Plaintiff commenced the instant action pursuant to 42 U.S.C. § 1983, alleging Defendants, his ex-wife and Town of Delhi officials (“Defendants”), violated his Fifth and Fourteenth Amendment rights.  The Court granted Defendants' motions to dismiss with leave to amend certain claims, and Plaintiff filed an Amended Complaint. Defendants then moved to dismiss the Amended Complaint.

Plaintiff's Amended Complaint identifies to two comparators, individuals who allegedly “constructed buildings without first obtaining a permit, and were, after being notified by the Town of the need for a permit ... granted permits with no prosecution.” The first was Plaintiff’s ex-wife. The prior Court concluded that, despite being equally responsible for building the structures but facing no punishment, Plaintiff had not alleged that his ex-wife was a proper comparator because he had failed to allege that any of the Defendants were actually involved in the decision not to prosecute her. Even so, the court held that if the allegations in the Amended Compliant were proven, it would indicate that the decision to only prosecute Plaintiff for violating the zoning ordinances was the result of an agreement between the Defendants, the prosecutor, and the Town Justice. Accordingly, the Court held that Plaintiff alleged a plausible class-of-one equal protection claim, and that his ex-wife was a valid comparator.

As to the state law claims, unlike Plaintiff's earlier allegations, where his ex-wife only reported violations and the other Defendants acted independently to prosecute them, Plaintiff now alleged that she knowingly and actively participated in a careful scheme to bring false allegations against him and played a specific role in ensuring that those allegations damaged him.  The Court found this change was “just enough” to survive the motion to dismiss.

The Court did, however, dismiss Plaintiff’s malicious prosecution claim, finding that the case against him ended when Plaintiff and the Town entered into an agreement to withdraw the appeals. As the law clearly states that a termination is not favorable “if the charge is withdrawn or the prosecution abandoned pursuant to a compromise with the accused,” Plaintiff has failed to prove the favorable termination element of a malicious prosecution. Finally, Plaintiff's conspiracy claim under Section 1983 survived the Defendant’s motion to dismiss when viewed in a light most favorable to the Plaintiff.

The case was Telian v Town of Delhi, 2015 WL 2249975 (N.D.N.Y. May 13, 2015).