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UNITED STATES v. PRIVATE SANITATION INDUS.

February 9, 1996

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



The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:

 The Motion for Summary Judgment is Granted.

 The standards to be observed in determining whether a motion for summary judgment should or should not be granted have been so frequently stated in treatise, law review and judicial literature, that even a cursory attempt to review it would be as foolhardy as it would be superfluous. It will suffice to give recognition to the fairly recent trilogy of United States Supreme Court cases on that subject.

 E.g., In Celotex Corp. v. Catrett, 477 U.S. 317, at 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), the Court wrote that:

 
Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action. . . . Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rules prior to trial, that the claims and defenses have no factual basis.

 In Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 at 586-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), the Court wrote:

 
When the moving party has carried its burden under Rule 56(c) its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial. " . . . Where the record, taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial."

 And finally in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), the Court again emphasized the absence of a genuine issue of material fact and wrote that "if the evidence is merely colorable. . . or is not significantly probative, summary judgment may be granted." 477 U.S. at 249-50.

 With those principles in mind, the court is driven to conclude that summary judgment must be granted against Unique Sanitation and U-Need-A-Roll Off Corp.

 In a Memorandum and Order dated October 13, 1994 this court granted summary judgment against Nicholas Ferrante after finding that there were no genuine issues of material fact which precluded a determination that he violated the RICO statute in exercising control over the Long Island Carting Industry. The order issued enjoined him from participating in the carting industry and commercially associating with members of organized crime or with other defendants in the case; to divest his interests in Unique Sanitation and U-Need-A-Roll Off; and to disgorge the proceeds derived from his unlawful conduct with a court administered fund. Familiarity with that Memorandum and Order is presumed. Nicholas Ferrante moved the Court of Appeals for a stay of that order pending appeal and for an expedited appeal. The court granted his motion for an expedited appeal but denied a stay. U.S. v. PSIA, 44 F.3d 1082 (1995). Thereafter, on January 23, 1995, the court affirmed this court's decision of October 13, 1994 in a summary order. U.S. v. PSIA, 47 F.3d 1158 (1995), cert. denied, U.S. , 116 S. Ct. 50 (1995).

 This motion is predicated upon the same facts and resisted upon the same grounds and therefore need not detain us long. That is to say, the requisite predicate racketeering acts were found to have been established as were the "pattern" and "participation" elements necessary to establish RICO liability. The only issue presented for resolution now is whether there is any genuine issue of material fact that would preclude granting summary judgment against the corporations, Unique Sanitation Corp. and U-Need-A-Roll Off Corp.

 On October 17, 1986 Unique Sanitation and Nicholas Ferrante pleaded guilty to Count II of an Indictment numbered 2626.83 in the County Court of the State of New York for Suffolk County which charged them with compelling and inducing another person to adhere to an illegal contract, agreement, combination and conspiracy in restraint of competition which that person had a legal right to abstain from engaging in and to abstain from competitive bidding for and solicitation of carting contracts in which that person had a legal right to engage, by instilling in that person a fear that if the demands were not complied with the defendants or others would cause physical injury to that person or others and damage to property, including damage to the person's carting business, the carting company's place of business, its containers, trucks and other equipment or its customers' businesses or places of business -- in violation of Penal Law § 136.65(1) -- Coercion in the First Degree.

 Ferrante pleaded guilty to coercion in the first degree, a Class D felony, and Unique pleaded guilty to attempted coercion in the second degree, a Class B misdemeanor.

 In his plea allocution, Ferrante admitted that between December 1981 and October 1983 he intentionally and knowingly induced Robert and Jerome Kubecka to refrain from bidding for and soliciting carting customers by instilling in them a fear that he would damage their property.

 In the Memorandum and Order of October 13, 1994, the court decided that the allocution established a Hobbs Act violation and was affirmed by the Court of Appeals in that determination. The corporation's allocution was the same as Ferrante's and although the corporation pleaded guilty to a misdemeanor, the element of the two crimes are precisely the same and the facts to which the corporation allocuted is what gives rise to a Hobbs Act violation and the technical appellation of the crime to which it pleaded as a misdemeanor is immaterial. It is the facts to which it allocuted which bespeaks the Hobbs Act violation.

 The defendant's contention that the state court judgment should not be given collateral estoppel effect has been foreclosed by the affirmance of the October 13, 1994 order as well as by the previous decisions in U.S. v. PSIA, 811 F. Supp. 808, 813-14 (E.D.N.Y. 1992), aff'd, 995 F.2d 375 (2d Cir. 1993) (PSIA II). The first RICO predicate act is thus established as against Unique.

 The additional predicate acts are also established against Unique and U-Need-A-Roll Off Corp. by the repeated commission by Ferrante of the state crime of second degree bribery which is punishable by more than one year's imprisonment and thus is a RICO predicate. The finding of the commission of this crime by Ferrante was held to be established in the court's Memorandum and Order of October 13, 1994, a determination which was also affirmed by the Court of Appeals. That finding also establishes the additional predicate racketeering acts against Unique and U-Need-A-Roll Off Corp. by virtue of §§ 10.00(7), 20.20(1)(a) and 20.20(2)(b) of the N.Y. Penal Law. See United States v. Kaplan, 886 F.2d 536 (2d Cir. 1989), cert. denied, 493 U.S. 1076, 107 L. Ed. 2d 1033, 110 S. Ct. 1127 (1990) (separate and distinct acts of ...


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