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MONTEFUSCO v. NASSAU COUNTY

March 11, 1999

JOHN MONTEFUSCO AND YOLANDA MONTEFUSCO, PLAINTIFFS,
v.
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.

    MEMORANDUM AND ORDER

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.

BACKGROUND

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 fictitious 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 with. Id.

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 ...


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