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Fabrikant v. French

July 13, 2010


The opinion of the court was delivered by: David N. Hurd United States District Judge



Plaintiffs Jody Fabrikant and Russell A. Schindler, Esq., pro se, filed their second amended complaint following the reinstatement of their claims pursuant to the mandate of the Second Circuit Court of Appeals, see Schindler v. French, 232 F. App'x 17, 19-20 (2d Cir. 2007). Fabrikant asserts, inter alia, that her federal constitutional rights were violated during the course of her criminal prosecution for animal cruelty, including her right to be free from malicious prosecution (Causes of Action Two and Four), her right to due process (Cause of Action Five), her right to a presumption of innocence (Cause of Action Six), her right to counsel (Cause of Action Eight), her right to free speech (Cause of Action Nine), and her right to be free from unreasonable searches and seizures (Cause of Action Ten). She also asserts pendent state law claims (Causes of Action One, Three, Eleven, Twelve, Thirteen, and Fourteen). Finally, Fabrikant and Schindler jointly assert a state law claim for libel (Cause of Action Seven).

Defendants Christine French, William DeRidder, Hector L. Mejias, Jr., John Spinato, Catherine Palmer-Wemp, Walter Sasse, Christina Khuly, David Stark, Diane Stark, Ulster County Society for the Prevention of Cruelty to Animals ("UCSPCA"), Bradley Knee, Avery Smith, and Larine Caliri (collectively "defendants") move for summary judgment of all claims pursuant to Federal Rule of Civil Procedure 56. Both plaintiffs oppose, but Fabrikant withdraws her claims for the alleged violation of her right to a presumption of innocence and legal counsel. (Pl. Fabrikant's Opp'n Mem. of Law, Dkt. No. 178, 25.) Accordingly, Causes of Action Six and Eight are not at issue and will be dismissed. Defendants' summary judgment motion was considered without oral argument.


This lawsuit arises from the investigation and subsequent criminal prosecution of Fabrikant (hereinafter "plaintiff") for alleged animal cruelty in violation of Section 353 of New York's Agriculture and Markets Law. In or around February 2002, plaintiff was in possession of fifteen animals, including one Rottweiler, two Cocker Spaniels, one Chow, one Basenji mix, nine Basenji/Great Pyrenees puppies, and one cat. Complaints about the animals' treatment were made to law enforcement authorities and defendant UCSPCA after several people, including defendants Khuly, David Stark, and Diane Stark, visited plaintiff's home in response to an advertisement placing the puppies for adoption.

In their capacities as UCSPCA Investigators, defendants Spinato and Sasse visited plaintiff's home to assess the validity of the complaints of animal cruelty. Having received several reports and made their own personal observations of the animals at plaintiff's home, they applied for a search warrant to seize the animals. The warrant was issued on March 1, 2002 and authorized the seizure of the nine puppies, the Rottweiler, the Chow, and any other evidence of animal cruelty found within the residence. Defendants Spinato, Sasse, DeRidder, and Palmer-Wemp executed the search warrant on March 2, 2002. As UCSPCA's Operations Manager and Veterinary Technician, respectively, defendants DeRidder and Palmer-Wemp were responsible for removing the animals from plaintiff's home and evaluating their overall health.

Defendant Spinato arrested plaintiff during the execution of the warrant while defendants DeRidder and Palmer-Wemp seized the nine puppies, the Chow, the Rottweiler, one of the Cocker Spaniels, and the cat. Two of the remaining dogs were not seized because they appeared in adequate condition. After the house was secured, plaintiff was arraigned on animal cruelty charges, and the seized animals were taken to the UCSPCA for evaluation and medical treatment.

On March 6, 2002, a state court order was issued directing that the animals be allowed to remain at plaintiff's home during the pendency of the criminal charges. (See Ex. E to Pl. Fabrikant's Aff., Dkt. No. 179-6.) Notwithstanding the order, the seized animals remained in the care of the UCSPCA. During that time, UCSPCA's Executive Director, defendant French, sought foster homes for the nine puppies and the cat. She also ordered that the animals be spayed and neutered pursuant to UCSPCA's policy for animals leaving the shelter. While in foster care, one of the hind claws of one of the dogs was surgically removed due to an alleged infection.

Plaintiff was represented by her co-plaintiff, Mr. Schindler, during her criminal case. She appeared in court on March 6 and 13, 2002 for pre-trial proceedings related to the criminal accusatory instruments. On March 26, 2002, she moved to dismiss the charges against her based upon alleged prosecutorial misconduct and the violation of her right to due process. The motion to dismiss was denied on May 2, 2002. She next appeared in court on October 24, 2002, at which time the prosecution orally moved to dismiss the charge of animal cruelty related to the Rottweiler. The judge agreed to dismiss the charge in the interest of justice, but the four other animal cruelty charges remained. Plaintiff's trial on those charges began on October 24, 2002; however, a mistrial was ordered on October 29, 2002 following prejudicial statements made during Mr. Schindler's opening statement. (See Order of Mistrial, Ex. U to Adler Dec., Dkt. No. 169-32, 2.)

Following the mistrial, plaintiff moved to dismiss all charges in the interest of justice on April 10, 2003 based upon alleged misconduct by law enforcement and UCSPCA personnel. A hearing was held on May 13, 2003 before a new presiding judge, Rochester Town Justice Ronald W. Keillor, Jr. A separate hearing was later held on May 27, 2003 in connection with plaintiff's suppression motion. Although plaintiff's motions were denied, she was acquitted after a second jury trial conducted on October 10 and 11, 2003.


Summary judgment is warranted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits reveal no genuine issue as to any material fact. FED. R. CIV. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986). All facts, inferences, and ambiguities must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003). Initially, the burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2458 (1986). After the moving party has satisfied its burden, the non-moving party must assert specific facts demonstrating there is a genuine issue to be decided at trial. FED. R. CIV. P. 56; Liberty Lobby, Inc., 450 U.S. at 250, 106 S.Ct. at 2511. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., ...

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