dunn prepared. The information was filed on the same day that the witnesses signed their supporting depositions, and expressly indicated that it was based in part on signed written witness statements. Plaintiffs have not alleged that Dunn learned anything else on December 6, 2005 that would negate the probable cause established by the witnesses statements. Plaintiffs point to no affirmative evidence which tends to undermine this showing of probable cause. Instead, plaintiffs make conclusory assertions in their memorandum that Dunn misrepresented or falsified the evidence. Such a conclusory allegation[] or unsubstantiated speculation is insufficient to defeat a motion for summary judgment. Scotto, 143 F.3d at 114. Moreover, plaintiffs merely deny the truthfulness or accuracy of the witnesses statements in
20

Plaintiffs counsel confirmed at oral argument that plaintiffs do not contend that the witnesses did not make these statements. 29

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their Rule 56.1(b) statement, (Pis. 56.1(b) to PHS

5-6.)

They do not point to any

affirmative evidence suggesting that Dunn knew the statements were false when she prepared the accusatory information and initiated the criminal proceeding, or indeed at any point thereafter. Plaintiffs also argue that any presumed existence of probable cause may be rebutted where there is proof offraud, perjury or the misrepresentation or falsification of evidence. (Pis. Mem. in Oppn, at 25.) However, plaintiffs have offered no concrete evidence to support their argument that Dunn falsified, fabricated, or misrepresented any of the evidence that established probable cause. Anderson, 477 U.S. at 256. Without more, no genuine issue of material fact has been shown that would allow a reasonable jury to decide in plaintiffs favor on this claim. Plaintiffs also contend that a lack of probable cause may be shown because Dunn and other municipal defendants deviated so egregiously from acceptable police conduct as to demonstrate an intentional disregard for proper police procedure. (Pis. Mem. in Oppn, at 24.) Again however, plaintiffs do not identify what procedures Dunn allegedly deviated from when she prepared the accusatory instrument or when she arrested
i

oha on the basis of the probable

cause established by the eyewitnesses statements. Dunns later conduct in preventing Moha from visiting Colby and in adopting the animal herself does not, without more, negate[ ]the probable cause that existed at the time of the arrest. Rennols v. City of New York. No.00 Civ. 6692(NGG), 2003 WL 22427752, at *4 (E.D.N.Y. Oct. 23, 2003). In order for probable cause to dissipate, the groundless nature of the charges must be made apparent by the discovery of some intervening fact. (quoting Lowth, 82 F.3d at 571). Plaintiffs do not identify any

evidence that creates a genuine issue of fact as to whether Dunn knew or learned that the eyewitnesses supporting depositions were false. Without more, the statements were sufficient 30

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to enable a reasonable police officer to conclude that Moha did in fact commit a crime. Ij (citing Lowth, 82 F.3d at 572); see also. e.g., Widget v. Town of Poughkeepsie, No. 12 Civ. 3459(ER). 2013 WL 1104273, at *6 (S.D.N.Y. Mar. 18. 2013) (citing Jocks, 316 F.3d at 136)

( [t]he crucial question then, is whether the arresting officers deliberately disregarded facts
known to them, which would then negate probable cause); Jean v. City of New York, No. 08 Civ. 157(RER), 2009 WL 3459469, at *7 (E.D.N.Y. Oct. 22, 2009) ([a]bsent any evidence that [the officer] created or forwarded false evidence, or otherwise engaged in fraudulent police conduct, [plaintiff] has not shown a genuine dispute over whether [the officer] initiated or continued the criminal proceeding). Even if Dunn later exploited the arrest and prosecution to gain control of the horse, the existence of this ulterior objective, without more, does not undermine probable cause in these circumstances. Accordingly, summary judgment on the 2 malicious prosecution cause of action is granted. At oral argument and by subsequent letter dated July 30, 2013, plaintiffs maintainedfor the first timethat probable cause was not established because Dunn filed the accusatory instrument without filing the supporting depositions of the witnesses along with it. Instead, plaintiffs maintain that the witnesses statements were filed sometime after Moha entered her guilty plea. Plaintiffs suggest that Defendant Dunn lied in hoisting the accusation because the accusatory she prepared states that it was based upon her own personal observations. (July 30, 2013 Letter, at 1.) Because she did not have personal knowledge of what occurred, plaintiffs argue that the accusatory lacks probable cause. (See id. at 1-2.) In addition, plaintiffs maintain

211 do not reach defendants alternative arguments. In addition, because I determine that plaintiffs have failed to identify evidence that may reasonably infer a genuine factual issue concerning the existence of probable cause, the claim is dismissed against all defendants. 31

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that the witnesses statements do not provide probable cause because they do not contain any express statement that anyone saw Plaintiff Moha hit the horse with a shank as alleged. 2.) Plaintiffs argumentseven assuming that they are properly considered at this stageare without merit. See, e.g., Hodge v. Unum Grp., No. 08 Civ. 2276(KAM), 2010 WL 1286257, at *4 n.3 (E.D.N.Y. Mar. 30, 2010) (quoting Nobel Ins. Co. v. City of New York, No. 00 Civ. 1328(KMK), 2006 WL 2848121, at *16 (S.D.N.Y. Sept. 29, 2006)) (Normally, the Court will not consider arguments raised for the first time in a reply brief let alone at or after oral argument.). First, the accusatory instrument does not state that it is based only upon Dunns personal knowledge. Rather, it states that the allegations are based upon personal knowledge of the complainant (and upon information and belief the sources of the complainants information being. signed written witness statements and police investigation[ ) j. (Information.) The reasonable inference is that Dunn prepared the accusatory instrument on the basis of the information given to her by the eyewitnesses that day. Again, plaintiffs have not responded with any affirmative, non-conclusory evidence to suggest that the witnesses did not prepare these statements or share their information with Dunn, or that Dunn somehow convinced the three individuals to lie. Second, even assuming, arguendo, that the accusatory instrument was procedurally defective, that defect alone does not show that Dunn lacked probable cause to initiate the criminal proceedings against Moha, since Dunn herself took the witnesses statements. See, e.g., Hernandez v. City of Rochester, 260 F. Supp. 2d 599. 612 (W.D.N.Y. 2003) ([E]ven if... the accusatory instrument did not establish probable cause, that would not necessarily mean that the arresting officer lacked probable cause, since not everything known to the officer was set forth in
-3

at

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the accusatory instrument.). Finally, plaintiffs are simply incorrect when they assert that the witnesses do not describe the abuse as involving a shank. A review of the statements confirms that each witness referred to a shank. The Court notes that the defendants motions have been brought at an unusual stage of this proceeding. i.e., before the close of discovery. Nevertheless, plaintiffs have not objected on the basis that further discovery is necessary. (Indeed, plaintiffs themselves seek, in their own motion, not only to amend to add a new claim, but also for summary judgment on that claim without first engaging in discovery.) The Federal Rules of Civil Procedure provide that, [ujnless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. Fed. R. Civ. P. 56(b) (emphasis added). If, at the time the motion is filed a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may.
. .

allow time.

to take discovery.

id. R. 56(d)(2). Accordingly,

for the court to deny or postpone a motion for summary judgment on the basis that the factual record requires further development, the party seeking that order must file an affidavit describing: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiants efforts were unsuccessful.

Cusamano v. Sobek,

604 F. Supp. 2d 416, 505 (N.D.N.Y. 2009) (quoting Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004)). Plaintiffs have not opposed summary judgment in this manner. Accordingly, the claim is dismissed.
3. MonelI claim

The sixth cause of action alleges a Monell claim against Smith and the County for having 33

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developed, implemented, enforced, encouraged and sanctioned de facto policies, practices, and/or customs exhibiting deliberate indifference to the Plaintiffs constitutional rights which caused the violation of such rights. (Am, Compi. j 159; see id. the Court has dismissed all of plaintiff[s]

158-64.) However. because

1983 claims, there can be no liability under Monell.

Sanchez v. Port Auth. of N.Y. & N.J., No. 08 Civ. 1028(RRM)(CLP), 2012 WL 1068078, at *11 (E.D.N.Y. Mar. 29, 2012) (citing City of L.A. v. HeHer, 475 U.S. 796, 799 (1986) (per curiam). Segal v. City of New York. 459 F.3d 207, 219 (2d Cir. 2006), and Graham v. City of New York, No. 08 Civ. 3518 (KAM)(RML), 2011 WL 3625074. at *1314 (E.D.N.Y. Aug. 17, 2011)). Accordingly, this claim is dismissed.
4. Pendent State Law Claims

Because plaintiffs

1983 claims have all been dismissed, the Court declines to exercise

jurisdiction over any remaining pendent state law causes of action. 28 U.S.C.

1367(c)(3);

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); see also, e.g., Carnegie-Melon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) Cin the usual case in which all federal law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrinejudicial economy, convenience, fairness, and comitywill point toward declining to exercise jurisdiction over the remaining state-law claims).
5. Plaintiffs Motions

Plaintiffs seek leave to amend their pleading in order to add a new claim for replevin against Dunn, Hall, PHS, and Cundari. Plaintiffs also move for summary judgment on the proposed repleviri claim. PHS, Dunn, Hall, and Cundari oppose the motions. (See generally Mem. of Law of the Def. Putnam County Humane Society in Oppn to Pls. Mot. to Amend the

34

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Compi. to Add a Cause of Action for Replevin & for Summ. J. (Dkt. 65); Defs. Dunn & Halls Mem. of Law in Oppn to Pls. Mot. to Amend the First Am. Compi. to Add a Cause of Action for Replevin & for Summ. J. (Dkt. 64); June 19. 2013 Richard G. Monaco Letter coining the oppositions filed by PHS, Dunn, and Hall on behalf of Cundari) (Dkt. 77).) Here, plaintiffs

1983 claims have all been dismissed and this Court has declined to exercise pendent jurisdiction over state law claims,

1367(c)(3); United Mine Workers, 383 U.S. at 726; see also, e.g.,

Cohill, 484 U.S. at 350 n.7. Plaintiffs motions are accordingly denied.
IV. CONCLUSION

For the reasons set forth above, defendants motions for summary judgment and judgment on the pleadings are GRANTED. Plaintiffs motions to amend and for summary judgment are DENIED. The action is DISMISSED and judgment shall be entered against plaintiffs. The Clerk is directed to terminate the pending motions (Dkts. 44. 49, 53. 57). Date: September! 2013 White Plains, New York
SO ORDERED

United States Magistrate Judge

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