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Zarro v. Spitzer

September 25, 2009

FRANCIS A. ZARRO, JR., PLAINTIFF,
v.
ELIOT SPITZER; ERIC DINALLO; TOWN OF COLONIE POLICE DEPARTMENT; SCOTT ANDERSON; REBECCA MULLANE; RHONDA LUSTMAN; RICHARD FRIEDMAN; JOHN SEGALLA; MALCOLM TAUB; JOHN DOE, A DETECTIVE IN THE POLICE DEPARTMENT IN THE TOWN OF COLONIE, NEW YORK; KEELER MOTOR CARS, INC.; SANDY KEELER; TOM TUREEN; THINK ABOUT IT MAINE; CORNERSTONE PRIVATE CAPITAL; AND COUNTRY CLUB FUNDING, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Prisoner and disbarred attorney Francis A. Zarro, Jr. brings this § 1983 action against former New York State Attorney General Eliot Spitzer;*fn1 former Deputy Attorney General Eric Dinallo; former Assistant Attorneys General Scott Andersen, Rebecca Mullane, and Rhonda Lustman; Investigator Richard Friedman (collectively the "state defendants"); the Town of Colonie Police Department; an unknown detective in the Colonie PD (collectively the "Colonie PD"); John Segalla; Malcom Taub; Sandy Keeler; Keeler Motor Cars, Inc.; Tom Tureen; Think About It Maine; Cornerstone Private Capital; and Country Club Funding (collectively the "individual defendants"). Zarro asserts a variety of constitutional claims arising out of investigations and prosecutions which led to his incarceration. Presently pending are all defendants' motions to dismiss under various provisions of Fed. R. Civ. P. 12, or, in the alternative, Rule 56. For the reasons that follow, defendants motions are granted and Zarro's action is dismissed.

II. Background

This case has suffered a torturous procedural history which is recited in the courts' prior decision, Zarro v. Spitzer, No. 1:06-CV-1166 (GLS/DRH), 2008 WL 4399442, at *1 (N.D.N.Y. Sept. 23, 2008), and will not be repeated in detail here. Zarro initially filed this § 1983 action on September 29, 2006, asserting a slew of constitutional claims. (See Compl.; Dkt. No. 1.) Generally, these claims arose out of events surrounding an investigation and prosecution by the New York Attorney General's Office which resulted in Zarro's July 8, 2004 conviction for various crimes. See id. On December 6, 2006, this court found that Zarro's action was barred by Heck v. Humphrey, 512 U.S. 477 (1994). (See Dkt. Nos. 8, 9.) On appeal the Second Circuit affirmed in part, but found that certain of Zarro's claims were not barred by Heck because they did not impugn the validity of his conviction. (See Dkt. No. 16.) On remand Zarro filed a second amended complaint ("complaint") by order of the court, which set forth four broad "counts" composed of those claims which survived Heck, and - despite the court's orders - some which did not. (See Am. Compl.; Dkt. No. 22.) As these counts are generally muddled beyond coherence, the court has elected to simply set them forth as presented in the complaint.

Count one purports to assert claims for abuse of process, unlawful search and seizure and violation of Zarro's right to privacy. See id. at ¶¶ 27-29. In this Count, Zarro alleges that in July and August of 2001, defendant Spitzer and "co-defendants" obtained search warrants for Zarro's property upon fraudulent affidavits and without statutory authority, exceeded the scope of such warrants and failed to inventory the items seized as required under state law.*fn2

Count two of the complaint asserts claims for false imprisonment, abuse of process, wrongfully preventing access to bail and false arrest. See id. at ¶¶ 30-47. Zarro alleges that in July of 2003 defendants Spitzer, Dinallo, Anderson and Friedman contacted defendant Tureen, who is the principal of defendant Think About It Maine, and falsely informed him that Zarro was involved in the illicit sale of interests in Tureen's pending casino project. These defendants then caused Maine regulators and media to disseminate this false information to the public.

Zarro's second count also appears to contend that in July of 2003 defendants Friedman, Keeler, Keeler Motor Cars, and the Colonie PD wrongfully caused him to be arrested based on Zarro's alleged failure to pay a car service bill, which he actually paid. Zarro asserts that he voluntarily turned himself in to the Colonie PD on August 23, 2003. On the same date, the charges arising from the Keeler incident were "dismissed by the Court ... by adjournment in contemplation of dismissal." Defendants Anderson and Mullane purportedly informed various courts of the Maine and Keeler incidents in September 2003, September 2004, and December 2005 in an attempt to prevent Zarro's access to bail in various judicial proceedings seemingly related to Zarro's July 8, 2004 conviction.

In count three of his complaint, Zarro asserts claims for malicious prosecution and abuse of process. See id. at ¶¶ 48-63. Zarro contends that he was prosecuted by the Attorney General's Office without probable cause, statutory authority or jurisdiction for crimes arising out of his purchase of golf property from defendant Segalla and the financing of the property through defendant Country Club Funding. Zarro alleges that he "was acquitted on both the Segalla and Country Club/Cornerstone charges and on an additional twenty-three counts of a 39 count indictment, on July 8, 2004."*fn3

Finally, in count four of his complaint Zarro asserts a substantive due process claim for interference with familial relationships. See id. at ¶¶ 64-72. In this count it is contended that on the opening day of Zarro's trial, March 30, 2004, defendant Mullane stated that Zarro's wife was known to abuse drugs and alcohol. This caused Zarro's wife to refrain from attending his trial. Further, on November 18, 2006, Defendant Lustman's sentencing remarks apparently ridiculed Zarro's relationship with his deceased father and other members of his family.

Zarro seeks damages of not less than $500,000,000 and declaratory relief.

III. Standard of Review

While the defendants assert their motions to dismiss under various provisions of FED. R. CIV. P. 12, or, in the alternative, Rule 56, the court addresses all motions under the rubric of Rule 12(b)(6). The standard of review under Rule 12(b)(6) is well established and will not be repeated here. For a full recitation of the standard the court directs the parties to its decision in Dixon v. Albany County Bd. of Elections, No. 1:08-CV-502, 2008 WL 4238708, at *2 (N.D.N.Y. Sept. 8, 2008).

As an aside, the court notes its displeasure with Zarro and his attorney's apparent belief that they are entitled to file unlimited briefs and discovery materials in response to the pending motions. Absent a court order, defendants are entitled one responsive brief on a motion to dismiss. See N.D.N.Y. R. 7.1(b)(1). The court has neither the resources nor the inclination to spend hours each week perusing Zarro's latest case updates. As such, the court has not considered any of the briefs, ...


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