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UNITED STATES v. PRIVATE SANITATION INDUS. ASSN. O

September 9, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
PRIVATE SANITATION INDUSTRY ASSOCIATION OF NASSAU/SUFFOLK, INC.; LOCAL 813 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS; A-1 CARTING COMPANY; AA&M CARTING COMPANY; ACE GARBAGE & RUBBISH REMOVAL, INC.; ALL WEATHER CARTING CORPORATION; ASSOCIATED WASTE DISPOSAL COMPANY; B&D CARTING, INC.; BONSERA, INC. d/b/a STAR CARTING CORP.; BUDGET ROLL-OFF SYSTEMS, INC.; C&C REFUSE CARTING CORPORATION; CIANO AND SONS CARTING CO., INC.; COMET CARTING COMPANY; DANIEL FINLEY ALLEN CO., INC.; DELTA CARTING CORPORATION; DEPENDABLE SANITATION CORP.; DETAIL CARTING; ENVIRO CARTING COMPANY d/b/a ISLAND CARTING COMPANY; EVER READY SANITATION CORPORATION; HARBOR CARTING CORP.; HICKEY'S CARTING, INC.; HILLSIDE CARTING COMPANY, INC.; JAMAICA ASH & RUBBISH REMOVAL CO., INC.; LONG ISLAND RUBBISH REMOVAL CORP.; MAGGIO'S M&P CARTING SERVICE, INC.; MCM SANITATION, INC. d/b/a ISLAND CARTING COMPANY; METRO WASTE, INC.; METS ROLL-OFF SERVICE, INC.; MONBRO SANITATION SERVICE, INC.; PRUDENTIAL WASTE DISPOSAL, INC.; SAIL CARTING & RECYCLING CORP.; SALEM SANITARY CARTING CORPORATION; SOUTH SIDE CARTING CO., INC.; SSC CORPORATION; STANDARD COMMERCIAL CARTAGE, INC.; SUN CARTING, INC.; SUNSET SANITATION CORP.; SUPERIOR WASTE SYSTEMS, INC.; TWA CARTING CORPORATION; II COUSINS CARTING CORP.; U-NEED-A-ROLL-OFF CORPORATION; UNIQUE SANITATION CORP.; VIGLIOTTI BROTHERS CARTING CORPORATION; VINNIE MONTE'S WASTE SYSTEM, INC.; V&J RUBBISH REMOVAL, INC.; WAYSIDE CARTING, INC.; MICHAEL ACQUAFREDDA; BERNARD ADELSTEIN; JOHN ALLEN; SARAH ALLEN; JAMES ALLESANDRIA; VITO ANIELLO; SALVATORE AVELLINO, JR.; JOSEPH BONSERA; MICHAEL BONSERA; CHARLES CANNIZZARO; RICHARD CAREY; PASQUALE CASAGRANDE; RICHARD CIANO; RANIERO COLATOSTI; CRAIG COMERFORD; ANTONIO CORALLO; JAMES J. CORRIGAN, JR.; EDWARD DeMATTEO; ERNEST DeMATTEO; EMEDIO FAZZINI; JOSEPH FERRANTE; NICHOLAS FERRANTE; JOHN GUGLIELMO; JOHN HAYNES; DENNIS HICKEY; ROBERT HUSAK; JEROME KOWALSKI; VINCENT MAGGIO; MICHAEL MALENA; JOHN MARATEA; PETER MARCELLO; ANTHONY MIELLO; ANTHONY MONTESANO, JR.; VINCENT MONTESANO; ANTHONY NATALE; FRANK NOTARANTONIO; JOHN PAGANO; FRANK PALOPOLI; SALVATORE PALOPOLI; DAVID PAMLANYE; STEVEN PAMLANYE; RALPH PANTONY; JOSEPH PETRIZZO; JOSEPH PEZZA; PASQUALE PEZZA; PETER REALI; ROBERT RENNA; ARTHUR ROMERSA; THOMAS RONGA; FRANCO ROTUNDO; SALVATORE SANTORO; ROBERT SCHUMAN; JOHN SENIA; PAT SESTI; PETER STRAMIELLO; GLENN THWEATT; ORLANDO VELOCCI; ANTHONY VESPUCCI; ALLEN VESTING; ARNOLD VIGLIOTTI; GLEN VILCHEK; JOSEPH VITTORIO; MICHAEL WALSTRUM; and JAMES WINTERS, Defendants.



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

 GLASSER, United States District Judge:

 Defendant Joseph Ferrante ("Ferrante") moves for partial summary judgment pursuant to Federal Rule of Civil Procedure 56, dismissing in part the complaint brought against him pursuant to the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §§ 1961 et seq. ("RICO"). Plaintiff, the United States of America (the "government"), requests a continuance to conduct further discovery pursuant to Federal Rule of Civil Procedure 56(f) and, alternatively, opposes defendant's motion. For the following reasons, defendant's motion for partial summary judgment is denied, except as noted below. Because of this determination, the government's request for a continuance is moot.

 FACTS

 The United States brought this civil RICO action against 112 defendants, alleging that they engaged in a pattern of racketeering activity by committing illegal acts and by using force and threatening to use force against other individuals engaged in the collection of solid waste on Long Island. The underlying facts and the identities of the various defendants are set out in United States v. Private Sanitation Industry Association, 793 F. Supp. 1114, 1121-23 (E.D.N.Y. 1992) ("PSIA"), familiarity with which is assumed.

 For purposes of this motion, the relevant facts are as follows. Prior to July of 1988, Ferrante was Vice President of co-defendant Unique Sanitation Corp. ("Unique Sanitation"). In July of 1988 he became President of Unique. Plaintiff's Response to Defendant's Rule 3(g) Statements ("Pl.'s 3(g) Statement"), P 12. Unique is a corporation engaged in the business of garbage collection. Ferrante is also Vice President of co-defendant U-Need-A-Roll-Off Corp. ("U-Need"), which is also engaged in the business of garbage collection. Affidavit of Joseph Ferrante, dated April 16, 1993 ("Ferrante Aff'd"), P 7. The corporate defendants are not parties to this motion.

 Ferrante is alleged to have violated RICO in connection with those allegations of the complaint related to Arthur T. Mott and Freeport Gardens, Inc. d/b/a Apple Carting ("Apple Carting") (Complaint, PP 151-153); the Town of Islip (Complaint, PP 154-159); and the Town of Oyster Bay (Complaint, PP 160-167).

 The Apple Carting Allegations

 Ferrante is alleged to have "knowingly, willfully and intentionally committed acts, attempted to commit acts or conspired to commit acts which are indictable under [ 18 U.S.C. §§ 1951 and 2], as set forth in [ 18 U.S.C. § 1961(1)(B)]" between May 1988 to December 1988. Complaint, P 151. It is alleged that Ferrante aided and abetted certain corporations (including Unique Sanitation) (Complaint, P 153) in compelling Apple Carting to participate in an illegal restraint of competition and in not participating in competitive solicitation of carting business "by instilling in [Apple Carting] a fear that, if [it] attempted to or did obtain garbage stops or routes claimed by other carters, [defendants] or others would cause physical injury to [Apple Carting]." Complaint P 152. (Ferrante is also alleged to have committed acts chargeable under state law at the time of their commission as coercion and attempted coercion. Complaint, P 151.)

 The Town of Islip Allegations

 It is alleged that between January 1985 and September 1985, Ferrante, U-Need, and others, "knowingly, willfully and intentionally committed acts chargeable under state law at the time of their commission as [grand larceny . . . involving bribery], [attempted grand larceny . . . involving bribery], Bribery in the Second Degree, Attempted Bribery in the Second Degree, and Rewarding Official Misconduct in the Second Degree." Complaint, P 154. It is also alleged that Ferrante aided and abetted certain corporations (including Unique) in taking property from the Town of Islip, New York "by unlawfully placing garbage in the Islip town dump, thereby taking garbage disposal space, without paying the required fees." Complaint, P 156.

 It is alleged that from January 1982 through February 1985, Ferrante, U-Need, and Unique Sanitation "knowingly, willfully and intentionally committed acts chargeable under state law at the time of their commission as [grand larceny . . . involving bribery], [attempted grand larceny . . . involving bribery], Bribery in the Second Degree, Attempted Bribery in the Second Degree, Rewarding Official Misconduct in the Second Degree, Bribe Receiving in the Second Degree, Attempted Bribe Receiving in the Second Degree, and Receiving Reward for Official Misconduct in the Second Degree[.]" Complaint, P 160.

 It is also alleged that Ferrante and others attempted to and did take property from the Town of Oyster Bay "by unlawfully placing garbage in the Oyster Bay town dump, thereby taking garbage disposal space, without paying the required fees." Complaint, P 161. Ferrante is also alleged to have aided and abetted certain defendants in "soliciting and accepting bribes and rewards[.]" Complaint, P 163. *fn1"

 * * * *

 Ferrante now moves for partial summary judgment on two separate grounds. First, that there are no facts upon which a reasonable jury could conclude that he committed the predicate acts which survived this court's June 29, 1992 Memorandum and Order. Def.'s Memorandum of Law at 18 ("The Government now faces a challenge which it can never meet: the burden of coming forward with evidence establishing a genuine issue of fact indicating that Mr. Ferrante participated in the acts of which the United States accuses him."). Second, that there are no facts upon which a reasonable jury could conclude that Ferrante participated in a "pattern of racketeering activity" as that term is understood in RICO parlance. Id. at 19 ("Even if the Government fully contradicted, with admissible evidence, each and every factual assertion in the Ferrante Affidavit and thus created an issue for trial as to defendant's commission of predicate racketeering acts, the United States still would not be able to point to facts showing that Mr. Ferrante engaged in a 'pattern of racketeering activity.'").

 DISCUSSION

 I. Summary Judgment Standard

 Summary judgment "shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In order for the moving party to be successful, it must "point[] out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In opposing a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-movant, therefore, "must do more that simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), because "the mere existence of factual issues -- where those issues are not material to the claims before the court -- will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).

 As the Court noted, "the moving party is 'entitled to a judgment as a matter of law' [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. In deciding a summary judgment motion, the court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "In assessing the record to determine whether there is a genuine issue of fact, the court is required to draw all factual inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989).

 II. Civil Rico Liability

 To state a cause of action under RICO, 18 U.S.C. § 1962(a) - (c), a plaintiff must show "(1) that the defendant (2) through the commission of two or more acts (3) constituting a 'pattern' (4) of 'racketeering activity' (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an 'enterprise' (7) the activities of which affect interstate or foreign commerce." Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983), cert. denied, 465 U.S. 1025 (1984). *fn2" Of these elements necessary for liability for violation of the civil RICO statute, Ferrante contends that (i) there are no facts indicating that he committed any of the predicate acts alleged in the complaint; and (ii) there is no evidence that he engaged in a "pattern of racketeering activity."

 A. Racketeering Acts

 
1. The Apple Carting Allegations

 Section 1961(1) of Title 18 of the United States Code provides in relevant part that "racketeering activity" includes:

 
(A) any act or threat involving . . . arson, robbery, bribery, [or] extortion . . . which is chargeable under State law and punishable by imprisonment for more than one year;
 
(B) any act which is indictable under any of the following provisions of title 18, United States Code: . . section 1951 [relating to interference with commerce, robbery, or extortion] . . . .

 In dismissing those predicate acts based on the New York statutory law of coercion or grand larceny, or acts of "grand larceny . . . involving bribery," the court also held that the predicate acts of extortion were properly pleaded. PSIA, 793 F. Supp. at 1139. Section 1951(b)(2) provides that "the term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." The definition of "property" under Section 1951(a) is defined broadly by the courts and includes Apple Carting's right to pursue garbage stops. United States v. Tropiano, 418 F.2d 1069, 1075-76 (2d Cir. 1969) (property under the Hobbs Act "includes, in a broad sense, any valuable right considered as a source or element of wealth."), cert. denied, 397 U.S. 1021, 25 L. Ed. 2d 530, 90 S. Ct. 1262 (1970). It is also well settled that the element of fear includes fear of economic loss. See United States v. Brecht, 540 F.2d 45, 52 (2d Cir. 1976) ("The element of 'fear' required by the [Hobbs] Act can be satisfied by putting the victim in fear of economic loss."), cert. denied, 429 U.S. 1123, 51 L. Ed. 2d 573, 97 S. Ct. 1160 (1977).

 In his first submission in support of his motion for summary judgment on the Apple Carting allegations, defendant relies on the denials contained in his affidavit, dated April 16, 1993. For example, Ferrante states that, "I can state categorically that I never engaged in any of the conduct alleged against me in the Apple Carting segment of the complaint." Ferrante Aff'd, P 11. Rather than participating in extortion, Ferrante alleges that any attempt by him to induce Apple Carting customers to return to Unique Sanitation was the result of "competitive means." Id., P 13 ("In my discussions with customers, I emphasized the quality and reliability of Unique's services, Unique's competitive prices, and Unique's dedication to the customers involved."). Ferrante categorically denies any involvement in "instilling in [Apple Carting] a fear that, if they attempted to or did obtain garbage stops or routes claimed by other carters, [defendants] or others would cause physical injury to [Apple Carting][.]" Complaint P 152. Instead, Ferrante states that "during my substantial efforts in 1988 to retain Unique's commercial customers, I did not communicate with anyone at Apple Carting." Ferrante Aff'd, P 14. Ferrante also states that any conversations he had with others regarding Apple Carting did not involve "threats, coercion or intimidation of Apple Carting." Ferrante Aff'd, P 14.

 In opposition to defendant's motion, the government has submitted a statement pursuant to Local Rule 3(g) consisting of 25 paragraphs and 8 exhibits which it alleges "raise genuine issues requiring a trial." As stated above, in order to find Ferrante liable for a violation of the civil RICO statute, the government must establish, among other things, that he committed two predicate acts which "affect[] commerce . . . by robbery or extortion." 18 U.S.C. § 1951(a). In order to defeat defendants's motion for summary judgment, the government must therefore present sufficient evidence such that a reasonable jury could return a verdict in its favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), regarding violations of, or a conspiracy to violate, the Hobbs Act in relation to Apple Carting.

 In this regard, plaintiff has submitted evidence upon which a reasonable jury could determine that there were numerous incidents of property damage, threats and intimidation which occurred at Apple Carting's place of business as well as at customer stops which had previously been serviced by Unique Sanitation. Pl.'s 3(g) Statement, PP 15, 16. During the deposition of Robert Mott (a former principal of Apple Carting), a document was produced which lists numerous incidents involving, among other things, the destruction of Apple Carting containers, threats made to Apple ...


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