United States District Court, W.D. New York
April 29, 2004.
SHERRY R. PALMER AND MARK E. PALMER, Plaintiffs,
MONROE COUNTY DEPUTY SHERIFF; DEPUTY SHERIFF JOSEPH HENNEKEY; MONROE COUNTY DISTRICT ATTORNEY; ASSISTANT DISTRICT ATTORNEY CHARLES L. CALLEAR; THE COUNTY OF MONROE; DAVID BURNS INDIVIDUALLY AND AS PRESIDENT OF BURNS GLASS SERVICE, LTD. D/B/A RAY SANDS GLASS; FRANK BURNS INDIVIDUALLY AND AS VICE PRESIDENT OF BURNS GLASS SERVICE, LTD. D/B/A RAY SANDS GLASS; JOHN DOE(S), Defendants.
The opinion of the court was delivered by: MICHAEL TELESCA, Senior District Judge
DECISION and ORDER
Plaintiffs Sherry Palmer ("Palmer" or "plaintiff") and Mark
Palmer bring this action against numerous defendants claiming
that Palmer's Constitutional and common law rights were violated
in connection with her arrest and prosecution on charges of
Second Degree Grand Larceny. Plaintiff claims that she was
falsely accused and maliciously prosecuted on charges that she
embezzled $52,205.90 from defendant Burns Glass Service, d/b/a
Ray Sands Glass, her former employer. She brings this action
under 42 U.S.C. § 1983 claiming that her Constitutional rights
were violated, and under New York State law claiming that she was
subjected to malicious prosecution, abuse of process, intentional and/or
reckless infliction of emotional distress, and negligence.
On May 23, 2001, defendants David Burns, Frank Burns, and Burns
Glass Service (the "Burns defendants"), moved for summary
judgment on grounds that plaintiff has failed to state a viable
cause of action against them. By Order dated August 21, 2001,
this Court granted the Burns defendants' motion for summary
judgment, and granted in-part and denied in-part plaintiffs'
motion to amend. The Court additionally allowed plaintiffs to
amend their complaint to add as defendants Sergeant Ralph Sarkis
and Lieutenant Michael Nyhan. Thereafter, plaintiff moved for
reconsideration, and by Decision and Order dated January 3, 2002,
I vacated that portion of my previous Decision and Order
dismissing plaintiffs' malicious prosecution claims. While I
allowed plaintiffs to pursue their cause of action for malicious
prosecution against the Burns defendants, I dismissed plaintiffs'
civil rights claims against the Burns defendants on grounds that
plaintiffs had failed to sufficiently allege that the Burns
defendants were state actors or acted in concert with state
Currently before the court are three motions seeking various
forms of relief. Defendants Charles Callear ("Callear"), Joseph
Hennekey ("Hennekey"), Ralph Sarkis ("Sarkis"), Michael Nyhan
("Nyhan"); the County of Monroe; and the Monroe County Sheriff
(hereinafter collectively referred to as the "County Defendants") move for summary judgment against the plaintiffs on all claims.
Additionally, the County defendants (1) seek permission to amend
their answers nunc pro tunc; (2) move to dismiss the Complaint
for plaintiffs' disobedience of previous court orders; (3) move
to preclude plaintiffs from offering certain evidence at trial;
(4) move for an order of contempt; and (5) seek various other
forms of relief. See County Defendants' Notice of Motion (docket
item no. 132).
The Burns defendants move for summary judgment against the
plaintiffs, and seek sanctions pursuant to Rule 37(b)(2) of the
Federal Rules of Civil Procedure including the striking of
plaintiffs' complaint, and preclusion of the use by plaintiffs of
certain evidence at trial.
Plaintiffs move for summary judgment against the defendants and
for an order permitting plaintiffs to amend the Complaint to
include causes of action for false arrest under New York State
Law, and misuse of grand jury subpoena power.
Plaintiff Sherry Palmer was employed by defendant Burns Glass
Service as an office manager from July 1994 until February 1998.
In November of 1995, plaintiff was assigned certain accounting
responsibilities. In January 1998, bookkeeper Ed Able, ("Able"),
an employee whom Palmer placed on probation because of poor work
performance, wrote a letter to David and Frank Burns (President
and Vice President respectively of Burns Glass Service), and
complained of a number of improprieties with respect to
plaintiff's management of the office. According to Able, Palmer,
among other things leaked confidential information to employees
and failed to return overpayments to customers. Palmer denies
these allegations, and claims that Able was a poorly-performing
employee who wrote the letter only to save his job. David and
Frank Burns investigated Able's claims and on February 6, 1998,
they terminated plaintiff's employment on grounds that she
allegedly leaked confidential information. At the time, plaintiff
was then seven months pregnant.
Upon plaintiff's termination, she hired an attorney in an
attempt to obtain a monetary bonus from the previous year and
severance pay. The parties were unable to negotiate a settlement
of those claims.
Following Palmer's termination, Frank and David Burns hired
Patricia Hedeen, ("Hedeen"), as the replacement office manager.
Hedeen was asked to review the financial records to determine if
Palmer had engaged in any financial misconduct. In the course of
her investigation, Hedeen learned that for every month from
November 1995 (when plaintiff took over the accounting functions)
through December 1997, (two months before plaintiff was fired),
cash receipts for Burns Glass Service exceeded cash deposits.
Hedeen found that for the approximately two-year period, receipts exceeded deposits in the amount of $52,205.90. Plaintiff claims
that the investigation was flawed, and that there were no
discrepancies. Specifically, plaintiff contends that the records
used by the defendants did not accurately reflect which accounts
were paid in cash, and which accounts were paid in some other
manner. She contends that because the records utilized did not
accurately reflect which accounts were paid in cash, those
records would not correspond to cash deposits, and therefore any
comparison of amounts from those sources is fundamentally flawed.
She contends that had the defendants utilized accurate records in
determining wether or not there was a discrepancy between cash
receivables and cash deposits, the Burns defendants would have
realized that there was no discrepancy, or at worst, and
Following Hedeen's investigation, Burns Glass Service hired the
accounting firm of Mengel, Metzger, Barr & Company, ("Mengel
Metzger") to conduct an independent investigation. The firm
utilized the same method to investigate records for two separate
months, and reached the same conclusion as Hedeen: that there
were discrepancies between cash receipts and cash deposits.
One week after receiving the confirming report from Mengel
Metzger, David and Frank Burns directed Hedeen to report her
findings to the Monroe County Sheriff's Department. Monroe County
Sheriff's Deputy Joseph Hennekey, ("Hennekey") investigated the allegations, and filed a felony Complaint against Palmer on
September 3, 1998, charging her with second degree grand larceny.
As part of his investigation, Hennekey obtained the plaintiffs'
financial records and compared the plaintiffs' known expenditures
to their known sources of income. In doing so, he concluded that
plaintiffs, over the course of three years from 1996 through
1998, had spent over $19,000.00 in excess of their known sources
of income. Plaintiffs dispute Hennekey's findings on grounds that
Hennekey ignored over $19,000.00 in known income, and improperly
calculated plaintiffs' expenditures by double-counting several
expenditures. According to the plaintiffs, the actual discrepancy
between plaintiffs income and expenditures over the course of
approximately 2 and one half years was less than $300.00
On March 12, 1999, a Grand Jury returned an Indictment against
the plaintiff on Grand Larceny charges. The case was later tried
at a bench trial before the Honorable William Bristol, who, on
August 5, 1999, found the defendant not guilty. Plaintiffs filed
the instant case on August 4, 2000.
I. The Burns Defendants
The sole remaining independent count against the Burns
defendants is a claim for malicious prosecution. As I held in my
January, 2002 Decision and Order, a complaining witness can be
held liable for malicious prosecution if the witness "fail[s] to
make a full and complete statement of facts to the District Attorney or
the court," or "hold[s] back information that might have affected
the results" of an investigation or trial. Alberto Ramos v. The
City of New York, 2001 N.Y. Slip Op. 06735 (1st Dep't August
16, 2001). I therefore determined that the Burns defendants could
be held liable for malicious prosecution "if it is found that
they gave information which they knew to be false and which
unduly influenced the authorities." January 3, 2002 Decision and
Order at p. 3.
The Burns defendants now move for summary judgment on grounds
that as a matter of law, there is no evidence that they provided
authorities with information they knew to be false or which
unduly influenced authorities. In support of their argument,
defendants contend, inter alia, that: (1) there is no
evidence that the invoices they used to determine if there was a
discrepancy between cash payments and cash deposits were
unreliable; and (2) law enforcement authorities conducted their
own independent investigation thus demonstrating that the
information they reported to the authorities did not unduly
influence law enforcement officials.
I find, however, that there is a question of fact as to whether
or not the Burns defendants provided information they knew to be
false to law enforcement authorities, and whether or not law
enforcement authorities were unduly influenced by that
information. Specifically, with respect to the investigation conducted by the
Burns, there is significant evidence in the record raising a
question as to whether the investigation performed by the Burns
defendants was made in good faith, and whether they knew the
information presented to authorities was accurate or reliable.
There is evidence that the invoices used by the Burns defendants
to calculate cash receipts actually reflected receipts of cash,
checks, or credit cards. Accordingly, because the invoices used
to determine the amount of cash received on a given day may have
actually reflected payments made in cash, credit cards, or
checks, the comparison of these invoices only to deposits of cash
would not necessarily reflect accurately any discrepancy between
cash received and cash deposited. Moreover, there is evidence
that the person who conducted the investigation knew that the
invoices she used to calculate cash receipts included forms of
payment other than cash to wit: check and credit card payments.
Because there is evidence that the Burns defendants knew or
should have known that the methodology they used to calculate the
discrepancy between cash receipts and cash deposits was subject
to gross inaccuracies, I find that there is a question of fact as
to whether or not they knew that the information they provided to
investigators was false.
There is also a question of fact as to whether or not the
information provided by the defendants to investigators unduly
influenced law enforcement officials. Viewing the evidence in the light most favorable to the plaintiffs, there is evidence
demonstrating that based on the information the investigators
received from the Burns defendants, the investigators focused
their investigation solely on the plaintiff, and did not consider
any other suspect, including other Burns employees with access to
cash receipts. Moreover, plaintiffs have presented evidence
suggesting that investigator Hennekey accepted the information he
received from the Burns defendants without independently
verifying it. Accordingly, there is a question of fact as to
whether the information provided by the Burns defendants was
unduly relied upon by the investigating authorities.
II. The County Defendants
The County Defendants move to amend their Answer to include the
affirmative defenses of: (1) the New York State Statute of
Limitations; (2) probable cause for the arrest of Sherry Palmer;
and (3) immunity pursuant to the 11th Amendment of the United
States Constitution. Pursuant to Rule 15(a), defendants motion is
granted on grounds that amendment of the Answer would not unduly
prejudice the plaintiffs or cause undue delay.
The County Defendants also move for summary judgment against
the plaintiffs on all counts of the Complaint. Rule 56(c) of the
Federal Rules of Civil Procedure provides that summary judgment
"shall be rendered forthwith if 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 judgment
as a matter of law." When considering a motion for summary
judgment, all inferences and ambiguities must be resolved in
favor of the party against whom summary judgment is sought. R.B.
Ventures, Ltd. v. Shane, 112 F.3d 54 (2nd Cir. 1997). If, after
considering the evidence in the light most favorable to the
nonmoving party, the court finds that no rational jury could find
in favor of that party, a grant of summary judgment is
appropriate. Annis v. County of Westchester, 136 F.3d 239, 247
(2nd Cir. 1998).
For the reasons set forth below, the County defendants' motion
for summary judgment is granted in-part and denied in-part.
A. Malicious Prosecution
Plaintiffs allege that the County defendants violated Palmer's
federal constitutional and common law rights to be free from
malicious prosecution. To state a claim for malicious prosecution
under New York law, a plaintiff must prove "(1) the initiation or
continuation of a criminal proceeding against plaintiff; (2)
termination of the proceeding in plaintiff's favor; (3) lack of
probable cause for commencing the proceeding; and (4) actual
malice as a motivation for defendant's actions." Russell v.
Smith, 68 F.3d 33, 35 (2nd Cir. 1995); Murphy v. Lynn,
118 F.3d 938, 947 (2nd Cir. 1997). A claim of malicious prosecution
in violation of a person's federal civil rights is analyzed under
the same standard as a common law malicious prosecution claim. Cook v. Sheldon,
41 F.3d 73, 79 (2nd Cir. 1994); Easton v. Sundram,
947 F.2d 1011, 1017 (2nd Cir. 1991).
With respect to plaintiffs' claims of malicious prosecution, it
is uncontroverted that a criminal proceeding was initiated
against the plaintiff, and that the proceeding terminated in her
favor. Thus, the only issues of contention for purposes of
evaluating plaintiff's claims are whether or not defendants had
probable cause to arrest or prosecute Palmer; and whether or not
the defendants' actions were motivated by malice.
Probable cause to prosecute exists where there are "facts and
circumstances [that] would lead a reasonably prudent person in
like circumstances to believe [that the criminal defendant is]
guilty." Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)
(citations omitted). The issue of whether or not a party lacks
probable cause to arrest or prosecute is measured by an objective
standard, and where there are no material issues of fact in
dispute, the issue may properly be disposed of on motion for
summary judgment. Parkin v. Cornell University, Inc., 78 N.Y.2d 523,
In the instant case, because Palmer was indicted by a Grand
Jury, there is a presumption that probable cause for her arrest
and prosecution existed. White v. Frank, 855 F.2d 956, 961 (2nd
Cir. 1988). The presumption of probable cause, however, may be
overcome "by evidence establishing that the police witnesses have
not made a complete and full statement of facts either to the Grand Jury
or to the District Attorney, that they have misrepresented or
falsified evidence, that they have withheld evidence or otherwise
acted in bad faith." Colon, 60 N.Y.2d at 82-83 (citations
omitted). In short, a plaintiff attempting to overcome the
presumption of probable cause that arises from a grand jury
indictment must establish that the indictment "was produced by
fraud, perjury, the suppression of evidence or other police
misconduct undertaken in bad faith." Id. at 83.
In the instant case, plaintiff has alleged, and submitted
evidence that investigator Hennekey acted in bad faith in
conducting his investigation, or suppressed evidence.
Specifically, plaintiffs have alleged that Hennekey, who
determined that plaintiffs had spent approximately $19,000.00
more than they earned over the course of several years, willfully
ignored known sources of income when he calculated plaintiff's
income. Plaintiffs allege that Hennekey willfully failed to
disclose the true amount of plaintiffs' income when he testified
before the Grand Jury. Plaintiffs allege that had Hennekey
engaged in a good faith investigation of the Palmer's finances,
he would have determined that the Palmers' expenditures exceeded
their income over the course of several years by an amount of
less than $300.00. Defendants contend that even when viewed in
the most favorable light to the plaintiffs, the plaintiffs' evidence demonstrates
nothing more than a negligent investigation.
I find that plaintiffs have raised a question of fact as to
whether or not Hennekey acted in bad faith in his investigation
of the Palmers, and thus find that there is a question of fact as
to whether or not there was probable cause to arrest the
plaintiff. At the time of the arrest, the substantial evidence
against the plaintiff was the in-house investigation performed by
the Burns defendants, and the investigation performed by
Hennekey. Plaintiff has raised serious questions regarding the
reliability of each investigation, and as a result, it cannot be
said that no rational jury could find for the plaintiff with
respect to probable cause.
Finally, to sustain a malicious prosecution claim, the
plaintiff must establish that the defendants acted with malice.
Malice may be inferred from proof that there was no probable
cause to arrest or prosecute. "The existence of malice is a
question of fact for the jury to decide." Cox v. County of
Suffolk, 827 F. Supp. 935 (E.D.N.Y. 1993). "Malice may . . . be
inferred if Defendants have acted with a wanton, reckless, or
grossly negligent disregard of Plaintiff's rights, inconsistent
with good faith." Id. Plaintiffs have set forth sufficient
evidence to demonstrate that there is a question of fact as to
whether defendant Hennekey acted with malice in investigating,
arresting, and prosecuting the plaintiff. Accordingly, Hennekey's motion for summary judgment
with respect to plaintiff's malicious prosecution claims is
B. Abuse of Process
Plaintiffs claim in Count III of the Complaint that defendant
Callear, in contravention of law, issued subpoenas to obtain
confidential payroll, financial and bank records prior to
submitting the case to the Grand Jury. Plaintiff contends that
the issuance of Grand Jury Subpoenas to obtain information in
this case was an unlawful abuse of process.
Under New York law, however, there is no requirement that the
government open a Grand Jury proceeding prior to the return date
of a Grand Jury Subpoena. Hirschfeld v. City of New York,
253 A.D.2d 53 (1st Dept. 1999). Moreover, a district attorney may
retain evidence on behalf of the Grand Jury, and the district
attorney may share Grand Jury evidence with a police officer
specifically assigned to the investigation. New York Criminal
Procedure Law § 610.25-1, 190.25-4(a). Accordingly, I find that
plaintiff has failed to state a claim for abuse of process.
Finally, even if plaintiffs' abuse of process claims were not
substantively barred, plaintiffs abuse of process claims are
barred by New York's one-year statute of limitations. N.Y. CPLR §
215(3) (McKinney 1990).
C. Intentional Infliction of Emotional Distress
Count V of plaintiffs' Complaint alleges that the defendants
intended to cause Palmer to suffer severe emotional distress by arresting her at her place of employment and prosecuting her
based on false and misleading information. Plaintiffs allege that
this conduct violated her civil rights under 42 U.S.C. § 1983.
Count IV alleges that the defendants intentionally or recklessly
inflicted emotional distress on the plaintiffs in violation of
Palmer's Constitutional right to Due Process.
To state a claim for intentional infliction of emotional
distress, a plaintiff must allege that the defendant engaged in
"(1) extreme and outrageous conduct; (2) [with] intent to cause,
or reckless disregard of a substantial probability of causing,
severe emotional distress; (3) a causal connection between the
conduct and the injury; and (4) severe emotional distress."
Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). The
conduct complained of must be "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized society." Fischer v. Maloney, 43 N.Y.2d 553, 558
(1978). Ordinarily, whether the challenged conduct is
sufficiently outrageous will be determined as a matter of law.
Nevin v. Citibank, 107 F. Supp.2d 333, 345-46 (S.D.N.Y. 2000)
(citing Howell v. New York Post Company, Inc., 81 N.Y.2d 115,
In the instant case, plaintiff has failed to establish that the
defendants engaged in outrageous conduct sufficient to state a
cause of action: i.e. conduct that goes beyond the bounds of
human decency. Accordingly, I grant defendants' motion for summary
judgment with respect to these claims.
D. Failure to Properly Train or Supervise
Plaintiff alleges that the defendant Monroe County Sheriff
Andrew Meloni failed to properly train or supervise defendant
Hennekey with respect to his investigation of the alleged theft
of cash by Sherry Palmer, and therefore may be liable to the
plaintiffs pursuant to 42 U.S.C. § 1983 for the alleged violation
of their civil rights. Plaintiff has submitted no evidence to
demonstrate that the Monroe County Sheriff failed to properly
train or supervise defendant Hennekey. Defendants have submitted
affidavits indicating that Hennekey was supervised by Sergeant
Ralph Sarkis pursuant to the established chain of command
maintained by the Sheriff's Department. Because there is no
evidence that the Sheriff failed to properly train or supervise
defendant Hennekey, plaintiffs' claims set forth in Count Seven
of the Complaint are dismissed.
E. False Arrest
"A § 1983 claim for false arrest, resting on the Fourth
Amendment right of an individual to be free from unreasonable
seizures, including arrest without probable cause, is
substantially the same as a claim for false arrest under New York
law." Weyant v. Okst, 101 F.3d 845, 852 (2nd Cir. 1996)
(citations omitted); Mandina v. City of Yonkers, 1998 WL
637471, *3 (S.D.N.Y., Sept. 16, 1998). "To succeed on a claim for false arrest under New York
law, a plaintiff must show that `(1) the defendant intended to
confine the plaintiff, (2) the plaintiff was conscious of the
confinement, (3) the plaintiff did not consent to the
confinement, and (4) the confinement was not otherwise
privileged.'" Mandina, 1998 WL 637471 at *3 (quoting Bernard
v. United States, 25 F.3d 98, 102 (2nd Cir. 1994).
In the instant case, there is no dispute that the plaintiff was
arrested, and for the reasons set forth above, I find that there
is a question of fact as to whether or not there was probable
cause to arrest her. Accordingly, I deny the County defendants'
motion for summary judgment on this claim.
F. Negligent Investigation
Plaintiff contends that the defendants owed her a duty of care
with respect to their investigation of her alleged theft, and
violated that duty by negligently investigating the alleged
theft. There is no cause of action for negligent investigation
under New York law, and therefore, plaintiff's cause of action is
dismissed. Bernard v. U.S., 25 F.3d 98, 102 (2nd Cir.
1994); Chimerurenga v. City of New York, 45 F. Supp.2d 337
G. Derivative Claims
Because plaintiffs' cause of action for malicious prosecution
and false arrest may proceed against defendant Hennekey,
plaintiffs' derivative cause of action on behalf of Mark Palmer
may proceed as well, and defendants' motion for summary judgment on
this claim is denied.
IV. Defendants Callear, and the Monroe County District
Prosecutors are absolutely immune from suit for malicious
prosecution. Imbler v. Pachtman, 424 U.S. 409 (1976).
Similarly, a prosecutor is entitled to absolute immunity against
a claim for false arrest. Tartaglione v. Pugliese, 2002 WL
31387255 (S.D.N.Y. Oct. 23, 2002). Moreover, the claims against
these defendants are barred by the Eleventh Amendment to the
Constitution, on grounds that federal courts are barred from
entertaining suits brought by private parties against states.
Because defendant's Callear and the District attorney are immune
from liability on plaintiffs' only remaining independent causes
of action, and because the Eleventh Amendment bars action against
these defendants, defendants' motion for summary judgment is
granted, the complaint against Callear and the Monroe County
District Attorney is dismissed.
V. Defendants Sarkis and Nyhan.
By Order dated August 21, 2001, the Court granted plaintiffs'
motion to amend the complaint to add as defendants Sergeant Ralph
Sarkis ("Sarkis") and Lieutenant Michael Nyhan ("Nyhan").
Plaintiffs, however, failed to serve an Amended Complaint on
those defendants. On April 15, 2004, after being alerted
repeatedly by the defendants that no Amended Complaint had been
served, and almost three years after this court permitted amendment of the
Complaint, plaintiffs filed an Amended Complaint with the court.
The Amended Complaint filed by plaintiff on April 15, 2004 is a
nullity. Although plaintiff was granted permission to serve an
amended complaint on August 21, 2001, plaintiff neglected to file
or serve the complaint for over 2 and one-half years. There is no
valid explanation for the delay, and defendants have opposed the
filing and service of the complaint on grounds that service of an
amended complaint at this stage is prejudicial, in that discovery
has closed. Defendants contend that allowing plaintiff to amend
the complaint now would delay the prosecution of this case, as it
would require discovery to be reopened, and new substantive
motions to be filed.
Permission to file an amended complaint does not run ad
infinitum. Plaintiffs failed to file and serve the amended
complaint within a reasonable time, and therefore, plaintiffs
have forfeited their opportunity to file an amended complaint.
The interests of justice are not served by allowing a plaintiff
to wait over 2 and one-half years to file an amended complaint
once permission to file such a complaint is granted. A potential
defendant can not be left to wait for years to wonder if suit
will be filed against him, and if so, when. Accordingly,
plaintiff's amended complaint filed on April 15, 2004 is stricken
from the record. VI. Defendant County of Monroe
It is well settled that a municipality may be held liable as a
"person" for constitutional deprivations under § 1983. Monell v.
Department of Social Services, 436 U.S. 658, 690-91 (1978). To
establish municipal liability in a § 1983 action, the plaintiff
must "first prove the existence of a municipal policy or custom . . .
[and] [s]econd, . . . must establish a causal connection an
affirmative link between the policy and the deprivation of his
constitutional rights." Vippolis v. Village of Haverstraw,
768 F.2d 40, 44 (2nd Cir. 1985) (citing Oklahoma City v. Tuttle,
471 U.S. 808, 824 n. 8). A plaintiff may establish the existence
of a policy or custom by submitting evidence of the policy
itself, or by "establishing that responsible supervisory
officials acquiesced in a pattern of unconstitutional conduct by
subordinates." Dove v. Fordham University, 56 F. Supp.2d 330,
336 (S.D.N.Y. 1999).
There is no evidence that plaintiffs' rights were violated
pursuant to a municipal policy or custom. Nor is there evidence
that any municipal policymaker adopted any policy attributable to
the County of Monroe. Accordingly, plaintiffs' claims against the
County are dismissed.
VII. Plaintiffs' motion to file a Second Amended Complaint.
Plaintiffs have moved to Amend the Complaint to add a cause of
action under Section 1983 for the misuse of subpoena power and
for false arrest under New York State Law. The motion to amend is untimely, would be futile, and is therefore denied. For the
reasons set forth above, I have found that plaintiff has failed
to state a claim for abuse of process with the respect to the
defendants' issuance of Grand Jury subpoenas. Moreover,
plaintiffs' state law claim for false arrest would be time barred
under New York State's one-year limitations period, as the claim,
even if it related back to the original complaint, was made more
than one year after the events giving rise to the claim occurred.
N.Y. CPLR § 215(3) (McKinney 1990).
VIII. Defendants' Motions to Preclude.
Defendants move to preclude plaintiffs' use at trial of
evidence relating to their damages on grounds that plaintiffs
have failed to comply with several court orders which directed
plaintiffs to disclose that information.
Plaintiffs were originally Ordered to disclose information
related to damages on or before April 26, 2002. As of April 30,
2002, the plaintiffs had not disclosed that information, and the
Court granted a continuance of 30 days to allow plaintiffs to
disclose discovery materials related to damages. Plaintiffs
failed to comply with this Order, and on September 6, 2002, the
court granted plaintiffs an additional 30 days in which to serve
the information. The plaintiffs, for a third time, failed to
comply with the Court's deadline. According to defense counsel Howard Stark, plaintiff served the
discovery information on November 6, 2002, literally minutes
before the scheduled deposition of Sherry Palmer. Service of the
materials more than 30 days after the Court's October 6 Deadline
did not comport with this Court's Order, nor did if allow defense
counsel any time to review the material prior to examining the
plaintiff. Because plaintiff failed to comply with three court
orders directing disclosure of damages information, and served
that information in an untimely manner which prevented defendants
from examining the evidence prior to deposing the plaintiff, the
plaintiffs are prohibited from presenting that evidence at trial.
For the reasons set forth above, the Burns defendants' motion
for summary judgment (docket item no. 145) is denied. Plaintiffs
may proceed on their common law claims of malicious prosecution,
and Mark Palmer's derivative claim against the Burns defendants.
The County defendants' motion for summary judgment (docket item
no. 132) is granted in-part and denied in-part. Plaintiffs may
proceed with their state and federal claims of malicious
prosecution, federal false arrest claims, and Mark Palmer's
derivative claim against defendant Hennekey. Plaintiffs claims
against all other defendants are dismissed. The County
defendants' motion to amend the answer is granted. Plaintiffs'
motion for summary judgment and to amend (docket item no. 149) is denied. Finally, defendants'
motions to preclude at trial plaintiffs' use of evidence (that
was not timely disclosed) relating to damages is granted.
ALL OF THE ABOVE IS SO ORDERED.
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