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ANTONIOUS v. MUHAMMAD

January 5, 1995

NASHAAT N. ANTONIOUS and SOHEIR F. ANTONIOUS, Plaintiffs, against DAWUD MUHAMMAD, GOLDOME, CHARLES RAAB, RONALD TAGGART, MARY MURPHY, COUNTY OF ROCKLAND, JOHN GRANT, WALTER J. GREEN, JR. and KENNETH GRIBETZ, Defendants.


The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.,

 Plaintiffs Nashaat N. Antonious ("Antonious") and Soheir F. Antonious (collectively "plaintiffs") bring this action against Dawud Muhammad, Goldome, Charles Raab, the County of Rockland ("Rockland County"), detectives Ronald Taggart and Mary Murphy, Assistant District Attorneys ("ADAs") John Grant and Walter J. Green, Jr., and District Attorney ("DA") Kenneth Gribetz. *fn1" Plaintiffs claim that these defendants are liable for false arrest, malicious prosecution, abuse of process, intentional infliction of emotional distress and various civil rights violations. Defendants Raab, Rockland County, Taggart, Murphy, Grant, Green and Gribetz (collectively "defendants") move for dismissal and/or summary judgment on various grounds including res judicata. For the reasons that follow, the defendants' motions for summary judgment are granted.

 BACKGROUND

 In January 1989, plaintiff Nashaat N. Antonious hired Co-Ho Construction ("Co-Ho"), owned and operated by defendant Charles Raab, to make some repairs on his property located in Nyack, New York. Plaintiffs' Memorandum in Opposition ("Pltfs. Mem.") Exhs. 4 & 7; Affidavit of Charles Raab Sworn to April 5, 1993 ("Raab Affidavit") P 4. Prior to the completion of the work, however, a monetary dispute arose between Antonious and Raab. Pltfs. Mem. Exhs. 4 & 7; Raab Aff. PP 3-4. In settlement of the dispute, Antonious allegedly endorsed an insurance check over to Raab, who then allegedly executed a Waiver of Right to File Lien (the "Waiver") against Antonious' property. Pltfs. Mem. Exhs. 4 & 7. Defendant Dawud Muhammad, manager of Goldome Bank and a notary public, witnessed the alleged endorsement of the check and the alleged execution of the Waiver. Id.; Raab Aff. P 8. Shortly thereafter, an unspecified bank refused to honor the check. Pltfs. Mem. Exhs. 4 & 7.

 In May 1989, Raab filed a complaint against Antonious with the Rockland County DA's Office, alleging that he did not execute the Waiver. Affidavit of Jeffrey Rovins Sworn to July 29, 1993 ("Rovins Aff.") P 1. Shortly thereafter, the Rockland County DA's Office commenced an investigation of the matter under the direction of defendant detective William P. Michella. Pltfs. Mem. Exh. 6; Rovins Aff. P 1, Exh. 14. At an interview on June 26, 1989, Raab claimed that Antonious had forged his signature on the Waiver. Pltfs. Mem. Exh. 7; Rovins Aff. P 1, Exh. 14 at 2-4. At an interview on July 21, 1989, Muhammad stated that an individual claiming to be Raab executed the Waiver at Goldome Bank, and described that individual as Antonious. Rovins Aff. P 1, Exh. 14 at 6-7. On December 12, 1989, the investigation was reassigned to defendant detective Ronald Taggart. Pltfs. Mem. Exh. 8; Rovins Aff. P 2, Exh. 10 at 1. At an interview on January 5, 1990, Muhammad again stated that an individual claiming to be Raab executed the Waiver. Rovins Aff. P 2. In a photo line-up, Muhammad identified Antonious as that individual. Pltfs. Mem. Exh. 5; Rovins Aff. P 2, Exhs. 2 & 4.

 On May 1, 1990, after a review of the case by detective Taggart and defendant ADA John Grant, the Rockland County DA's Office charged Antonious with second degree forgery, criminal impersonation and criminal possession of a forged instrument in violation of sections 170.10, 190.25 and 170.25 of the New York State Penal Law. Pltfs. Mem. Exh. 1; Rovins Aff. P 6, Exh. 10, 17; Affidavit of John Grant Sworn to April 15, 1992 ("Grant Aff.") PP 3-5. That day, Justice Barry Traub of the Supreme Court, Rockland County issued a warrant for the arrest of Antonious. Pltfs. Mem. Exh. 2; Rovins Aff. P 6, Exh. 7. The following day, detective Taggart and defendant detective Mary Murphy executed the warrant and arrested Antonious at his new residence located in Scarsdale, New York. Pltfs. Mem. Exh. 8; Rovins Aff. P 7, Exh. 10 at 2; Grant Aff. P 8. Later that day, Antonious was arraigned and released on bail. Pltfs. Mem. Exh. 8; Rovins Aff. P 7, Exh. 10 at 2.

 On or about May 8, 1990, defendant DA Kenneth Gribetz issued a press release to the Rockland Journal-News. Pltfs. Exhs. 14-15. The press release, prepared by ADA Grant, provided that Antonious was arrested on three criminal charges, provided a small history of the case, and stated that Antonious forged the Waiver in order to avoid paying Co-Ho. Id. On or about May 8, 1990, Gribetz was also interviewed by WRKL Radio in Rockland County. Pltfs. Mem. Exh. 17. As with the press release, the radio interview provided a brief overview of the criminal proceedings against Antonious. Id.

 In August 1990, the investigation was reassigned to defendant ADA Walter J. Green. Rovins Aff. P 8; Affidavit of Walter J. Green Sworn to April 16, 1992 ("Green Aff.") P 3. On August 14, 1990, at the request of ADA Grant, Justice Traub reduced the charges against Antonious to misdemeanors. Rovins Aff. P 8. At an interview on December 6, 1990, Muhammad claimed that Antonious and Raab were both present at Goldome Bank, and conceded that he was no longer certain whether Antonious signed the Waiver. Pltfs. Mem. Exh. 21; Rovins Aff. PP 12-14, Exh. 4. On December 13, 1990, at the request of ADA Green, Justice Traub dismissed the charges against Antonious. Pltfs. Exh. 8; Rovins Aff. P 15; Green Aff. PP 6-7. Shortly thereafter, Antonious and Raab settled their underlying civil action for six thousand dollars. Pltfs. Mem. Exh. 4; Raab Aff. P 18.

 On April 29, 1991, plaintiffs commenced the instant action against defendants Muhammad, Goldome, Raab, detectives Taggart and Murphy, ADAs Grant and Green, DA Gribetz and Rockland County in the United States District Court for the Southern District of New York. In their original complaint, plaintiffs claimed that defendants were liable for false arrest, malicious prosecution, abuse of process, subornation of perjury, obstruction of justice, intentional infliction of emotional distress, negligence and various civil rights violations. *fn2" Defendants Muhammad and Goldome have since filed cross-claims against Rockland County, which has filed cross-claims against defendants Raab, Muhammad and Goldome. On October 10, 1991, plaintiffs commenced another action against the same defendants in the Supreme Court, New York County as a protective measure against a possible lack of subject matter jurisdiction in federal court. On June 1, 1993, plaintiffs filed an amended complaint in the instant action to include factual allegations concerning the press release and radio interview of May 1990. On November 20, 1992, plaintiffs then commenced another federal action against ADA Sevastian and others claiming that they were liable for negligence and various civil rights violations. *fn3"

 On May 19, 1992, Rockland County filed a motion for a change of venue in the Supreme Court, Rockland County in the state court action. Rockland County Supplemental Statement Pursuant to Local Rule 3(g) ("Rockland Supp. Rule 3(g) St.") P 7; Affidavit of Alfred E. Page Sworn to December 2, 1993 ("Page Supp. Aff.") P 10, Exh. R. On July 23, 1992, plaintiffs filed an affidavit in opposition to the motion to change venue. Pltfs. Exh. 25; Page Supp. Aff. P 11, Exh. S. On October 22, 1992, the Supreme Court, Rockland County granted defendants' motion to change venue to Rockland County pursuant to C.P.L.R. ยง 504(1), noting that "no compelling circumstances existed" to maintain venue in New York County. Pltfs. Mem. Exh. 26; Page Supp. Aff. P 12, Exh. U. On November 20, 1992, plaintiffs filed a notice of appeal, which has not yet been perfected. Pltfs. Mem. Exh. 26; Page Supp. Aff. P 13, Exh. V; Rockland Supp. Rule 3(g) St. P 9.

 On March 1, 1993, defendant Gribetz filed a motion to dismiss the state court action. Affidavit of Richard Schaeffer Sworn to July 30, 1993 ("Schaeffer Aff.") P 12, Exh. E. On March 7, 1993, plaintiffs filed an affirmation in opposition to such motion, and on March 11, 1993, plaintiffs filed a cross-motion to stay the state court action. Schaeffer Aff. PP 13-14, Exhs. F, G. Between March 19 and April 6, 1993, defendants Taggart, Murphy, Grant, Green, Raab and Rockland County also filed motions to dismiss and/or motions for summary judgment in the state court action. Rovins Aff. P 21, Exh. D; Affidavit of Alfred E. Page Sworn to July 30, 1993 ("Page Aff.") P 6, Exh. G; Affidavit of William A. Gerard Sworn to July 29, 1993 ("Gerard Aff.") P 8, Exh. E. On April 28, 1993, plaintiffs filed an affidavit in opposition to such motions. Gerard Aff. P 9, Exh. F; Page Aff. P 7, Exh. H. On April 30, 1993, plaintiffs filed a cross-motion seeking to voluntarily discontinue the state court action without prejudice. Gerard Aff. P 10, Exh. G; Page Aff. P 7, Exh. I.

 By order dated March 31, 1993, the Supreme Court, Rockland County dismissed the action against Gribetz upon the ground of absolute immunity and denied plaintiffs' motion for a stay. Pltfs. Mem. Exh. 27; Schaeffer Aff. PP 3, 15, Exh. A. By order dated May 28, 1993, the court dismissed the actions against defendants Taggart, Murphy, Grant, Green, Raab and Rockland County and denied plaintiffs' cross-motion seeking a voluntary discontinuance without prejudice. Pltfs. Mem. Exh. 28; Rovins Aff. P 23, Exh G; Gerard Aff. P 11, Exh. A. On April 30 and July 23, 1993, plaintiffs filed notices of ...


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