By: Daily Record Staff//July 28, 2010
By: Daily Record Staff//July 28, 2010//
U.S. District Court, Western District of New York
Emmerling v. Town of Richmond
Background: The plaintiff alleges the Town of Richmond, Supervisor Ralph Angelo and Town Board Member John Luther, together with a private citizen, Douglas Dulen, violated his federal constitutional rights. Before the court are the defendant’s motion to dismiss and the plaintiff’s motion to amend the complaint. The plaintiff, a former employee of the town, brings an action following a series of incidents that occurred over several years and which culminated in the termination of his employment by the town. In 1988, the plaintiff was hired as a recreation specialist. Prior to 2006, Luther served as chairman of the town’s planning board. For some period of time ending in 2007, Luther’s wife was the elected town clerk. Dulen operated an auto parts store at 8649 Main St. At all relevant times, the plaintiff and his wife operated a realty company at 8643 Main St., next door to Dulen’s auto parts store. Some time prior to 2003, Mrs. Luther began operating a wine and liquor store in the Town, in a commercial property belonging to Dulen. According to the plaintiff, the Luthers are “friends” of Dulen. In February 2003, Mrs. Emmerling began operating a competing wine and liquor store on her adjacent property. In 2005, a dispute arose between Dulen and the Emmerlings concerning their respective business properties. The Emmerlings believed Dulen’s customers and visitors were trespassing on their property. In particular, on at least one occasion, the Emmerlings complained about overflow parking and pedestrian traffic during a fundraiser Dulen hosted on his property to benefit the local school. Further strife followed those occurrences. Subsequently, there was a waterline dispute and Dulen allegedly began harassing the plaintiff. Various insults, derogatory remarks and altercations ensued. At one point, Luther moved to initiate a disciplinary proceeding against the plaintiff, based on the plaintiff’s conduct at a chicken barbecue, where he was charged with harassment. Later in 2006, while the Emmerlings were driving in their car, Dulen allegedly drove his vehicle toward them to force them off the road. Also, while the plaintiff was on the Emmerlings’ property, Dulen made profane sexual remarks about Mrs. Emmerling and the plaintiff responded with profanities.
Ruling: The claim must be dismissed because the plaintiff has not alleged that the defendants made a false statement about him. To the contrary, the statements made about the plaintiff in connection with his employment were true: The plaintiff pleaded guilty to harassment and disorderly conduct, and was charged with unlawfully dealing with a child after he sold alcohol to a minor. The plaintiff admits those facts as part of his complaint, and the incidents were matters of public record. The action is dismissed with prejudice.
Christina A. Agola for Gerard E. O’Connor of Lippman O’Connor for defendant Town of Richmond; Craig D. Chartier of Dibble & Miller PC for Dulen