Supreme Court, Erie County, July 16, 2019

Barclay Damon, LLP (James P. Domagalski and Sarah A. O'Brien of counsel) for defendant.

Keenan Law Centre, P.C. (John J. Keenan of counsel) for plaintiff.

Defendant, Town of Orchard Park, has applied, pursuant to CPLR 3212, for an order granting it summary judgment and dismissing the complaint, dated July 15, 2016.

Plaintiff, Brian Fronczak, has asserted three claims against the Town, grounded in forcible entry, forcible detainer, and unlawful eviction.

This action is related to Fronczak v Carrow (index No. 812899/2015), which is also pending before this court (the related action). The joint trial of both actions is scheduled to commence on October 21, 2019.

In the related action, Fronczak and his company, Midnight Oil Auto/Truck Repairs, Inc., sued Thomas Carrow in connection with their claims that, inter alia, Carrow unlawfully evicted them from commercial premises located at 4243 Abbott Road, in the Town of Orchard Park, New York.

On July 17, 2015, Carrow, in anticipation of a dispute with Fronczak, placed a "standby" call with the Orchard Park Police Department. Officers David Honer and James Putnam (Honer{**65 Misc 3d at 248} and Putnam are collectively referred to as the officers) responded to the dispatch and remained at the premises for approximately 48 minutes. This action arises out of the "standby" call.

To obtain summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law (Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009]). This requires sufficient evidence to shift the burden to the opposing party to produce evidentiary proof sufficient to establish the existence of genuine issues of material fact (id. at 320). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988] [citation and alterations omitted]).

Moreover, factual issues raised by the opposing party must be genuine, as opposed to speculative (Trahwen, LLC v Ming 99 Cent City #7, Inc., 106 AD3d 1467, 1468 [4th Dept 2013]).

Claims for Forcible Entry and Forcible Detainer

Fronczak has asserted claims for forcible entry and forcible detainer, pursuant to Real Property Actions and Proceedings Law § 853, which provides, as follows:

"If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer."

Such claims require a showing of "force" or "unlawful[ness]." Accordingly, there can be no forcible entry or forcible detainer in the absence of the defendant's affirmative force, unlawful act, or threat of violence (Matter of Jovana Spaghetti House v Heritage Co. of Massena, 189 AD2d 1041, 1042 [3d Dept 1993] [upholding dismissal of tenant's forcible entry and forcible detainer claims against commercial landlord who exercised right of peaceable reentry by padlocking doors and placing a barricade in front of entrance, because tenant presented "no competent evidence to support a finding that (landlord's) entry or detainer was either unlawful or forcible"]).

{**65 Misc 3d at 249}Moreover, individuals acting under color of authority, such as the officers, may not be liable for forcible entry and forcible detainer absent a showing of "actual or threatened violence tending to a breach of the peace, or an abuse of authority" (Brandt v de Kosenko, 57 Misc 2d 574, 575 [1st Dept 1968] [dismissing landlord's third-party complaint against city marshal who, while acting under color of authority, executed an invalid eviction warrant because there was no violence or abuse of authority in the execution of the warrant]).

The officers did not use any force or threats of force, or otherwise assist in Fronczak's removal from the premises. Indeed, Fronczak admitted that the officers expressly advised him that they could not force him to leave the premises, because their function was simply to keep the peace (Domagalski aff ¶ 7; exhibit B at 49).

[1] With respect to his claims of forcible entry and forcible detainer, the sole allegation that Fronczak asserts against the Town (in the complaint) is that the officers aided and assisted [*2]Carrow in performing the alleged wrongful commercial eviction by informing him that he had "one hour" to vacate (Domagalski aff ¶ 8; exhibit C ¶ 26). This naked assertion is insufficient to state a claim for forcible entry or forcible detainer. It constitutes the type of "unsubstantiated allegations or assertions [that] are insufficient" to defeat summary judgment (Gilbert Frank Corp., 70 NY2d at 967).

Moreover, it is belied by the record, which is replete with evidence that the officers had no affirmative involvement in Fronczak's eviction from the premises. For example, Carrow did not tell the officers that he was evicting Fronczak (Domagalski aff ¶ 11; exhibit E at 66-67); Carrow had very limited communications with the officers, none of which related to the eviction (id.); the officers never entered Fronczak's shop at the premises (Domagalski aff ¶ 7; exhibit B at 48); the officers never physically touched Fronczak (id. at 50); the officers never closed or boarded up any doors (id.); and the officers never escorted Fronczak out of the building (id.). Simply put, the record reflects that there were no physical altercations, confrontations or threats of violence during the time the officers were present. Indeed, Fronczak testified that "the police officers stood by their cars, observed the people, played with the dog and then left when [plaintiff] left" (id.).

The Town met its burden of proof on the motion relative to the claims of forcible entry and forcible detainer. Fronczak appears{**65 Misc 3d at 250} to have conceded the dismissal of these claims, because his submission in opposition to the Town's motion is limited to the issue of unlawful eviction.^[FN*]

Claim for Unlawful Eviction

To sustain a claim for unlawful eviction, Fronczak must prove that he was "actually evicted, i.e., physically expelled or otherwise physically excluded from the premises," or that he was "constructively evicted, i.e., that [the Town] committed wrongful acts that substantially and materially deprived him of the beneficial use and enjoyment of the premises" (Humphrey v Onondaga County Sheriff's Dept., 9 AD3d 898, 898 [4th Dept 2004]).

In order to recover treble damages for unlawful eviction, pursuant to RPAPL 853, Fronczak must prove that "force or fear of personal violence was used to accomplish the eviction" (Long Is. Airports Limousine Serv. Corp. v Northwest Airlines, 124 AD2d 711, 713 [2d Dept 1986]). Punitive damages are only awarded when there is a showing that a defendant's actions are heinous or reprehensible (Spiegel v Goodman, 204 AD2d 430 [2d Dept 1994] [plaintiff not entitled to punitive damages where no showing that defendants acted with malice in procuring an invalid warrant of eviction]).

As already shown above, the officers had no involvement in removing Fronczak or his business from the premises. Rather, the undisputed facts show that Carrow contacted the Town of Orchard Park Police Department to request that an officer be dispatched to keep the peace, not to perform, or assist in the performance of, a commercial eviction. Upon arriving at the scene, the officers properly advised the parties that they could not force anyone to leave the premises because it was a civil matter and that they were there simply to "keep the peace" (Domagalski aff ¶ 7; exhibit B at 49). Fronczak has not disputed Putnam's contention that he had little to no contact, verbal or otherwise, with Fronczak (or Carrow) while present at the premises (Putnam [*3]aff ¶ 5; Domagalski aff ¶ 13; exhibit H at 13, 16). Similarly, it is undisputed that Honer's contact with Fronczak (and Carrow) was limited to "a couple minutes" (Honer aff ¶ 6; Domagalski aff ¶ 13; exhibit G at 18), and that both officers stayed away from the premises for the majority, if not the entire duration, of the standby call (Domagalski aff ¶ 13; exhibit G at 28; exhibit H at 17).{**65 Misc 3d at 251}

In light of the foregoing, the Town met its burden of proof in connection with its motion to dismiss the claim for unlawful eviction. Thus, the burden shifted to Fronczak to produce evidentiary proof sufficient to establish the existence of genuine issues of material fact (Ferluckaj, 12 NY3d at 320).

Fronczak's several contentions in opposing that part of the motion seeking summary dismissal of the claim for unlawful eviction are unsupported by the record and belied by the controlling case law.

Contrary to Fronczak's contention, the officers did not participate in the eviction by telling Fronczak that he had to remove his personal property from the premises. At most, Officer Honer "might have advised him" to remove "valuables" from the premises and "speak to his lawyer" (Domagalski aff ¶ 13; exhibit G at 16). Such interaction does not rise to the level of physical expulsion required to support a claim for wrongful eviction (see Humphrey). Moreover, it is undisputed that the officers told Fronczak that they could not force him to leave the premises, because the underlying dispute with Carrow was a civil matter and they were present solely to keep the peace (Domagalski aff ¶ 7; exhibit B at 49).

Fronczak's contention that the officers had a duty (which they breached) to ensure that Carrow possessed a valid warrant of eviction fails as a matter of law. No such duty exists, because a commercial landlord may utilize self-help to regain possession of demised commercial premises (Bozewicz v Nash Metalware Co., 284 AD2d 288 [2d Dept 2001]; see also Barrett v Harwood, 189 F3d 297 [2d Cir 1999] [officers responding to a civil keep the peace call have no duty to evaluate the merits of the private civil dispute]).

The Doctrine of Qualified Immunity

[2] By dispatching the officers to the premises in response to Carrow's call, the Town engaged in a discretionary, governmental function (Gilberti v Town of Spafford, 117 AD3d 1547, 1548 [4th Dept 2014] [acts "undertaken for the protection and safety of the public pursuant to general police powers" constitute governmental functions]). The officers' actions, in response to the standby call, entitled them to qualified immunity, because—at all times—their conduct was objectively reasonable and well within their discretionary authority as police officers, as it related to Fronczak (Watson v City of Jamestown, 56 AD3d 1289 [4th Dept 2008]). Upon arriving at the premises, the officers merely advised Fronczak of the civil (not criminal) nature{**65 Misc 3d at 252} of the matter, to which they had no involvement, and stood by to ensure that there was no disturbance—which is precisely what they were expected to do as peace officers.

Had the officers affirmatively assisted Carrow with the eviction (they did not assist him), such assistance would remain protected by the doctrine of qualified immunity, because a commercial landlord may utilize self-help to regain possession of demised commercial premises (Bozewicz).

Fronczak also contends that the officers participated in the eviction by remaining at the premises until Fronczak left. However, this contention fails to recognize the officers' [*4]affirmative duty—as police officers required to keep the peace—to remain at the premises until Fronczak or Carrow left. Officer Honer testified at his deposition that had Carrow left the premises before Fronczak, the officers would have also left (Domagalski aff ¶ 13; exhibit G at 20-21).

Finally, Fronczak's claim that he was intimidated by the officers' presence fails to support a claim for unlawful eviction.

Analogous Federal Law

There is a plethora of federal law related to the Town's application, because causes of action grounded in claims for forcible entry and unlawful eviction are generally pleaded against town officials pursuant to 42 USC § 1983. Although Fronczak has not expressly alleged any federal section 1983 claims against the Town, the analysis set forth in the federal case law further supports the dismissal of his claims against the Town (see Barrett [police officer's role as a peace officer during a standby call did not convert seller's private act of repossessing truck from purchasers into an actionable state repossession action depriving purchasers of a property interest]; Ostensen v Suffolk County, 378 F Supp 2d 140 [ED NY 2005] [a police officer dispatched to stand by to prevent a breach of the peace while an eviction, repossession or other similar private seizure of property takes place is not liable for civil damages so long as the officer did not take an active role in any illegal conduct]; Chaney v Stewart, 2015 WL 1538021, *6, 2015 US Dist LEXIS 45197, *16 [D Vt, Apr. 7, 2015, No. 2:13-cv-246] ["officer's presence at a private seizure of property for the purpose of keeping the peace between the parties, rather than to actively assist in the seizure, has been found insufficient to constitute state action"]).

{**65 Misc 3d at 253}In light of the foregoing, it is hereby ordered that the application is granted and the complaint is hereby dismissed.