The opinion of the court was delivered by: Koeltl, United States District Judge
The same standards apply to a Rule 12(c) motion for judgment on the
pleadings and to a Rule 12(b)(6) motion to dismiss for failure to state a
claim. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999);
Narvarte v. Chase Manhattan Bank, N.A., 969 F. Supp. 10, 11 (S.D.N.Y.
1997). The Court "must view the pleadings in the light most favorable
to, and draw all reasonable inferences in favor of, the nonmoving party."
Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994); see also Madonna v.
United States, 878 F.2d 62, 65 (2d Cir. 1989); National Ass'n of
Pharmaceutical Mfrs., Inc. to Ayerst Labs., 850 F.2d 904, 909 n. 2 (2d
Cir. 1988) (indicating that the Court treats a motion for judgment on the
pleadings as if it were a motion to dismiss); Slavsky v. New York City
Police Dep't, 967 F. Supp. 117, 118 (S.D.N.Y. 1997), aff'd, 159 F.3d 1348
(2d Cir. 1998). A court should not dismiss a complaint unless it appears
beyond doubt that the plaintiffs can prove no set of facts in support of
their claim that would entitle them to relief. See Valmonte v. Bane,
18 F.3d 992, 998 (2d Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957)). In deciding the motion, the Court can
consider documents referenced in the complaint and documents that are in
the plaintiffs' possession or that the plaintiffs knew of and relied on
in bringing suit. See Brass v. American Film Technologies, Inc.,
987 F.2d 142, 150 (2d Cir. 1993); Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); I. Meyer Pincus & Assoc.,
P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991);
Skeete v. IVF America, Inc., 972 F. Supp. 206, 208 (S.D.N.Y. 1997). The
Court can also consider "matters of which judicial notice may be taken."
See Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d
Cir. 1999) (quotation omitted); see also Kramer v. Time Warner, Inc.,
937 F.2d 767, 773 (2d Cir. 1991). Thus, it is proper to consider public
documents on a motion to dismiss to determine whether claims are barred
by prior litigation. See, e.g., Day v. Moscow, 955 F.2d 807, 811 (2d
Cir. 1992); Bal v. New York City Loft Board, No. 00 Civ. 1112, 2000 WL
890199, at *2 (S.D.N.Y. July 5, 2000).
The standard for granting summary judgment is also well established.
Summary judgment may not be granted unless "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential
Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).
"The trial court's task at the summary judgment motion stage of the
litigation is carefully limited to discerning whether there are genuine
issues of material fact to be tried, not to deciding them. Its duty, in
short, is confined at this point to issue-finding; it does not extend to
22 F.3d at 1224. The moving party bears the initial burden of "informing
the district court of the basis for its motion" and identifying the
matter that "it believes demonstrate[s] the absence of a genuine issue of
material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive
law governing the case will identify those facts which are material and
"only disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986).
In determining whether summary judgment is appropriate, a court must
resolve all ambiguities and draw all reasonable inferences against the
moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176
(1962)); see also Gallo, 22 F.3d at 1223. If the moving party meets its
burden, the burden shifts to the nonmoving party to come forward with
"specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment
is sought, if there is any evidence in the record from any source from
which a reasonable inference could be drawn in favor of the nonmoving
party, summary judgment is improper. See Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 37 (2d Cir. 1994).
The following facts are not in dispute, except where noted. Plaintiff
Robin Cowan was at all relevant times an Assistant District Attorney
("ADA") employed by the District Attorney of Bronx County. Plaintiff Cary
L. Cowan is the father of Robin Cowan. Defendant Ernest Codelia, P.C., is
a professional corporation authorized to practice law in the State of New
York. Defendants Tauber, Shipman and Codelia are attorneys, licensed to
practice law in the State of New York, and are employees of Ernest
Codelia, P.C. (Compl. ¶¶ 7-11; Defs.' 56.1 St. ¶¶ 7-8, 11.)
Robin Cowan was the ADA assigned to prosecute a murder case, People v.
Angel Lopez, Indictment No. 1877/96 ("Lopez case"). Ernest Codelia, P.C.
represented, Angel Lopez ("Lopez"), the defendant in that action.
Defendants Tauber, Shipman and Codelia each took part in Lopez's
defense. (Compl. ¶¶ 12-14, 16; Defs.' 56.1 St. ¶¶ 9-11.) Tauber
testified at a suppression hearing in the Lopez case as a witness on
behalf of Lopez and was cross examined by Ms. Cowan. (Compl. ¶ 16.)
The plaintiffs allege that on or about March 13, 1998 to March 24,
1998, Tauber directed TML Information Systems, Inc., to perform several
computerized searches of DMV records for motor vehicle records of Robin
Cowan and Cary L. Cowan, including their residential street addresses,
the plaintiffs' dates of birth, and other personal information. (Pls.'
56.1 Counter-St. ¶ 19; Compl. ¶¶ 17-19; 38). The plaintiffs
contend that Tauber's initiation of the searches at issue was done as a
joint effort of all the defendants. (Pls.' 56.1 Counter-St. ¶ 1.)
On March 17, 1998, the Lopez case was assigned to the Honorable Phyllis
Bamberger for trial. Jury selection was completed, the jury was sworn,
and the court adjourned the case to Monday, March 23, 1998. (Compl.
¶¶ 22-23.) On Saturday, March 21, 1998, Ms. Cowan allegedly received
an empty envelope in the mail at her home address. Ms. Cowan's home
address is not listed in the telephone book, and is not otherwise
available to the general public. (Compl. ¶¶ 24-25.) It is undisputed
that Tauber mailed the envelope to Ms.
Cowan after obtaining her address, through an agent, from the DMV.
(Compl. ¶¶ 26, 38; Answer ¶¶ 1, 9.) The envelope sent to Ms. Cowan
carried Tauber's return address but not his name. See In the Matter of
William Tauber, Esq., RP No. 7006/99, Report of Referee, at 3 (N.Y.App.
Div. July 12, 1999).
Ms. Cowan allegedly immediately called Tauber to determine whether he
had mailed the empty envelope, and if so, why. (Compl. ¶ 27.) The
plaintiffs allege that, at that time, Tauber advised Ms. Cowan that he
wanted to determine if Ms. Cowan really lived in New York City and that
Tauber also indicated he had done so to "pay her back" for having
vigorously cross-examined Tauber when he testified at the suppression
hearing in the Lopez case. (Compl. ¶¶ 28-29.) Although the defendants
do not dispute that Tauber caused a search to be made of the DMV
records, they contend that Tauber caused the search to be made to confirm
whether or not Robin Cowan was a bona fide resident of the City of New
York. (Defs.' 56.1 St. ¶ 18.) The defendants argue that N.Y. Public
Officers Law § 3 requires that Bronx ADAs reside within the City of
New York and that, in the absence of compliance with that law, an ADA is
not qualified to serve and may be removed. (Defs.' 56.1 St. ¶¶
Ms. Cowan notified her supervisor, Edward Friedenthal, and he in turn
reported the incident to Justice Bamberger, who was presiding over the
Lopez case. (Compl. ¶ 31; Defs.' 56.1 St. ¶ 20.) A disciplinary
proceeding before the New York State Supreme Court, Appellate Division,
First Department Departmental Disciplinary Committee ("Departmental
Disciplinary Committee") was initiated against Tauber on the basis of the
incident. (Defs.' 56.1 St. ¶ 20; Pls.' 56.1 Counter-St. ¶ 20.)
After holding a series of hearings on the matter, the referee appointed
to review the allegations credited Tauber's account and recommended that
the charges be dismissed. See In the Matter of William Tauber, Esq., RP
No. 7006/99, Report of Referee (N.Y.App.Div. July 12, 1999). A hearing
panel of the Departmental Disciplinary Committee concurred in the
referee's determination that the charges should be dismissed. See In the
Matter of William Tauber, Esq., RP No. 3006/99,*fn1 Determination of
Hearing Panel (N.Y.App.Div. Aug. 11, 1999) (Both decisions are attached
as Ex. D of Affirmation of Roberto Lebron dated October 4, 2000 ("Lebron
The plaintiffs filed this action on August 5, 1998 asserting two causes
of action. In the plaintiffs' first cause of action, the Cowans allege
that the defendants violated the DPPA. (Compl. ¶¶ 12-44.) In the
second cause of action, plaintiff Robin Cowan alleged that the defendants
engaged in outrageous conduct causing emotional distress. (Compl. ¶¶
45-54). On March 16, 1999, plaintiff Robin Cowan filed an action in New
York State Supreme Court, New York County, against the same defendants
also alleging outrageous conduct causing emotional distress ("State Court
Action"). (Defs.' 56.1 St. ¶ 3 & Ex. B.) The State Court Action
was dismissed by orders dated June 30 and July 31, 2000, and judgment was
entered on ...