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Matthew Prince v. County of Nassau

September 21, 2011

MATTHEW PRINCE, PLAINTIFF,
v.
COUNTY OF NASSAU, JOHN FITZGERALD, LIEUTENANT, NASSAU COUNTY POLICE DEPARTMENT, 1ST PRECINCT, JOHN/JANE DOES #1-5 POLICE SUPERVISORY AND TRAINING PERSONNEL, JOHN SOTO, JOHN HERMAN, ARNOLD ROTHENBERG, SERGEANTS, 1ST PRECINCT, JOHN/ JANE DOES #6-20, POLICE OFFICERS, SCOTT TUSA, ASSOCIATE FIRE MARSHAL, NASSAU COUNTY OFFICE OF FIRE MARSHAL, JOHN/JANE DOES #21-25, FIRE MARSHAL SUPERVISORY AND TRAINING PERSONNEL, AND JOHN/JANE DOES #26-30, ASSOCIATE FIRE MARSHALS, DEFENDANTS.



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

MEMORANDUM & ORDER

Plaintiff Matthew Prince brings the present action pursuant to 42 U.S.C. § 1983 alleging that defendants Nassau County, Brian Fitzgerald, Richard Soto, Richard Hermann, Arnold Rothenberg, and Scott Tusa harassed him and caused his employment to be terminated in retaliation for plaintiff's testifying before a Grand Jury, as well as plaintiff's involvement with a complaint his parents filed with the Nassau County District Attorney and the Nassau County Police Department's Internal Affairs Unit. Plaintiff alleges that defendants violated his First Amendment and Due Process rights as well as the New York State Constitution.*fn1 Plaintiff also asserts state law claims for tortious interference with business relations and intentional infliction of emotional distress. Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, defendants' motion is granted in part and denied in part.

BACKGROUND

The material facts, drawn from the Complaint and the parties' Local Civil Rule 56.1 Statements, are undisputed unless otherwise noted.

The Parties

Plaintiff has been employed in the hospitality industry on Long Island since approximately 1994 and worked at a bar-restaurant located in Uniondale, New York that was known initially as Bogart's and then as Chrebet's. Defendant Nassau County (the "County") is a municipal corporation duly organized and existing under the laws of the State of New York.

Defendant Tusa is employed by the Nassau County Office of the Fire Marshal ("Fire Marshal") and has served as the Division Supervisor of the General Inspection Division since late 2004. The remaining individual defendants are or were employed by the Nassau County Police Department ("Police Department"): (1) Soto as a Sergeant in the First Precinct beginning in December 2005, (2) Rothenberg as a Sergeant in the First Precinct beginning in January 2006, (3) Fitzgerald as a Lieutenant Desk Officer in the First Precinct between December 2006 and July 2009, (4) Hermann as a Sergeant in the First Precinct beginning in January 2006.

Bogart's was opened in 1994 by Prince News Corp., a corporation owned by plaintiff's parents, and was operated as a licensed bar and restaurant. Between 1994 and 2006, plaintiff regularly worked at Bogart's in various capacities, including bartender, deejay, or consultant. Although plaintiff does not dispute defendants' contention that he worked as a manager at Bogart's (see Defs.' 56.1 ¶ 7), he, nonetheless, contends that he was never "the manager" at Bogart's and whenever plaintiff worked at Bogart's "there was always a manager on duty" (see Pl.'s 56.1 ¶¶ 187, 188).

On the weekends, Bogart's could be open as late as 4:00 a.m. Bogart's had a maximum total public occupancy of 330, which included up to 270 patrons on the main level and up to 60 patrons on the lower level. Defendants contend that between April 2000 and May 2003, there were approximately 350 calls for police service and assistance made in connection with "incidents at Bogart's," which included "conditions, aided cases, assaults, and fights." (Defs.' 56.1 ¶ 45.) Plaintiff disputes the accuracy of that number, noting that the underlying data shows that the records of those 350 calls included duplicative entries, logs of "hang-ups," and records of calls that ultimately had nothing to do with Bogart's.

Defendants' Presence at Bogart's Prior to October 2002

The parties agree that between January and October 2002, Bogart's was issued approximately six or seven appearance tickets and multiple referrals to the New York State Liquor Authority ("SLA") based upon claimed violations for underage drinking, disorderly premises, unsupervised premises, and failure to post licenses. (Defs.' 56.1 ¶ 8.) Between 1994 and October 2002, the Police Department and Fire Marshal issued seventy-five appearance tickets, completed one case report, and made twelve arrests at Bogart's. (Id. ¶ 46.)

According to plaintiff, in August 2002 the police responded to a call made from Bogart's requesting assistance with an individual that was standing outside with a knife. (Pl.'s 56.1 ¶ 217.) Plaintiff asserts that he had actually chased the individual down the street and pulled the knife from his hands. Plaintiff returned to the bar, and the police arrested the individual. Sergeant Jean Flynn, also of the First Precinct, began yelling at plaintiff "and was in his face." (Id.) As plaintiff "was responding," First Precinct Police Officer Michael Moran "grabbed [plaintiff's] right arm, twisted it behind his back and slammed [plaintiff] down onto the bar in the presence of patrons." (Id.) Plaintiff alleges that his arm was "black and blue from the incident and he had shoulder pain." (Id. ¶ 218.)

Defendants' version of the August 2002 incident is somewhat different. According to defendants,*fn2 while First Precinct officers were investigating a stabbing at Bogart's, another disturbance broke out and Flynn was punched in the face by a female patron. (Ben-Sorek Decl., Ex. J.) Shortly after the assault on Flynn, plaintiff arrived at the bar and "got into a heated argument with [Flynn] about being issued an appearance ticket for the disorderly premises." (Id. at 7.) At that time, Moran "physically directed [plaintiff] away from" Flynn. (Id.) Video surveillance footage revealed that the entire physical encounter spanned about eight seconds. (Id.)

The October 6, 2002 Incident

At 1:55 a.m. on October 6, 2002, a fight erupted inside Bogart's, which resulted in two patrons, including Peter Fama, being ejected from the bar. Outside, Sergeant Ronald Nesbitt, Police Officer Collins, and three other officers were in the process of ticketing cars parked in front of Bogart's. The officers asked the ejected patrons to leave the premises, but the patrons refused and became verbally abusive. At the time, plaintiff was standing just outside Bogart's side door, approximately ten to fifteen feet away from the officers and patrons. Defendants contend that Fama physically assaulted one of the police officers; although plaintiff did not observe this assault, plaintiff does not dispute that it occurred. Plaintiff did observe three police officers physically assault Fama. The officers then arrested Fama for disorderly conduct and charged him with, inter alia, resisting arrest, obstruction of justice, and assault.

Subsequently, plaintiff was subpoenaed to testify before a Grand Jury regarding what he saw during the early morning hours of October 6, 2002. Plaintiff's testimony contradicted the police officers' version of the events in question, and plaintiff later learned from his attorney that the Grand Jury did not return an indictment against Fama. During his testimony before the Grand Jury, plaintiff identified only Collins. Plaintiff now contends, however, that documents produced during discovery make clear that Nesbitt was also at the scene. (See Pl.'s Response to Defs.' 56.1 ¶ 24.)

Plaintiff asserts that before he testified before the Grand Jury, Collins had always been "very nice and friendly" to him and there were no problems between them. (Pl.'s 56.1 ¶ 198.) Plaintiff asserts that just after he testified, however, Collins confronted plaintiff and a verbal exchange took place:

Q: . . . What was the exchange?

A: [Collins said,] So you testified today. I said yeah. He said you didn't say anything about me, did you? I said no, of course not. He said don't you F-ing lie to me. I said what are you talking about?

He goes I got the transcript. I know every F-ing word you said and I'm going to take you out of your life for what you just did. (Id. (citing Pl.'s Dep. at 81).)

Defendants does not appear to dispute that Collins made the attributed statements. Defendants assert, however, that Collins never informed plaintiff that Collins intended to tell, or did tell, other officers about plaintiff's Grand Jury testimony. (Defs.' 56.1 ¶ 29.) Plaintiff contends in response that he believed that Collins had, in fact, told other officers about his Grand Jury testimony "because officers treated him differently after his testimony." (Pl.'s Response to Defs.' 56.1 ¶ 29.) According to plaintiff, "Officers that liked me prior didn't like me post . . . prior to me testifying [it] was strictly business by the police. They did whatever they had to do. After [the testimony] it was personal. That's the difference." (Pl.'s Dep. at 98.) While plaintiff acknowledges that certain of the defendants testified during their depositions that they had no knowledge of plaintiff's Grand Jury testimony or the underlying assault about which he testified, plaintiff believes the difference in treatment that he received from the Police Department subsequent to his testimony made it "obvious that the other officers were aware" of that testimony. (Pl.'s Response to Defs.' 56.1 ¶ 30.)

According to plaintiff, after he testified before the Grand Jury, "[t]he police went on a rampage for [him]." (Pl.'s Dep. at 82.) In particular, plaintiff testified as follows:

Every time [the police] walk in[to Bogart's] they're looking for me.

Not looking for managers. Looking for me. The way I was spoken to, the way they hunted me down, the frequency of them showing up looking for me, just to the point of . . . harassment. (Id. at 82-83.) Plaintiff also asserts that, prior to his October 2002 Grand Jury testimony, the Police Department would conduct premises checks*fn3 of Bogart's by sending two police officers and one sergeant. Plaintiff contends that after his Grand Jury testimony, however, the police "raided" Bogart's by sending more than just two police officers and one sergeant. (Pl.'s 56.1 ¶200.) Plaintiff also asserts that following his Grand Jury testimony, police officers would stand outside Bogart's, or sit outside in marked police vehicles, and tell potential patrons "not to go in the building" or that "if you would [not] like to spend the weekend in jail I wouldn't come here tonight." (Pl.'s Dep. at 87-88.)

Nesbitt's Alleged Conduct

Plaintiff asserts that Nesbitt harassed him, both before and after his Grand Jury testimony. According to plaintiff, Nesbitt would come to Bogart's at least once per week, every week. Sometimes, Nesbitt would simply park his marked police vehicle car in front of the bar and leave his lights flashing. Other times, Nesbitt would enter the bar, speak to the manager on duty, and ask for plaintiff. When plaintiff confronted him, Nesbitt smiled and said that he asked for plaintiff "because I like you, Matty." (Pl.'s Dep. at 63.) Plaintiff asserts that Nesbitt also approached patrons and told them "they shouldn't be in this place, that he's going to shut down this place." (Id. at 65.) Plaintiff asserts that although Nesbitt's conduct pre-dated October 2002, Nesbitt "stepped it up a notch" after plaintiff's Grand Jury testimony. (Id. at 153.)

Defendants dispute the majority of plaintiff's allegations regarding Nesbitt's conduct. Nesbitt testified that, beginning in 2001, he would go to Bogart's two or three times per month to conduct inspections or checks of the location. (Nesbitt Dep. at 44.) According to Nesbitt, the reason for that frequency of his visits was "the culmination . . . of many, many, many calls for assistance" and a high volume of fights at that location. (Id. at 45.) Nesbitt testified that on five or six occasions he was assigned to go to Bogart's and write tickets, and on eight to ten occasions he went to Bogart's without being assigned. (Id. at 48-49.) Nesbitt acknowledged that on a "couple" of occasions, he parked his marked police vehicle on the sidewalk in front of Bogart's when there were cars parked illegally in front of the bar. (Id. at 50-51.) Nesbitt denied, however, that he ever parked his car in front of Bogart's in an effort to discourage patrons from entering the bar. (Id. at 53.) Although Nesbitt was assigned to patrol Zone D of the First Precinct, he would "quite often" find himself assigned to patrol Zone A, in which Bogart's was located. (Id. at 57.) Nesbitt testified that he never requested to patrol Zone A. (Id. at 58.)

The IAU Complaint

In October 2002, plaintiff's parents, Allan and Pamela Prince, filed a harassment complaint against the Police Department with the Nassau County District Attorney and the Police Department's Internal Affairs Unit ("IAU"). One document in the record, which appears to be a complaint intake form used by the Nassau County District Attorney's Office, indicates that the complaint was initiated on October 11, 2002. (Ben-Sorek Decl, Ex. K.) That document identifies the complainants as Brian Griffin (plaintiff's parents' attorney), plaintiff, and "Alan Prince." (Id.) The complaint alleges that between July 2, 2002 and October 11, 2002, "Sgt. Nesbitt and Members of the 1st Pct. have engaged in harassment of the Bar's owners, employees, and patrons. As part of [the] harassment, . . . several people have been subject to excessive force and then wrongfully charged [with] assault [in the second] degree." (Id.)

On October 21, 2001, plaintiff's parents and their attorney met with Detective Lieutenant John W. Feil of the Police Department's IAU to discuss their complaint. (Ben-Sorek Decl., Ex. L.) A summary of the information discussed during that meeting is contained in a Complaint Tracking Form. (Id.) That form reflects that the complaint was based in part on the conduct of Nesbitt, whom plaintiff's parents believed was "single-handedly attempting to put them out of business by telling their employees they better find new jobs soon," and "[going] out of his way to issue tickets to their son, Matthew." (Id.) The complaint was also based on the August 2002 incident involving Flynn and Moran. (Id.) Finally, the complaint alleged that "additional persons were assaulted by police during other licensed premises checks." (Id.) Detective Lieutenant Ralph T. Hoffman conducted the investigation of the complaint. (Ben-Sorek Decl., Ex. J at 1.)

During his deposition, plaintiff testified that the complaint "wasn't my lawsuit. It was my parents[']." (Pl.'s Dep. at 124.) Nonetheless, as part of his opposition to the present motion, plaintiff sets forth numerous objections to the manner in which his parents' complaint was investigated, including the following: (1) Hoffman did not commence his investigation until June 2003 (Pl.'s 56.1 ¶ 221), (2) Hoffman interviewed only one of the eleven witnesses who submitted statements on behalf of plaintiff's parents because, in his view, many of the statements were in the same handwriting and all of the statements were considered "self-serving" and "prejudicial" (Pl.'s 56.1 ¶¶ 222, 223; Ben-Sorek Decl., Ex. J at 2-3), (3) Hoffman did not interview plaintiff's parents, even though he "generally interviewed the complaining party" (Pl.'s 56.1 ¶ 223), but Hoffman did meet with Nesbitt, Moran, and Flynn to discuss the allegations (id. ¶ 225), and (4) the investigation did not conclude until January 11, 2005 -- more than two years after it began (id. ¶ 226.) Hoffman concluded that the allegations that Nesbitt unfairly targeted Bogart's and its employees were "unfounded," the allegations that Nesbitt told Bogart's employees that they should look for new jobs were "undetermined," and Moran was "exonerated" from any allegations that he used excessive force during the August 2002 incident. (See Ben-Sorek Decl., Ex. J at 9-11.)

Defendants' Presence at Bogart's After October 2002

The parties do not dispute that between October 22, 2002 and the time Bogart's closed in January 2005, multiple SLA referrals were issued for claimed violations for underage drinking, overcrowding, disorderly premises, and failure to maintain exit-ways. Defendants contend that during the same time period, four appearance tickets were issued to plaintiff. Plaintiff disputes this assertion and claims that more than four appearance tickets were issued to him. (Pl.'s Response to Defs.' 56.1 ¶ 9.) Moreover, plaintiff contends that the number of appearance tickets issued during this time period does not accurately reflect the police presence at Bogart's during this time frame. (Id.) For example, plaintiff contends that Nesbitt would often park his police car in front of Bogart's but not make any official record of doing so. (Id.)

Between November 2002 and June 2005, the Police Department and Fire Marshal issued fifty-six appearance tickets, completed eight case reports, and made three arrests at Bogart's. The bar also had its liquor license suspended twice by the SLA during this time frame.

On September 26, 2003, Fire Marshal Krummenacker visited Bogart's for a safety inspection and issued three tickets to Prince News Corp. d/b/a Bogart's and issued two tickets to plaintiff based on overcrowding and improper maintenance of exit-ways. Plaintiff contends that these tickets were improperly issued to him because he was neither the owner nor manager of Bogart's. On September 15, 2005, Nassau County District Court Judge Pardes issued a bench warrant (the "Bench Warrant") for plaintiff based upon his failure to appear in response to the September 26, 2003 tickets.

Bogart's Change in Ownership

On April 1, 2004, plaintiff's parents, as representatives of Prince News Corp. d/b/a Bogart's, surrendered their liquor license to the SLA. According to plaintiff, his parents took this action because the "police were harassing [and] looking for [him]" and his "family had enough of it." (Pl.'s Dep. at 59.) Plaintiff testified that the "final straw" came in August 2003, when Bogart's received a ticket in connection with an alleged rape that occurred in the bar. (Pl.'s 56.1 ¶ 232 (citing Pl.'s Dep. at 164-75).) According to plaintiff, the alleged victim had admitted that no rape had occurred and the entire incident was nothing more than "trumped-up charges by the police." (Pl.'s Dep. at 165.)

Lisa and David Dobins, through their corporation A-Leet Enterprises, became the new owners of Bogart's. Plaintiff was retained by A-Leet Enterprises as a consultant and was tasked with advising Lisa and David Dobins "how to run" a bar/restaurant. (Pl.'s Dep. at 103.) As a consultant, plaintiff was expected to be available by telephone at any time, but had no set working hours at the bar. (Id. at 103-04.) A-Leet Enterprises applied for a new liquor license for Bogart's, and the SLA issued the license to A-Leet Enterprises d/b/a Bogart's.

On March 11, 2005, the Dobins sent their two attorneys and plaintiff to meet with Tusa and Mark DeLuca, another Fire Marshal. The purpose of the meeting was to determine why the Fire Marshal was "harass[ing]" Bogart's by coming to the bar frequently and issuing numerous, and allegedly meritless, tickets. (See Pl.'s 56.1 ¶ 238.) According to Tusa, he stated during the meeting that the fire marshals have to come to Bogart's frequently because "we're getting a lot of complaints at the location, or there's a lot of problems at the location." (Tusa Dep. at 98-99.) Tusa denied harassing the Dobins or Bogart's and told their attorneys that "[w]e just need them to do what they need to do." (Id. at 98.) Plaintiff, in contrast, described the meeting as a "very cold conversation" and recounted Tusa's alleged statement that "we have the right to come in whenever we want to come in." (Pl.'s Dep. at 239.) According to plaintiff, "the fire marshals didn't come to be helpful, they came there to put fear into them and [Tusa] sa[id], 'this is the way it is, and if you think calling your attorney to call us is going to stop,' basically, 'think again.'" (Id. at 240.) The day after the meeting, fire marshals went to Bogart's for an overcrowding check and arrested Fabrizio Glick, the manager, based upon charges of overcrowding, failure to maintain an accurate count, and criminal nuisance. (See DeLuca Dep. at 125-126.)

In October 2005, the liquor license held by A-Leet Enterprises d/b/a Bogart's was suspended because plaintiff had been ticketed for violations of overcrowding and underage drinking. Bogart's closed in January 2006. According to plaintiff, A-Leet Enterprises stopped operating Bogart's "[because the police were crazed about Matt Prince and David and Lisa [Dobins] couldn't take it any more. They couldn't run their place." (Pl.'s Dep. at 104.) Chrebet's Opens for Business

In early 2006, Wayne Chrebet, a former professional football player, decided to open an upscale restaurant at the former Bogart's location. Plaintiff and Chrebet had known each other from college and the two agreed to work together on the venture, with Chrebet investing money to renovate the premises and plaintiff "run[ning] the place." (Pl.'s 56.1 ¶¶ 245, 246.) Chrebet entered into a twenty-five year lease with the landlord to secure the location. (Id. ¶ 248.) According to plaintiff, he and Chrebet initially agreed to enter into business "as partners." (Pl.'s 56.1 ¶ 249; Pl.'s Dep. at 190.) However, in May 2006, plaintiff, Chrebet, and Chrebet's Inc. (the "Corporation") entered into a consulting agreement (the "First Agreement"). (Pl.'s Ex. 13.) The First Agreement acknowledged that the Corporation would expend at least $680,000 to build and renovate Chrebet's. (Id. ¶ 2.) The First Agreement provided that plaintiff would serve as a consultant to the Corporation and would receive some compensation.*fn4 The First Agreement further provided that it would become effective on May 1, 2006 and would remain in effect "until MATTHEW becomes a shareholder in the CORPORATION or until such time as MATTHEW shall voluntarily withdraw from this Consulting Agreement." (Id. ¶¶ 2, 5.) Plaintiff testified, however, that he was never actually compensated pursuant to the First Agreement because "our agreement was it didn't kick in until the doors opened." (Pl.'s Dep. at 213.) At some point, however, Chrebet began to provide plaintiff with $1,000 per week as "living money." (Id. at 216.)

Between Spring 2006 and March 2007, plaintiff helped design and renovate "Chrebet's Bar and Restaurant" ("Chrebet's") with the goal of transforming it into an upscale restaurant. Plaintiff also oversaw the hiring of staff members, with the assistance of two managers, Jen Shin and Christopher Green. (Pl.'s Dep. at 205.) According to plaintiff, in approximately late February 2006, plaintiff and Chrebet submitted an application to the SLA for a liquor license for Chrebet's. (Pl.'s Dep. at 193-94.) At some point after that, the SLA imposed a two-year ban on the issuance of any liquor license for that building. (Id. at 193.) Plaintiff believed the reason for the ban was the number of tickets that had been issued for the premises in prior years. (Id. at 196.) According to plaintiff, the building's landlord hired an attorney who was able to get the ban lifted in approximately August 2006. (Id. at 195.) Subsequently, Chrebet submitted another application for a liquor license (in the name of the Corporation only), which was approved. (Id. at 196.)

Shortly before Chrebet's opened in March 2007, plaintiff alleges that the fire marshals performed a "final inspection." (Pl.'s 56.1 ¶ 259.) According to plaintiff, DeLuca commented: "Matt, if I knew you built such beautiful places, I would show you many other locations I could help shut down and you could bring another sports start here to our island." (Id. (quoting Pl.'s Dep. at 220-21).) Plaintiff asserts the Chrebet's did not pass the inspection because of an issue with the sprinkler system. Plaintiff contends that DeLuca commented sarcastically, "Doesn't that suck?" (Id. ¶ 260 (citing Pl.'s Dep. at 222.) According to plaintiff, the sprinkler system was subsequently fixed and Chrebet's passed inspection. (Id. ¶ 261.)

On March 1, 2007, plaintiff, Chrebet, and Chrebet's Inc. entered into a "Consulting Agreement." According to plaintiff, the parties entered into this second agreement to formally signify that plaintiff and Chrebet were not partners; plaintiff was only a consultant for the Corporation. (Pl.'s Dep. at 190.) Such change was necessary, according to plaintiff, after his attorney learned from the SLA that it would not issue any liquor license with plaintiff's name on it. (Id. at 190-91.) Plaintiff further alleges that his attorney was told by a Mr. Buckley, presumably employed by the SLA, that "they have had numerous phone calls from the captain of the First Precinct not to issue a liquor license in [plaintiff's] name." (Pl.'s Dep. at 43.)

Pursuant to the Consulting Agreement, plaintiff was retained as a consultant to the Corporation and agreed to "serve as a General Manager of Chrebet's Bar and Restaurant and shall have full control over the management and operation of Chrebet's . . . ." (Ben-Sorek Decl, Ex. G ¶¶ 2, 3.) Plaintiff was to receive compensation in the amount of $3,000 per week plus 55% of the profits of the Corporation. (Id. ¶ 4.) The Consulting Agreement provided that its terms "shall remain in full force and effect for such period of time until MATTHEW becomes a shareholder in the CORPORATION or until such time as MATTHEW shall voluntarily withdraw from this Consulting Agreement." (Id. ¶ 2.)

Chrebet's opened for business in late March 2007 and plaintiff went there every day to oversee different aspects of the business. Initially, Chrebet's operated solely as a steakhouse and would stay open only until about 11:00 p.m. (Pl.'s Dep. at 218.) Chrebet's also had a lounge area that would open at 8:00 p.m. and then close "early," between 11:00 p.m. and midnight, in order to build a reputation "as an older place, as a place that wasn't for college kids." (Id. at 226.)

On March 30, 2007, fire marshals conducted a night safety inspection of Chrebet's and observed no violations. On April 28, 2007, Soto and two other police officers conducted a routine inspection of Chrebet's and observed no violations. Defendants contend that, at that time, Soto told Shin and Green that they must conspicuously post Chrebet's liquor and occupancy licenses, as well as other required signage, so that the Police Department and Fire Marshal could see them when they entered. (Defs.' 56.1 ¶ 69.) Plaintiff disputes this and contends that Soto testified that at the time of the referenced inspection, Chrebet's was not yet open for business and was, thus, not required to post any licenses. (Pl.'s Response to Defs.' 56.1 ¶ 69.) Plaintiff contends that Soto did not make any comments regarding the posting of licenses or signs at Chrebet's. (Id.)

The June 14, 2007 Incident

Between March 2007 and June 2007, Chrebet's did well financially, and "it did not experience any problems with the police or fire marshals." (Pl.'s 56.1 ¶ 269.) On June 14, 2007, Chrebet's held the grand opening of its lounge area. The parties do not dispute that at 11:51 p.m., Timothy Marshall, a communications technician at "Firecom," received an anonymous complaint that the first and second floors of Chrebet's were overcrowded, and informed his direct supervisor, Robert Sutton. At 11:58 p.m., Sutton informed Fire Marshal Syzmanski of the overcrowding complaint, who then informed Tusa. Syzmanski and Fire Marshal Pilczk went to Chrebet's and waited for Tusa to arrive. When Tusa arrived, Syzmanski and Pilczk told him the "place is jammed," they "can't get through the crowd," and they had asked Chrebet's employees to get the manager or owner. (Defs.' 56.1 ¶ 74.) The parties do not dispute that when fire marshals came to Chrebet's, they usually asked for "Fabrizio" or plaintiff because those were the names associated with the establishment. On this particular night, Tusa asked for plaintiff. Chrebet came outside and met with Tusa. According to plaintiff, ...


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