The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This lawsuit arises out of a claim by Martin A. Lehman (the
"plaintiff," or "the doctor"), an orthopedic surgeon in Nassau
County, that the defendants, Barbara Kornblau ("Kornblau"),
Dennis Dillon ("Dillon"), Francis D. Quigley ("Quigley"), Robert
L. Emmons ("Emmons") Rodolfo Barrio ("Barrio"), J. Algieri
("Algieri"), the County of Nassau ("County") (collectively, the
"County defendants"), Mary Flynn ("Flynn"), John Doe ("Doe"), the
United States Postal Service ("Postal Service") (collectively,
the "Postal Service defendants"), George Roberts ("Roberts"),
Scott Jaffer ("Jaffer"), the Atlantic Mutual Insurance Company
("Atlantic") (collectively, the "Atlantic defendants"), Phillip
T. Blessinger ("Blessinger"), the National Insurance Crime Bureau
("NICB") (collectively, the "NICB defendants"), Daphne J. Stasca
("Stasca"), Sunnydale Farms Company ("Sunnydale") (collectively,
the "Sunnydale defendants"), Zurich American Insurance Company
("Zurich"), CIGNA Insurance Company ("CIGNA"), Joseph Molinelli
("Molinelli"), and Linda Farrell ("Farrell") conspired to
maliciously prosecute him for insurance fraud. Presently before
the Court are motions to dismiss the complaint by the County
defendants, the Postal Service defendants, the Atlantic
defendants, the Sunnydale defendants, and Zurich.
The following facts are taken from the complaint. In December
1995, defendant Kornblau, an Assistant District Attorney
("A.D.A.") in the Nassau County District Attorney's Office
("D.A.'s Office") held a meeting where a plan to entrap and
maliciously prosecute the plaintiff was hatched. The meeting was
held under the supervision of Dillon, the Nassau County District
Attorney, A.D.A. Quigley, and A.D.A. Emmons, all of whom were
employed by the County. Other people who attended the meeting
included: Barrio, who is a detective in the Nassau County Police
Department, Molinelli, who the plaintiff contends was a convicted
felon and confidential informant, Jaffer, who is a Worker's
Compensation Coordinator at Atlantic, Stasca, who is an officer
at Sunnydale, and an unnamed representative of the NICB. The
plaintiff alleges that at this meeting, Molinelli and Flynn
agreed to pretend to be patients who had suffered physical
injuries while at work.
On December 22, 1995, Molinelli saw the doctor and told him
that he had suffered injuries on the job at Sunnydale. Molinelli
complained of pain in his back, neck, and right knee. The doctor
performed a physical examination, took x-rays, gave Molinelli a
muscle relaxant, and advised Molinelli to start physical therapy.
Molinelli returned to the doctor's office on several occasions.
He told the doctor that he was still in pain and asked the
plaintiff for disability notes.
On April 26, 1996, Molinelli returned to the plaintiff's office
with Farrell, who is a medical case worker for worker's
compensation claims at Atlantic. The doctor told Molinelli and
Farrell that Molinelli could return to light duty. Farrell
responded that Molinelli's job did not entail any light duty.
The plaintiff alleges that Flynn participated in the conspiracy
by claiming that she had been hit by a bus on March 14, 1996, and
by complaining to the doctor about injuries to her back and left
hip. The plaintiff alleges that Postal Service supervisor John
Doe approved Flynn's conduct.
On May 7, 1996, Barrio visited the doctor and told the doctor
that his name was Joseph Batista, he worked at Sunnydale, and he
had injured his back and neck at work the previous day. On
September 11, 1996, Barrio returned to the doctor's office with
Farrell. The doctor told Barrio that he should try to return to
light work, but Farrell told the doctor that no such work was
available. The doctor told Barrio that he should return to his
Although the complaint is vague, the plaintiff seems to allege
that Barrio committed perjury when he applied for an arrest
warrant on May 16, 1997. The plaintiff also appears to claim that
the D.A.'s Office suborned Barrio's alleged perjury by assisting
him in preparing his warrant application.
The plaintiff was arrested on May 21, 1997. That same day,
Dillon allegedly told Newsday, "`Lehman, 64, a Wantagh
orthopedist, is shown meeting with an undercover operative who
tells Lehman she was working despite being injured in an
accident. You are not working as far as insurance is concerned,
Lehman is heard telling the woman without performing a physical
examination. Lehman gave the woman a disability form, Dillon
said'" (complaint, ¶ 66). The plaintiff contends that this
statement was untrue, and that the D.A.'s Office was in
possession of tapes that support his contention.
The doctor claims that Algieri and Cats participated in the
conspiracy by supervising and approving Barrio's actions and by
monitoring and recording video and audio tapes. The plaintiff
asserts that from the twenty-three videotapes that had been made
in connection with the D.A.'s investigation, five did not contain
any recorded images.
The plaintiff also contends that Blessinger, who is a "Special
Investigator" with the NICB, also monitored the taping. The
plaintiff further alleges that Blessinger telephoned the
plaintiff's office impersonating Molinelli and accompanied
Molinelli to the plaintiff's office on several occasions.
The plaintiff claims that the following defendants
"participated in the conspiracy to set-up, entrap and frame the
Plaintiff to deprive him of his civil rights": Roberts, Jaffer,
Atlantic, CIGNA, Zurich, NICB, Sunnydale, the County, and the
The plaintiff also alleges that Barrio, Molinelli, and Flynn
committed perjury when they testified before the Grand Jury.
According to the plaintiff, Barrio told the Grand Jury that he
was out on disability from May 1996 through March 1997, and he
never saw a doctor, other than the plaintiff, during that time
(see complaint ¶ 56). The plaintiff contends that this
testimony was untruthful, because Barrio used an alias to see
three other doctors during this period (see complaint ¶ 57).
The plaintiff asserts that, in the Grand Jury, Molinelli
testified that he did not complain of neck pain when he first
visited the doctor he told the doctor. The plaintiff claims that
this testimony was untruthful, because at the criminal trial,
Molinelli told the jury that he had complained of neck pain
during his first visit to the doctor's office.
The plaintiff claims that Flynn told the Grand Jury that she
did not complain of pain when the doctor moved her leg and hip in
a certain manner. According to the plaintiff, this testimony was
false, because audio tape-recording of Flynn's first visit to the
plaintiff's office indicates that she told the doctor that her
hip did hurt when he moved her leg in a particular fashion.
The plaintiff states that on March 3, 1999, after an eight-week
trial, a jury acquitted him of all charges. The plaintiff
contends that during the trial, the "operatives" said that they
never complained of pain, discomfort, or disability during their
visits to his office.
The plaintiff asserts seven causes of action. He contends:
FIRST CAUSE OF ACTION. . . .
71. Plaintiff was subject to a conspiracy to
interfere with his civil rights in violation of
42 U.S.C. § 1983 and 42 U.S.C. § 1985 and
28 U.S.C. § 1343.
SECOND CAUSE OF ACTION. . . .
73. Plaintiff was subject to unwarranted search and
seizure in violation of 42 U.S.C. § 1983,
42 U.S.C. § 1985 and 28 U.S.C. § 1343 and the 4th Amendment of
the Constitution of the United States of America.
THIRD CAUSE OF ACTION. . . .
75. Plaintiff was subjected to malicious intention to
find probable cause to indict, legal advise to commit
perjury in sworn affidavit and Grand jury testimony
and malicious prosecution in violation of
42 U.S.C. § 1983, 42 U.S.C. § 1985 and 28 U.S.C. § 1343.
FOURTH CAUSE OF ACTION. . . .
77. Plaintiff was subjected under color of law [to]
perjured testimony by law enforcement officers and a
confidential informant under their control in
violation of 42 U.S.C. § 1983, 42 U.S.C. § 1985 and
28 U.S.C. § 1343.
FIFTH CAUSE OF ACTION. . . .
79. Plaintiff was subject to malicious falsehood in
press conferences and releases in violation of
42 U.S.C. § 1983, 42 U.S.C. ...