17-1461-cv Corsini v. Brodsky 

## 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 Fole y Square, in the City of New York, on the 13 th day of April, two thousand eighteen. PRESENT: BARRINGTON D. PARKER, REENA RAGGI, Circuit Judges, JESSE M. FURMAN, District Judge. *

_________________________________________________ GERARD ANDREW CORSINI, Plaintiff-Appellant , v. No. 17-1461-cv DANIEL BRODSKY, THE BRODSKY ORGANIZATION, Defendants-Cross Claimants-Cross Defendants-Appellees , THOMAS BRODSKY, LLC, 433 WEST ASSOCIATES, LLC, URBAN ASSOCIATES LLC, MARGARET BERGIN O’CONNOR, LOUIS ZADRIMA, CITY OF NEW YORK, MAYOR MICHAEL R. BLOOMBERG, FIRST DEPUTY MAYOR PATRICIA E. HARRIS, POLICE COMMISSIONER RAYMOND W. KELLY, COMMISSIONER KATHERINE L. OLIVER,

* Judge Jesse M. Furman, of the Un ited States District Court for the Southern District of New York, sitting by designation.COMMISSIONER ROBERT LIMANDRI, DEPUTY INSPECTOR ELISA A. COKKINOS, DETECTIVE ERIC PATINO, DISTRICT ATTORNEY CYRUS R. VANCE, JR., ASSISTANT DISTRICT ATTORNEY LISA DELPIZZO, ASSISTANT DISTRICT ATTORNEY DANIEL GARNAAS-HOLMES, ELIZABETH MORGAN, AKA ELIZABETH MORGAN CARY, JONATHAN CARY, DANIEL J. MCKAY, AARON SHMULEWITZ, BELKIN WENIG & GOLDMAN, LLP, DISTRICT ATTORNEY, JOSEPH PITRE, Defendants-Cross Defendants-Appellees , LIEUTENANT BRIAN HOULI HAN, OFFICER RICHARD G. STELLMAN, KAREN FRIEDMAN-AGNIFILO, ASSISTANT DISTRICT ATTORNEY, NITIN SAVUR, ASSISTANT DISTRICT ATTORNEY, JOHN IRWIN, ASSISTANT DISTRICT ATTORNEY, WILLIAM DARROW, ASSISTANT DISTRICT ATTORNEY, NEW YORK POLICE DEPARTMENT, LIEUTENANT EDWARD LOSS, Defendants-Appellees , JOHN DOES 1–25, JANE DOES 1–25, Defendants

.

_________________________________________________ APPEARING FOR APPELLANT: GERARD ANDREW CORSINI, Esq., pro se , New York, New York.

FOR THE CARY APPELLEES: Eric M. Arnone, Esq., Galluzzo & Johnson LLP, New York, New York.

FOR THE BRODSKY APPELLEES: Susan Patricia Mahon, Esq., Gartner & Bloom, P.C., New York, New York.

APPEARING FOR THE CITY APPELLEES: BENJAMIN WELKINSON (Deborah A. Brenner, on the brief ), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.3 Appeal from a judgment of the United States Di strict Court for the Southern District of New York (Laura Taylor Swain, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the distri ct court entered on April 3, 2017, is AFFIRMED

. Plaintiff Gerard Andrew Cors ini, an attorney proceeding pro se , appeals from the dismissal of his complaint brought pursuant to 42 U.S. C. §§ 1983 and 1985 and alleging violations of constitutional rights by his neighbors and their employee (“the Cary Defendants”), his landlord and related individuals and entities (“the Brodsky Defendants”), New York City police officers

and current and former officials (“the City Defendants”), and current and former members of the New York County District Attorney’s Office (“ the DA Defendants”), arising from Corsini’s attempts to expose his neighbors’ purported zoning violations. 1

We review de novo the dismissal of a complaint for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), and the entry of judgment on the pleadings, see Fed. R. Civ. P. 12(c); Hogan v. Fischer , 738 F.3d 509, 515 (2d Cir. 2013). While we generally accept all factual allegations in a complaint

as true and draw all reasonable inferences in plaintiff’s favor, see Biro v. Condé Nast , 807 F.3d 541, 544 (2d Cir. 2015), pleadings that “are no more than conclusions[] are not entitled to the assumption of truth,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to plead a plausible claim for relief, Ashcroft v. Iqbal ,

1 Corsini also sued the Cary Defendants’ lawy er and his law firm, Belkin Burden Wenig & Goldman, LLP, but Corsini does not pursue on appeal the dismissal of his claims against them. Nor does his appellate brief address dismisse d claims of First Amendment retaliation and deliberate indifference to medical needs. Accordingly, we trea t these claims as abandoned, and we do not address them further. See LoSacco v. City of Middletown , 71 F.3d 88, 92 (2d Cir. 1995); Fed. R. App. P. 28(a).4 556 U.S. 662, 678–79 (2009). Moreover, because Corsin i is an attorney, his amended complaint

is not entitled to the liberal construction normally afforded pro se litigants. See Tracy v.

Freshwater , 623 F.3d 90, 101–02 (2d Cir. 2010). In applyi ng these principles here, we assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decisi on to affirm largely for reasons stated by the district court. 2 1. False Arrest, Malicious Prosecution, and “Siege” Claims Corsini argues that the district court erred in dismissing his claims fo r false arrest on April 18, 2012, and July 25, 2012, and his related claims fo r malicious prosecution. The argument fails on the merits. Like the district court, we conclude that Corsini fails plausibly to allege the lack of probable cause necessary to maintain such claims. See Jaegly v. Couch , 439 F.3d 149, 152 (2d Cir. 2006) (holding that probable cause is complete defense to false arrest); Savino v. City of New

York , 331 F.3d 63, 72 (2d Cir. 2003) (same, for malic ious prosecution claims). Although Corsini asserts that defendant Morgan wa s an unreliable complainant as to the events supporting his April 18, 2012 arrest, his conviction of one charge stemming from that in cident necessarily establishes probable cause for both that arre st and the ensuing prosecution. See Cameron v. Fogarty , 806 F.2d 380, 388–89 (2d Cir. 1986) (holding that convicti on establishes probable cause for arrest); Mitchell v. City of New York , 841 F.3d 72, 79 (2d Cir. 2016) (holdi ng that favorable termination is required to support malicious prosecution claim). Corsini’s July 25, 2012 arrest and prosecution for violating a protective order secure d by Morgan were resolved in his favor, but Morgan’s eyewitness account that Corsini had violated the protective order provided probable

2 The DA Defendants move to join the arguments raised in the City Defendants’ brief. That motion is GRANTED.5 cause, and Corsini’s conclusory challenge to Morg an’s credibility does not provide a factual basis for arresting officers to have doubted her veracity. See Betts v. Shearman , 751 F.3d 78, 82 (2d Cir. 2014) (“[P]robable cause exists if a law en forcement officer ‘received [] information from some person, normally the putative victim or eyew itness, unless th e circumstances raise doubt as to the person’s veracity.’” (a lteration in original) (quoting Panetta v. Crowley , 460 F.3d 388, 395 (2d Cir. 2006))). Corsini’s “siege” claim asserts that, for a three-hour period on July 18, 2012, police officers, acting without a warrant, incessantly knocked on his door and rang his doorbell. Also, Corsini alleges that during this time his landlord placed a key in the keyhole of his door and turned the lock. Neither the police nor the landlord ever entered the premises. The district court ruled that such conduct does not impli cate the Fourth Amendment right to be free from unreasonable

searches and seizures. We need not decide th at question because Corsin i identifies no precedent from the Supreme Court or this court that clearly established such a right in these circumstances

in 2012. See Thyroff v. Nationwide Mut. Ins. Co. , 460 F.3d 400, 405 (2d Cir. 2006) (“[W]e are free to affirm a decision on any gr ounds supported in the record, even if it is not one on which the trial court relied.”). To the contrary, Corsini acknowledges that such a Fourth Amendment claim would be “novel.” Appellant’s Br. 25, 45. Th e City Defendants are therefore entitled to qualified immunity on the “siege” claim and, thus, dismissal. See Kisela v. Hughes , 138 S. Ct. 1148, 1152 (2018) (holding that qualified immunity at taches when “official’s conduct does not violate clearly established stat utory or constitutional rights of which a reasonable person would have known” and “existing precedent must have placed the statutory or constitutional question beyond debate” (internal quotation marks omitted)); White v. Pauly , 137 S. Ct. 548, 551–52 (2017)6 (requiring, for clearly established analysis, identification of “a cas e where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment”); Zalaski v. City of Hartford , 723 F.3d 382, 388–89 (2d Cir. 2013). In sum, upon de novo review, we conclude that Cors ini’s false arrest, malicious prosecution, and “siege” claims against the City and DA Defendants were properly dismissed for substantially the reasons stat ed by the district court in its September 23, 2014 and May 27, 2015 opinions.

2. Claim Preclusion Corsini argues that claim preclusion does not warrant the dismissal of his conspiracy claims against the Cary Defendants for viol ations of his First, Fourth, a nd Fourteenth Amen dment rights. The point merits little discussion because even if Corsini is right on that point of law, his conspiracy claims against both the Cary a nd the Brodsky Defendants fail because he only conclusorily pleaded th e existence of a conspiracy. To survive a motion to dismiss a § 1983 conspiracy claim, plaintiff must plausibly alle ge (1) an agreement between a state actor and a private party (2) to act in concert to inflict unc onstitutional injury, and (3) an overt act furthering that goal and causing damages. See Ciambriello v. Cty. of Nassau , 292 F.3d 307, 324–25 (2d Cir. 2002). Corsini’s “[t]hreadbare recita ls” of these elements lack the factual basis necessary to plead a plausible claim for relief, Ashcroft v. Iqbal , 556 U.S. at 678, and, thus, the district court correctly dismissed the conspiracy claims, see Ciambriello v. Cty. of Nassau , 292 F.3d at 325 (“[C]omplaints containing only conclusory, vague, or general alle gations that the defendants have engaged in a conspiracy to deprive the plaint iff of his constitutional rights ar e properly dismissed; diffuse and7 expansive allegations are insufficient, unless amplified by specific in stances of misconduct.” (internal quotation marks omitted)).

3. Bias We review Corsini’s challenge to the district court’s denial of his recusal motion for abuse of discretion, which is not evident here. See United States v. Morrison , 153 F.3d 34, 48 (2d Cir. 1998). A judge should recuse when “a reasonabl e person, knowing all the facts, would question the judge’s impartiality.” United States v. Yousef , 327 F.3d 56, 169 (2d Cir. 2003) (internal quotation marks omitted); see 28 U.S.C. § 455(a). Here, nothing in the record calls into question the district court’s impartiality. Corsini’s dissatis faction with the district court’s rulings in this case and in his previous federal lawsuit are insufficient to do so. See Chen v. Chen Qualified

Settlement Fund , 552 F.3d 218, 227 (2d Cir. 2009) (holding that claims of judici al bias generally “must be based on extrajudicial matters, and adve rse rulings, without more, will rarely suffice to provide a reasonable basis for ques tioning a judge’s impartiality”). We have considered Corsini’s remaining argum ents and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court