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Vitrano v. United States

April 14, 2009


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


This case concerns the fate of property allegedly seized during a search by agents of the Federal Bureau of Investigation (the "FBI"). The plaintiff, Richard Vitrano, brings this case pro se, claiming the United States has wrongfully retained his belongings and must return them or pay him damages for their loss. He asserts claims under Rule 41(g) of the Federal Rules of Criminal Procedure and pursuant to the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680. (Motion to Order Return of Seized/Confiscated Property ("Complaint"); Amended Complaint ("Am. Compl.")). The parties consented to proceed before me for all purposes pursuant to 28 U.S.C. § 636(c). The United States now moves for summary judgment in connection with the plaintiff's claims for the return of five paintings, a Rolex watch, and cash in the amounts of $351.00 and $875.00. The United States also moves to dismiss the plaintiff's claims under the FTCA. The defendant's motion for summary judgment is granted in part and denied in part, and its motion to dismiss is granted. Background

A. Facts

On April 26, 2005, the FBI, the United States Marshals Service, and Terence Kenny, Mr. Vitrano's probation officer at the time, arrested Mr. Vitrano for a violation of the conditions of a supervised release term he was serving in connection with an earlier conviction for transporting stolen property in interstate commerce. (The United States' Local Rule 56.1 Statement of Undisputed Facts ("Def. Facts"), ¶ 1; Declaration of James P. Wynne dated Jan. 29, 2009 ("Wynne Decl."), ¶ 6; Plaintiff's Opposition to Local Rule 56.1 Statement of Undisputed Facts ("Pl. Facts"), ¶ 1). At the same time, these government agents executed a search warrant at Mr. Vitrano's Manhattan loft located at 344 Bowery Street, seeking evidence of a suspected art fraud scheme. (Def. Facts, ¶¶ 1-2; Wynne Decl., ¶ 5, 7; Pl. Facts, ¶ 1). The government seized many items during the search, including $351.00 in cash and 57 paintings that Mr. Vitrano later forfeited when he ultimately pled guilty. (Def. Facts, ¶ 4; Receipts for Property Received/Returned/Released/Seized ("Seized Property Receipts"), attached as Exh. 7 to Wynne Decl., at 5, 7, 9-11).

Mr. Vitrano claims that during this search and arrest, Officer Kenny took a Rolex watch and $875.00 cash either from his person or from elsewhere in the loft.*fn1 According to Mr. Vitrano, Officer Kenny then told him, "You are going to jail, the jail will not let you have personal property. I will hold onto your cash and watch and give them to your attorney in court." (Complaint at 1; Statement of Evidence, ¶ 11 (offering statement of Officer Kenny that he took the items for "safe-keeping"); Pl. Memo. at 11 (same)). Later, at a hearing, Mr. Vitrano asked Officer Kenny about the watch and the $875.00, and was told "The FBI has instructed me not to give you back your property." (Complaint at 1). The United States denies this account entirely, claiming it has never possessed either the Rolex watch or the $875.00.*fn2 (Def. Facts, ¶¶ 3, 5). The receipts for items seized during the search list a "Rolex billfold," but not a watch. (Seized Property Receipts). Similarly, there is no listing for $875.00 in cash.

(Seized Property Receipts).

During the search, the FBI also seized six paintings from two storage sites found at 83 East 3rd Street and at 25 East 10th Street. (Amended Complaint ("Am. Compl.) at 2-4). According to the United States, "one of [Mr.] Vitrano's associates arrived at the loft [during the search] and informed the agents that [Mr.] Vitrano had stored two additional boxes containing paintings at [a] . . . 'mail drop.'" (Def. Facts, ¶ 6). An FBI agent accompanied the associate to that site, where "the associate retrieved the boxes from the mail drop, brought them back to the loft, and delivered them into the FBI's custody." (Def. Facts, ¶ 7). The FBI later learned that additional items were stored at another "mail drop" site, and the FBI "ultimately seized four boxes, each containing one painting" from that site. (Def. Facts, ¶ 10). Mr. Vitrano, on the other hand, argues that the government simply illegally searched both of the storage locations without a warrant. (Pl. Memo. at 9, 11).

The United States submits that these six paintings are all misattributed in the same manner as the paintings involved in Mr. Vitrano's art fraud scheme (for which the plaintiff was later convicted). One of the paintings is not in dispute here; the parties agree that it is a forgery and thus worthless, and Mr. Vitrano does not request its return. (Def. Facts, ¶ 16). As to the other five, the government presents expert testimony that the artist's signature on each painting is false and was added long after the painting's completion. (Appraisal Consultation Report of Leon Castner dated Dec. 14, 2008, attached as Exh. 4 to Barnea Decl., at 4, 10-13; Declaration of Guy A. Wiggins dated Dec. 18, 2008, ¶ 13). In response, Mr. Vitrano claims that he bought these paintings legally and retains ownership of them. (Am. Compl. ¶ 5; Pl. Memo. at 7-8; Pl. Facts, ¶ 14). He also disputes that the government's experts are qualified to determine the authenticity of the paintings. (Pl. Memo. at 8).

Once the search was complete, the government secured the loft. According to Mr. Vitrano, the government wrongfully left Paul Tsombanidis and Sneha Amin in control of the premises, and these individuals then stole much of the remaining property. (Pl. Memo. at 9, 12, 14). Mr. Vitrano describes Mr. Tsombanidis as his former business partner and a former co-lessor of the loft; Ms. Amin is said to be Mr. Tsombanidis' girlfriend. (Am. Compl., ¶ 7; Pl. Memo. at 9, 12). The plaintiff claims that the government colluded or was tricked into giving Mr. Tsombanidis control of the loft and of Mr. Vitrano's business, RV Fine Art,*fn3 and that the government should have done further research before transferring possession of the loft and business to such an ill-suited individual. (Am. Compl. at ¶¶ 7, 10).

On December 5, 2005, Mr. Vitrano pled guilty to wire fraud related to selling misattributed art and to a violation of supervised release. (Hearing Transcript dated Dec. 5, 2005 ("12/5/05 Tr."), attached as Exh. 3 to Barnea Decl., at 17-18). On February 15, 2006, he was sentenced to a prison term followed by supervised release, and he was ordered to pay $193,902.00 in restitution and a $100.00 special assessment. (Judgment in Criminal Case filed March 8, 2006 ("Wire Fraud Judgment"), attached as Exh. B to Declaration of Herman Amos, Jr. dated Jan. 26, 2009 ("Amos Decl."), at 1-4). In connection with his prior conviction for conspiracy to transport stolen property, Mr. Vitrano's sentence included a $76,513.00 order of restitution and a $50.00 special assessment. (Judgment in Criminal Case signed on October 5, 1998, attached as Exh. A to Amos Decl., at 1, 5).

B. Procedural History

During the summer of 2006, Mr. Vitrano filed the instant case in which he demanded the return of property under Rule 41(g) of the Federal Rules of Criminal Procedure, including the five paintings, the $351.00, the Rolex watch, and the $875.00 currently at issue. In December 2008, he submitted an Amended Complaint in which he added the FTCA claims. The Honorable John G. Koeltl, U.S.D.J., decided a prior motion for summary judgment in this case on September 28, 2007.*fn4 The United States now moves again for summary judgment on the Rule 41(g) claims and moves to dismiss Mr. Vitrano's FTCA claims.


A. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002); Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999). The moving party bears the initial burden of identifying "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The opposing party then must come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). Where the non-movant fails to make "a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment must be granted. Celotex, 477 U.S. at 322.

In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the non-movant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)).

To be sure, "credibility assessments, choices between conflicting versions of the events, and the weighing of evidence" are generally "matters for the jury, not for the court on a motion for summary judgment." McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)). But, "where a plaintiff's testimony was 'largely unsubstantiated by any other direct evidence' and 'so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in his complaint,' the court may grant a defendant's motion for summary judgment." Chapel Park Villa, Ltd. v. Travelers Insurance Co., No. 02 Civ. 407, 2006 WL 2827867, at *7 (W.D.N.Y. Sept. 29, 2006) (quoting Jeffreys v. City of New York, 426 F.3d 549, 551 (2d Cir. 2005)). According to the Second Circuit,

While it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, and thus whether there are any genuine issues of material fact, without making some assessment of the plaintiff's account.

Jeffreys, 426 F.3d at 554 (quotation marks and citations omitted).

Where a litigant is pro se, his pleadings should be read liberally and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, proceeding pro se does not relieve a litigant from the usual requirements of summary judgment, and a pro se party's "'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (quoting ...

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