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WOOD v. INCORPORATED VILLAGE OF PATCHOGUE OF NEW YORK

March 31, 2004.

DONALD R. WOOD, JR., individually and on behalf of all other similarly situated, Plaintiff, -against- INCORPORATED VILLAGE OF PATCHOGUE OF NEW YORK, F. TALDONE, individually and in his capacity as constable, MARY PONTIERI, individually and in her capacity as former Village of Patchogue clerk, TODD C. JOHNSON individually and in his capacity as former Village of Patchogue treasurer, ROSE MARIE BERGER, individually and in her capacity as former Village of Patchogue clerk, DEIDRE O'BRIEN, individually and in her capacity as constable, STEPHEN KEEGAN, individually and in his capacity as former mayor of Patchogue, JEFFREY KRACHT, individually and in his capacity as former chief constable, NANCY AUER, individually and in her capacity as Village of Patchogue Justice Court clerk, LOUIS TOMEO, individually and in his capacity as chief constable, VINCENT YANNACONE, JR., individually andin his capacity as Judge of the Village of Patchogue Justice Court, GAIL REILLY, individually and in her capacity as Village of Patchogue Justice Court clerk, RICHARD COLLOCOLA, individually and in his capacity as Village of Patchogue clerk, PATRICK O'CONNELL, individually and in his capacity as Justice of the Village of Patchogue Court, DEBORAH GUSTAM, individually and in her capacity as Clerk of the Village of Patchogue Justice Page 2 Court, EDWARD IHNE, individually and in his capacity as Mayor of Patchogue and in his capacity as former village trustee, JERRY AVELLINO, individually and in his capacity as constable, SALVATORE BARBARA, individually and inhis capacity as constable, NICHOLAS CHIRILLO, individually and in his capacity as constable, ALEXANDER COSTELLO, individually and in his capacity as constable, FRANCES CUOZZO, individually and in his capacity as constable, RICHARD DEBETTA, individually and in his capacity as constable, BARRY DONADIO, individually and in his capacity as constable, MICHAEL DONOVICH, individually and in his capacity as constable, DANIEL DURINICK, individually and in his capacity as constable, SCOTT ECKERT, individually and in his capacity as constable, ERICK EVRLY, individually and in his capacity as constable, RICHARD FIORUCCI, individually and in his capacity as constable, CASTO GONZALEZ, individually and in his capacity as constable, WILLIAM B. HART, individually and in his capacity as constable, DONALD HENDERSON, individually and in his capacity as constable, RANALD HOLCOMBE, individually and in his capacity as constable, GERALD LENOX, individually and in his capacity as constable, WILLIAM LOGAN, individually and in his capacity as constable, KARL MAKINEN, individually and in his capacity as constable, PETER MARKS, individually and in his capacity as constable, ERICK McFARLAN, individually and in his capacity as constable, JAMES NUDO, individually and in his capacity as constable, BRIAN PANUCCIO, individually and in his capacity as constable, KEVIN PETTERSON, individually and in his capacity as constable, SUSAN RALPH, individually and in his capacity as constable, STEPHEN E. RAMSLAND, individually and in his capacity as constable, FERDINANDO SABELLICHI, individually and in his capacity as constable, COSMO STOIA, individually and in his capacity as constable, LUIS VELEZ, individually and in his capacity as constable, BASIL WATTLEY, individually and in his capacity as constable, JOSEPH WOOD, individually and in his capacity as constable, NICHOLAS ZAMBELLI, individually and in his capacity as constable, Defendants


The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 3

MEMORANDUM OF DECISION AND ORDER

This case arises out of claims by the plaintiff Donald R. Wood, Jr. ("Wood" or the "plaintiff"), on behalf of himself and a class of similarly situated persons, that the defendants the Village of Patchogue ("Patchogue" or the "Village") and forty eight of its present and former officials and employees (collectively, the "defendants") created a scheme under which they, under color of law, purported to enforce traffic and other laws and collect Page 4 purported fines for alleged violations of those laws through a distinct enterprise in violation of, among other things the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., ("RICO") and 42 U.S.C. § 1983 ("Section 1983"). Presently before the Court is the defendants' motion to dismiss the first amended complaint pursuant to Federal Rules of Civil Procedure ("Fed.R. Civ. P.") 12(b)(6) and 9(b)).

  I. BACKGROUND

  At the outset, the Court notes that the amended complaint contains more than 75 pages and is in excess of 175 paragraphs. This complaint is very similar, except for the names, dates, and several facts, to two other class action complaints filed by plaintiff's counsel in this Court. See Brewer v. Village of Old Field, et al., No. 00 Civ. 6072 and Robert M. Coco, Jr. v. Incorporated Village of Belle Terre, No. 01 Civ. 5061.

  The facts are taken from the amended complaint and are taken as true for purposes of this motion.

  The plaintiff commenced this action on January 16, 2001, alleging that at some point prior to 1991, the Village transferred, or was legally bound to transfer by approval of the majority of its voters, its police functions to Suffolk County (the "County").

  Despite having allegedly transferred all of its police authority to the County, the plaintiff claims that in or about 1991, the Village, led by then Mayor Franklin Leavandosky ("Leavandosky"), "hatched the Scheme" to create a private police force known as the Page 5 constabulary. Am. Compl. ¶ 86. At that time, the Village submitted proposed statements outlining the duties of its constables (the "Duties Statements") to the Suffolk County Civil Services Department (the "Civil Services Department"). These Duties Statements indicated that holding a gun permit was a qualification of employment as a constable.

  In a March 23, 1994 letter to Leavandosky, the Commissioner of the New York State Division of Criminal Justice Services ("Division of Criminal Justice Services"), denied the Village's request to register their constables in the County's Peace Officer Registry. The plaintiff alleges that this letter placed Leavandosky on notice that "a Village constabulary would be in violation of New York Criminal Procedure Law ("CPL") § 2.10(1) as being contrary to local law and controlling court decisions." Am. Compl. ¶ 31.

  By letter dated November 14, 1996, Edward Ihne ("Ihne"), acting as the "Commissioner of the Village" made another request to the Division of Criminal Justice Services to allow the Village's constables to be registered in the County's Peace Officer Registry. This request was also denied. The plaintiff alleges that this letter also served to remind Ihne that the Village was not a "`duly authorized law enforcement agency.'" Am. Compl. ¶ 89.

  By letter dated June 23, 1998, the Civil Services Department advised then Mayor Stephan Keegan ("Keegan") that, among other things, the Village must cease the practice of allowing employees to carry guns while enforcing the Village Code. This letter also Page 6 demanded that the Village respond with a confirmation that this practice had ceased. It is alleged that Keegan never responded to this letter and that the Village constables continued to carry guns in the course of their duties.

  By letter dated July 9, 1998, Keegan advised the Civil Services Department that the constables only wrote tickets for Village Code violations. In a letter dated March 2, 1999, the Civil Services Department again stated that because constables are not police officers, it was inappropriate for them to carry guns during the course of their employment. This letter also indicated that its prior approval of the Duties Statements allowing constables to carry guns was erroneous. The Civil Services Department requested that the Village submit new Duties Statements affirming that constables do not carry guns. The plaintiff alleges that as of 1999, the Village had not submitted the Duties Statements requested by the Department.

  It is further alleged that in a December 2, 1999 grant application, the Village of Patchogue Justice Court (the "Justice Court") indicated that it had adjudicated more than 6600 vehicle and traffic law citations.

  The plaintiff also alleges that "two widely publicized involving similar schemes lawsuits [one in 1967 involving the Village of Port Jefferson and one in 1997 involving the Village of Old Field] were adjudicated." Am. Compl. ¶ 93. These lawsuits provided the defendants with knowledge that "the establishment of a private police force by a village who had previously conceded law enforcement jurisdiction to the county was illegal." Id. The Page 7 plaintiff also alleges that a 1984 New York Court of Appeals decision also held that actions by an unauthorized Village constabulary were void.

  The plaintiff further claims that the defendants made misrepresentations to the County by submitting certified annual payroll statements to the Civil Service Department, certifying that the employees performed solely the duties as approved in the Duties Statements. However, the plaintiff alleges that the Chief Constables Kracht and Tomeo, and Mayors Ihne and Keegan allowed and directed the constables to perform duties outside their authority with respect to the enforcement of vehicle and traffic laws.

 A. As to the Plaintiff Donald R. Wood, Jr.

  On November 25, 2000, Wood was driving in Patchogue when he was detained by Constable F. Taldone ("Taldone") for making an illegal right turn. At that time, Taldone was driving a vehicle with a flashing red emergency light, wearing a police uniform with a badge and carrying a gun. Wood claims that Taldone held himself out as a police officer and issued to Wood a "Uniform Traffic Ticket" (the "Ticket"). The Ticket indicated that it was issued by the State of New York Department of Motor Vehicles and that the police agency issuing the ticket was the Village. This Ticket ordered the plaintiff to appear in the Patchogue Village Court (the "Village Court").

  Wood claims that on or about December 3, 2000 and January 4, 2001, Village Clerks Nancy Auer ("Auer"), Gail Reilly ("Reilly"), and Deborah Gustam ("Gustam") Page 8 (collectively, the "Village Clerks"), mailed written notices to him directing him to appear in the Village Court regarding the citation. These notices also informed Wood that he could plead guilty and pay a fine to the Justice Court. This fine included a "Mandatory N.Y.S. Surcharge," payable to "Justice Court, Village of Patchogue." After allegedly being threatened that his driving privileges would be taken away, Wood entered a plea of guilty and paid a fine under protest.

 B. As to the Proposed Class

  As stated above, the plaintiff purports to brings this action on behalf of himself and a class of similarly situated persons. The plaintiff claims that from 1991 to the date this action was commenced (the "Class Period"), the defendants, which include the village constables, village officials and village clerks, engaged in a scheme

 
that is designed to detain individuals traveling through Patchogue, issue purported New York traffic tickets, also called "appearance tickets," hold village-court sessions to adjudicate the purported traffic tickets that constituted acts outside the village court's jurisdiction, assess unlawful fines and/or court costs, threaten consequences if the unlawful fines were not paid, and collect unlawful fines and costs, all to the personal benefit of the [d]efendants (the "Patchogue Private Police Force Scheme" or the "Scheme").
  The plaintiff claims that the Scheme was managed by Justices Yannacone and O'Connell, Mayors Keegan and Ihne, and Chief Constables Kracht and Tomeo. Other participants in the scheme include Village Constables Louis Tomeo ("Tomeo"), F. Taldone Page 9 ("Taldone"), Jeffrey T. Kracht ("Kracht"), Deidre O'Brien ("O'Brien"), Jerry Avellino ("Avellino"), Salvatore Barbara ("Barbara"), Nicholas Chirillo ("Chirillo"), Alexander Costello ("Costello"), Frances Cuozzo ("Cuozzo"), Richard DeBetta ("DeBetta"), Barry Donadio ("Donadio"), Michael Donovich ("Donovich"), Daniel Durnick ("Durnick"), Scott Eckert ("Eckert"), Erick Everly ("Everly"), Richard Fiorucci ("Fiorucci"), Casto Gonzalez ("Gonzalez"), William Hart ("Hart"), Donald Henderson ("Henderson"), Ranald Holcombe ("Holcombe"), Gerald Lenox ("Lenox"), William Logan ("Logan"), Karl Makinen ("Makinen"), Peter Marks ("Marks"), Richard Matson ("Matson"), Erick McFarlan ("McFarlan"), James Nudo ("Nudo"), Brian Panuccio ("Panuccio"), Kevin Peterson ("Peterson"), Susan Ralph ("Ralph"), Stephen Ramsland ("Ramsland"), Ferdinando Sabellichi ("Sabellichi"), Cosmo Stoia ("Stoia"), Luis Velez ("Velez"), Basil Wattley ("Wattley"), Joseph Wood ("Wood"), and Nicholas Zambelli ("Zambelli") (collectively, the "Village Constables"); and Village Clerks Mary Pontieri ("Pontieri"), Rose Marie Berger ("Berger"), Richard Collocola ("Collocola"), Gail Reilly ("Reilly"), Nancy Auer ("Auer"), Deborah Gustam ("Gustam") (collectively, the "Village Clerks").

  The plaintiff alleges that the Village Constables at all times knew that the Village had irrevocably assigned all of its police authority to Suffolk County but nevertheless continued to represent themselves as police officers and wore uniforms, badges, insignia, and other paraphernalia which provided the impression that they were acting with the approval or Page 10 authority of a legitimate police department. The plaintiff alleges that during the Class Period, the constables issued in excess of 13,000 appearance tickets for vehicle and traffic law violations which were similar to the above mentioned Ticket received by Wood. In addition, the plaintiff further alleges that the Village Constables obtained civilian weapons permits "even though their actual intention was to carry those guns as if they were law enforcement officials acting under color of state law," Am. Compl. ¶ 73. Moreover, although the Village Constables did not undergo training at police academy or hold service certification to perform law-enforcement functions, the Village purchased weapons for them.

  In addition, the plaintiff claims that "on thousands of occasions" the Village Clerks and former clerks mailed communications regarding the citations and/or appearance tickets, Am. Compl. ¶ 154, and used the wires in furtherance of the Scheme. Finally, the plaintiff alleges that Justices Yannacone and O'Connell adjudicated the hearings and unlawfully collected fines for the alleged violations of the vehicle and traffic law.

  The plaintiff claims that all of the defendants violated 18 U.S.C. § 1962(b) and (d), the RICO statute; Berger, Pontieri, Collocola, Auer, Gustam, Reilly, Yannacone, O'Connell, Keegan, Ihne, Kracht and Tomeo violated 18 U.S.C. § 1962 (c)); and all of the defendants violated 42 U.S.C. § 1983 ("Section 1983"). The plaintiff also brings a New York State law cause of action for Money Had and Received against Berger, Pontieri, Collocola, Auer, Gustam, Reilly, Yannacone, Keegan, Ihne, Kracht, and Tomeo. Presently before the Court Page 11 is a motion by the defendants to dismiss the complaint pursuant to Rules 12(b)(6) and 9(b).

  II. DISCUSSION

 A. The Standards

  1. Rule 12(b)(6)

  In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court should dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief. King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The court must accept as true all of the factual allegations set out in the complaint, draw inferences from those allegations in the light most favorable to the plaintiff, and construe the complaint liberally. See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (citing Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999)). In its analysis under Rule 12(b)(6), the court "must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Tarshis, 211 F.3d at 39 (citing Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995). Page 12

  2. Rule 9(b)

  Rule 9(b) sets forth additional pleading requirements with respect to allegations of fraud. The reason for these requirements are three-fold: (1) to provide the defendant with fair notice of the claims against her; (2) to protect the defendant from harm to her reputation or goodwill as a result of unfounded allegations of fraud; and (3) to reduce the number of strike suits. See DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir. 1987). "[C]onclusory allegations that defendant's conduct was fraudulent or deceptive are not enough." Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir. 1982). To satisfy the pleading requirements of Rule 9(b), the plaintiff must plead the circumstances of the fraud with particularity and that the defendant acted with fraudulent intent. Fed.R.Civ.P. 9(b).

  a. Pleading the Circumstances of Fraud

  Rule 9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). In order to satisfy this requirement, the complaint must, "`(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.'" Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993)). As such, this requires the plaintiff Page 13 to identify which defendant caused each allegedly fraudulent statement to be spoken, written, wired or mailed, and to whom the communication was made; when the communication was made; and how it advanced the fraudulent scheme. McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir. 1992).

  However, "[i]n cases in which the plaintiff claims that mail and wire fraud were in furtherance of a larger scheme to defraud, the communications themselves need not have contained false or misleading information." Calabrese v. CSC Holdings, Inc., 2003 WL 22052824, at *6 (E.D.N.Y. Aug. 13, 2003). Under these circumstances, Rule 9(b) "only requires the plaintiff to delineate, with adequate particularity, the specific circumstances constituting the overall fraudulent scheme." Id. (citations omitted); see also ...


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