The opinion of the court was delivered by: Hurley, Senior District Judge:
Plaintiffs Field Day LLC f/k/a/ New York Music Festival and AEG Live LLC f/k/a/ AEG Concerts LLC (collectively "plaintiffs" or "Field Day") commenced this action for money damages and injunctive relief against the County of Suffolk and the Suffolk County Department of Health Services (collectively the "County") and numerous County employees*fn1 (the County employees named as defendants are collectively referred to as the "Individual County Defendants," and the Individual County Defendants and the County are collectively referred to as the "County Defendants"), the New York State Health Commissioner, the Town of Riverhead ("Riverhead") and the Riverhead Police Chief ("Hegermiller"). Plaintiffs allege that they were unlawfully denied the right to stage a weekend-long concert festival within the Town of Riverhead because of the actions of the various defendants. This opinion will address (1) Riverhead's motion for summary judgment; (2) Hegermiller's motion for summary judgment; and (3) plaintiffs' motion for partial summary judgment against Riverhead and Hegermiller. For the reasons set forth below, the relief sought in all three motions is denied, except that Riverhead's and Hegermiller's applications targeting plaintiffs' eleventh cause of action sounding in prima facie tort are granted, and that cause of action is dismissed as to those defendants as a matter of law.*fn2
This action arises out of Field Day's efforts to promote and produce a two-day music festival featuring leading rap, hip-hop, and rock artists which was to take place June 7-8, 2003 (the "Festival"). After considering other locations, Field Day entered into a "License Agreement for Outdoor Event" (the "Agreement") with the Riverhead Community Development Agency ("CDA"), a "public instrumentality" of the Town of Riverhead.*fn3 Under the terms of the License Agreement, Field Day paid $150,000 to lease roughly 1,000 acres of the Calverton Enterprise Park from May 5, 2003 to June 22, 2003 for the purposes of holding the festival. Agreement ¶¶ 1,3; Second Amended Complaint ¶ 35. Field Day expected the festival to draw between 35,000 and 40,000 people.
Under the Agreement, Field Day had the responsibility of securing "a 'Mass Gathering Permit' or such other assembly permit as is deemed necessary by the Commissioner of the Suffolk County Department of Health" prior to the concert "and a 'Special Event Permit' from the Town of Riverhead . . ." Agreement ¶ 2. The CDA agreed to "provide sufficient police protection (including necessary barriers and bike racks); and any necessary road signs for purposes of directing highway and road traffic only." Agreement ¶ 6. The Agreement further provides that Field Day "agrees that it shall also provide additional security services reasonably necessary to protect the health and safety of concert goers as well as the general public attending the Event, and generally to protect against damage to or loss of property, including the land, buildings, equipment and/or facilities provided by CDA hereunder for use in connection with the Event. [Field Day] and CDA will undertake all necessary coordination with state, county and local law enforcement agencies." Agreement ¶ 6.
Over the next several months, Field Day worked with Riverhead and Suffolk County in order to obtain the mass gathering permit. On May 27, 2003 the mass gathering permit was denied. On June 3, 2003 the County moved in New York State Supreme Court for an injunction to preclude Field Day from holding the festival. The instant action was commenced on May 26, 2004.
Field Day alleges that Riverhead and Suffolk County, through their employees, unlawfully failed to approve its application by imposing a series of arbitrary prerequisites to the issuance of the permit. By way of two examples of such unconstitutional impediments, plaintiffs cite Riverhead Police Chief Hegermiller's position that approximately 200 police officers would be necessary to service the event, and Suffolk County's insistence that before it could provide officers towards that goal, an intermunicipal argument would have to be executed between Riverhead and the County. The Second Amended Complaint alleges violations of First Amendment free speech rights and common law claims including tortuous interference with contractual relations, tortuous interference with business relations, prima facie tort and negligence.
I. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008); Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009); Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See SCR Joint Venture, 559 F.3d at 137; Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or more than "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)).*fn4 "Rule 56(e)'s requirement that the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertion that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,183 F.3d 155, 160 (2d Cir. 1999)).
When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55.
A district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because "the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of a summary judgment motion." See Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here the non-movant will bear the ultimate burden of proof at trial on an issue, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587). In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).
II. Riverhead's Motion for Summary Judgment
Riverhead has moved for summary judgment as to all of Field Day's claims in which it is named as a defendant. Those various causes of action, as synopsized by the movant, allege that "Riverhead breached the Agreement by failing to provide sufficient police services for the concert, violated 42 U.S.C. § 1983, conspired to violate the plaintiffs' civil rights, violated Section 8 of the State Constitution, and engaged in tortious and negligent conduct." Def. Riverhead's Mem. in Supp. of Mot. for Summary J. at 1. Judgment, Riverhead proffers, "should be entered in [its] favor . . . because the evidence fails to support the plaintiffs' claims as a matter of law." Id. The targeted claims will be discussed in turn, beginning with the breach of contract cause of action.
(i) Parties to the Agreement are Field Day and the CDA; Legal Distinction
Between Town of Riverhead and its CDA
The parties to the February 20, 2003 Agreement are the CDA and New York Music Festival LLC, which, as the caption to the Second Amended Complaint indicates, was a predecessor entity of Field Day. However, the CDA, unlike Riverhead, is not a named-defendant in the caption of the case nor mentioned in the "PARTIES" portion of the complaint. See Second Amendment Compl. "PARTIES" at 4-7.
Section 680-c, entitled "Town of Riverhead [C]ommunity [D]evelopment [A]gency," of the New York State General Municipal Law, created the CDA as "a body corporate . . . [of] perpetual . . . duration" with "the powers and duties . . . conferred by Articles 15 and 15-a of this chapter upon community development agencies. . . ." N.Y. Gen. Mun. L. § 680-c. "Its members shall consist of the supervisor of the [T]own of Riverhead, who shall be its chairman and the four councilmen of the [T]own of Riverhead." Id. It is a separate and distinct entity that "has an existence independent of the sponsoring municipality" i.e. the Town of Riverhead. N.Y. Op. State Compt. 78-402. Among its powers as a community development agency is the power "to sue and be sued," N.Y. Gen. Mun. L. § 554(1), and "to make and execute contracts and all other instruments necessary or convenient for the exercise of its powers and functions." N.Y. Gen. Mun. L. § 554(4).
Plaintiffs contracted with CDA, rather than the Town of Riverhead,
presumably because the "CDA owns title in fee to approximately 2400
acres of land in Calverton, New York, commonly known as Calverton
Enterprise Park," a portion of which was "[l]icensed" to plaintiffs
for the festival. Agreement at 1. The Agreement signatory for the CDA
is Robert F. Kozakiewicz, in his capacity as "Chairman" of the CDA.
Id. at 10. To the left and below the signatures affixed on the
Agreement's last page on behalf of the two contracting parties is the
signature of "Escrow Agent" John J. Hansen ("Hansen"), who is
identified as the "Financial Administrator of the Town of Riverhead."
Id. Paragraph 5 of the Agreement explains that the licensee shall post
$10,000 in escrow [with Hansen] to assure that the grounds are
appropriately "cleaned and restored" after the festival to the
satisfaction of the CDA. Id. ¶ 5. And paragraph 7 requires the
licensee to list the Town of Riverhead along with the CDA as potential
beneficiaries as their interest may appear in the "Insurance and
Indemnification" portion of the Agreement. Id.
at ¶ 7. However, those two incidental provisions, viz. identifying
Hansen as the escrow agent and including Riverhead with the CDA in the
insurance and indemnification provision of the Agreement,*fn5
do not affect that which is obvious from a perusal of the
Agreement, viz. Riverhead is not a party to the Agreement.
The CDA, as mentioned previously, is a "body corporate . . . perpetual in duration," N.Y. Gen. Mun. L. § 680-c, separate and distinct from Riverhead. See N.Y. Op. State Compt. 78-402. "Town Law § 64(6) demands that a formal resolution be passed by the Town Board and executed by the Town Supervisor in the name of the Town before a Town can be bound by any contract."*fn6
Verifacts Grp., Inc. v. Town of Babylon, 267 A.D. 2d 379, 379 (2d Dep't 1999); see also Granada Bldgs., Inc.v. City of Kingston, 58 N.Y.2d 705, 708, 444 N.E.2d 1325, 1326 (1982). That CDA members, "consist[s] of the supervisor of the town of Riverhead . . . and the four council [persons] of the town of Riverhead," N.Y. Gen. Mun. L. § 680-c, does not erode the need for strict compliance with Town Law § 64 if the Town is to be bound by a contract. See 1970 NY Atty Gen. Rep. & Op. 114-15 (1970)(N.Y. Gen. Mun. L. § 507(2)(d) requires that Rochester's Common Council, as the City's "governing body," must approve by at least a majority vote any proposed disposition of real ...