The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER
I have before me the following motions for disposition:
1. A motion by defendants the Town of Harrison, the
Town of Harrison Police Department, and Police
Officer Robert Schanil to dismiss the complaint for
failure to state a claim against each of them.
2. A cross motion by plaintiff for leave to amend
the complaint to cure certain of the defects
identified by defendants in their motion to dismiss.
3. A motion by defendant Anthony Marraccini for
leave to retain the law firm of Lovett & Gould as his
counsel, and for an order directing the Town of
Harrison to pay the fees incurred by his counsel, in
accordance with Public Officers Law § 18.
Some background is in order.
On October 30, 1997, plaintiff's son and a friend were
leafletting parked cars with flyers in support of the Democratic
legislative candidates for the Westchester County Legislature.
Defendant Anthony Marraccini, Harrison's Chief of Police and the
brother of a Republican candidate for the County Legislature,
together with two other persons (not named as defendants in this
action), began following the boys and removing the offending
campaign literature from the cars. Marraccini was off duty at the
time and was not in an official Town vehicle, but rather in his
When young Fanelli realized that he was being followed, he
called his father. Plaintiff drove to the scene, sized up what
was going on, pulled his car up next to the Lincoln, and asked
Marraccini and the others why they were removing the leaflets.
That much of the story is undisputed. From there accounts
diverge. As I must accept plaintiff Fanelli's account on this
motion to dismiss, see Melendez v. International Serv. Systems,
Inc., No. 97-CIV-8051, 1999 WL 187071 at *1 (S.D.N.Y. April 6,
1999) ("On a motion to dismiss under Rule 12(b)(6), the court
must accept as true the factual allegations in the complaint, and
draw all reasonable inferences in favor of the plaintiff."), let
me continue to describe things as he pleads them.
Without warning, Marraccini emerged from his Lincoln. He jumped
through the window of plaintiff's car, grabbed Fanelli's cell
phone and attacked the plaintiff. When Fanelli then inched his
vehicle forward, Marraccini pulled plaintiff from his car,
arrested and Mirandized him. Marraccini also called for back-up,
using a hand-held police radio issued to him by the Police
Department. Two cars responded. Marraccini ordered defendant Van
Hecke, a Harrison police officer who responded to his call, to
search Fanelli. Van Hecke did as ordered. Defendant Schanil, his
partner, observed the situation. Neither Van Hecke nor Schanil is
alleged to have been at the scene when the arrest occurred, or to
have seen any of the activity described in the preceding
paragraphs. After the search, Marraccini ordered plaintiff not to
tell anyone what had happened to him, or
he (Marraccini) would have the District Attorney bring Fanelli up
on harassment charges. Fanelli was told to leave the scene, which
The following day, Fanelli filed a civilian complaint against
Marraccini and the subordinate officers. An incensed Marraccini
then contacted the Gannett newspaper. He asserted that Fanelli's
allegations against him were false and politically motivated. Not
content with this, Marraccini also brought a lawsuit, ostensibly
pursuant to 42 U.S.C. § 1983, against Fanelli and two of his
political allies, Patrick Vetere and Bruno Strati. The complaint
asserted that the defendants had violated Marraccini's civil
rights by conspiring to create the automobile/arrest incident and
then to exploit it for political purposes. In that action,
Marraccini was represented by the White Plains law firm of Lovett
& Gould, who are well known in these parts for the extremely
creative uses to which they put § 1983. Marraccini and his
attorney also appeared on a local cable television channel and
repeated their allegations against Fanelli and his co-defendants.
Marraccini's action was dismissed by this Court on January 8,
1999, because he failed to allege conduct that was attributable
to a person acting under color of state law, as is required to
maintain a § 1983 claim. See Transcript of January 8, 1999
Hearing, 97 Civ. 8390. When I dismissed Marraccini's case, I
thought that would be the end of it — in this court, at least.
Unfortunately, Fanelli had already commenced his own federal
action, alleging that his constitutional rights had been
violated based on the above-recited facts. And so it continues. .
Presently, the Town, its Police Department and one of the
individual defendants, Police Officer Schanil, have moved for
dismissal of Fanelli's complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). And Marraccini, whose defense has been
undertaken by the Town's chosen counsel, Friedman & Harfenist,
has moved to have Lovett & Gould represent him — at Town expense.
The motions are disposed of as follows:
1. The Motion by the Town of Harrison Police Department to
Dismiss the Complaint Pursuant to Federal Rule of Civil