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Michael Caruso v. the City of New York et al

January 18, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Plaintiff Michael Caruso, a former Inspector General at the New York City Department of Investigation (DOI), brings a variety of federal and state claims, relating to his allegation that he was terminated in retaliation for his grand jury testimony regarding Bernard Kerik, the former Commissioner of the New York City Police Department. Defendants move pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings and dismissal of the Complaint. They argue that Caruso's grand jury testimony, which has recently been unsealed and is cognizable on this motion, belies and thus renders implausible the central factual allegation in Caruso's Complaint.*fn1 For the following reasons, Defendants' motion is denied.


In March 2006, Plaintiff Caruso was a longtime Inspector General at DOI, responsible for overseeing investigations of alleged improprieties at, among other places, the New York City Department of Corrections ("DOC"). In late 2005 and 2006, the Bronx County District Attorney's Office and the DOI were jointly investigating Kerik's activities while Commissioner of DOC between January 1998 and August 2001. One allegation under investigation was that Kerik had corruptly intervened in a 1999 investigation by a city agency of Interstate Industrial Corporation ("Interstate"), which at the time employed Kerik's brother and a friend of Kerik's named Larry Ray. A grand jury was empanelled to investigate and hear testimony about that subject, among others.

During the 2005--2006 investigation, Defendant Walter Arsenault, then a First Deputy Commissioner at DOI, was cross-deputized as a Bronx Assistant District Attorney (ADA). In that role, he participated in examining grand jury witnesses. In March 2006, Caruso was called to testify before the grand jury. A main subject of that testimony was to be a July 1999 meeting that Caruso had attended with Kerik and Ray Casey ("Casey"), then Commissioner of the city agency (the Trade Waste Commission) that was investigating Interstate. That meeting was held at Walker's, a downtown restaurant.

As alleged in the Complaint, Arsenault believed, and was seeking to establish before the grand jury, that at the meeting at Walker's, Kerik had vouched to Casey for his friend Larry Ray, then an Interstate employee, as a person who could provide truthful information and assist Casey in learning about Interstate. Arsenault theorized that, by so vouching for Larry Ray, whom he knew if contacted would exonerate Interstate, Kerik had been seeking to improperly influence, and perhaps derail, the investigation. The Complaint alleges that, the day before his grand jury testimony, Arsenault instructed Caruso that, while testifying, he should "remember Kerik vouched for Larry Ray at the Walker's meeting and everything will be ok." Cmplt. ¶ 21, Dkt. 1.

On March 21, 2006, Caruso testified before the grand jury. Arsenault was present and, along with a Bronx ADA, participated in questioning Caruso. Three days later, Caruso was informed that DOI was terminating his employment. Caruso had served for more than 26 years as a New York City employee.

On August 7, 2006, Caruso filed this Complaint. All six counts are based on Caruso's allegation that he was terminated in retaliation for his grand jury testimony. Specifically, Caruso alleges that he was terminated for refusing to testify falsely to the grand jury, in that he could not truthfully comply with Arsenault's order to testify that "Kerik vouched for Larry Ray," and therefore did not do so, and, presumably because this undermined DOI's theory of the case, DOI terminated him in retaliation.*fn3

As a result of federal and state criminal proceedings relating to Kerik and others, Caruso's grand jury testimony was long under seal and unavailable to counsel in this case. As a result, discovery in this case was long stayed. However, with those proceedings concluded, on April 20, 2011, Caruso's grand jury testimony was unsealed by Order of the New York Supreme Court, Bronx County, and thereupon produced in discovery.

On October 28, 2011, Defendants moved for judgment on the pleadings, based on the grand jury transcript. They argue that the minutes of Caruso's grand jury testimony are properly considered on such a motion, because the Complaint references that testimony, and they argue that these minutes reveal that Caruso in fact did testify that Kerik vouched for Larry Ray. Thus, Defendants argue, Caruso's Complaint, based on the factual claim that Caruso did not comply with Arsenault's alleged directive to so testify, rests on a conclusively demonstrated falsehood and thus fails the plausibility standard for pleadings of Ashcroft v. Iqbal, 129 S. Ct. 1949 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). In opposition, Caruso argues that the grand jury minutes do not quote him to state, literally, that Kerik "vouched for Larry Ray"; that the concept of vouching is subjective; and that the minutes are ambiguous enough on this point to create an issue of fact incapable of resolution at this stage.*fn4 The Court held oral argument on the motion on January 6, 2012.


A.Applicable Legal Standards

A motion for judgment on the pleadings under Rule 12(c) is governed by the same standard as a motion to dismiss under Rule 12(b)(6). Ades & Berg Group Investors v. Breeden (In re Ades & Berg Group Investors), 550 F.3d 240, 243 n.4 (2d Cir. 2008) (citing Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999)); see also United States Life Ins. Co. v. Blum, No. 09-cv-9416, 2011 U.S. Dist. LEXIS 1531, at *10 (S.D.N.Y. Jan. 3, 2011). Under that standard, the court must accept a plaintiff's factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Gonzalez v. Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008); see also Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010) ("We review the district court's grant of a Rule 12(b)(6) motion to dismiss de novo, accepting all factual claims in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.").

To survive a motion for judgment on the pleadings, the complaint must contain factual allegations amounting to "more than an unadorned, the-defendant-unlawfully-harmed me accusation," Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), such that those allegations, when accepted as true, "state a claim for relief that is plausible on its face." South Cherry Street LLC v. Hennessee Group LLC, 573 F.3d 98, 110 (2d Cir. 2009) (emphasis in original). Although extrinsic materials generally may not be considered on a motion for judgment on the pleadings, materials incorporated in the complaint by reference may be considered. See, e.g., Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); Pani v. Empire Blue Cross Blue Shield, 152 F.3d ...

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