PETER L. HOFFMAN, LOTTE, LLC, Plaintiffs-Appellants, v. TOWN OF SOUTHAMPTON, Board of Trustees of the Freeholders and Commonalty of the Town of Southampton, Scott A. Strough, Individually and in his Official Capacity as a Former Member and President of the Board of Trustees of the Freeholders and Commonalty of the Town of Southampton, Frederick C. Havemeyer, Individually and in his Official Capacity as a Member of the Board of Trustees of the Freeholders and Commonalty of the Town of Southampton, Joseph R. Lombardo, Individually and in his Official Capacity as a Town of Southampton Senior Assistant Town Attorney, Theodore H. Sadleir, Individually and in his Official Capacity as a Town of Southampton Senior Bay Constable, Defendants-Appellees, 523 F. App'x 770

SUMMARY ORDER Plaintiffs Peter L. Hoffman and Lotte, LLC appeal from a Memorandum and Order of the United States District Court for the Eastern District of New York (Bianco, J.) entered on September 28, 2012, dismissing plaintiffs’ Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6).

Plaintiffs asserted claims for malicious abuse of process under 42 U.S.C. § 1988, and malicious prosecution and abuse of process under New York law, and sought a declaratory judgment that the policy of the Town of Southampton Board of Trustees (“Trustees”) “of revoking ... legal preexisting, nonconforming uses and structures, is unconstitutional.” Am. Compl. ¶ 155. Plaintiffs’ only argument on appeal is that the district court improperly dismissed their malicious abuse of process claim asserted under

section 1983. We assume the parties’ familiarity with the facts and procedural history of this case. We review de novo the district court’s dismissal of a complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir.2004). In reviewing a decision on a motion to dismiss, we must “accept[ ]■ all factual allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiffs favor.” Bayerische Landesbank v. Aladdin Capital Mgmt.

LLC, 692 F.3d 42, 51-52 (2d Cir.2012) (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Although plaintiffs did not allege that they were denied any federal right — a prerequisite to asserting a claim under

section 1983 — we have said that where the process alleged to have been abused is criminal in nature, an adequately pled claim for malicious abuse of process is “by definition a denial of procedural due process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.1994) (internal quotation marks omitted). A claim for malicious abuse of criminal process— assuming it is adequately pled — therefore alleges a deprivation of a federal right and may be asserted under

section 1983. To plead adequately a claim for malicious abuse of process under New York law, a plaintiff must allege that a defendant “(1) employ[ed] regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse [or] justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir.2003) (internal quotation marks omitted).

Because we hold that plaintiffs have failed to allege that defendants sought to advance a collateral objective, we need not address whether the Amended Complaint satisfies the first and second elements of this test. Plaintiffs allege that defendants filed criminal charges against them in retaliation for plaintiffs’ application to the local Justice Court to enjoin defendants from filing criminal charges in addition to those already filed. Am. Compl. ¶ 66.

Neither retaliation nor a malicious motive, however, is a sufficient collateral objective to satisfy that element of a cognizable malicious abuse of process claim. Savino, 331 F.3d at 77. Rather, New York law requires “an ulterior purpose or objective in facilitating [the] prosecution.” Id. at 78. Plaintiffs next maintain that defendants filed additional charges in order to “coerce and pressure [plaintiffs into refraining from (

a) pursuing [plaintiffs’ right to defend themselves against criminal prosecution, (

b) proving that the dock and catwalk are not illegal — and, in turn, challenging the Town’s and the Trustees’ power to revoke legal, preexisting and nonconforming uses, (

c) asserting that the commencement of the criminal prosecution was improper and defective, and (

d) challenging the jurisdiction of the Town and the Trustees.” Am. Compl. ¶ 66. Each of these objectives is a potential defense or litigation strategy that was available to plaintiffs in defending the criminal charges lodged against them. As such, these purposes, too, are directly related to the underlying litigation rather than collateral to it. Moreover, considering these allegations as pleaded, plaintiffs’ claim boils down to the following: by seeking to prevent plaintiffs from pursuing the alleged objectives, defendants sought to prevail on the underlying criminal prosecution.

Even so, it cannot be said that defendants “aimed to achieve a collateral purpose beyond or in addition to [the] criminal prosecution.” Savino, 331 F.3d at 77. We have considered all of plaintiffs’ remaining arguments and find them to be without merit. The judgment of the district court is AFFIRMED. .

Although plaintiffs did not request leave to replead in their opposition to the motion to dismiss below, the district court nonetheless granted such leave "in an abundance of caution” in the event that plaintiffs could allege "that defendants sought a collateral objective independent of winning the prosecution.” Hoffman v. Town of Southampton, 893 F.Supp.2d 438, 450 (E.D.N.Y.2012). Plaintiffs nonetheless did not file an amended complaint after the district court's grant of the motion to dismiss. . Accordingly, plaintiffs may not succeed on their claim that the Town of Southampton is liable under Monell v.

Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), based on its alleged "policy, custom, usage, and/or practice of the Town and the Trustees of charging property owners with violations of the Town Code and Trustees’ Rules and Regulations without probable cause” and "without regard for whether or not the Trustees have jurisdiction.” Am. Compl. ¶¶ 149, 148. See Segal v.

City of New York, 459 F.3d 207, 219 (2d Cir.2006) ("Mo-nell does not provide a separate cause of action ...; it extends liability to a municipal organization where that organization’s ... policies or customs that it has sanctioned, led to an independent constitutional violation.” (second emphasis added)).