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KURSCHUS v. PAINEWEBBER

August 12, 1998

ERIC KURSCHUS, Plaintiff, against PAINEWEBBER, INC., BRIAN SAGER, MARLENE SAGER, PAT McDONALD, COUNTY OF NASSAU and JOHN DOES 1 THROUGH 10, Defendants.

Peter K. Leisure, U.S.D.J.


The opinion of the court was delivered by: LEISURE

OPINION AND ORDER

LEISURE, District Judge :

 Plaintiff Eric Kurschus ("Kurschus") brings this action against defendants Brian Sager, Marlene Sager, the County of Nassau, and John Does 1 through 10 (various police officers, police detectives, and employees of Nassau County), alleging violation of his civil rights under Title 42, United States Code ("U.S.C."), Section 1983, and various state-law torts. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants move for summary judgment. For the reasons stated below, defendants' motions are granted in part and denied in part.

 BACKGROUND1

 In August, 1991, Kurschus began work as a sales assistant in the Mortgage Origination Sales Department of PaineWebber, Inc. ("PaineWebber"). By the summer of 1992, PaineWebber assigned Kurschus to work for two mortgage securities salespersons, Brian Sager and Cosmo Fontana.

 As PaineWebber encouraged its employees to foster personal relationships outside of the office, Kurschus and his wife attended several events that Brian and his wife, Marlene Sager, also attended. At a PaineWebber Christmas party in December, 1992, Marlene Sager began to pursue Kurschus. Despite the presence of Kurschus's wife and Brian Sager at the party, Marlene Sager hugged Kurschus, held his arm, and brushed her body against his.

 PaineWebber employees in the Mortgage Origination Sales Department did not have individual phone lines, but shared a desk phone. Marlene Sager would use this phone to call her husband, but following the Christmas party, Marlene Sager began to call Kurschus on a regular basis. Kurschus and Marlene Sager developed a relationship through these phone calls and confided intimate details of their lives.

 In June of 1993, the Sagers invited Kurschus and his wife to dinner at the Water Club in Manhattan. Marlene Sager rubbed Kurschus's chest when she walked by him in a hallway and made a sexually provocative remark to Kurschus, which she then repeated to Kurschus's wife. Kurschus and Marlene Sager continued to speak regularly on the telephone over the next several months. On November 11, 1993, Marlene Sager invited Kurschus to dinner at a restaurant in Manhattan. During the meal, Kurschus told Marlene Sager that nothing physical would happen between them and that they must remain friends. Following dinner, they went for drinks at another Manhattan restaurant, One If By Land, Two If By Sea.

 Kurschus and Marlene Sager met for lunch in December, 1993, at Manana Restaurant in Manhattan. Kurschus reiterated to Mrs. Sager that they would remain friends and that they should limit their contact. Marlene Sager agreed that that was best for everyone. However, at a 1993 PaineWebber Christmas party held at the Sager residence later that month, Marlene Sager held Kurschus's arm and introduced him to her friends as "her boy". Later, she demanded to know why Kurschus avoided and ignored her throughout the evening. Additionally, Marlene Sager cornered Mrs. Kurschus and encouraged her to leave her husband.

 Several months later, Brian Sager invited Kurschus, George Tasolides ("Tasolides"), and Mark Wallis, all PaineWebber employees, to play a round of golf at Sager's country club and to have dinner at his home. Kurschus accepted the invitation, and on May 14, 1994, the foursome played eighteen holes of golf. Brian Sager, Kurschus, and Tasolides then returned to the Sager home for dinner. Before dinner, the three men and Marlene Sager shared drinks on the patio. The conversation turned to a new home purchased by a fellow PaineWebber employee in Sands Point, New York, near the Sagers' home in Port Washington. Brian Sager and Tasolides previously had viewed the property, but Marlene Sager, a licensed real estate agent, offered to show the home to Kurschus.

 Kurschus accepted the invitation, and Marlene Sager drove him to the area of the property, which was secluded. Marlene Sager parked her car, and then a sexual incident happened between Marlene Sager and Kurschus. Kurschus maintains that Marlene Sager initiated the activity, which culminated with Mrs. Sager performing oral sex on Kurschus in the front seat of her car, and that the entire incident was consensual. Mrs. Sager contends that Kurschus ripped her blouse and forced her against her will to perform the sexual act on him. They then returned to the Sager home for dinner. After an uneventful meal, Marlene Sager walked Kurschus and Tasolides to Tasolides's car and kissed them both goodnight.

 The next day, while at his home, Kurschus spoke on the telephone with Marlene Sager, who, unknown to Kurschus, had told her husband that Kurschus forced himself on her. Kurschus then spoke on the telephone with Brian Sager, who informed Kurschus that they could not work together anymore and that Kurschus must take an HIV test. Since Kurschus's wife was present, Brian Sager and Kurschus agreed to discuss the matter further at work on Monday. Neither Brian nor Marlene Sager mentioned the issue of force to Kurschus during these conversations.

 Shortly after Kurschus arrived at work on Monday, May 16, 1994, he met with Brian Sager. Kurschus apologized for the incident, but Brian Sager insisted that Kurschus leave PaineWebber and take an HIV test. Kurschus refused both requests. He stated that he would talk to Al Maripodi, then PaineWebber's Senior Vice President in charge of mortgage origination, about a transfer within PaineWebber. Maripodi agreed to allow Kurschus to work for Fontana and Tasolides, and not for Brian Sager.

 Mrs. Kurschus, crying and hysterical, called her husband at work that morning after she received a telephone call from Marlene Sager. The conversation with Marlene Sager had left Mrs. Kurschus shaken and upset. Kurschus left the office for the day to go home to his wife. Before Kurschus arrived home, Brian Sager called Mrs. Kurschus. This conversation left her more upset than before. That evening, Maripodi called Kurschus and informed him that the Sagers accused him of using force to coerce sex from Marlene Sager. Maripodi indicated that the situation was out of hand and that Kurschus and Brian Sager should meet at work the next morning, Tuesday, May 17, 1994.

 When Kurschus arrived at work the next morning, he met with Brian Sager, who indicated that the police would arrive soon to arrest Kurschus. Marlene Sager filed a report with the Nassau County Police Department the preceding day, May 16, and the detectives decided to arrest Kurschus. Following the meeting, Pat McDonald, the National Sales Manager for Fixed Income Securities at PaineWebber, instructed Kurschus to leave for the day. Later on Tuesday, May 17, two Nassau County detectives took a written statement from Brian Sager at PaineWebber's offices.

 On Wednesday, May 18, Kurschus arrived at work as usual. Approximately thirty minutes later, two Nassau County detectives arrived at PaineWebber and placed Kurschus under arrest. They did not possess an arrest warrant. The detectives then transported Kurschus to Mineola, Long Island, where the police photographed and fingerprinted Kurschus. He was arraigned in the Nassau County Courthouse and charged with Sodomy in the First Degree, a felony classified as violent. Kurschus could not raise the bail collateral in time to avoid overnight imprisonment in the Nassau County Correction Center in Uniondale, Long Island.

 The night in jail was a difficult experience for Kurschus. When informed of the crime with which Kurschus was charged, some prison guards, as well as the prison doctor, announced to the other prisoners that Kurschus was a molester of little boys. This led to threats and comments from the other prisoners that made Kurschus fear for his safety. The next morning, Kurschus posted his bond and was released from custody.

 The Nassau County District Attorney (the "D.A.") scheduled the case for presentation to the grand jury numerous times in the following months; the D.A. adjourned the hearing each time. Finally, in December, 1994, with automatic dismissal under the speedy trial requirements set for early January, 1995, the D.A. scheduled a grand jury hearing in the case. As Marlene Sager decided not to testify, the grand jury dismissed the charges against Kurschus "in the interest of justice." In the interim, Kurschus lost his position with PaineWebber, and he and his wife divorced.

 In March, 1995, Kurschus filed the Complaint in the instant matter. He claims against Brian and Marlene Sager for malicious prosecution, intentional infliction of emotional distress, negligent prosecution, prima facie tort, and conspiracy to violate his civil rights, pursuant to 42 U.S.C. § 1983. Against Nassau County and John Does 1 through 10, Kurschus claims for malicious prosecution, false arrest and imprisonment, and violation of his civil rights, pursuant to § 1983. Kurschus also filed a claim against Nassau County for negligent supervision. The Sagers, Nassau County, and John Does 1 through 10 now move for summary judgment.

 DISCUSSION

 I. STANDARD FOR SUMMARY ...


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