Bornschein v. Herman

304 F. Supp. 3d 296
District Court, N.D. New York·Decided January 18, 2018·No. 1:17–CV–329 (LEK/CFH)·Published·Cited by 13 cases

Opinion

Lawrence E. Kahn, U.S. District Judge

I. INTRODUCTION

Plaintiff Gerald Bornschein commenced this civil rights action against defendants Andrew Herman and Daniel Walsh on March 22, 2017, alleging violations of Plaintiff's rights under the Fourth Amendment, as enforced through 42 U.S.C. § 1983, and New York State law. Dkt. No. 1 ("Complaint"). In June 2017, Defendants *299separately moved to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Dkt. Nos. 9 ("Walsh Motion"), 9-1 ("Walsh Memorandum"), 10 ("Herman Motion"), 10-1 ("Herman Memorandum"). For the reasons that follow, both motions are granted.

II. BACKGROUND1

Bornschein is a resident of Saugerties, New York, Compl. ¶ 1, where Walsh, a retired Nassau County police officer, resides part-time, id. ¶¶ 3, 12. Bornschein and Walsh own adjacent homes. Id. ¶ 6-9. Walsh purchased his property from Bornschein, who had sub-divided. Id. ¶ 6. To access his property, Walsh uses a narrow right of way that crosses Bornschein's property and extends to the beginning portion of Walsh's driveway. Id. ¶¶ 8-9. Following a property dispute in 2013, Walsh obtained an order of protection requiring Bornschein to "stay away from Walsh's home." Id. ¶¶ 9-10.

On October 24, 2015, Walsh met with Herman, a New York State police officer, at Walsh's home. Id. ¶ 13. The next day, Herman informed Bornschein that Walsh had accused him of trespassing on Walsh's property in violation of the order of protection. Id. ¶ 14. Walsh provided photographs that he claimed, in a sworn deposition, showed Bornschein entering Walsh's property on a tractor on two separate occasions, then quickly accelerating out, "disturb[ing]" the ground. Id. ¶ 20. Bornschein denied entering Walsh's property. Id. ¶ 15. Walsh did not witness the alleged trespass himself, id. ¶ 25, and the photographs provided to Herman were taken by a camera that Walsh had affixed to trees on his property, id. ¶ 19. On October 26, 2015, Herman arrested Bornschein for harassment in the second degree and criminal contempt in the second degree. Id. ¶¶ 16, 18. According to Herman's arrest report, Walsh "urged him to press criminal charges against" Bornschein. Id. ¶ 21. Bornschein hired a criminal defense attorney to defend him against the charges. Id. ¶ 27.

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Bornschein v. Herman, 304 F. Supp. 3d 296 (N.D.N.Y. 2018).

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