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March 27, 2001


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


Plaintiff, a corrections officer (CO) with the Westchester County Department of Correction (DOC), brings this action under 42 U.S.C. § 1983, for malicious prosecution and false arrest in violation of his rights under the Fourth Amendment to the United States Constitution.*fn1 Defendants move for summary judgment, claiming probable cause as a defense to plaintiffs claims. Plaintiff also moves for leave to serve and file an amended complaint adding additional defendants, adding certain claims, and dismissing William DeCiecius as a defendant.

For the following reasons, defendants' motion for summary judgment is granted with respect to the malicious prosecution claim, and denied with respect to the false arrest claim. Plaintiff's motion for leave to amend the complaint is denied, except to the extent of adding Louis D'Aliso as a party defendant.


Under Section 207-c of the New York State General Municipal Law, corrections officers injured in the line of duty are entitled to certain medical and salary continuation benefits, including, inter alia, continuation of their salary while recovering from job-related injuries. These "job injury benefits" are not subject to federal, state and local income taxes. Section 207-c and certain provisions of the New York State Workers' Compensation Law are combined in an "Appendix B" of an collective bargaining agreement between the DOC and the Correction Officers Benevolent Association ("COBA"), the organization that represents all COs employed by the DOC. Though the contract has expired, the terms of the agreement remain in effect pursuant to New York law. Under Appendix B, COs claiming a job injury are entitled to immediate compensation pending a hearing to determine whether the CO was, in fact, injured in the line of duty.

In response to reports of abuse of these provisions by COs who were falsely claiming job injury benefits, Commissioner of Corrections Rocco Pozzi proposed that the County undertake limited surveillance of some of its COs to determine whether the County could identify any illegitimate claims. Pozzi asked the DOC's Attendance Management Unit ("AMU") for a list of eighteen to twenty individuals receiving 207-c benefits whom the DOC suspected may not have been injured or who may have been exaggerating his or her injury. Plaintiff was included on this list because he had been out due to a purported job injury to his thumb for more than one year, and the DOC had heard rumors that he was nevertheless operating a landscaping business while on job injury. County Executive Andrew Spano authorized that the surveillance be conducted by private investigation firms (rather than by DOC) in order to keep the investigation confidential.

Surveillance of plaintiff soon revealed that Caldarola may not have been living at the address he listed as his New York State residence. Section 30 of the Public Officers Law states that a CO may not lawfully receive injury benefits under 207-c of the General Municipal Law unless he remains a New York resident. Copstat Security Inc. ("Copstat"), one of the investigation firms hired by the County, prepared an April 15, 1999 report detailing the results of their investigation and surveillance of Caldarola.

Copstat reported that the address it had initially received for Caldarola, 30 Jefferson Avenue, White Plains, NY, was at one time the residence of Caldarola's parents. According to neighbors interviewed by the Copstat investigator, they had recently moved. One neighbor who would not give her name thought that the Caldarolas had moved to Florida, and a Hispanic family had purchased the home. Another neighbor, Mr. Shem Guilbory of 22 Jefferson Avenue, confirmed that the Caldarolas had moved out, and said that the house had been sold to an "Hispanic family" whom he did not know. Guilbory refered the investigator to another neighbor, Mr. Valente of 15 Jefferson Avenue, whom Guilbory identified as a "friend" of Mr. Caldarola Sr.

On March 22, the investigator checked postal records at the White Plains Post Office on 100 Fisher Avenue, which revealed that Rocco Caldarola had not received mail at the 30 Jefferson Avenue address for over one year, that Mrs. Stella Caldarola had her mail forwarded to PO Box 5251 Orchard Beach, Florida 32175, and that there was no forwarding address for either Caldarola Senior or Junior.

When the investigator returned to Jefferson Avenue, he spoke with an occupant of 30 Jefferson Avenue, who refused to give her name, but confirmed that her husband owned the home, and that they had purchased the house from the Caldarolas in May 1998.

A DMV records check revealed a second address at 197 Pinewood Road in Hartsdale, NY. On April 7, the investigator visited the Hartsdale Branch of the U.S. Post Office.*fn2 The investigator's stated purpose was "to obtain the name of residents at 197 Pine Wood Road, Hartsdale, NY." The regular mail carrier for that address was out, and the relief carrier did not know the names of the residents at the Pinewood Road address.

On that same day, the investigator went to the vicinity of 197 Pine Wood Road. He spoke with a man who was in the driveway of the home next door, 195 Pine Wood Road, who identified himself as Mr. Dorsback. Dorsback stated that he had lived at 195 Pine Wood for approximately 35 years, and that he was the head of the block association. When asked if he knew Rocco Caldarola, he stated that he had never heard of him and that no one by that name lived in the area. He told the investigator that a Figura family occupied 197 Pine Wood and had done so for approximately 13 years. No one by the name of Caldarola ever lived there. When the investigator explained that he was trying to locate a correction officer by that last name, Dorsback stated that Figura's daughter had married a correction officer a number of years ago. Dorsback was shown a photo of Caldarola, and said he was "about" one hundred percent sure it was the man who married the Figura daughter.

Plaintiff does not dispute that he is the owner of a home located at 8 Paradise Court in New Fairfield, CT, and the deed for the house, mortgage documents, and public health code documents obtained from public records confirm that he owns that property. Plaintiff claims, however, that while his estranged wife and children were living at that address during the relevant period, he was not using the Connecticut home as his primary residence.

As part of their decision to arrest Caldarola, defendants relied on a clause in his mortgage agreement, which states:

Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control.

(Mikalve Aff. at Ex. G.) Defendants did not contact the mortgage lender to ascertain whether plaintiff had obtained a written waiver from the principal residence requirement.

Between March 1, 1999 and April 13, 1999 Copstat investigators observed Caldarola leaving 8 Paradise Court between 8 AM and 8:30 AM on three different occasions. On March 1, a man fitting Caldarola's description left the property in a white minivan with a number of children passengers.*fn3 He drove to a gas station, where he purchased coffee and a newspaper, and then drove to two different schools to drop off the children in the car. Due to traffic, the investigator did not witness the van's return to Paradise Court. On March 8, the same subject drove the same minivan to the two schools, and stopped at the same gas station on his way back to Paradise Court. Almost one month later, on April 6, the investigator again observed Caldarola drive from Paradise Court, stop at the deli, drop off children at the two schools, and return to Paradise Court. On this third occasion a neighbor waved to plaintiff and indicated towards the investigator's car.

Plaintiff contends the Copstat report does not contradict the fact that at all times, he was a resident of New York State. He claims that he was registered to vote in New York, that his car was registered in New York, that his W-2s were sent to his New York "residence," and that he had a New York driver's license.*fn4 He also points to his local phone bills, copies of which show billing to a Rocco Caldarola at a third New York address, 1 Rose Lane in Brewster, NY, from 1996 through 2000, and one bill to a Rocco Caldarola at 197 Pinewood for October 19, 1999 through November 18, 1999.

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