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July 23, 1996

JOSEPH HERZOG, MIRIAM HERZOG, and JEFFREY HERZOG, Plaintiffs, against GEORGE WILL, et al., Defendants.

The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 In this civil rights action pursuant to 42 U.S.C. § 1983 with supplemental New York State claims, filed January 25, 1996, certain of the defendants, hereinafter "the School Board defendants" to distinguish them from the "police defendants," moved for summary judgment based on a claim of qualified immunity. The motion was heard before this Court on July 12, 1996, and the Court concluded that an appropriate resolution of the motion was impossible until such time as plaintiffs have had a reasonable opportunity to take discovery. The Court continued the motion for all purposes until September 27, 1996, with the expectation that the plaintiff, and indeed all parties, could supplement their motion papers with the results of pretrial discovery to be taken in the interim period. Since the motion, if granted, would probably result in dismissal without prejudice of the supplemental state claims, that discovery is not wasted since it can be used in connection with the supplemental claims in the New York courts.

 No objection was taken to this disposition by the Court. However, by letter docketed July 18, 1996, the moving defendants for the first time objected to the procedure being followed.

 The letter, which this Court treats as a motion to reargue, reads in relevant part as follows:

"We are the attorneys for defendants George Will, Ivan Katz, Eileen Casey, Jean Rosenheck, Jack Leshner, Peter Calahan, Richard Feller, Vivian Liff, Alyce Vanetten, Neil Muscatiello, and the Monticello Central School District in the above referenced matter.
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 alleging violations of their constitutional rights as protected by the First, Fourth and Fourteenth Amendments arising from school disciplinary action taken against Joshua Herzog, a student at Monticello High School, the arrest of Joshua Herzog, and an alleged illegal search of the Herzog residence.
We brought a motion for summary judgment on behalf of the defendant school official requesting that the Court grant qualified immunity to these defendants. The return date was July 12, 1996. At oral argument on that date your Honor stated that you would not decide the motion at that time but would reserve decision until September 27, 1996 so that discovery in this matter could be concluded. You did not issue an order denying the motion.
The defendant school officials have the right to request qualified immunity prior to discovery. Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 817-818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Qualified immunity protects officials from undergoing the costs of trial and the burdens of discovery. Mitchell at 526; Harlow at 817-818. Until the threshold issue of qualified immunity is resolved, discovery should not be allowed. Harlow at 818. Even the issues regarding the alleged illegal arrest and search are subject to qualified immunity. Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). In Musso v. Hourigan, 836 F.2d 736, 741 (2d Cir. 1988) the Second Circuit found that a refusal to consider the request for qualified immunity requires a remand to the District Court to consider the qualified immunity issue.

 The attorneys for plaintiff have responded to the letter motion by their own letter docketed July 19, 1996, as follows:

"We believe summary judgment is inappropriate at this virtually pre-discovery stage. Depositions will afford the Plaintiffs an opportunity to test the credibility of the affiants whose conclusory and substantially hearsay based affidavits were submitted in support of the Defendants' motion. By reason of Defendants' grossly premature motion for dismissal, Plaintiffs cannot presently contest statements made in any of these supporting affidavits. An opportunity to question these Defendants and non-party witnesses at depositions is essential.
The manifest unfairness of Defendants' strategic maneuver is exacerbated by reason of the fact that only they had an opportunity to elicit testimony from the Plaintiffs at a New York State General Municipal Law § 50-h hearing conducted in March 1995. The hearing was conducted on Plaintiffs' state law claims pursuant to a state statutory provision which afforded Plaintiffs no reciprocal right to question defendants.
Under the circumstances it is evident that movant's real objective is not premised on a good faith intent to resolve a supposed qualified immunity claim. Rather it is to induce the Court to enter an order which will serve as the predicate for a patently frivolous, dilatory appeal -- unnecessarily driving up the cost of litigation.
Therefore, Plaintiffs respectfully request the Court abide by its decision to reserve a decision on the Defendants' motion until September 27, 1996 and permit discovery to go forward."

 The difficulty with this motion as presented is that the claim for the civil rights violation and the motion for summary judgment based on qualified immunity are essentially fact ...

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