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EISENBERG v. DA OF

April 1, 1994

MITCH EISENBERG, Plaintiff,
v.
DISTRICT ATTORNEY OF THE COUNTY OF KINGS, THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, COUNTY OF KINGS, THE CITY OF NEW YORK, JOHN DOE, JOSEPH DOE, RICHARD DOE, and JOYCE PROVENZALE, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Defendant District Attorney of the County of Kings (the "District Attorney") premises his motion to dismiss the Complaint on two grounds: (1) that service of process was improper, and (2) that the Complaint fails to state a claim upon which relief can be granted. Plaintiff Mitch Eisenberg, in turn, cross-moves for entry of a default judgment; to amend the Complaint; and to disqualify the District Attorney from representing himself. For the reasons set forth below, the motion to dismiss is granted, and the three cross-motions are denied.

 PROCEDURAL HISTORY

 The facts surrounding the service of the Summons and Complaint upon the District Attorney are a matter of some dispute and form the basis for the District Attorney's motion to dismiss pursuant to Fed. R. Civ. P. 4(j) and plaintiff's cross-motion for entry of a default judgment pursuant to Fed. R. Civ. P. 55. The chronology of events, as drawn from both sets of papers, is as follows.

 Plaintiff commenced this action by filing a Complaint on April 14, 1993. He alleges that he attempted service of the Summons and Complaint upon all defendants by mail on April 21, 1993. Affidavit in Support of Joseph A. Solow, Sworn to Jan. 14, 1994 ("Solow Aff.") P 3. Plaintiff's counsel Mr. Solow avers that he received a telephone call from John Woods of the Office of the Corporation Counsel for the City of New York (the "Corporation Counsel") on May 11, 1993, during the course of which Mr. Woods acknowledged receipt of service and advised him that the Corporation Counsel was representing the District Attorney, as well as defendants the Board of Education of the City of New York (the "Board"), the City of New York (the "City") and the County of Kings (the "County"). Solow Aff. P 3. *fn1" Plaintiff's counsel memorialized this conversation in a letter to Mr. Woods dated May 17, 1993. Solow Aff. Ex. B. However, after receiving no further response from the Corporation Counsel, Mr. Solow sent a second letter to Mr. Woods on July 1, 1993, requesting that Mr. Woods forward written acknowledgment of service "on behalf of the municipal defendants in confirmation of your representations regarding same given to me during our telephone conversation of May 11, 1993 as already confirmed from my end by letter to you of May 17, 1993." Solow Aff. Ex. C. The Corporation Counsel thereafter acknowledged receipt of service by the "Municipal defendants" by letter dated July 23, 1993. Solow Aff. Ex. D.

 On October 15, 1993, at an initial conference before Magistrate Judge Go, the Corporation Counsel advised the Magistrate of its potential conflict of interest, and the Magistrate extended all defendants' time to answer until November 15, 1993. Solow Aff. P 6. Plaintiff alleges that on November 15, he was advised by the Corporation Counsel that it would not be representing the District Attorney. Solow Aff. P 7. The Corporation Counsel subsequently filed an Answer to the Complaint on December 9, 1993, on behalf of the Board, the City and the County. Solow Aff. P 7; Mandel Aff. P 6.

 The District Attorney alleges that he first received a copy of the Complaint on or about November 12, 1993, when the Corporation Counsel forwarded the Complaint together with a memorandum indicating that it could not represent the District Attorney in this action due to the conflict of interest. Mandel Aff. P 5; Solow Aff. Ex. G. However, the District Attorney took no action on the Complaint until "the brink of the Christmas holiday," Solow Aff. P 8, when Assistant District Attorney Jay Cohen telephoned Mr. Solow to request a further extension of time to permit the District Attorney to move to dismiss. Solow Aff. P 8. When Mr. Solow declined on the ground that he already had decided to seek a default judgment against the District Attorney, the District Attorney wrote to Magistrate Judge Go requesting an extension, Solow Aff. Ex. G, which request plaintiff opposed by letter dated December 30, 1993. Solow Aff. Ex. H. Judge Go had not ruled on the request when the District Attorney filed his motion papers on December 30, 1993.

 FACTS

 For purposes of this motion to dismiss, the court will accept as true the following allegations contained in the Complaint. On or about September 24, 1990, Eisenberg -- a teacher for the Board -- had a brief conversation with Joyce Provenzale, a student suspension hearing officer, while on the premises of the Board at 362 Schermerhorn Street, Brooklyn. Compl. P 10; Mandel Aff. P 7. Following this encounter, Eisenberg was arrested by Board security officers upon a complaint by Ms. Provenzale that he had placed his hand upon her breast. Compl. P 10.

 Eisenberg initially was given a Criminal Court mediation summons issued based on a complaint of harassment made by Provenzale. Compl. P 10. He participated in mediation procedures before the Criminal Court of the City of New York in lieu of a formal criminal proceeding. Thereafter, upon the complaint of Ms. Provenzale, the District Attorney commenced a prosecution of the plaintiff charging him with sexual misconduct in the third degree pursuant to N.Y. Penal Law § 130.55 for allegedly placing his hand on Provenzale's breast without her consent. Compl. PP 12-13. During the course of the District Attorney's investigation of Provenzale's complaint, Provenzale's alleged "eyewitness" made a statement that completely exonerated Eisenberg; the District Attorney was provided with records regarding a similar unfounded complaint previously brought by Provenzale; and the District Attorney obtained no other evidence substantiating Provenzale's allegations. Compl. PP 13-15. Notwithstanding the complete lack of evidence, the District Attorney commenced and continued the criminal prosecution against Eisenberg. Compl. P 16. Eisenberg accordingly filed a motion to dismiss "in the interest of justice" pursuant to N.Y. Crim. Proc. Law § 170.40, which motion was granted, see People v. Eisenberg, Dkt. No. 90K060506, Decision and Order dated Apr. 8, 1991 (N.Y. Crim. Ct. Kings Co.). Compl. PP 19-20. Eisenberg subsequently commenced the present action.

 As it relates to the District Attorney, the Complaint alleges that while acting under color of state law as a prosecuting agency, the District Attorney violated plaintiff's rights to due process of law and privacy as protected by the Fourth, Fifth, Ninth and Fourteenth amendments of the United States Constitution and 42 U.S.C. § 1983. Specifically, plaintiff claims that his rights were violated by the District Attorney's acts in: (1) commencing and continuing the baseless prosecution, Compl. P 28; (2) commencing and continuing the baseless prosecution

 
pursuant to and in implementation of its stated administrative policy to waive and/or abrogate its duty to exercise prosecutorial discretion and to prosecute sex crime charges and/or other crimes merely upon the decision and/or insistence of a complainant regardless of a total lack of evidence supporting same and/or regardless of evidence otherwise exonerating or exculpating the person so charged.

 Compl. PP 29; see also Compl. P 17; and (3) implementing this policy against Eisenberg with deliberate indifference to his rights and to the rights of others by abrogating his duty not to prosecute the innocent in a purposeful or grossly negligent manner. Compl. P 30. Plaintiff further alleges that the District Attorney has failed to train and/or supervise his Assistant District Attorneys ("ADAs") properly with regard to the constitutional rights of citizens by instructing them in and requiring them to adhere to the policy described above. Compl. P 31. In addition, plaintiff has asserted state law tort claims for intentional infliction of emotional distress and malicious prosecution based on the above-described allegations. Compl. P 34. Eisenberg seeks compensatory and punitive damages, as well as costs and attorneys' fees.

 DISCUSSION

 I. Cross-Motion to Disqualify Counsel

 Turning first to plaintiff's cross-motion to disqualify the District Attorney from serving as his own counsel, it is readily apparent that the cross-motion is without merit. Plaintiff's argument, in essence, is that because the District Attorney's duties and functions are prescribed by New York statute, the District Attorney "has no power or authority under said prescriptions to represent itself or any other party." See Memorandum of Law in Opposition to Defendant's Motion to Dismiss and in Support of Plaintiff's Cross Motion ("Pl.'s Mem."). Plaintiff relies on three New York cases for this proposition: People v. Hellmann, 124 Misc. 2d 582, 476 N.Y.S.2d 1017 (N.Y. Co. Ct. 1984); Davis Constr. Corp. v. County of Suffolk, 112 Misc. 2d 652, 447 N.Y.S.2d 355 (N.Y. Sup. Ct. 1982), aff'd, 95 A.D.2d 819, 464 N.Y.S.2d 519 (2d Dep't 1983); and ...


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