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UNITED STATES v. PRIVATE SANITATION INDUS. ASSN. O

October 13, 1994

UNITED STATES OF AMERICA, Plaintiff, against PRIVATE SANITATION INDUSTRY ASSOCIATION OF NASSAU/SUFFOLK, INC., et al., Defendants.


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

 GLASSER, United States District Judge:

 Plaintiff, the United States of America, moves for summary judgment pursuant to Federal Rule of Civil Procedure 56, providing for broad injunctive relief against defendant Nicholas Ferrante ("Ferrante") under the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1961 et seq. ("RICO"). Defendant Ferrante requests a continuance to conduct discovery pursuant to Federal Rule of Civil Procedure 56(f) and seeks to strike from the Government's papers in support of its summary judgment motion references to the February 1994 guilty plea of Salvatore Avellino ("Avellino") in United States v. Avellino, 90-CR-446.

 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 Indus. Ass'n, 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. Ferrante has been involved in the carting industry on Long Island through his companies Unique Sanitation ("Unique") and U-Need-A-Roll-Off ("U-Need"). Declaration of Joseph R. Vittorio ("Vittorio Decl.") P 43; Declaration of Jerome J. Kowalski ("Kowalski Decl.") P 32; Declaration of Peter Stramiello ("Stramiello Decl.") P 39. In addition, Ferrante is reputed to be associated with the Luchese crime family. Plaintiff's Statement Pursuant to Local Rule 3(g) ("Plaintiff's 3(g) Statement") P 2. In that capacity, Ferrante is reputed to have worked closely with Avellino, a reputed caporegime in the Luchese family, in controlling trade waste collection on Long Island. Plaintiff's 3(g) Statement P 8; Declaration of Donald W. McCormick in Support of Plaintiff's Motion for Summary Judgment ("McCormick Decl."), PP19-22. It is alleged that Ferrante was a principal "bagman" for Avellino and the Lucheses and, in that capacity, assisted Avellino on a regular basis in collecting extortion payments from carters for the Luchese crime family. Plaintiff's 3(g) Statement P 13.

 On October 17, 1986, Ferrante pleaded guilty to coercion in the first degree in violation of New York Penal Law § 135.65(1), a class D felony. *fn1" Transcript of October 17, 1986 Plea Allocution in New York State County Court, Suffolk County ("Plea Transc."), p. 9 (Exh. 28 to McCormick Decl.). In pleading guilty, Ferrante stated:

 
Your Honor between on or about December 1981 and October 1983, in the County of Suffolk, I Nicholas Ferrante, intentionally and knowingly violated the law by inducing Robert Kubecka and Jerome Kubecka to refrain from bidding for [and] soliciting certain carting customers by instilling in the Kubeckas a fear that I would damage the Kubecka property.

 McCormick Decl. P 44; Plea Transc. at 10. *fn2"

 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 PP 163, 164.

 DISCUSSION

 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 (1985). 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) (emphasis added). The non-movant, however, "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). "The mere existence of factual issues [pertaining to immaterial facts] will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).

 "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 Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1985). 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., Inc. 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 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). The nonmoving party, therefore, must come forward with facts, and not doubts as to the veracity of the moving party's allegations: "Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. Because Ferrante has failed to show that a genuine issue of material fact exists as to his civil RICO liability, and because his other arguments are not persuasive, summary judgment against Ferrante is appropriate.

 The government has submitted a statement pursuant to Local Rule 3(g) consisting of 41 paragraphs of facts which it claims are not in dispute. Ferrante submitted a response to the government's Rule 3(g) statement in which he states that the following specific facts are not in dispute: that this is a civil RICO action, that he and his company Unique Sanitation were indicted by a Suffolk County grand jury in 1983, that he pleaded guilty to the crime of coercion in the first degree and that Messrs. Vittorio, Kowalski and Stramiello were employees of the Town of Oyster Bay. Ferrante asserts the existence of genuine issues of material fact with respect to all the other assertions in the government's 3(g) statement. However, Ferrante fails to allege specific facts that contradict the government's 3(g) Statement and supporting documents. To support his contradiction of the government's assertions, Ferrante submits affidavits of his son and co-defendant, Joseph Ferrante, and of Gary Pezza, in which those individuals deny knowledge of the allegations of the government and offer alternative interpretations of the events described, but do not assert knowledge of specific facts showing that there is a genuine issue for trial.

 A review of the government's submissions in support of its motion and of Ferrante's submissions in opposition thereto compels this court to conclude that there is no genuine issue of material fact and that the relief the government seeks should, accordingly, be granted.

 I. 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 defendants (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, 104 S. Ct. 1280, 79 L. Ed. 2d 684 (1984). Each of these elements is satisfied in this case.

 The first predicate act

 Ferrante's guilty plea in the state court to coercion in the first degree conclusively establishes that he has committed one predicate racketeering act. Section 1961 of Title 18 defines "racketeering activity" as:

 (A) any act or threat involving . . . bribery which is chargeable under State law and punishable by imprisonment for more than one year; [and] (B) any act which is indictable under . . . Title 18, United States Code section 1591 [Hobbs Act] ...


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