Village of Fairport, Plaintiff, v. American Park Place, Inc., Defendant. (2026)

On February 17, 2026, Plaintiff Village of Fairport (the "Village") initiated this action seeking to enforce the Uniform Fire Prevention and Building Code (the "Uniform Code") and impose civil penalties for what the Village alleges are violations of the Uniform Code by Defendant American Park Place, Inc. ("APP") (NYSCEF Doc. No. 1). On March 4, 2026, APP filed an Answer and asserted two counterclaims against the Village, alleging, in short, that the Village's enforcement actions constitute unlawful retaliation for APP's exercise of its First Amendment rights, and that the commencement of this lawsuit and the circumstances surrounding the lawsuit constitute an abuse of process by the Village (NYSCEF Doc. No. 7).

On March 24, 2026, the Village filed a motion to dismiss APP's counterclaims (Motion #1, NYSCEF Doc. Nos. 8-38). APP opposed the motion (NYSCEF Doc. Nos. 40-41). The Village filed a reply in further support of its motion (NYSCEF Doc. No. 42). The Court held oral argument on June 4, 2026. For the reasons explained below, the Village's motion is granted and APP's counterclaims are dismissed.

BACKGROUND

As noted above, this matter concerns a dispute between the Village and APP concerning the Village's efforts to enforce the Uniform Code with respect to APP's property. The Village commenced this lawsuit seeking an order directing APP's compliance with the Uniform Code and imposing significant civil penalties, which the Village estimates to have reached $4,413,400 as of February 16, 2026 (NYSCEF Doc. No. 1). The Village maintains that it notified APP of its intention to conduct an overdue inspection of its property, APP raised accusations that the Village's Code Enforcement Officer had a conflict of interest, and based on APP's lack of cooperation the Village proceeded to obtain an Administrative Inspection Warrant from Perinton Town Court, conduct an inspection pursuant to the Warrant, and discover a number of Uniform Code violations (id.).

In its Answer and Counterclaims, APP maintains that it objected to the inspection by the Village's Code Enforcement Officer due to past "selective enforcement" by that Officer (NYSCEF Doc. No. 7, ¶ 68). After the Village obtained the Administrative Inspection Warrant, APP commenced litigation, which is now pending in the U.S. District Court for the Western District of New York, seeking to block enforcement of the Warrant (id., ¶ 70). APP maintains that the Village's actions in obtaining the Warrant, conducting inspections, and filing this lawsuit were retaliation for APP requesting a "neutral inspector" and commencing litigation concerning the Warrant, with these allegations forming the basis for APP's first counterclaim, which asserts a cause of action for First Amendment Retaliation (id., ¶¶ 80-81). APP's second counterclaim maintains that the Village commencing this lawsuit and taking related actions constitute an abuse of process (id., ¶¶ 86-87). The Village's motion to dismiss these counterclaims is now pending before the Court.

DISCUSSION

I. Legal Standard for a Motion to Dismiss

The Village has moved to dismiss APP's counterclaims pursuant to CPLR R. 3211(a)(1) and (a)(7). A motion pursuant to CPLR R. 3211(a)(1) asserting that a claim or action is barred by documentary evidence may be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v. Mut. Life Ins. Co. of New York, 98 NY2d 314, 326 [2002]). In the context of a motion pursuant to CPLR R. 3211(a)(1), "to be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity" (Fontanetta v. Doe, 73 AD3d 78, 86 [2d Dept. 2010]).

CPLR R. 3211(a)(7) provides for dismissal of a pleading if it "fails to state a cause of action." When considering the sufficiency of a pleading under CPLR 3211(a)(7), a court

must determine only whether, accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated. The pleadings should be afforded a liberal construction, and plaintiffs are entitled to all favorable inferences that can be drawn from their pleadings. While this pleading standard is a liberal one, a pleading is not an empty formality, and conclusory factual allegations do not provide the support necessary to survive a motion to dismiss even under the CPLR 3211(a)(7) standard.

(IntegrateNYC Inc. v. State of New York, 45 NY3d 176, 184 [2025] [internal quotation marks, alterations, and citations omitted].) "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]).

II. First Counterclaim: First Amendment Retaliation

APP's first counterclaim alleges First Amendment retaliation in violation of 42 U.S.C. § 1983, asserting that Plaintiff's enforcement of the Uniform Code was retaliation for APP's exercise of its First Amendment rights. Specifically, APP alleges that "APP exercised its constitutional right to petition the government for redress of grievances by (a) requesting a neutral inspector, (b) commencing litigation in state court challenging the Village's enforcement conduct, and (c) seeking a temporary restraining order" (NYSCEF Doc. No. 7, ¶ 80). Defendant further alleges that, "in retaliation for APP's exercise of these protected rights, the Village (a) obtained an administrative search warrant, (b) conducted exhaustive inspections citing over 200 violations, (c) directly contacted APP's tenants threatening to close their businesses, (d) filed this $4.4 million enforcement action, and (e) publicized the lawsuit in the press" (id., ¶ 81). Because the Court finds that the Village had probable cause for the commencement of its enforcement actions, and because the facts alleged by Defendant are insufficient to support a reasonable inference of retaliation, APP fails to allege facts sufficient to show that there was a causal connection between the alleged protected speech and the Village's enforcement action, and its first counterclaim must be dismissed.

In People v. National Rifle Assn. of Am., Inc. (223 AD3d 84 [1st Dept. 2023]), the Appellate Division, First Department, addressed the standard for pleading a claim that a civil enforcement action constituted unlawful retaliation for the exercise of the target's First Amendment rights. The Court observed that "Government agencies . . . are presumed to act in good faith in their pursuit of investigations, prosecutions and enforcement proceedings for alleged misconduct" (id. at 88). A plaintiff asserting a First Amendment retaliation claim "must allege (1) that the speech or conduct was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action" (id.).

As in the NRA case, the issue on this motion concerns the third element, the required causal relationship between the protected speech and the adverse action. When determining whether there is a causal relationship, "the proper legal standard applicable to First Amendment retaliation claims in civil enforcement proceedings . . . is the no probable cause standard" (id. at 88-89). Applying this standard, the NRA Court upheld the dismissal of the NRA's First Amendment retaliation counterclaim because it concluded that the New York Attorney General, the enforcement agency in that case, had probable cause to investigate and sue the NRA (id. at 89).

The same conclusion must be reached here. The Village, as the municipal entity responsible for code enforcement within its jurisdiction (see 19 N.Y.C.R.R. §§ 1203.2, 1203.3; see also Fairport Village Code § 215-12), possessed the legal authority to commence an inspection to effectuate its enforcement obligations, much like the New York Attorney General in the NRA case (see 223 AD3d at 89). The Village proceeded to obtain an Administrative Inspection Warrant issued by the Perinton Town Court, which explicitly found that the Village had shown probable cause in support of its application to inspect APP's property (NYSCEF Doc. No. 10). With probable cause having been established, APP's counterclaim fails as a matter of law.

APP acknowledges that the probable cause standard outlined in the NRA decision applies here, but argues that the "manner and degree" of the Village's enforcement efforts lacked probable cause, and therefore the retaliation counterclaim should survive (see NYSCEF Doc. No. 40 at 7). APP cites to no authority in support of its "manner and degree" argument and the Court declines to adopt it because doing so would vitiate the probable cause standard established by the Appellate Division.

The counterclaim also must be dismissed because APP fails to plead facts that support a reasonable inference that the Village's conduct was retaliatory. In advancing its counterclaim, APP acknowledges that the Village contacted APP to schedule an inspection in the summer of 2025 (NYSCEF Doc. No. 7, ¶ 68). This was before APP engaged in the alleged protected speech of requesting that someone other than the Village's Code Enforcement Officer conduct the inspection, before the Village obtained the Administrative Inspection Warrant, and before APP commenced the litigation now pending in federal court (id., ¶¶ 68-70). In other words, the Village had already announced its intention to conduct the inspection that ultimately took place before APP engaged in any constitutionally protected speech or conduct (see id.; see also id. ¶¶ 80-81). APP has not alleged any other facts to support a reasonable inference that the Village's conduct was retaliatory, and not simply an extension of the inspection program it had already announced.¹ Taken as a whole, APP's allegations fail to support a reasonable inference that its speech or actions played a substantial part in the Village's subsequent enforcement efforts (see Geiger v. Town of Greece, 2007 WL 4232717, No. 07-CV-6066, at *8-9 [W.D.NY Sept. 4, 2007]).

APP's remaining arguments in support of its counterclaim are unavailing. To the extent they argue that the Village's actions constitute selective enforcement, they fail to plead facts concerning any similarly situated entity, and in any event alleging personal animus and selective enforcement does not demonstrate an absence of probable cause (NRA, 223 AD3d at 90).

As to APP's argument that the documentation submitted by the Village in support of its motion cannot be considered on a motion to dismiss, the Court has not relied on any such documentation in its decision, with the exception of the Administrative Inspection Warrant issued by the Perinton Town Court (NYSCEF Doc. No 10), of which the Court may properly take judicial notice (see Allison v. Seeley-Sick, 199 AD3d 1490, 1491 [4th Dept. 2021] [judicial notice may be taken of order issued by another court]). The Village's motion to dismiss APP's first counterclaim is granted pursuant to CPLR R. 3211(a)(7), and having dismissed the counterclaim on that basis, the Court does not reach the Village's motion pursuant to CPLR R. 3211(a)(1).

III. Second Counterclaim: Abuse of Process

APP's second counterclaim seeks to recover for abuse of process. APP alleges that "[t]he Village commenced this enforcement action not for the legitimate purpose of ensuring code compliance, but for the collateral and improper purpose of (a) retaliating against APP for exercising its constitutional rights, (b) creating leverage in the pending federal litigation that the Village itself removed to federal court, (c) generating negative press coverage to damage APP's business relationships, and (d) coercing APP into abandoning its federal claims" (NYSCEF Doc. No. 7, ¶ 86). APP goes on to allege that "[t]he Village engaged in overt acts in furtherance of this improper purpose, including filing the lawsuit without prior warning while a cooperative process was underway, publicizing the lawsuit in the press, and demanding $4.4 million in penalties calculated to maximize public shock value rather than reflect actual harm" (id., ¶ 87). This second counterclaim must also be dismissed.

In order to state a cause of action for abuse of process, a plaintiff must plead that there was "(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of process in a perverted manner to obtain a collateral objective" (Liss v. Forte, 96 AD3d 1592, 1593 [4th Dept. 2012]). "The mere commencement of an action, even with malicious intent, does not give rise to a cause of action for abuse of process" (Dixon v. City of Rochester, 234 AD3d 1301, 1302 [4th Dept. 2025]; see also Muro-Light v. Farley, 95 AD3d 846, 847 [2d Dept. 2012] ["The institution of a civil action by summons and complaint will not give rise to a claim to recover damages for abuse of process, as doing so is not legally considered the type of process capable of being abused."]).

APP's counterclaim for abuse of process is predicated on the filing of the instant lawsuit and accordingly fails to state a cause of action. The claim is plainly pleaded based on "[t]he Village commenc[ing] this enforcement action," meaning this lawsuit, and the Village's "overt acts" in support of this claim are alleged to be "filing this lawsuit" and seeking $4.4 million in damages in this lawsuit (NYSCEF Doc. No. 7, ¶¶ 86-87). APP's allegations that the Village discussed the lawsuit with the media or other third parties (see id., ¶ 87) do not constitute the use of any legal process on which an abuse of process claim could be based (see Varela v. Investors Ins. Holding Corp., 185 AD2d 309, 311 [2d Dept. 1992], affd 81 NY2d 958 [1993] [abuse of process claim must involve some form of judicial process]). APP's allegations that the Village commenced this action for a malicious or improper purpose are insufficient to support a cause of action for abuse of process (see Chambers v. Town of Shelby, 211 AD3d 1456, 1459 [4th Dept. 2022] ["A malicious motive alone, however, does not give rise to a cause of action for abuse of process"] [internal quotation marks omitted]). The Village's motion to dismiss the second counterclaim pursuant to CPLR R. 3211(a)(7) is granted.

CONCLUSION

Based on the Court's review of the papers submitted on the motions, oral argument heard from both parties, and upon due deliberation, it is hereby

ORDERED, that the Village's motion to dismiss APP's Counterclaims (Motion #1) is GRANTED, and it is further

ORDERED, that APP's Counterclaims are DISMISSED.

Dated: June 18, 2026

Rochester, New York

Hon. John P. Bringewatt, A.J.S.C.

FOOTNOTES

1.   APP acknowledges that the parties at one point attempted to engage in a collaborative process to resolve their differences, pleading that the Village met with APP "to discuss a cooperative path to compliance," acknowledging that APP "agreed to provide a written response" by February 13, 2026, and further acknowledging that the Village did not commence this lawsuit until after that deadline had passed (NYSCEF Doc. No. 7, ¶¶ 74-75). These facts also do not support a reasonable inference that the Village's conduct was retaliatory.

John P. Bringewatt, J.