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MONTEFUSCO v. NASSAU COUNTY
March 11, 1999
JOHN MONTEFUSCO AND YOLANDA MONTEFUSCO, PLAINTIFFS,
NASSAU COUNTY; STEVEN MACAULEY; ANDREW FAL, LINDENHURST UNION FREE SCHOOL DISTRICT; BOARD OF EDUCATION OF LINDENHURST UNION FREE SCHOOL DISTRICT; AND MICHAEL MOSTOW, DEFENDANTS.
The opinion of the court was delivered by: Seybert, District Judge.
Pending before the Court are the motions of Defendants Michael
Mostow ("Mostow"), Lindenhurst Union Free School District
("District"), and the Board of Education of Lindenhurst Union
Free School District ("Board") for summary judgment in this civil
rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs
John and Yolanda Montefusco ("Montefusco") oppose the motions.
For the reasons discussed below, the motions are granted in part
and denied in part.
Plaintiff John Montefusco is a resident of Nassau County and
has been a school teacher with the Lindenhurst Union Free School
District since approximately 1967. Defendants' Joint Rule 56.1
Statement ("Def. 56.1 Stmt."), ¶ 1. He received tenure in 1970.
Id., ¶ 2. Plaintiff Yolanda Montefusco is John Montefusco's
wife; she also resides in Nassau County and has been a teacher
with the Lindenhurst Union Free School District since 1970.
Id., ¶ 3. The District is a municipal corporation duly
constituted pursuant to the laws of New York State. Id., ¶ 4.
The District's Board of Education, also a named defendant, is the
duly constituted Board with the duties and powers conferred upon
it pursuant to the New York Education Law. Id., ¶ 5.
Defendant Mostow was the District's Associate Superintendent of
Schools from July 1992 to January 1996. Id., ¶ 6. His duties
included administrative tasks assigned to him by the
superintendent and/or the Board. Id. At all relevant times,
defendant Stephen Macauley ("Macauley") was a police detective
with the Nassau County Police Department ("NCPD"). Id., ¶ 7.
Defendant Andrew Fal ("Fal"), at all relevant times, was a police
lieutenant with the NCPD.*fn1 Id., ¶ 8.
In 1993, John Montefusco took certain photographs, which are
the subject of this litigation, which he had developed at the
Rockbottom Drug Store in Massapequa, New York on or about January
25, 1994. Def. 56.1 Stmt., ¶ 9. When Montefusco took the photos
to be developed, he used the alias "Joe Borrelli" and utilized a
address. Id., ¶ 10. The vast majority of the photographs,
copies of which have been submitted to the Court, are candid
shots of teenagers, mostly females.*fn2 Id., ¶ 12; Affidavit
of Scott M. Karson ("Karson Aff."), Exh. O; J. Montefusco Aff.,
Exh. 1. After the photos were developed and Montefusco picked
them up from Rockbottom, he dropped or lost them in the
Rockbottom parking lot. Def. 56.1 Stmt., ¶ 13.
A passerby apparently found the photographs, and they were
turned over to the Nassau County Police Department. Id., ¶ 14.
Defendant Detective Stephen Macauley conducted an investigation
and determined that several of the photographs were taken from
inside Montefusco's home. Id., ¶ 15. On or about February 9,
1994, Montefusco received a telephone call from the NCPD
requesting that he come to the Seventh Precinct. Id., ¶ 16. At
the precinct, Montefusco was interviewed by Detective Macauley.
Id., ¶ 17. During the interview, Montefusco admitted that he
had taken the photos and had them developed under a fictitious
name and address. Id. Montefusco claims that Detective Macauley
was aware that he was a school teacher and that he coached the
high school girl's softball team prior to the interview. Pl. 56.1
Stmt., ¶ 17. Macauley claims that Montefusco told him at the
interview that he was a teacher and coach. Def. 56.1 Stmt., ¶ 17.
According to Detective Macauley's account of the interview,
Montefusco also admitted that he was a voyeur, that he had other
similar photos in his garage at home, and that he used the
photographs, in private, to masturbate. Id., ¶ 18. Montefusco
claims that Detective Macauley asked him if he masturbated to the
photographs and that he responded "absolutely not." J. Montefusco
Aff., ¶ 11. Montefusco claims that he denied that he was a
voyeur. Id. Regardless, Montefusco was not arrested, nor was he
charged criminally. Def. 56.1 Stmt., ¶ 19. Detective Macauley
indicated at his deposition that he looked through the Penal Law
and discussed the situation with the Nassau County Legal Bureau
to see if he had any reason to make an arrest regarding the
incident. Karson Aff., Exh. J, at 49. Within a week or two,
however, Detective Macauley had concluded that no crime had been
committed. Id., at 51.
Nevertheless, on or about March 3, 1994 the NCPD contacted
Barton B. Zabin, an investigator with the New York State
Education Department. Def. 56.1 Stmt., ¶ 20. Detective Macauley
and Lieutenant Fal reported to Zabin that Montefusco, a teacher
in the District, had been interviewed and had admitted taking the
photographs and masturbating to them. Id. Shortly thereafter,
Zabin contacted Robert Sapir, the District's attorney, regarding
his conversation with the NCPD. Id., ¶ 21. Sapir in turn
notified defendant Mostow, who in turn notified Superintendent
Richard Holzman and the Board. Id.
On March 10, 1994 the Board met in executive session and
discussed the allegations regarding Montefusco that had been
forwarded from the state education department. Id., ¶ 22. The
following day, Sapir and Mostow, at the Board's direction, met
with Montefusco to discuss the allegations. Id., ¶ 23. At that
meeting, Montefusco stated that he had met with Detective
Macauley and that he had taken the photos, but he denied that he
masturbated to the photographs. Id., ¶ 24.
Approximately two weeks later, on April 6, 1994, the Board, by
a majority vote, issued written findings of probable cause for
charges to be proffered against Montefusco by Superintendent
Holzman, pursuant to New York Education Law § 3020-a. Def. 56.1
Stmt., ¶ 28. Each charge was entitled "CONDUCT UNBECOMING A
TEACHER." Id. The first alleged that during the school year,
Montefusco took photos of young females without their knowledge
for the purposes of using the photos for his own sexual
gratification and to masturbate with. Id. The second charge
alleged that during an investigation conducted by Mostow and
Sapir on or about March 11, 1994, Montefusco had falsely denied
that he took photographs of young females for the purpose of his
sexual gratification and to masturbate with. Id. The third and
final charge alleged that, during the same investigation by
Mostow and Sapir, Montefusco had falsely denied having told
Detective Macauley that he took the photos of young females for
the purpose of his own sexual gratification and to masturbate
The following day, Montefusco filed a written request for a
hearing with the State Education Department. Def. 56.1 Stmt., ¶
31. Montefusco designated Robert L. Weiner, Esq., as his attorney
for the hearing and selected Phillip Griffith as a member of the
hearing panel. Id. The Board designated Mostow to be the
District's representative at the hearing to be held pursuant to
New York Education Law § 3020-a. Id.
On or about April 7, 1994, Montefusco was suspended, with pay,
from his classroom duties and was removed from extracurricular
activity assignments, including coaching the girl's softball
team, pending the outcome of the § 3020-a hearing. Id., ¶ 33.
Plaintiff claims that he was removed from his extracurricular
assignments prior to the date of his actual suspension. Pl. 56.1
Stmt., ¶ 33.
The hearing commenced on August 30, 1994 and concluded on or
about March 13, 1995. Def. 56.1 Stmt., ¶¶ 34, 36. At the hearing,
Montefusco was represented by counsel, had the opportunity to
testify on his own behalf, subpoena witnesses, present witnesses,
and cross-examine witnesses. Id., ¶ 35. The hearing panel
issued its Findings of Fact and Recommendations on April 20,
1995. Id., ¶ 37; Pl. 56.1 Stmt., ¶ 36. The hearing panel
dismissed the charges against Montefusco, with prejudice, and
ordered that Montefusco be restored and reassigned to his former
school and teaching duties in the District. Def. 56.1 Stmt., ¶
37. Montefusco remained employed and continues to be employed by
the District as a teacher. Id., ¶ 38.
A Notice of Claim, dated July 18, 1995, and file-stamped as
received by the Superintendent's Office on July 20, 1995, was
served on the District by John and Yolanda Montefusco. Id., ¶
39; Karson Aff., Exh. E. The Notice of Claim asserted that Mostow
had made defamatory statements about Montefusco on March 14, 1994
to Meg McKenna, Assistant Superintendent; on March 21, 1994 to
the Board at executive session and to individual Board members
immediately preceding the executive session; on April 8, 1994 to
Joyce Inzirello, then president of the high school
parent-teacher-student association, and in January 1995 to Frank
Smith, principal. Def. 56.1 Stmt., ¶ 40. The Notice of Claim also
alleged violations of Montefusco's civil rights, as well as
intentional infliction of emotional distress, malicious
prosecution and prima facie tort. Id., ¶ 42.
The Montefuscos subsequently commenced this action on April 29,
1996. An amended complaint was filed on September 15, 1997. The
amended complaint contains seven claims. Count I asserts that the
photographs are constitutionally protected speech under the First
Amendment, that the actions of the defendants deprived plaintiff
of his rights thereunder. Count II alleges that the defendants
violated one or more of plaintiff's constitutional rights,
including free speech and expression, right of privacy, right to
liberty, and freedom from deprivation of property without due
process. Count III asserts a claim of intentional infliction of
emotional distress against Nassau County, Detective Macauley,
Lieutenant Fal, and Mostow. Count IV alleges a claim of prima
facie tort against all defendants. Count V asserts a defamation
claim against ...