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EAST COAST NOVELTY CO. v. CITY OF NEW YORK

December 17, 1992

EAST COAST NOVELTY COMPANY, INC., Plaintiff,
v.
THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, CARL W. WENDT, PROPERTY CLERK OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, POLICE OFFICER SANDRA VAZQUEZ, BADGE NO. 24707, POLICE INSPECTOR FRANK BIEHLER, POLICE LEGAL BUREAU OFFICER KAREN PAKSTIS, POLICE DETECTIVE MITCHELL KOLPAN, a/k/a ERIC VITALE, ASSISTANT NEW YORK COUNTY DISTRICT ATTORNEY ROBERT VITERETTI, ROBERT MORGENTHAU in his official capacity as District Attorney of the County of New York, STATE OF NEW YORK and POLICE LIEUTENANT MICHAEL WALSH, Defendants.


SWEET


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

Sweet, D. J.

 Defendants City of New York (the "City"), Frank Biehler ("Inspector Biehler"), Karen Pakstis ("Officer Pakstis"), Mitchell Kolpan ("Detective Kolpan"), Robert Viteretti ("ADA Viteretti") & Robert Morgenthau (the "District Attorney"), and Michael Walsh ("Lieutenant Walsh") (collectively the "Defendants") have all moved for an order dismissing Plaintiff East Coast Novelty Company's ("East Coast") Amended Complaint, pursuant to Rule 12(b), Fed. R. Civ. P., or granting summary judgment against East Coast's claims, pursuant to Rule 56, Fed. R. Civ. P.

 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.

 Inspector Biehler is an Inspector with the New York City Police Department ("Department"), who was the ranking officer in charge of the Manhattan South Public Morals Division. Officer Pakstis is an attorney and a member of the Department's Legal Counsel. Detective Kolpan was an undercover officer with the Department. Lieutenant Walsh is an Lieutenant with the Department.

 The District Attorney is sued in his official capacity only. ADA Viteretti was an Assistant District Attorney in New York County until January 1991.

 Prior Proceedings and Facts

 The relevant proceedings and facts are fully set forth in the prior opinion of this Court, familiarity with which is presumed. See East Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1002-03 (S.D.N.Y. 1992) (the "Opinion"). The underlying events at issue concern the Department's seizure of the Plaintiff's entire inventory of fireworks in Newburgh, New York. East Coast appears to have been a properly licensed importer of fireworks and to have complied with the pertinent governmental authorities. The fireworks were seized as part of "Operation Skyrocket," initiated by the Department to attack the distribution of fireworks in New York City after two successive Fourth of July fireworks displays at the Bergen Hunt and Fish Club. After the fireworks were seized, a destruction hearing was held. The confiscated inventory was ordered to be destroyed, and the fireworks were taken to the Department's Rodman's Neck facility where they were subsequently destroyed.

 The Opinion narrows the Plaintiff's initial Complaint. The claims against the Department, the Department's Property Clerk's Office, and Sandra Vasquez were dismissed. East Coast's procedural due process claim against all the Defendants and its claim for punitive damages against the City were also dismissed. East Coast's § 1983 substantive due process claim, which is based on the execution of the search warrant and the seizure of the fireworks, and its state law claims survived. East Coast was also permitted to amend its complaint.

 The Defendants moved to reargue their initial motion for summary judgment. The motion was denied on March 11, 1992. See East Coast Novelty Co. v. City of New York, 141 F.R.D. 245 (S.D.N.Y. 1992).

 East Coast served its Amended Complaint on the Defendants in April 1992. *fn1" It added claims against Inspector Biehler, Officer Pakstis, Lieutenant Walsh, the District Attorney and ADA Viteretti, and also enlarged the § 1983 claim to include an allegation of municipal liability based on the contention that the Department failed properly to train and supervise its officers.

 On May 6, 1992, the Defendants filed the present motion. At the parties' request, the motion was taken on submission on July 1, 1992, with the final papers being submitted to the Court on October 2, 1992.

 Discussion

 The Amended Complaint sets forth claims under 42 U.S.C. § 1983 and state law. The Defendants seek to dismiss the § 1983 claims on a number of grounds and to dismiss one of the state law claims and parts of two of the remaining state claims. In the alternative, the Defendants seek an order granting summary judgment in their favor on these claims.

 In addressing the Defendants' motions, the following familiar standards must be kept in mind. First, a court should dismiss a complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure only if it appears beyond doubt that the plaintiff can prove no set of facts supporting its claim that entitles it to relief. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989); Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985). The complaint's allegations must be construed in the light most favorable to the plaintiff and the plaintiff's allegations accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Dacey v. New York County Lawyers' Assoc., 423 F.2d 188, 191 (2d Cir. 1969), cert. denied, 398 U.S. 929, 26 L. Ed. 2d 92, 90 S. Ct. 1819 (1970).

 Second, "summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). As a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party. However, where the nonmoving party bears the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) (citations and internal quotation omitted). In sum, if in "viewing the evidence produced in the light most favorable to the nonmovant, . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991); see also Bay, 936 F.2d at 116.

 II. Genuine Issues of Fact Preclude Summary Judgment

 In the Opinion, the Court held that the Defendants' previous motion for summary judgment could not be granted because there are several material issues of fact that remain in dispute. These issues include the following:

 (1) the amount of inventory was to be seized in the execution of the search warrant;

 (2) whether Detective Kolpan told Louis Cinquegrana ["Louis"] that he intended to sell the fireworks he purchased from East Coast in New York City;

 (3) whether the entire contents of the three bunkers was offered for sale to Detective Kolpan by Louis;

 (4) whether the Department's conduct constituted municipal policy; and

 (5) whether the Defendants' conduct in executing the search warrant and seizing East Coast's entire inventory was reasonable.

 See East Coast, 781 F. Supp. at 1008-11.

 In bringing these present motions to dismiss or grant summary judgment, the Defendants do not offer any evidence to support the conclusion that the Court's findings with regard to the materiality and disputed status of these issues were incorrect or are no longer valid. Therefore, to the extent that the Defendants' contentions rely on the immateriality and lack of genuine issue of fact with regard to these issues, those contentions must necessarily fail.

 III. Immunity to § 1983 Claims

 In Imbler v. Pachtman, 424 U.S. 409, 416, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), the Court noted the apparent breadth of § 1983:

 Title 42 U.S.C. § 1983 provides that "every person" who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages. The statute thus creates a species of tort liability that on its face admits of no immunities, and some have argued that it should be applied as stringently as it reads. But that view has not prevailed.

 Specifically, in Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 1019, 71 S. Ct. 783 (1951), the Court "established that § 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them." Imbler, 424 U.S. at 418.

 In the context of a summary motion judgment, the immunity at issue is "an immunity from suit rather than a mere defense to liability; and . . . [it] is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). Accord Robison v. Via, 821 F.2d 913, 920 (2d Cir. 1987). "Moreover, in the procedural context of summary judgment, factual allegations in the pleadings of the party opposing the motion . . ., if supported by affidavits or other evidentiary material, should be regarded as true by the district court." Washington Square Post # 1212 v. Maduro, 907 F.2d 1288, 1292 (2d Cir. 1990). *fn2"

 The Supreme Court recently reiterated the fact that the burden is on the official seeking absolute immunity to demonstrate that such immunity is justified in light of the official's function in question. See Burns v. Reed, U.S. , 111 S. Ct. 1934, 114 L. Ed. 2d 547, 558 (1991); Forrester v. White, 484 U.S. 219, 224, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988). The official must overcome the weighty presumption that, to the extent any immunity is applicable, "qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." Burns, U.S. at , 114 L. Ed. 2d at 558; see also id. ("We have been 'quite sparing' in our recognition of absolute immunity and have refused to extend it any further than its justification would warrant.").

 The question presented here is whether the defendants are shielded from this suit on East Coast's § 1983 claims by some form of immunity, be it absolute or qualified in nature.

 A. ADA Viteretti's Assertion of Absolute Immunity

 When a state prosecuting attorney's "activities [are] intimately associated with the judicial phase of the criminal process, . . . [they are] functions to which the reasons for absolute immunity apply with full force." Imbler, 424 U.S. at 430. In Imbler, the Court explicitly declined to reach the question of whether absolute immunity for § 1983 purposes extends to a state prosecuting attorney whose actions "cast him in the role of an administrator or investigative officer rather than that of advocate." Id. at 430-31.

 In Burns, the court addressed one of the areas reserved in Imbler, refusing to extend the concept of "intimately associated functions" to include advising the police in the investigative phase of a criminal case. Applying the three-part test set forth in Forsyth, 472 U.S. at 521-23, the Court found: (1) there was no common-law support for such immunity; (2) the risks of harassing or vexatious litigation do not support absolute immunity for giving legal advice; and (3) the judicial process would not necessarily inhibit out-of-court activities of a prosecutor such as giving legal advice to the police. Burns, U.S. at , 114 L. Ed. 2d at 563-65.

 The Defendants rely on Imbler, asserting that ADA Viteretti is absolutely immune from suit under § 1983 because his functions in this case qualify as "intimately associated functions" which justify such immunity. The Defendants identify three distinct functions ADA Viteretti performed:

 Defs.' Mem. 6 (citations ...


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