The opinion of the court was delivered by: Koeltl, 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. v. 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), affd, 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. Jul. 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
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 ...