United States District Court, Southern District of New York
April 23, 1999
SAM FANELLI, PLAINTIFF,
TOWN OF HARRISON, THE TOWN OF HARRISON POLICE DEPARTMENT, CAPTAIN ANTHONY MARRACCINI, INDIVIDUALLY, POLICE OFFICER CHRIS VAN HECKE, INDIVIDUALLY, AND POLICE OFFICER ROBERT SCHANIL, INDIVIDUALLY, DEFENDANTS.
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
Procedure 12(b)(6) is Granted.
Plaintiff has sued both the Town of Harrison and its Police
Department. Municipalities, like Harrison, are included among
those persons to whom § 1983 applies. Monell v. Department of
Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). However, pursuant to Federal Rule of Civil Procedure 17,
New York law governs the capacity of a police department to sue
or be sued. Fed. R.Civ.P. 17(b); see also Orraca v. City of New
York, 897 F. Supp. 148, 152 (S.D.N.Y. 1995). Under New York law,
departments such as the Town of Harrison Police Department, which
are merely administrative arms of a municipality, do not have a
legal identity separate and apart from the municipality and
cannot sue or be sued. See Baker v. Willett, 42 F. Supp.2d 192,
197 (N.D.N.Y. 1999); East Coast Novelty Co. v. City of New
York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992); Loria v. Town of
Irondequoit, 775 F. Supp. 599 (W.D.N.Y. 1990). The Town of
Harrison is named as a Defendant in this action, and the Town is
the real party in interest. See, e.g., Manning v. County of
Westchester, No. 93-CIV-3366, 1995 WL 12579 at *2 (S.D.N Y
Jan.5, 1995) (Westchester County Police Department removed as
named defendant where the County of Westchester, as the real
party in interest, was already a named defendant); Wilson v.
City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992) (claim
dismissed against New York City Police Department because the
City of New York was the proper party in interest). Therefore,
the claims against the Harrison Police Department are dismissed
with prejudice and without leave to replead.
2. The Motion by Defendant Schanil to Dismiss the Complaint
Pursuant to Federal Rule of Civil Procedure 12(b)(6) is
The only place where Officer Schanil's name appears in the
complaint is in the caption. Not a single factual allegation is
lodged against him. Although confronted with this fact in
defendants' motion papers, plaintiff's responsive brief never
directly addresses this argument, which is the basis of Schanil's
motion to dismiss. Plaintiff does assert that the reasonableness
of a police officer's actions is normally a matter for a jury to
assess, but it is axiomatic that the complaint must contain
allegations that the police officer has done something wrong.
Here, Schanil is not alleged to have done anything at all except
drive up to the scene of an arrest and watch as his partner
searched a man at the direction of the Chief of Police. That does
not state a claim for relief.
If plaintiff had alleged facts tending to show that Schanil had
observed the altercation between Marraccini and Fanelli, and was
thus in a position to know that Marraccini had no basis to arrest
Fanelli, he might be able to make out a claim that Schanil
violated the duty of every police officer to intervene when he
sees another's civil rights being violated. See Anderson v.
Branen, 17 F.3d 552, 557 (2d Cir. 1994); O'Neill v.
Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988). However, the
complaint quite clearly alleges that Schanil and his partner
drove up after the altercation, in response to Marraccini's
radio call. (Cplt. ¶¶ 16-18.) All Schanil observed was his partner
searching Fanelli at the instruction of a superior officer. There
is no way that Fanelli can make out a claim against Schanil for
failure to intervene on those facts. The proposed amended
complaint does nothing to cure this particular deficiency. (See
Proposed Amended Cplt. ¶¶ 21-23.) Therefore, the claims against
Schanil are dismissed with prejudice and without leave to
3. The Motion by the Town of Harrison to Dismiss the Complaint
Pursuant to Federal Rule of Civil Procedure 12(b)(6) is
Granted, and the Motion to Amend the Complaint to Cure this
Particular Defect is Denied.
The Town has made a so-called Monell motion on the ground
that the complaint does not allege facts from which a trier of
fact could conclude that any violation of Fanelli's
constitutional rights resulted from a municipal custom or policy.
For the Town to be held liable under § 1983, the plaintiff must
demonstrate that the defendants' unconstitutional actions were
taken pursuant to an official municipal policy, custom or
practice. Monell, 436 U.S. at 690-91, 98 S.Ct. 2018; Vann v.
City of New York, 72 F.3d 1040 (2d Cir. 1995). It is
well-settled that municipal liability may not be founded solely
on a municipality's employment of a tortfeasor. Monell, 436
U.S. at 691, 98 S.Ct. 2018; Dwares v. City of New York,
985 F.2d 94, 100 (2d Cir. 1993). Rather, "there must be proof of  a
custom or policy [of the municipality] in order to permit
recovery on claims against individual municipal employees in
their official capacities, since such claims are tantamount to
claims against the municipality itself." Dwares, 985 F.2d at
100. Therefore, I must search the complaint — and the proposed
amended complaint as well — to see if either pleading contains
the sort of explicit factual allegations required under Dwares
to hold a municipality liable in circumstances like these. I
conclude that neither complaint meets the necessary pleading
The initial complaint is woefully deficient. It does not allege
the existence of any municipal custom or policy. The proposed
amended complaint is, frankly, not much better, although it adds
three paragraphs in the hope of curing the defects of its
predecessor. The new allegations, however, fall short.
The proposed amended complaint first alleges that the removal
of the campaign literature "apparently represented a pattern of
behavior condoned by the Town in that in previous elections
literature supporting the Democratic Party was systematically
removed from vehicles. In the incident which forms the basis for
this complaint, the Town continued its pattern and policy by
allowing Marraccini, a captain of police and a representative of
the Town, to appear on television to air bold allegations
regarding the Plaintiff." (Proposed Amended Cplt. ¶ 34.) That
does not constitute an explicit factual allegation of a municipal
custom or policy. Plaintiff does not contend that the Town itself
had some official practice of removing Democratic campaign
literature from cars or that Town officials personally removed
it. He alleges that election literature disappeared during
contentious campaigns — as likely happens in virtually every
municipality in the United States — and that no one in the Town
did anything about it. Even if this is true, it is not sufficient
to impose Monell liability on the Town of Harrison.
Similarly, there is nothing about plaintiff's second allegation
— that Marraccini was "allowed" to appear on television (Proposed
Amended Cplt. ¶ 34) — that qualifies as a Town policy or custom.
His appearance was a single incident, related to the filing of
his lawsuit against Fanelli, which itself was a single incident.
The complaint is devoid of any suggestion that police officers in
Harrison routinely file actions against arrestees and then
publicize them on the local cable channel pursuant to some
municipal policy. Single incidents like this one can rarely, if
ever, support municipal liability under Monell. See Dwares, 985
F.2d at 100 ("A single incident alleged in a complaint,
especially if it involved only actors below the policy-making
level, generally will not suffice to raise an inference of the
existence of a custom or policy.").
Plaintiff suggests that Marraccini's position as Chief of
Police makes him a policy-maker, so as to take his behavior out
of the Dwares single-incident rule. But the pleading contains
no allegation of fact from which one could conclude that the
Police Chief of Harrison has the authority to make Town policy
concerning television appearances by municipal employees. One
would not automatically assume that the Police Chief had such
authority. And the Town of Harrison might face real First
Amendment liability if it adopted a policy of forbidding its
employees to appear on television.
Plaintiff alleges that "[t]he Town and the Police Department
had knowledge of Marraccini's illegal and improper behavior and
have done nothing to restrict him. Said knowledge and lack of
control over Marraccini constitutes a policy, pattern and
procedure condoned by the Town and the Police Department"
(Proposed Amended Cplt. ¶ 44). That allegation also does not give
rise to Monell liability. Not taking action against a Police
Captain who behaved improperly in a particular instance does not
constitute a custom or policy. Dwares at 100; see also Turpin
v. Mailet, 619 F.2d 196, 202 (2d Cir. 1980) ("[A] policy cannot
be inferred from the failure of those in charge to discipline a
single police officer for a single incident of illegality.").
Absent any allegation of supervisory indifference, such as
acquiescence in a prior pattern of conduct, a policy cannot
ordinarily be inferred from a single incident of illegality such
as a single arrest without probable cause or with use of
excessive force. Turpin, 619 at 202. The complaint is devoid of
any contention that Marraccini regularly behaved in this boorish
way and that the Town regularly overlooked it.
Finally, plaintiff's boilerplate allegation that the Town
failed to train and supervise its police officers (Proposed
Amended Cplt. ¶ 43) is insufficient to sustain the action. As the
Second Circuit ruled in Dwares:
The mere assertion . . . that a municipality has  a
custom or policy [of
failing to train] is insufficient in the absence of
allegations of fact tending to support, at least
circumstantially, such an inference. Similarly, the
simple recitation that there was a failure to train
municipal employees does not suffice to allege that a
municipal custom or policy caused the plaintiff's
Dwares at 100 (citing Batista v. Rodriguez, 702 F.2d 393, 397
(2d Cir. 1983)). Defendant correctly notes that the allegations
in the Proposed Amended Complaint are virtually identical to
those rejected as insufficient in Dwares. Plaintiffs have
pointed to nothing that would allow me to ignore so persuasive a
Second Circuit precedent.
Accordingly, the motion for leave to amend the complaint by
adding paragraphs 34, 43 and 44 is denied, and the motion to
dismiss the complaint against the Town of Harrison is granted.
4. Marraccini's Motion for Substitution of Counsel is Denied.
Finally, Marraccini has cross-moved to disqualify Friedman &
Harfenist as his counsel and to substitute Lovett & Gould, as
well as for an order pursuant to Public Officers Law § 18
compelling Harrison to pay Lovett's fees. The motion is denied.
First, Public Officers Law § 18 provides for separate counsel
for municipal employees in but one circumstance:
. . whenever the chief legal officer of the public
entity or other counsel designated by the public
entity determines that a conflict of interest exists,
or whenever a court, upon appropriate motion . . .,
determines that a conflict of interest exists and
that the employee is entitled to be represented by
counsel of his choice. . . .
Public Officers Law § 18(3)(a).
Here, there is no possibility of making any such finding. The
complaint has been dismissed against Harrison and the Police
Department. Marraccini and his subordinate, Police Officer Van
Hecke, are the only defendants left, and Marraccini has not
pointed to any actual or potential conflict between himself and
Officer Van Hecke that would require them to be represented by
separate counsel. Therefore, the provision of the Public Officers
Law on which Marraccini relies is not applicable by its terms.
Public Officers Law § 18(3)(a) further provides that "the chief
legal officer or other counsel designated by the public entity
may require, as a condition to payment of the fees and expenses
of . . . representation, that appropriate groups of . . .
employees be represented by the same counsel." Van Hecke and
Marraccini are an "appropriate group of . . . employees" for
joint representation, as the claims against each arise from the
same incident and involve the same defenses. Indeed, Harrison has
a strong interest, both legal and financial, in presenting a
uniform defense for Marraccini and Van Hecke in this action.
Frankly, there could not be a much more compelling scenario for
representation by the same counsel.
Moreover, even if Marraccini were entitled under Public
Officers Law § 18 to have counsel separate from Van Hecke's,
Marraccini could not invoke that law to demand that the Town of
Harrison retain Lovett & Gould on his behalf. Harrison has
enacted § 18 only to the limited extent of agreeing to provide a
defense and indemnity against punitive damages for employees who
were acting within the scope of their authority. However, it has
reserved to itself the right to select counsel "in its sole
discretion," and it adopted the ordinance "pursuant to and in
conformity with Section 18 of the Public Officers Law, except to
the extent explicitly stated." (Ex. B to Aff. of Steven J.
Harfenist.) Since there is no other reservation of rights in the
statute except reservation of the right to select counsel, there
is nothing else to which the words "except to the extent
indicated" could possibly refer.
Public Officers Law § 18 imposes no obligation on municipalities,
but is wholly voluntary. Harrison was free to enact parts of the
section and to modify the rights it provides to its employees.
See Coker v. Schenectady, 200 A.D.2d 250, 613 N.Y.S.2d 746 (3d
Dept. 1994). Thus, Harrison was free to retain the right to
select counsel for its employees, and it chose to adopt that
Harrison asserts that there is nothing about Marraccini's
defense that permits him to require the Town to pay for defense
counsel of his own choosing. I agree. Therefore, if Captain
Marraccini wishes Mr. Lovett to represent him on his
counterclaims, he will simply have to pay for the privilege.*fn1
This constitutes the decision and order of the Court. The
parties are directed to comply with the attached Civil Case
Management Order. Please note that, pursuant to this Court's
Standing Order, all discovery disputes are to be brought to the
assigned Magistrate Judge.