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LEHMAN v. KORNBLAU

March 8, 2001

MARTIN A. LEHMAN, PLAINTIFF,
v.
BARBARA KORNBLAU, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS AN ASSISTANT DISTRICT ATTORNEY OF NASSAU COUNTY, DENNIS E. DILLON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF NASSAU COUNTY, FRANCIS D. QUIGLEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY IN THE NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE, ROBERT L. EMMONS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY IN THE NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE, RODOLFO BARRIO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A NASSAU COUNTY POLICE OFFICER, JOSEPH MOLINELLI, MARY FLYNN, COUNTY OF NASSAU, AND UNITED STATES POSTAL SERVICE, DEFENDANTS.



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.

I. BACKGROUND

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 usual work.

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 Postal Service.

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. ยง 1983, 42 U.S.C. ...

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