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Fiore v. Town of Whitestown

November 2, 2010

MICHAEL FIORE & SUSAN FIORE, PLAINTIFFS,
v.
TOWN OF WHITESTOWN, NEW YORK; TOWN OF WHITESTOWN POLICE DEPARTMENT; BRIAN BROOKS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DANIEL SULLIVAN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; NORMAN ULINSKI, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; & DONALD WOLANIN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.



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

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiffs Michael Fiore ("plaintiff" or "Fiore") and Susan Fiore brought suit against defendants Town of Whitestown, New York; the Whitestown Police Department ("Department"); members of the Police Commission Brian Brooks ("Brooks"), Daniel Sullivan ("Sullivan"), and Norman Ulinski ("Ulinski"); and Chief of Police Donald Wolanin ("Wolanin"). All defendants collectively moved for summary judgment as to plaintiffs' claims pursuant to Federal Rule of Civil Procedure 56. Plaintiffs opposed the motion.

On June 25, 2010, defendants' motion was granted and plaintiffs' federal claims were dismissed with prejudice. Plaintiffs' state law claims were dismissed without prejudice.

Plaintiffs move for reconsideration of the decision and to vacate the judgment pursuant to Federal Rules of Civil Procedure 59 and 60 and Rule 7.1(g) of the Local Rules for the Northern District of New York. Defendants oppose. The motion was considered on submission without oral argument.

II. BACKGROUND

Fiore was hired as a part-time Whitestown police officer on June 12, 2006. Pursuant to the Department's rules and regulations, he was placed on probationary status for a period of one year.

Sometime either in late March or early April 2007, a woman approached defendant Brooks while he was off duty to report two incidents involving Fiore. First, the woman described her recent interaction with plaintiff during which his gun was exposed while he was off duty at a local tanning salon. Second, the woman recounted a previous conversation she had with the owner of the tanning salon during which the owner allegedly described having seen plaintiff masturbating in one of the tanning rooms. At the end of their conversation, Brooks requested that the woman meet again with him and the other two members of the Police Commission, defendants Sullivan and Ulinski. The woman agreed, and a subsequent meeting was held during which the woman repeated to Sullivan and Ulinski what she had previously told Brooks about plaintiff.

The Police Commission subsequently met and the Commission decided, based upon the information relayed to them regarding the events at the tanning salon, to terminate Fiore's part-time employment with the Department. On April 4, 2007, plaintiff received a letter indicating that he would be terminated effective April 6, 2007, due to his "performance as a Police Officer not being at a level acceptable to the Town of Whitestown." Smith Aff., Ex. P, Dkt. No. 67-23. Each of the three defendants, members of the Police Commission, signed the letter and copies of the letter were provided to Oneida County Personnel, the Whitestown Town Board, and defendant Chief Wolanin.

Shortly thereafter, Fiore informed his union representative, Officer Richard Zabek ("Zabek"), of defendants' decision to terminate him. At his deposition, Zabek testified that he inquired with Ulinski about the reason for plaintiff's termination. Zabek Dep., Ex. to Bosman Affirm., Dkt. No. 93, 17:19-25, 18:1-21. According to Zabek, Ulinski initially said, "You don't want to know. Just stay out of it." Id. at 18:17-21. However, when pressed for an explanation, he replied, "I'll just put it this way, it's borderline criminal." Id. Similarly, then-Councilman for the Town of Whitestown, Charles Gibbs, also testified at his deposition that Ulinski told him in early April of 2007 that Fiore was terminated because of a "borderline criminal" act. Gibbs Dep., Ex. to Bosman Affirm., Dkt. No. 89, 18:4-19.

Defendants moved for summary judgment on all of plaintiffs' claims and plaintiffs opposed. After oral argument, defendants' motion for summary judgment was granted and the following federal claims were dismissed: 1) harm to plaintiff's reputation in violation of the Due Process Clause--the "stigma-plus" claim; 2) conspiracy to deprive plaintiff of his constitutional rights; and 3) violation of plaintiff's freedom of association, freedom of speech, and right to privacy under the First and Fourteenth Amendments. As a result of dismissing the federal claims, the court declined to exercise supplemental jurisdiction over the following state law claims: 1) violation of plaintiff's due process rights under the New York State Constitution; 2) defamation; 3) breach of contract; 4) tortious interference with contract and/or prospective advantage; 5) prima facie tort; 6) violation of plaintiff's rights under Article 78 of New York's Civil Practice Law and Rules ("CPLR"); 7) negligence; 8) violation of plaintiff's freedom of association under the New York State Constitution; and 9) loss of consortium--Susan Fiore's sole cause of action. These state law claims were dismissed without prejudice to allow plaintiffs to replead the claims in the appropriate state court.

Plaintiffs request reconsideration of the decision to dismiss the due process stigma-plus claim and the freedom of association and right to privacy claim.

III. DISCUSSION

A. Standard

A previous ruling may be reconsidered and vacated if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice. Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (citing Doe v. N.Y. City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983 ), cert. denied, 464 U.S. 864 (1983)). The question presented is therefore limited to whether the prior decision constituted a clear error of law as neither ...


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