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James B. Ferrari v. County of Suffolk

June 7, 2011


The opinion of the court was delivered by: Seybert, District Judge:


Pending before the Court is Defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss. See Docket Entry 4. For the following reasons, this motion is GRANTED IN PART AND DENIED IN PART. The claims against Suffolk County remain, but the claims against Christine Malafi and John Does #1-10 ("Individual Defendants") are DISMISSED WITHOUT PREJUDICE.


On May 26, 2009, Plaintiff James B. Ferrari drove his 2003 Ferrari westbound on South Country Road in Bellport, New York at a speed in excess of 100 miles per hour, zigzagging across the double-yellow line as he sped along. Mot. to Dismiss, Ex. A.*fn2

Pulled over by an arresting officer, Ferrari, whose eyes were red and whose gait was marked by a decided lack of maneuverability and performance, had a smell of alcohol about him. Id. With slurred speech, Ferrari duly confessed to having consumed alcohol before driving and also confided that his intoxication was partly fueled by thirteen prescribed medications at the time. Id. The arresting officer then spotted what appeared to be crack cocaine inside Ferrari's Ferrari. "The crack pipe's mine," Ferrari offered. Id.

Driven back to the police precinct following his arrest, Ferrari stalled when asked to submit to a chemical test. Id. Here it was discovered that he had been previously convicted of driving while intoxicated on April 26, 2007. Id. The decision was therefore made, pursuant to Suffolk County Code Chapter 270, to temporarily impound Ferrari's Ferrari pending a post-seizure hearing scheduled for June 9, 2009.

At the post-seizure hearing on June 9, 2009, Ferrari's counsel informed the neutral magistrate, Justice John DiNoto, that Ferrari would not be appearing in the courtroom that day. Compl., Ex. A, at 3. To counsel's surprise, Justice DiNoto reacted by holding that the hearing could not move forward without Ferrari in court. "Credibility is a big issue in any trial," Justice DiNoto noted, "and there may be a determination with respect to the issues that have to be addressed by counsel asking questions of the witness." Id. Over counsel's protests, Justice DiNoto then adjourned the post-seizure hearing for nearly three months to September 1, 2009.

Once again on September 1, 2009, Ferrari's counsel made an appearance on his client's behalf, without Ferrari present. Compl., Ex. B, at 4. This time around, however, Justice DiNoto permitted the hearing to proceed. Plaintiff's counsel began by stating, correctly, that Ferrari bore no burden of proving anything, and thus had no obligation to personally appear. Id. at 5. The County opened by: (i) seeking a missing witness charge based on Ferrari's non-appearance; (ii) arguing that "there is no reason that this gentleman needs this vehicle back"; (iii) contending, incorrectly, that "Mr. Ferrari needs to testify as to what his hardship is going to be in this particular case"; (iv) setting forth, wrongly, that Ferrari had "the burden under the statute to show hardship and should be present." Id. at 5-6.

The parties then stipulated to the admission of the following relevant evidence: (i) Exhibit A, comprising two sworn felony complaints filed by the arresting officer, who attested that, on May 26, 2009, Ferrari drove while impaired by the combined influence of drugs and alcohol, and/or while under the influence of drugs and alcohol (Mot. to Dismiss, Ex. A); (ii) Exhibit B-2, the "Report of Refusal to Submit to a Chemical Test," which showed that Ferrari refused to submit to a chemical test at the precinct (id. at Ex. B); (iii) Exhibit C-1, which established Ferrari's prior conviction for driving while intoxicated on April 26, 2007 in New York County; (iv) Exhibit C-2, an abstract of Ferrari's New York State DMV driving record, indicating that he also had convictions for driving while impaired (on June 13, 2005 in Nassau County Court), for unlicensed operation of a motor vehicle (on April 2, 2006), as well as a host of driver's license suspensions or revocations (id., Ex. C); and, (v) Exhibit E, another printout from the DMV, which showed that Ferrari owned another vehicle--a 2003 Land Rover, which was registered under his name. (id., Ex. F) After introducing this evidence the County rested; Ferrari's counsel, meanwhile, offered no evidence. Compl., Ex. B, at 11.

After resting, but before summation, the County again reiterated that Ferrari owned another vehicle, the Land Rover, and thus could not show "hardship" from losing the Ferrari. Id. at 10-11.

Summations then ensued. Ferrari's counsel argued that, because the County adduced no evidence that the Ferrari would be moved out of the state, destroyed, or sold, the sports car could not be properly impounded pursuant to Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002). For its part, the County argued that: (i) "based on his driving record . . . [t]he County believes that the vehicle would be damaged or even removed from the state if it was allowed to go back to the owner"; (ii) "there's obviously a problem with Mr. Ferrari. Therefore, the County believes that a bond, a restraining order, or any of the other means available to them . . . would not maintain this vehicle in the manner and in the form that it was taken when it was seized"; (iii) "Mr. Ferrari has not proven to be a responsible driver in this particular case"; and (iv) because there are no lien holders, Krimstock is "dicta." Id. at 14-17. The County added, however, that it sustained any "burden" Krimstock might impose. Id.

After weighing the parties' arguments, Justice DiNoto ruled as follows: "After a hearing and based on the credible evidence adduced at the hearing, I find firstly that there was, in fact, probable cause for the stop and arrest in this case. The second part of my determination is that Suffolk County is directed to retain the vehicle pending resolution of the forfeiture proceeding." Id. at 18. Apart from his reference to probable cause, the Justice did not explain how (or, indeed, whether) his reasoning squared with Krimstock. Id. At no time did Justice DiNoto take issue with, or even acknowledge, the County's multiple, flagrant misstatements of the law, including: (i) its belief that Ferrari's failure to appear entitled it to a missing witness charge; (ii) its astonishing claim that Ferrari had the burden of proving hardship, and needed to do so through his testimony; (iii) its attestation that Ferrari had the burden of "prov[ing] to be a responsible driver in this particular case"; and (iv) its odd interpretation of Krimstock as "dicta."*fn3

On June 29, 2010, Ferrari was convicted by guilty plea of all the underlying charges*fn4 Driving While Intoxicated (Vehicle and Traffic Law § 1192.4); Driving While Ability Impaired by Drugs (Vehicle and Traffic Law § 1192.4); Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs (Vehicle and Traffic Law § 1192.4-a); and Criminal Possession of a Controlled Substance in the 7th Degree (Penal Law § 220.03). Mot to Dismiss, Ex. G.

On September 16, 2010, Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that his procedural and substantive due process rights were violated by the County of Suffolk, the County Attorney for Suffolk County (Christine Malafi), and John Does 1-10 (who are allegedly responsible for training hearing officers and county attorneys to violate Krimstock's principles). The Complaint alleges, inter alia, that the Defendants knowingly train, and/or deliberately permit, the hearing officers who preside over post-seizure retention hearings to deliberately and systematically refuse to comport with the due process requirements set out in Krimstock and Suffolk County Code § 270-26. It is claimed that, as a matter of policy and practice, the County was not required at the second retention hearing to meet its "entire burden" of demonstrating whether probable cause existed for Ferrari's arrest, whether the County would likely succeed on the merits in its forfeiture action, whether retention was necessary to prevent the destruction or sale of the vehicle pending the forfeiture proceeding, and whether any less restrictive means existed for protecting the County's interest. Compl., ¶ 42. It is further alleged that Defendants deliberately, willfully, and contumaciously deprived Plaintiff of his rights under Krimstock by requiring him to appear personally at retention hearings and by improperly shifting onto him the burden of showing hardship. Id. at29, 49.

Defendants' Rule 12(b)(6) motion argues that: (1) Plaintiff does not state a claim for a procedural due process violation against any of the Individual Defendants; (2) Plaintiff does not state a claim for a substantive due process violation against any of the individual Defendants; (3) the Monell claim against the County must be dismissed; and (4) ...

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