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Facciolo v. City of New York

August 6, 2010

KAREN FACCIOLO, AS ADMINISTRATOR OF THE ESTATE OF BRUNO FACCIOLO, AND KAREN FACCIOLO A/K/A KAREN CARGILL AND ROSEANN LIPARI INDIVIDUALLY, PLAINTIFFS,
v.
THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA, AND LOUIS EPPOLITO, DEFENDANTS.



The opinion of the court was delivered by: Trager, J.

OPINION

Plaintiffs, Karen Facciolo ("Karen"), as Administrator of the Estate of Bruno Facciolo ("Bruno") and in her individual capacity, and Roseann Lipari ("Lipari"), bring this action against defendants the City of New York ("the City"), the New York City Police Department ("the NYPD"), Stephen Caracappa ("Caracappa") and Louis Eppolito ("Eppolito") (collectively, "defendants"). Plaintiffs' allegations stem from the 1990 murder of Bruno Facciolo, husband to Karen and father to Lipari. Defendants Eppolito and Caracappa -- both former NYPD detectives -- have since been convicted of various federal crimes for, inter alia, their participation in Bruno's murder. Plaintiffs now allege, under 42 U.S.C. § 1983, that Eppolito and Caracappa's roles in the murder of Bruno amount to violations of plaintiffs' and decedent's constitutional rights, including their right to due process. Plaintiffs further assert the City's and the NYPD's liability for these violations upon the theory that grossly reckless or inadequate agency policies and supervision contributed to Caracappa and Eppolito's actions. Finally, plaintiffs allege state law claims of wrongful death and negligent injury against all defendants.

The City and the NYPD (together, "City defendants") have moved for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), arguing that plaintiffs have failed to state a claim upon which relief may be granted. For the reasons explained below, City defendants' motion -- which is converted into a motion for summary judgment -- is granted.

(1) Background

The following facts are taken from plaintiffs' complaint and the supporting materials submitted by the parties. On or about August 24, 1990, defendants Caracappa and Eppolito, then members of the NYPD, illegally used a confidential NYPD database to determine that Bruno Facciolo was planning on cooperating with the government against members of organized crime. Compl. ¶¶ 2, 18. Caracappa and Eppolito then informed Anthony Casso ("Casso"), a high-ranking member of an organized crime family in New York City, of Bruno's intention. Id. ¶¶ 16, 19. Acting upon this information, Casso ordered that Bruno be murdered.

Id. ¶ 20. Bruno's body was found on August 30, 1990 with multiple stab and gunshot wounds. Id. ¶ 14.

Approximately fifteen years later, on March 10, 2005, Caracappa and Eppolito were indicted on racketeering and conspiracy charges stemming from their assistance to organized crime families over the years. Id. ¶ 28-29. Until this point, the Facciolo family had no reason to know that Caracappa and Eppolito had any involvement in Bruno's death. Id. ¶ 30. However, the indictment clearly brought to light these defendants' role in Bruno's murder: among the charges of racketeering activity leveled against Caracappa and Eppolito was one count of criminal facilitation of the murder of Bruno Facciolo. See id. ¶ 28; see also United States v. Eppolito, 436 F. Supp. 2d 532, App. A (E.D.N.Y. 2006) (superseding indictment attached as appendix to opinion), rev'd, 543 F.3d 25 (2d Cir. 2008).

This indictment and the subsequent trial were widely publicized in the news media. See App. to City Defs.' Mem. Supp. Mot. J. Pleadings ("Defs.' App.") (appending one dozen related newspaper articles). Just over a year later, on April 6, 2006, Caracappa and Eppolito were convicted on all counts, including conspiracy to murder Bruno Facciolo. Compl. ¶ 22.

Plaintiffs began to consider taking action against the City for its possible role in Bruno's murder as early as summer 2006. Plaintiffs' previous law firm, the Cochran Firm, filed a Notice of Claim -- a state law prerequisite to suing a city under certain causes of action -- against the City on July 3, 2006, on behalf of plaintiffs. Aff. Roseann Lipari ("Lipari Aff.") ¶ 4. This Notice of Claim sought damages for, inter alia, the wrongful death of Bruno "as a result of the negligence, gross negligence, recklessness, carelessness and wrongful conduct of The City of New York and the New York City Police Department... for failing to properly supervise and train Louis J. Eppolito and Stephen Caracapa [sic]." Decl. Michael Chestnov Supp. City Defs.' Mot. J. Pleadings, Ex. E ("Notice of Claim") at 1. The Notice of Claim explained that it was filed in 2006 because it was not until Eppolito and Caracappa's convictions on April 6, 2006, that plaintiffs had the information necessary to formulate a claim against the City. See id.

However, after filing this Notice of Claim, the Cochran Firm informed Lipari that it "did not see a case" against the City.*fn1 Lipari Aff. ¶ 5. Having received this advice, plaintiffs did nothing to pursue any claims over the next three years. Then, on March 5, 2009, Lipari and her husband read in the newspapers that Benjamin Brafman ("Brafman") was suing the City on behalf of another family in similar circumstances to the Facciolos. Id. ¶ 6. Realizing anew that the Facciolo family might also have a viable claim, Lipari's husband contacted Brafman, who referred Lipari to Saul Bienenfeld ("Bienenfeld"). Id. ¶ 7. On March 17, 2009, plaintiffs met with Bienenfeld in his office and "for the first time" learned that the City was responsible for Bruno's death due to the fact that the City knew or should have known that Caracappa and Eppolito had connections to organized crime at the time they were given access to confidential information. Id. ¶¶ 8-9.

Based on this new knowledge, plaintiffs filed the instant complaint on March 31, 2009. In it, plaintiffs allege that City defendants were aware of Caracappa and Eppolito's connections to organized crime while they were employed as members of the NYPD.

In support, the complaint notes that Eppolito was suspended from the department in 1984 for possible organized crime-related corruption. Id. ¶ 24. Nevertheless, Caracappa and Eppolito were allowed continued access to confidential NYPD information regarding organized crime investigations. Id. ¶ 23-24. On the basis of these facts, the complaint alleges that inadequate NYPD policies enabled Caracappa and Eppolito's actions. Id. ¶ 23-25.

City defendants filed an Answer on June 24, 2009. They then filed a motion for judgment on the pleadings on October 16, 2009. In it, they argue: (1) plaintiffs' claims under 42 U.S.C. ยง 1983 are barred by the applicable statute of limitations; (2) plaintiffs' state law claims against the City are barred because plaintiffs did not timely file a notice of claim and did not timely commence suit; and (3) the NYPD is not a suable entity. As ...


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