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January 2, 1992



The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D. J.

 Defendants City of New York (the "City"), Police Department of the City of New York ("Police Department"), Property Clerk's Office of the Police Department of the City of New York ("Property Clerk"), Carl W. Wendt ("Wendt"), and Sandra Vazquez ("Office Vazquez", collectively the "Defendants") have moved to dismiss the complaint plaintiff East Coast Novelty Company, Inc. ("East Coast") has brought against them. Defendants all move for summary judgment on grounds that East Coast was provided with more than adequate due process and that the claims are collaterally estopped. The Police Department and Property Clerk separately move to dismiss on the ground that they are not suable entities, and thus not proper parties to the action. The City also moves for summary judgment on grounds that East Coast cannot establish municipal liability against it under 42 U.S.C. § 1983 and that punitive damages cannot be awarded against it in such an action. Finally, Office Vazquez moves for dismissal on the ground that she is entitled to qualified immunity.

 For the reasons set forth below, the Defendants' motions are granted in part and denied in part. To the extent that East Coast's claim against the Defendants alleges a procedural due process violation, it is dismissed. The claims against the Police Department and the Property Clerk are dismissed since they are not proper parties to this action. Any claim for punitive damages under § 1983 against the City is dismissed. Officer Vazquez is entitled to qualified immunity, so that all claims against her are dismissed. The Defendants' other motions are denied.

 East Coast has filed a cross-motion seeking to amend its complaint to add six new defendants and to state its § 1983 claim with more particularity. East Coast's cross-motion is granted.

 The Parties

 East Coast is a New Jersey corporation authorized to do business in the State of New York. Its principal office is in the City of Newburgh, New York, and its primary business is importing Class "C" fireworks.

 The City is a domestic municipal corporation with full governmental authority, existing under the laws of the State of New York.

 The Police Department is a subdivision of the City engaged in law enforcement. The Property Clerk is a division of the Police Department.

 Officer Vazquez is a law enforcement officer employed by the Police Department.

 Wendt was alleged to have been the Property Clerk during the relevant time period. However, he did not hold this position at that time and has never been served. The action against Wendt has therefore been discontinued. Defendant's Memorandum of Law 2 n.1.

 The Facts

 The events in question were set off by two successive Fourth of July fireworks displays in 1987 and 1988 at the Bergen Hunt and Fish Club. The Club, in Queens, is, as any avid reader of New York's tabloids knows, allegedly a headquarters for one of the region's organized crime families.

 According to East Coast, the Police Department was embarrassed by the unscheduled light shows. This led Chief Robert J. Johnston, Jr. to issue a memorandum instructing the Chief of the Department's Organized Crime Control Bureau to "commence an investigation into the importation, distribution and sales of illegal fireworks in this city . . . in an effort to target major players and attack their focal points of distribution." Memorandum from Robert J. Johnston, Jr., Chief of Department, to Raymond Jones, Chief of Organized Crime Control (July 5, 1988). Soon thereafter, the Police Department initiated "Operation Skyrocket."

 At some point, East Coast was targeted by Operation Skyrocket. East Coast has been in existence since about 1978 and has imported Class "C" fireworks since its inception. Enrique Ponce De Leon ("De Leon") is allegedly the sole shareholder of East Coast. His brother-in-law, Louis Cinquegrana ("Louis"), was the company's day-to-day manager. De Leon attended to the administrative aspects of the business.

 Throughout its existence, East Coast has engaged in volume wholesale transactions of Class "C" fireworks. Most of its business was conducted by word of mouth referral on an appointment only basis. It appears that East Coast was a properly licensed importer of such fireworks and that it complied with all of the requirements of the United States Customs Department, United States Consumer Product Safety Commission, United States Department of Transportation, and the City of Newburgh from 1983 to 1989.

 East Coast's facilities were located initially in New Jersey. In 1983, it outgrew those facilities and secured a lease on six acres of land in Newburgh, New York (the "Premises"). Three former military bunkers, ideally suited for storing fireworks, are located on the Premises. East Coast purchased the Premises in 1986.

 A buy and bust operation eventually was planned against East Coast. Detective Mitchell Kolpan of the Police Department (the "Agent") assumed a fictitious name and sought out Louis's father in an attempt to contact Louis. A meeting took place between the two at a social club on Mott Street in Manhattan. At the meeting, the Agent gave Louis's father his telephone number, which in turn was eventually passed on to Louis.

 Louis soon contacted the Agent and arranged a meeting in Fort Lee, New Jersey. The meeting took place on April 21, 1989. The two agreed that the Agent would purchase Class "C" fireworks specified on a list provided by the Agent for $ 10,000. The Agent maintains, but East Coast denies, that he told Louis he wanted to transport the fireworks to a location within New York City. Louis allegedly told the Agent that he could not lawfully sell fireworks for use in New York and that the Agent would need to produce an out-of-state driver's license at the time of sale.

 A search warrant for the Premises was sworn out that day in New York City Criminal Court. It authorized the seizure of "fireworks, which property is evidence of the crime Unlawfully Dealing with Fireworks." The affidavit submitted in support of the warrant was based upon multiple hearsay. The affidavit did state that a sale of $ 10,000 worth of firecrackers had been arranged, but failed to state that this occurred in New Jersey and was for the sale of Class "C" fireworks.

 Waiting in the woods outside the Premises while the Agent conducted his business with Louis were 50-75 New York City Police Officers under the command of Inspector Frank Biehler. Upon the Agent's signal, sometime after noon, the officers entered the Premises. Louis was arrested by Officer Vazquez and advised of his rights. The warrant arrived between 2:00 and 3:00 p.m. Around 6:00 p.m., an Assistant District Attorney and a Police Department Attorney arrived at the Premises. They advised Inspector Biehler that the entire inventory should be seized and transported to the Police Department's Rodman's Neck facility. The officers present then proceeded to do so, loading 9,839 cases of fireworks, said to be valued at over $ 5,000,000 by the Police Department, into 20 trucks. The inventory was taken to Rodman's Neck and stored there until it was destroyed over the course of several months.

 Prior Proceedings

 After the fireworks were seized, a destruction hearing was held in New York City Criminal Court on April 27, May 1 and May 2, 1989, pursuant to N.Y. Penal Law §§ 270.00, 405.05. At the hearing, evidence was presented by the State to show that the fireworks were possessed illegally and that they presented a hazardous condition at Rodman's Neck. The Agent did not testify at this hearing. Instead, most of the State's evidence was double hearsay. Both sides presented expert witnesses. De Leon testified for the defendant, and Louis's attorney advised the court that he represented the interests of both Louis and East Coast, although East Coast was not officially a party to that proceeding.

 The criminal court judge found by clear and convincing evidence that East Coast's entire inventory was possessed illegally. She therefore ordered that it be destroyed, but stayed the order to allow an appeal to be perfected. The legality of the seizure specifically was not addressed. See Destruction Hearing Transcript 80 (May 2, 1989).

 On May 4, 1989, Louis and East Coast brought an Order to Show Cause in New York Supreme Court seeking an Order of Prohibition pursuant to Article 78. It was denied on May 9, and a Notice of Appeal from this denial was immediately filed and a stay of destruction sought. On May 23, the First Department denied the stay. That order was never appealed, nor was the Notice of Appeal from the Supreme Court's denial ever perfected.

 In the subsequent criminal proceedings against him, Louis challenged the validity of the search warrant in a pre-trial motion on two grounds. First, he argued that a criminal court judge in New York City could not issue a search warrant to be effectuated in Newburgh. Second, Louis argued that insufficient facts were supplied to the issuing judge to support a finding of probable cause. Both arguments were rejected.

 Louis was tried before a state criminal court judge on two misdemeanor counts of unlawfully dealing with fireworks. After a bench trial, the judge found Louis innocent on both counts on the ground that the court lacked "geographical jurisdiction." People v. Cinquegrana, No. 9N042472, Trial Transcript at 4 (N.Y.C. Crim. Ct. Sept. 8, 1989).

 In its complaint, East Coast alleges that the Defendants committed both state and federal torts by seizing the fireworks and destroying them. Particularly, the first count alleges that the Defendants deprived East Coast of its property without due process of law, in violation of § 1983. The second through sixth counts all allege state torts committed by some or ...

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