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May 25, 1999


The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.


Cross-claim defendant the City of New Rochelle (the "City") and third-party defendants Patrick Carroll, Dominic Capio, Rhoda Quash, Tim Idoni, and Robert DeLeno (the "individual defendants") move for summary judgment pursuant to Fed. R.Civ.P. Rule 56 against third-party plaintiffs Gary Lucchese and John DeLeno.

The third-party plaintiffs' sole claim against the individual defendants and third cross-claim against the City is pursuant to 42 U.S.C. § 1983 for false arrest and malicious prosecution in violation of the Fourth Amendment to the United States Constitution.*fn1 The third-party plaintiffs' fourth and eighth cross-claims against the City assert a violation of the Equal Protection Clause of the Fourteenth Amendment, the sixth cross-claim asserts a violation of New York State Public Officers Law § 18, and the ninth cross-claim asserts a violation of Article 6-A of the New York State Public Officers Law. For the reasons stated below, summary judgment is granted.*fn2


At the relevant time Carroll was the Police Commissioner of the City, Capio was the lieutenant assigned to the Internal Affairs Unit, Quash was a City Counsel member, Idoni was the mayor of the City, and Robert DeLeno was a lieutenant in the New Rochelle Police Department.*fn3 The third-party complaint alleges that the individual defendants and the City directed and controlled the Police Department's "deliberately skewed criminal investigation" of the Fernandez incident and that Robert DeLeno deliberately concealed notes he made during the investigation. Additionally, they claim that the City violated their right to privacy by public disclosure of their home addresses in a press release.

While these allegations constitute the gravamen of the third-party complaint, third-party plaintiffs in opposition to the summary judgment motion have failed to adequately identify any triable issues of fact. Local Civil Rule 56.1(d) unambiguously requires, "Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by the Federal Rule of Civil Procedure 56(e)." Third-party plaintiffs' counsel has failed to include any evidentiary citations in his Rule 56.1 Statement. As a result of this omission, defendants maintain that the Statement pursuant to Local Civil Rule 56.1(d) submitted in opposition to the motion for summary judgment is deficient and must be disregarded. They are correct. See, e.g., Titan Indem. Co. v. Triborough Bridge & Tunnel Auth., Inc., 135 F.3d 831, 835 (2d Cir. 1998) (noting that "[i]t is well established that if a party fails to object or respond to the factual allegations in an opposing party's 3(g) [now 56.1] Statement, those factual assertions will be deemed true."); Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir. 1984) (affirming grant of summary judgment when plaintiffs failed to submit any statement pursuant to Local Civil Rule 3(g) and when the defendants' admitted facts established adequate nonpolitical reasons for the actions complained of).

This Court, on two prior occasions before the submission of this motion, has returned to third-party plaintiffs' counsel's law firm Rule 56.1 Statements that manifestly failed to comply with this Local Civil Rule and, on both occasions, the Court directed the firm to resubmit the statement in a form that complied with the Rule.*fn4 Compliance in this case with Local Civil Rule 56.1 would have required third-party plaintiffs and their counsel to demonstrate, through appropriate citations to the record, the disputed factual matters they believed could only be resolved at trial. Rather than heed these admonitions and comply with Rule 56.1, counsel simply, in effect, pointed to virtually the entire body of extensive discovery in this case without any evidentiary affidavits or other meaningful identification of triable facts in the record, in effect, inviting this Court to peruse a haystack looking for needles. This invitation is not only inconsistent with the plain requirements of Local Civil Rule 56.1 but, if accepted, would eviscerate summary judgment as an efficient tool for distinguishing claims that should be tried from those that need not be tried. Were this the first — not the third — time this noncompliance had occurred, the Court would, perhaps, be justified in failing to enforce, in an evenhanded fashion, its own Rules. At this point, the Court deems it improper to again refrain from applying a Rule counsel has systematically chosen to ignore.

In support of their summary judgment motion, the City has demonstrated that the Westchester County District Attorney's Office, not the City, makes the determination whether there is legally sufficient evidence to permit a case to proceed to the grand jury. The Westchester County Assistant District Attorney assigned to the Fernandez investigation was Barbara Egenhauser. During the course of Egenhauser's investigation, the City did not refuse to hand over any documents. Further, neither Idoni nor Quash had any role in the investigation and presentment of the Lucchese and DeLeno matters to the grand jury, nor were they called to the grand jury. Police Commissioner Carroll had no role in the investigation and did not attempt to influence Egenhauser. Further, Robert DeLeno and Capio did not attempt to influence Egenhauser. Egenhauser believed that Robert DeLeno had made an oversight rather than committed perjury when he stated earlier that he had no notes from the investigation. Defense attorneys in the state criminal court proceeding acknowledged on the record that they too believed Robert DeLeno's note incident was an oversight. Egenhauser never received any information or evidence nor an allegation that Carroll, Idoni, Quash, Capio or Robert DeLeno were motivated by actual malice towards Lucchese and DeLeno.

Furthermore, after the indictments, DeLeno's defense attorney moved for omnibus relief before the state court which conducted an in camera review of the grand jury minutes and determined that the evidence on which the indictment was predicated was legally sufficient and established every element of the offenses charged. People v. Lucchese and DeLeno, Indictment No. 95-1147-01, Jan. 10, 1996. The third-party plaintiffs have made no showing that that determination is not entitled to full faith and credit here. See 28 U.S.C. § 1738; Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). Thus, the undisputed record in this case demonstrates, as discussed below, that the indictment and prosecution of Lucchese and DeLeno were not infected with any constitutional infirmities.


I Malicious Prosecution and False Arrest

Even if third-party plaintiffs Rule 56.1 Statement were not deficient, the record herein demonstrates that their claims have no merit. The elements of malicious prosecution are:*fn5 (1) the defendant commenced or continued a criminal proceeding against plaintiff, (2) the proceeding terminated in plaintiff's favor, (3) there was no probable cause for the criminal proceeding, and (4) the defendant initiated the criminal proceeding out of malice. Collom v. Incorporated Village of Freeport, 691 F. Supp. 637, 640 (E.D.N.Y. 1988). In New York, the fact that the grand jury returned an indictment against Lucchese and DeLeno creates a presumption that their arrest and indictment were procured with probable cause. Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994) (citing Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 456, 455 N.E.2d 1248 (1983)). To rebut this presumption, the plaintiff "`must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.'" Id., (quoting Colon, 468 N.Y.S.2d at 456, 455 N.E.2d 1248). To survive a motion for summary judgment, plaintiff must present admissible facts and may not rely on bare allegations of facts, ultimate or conclusory facts, or legal conclusions. See, e.g., BellSouth Telecomm., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996). Here, the plaintiffs have adduced no admissible evidence of fraud, perjury, suppression of evidence or any other bad faith conduct which would permit an inference that the indictment was improperly obtained. Thus, the fact that an indictment was returned against Lucchese and DeLeno, with no sufficient showing of bad faith, indicates that there was probable cause for the criminal proceeding and that the malicious prosecution claim fails. Accordingly, the individual defendants' motion for summary judgment on the malicious prosecution claim is granted.

In order to make out a claim for false arrest, a plaintiff must demonstrate: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged. Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). A finding of probable cause, however, will defeat a claim for false arrest. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985) ("It is abundantly clear that a finding of probable cause will defeat state tort claims for false arrest, false imprisonment and malicious prosecution."). "If there existed probable cause at the time of the arrest, the arrest is `privileged,' and the individual has no constitutional or statutory claim against the officer who made the arrest." Decker v. Campus, 981 F. Supp. 851, 856 (S.D.N.Y. ...

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