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July 9, 2001


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 issue-resolution." Gallo, 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. ¶¶ 13-14.)

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 Aff.")).

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 ...

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