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April 23, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


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 own Lincoln.

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 he did.

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

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