17‐0410
Telian v. Town of Delhi, et. al
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 16th day of January, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
Ernie Telian,
Plaintiff‐Appellant,
‐v.‐ 17‐0410
Town of Delhi, Peter Bracci, John Mathiesen,
Sherri Telian,
Defendants‐Appellees,
1
John Doe No. 1, John Doe No. 2, John Doe No. 3,
John Doe No. 4, John Doe No. 5,
Defendants.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANT: Albert J. Millius, Jr., Hinman,
Howard & Kattell, LLP, Binghamton,
NY.
FOR APPELLEES: Stephen J. Gaba (Adam L. Rodd, on
the brief), Drake Loeb, PLLC, New
Windsor, NY, for Town of Delhi,
Peter Bracci, and John Mathiesen.
Ryan E. Manley, Harris, Conway &
Donovan, PLLC, Albany, NY, for
Sherri Telian.
Appeal from a judgment of the United States District Court for the
Northern District of New York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be
AFFIRMED.
Plaintiff‐appellant Ernie Telian appeals from a May 13, 2015 Order of the
United States District Court for the Northern District of New York dismissing, on
a motion under Fed. R. Civ. P. 12(b)(6), his malicious prosecution claim, and from
a January 14, 2017 Order dismissing his equal protection and conspiracy claims,
pursuant to a motion under Fed. R. Civ. P. 56. Telian argues on appeal that: (1)
the underlying criminal action against him which forms the basis of his malicious
prosecution claim was terminated in his favor; (2) the district court ignored
disputed material facts in his equal protection claim and drew every inference in
the defendants’ favor, in violation of Fed. R. Civ. P. 56; and (3) since the dismissals
must be reversed as to his malicious prosecution and equal protection claims, his
conspiracy claim should be reinstated. We assume the parties’ familiarity with
2
the underlying facts, the procedural history, and the issues presented for review.
1. As to the malicious prosecution claim, Telian argues that the district
court incorrectly determined that the underlying criminal matter was not
terminated in his favor.1
“We review the grant of a motion to dismiss de novo, accepting as true all
factual claims in the complaint and drawing all reasonable inferences in the
plaintiff’s favor.” Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir.
2013). “In order to prevail on a § 1983 claim against a state actor for malicious
prosecution, a plaintiff must show a violation of his rights under the Fourth
Amendment, and establish the elements of a malicious prosecution claim under
state law.” Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (internal citations
omitted). To establish a malicious prosecution claim under New York law, a
plaintiff must demonstrate that: (1) a proceeding was commenced or continued
against him, (2) with malice and without probable cause, and (3) was terminated
in his favor. Id.
The underlying criminal matter in Telian’s malicious prosecution claim was
not terminated in his favor. While the County Court did reverse the Justice
Court’s decision finding Telian liable for building code violations, the Town of
Delhi then appealed the County Court’s decision. So the County Court’s
decision did not end the litigation, it remained a live controversy. Final
termination occurred when the Town and Telian entered into a “Stipulation of
Settlement.” Joint App’x at 251‐52. Under the Settlement, (1) the Town agreed
to withdraw two appeals in cases against Telian, as well as move to vacate a prior
judgment against Telian, and (2) Telian “sought and obtained compliance” with
the relevant building and zoning laws, despite his earlier claim that, because he
1 Counsel for appellant characterized the malicious prosecution claim as a “Due
Process Claim” in Telian’s opening brief, but requests that the Court ignore the
error and evaluate the claim as one for malicious prosecution. Because
defendants treated the claim as one for malicious prosecution in their briefs, there
is no prejudice in treating the claim as one for malicious prosecution on appeal.
See Johnson v. City of Shelby, 135 S. Ct. 346, 346‐47 (2014).
3
did not own the property, he was under no obligation to do so. Id. In return,
the parties would “mutually agree to withdraw[] the appeals in the above
captioned matters[.]” Id. at 251. “A termination is not favorable to the accused .
. . if the charge is withdrawn or the prosecution abandoned pursuant to a
compromise with the accused,” Rothstein v. Carriere, 373 F.3d 275, 286 (2d Cir.
2004) (internal citation and quotation marks omitted, alteration in original), and
that is exactly what occurred here: the Town withdrew its appeal against Telian
pursuant to a compromise with him.2
2. Telian next argues that, in dismissing his equal protection claim, the
district court ignored disputed material facts and resolved fact questions that
should have been left to a jury. See Fed. R. Civ. P. 56.
We review the grant of summary judgment de novo, drawing all factual
inferences in favor of the non‐moving party. Sousa v. Marquez, 702 F.3d 124, 127
(2d Cir. 2012); see also Lederman v. N.Y.C. Depʹt of Parks & Recreation, 731 F.3d
199, 202 (2d Cir. 2013). Summary judgment is appropriate when “the record
taken as a whole could not lead a rational trier of fact to find for the non‐moving
party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
Telian argues that he was subject to selective enforcement, in violation of
the Equal Protection clause. “To prevail on a claim of selective enforcement,”
plaintiffs must demonstrate: “(1) that they were treated differently from other
similarly situated individuals, and (2) that such differential treatment was based
on impermissible considerations such as race, religion, intent to inhibit or punish
the exercise of constitutional rights, or malicious or bad faith intent to injure a
person.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)
(internal citation and quotation marks omitted); see also Vill. of Willowbrook v.
2 Telian, while acknowledging that no precedent in this Circuit aids his
argument, urges the Court to follow the lead of two Connecticut State Trial
Courts whose decisions he argues support the conclusion that withdrawals of
appeals pursuant to a stipulation with the accused constitutes favorable
termination. We instead rely on precedent in this Court.
4
Olech, 528 U.S. 562, 564 (2000) (“successful equal protection claims brought by a
‘class of one’” must allege that the plaintiff has “been intentionally treated
differently from others similarly situated and that there is no rational basis for the
difference in treatment”).
“[C]lass‐of‐one plaintiffs must show an extremely high degree of similarity
between themselves and the persons to whom they compare themselves.”
Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). In order to
demonstrate sufficient similarity to a comparator, the plaintiff must establish that:
(i) no rational person could regard the circumstances of the plaintiff
to differ from those of a comparator to a degree that would justify the
differential treatment on the basis of a legitimate government policy;
and (ii) the similarity in circumstances and difference in treatment
are sufficient to exclude the possibility that the defendants acted on
the basis of a mistake.
Id. (internal citation omitted).
The district court considered whether a reasonable juror could conclude
that that Telian and his comparators were similarly situated, and identified a
rational basis for every instance of differential treatment with a comparator. In
doing so, the district court did not rely on any disputed fact; rather, it relied on
facts which Telian did not contest below, or on appeal. We agree with the
district court’s conclusion: no reasonable juror could find that Telian and all but
one of his comparators were similarly situated. While Telian argues that
whether a person is similarly situated is a question for the jury, a court “may
grant summary judgment in a defendantʹs favor on the basis of lack of similarity
of situation . . . where no reasonable jury could find that the persons to whom the
plaintiff compares itself are similarly situated,” as occurs here. Id. As to the
one similarly situated individual, Sherri Telian, the Town did not treat her
differently from Ernie Telian: the Town charged her with violations of the
building code, brought her case to trial, and sought a conviction in her case. No
reasonable juror could conclude that under these circumstances, the Town
defendants treated Sherri and Ernie Telian differently.
5
3. The district court dismissed Telian’s conspiracy claim because the
underlying malicious prosecution and equal protection claims were also
dismissed. Telian’s only argument on appeal is that if we reverse either his
malicious prosecution or equal protection claims, we must also reinstate his
conspiracy claim. Since we affirm the district court as to both of Telian’s
substantive claims, we affirm the dismissal of the conspiracy claim as well.
Accordingly, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
6
Telian v. Town of Delhi
Combined Opinion