United States District Court, Southern District of New York
March 27, 2001
ROCCO CALDAROLA PLAINTIFF,
WILLIAM DECIUCEIS, INDIVIDUALLY, CHRISTOPHER CALABRESE, INDIVIDUALLY, AND THE COUNTY OF WESTCHESTER DEFENDANTS.
The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER DENYING IN PART AND GRANTING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING IN PART
AND GRANTING IN PART PLAINTIFF'S MOTION TO AMEND THE COMPLAINT
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
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
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.
The investigator later spoke by phone with Mr. Valente, who
told the investigator that Caldarola Sr. had sold his home about
"three months ago and went to live with
his son in Connecticut," but that he did not know where because
he had not heard from Caldarola since he had moved. Finally, the
investigator spoke with another unidentified neighbor at 37
Jefferson Avenue, who said the house was sold about five months
earlier, and that the Caldarolas moved upstate, though he had no
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
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
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
unreasonably withheld, or unless extenuating
circumstances exist which are beyond Borrower's
(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
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.
Furthermore, Caldarola claims he notified the DOC on May 29,
1998, that he would remain with his family at their residence in
Connecticut "as much as possible" due to an incident on or about
that date where he was allegedly threatened with a gun by a DOC
this, Caldarola claims that when he called in his absence from
work (due to his injury), he provided his family's Connecticut
telephone number as an "alternative" number where he could be
reached. In fact, copies of daily "call-in" sheets provided by
plaintiff show that Caldarola did begin providing a "203"
(Connecticut) area code telephone number as of June 1, 1998.
Between June 1, 1998, and July 12, 1999 (the date he was
arrested), these sheets show that Caldarola called in and either
provided only the "203" number, or no telephone number, on all
but a limited number of occasions.*fn5 Caldarola argues that
Calabrese had these records in his possession prior to his
decision to arrest.
In late June 1999, the County Attorney transferred the active
investigation files on COs under surveillance to the Special
Investigations Unit (SIU) of the County's Department of Public
Safety ("DPS") (the County's police force). These cases were
assigned to Captain Paul Stasiatis for review to determine
whether files revealed evidence that criminal acts had been
committed. Plaintiff claims that D'Aliso instructed Stasaitis to
review the files quickly. Lieutenant Christopher Calabrese
assisted Stasiatis in reviewing the Caldarola file, including
the investigation of the plaintiff. Plaintiff alleges that
Calabrese was also told to investigate "as soon as possible,"
and that the investigation had to be completed by July 12, 1999.
Based on the investigation file, Calabrese concluded that
there was probable cause to arrest plaintiff. Calabrese himself
did not interview anyone in connection with the investigation of
Caldarola, nor did he review any records other than those in the
file he received from Stasiatis.
On or about July 8, 1999, the County presented the results of
a number of investigations, including that of plaintiff, to the
District Attorney's office for review. On July 9, 1999,
Assistant District Attorney Mike Hughes spoke with Calabrese.
Calabrese testified in his deposition that "Hughes expressed the
opinion that he would like more probable cause to effect a
prosecution." (Lovett Aff. at Ex. 2 at 13.) After he was asked
again in the deposition whether Hughes said he wanted "more
probable cause," Calabrese continued:
A: He wanted more probable cause for his
Q: Did he say anything about an arrest?
A: Not specifically. He was talking more along the
lines of prosecution.
He wished that we had more probable cause, because he
would need more for a prosecution.
Q: What did you understand him to be telling you?
A: Specifically that he wanted more probable cause,
you know, when it came time to prosecute the
Q: Did he tell you, in words or substance, he
needed more facts, more proof?
A: He said he wanted more evidence or facts,
whichever word he used, something to that
substance, to effect the prosecution of Mr.
Q: Did he say anything with respect to the words
A: He said he would like more probable cause.
Q: What is the difference between probable cause
and more probable cause, as you understand it?
A: As I understand it, from a police point of view
you get to a level of probable cause when, again, a
reasonable person will believe you have enough to
believe that a person has committed a crime. From a
prosecutorial point of view they would like to have
additional information and facts and probable cause
to be able to effect a prosecution and a guilty
(Lovett Aff. at Ex. 2 at 16-18.) Defendants contend that Hughes
merely requested additional documents that had been referred to
in the papers presented to him the previous day.
Calabrese stated that he reported his conversation with Hughes
to Stasaitis, and asked for more time for the investigation.
(Id. at 24.) Stasaitis testified in his deposition that "Hughes
had said that the case needed more work." (Lovett Aff. at Ex. 1
at 45-56.). According to Stasaitis, he told Commissioner D'Aliso
that "ADA Hughes has indicated that the case needed more work
before he wanted to take it to prosecution." (Id. at 49-50.)
Calabrese was also present during this conversation. Stasiatis
recalled D'Aliso asking him whether they had "enough for an
arrest," to which Calabrese replied that they did. (Id. at 52.)
D'Aliso told them to go ahead with the arrest.
On July 12, 1999, Calabrese executed a felony complaint
against Caldarola, charging him with vacating "his position as a
Correction Officer . . . under the New York State Public
Officers law, Section 30.1.d." and thereafter unlawfully
collecting his full salary from the County. Plaintiff was
arrested on July 12, 1999.*fn6 He was suspended immediately
without pay. In October 1999 the DOC scheduled an administrative
hearing to determine whether Caldarola was in compliance with
On February 10, 2000, the defendant moved to dismiss the case
on the grounds that the state would not be able to prove the
case beyond a reasonable doubt. The People did not oppose the
motion, and the case was dismissed. (Lovett Aff. at Ex. 6.)
Shortly thereafter, plaintiffs suspension was rescinded and he
was restored to his status prior to the suspension.
CONCLUSIONS OF LAW
Summary judgment is appropriate where there are no genuine
issues of material fact and the movant is entitled to judgment
as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). A genuine issue for trial exists if, based
on the record as a whole, a reasonable jury could find in favor
of the non-movant. See Liberty Lobby, 477 U.S. at 248, 106
S.Ct. 2505. In making its determination, the court must resolve
all ambiguities and draw all reasonable inferences in favor of
the non-movant. See id. at 255, 106 S.Ct. 2505. To defeat
summary judgment, the non-moving party must go beyond the
pleadings and "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). When opposing a motion for summary
judgment, it is not sufficient for the non-moving party to
present evidence that is conclusory or speculative, with no
basis in fact. See Liberty Lobby, 477 U.S. at 249-50, 106
1. False Arrest
The elements of a claim of false arrest under § 1983 are
"substantially the same" as the elements of a false arrest claim
under New York law. See Hygh v. Jacobs, 961 F.2d 359, 366 (2d
Cir. 1992). Under New York law, "a plaintiff claiming false
arrest must show, inter alia, that the defendant intentionally
confined him without his consent and without justification."
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
The existence of probable cause to arrest is a complete
defense to a false arrest claim, whether under state law or
under § 1983. See Weyant, 101 F.3d at 852. "Courts evaluating
probable cause must consider those facts available to the
officer at the time of the arrest and immediately before it."
Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996).
Probable cause exists when there are "facts and circumstances
`sufficient to warrant a prudent man in believing that the
[suspect] had committed or was committing an offense.'" Id.
(quotations omitted); see Dunaway v. New York, 442 U.S. 200,
208, n. 9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (probable cause
to arrest exists when police officers have knowledge or
reasonably trustworthy information of facts and circumstances
that are sufficient to warrant a person of reasonable caution in
the belief that the person to be arrested has committed or is
committing a crime.)
Whether probable cause existed is a question that may be
determined as a matter of law on a motion for summary judgment
if there is no dispute with regard to the pertinent events and
knowledge of the officers. Weyant, 101 F.3d at 852. Here,
defendants have the burden to establish that they had probable
cause. See Raysor v. Port Auth. of New York & New Jersey,
768 F.2d 34, 40 (2d Cir. 1985); Wu v. City of New York,
934 F. Supp. 581, 586 (1996). To meet their burden, defendants must
show, by admissible evidence, that they have a quantum of
evidence "more than rumor, suspicion, or even a strong reason to
suspect." Wu, 934 F. Supp. at 586 (quoting United States v.
Fisher, 702 F.2d 372, 375 (2d Cir. 1983)). Because arrests
cannot be based on mere suspicion, see Wagner v. County of
Cattaraugus, 866 F. Supp. 709, 714 (W.D.N.Y. 1994) (quoting
Papachristou v. City of Jacksonville, 405 U.S. 156, 159, 92
S.Ct. 839, 31 L.Ed.2d 110 (1972)), the facts relied upon by an
arresting officer must not be susceptible of an innocent or
ambiguous explanation. See Roberts v. City of New York,
753 F. Supp. 480, 483 (S.D.N.Y. 1990).
As a threshold matter, the fact that Calbrese may have relied
entirely on the private investigator's report, and did not
conduct any additional investigation, does not preclude a
finding of probable cause. Probable cause may be based wholly on
information received from a third party. See Aguilar v. Texas,
378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964)
However, when information is provided by an informant, there
must be a sufficient combination of "basis of knowledge,"
"veracity" of the informant, and "reliability" of the report,
which, under the "totality of the circumstances"
standard of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317,
76 L.Ed.2d 527 (1983), are sufficient to permit reliance on the
information as a basis for probable cause. Unfortunately, the
record contains very little evidence from which I would be able
to conclude that the private investigators hired by the County
meet the requirements under Gates. I know the basis of the
informant's knowledge, but nothing about "veracity" or
"reliability." (I do not know, for example, if the investigator
is licensed, or if he has provided reliable information in the
past). I cannot conclude as a matter of law that the Gates
factors are satisfied. Thus, I must deny the motion for summary
judgment on the false arrest claim. Accordingly, I do not reach
defendants' arguments that the information provided in the
Copstat report provided probable cause for arrest.
2. Malicious Prosecution
Plaintiffs' complaint also sets forth claims for malicious
prosecution against each of the defendants. To prevail on a
claim for malicious prosecution, plaintiffs must show: (1) the
commencement or continuation of a criminal proceeding, (2) its
termination favorable to the plaintiffs, (3) the absence of
probable cause, and (4) malice. Colon v. City of New York,
60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455, 455 N.E.2d 1248 (1983);
Martin v. City of Albany, 42 N.Y.2d 13, 16, 396 N.Y.S.2d 612,
614, 364 N.E.2d 1304 (1977). See also Russo v. New York,
672 F.2d 1014, 1018 (2d Cir. 1982). The existence of probable cause
for the initiation of criminal proceedings against Caldarola is
determined by essentially the same inquiry as probable cause for
the arrest, see Colon, 60 N.Y.2d at 82, 468 N.Y.S.2d at 455,
455 N.E.2d 1248 ("[p]robable cause consists of such facts and
circumstances as would lead a reasonably prudent person to
believe plaintiff guilty."). As I held above, there are disputed
issues of fact as to whether defendants had probable cause to
arrest based on the information provided to them by the private
However, defendant's motion for summary judgment on the
malicious prosecution claim can be granted on the grounds that
there is absolutely no evidence in the record of malice on the
part of any defendants. The malice element of a malicious
prosecution action requires a showing that the defendant
"commenced the prior criminal proceeding due to a wrong or
improper motive, something other than a desire to see the ends
of justice served." Nardelli v. Starberg, 44 N.Y.2d 500, 503,
406 N.Y.S.2d 443, 445, 377 N.E.2d 975 (1978). Another court has
explained that there must be "a showing of some deliberate act
punctuated with awareness of `conscious falsity' to establish
malice." Best v. Genung's Inc., 46 A.D.2d 550, 363 N.Y.S.2d 669,
672 (3d Dep't 1975) (citing Munoz v. City of New York,
18 N.Y.2d 6, 9, 271 N.Y.S.2d 645, 649, 218 N.E.2d 527 (1966)).
Although plaintiffs do allege (in conclusory fashion) that the
County's motivation in arresting Caldarola was to retaliate
against him for his union activities, there is not a scintilla
of evidence in the record that this was the case.
Defendants' motion to dismiss plaintiff's malicious
prosecution claim in granted.
Plaintiff seeks leave from this court to amend the complaint
to add Louis D'Aliso as a defendant, to dismiss William
DeCiuceis, to add a New York State malicious prosecution claim,
and to add what plaintiff refers to as a claim for "Liberty
deprivation" against Andrew Spano.
1. Motion to Dismiss Against DeCiucesis
The request to dismiss DeCiuceis is granted with prejudice, as
there is no evidence in the record of DeCiuceis' involvement in
the arrest. He is dismissed without prejudice.
2. Motion to Add State Malicious Prosecution Claim
In light of my holding above, granting defendants' motion to
dismiss plaintiff's malicious prosecution claim under § 1983 for
failure to present any evidence of malice, it would be futile to
add the state malicious prosecution claim. That motion is
3. Motion to Add D'Aliso as a Defendant
The request to add D'Aliso as a defendant is granted. The
request was made on October 10, 2000, ten days prior to the
deadline for naming additional parties. There is evidence in the
record that D'Aliso approved Caldarola's arrest on the basis of
the information provided to him by Calabrese and Stasiatis. If
there were no probable cause for the arrest, D'Aliso could be
liable for false arrest. See Foman v. Davis, 371 U.S. 178,
182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (holding that leave
to serve an amended complaint should be "freely granted");
Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999).
4. Motion to Add a "Liberty Deprivation" Claim Against Spano
Plaintiffs may not add a "liberty deprivation" claim against
Andrew Spano for statements he allegedly made about plaintiff at
the July 12, 1999 press conference following Caldarola's arrest.
In his original complaint, plaintiff named Spano as an
individual defendant, and alleged that Spano:
orchestrated a press conference at which [he]
publicly and for the media identified plaintiff by
name as a criminal, reported his arrest and
prosecution and with a view towards deliberately
destroying Plaintiffs reputation and career in law
enforcement, Spano . . . released to the media at
that press conference a photograph of Plaintiff which
photograph was, as a result, published on the front
page of the Gannett Suburban Newspapers on July 13,
1999, along with explicit allegations of criminal
(Compl. at ¶ 18-19.) Spano and other defendants originally named
in the complaint filed a motion to dismiss the claims in the
original complaint. Plaintiff did not oppose the motion, but
rather withdrew the claims against Spano and the other two
defendants. I dismissed the claims against these defendants
without prejudice, but plaintiff has apparently forgotten or
disregarded my reason for doing so. I told plaintiff he could
refile against Spano if he could advance any factual allegations
that Spano was involved in the decision to arrest Caldarola.
(See June 22, 2000 Hrg. Tr.)
This is not what plaintiff has done. Instead, he advances a
new due process/defamation claim, entirely unrelated to the
false arrest claim. This is improper. Plaintiff has another
action before this court involving the events following his
arrest, including the very press conference of which he
complains here. And, as I have already held in that case, under
Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47
L.Ed.2d 405 (1976), and Rosenberg v. Martin, 478 F.2d 520, 525
(2d Cir. 1973), plaintiff has no such claim. See Caldarola v.
County of Westchester, 142 F. Supp.2d 431 (S.D.N.Y. 2001).
Plaintiff cannot now assert similar claims here.
Finally, plaintiffs' caption to his memorandum of law in
support of this motion
refers to Rocco Pozzi, Robert Davis, and Andrew Spano, in
addition to the defendants already named (DeCiuceis and
Calabrese). Because neither the proposed amended complaint, nor
any portion of the argument in plaintiffs supporting papers
makes any further substantive reference to Mssrs. Pozzi or
Davis, I assume plaintiff does not, in fact, seek to revisit
their earlier dismissal from this case.
Defendants' motion for summary judgment on the false arrest
claim is denied. The malicious prosecution claims are dismissed
as to all defendants. The motion to amend the complaint is
granted in part — plaintiffs may add Louis D'Aliso as a
defendant and the claims against William DeCiucies are dismissed
— and otherwise denied.
This constitutes the order and decision of the court.