Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DeVittorio v. Hall

December 12, 2007

PETER T. DEVITTORIO, RALPH TANCREDI, MICHAEL MARINELLI AND EDWARD ARCE, PLAINTIFFS,
v.
DAVID HALL, INDIVIDUALLY, ANTHONY MARRACCINI, INDIVIDUALLY, AND THE TOWN/VILLAGE OF HARRISON, NEW YORK, DEFENDANTS.
STEPHEN M. CARPINIELLO, WILLIAM C. DUFFELMEYER, MICHAEL WALTHER, PAUL SPICONARDI, ARTHUR MARINELLI, STEVEN HEISLER, SCOTT FORREST AND JEFF NARDI, PLAINTIFFS,
v.
DAVID HALL, INDIVIDUALLY, ANTHONY MARRACCINI, INDIVIDUALLY, AND THE TOWN/VILLAGE OF HARRISON, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Conner, Senior D.J.:

ECF CASE

OPINION AND ORDER

Plaintiffs, Peter DeVittorio ("DeVittorio"), Michael Marinelli ("Marinelli"), Ralph Tancredi ("Tancredi") and Edward Arce ("Arce"), bring this action under 42 U.S.C. § 1983 alleging violations of their rights under the First, Fourth and Fourteenth Amendments of the United States Constitution and violations of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. § 2520). Defendants, David Hall ("Hall"), Anthony Marraccini ("Marraccini") and Town/Village of Harrison, New York (the "Town" or "Harrison") move to disqualify plaintiffs' counsel on the grounds that one of the defendants is a current client of plaintiffs' counsel, and plaintiffs' counsel has represented this defendant in prior substantially related matters. For the reasons stated below, defendants' motion is denied.

BACKGROUND

Plaintiffs are police officers for the Town Police Department (the "Department"). Plaintiffs DeVittorio and Marinelli are members of the Police Benevolent Association ("PBA"); at the time relevant to this lawsuit Tancredi was the PBA President and Arce was the PBA Sergeant-At-Arms. (Complt. ¶¶ 3-6.) Plaintiffs allege that Hall, the Town's Chief of Police, and Marraccini, a Captain in the Department, installed a closed-circuit television camera and audio recorder in the men's locker room at Police Headquarters. (Id. ¶¶ 7-10.) They claim that defendants used the equipment to tape officers in various states of undress, and record and listen to conversations regarding alleged departmental corruption and personal information regarding their objectives as members and officers of the PBA. (Id. ¶ 11.)

On December 24, 2005 Marinelli discovered the camera and reported it to Sergeant Edward Lucas ("Lucas"); Marinelli reported it to Sergeant Vincent Musollino ("Musollino") on December 25. (Id. ¶¶ 12-13.) On December 26, Hall and Tancredi were notified about the discovery of the camera, and Hall announced that he would fire whoever did it and proceeded to remove the wiring. (Id. ¶¶ 14-15.) Tancredi and PBA attorney Richard Bunyan ("Bunyan") demanded in writing on December 27 that Hall and Marraccini safeguard all evidence pertaining to the camera. (Id. ¶ 18.) Plaintiffs claim that when Hall was advised the PBA intended to report the incident he threatened to "turn Anthony [Marraccini] loose on them." (Id. ¶ 19.) They also allege that Marraccini made statements indicating he was responsible for installing the camera. (Id. ¶ 20.)

Plaintiffs Marinelli and Tancredi claim that in retaliation for their reporting the camera and expressing concerns as PBA members, defendants gave them assignments usually given to junior members of the Department, and Marraccini gave a permanent investigative assignment to another officer after proposing earlier that it go to Marinelli. (Id. ¶¶ 21-23.) In a February 2006 meeting, in which DeVittorio expressed his concerns about the incident, the PBA adopted a resolution to report the camera to an outside law enforcement agency. (Id. ¶¶ 24-25.) Plaintiffs claim that in March or April 2006 Marraccini made false accusations that Tancredi misspent PBA money and threatened disciplinary action against PBA members if they refused to report Tancredi. (Id. ¶ 26.) At Marraccini's request the District Attorney's Office inquired into the expenditures and concluded there was no criminal wrongdoing. (Id.) Plaintiffs also claim that Marraccini influenced members of the PBA to fire Bunyan as counsel and to run as candidates on his "slate" to take control of the PBA, approached Arce and told him to "get with the right [] team" and stop "stirring the pot," and that officers who supported Marraccini were assigned better positions and officers who did not were removed from positions. (Id. ¶¶ 30-33.)

Defendants, represented by Bond, Schoeneck & King, PLLC ("BSK"), move to disqualify plaintiffs' counsel Lovett & Gould, LLP ("L&G"). Defendants make this motion on the grounds that Marraccini is a current client of L&G and that L&G previously represented Marraccini in a number of substantially related matters. (Defs. Mem. Supp. Mot. to Disqualify Plaintiffs' Counsel at 1.)

The relationship between Marraccini and L&G began in January 1992 when Marraccini was brought up on disciplinary charges for alleged violations of the Department's rules and regulations, which could have led to his termination. (Id. at 2.) The specific allegations included failure to take narcotic evidence to the forensic lab on the next business day after an arrest, disobeying a direct order, transporting an unauthorized civilian while on duty, and conspiring with others to disseminate information from Department records. (Marraccini Aff., Ex. 1.) Marraccini believed the charges were brought in retaliation for supporting his brother in an election for Town Mayor/Supervisor. (Defs. Mem. Supp. Mot. to Disqualify Plaintiffs' Counsel at 2.) He retained L&G to represent him in the disciplinary proceedings, and Jonathon Lovett ("Lovett") handled the matter. The parties differ in their recollection of events after Lovett was retained. According to Marraccini, he and Lovett met numerous times to discuss and prepare for the hearing, and Lovett attended the five-day hearing and received "tens of thousands of dollars" in fees for representing him. (Id.) The charges were never established and no finding of misconduct was entered against Marraccini. (Id. at 3.) Lovett states that the charges "distilled to precious little" and did not require him to meet with Marraccini for many hours to prepare. (Pls. Mem. Opp. Mot. to Disqualify Plaintiffs' Counsel at 2.) Additionally, the hearing "occurred over the course of a few hours during the evenings on several dates," and Marraccini did not pay tens of thousands of dollars in fees. (Id.)

In August 1992, Lovett filed a federal civil rights lawsuit under 42 U.S.C. § 1983 on behalf of Marraccini against the Town and members of the Department, alleging that the disciplinary charges and the fact that Marraccini was passed over for promotion to Sergeant were in retaliation for Marraccini exercising his First Amendment right to support his brother's campaign. (Defs. Mem. Supp. Mot. to Disqualify Plaintiffs' Counsel at 3; Marraccini Aff., Ex. 3.) Discovery of the matter ensued, involving depositions and a motion to disqualify the law firm representing defendants for a conflict of interest. (Defs. Mem. Supp. Mot. to Disqualify Plaintiffs' Counsel at 3-4.) Marraccini spent numerous hours with Lovett and disclosed confidential and privileged information. (Id. at 4.) The matter proceeded to trial but a settlement was reached before conclusion of the trial. (Id.) Lovett also represented Officer Brendan Murphy ("Murphy") in a related First Amendment retaliation action filed about the same time as Marraccini's action. (Pls. Mem. Opp. Mot. to Disqualify Plaintiffs' Counsel at 2.) Murphy claimed to have been the subject of retaliation for having helped Marraccini in support of his brother's campaign. (Id. at 2-3.) Lovett states that whatever Marraccini disclosed to him in connection with the suit, he disclosed in the presence of Murphy because he, Marraccini and Murphy met to discuss facts and "jointly prosecute[] their respective claims." (Id. at 3.) Lovett adds that there was no confidential information exchanged because of Murphy's presence and the "very simple factual premise" of the case. (Id.)

In 1996 Marraccini received what he considered to be a threatening letter from the PBA. (Defs. Mem. Supp. Mot. to Disqualify Plaintiffs' Counsel at 4.) Lovett wrote to the PBA on behalf of his "client," and stated that legal action would ensue if the PBA took any retaliatory action against Marraccini. (Id. at 4-5; Marraccini Aff., Ex. 5.) Lovett states that there was no attorney-client relationship in the period between the 1992 action and the writing of this letter. (Pls. Mem. Opp. Mot. to Disqualify Plaintiffs' Counsel at 3-4.) He alleges that in connection with this letter there were "no communications between Marraccini and [himself] with respect to anything whatsoever of substance." (Id. at 4.)

In November 1997 Lovett filed another federal civil rights lawsuit under 42 U.S.C. § 1983 on behalf of Marraccini, alleging that defendant Sam Fanelli ("Fanelli") and several Town Board members violated Marraccini's First Amendment rights. (Defs. Mem. Supp. Mot. to Disqualify Plaintiffs' Counsel at 5; Marraccini Aff., Ex. 6.) The complaint alleged that Fanelli, a private citizen, cut Marraccini off as he was driving around trying to determine who was destroying his brother's campaign signs prior to the November 1997 election. (Id.) The complaint also alleges that Marraccini instructed Fanelli to pull over and reached his arm in Fanelli's car at which point Fanelli began to drive away. (Marraccini Aff., Ex. 6.) When Fanelli stopped the vehicle, Marraccini radioed for police backup. (Id.) Fanelli subsequently claimed that Marraccini assaulted him. (Id.) Marraccini alleged that the incident was a set up by Fanelli and the Town Board members to discredit Marraccini and his brother. The claims were dismissed in 1999. (Defs. Mem. Supp. Mot. to Disqualify Plaintiffs' Counsel at 5.) Marraccini states he had several attorney-client conversations with Lovett as a result of this matter. (Id.) Lovett states that, "given the simplicity of the factual premise" he and Marraccini only had several conversations in which no information was exchanged that "has or potentially has and/or theoretically has anything whatsoever to do with the instant litigation." (Pls. Mem. Opp. Mot. to Disqualify Plaintiffs' Counsel at 4.)

In November 1998 Fanelli filed a federal civil rights suit against Marraccini, the Department and other officers alleging that defendants violated his First and Fourth Amendment rights when they searched and detained him in conjunction with the events set forth in Marraccini's 1997 suit against Fanelli. (Defs. Mem. Supp. Mot. to Disqualify Plaintiffs' Counsel at 6; Marraccini Aff., Ex. 7.) The defendants in that case were represented by Friedman & Harfenist, but Marraccini requested that Lovett represent him. (Defs. Mem. Supp. Mot. to Disqualify Plaintiffs' Counsel at 6.) In February 1999 Lovett filed a motion to disqualify Friedman & Harfenist as counsel for Marraccini and substitute L&G. (Id. at 6-7.) The motion was denied and the matter eventually settled. (Id.)

Marraccini claims to have continued a relationship with Lovett and his firm after this, discussing confidential attorney-client matters on numerous occasions including a lunch at Mulino's "a few years ago." (Id. at 7; Marraccini Aff. ΒΆ 22.) Several times Lovett told Marraccini: "I will always be your lawyer, Anthony." (Id.) Lovett also called Marraccini at work and home for personal and business matters and provided him with a business card including his personal cell and home phone numbers. (Defs. Mem. Supp. Mot. to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.