The opinion of the court was delivered by: Douglas F. Eaton, United States Magistrate Judge.
In March 2002, I received a very short stipulation signed by plaintiff's then attorney (Michael R. Bressler) and by the City's attorney (Jennifer Rossan). The stipulation said: "Plaintiff agrees to discontinue this matter without prejudice and costs to either party." I so ordered the stipulation and closed the case.
On December 30, 2005, a new attorney (John N. McPadden) filed a motion to vacate the stipulation and order of discontinuance. He annexed an 8-page memorandum of law, a 3-page affidavit from plaintiff, and Plaintiff's Exhibits A through F.
On March 6, 2005, Ms. Rossan served an opposing declaration annexing Defendant's Exhibits A through D. Her 15-page memorandum of law made several arguments; most significantly she cited Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999). Townes, like plaintiff in our case, was subjected to an unreasonable seizure and search but his suppression motion was denied and he served more than two years in prison before the Appellate Division reversed his conviction. The Second Circuit dismissed his § 1983 action as a matter of law, and wrote:
The fruit of the poisonous tree doctrine cannot link the unreasonable seizure and search to Townes's conviction and incarceration because this evidentiary doctrine is inapplicable to civil § 1983 actions.
. . . [A]s a matter of law, the unconstitutional seizure and search of Townes's person was not a proximate cause of his conviction because of (at least) one critical circumstance: the trial court's refusal to suppress the evidence, which is an intervening and superseding cause of Townes's conviction.
Townes, 176 F.3d at 145-46 (internal citations omitted).
On May 1, 2006, Mr. McPadden served a 4-page reply memorandum that does not deal with Townes but merely makes a conclusory assertion: "Defendant has not shown that plaintiff is unlikely to succeed on the merits. . . ."
On the contrary, the Townes precedent precludes the plaintiff in our case from recovering anything, with the possible exception of nominal damages. I decline to hold a hearing to determine exactly why the prior attorney filed the discontinuance, and I deny the motion to reopen this case.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. McPadden has submitted evidence (Pl. Exh. F) that plaintiff was born on June 13, 1978, that he scored 76 on an IQ test in November 1994, and that he scored 49 on an IQ test in May 1995. The following is gleaned from the Complaint and from two opinions: People v. Centeno, 168 Misc.2d 172, 637 N.Y.S.2d 254 (Sup. Ct. N.Y. County 1995) and People v. Centeno, 259 A.D.2d 277, 687 N.Y.S.2d 88 (1st Dept. 1999).
On January 3, 1995, at 10:25 p.m., on East 14th Street between Second and Third Avenues, a man cut Timothy King and attempted to steal property from him. Three City police officers (Steven Brown, Michael Banks, and Anthony Cafferty) allegedly witnessed the crime, chased after the perpetrator, and eventually lost sight of him. (637 N.Y.S.2d at 260.) At 10:40 p.m., on East 10th Street between Avenues B and C, Police Officer William Brady detained plaintiff, who stated that he "was coming from Church" and that the police "were always stopping him for this kind of stuff." (Id. at 256.) Some sort of "physical evidence [was] recovered from him by the police." (687 N.Y.S.2d at 88.) At 10:45 p.m., he was arrested. (637 N.Y.S.2d at 256.) At Beth Israel Hospital at 11:20 p.m. (less than one hour after the crime) the victim observed plaintiff in a showup and stated that plaintiff "looks like the guy." (Ibid.) "[A] little more than an hour after . . . the crime," Officers Brown, Banks and Cafferty came to the hospital and (in a more positive fashion) identified plaintiff as the perpetrator. (637 N.Y.S.2d at 260.)
After indictment, plaintiff moved to suppress the physical evidence and the out-of-court identifications. Justice Harold Rothwax held a hearing and denied suppression. (I do not have a copy of the suppression decision, but it is referred to in 637 N.Y.S.2d at 256 n. 1, and in 687 N.Y.S.2d at 88.)
After a trial before Justice Joan Sudolnik, the jury, on December 1, 1995, found plaintiff guilty of attempted robbery. He received a prison sentence of 2 1/3 to 7 years; after serving the 2 1/3 years, he was paroled on March 16, 1998.
On March 4, 1999, the Appellate Division rigorously applied the criminal-law doctrine of "the fruit of ...