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Conte v. County of Nassau

March 31, 2008

ANTHONY CONTE, PLAINTIFF,
v.
THE COUNTY OF NASSAU, THE NASSAU DISTRICT ATTORNEY'S OFFICE, FORMER NASSAU COUNTY DISTRICT ATTORNEY DENIS DILLON, NASSAU COUNTY DISTRICT ATTORNEY KATHERINE RICE, ASSISTANT DISTRICT ATTORNEYS ROBERT EMMONS, PHILIP WASILAUSKY, WILLIAM WALLACE, CHRISTINA SARDO, NASSAU COUNTY SPECIAL INVESTIGATOR MICHAEL FALZARNO, THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, NYPD ADVOCATE'S OFFICE ATTORNEY LISA BLAND, DEPUTY COMMISSIONER OF THE NYPD ROBERT VINAL, NYPD DETECTIVE TEFTA SHASKA, LARRY GUERRA, RHODA ZWICKER AND "JOHN AND JANE DOES, 1-20," UNKNOWN INDIVIDUALS AND OFFICIALS OF THE NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Pro se plaintiff Anthony Conte ("Conte" or "plaintiff") brings this action against the County of Nassau (the "County"), the Nassau County District Attorney's Office (the "NCDAO"), former Nassau County District Attorney Denis Dillon ("Dillon"), Nassau County District Attorney Katherine Rice ("Rice"), Assistant District Attorneys Robert Emmons ("Emmons"), Philip Wasilausky ("Wasilausky"), William Wallace ("Wallace"), Christina Sardo ("Sardo"), Nassau County Special Investigator Michael Falzarno ("Falzarno") (collectively, the "County Defendants"), the City of New York (the "City"), the New York City Police Department ("NYPD"), NYPD Advocate's Office Attorney Lisa Bland ("Bland"), Deputy Commissioner of the NYPD Robert Vinal ("Vinal") (collectively, the "City Defendants"), NYPD Detective Tefta Shaska ("Shaska"), Larry Guerra ("Guerra"), and "John and Jane Does, 1-20," unknown individuals and employees of the NCDAO, in their individual and official capacities (collectively, "defendants")*fn1, alleging false arrest, false imprisonment, malicious prosecution, municipal liability, abuse of process, conspiracy, "neglect to prevent," and defamation, pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988, Lanham Act violations pursuant to 15 U.S.C. § 1125(a), and various state law tort claims, all arising from the allegedly unlawful investigation and prosecution of Conte.*fn2

Defendants move for a judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the following reasons, (1) the City Defendants' motion is granted in its entirety; (2) the motion to dismiss DA Dillon and DA Rice is granted; and (3) the remaining defendants' motions are granted in part and denied in part.

I. BACKGROUND

A. Facts

The following facts are taken from the complaint and are not findings of fact by the Court. The Court assumes these facts to be true for the purpose of deciding this motion and construes them in the light most favorable to the plaintiff, the non-moving party.

1. I Media Publication

During the summer of 1999, plaintiff conceived, created and developed a business plan for a unique media publication, and formed I Media Corporation and I Media Company (collectively, "I Media") in order to develop, publish, print, distribute, and market the publication under the trade names "American Home - TV Week Magazine" and "American Home - TV Time Magazine." (Second Am. Compl. ¶ 29-33.) The publication was a TV magazine/listings guide and shopper publication*fn3, and was intended to be distributed free of charge in a "saturation style" distribution system. (Id. ¶ 30.) Plaintiff alleges that this sort of publication did not exist in the marketplace at the time. (Id. ¶ 31.)

In March 2003, plaintiff commenced advertising, sales and marketing efforts. (Id. ¶ 32.) Through negotiation and agreements with content distributors and writers, I Media purchased weekly TV listings, content, and features, and solely developed and marketed the shopper portion of the publication. (Id.) In April 2003, plaintiff began to enter into home distributor agreements with individuals for exclusive routes to distribute the publications; those individuals were to be paid a set rate for each publication that they home delivered. (Id. ¶¶ 36-37.)

2. The Post-Dated Check

On May 1, 2003, plaintiff signed a home distributor agreement with Joseph Cutolo ("Cutolo"), which gave Cutolo exclusive rights to distribute I Media's publication in Mineola, New York. (Id. ¶ 38.) On June 21 2003, plaintiff entered into a verbal agreement with Cutolo (the "Cutolo Agreement") to pay Cutolo the sum of $2,500 for the possible distribution of I Media's publication on June 28, 2003, June 29, 2003, July 5, 2003, and July 6, 2003, contingent upon the publications being ready for distribution on those dates and on Cutolo actually distributing them. (Id. ¶ 40.) On the same date as the verbal agreement, plaintiff gave Cutolo a post-dated check dated July 5, 2003, in the amount of $2,500 for the advanced payment to Cutolo if he actually delivered the TV publication. (Id.) Cutolo did not distribute the publications. (Id.) Plaintiff asked Cutolo, by telephone and by letter dated July 1, 2003, not to deposit the post-dated check. (Id.)

Plaintiff alleges that Cutolo ignored plaintiff's request and, without informing the plaintiff, deposited the post-dated check. (Id. ¶ 41.) The check was subsequently dishonored by I Media's bank and returned unpaid to Cutolo. (Id.) Plaintiff immediately placed a stop payment order on that check with his bank so that Cutolo could not deposit it again. (Id.) Plaintiff claims that Cutolo went to the NCDAO and a NCDAO clerk named Rhoda Zwicker ("Zwicker") advised Cutolo to file a criminal complaint against plaintiff for "passing a bad check." (Id. ¶ 44.) Plaintiff further alleges that he subsequently went to the NCDAO and met with Zwicker, whom he alleges was "not an attorney or prosecutor." (Id. ¶ 45.) Plaintiff also asserts that during this meeting with Zwicker, he (1) explained the nature of his business, (2) told Zwicker that Cutolo's complaint was actually a business transaction and civil contract dispute, and (3) showed her documentation, including a copy of a letter wherein Cutolo indicated that Conte's check was post-dated, thereby making Conte exempt from prosecution.*fn4 (Id.)

Conte contends that, despite the exculpatory evidence that he provided to the NCDAO, Zwicker, without probable cause, initiated a criminal proceeding against plaintiff and obtained a warrant for his arrest. (Id. ¶ 47.) According to the County Defendants, and not disputed by plaintiff, Conte surrendered (at some time not indicated in parties' moving papers) based upon the criminal summons for his arrest on the charge of Issuing a Bad Check in violation of New York State Penal Law Section 190.05(1). (County Defs.' Br., at 24 n.3.)

3. The Guerra Complaint

On December 31, 2003, pro se defendant Guerra signed a route distributor agreement with I Media Corporation, and defaulted in making the final balance payment of $4,500 to I Media that was due in February 2004. (Second Am. Comp ¶ 49.) Plaintiff alleges that, due to Guerra's refusal to cure the breach, plaintiff informed Guerra by letter that he was terminating I Media's agreement with Guerra and keeping money that Guerra had paid to him as liquidated damages. (Id.) Plaintiff further alleges that Guerra tried to pressure plaintiff with threats of criminal complaints by reporting that plaintiff was "a fraud" to the NYPD. (Id. ¶ 50.)

Plaintiff alleges that Guerra, in an effort to recoup his money, contacted his wife defendant Tefta Shaska, who is a New York City Police Detective. (Id. ¶ 52.) According to plaintiff, Shaska commenced an investigation of plaintiff and used her position as a police detective to obtain private documents about plaintiff. (Id.) Shaska then directed Guerra to file a complaint against plaintiff and I Media with the NCDAO because that was "where she had found that the bad check charge had originated." (Id. ¶ 57.)

Plaintiff contends that he did not find out that Shaska had obtained these private original documents until a hearing in April 2004 in Small Claims Court in Ronkonkoma, New York (hereinafter, the "Guerra Hearing"). (Id. ¶ 51.) The Guerra Hearing was brought by Guerra as a result of filing his complaint to recoup the $4,500. (Id.) During that hearing, Guerra provided the judge with an original folder containing the logo of I Media's printer Quebecor, which contained original copies of I Media's printing contract and its confidential credit application form. (Id.) The judge ultimately dismissed Guerra's claims and held in favor of the plaintiff. (Id.) A subsequent appeal of the claim and a request for a de novo trial were dismissed. (Id.)

4. Shaska's Hearing

Plaintiff contacted Quebecor because he was concerned about how Mr. Guerra obtained I Media's contract documents and confidential credit application for the Guerra Hearing. (Id. ¶ 52.) Plaintiff alleges that Gabriel Sauro, Quebecor's sales representative, told plaintiff that defendant Shaska contacted him from the Midtown South NYPD Precinct in New York City claiming to be an investigator with the NYPD and working with the "District Attorney's Office." (Id.) He further said that she demanded that those documents be mailed to her at the Midtown South Precinct of the NYPD as part of an "investigation of Anthony Conte for fraud committed by him." (Id.) Plaintiff further alleges that Shaska told Mr. Sauro that the plaintiff and I Media "had committed fraud" and "were illegitimate." (Id.) Quebecor complied with this request and mailed those documents to Shaska. (Id.) The plaintiff later learned that Shaska had also contacted another of I Media's contracted printers, Transcontinental, and several route distributors, and allegedly made the same false and defamatory accusations. (Id.)

Once the NYPD found out about Shaska's actions, they held a disciplinary hearing. (Pl.'s Exh. O.) Shaska pled guilty and was sanctioned with a loss of five vacation days for her actions. (Id.)

5. The NCDAO Investigation

Plaintiff alleges that after Cutolo's bad check incident, and during and after the time of Guerra's complaint, members of the NCDAO began a "surreptitious investigation" of him and his company, and "systematically began to contact numerous route distributors contracted with I Media in an effort to solicit complaints from them" even though there was allegedly no evidence of Conte's or I Media Corporation's commission of any criminal acts. (Id. ¶ 58.)*fn5

Plaintiff alleges that Nassau ADA Wallace and Nassau ADA Wasilausky began disseminating accusations that plaintiff was "a crook" and "a fraud" to plaintiff's vendors and route distributors. (Id. ¶ 48.) Specifically, plaintiff alleges that the County defendants "repeatedly disseminated false information telling these route distributors, their spouses and others that the plaintiff was 'a fraud', 'a thief' and 'a career criminal', that the plaintiff 'had criminally passed bad checks to other route distributors' and that he had 'stolen money from numerous route distributors' and that I Media and his TV publication were 'a non-existent scam and fraud' and that the plaintiff 'never intended to publish or distribute anything[.]'" (Id. ¶ 59.)

Plaintiff further alleges that Wallace and Wasilausky began to solicit complaints from the same individuals. (Id.) Plaintiff contends that the County Defendants conducted telephone solicitations by utilizing a telephone list stolen from I Media's offices and given to them by Guerra. (Id. ¶ 58; Pl.'s Exh. P.) Plaintiff alleges that the County Defendants called at least 40 route distributors, prospective route distributors, and others. (Second Am. Compl. ¶ 59.)

Plaintiff alleges that these distributors were then forwarded complaint forms to return to the NCDAO and were "advised not to talk to the plaintiff, not to do any further business with the plaintiff and I Media and not to discuss these 'confidential' matters with the plaintiff Anthony Conte or let him know that they had taken place." (Id. ¶ 60.)

Plaintiff alleges that, as a direct result of these defamatory allegations, plaintiff and I Media were unable to publish and distribute their TV publication, which the defendants knew and anticipated would occur, because many distributors refused to deal with the plaintiff and instead began to breach their agreements. (Id. ¶ 61.) Plaintiff further alleges that the publishing and distribution of I Media's TV publication are delayed indefinitely due to the severe loss of route distributors and investments made by the plaintiff. (Id. ¶ 62.)

Plaintiff contends that this investigation continued, despite the fact that the plaintiff provided Wasilausky with a letter dated May 11, 2004, advising the County that Guerra's civil complaints had been dismissed. (Id. ¶ 63.) Plaintiff also allegedly provided Wasilausky with the court's judgment stating that the complaint was dismissed. (Id.)

6. The Continued Prosecution

Plaintiff alleged that, during November 2004, defendant Mike Falzarno was assigned to work with and under the direction of ADAs Wallace and Wasilausky to continue their surreptitious investigation of the plaintiff and I Media's business operations in an effort to solicit more complaints. (Id. ¶ 67.)

Plaintiff alleges that Falzarno stopped several of I Media's distributors while they were delivering the Time publication and told these individuals that "the plaintiff and I Media had 'stolen money from numerous route distributors', that the plaintiff was 'a scam artist', that I Media and his publication TV Time were 'an elaborate fraud scheme' and that any day now 'Anthony Conte (the plaintiff) will be in handcuffs.'" (Id.; Pl.'s Exh. S.)*fn6

Plaintiff alleges that Falzarno's tactics frightened and intimidated these route distributors. (Second Am. Compl. ¶ 67.) Plaintiff also claimed that Falzarno told these individuals that if they did not provide him with a list of names of other route distributors as well as other confidential information regarding the operation of the plaintiff's business, that they would be impeding an official investigation and would be subject to arrest. (Id.) Similar consequences would happen if they told plaintiff what was happening. (Id.)

Falzarno served the subpoena on the plaintiff at I Media's offices in Melville, New York. Plaintiff alleges that Falzarno asked to speak with the plaintiff, but refused to identify or leave his name. (Id. ¶ 70.) Conte said that Falzarno "maliciously grabbed the plaintiff's right hand with his and squeezed it with extreme force in an attempt to break his hand while slapping the plaintiff in the face with the subpoena that was in his left hand." (Id.) Plaintiff also alleged that as Falzarno left the plaintiff's office, he stated to the plaintiff "I'll get you!" (Id.) Plaintiff contends that he could not flex or move his right hand after the incident, that it turned black and blue, and that he was fearful that Falzarno might attempt to attack him thereafter. (Id.)

Plaintiff also alleges that defendants spread these defamatory and disparaging falsehoods from November of 2003 to date, including two newspaper articles appearing in Newsday in September of 2004. (Id. ¶ 77.) Specifically, in an article appearing in Newsday on September 14, 2005, defendant Emmons, the Chief of the Criminal Frauds Bureau of the NCDAO, stated that "we have received numerous complaints and as a result are investigating the matter" when asked about a lawsuit filed against the plaintiff and I Media alleging that they committed fraud. (Id. ¶ 78.)

Plaintiff further alleges that ADA Sardo insisted on prosecuting the plaintiff on the allegedly false bad check complaint filed by Mr. Cutolo in November of 2003, even though provided with an affidavit signed by Mr. Cutolo in June of 2005 in which Cutolo acknowledged that the check in question was post-dated, and another affidavit by Cutolo dated January 11, 2006, in which he stated his intention and desire to withdraw his complaint and not to testify for the government. (See Pl.'s Exh. L) Plaintiff alleges that Sardo continued to prosecute plaintiff for over eight months, which required at least sixteen court appearances before Justice Denise Sher in the Hempstead Criminal Court. (Second Am. Compl. ¶ 81.) This criminal charge was dismissed in June of 2006. Plaintiff contends that it remained on his criminal record as an open charge as of August 2006, causing the plaintiff to be embarrassed and unemployed, and to lose employment opportunities. (Id.)

7. Policy of the NCDAO

Plaintiff alleges that his criminal defense attorney, John Halton, a former NCDAO prosecutor, told him that:

he was told by Assistant District Attorney William Wallace that the real and only reason that this criminal charge was proffered against the plaintiff and that the NASSAU DA was targeting, prosecuting and further intent on investigation, pursuing, charging and harassing the plaintiff was for no other reason but the fact that the plaintiff had pled guilty to an unrelated felony in Federal Court ten years earlier, had a criminal record and therefore was considered automatically guilty of this criminal charge and an easy target for the NASSAU DA to go after.

[I]t was the practice, custom and policy of the NASSAU DA instituted by District Attorney Denis Dillon himself to automatically and systematically prosecute individuals with criminal records like the plaintiff against whom complaints are filed and that he could confirm this from his own personal experience of having worked for the NASSAU DA several years earlier.

[T]he NASSAU DA was going to pursue this criminal charge and other extortive methods in an attempt to have the plaintiff agree to make settlements to individuals regardless of the fact that there was no evidence or probable cause to support any criminal charges and despite the fact that these individuals were not legally owed money by the plaintiff and/or I Media.

[T]he NASSAU DA would pursue this vendetta against the plaintiff, despite the lack of probable cause, for the high publicity value such a case afforded District Attorney Denis Dillon who was up for re-election.

(Id. ¶ 47.)

Accordingly, plaintiff contends that during the course of the alleged improper investigation of him and I Media Corporation, the NCDAO deliberately defamed and slandered plaintiff publicly to business associates. (Id. ¶¶ 56-60, 72.) Plaintiff asserts that as a direct result of the defendants' actions, plaintiff and I Media were unable to publish and distribute "their TV publication" because business associates broke their contractual relationships with him, which ultimately destroyed plaintiff's business. (Id. ¶¶ 60-62, 77.) Plaintiff also alleges that defendants' actions caused "two defamatory and derogatory newspaper articles appearing in Newsday in September of 2005" to be written about him. (Id. ¶¶ 77-78.)

Plaintiff also alleges that all of the defendants conspired against him by "simply ignor[ing] with deliberate indifference [to the] complete lack of evidence and probable cause that the plaintiff or I Media had committed any crime," motivated by a desire to harm plaintiff because he had previously pled guilty to a crime, and destroy his business, and "disparage and defame the plaintiff and his publishing business [] in order to obtain high profile publicity to help in District Attorney Denis Dillon's tight re-election campaign." (Id. ¶¶ 63, 78.)

B. Procedural History

On August 30, 2006, plaintiff filed the Complaint in this action. On January 4, 2007, plaintiff served defendants with his First Amended Complaint. On April 4, 2007, plaintiff served defendants with his Second Amended Complaint.

The County Defendants moved to dismiss the Second Amended Complaint on April 20, 2007. The City Defendants and Shaska moved to dismiss on August 31, 2007, and Guerra moved to dismiss on September 26, 2007. Plaintiff responded to all defendants on December 7, 2007. The County Defendants replied on December 17, 2007. The City Defendants replied on December 21, 2007. Shaska replied on December 24, 2007 and Guerra replied on January 10, 2008. The Court has considered all submissions.*fn7

II. STANDARD OF REVIEW

Courts evaluate a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) under the same standard as a motion pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Nicholas v. Goord, 430 F.3d 652, 658 n.8 (2d Cir. 2005).*fn8

In reviewing a motion to dismiss under Rule 12(b)(6), a court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). The plaintiff must satisfy "a flexible 'plausibility' standard, which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic, 127 S. Ct. at 1969. The Court does not, therefore, require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 1974.

Further, in reviewing a motion to dismiss, "the district court is normally required to look only to the allegations on the face of the complaint." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). Here, defendants ask the Court to consider for purposes of this motion several exhibits appended to their motion papers, including documents filed in other courts and police reports. (City Defs.' Reply, at 3.) However, with respect to non-judicial documents, the Court declines to do so. "[A] ruling on a motion for dismissal pursuant to Rule 12(b)(6) is not an occasion for the court to make findings of fact." Roth, 489 F.3d at 509. Short of converting this motion to a motion for summary judgment under Fed. R. Civ. P. 56, which would be premature in this case given the lack of discovery, the Court may only consider a document not appended to the complaint if the document is "incorporated in [the complaint] by reference" or is a document "upon which [the complaint] solely relies and . . . is integral to the complaint." Id. (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). Courts also "'routinely take judicial notice of documents filed in other courts . . . not for the truth of the matters asserted in other litigation, but rather to establish the fact of such litigation and related filings.'" Crews v. County of Nassau, No. 06-CV-2610 (JFB), 2007 U.S. Dist. LEXIS 6572, at *5 n.2 (E.D.N.Y. Jan. 30, 2007) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)). However, with respect to the no-njudicial documents attached to defendants' papers, defendants do not argue – and the Court does not conclude – that defendants' exhibits fall within these exceptions. Consequently, the Court will not consider such exhibits for the purposes of this motion, except for those exhibits that were also appended to plaintiff's complaint or incorporated by reference.

Moreover, as the plaintiff is appearing pro se, the Court shall "'construe [his complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.'" Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir. ...


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