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John Montalbano v. the Port Authority of New York and New Jersey

February 17, 2012


The opinion of the court was delivered by: John G. Koeltl, District Judge:


This case arises out of the plaintiff John Montalbano's ("Montalbano") desire for a gun permit. The plaintiff, a former officer with the Port Authority Police Department ("PAPD"), brought this action against the Port Authority and two psychologists employed by the Port Authority, Dr. Doris Francis and Dr. Francine Silver, alleging violations of his constitutional rights under the Second and Fourteenth Amendments, as well as violations of 42 U.S.C. § 1983. The plaintiff also brought state common law negligence claims against the Port Authority and Drs. Francis and Silver, and state common law defamation claims against two other PAPD employees, Inspector Michael Guarnieri and Sergeant Kenneth Kohlmann. Before the Court are the parties' cross-motions for summary judgment. Jurisdiction is proper pursuant to 28 U.S.C. § 1332 and § 1367.


The standard for granting summary judgment is well established. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "[o]nly 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).

Summary judgment is appropriate if it appears that the nonmoving party cannot prove an element that is essential to the nonmoving party's case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06 (1999); Celotex, 477 U.S. at 322; Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998).


The following facts are undisputed unless otherwise noted:

Montalbano served as an officer with the PAPD from 1978 until 2010. (Def.'s R. 56.1 Stmt. ¶ 1; Pl.'s R. 56.1 Resp. ¶ 1.) He lives with his wife and their two children in New York City. (Def.'s R. 56.1 Stmt. ¶ 2; Pl.'s R. 56.1 Resp. ¶ 2.)

On March 9, 2009, while Montalbano was working as a Squad Leader for the PAPD's Emergency Services Unit ("ESU") at Building 254 in John F. Kennedy Airport, an incident occurred between Montalbano and Kohlmann, who was Montalbano's immediate supervisor. (Def.'s R. 56.1 Stmt. ¶¶ 7, 12; Pl.'s R. 56.1 Resp. ¶¶ 7, 12.) The next day, Kohlmann submitted a handwritten statement to Guarnieri, the commanding officer at JFK, alleging that Montalbano had made verbal threats to another officer, and had brandished a knife at the workplace. (Def.'s R. 56.1 Stmt. ¶¶ 11, 13; Pl.'s R. 56.1 Resp. ¶¶ 11, 13; Kromm Decl. Ex. I (Kohlmann Report).) The parties vigorously contest whether the incident actually took place as Kohlmann describes it. Kohlmann maintains that the incident took place as he describes it, and alleges that Montalbano regularly "bull[ied]" other officers. (Kromm Decl. Ex. D ("Kohlmann Dep."), at 13-24.) Montalbano claims that the incident did not occur and that Kohlmann is lying. (Kromm Decl. Ex. A ("Montalbano Dep."), at 65-70; Montalbano Aff. ¶ 3.) As a result of this incident, Montalbano was ordered to see Dr. Silver, a consultant psychologist employed by the Port Authority's Office of Medical Services.

(Def.'s R. 56.1 Stmt. ¶¶ 9, 14; Pl.'s R. 56.1 Resp. ¶¶ 9, 14.) Montalbano thereafter returned to work at the same job, and was transferred to a different building. (Def.'s R. 56.1 Stmt. ¶ 15; Pl.'s R. 56.1 Resp. ¶ 15.)

On August 12, 2009, New York City police officers were called to Montalbano's home in response to an alleged domestic incident involving Montalbano and his children. (Def.'s R. 56.1 Stmt. ¶ 16; Pl.'s R. 56.1 Resp. ¶ 16.) Montalbano's daughter alleged that he punched her, and submitted a written complaint to that effect to the police. (Def.'s R. 56.1 Stmt. ¶ 16; Pl.'s R. 56.1 Resp. ¶ 16; Kromm Decl. Exs. L (written police report), M (typed police report).) No arrest was made. (Kromm Decl. Ex. L.) Montalbano asserts that he did not hit his daughter, and that his daughter has since recanted her statement to the police. (See Montalbano Dep. 82-87.) A separate domestic incident involving Montalbano occurred four years earlier, on May 17, 2005. (Def.'s R. 56.1 Stmt. ¶ 6; Pl.'s R. 56.1 Resp. ¶ 6; Kromm Decl. Ex. J.) In that incident, police came to Montalbano's home in response to reports that Montalbano had locked his family out of the house and that Montalbano had threatened the family with a gun. (Def.'s R. 56.1 Stmt. ¶ 6; Pl.'s R. 56.1 Resp. ¶ 6; Kromm Decl. Exs. J (written police report), K (911 call audio).) No arrest was made, and the written statement made by Montalbano's wife only reflects that Montalbano had allegedly locked his family out of the house. (See Kromm Decl. Ex. J.) Montalbano admits that he locked his family out of the house, but denies that there was a gun involved. (See Montalbano Dep. 50-55.)

After the August 12, 2009 incident, Montalbano voluntarily secured his two personal firearms at his workplace. (Def.'s R. 56.1 Stmt. ¶ 17; Pl.'s R. 56.1 Resp. ¶ 17.) Montalbano was then sent for an evaluation by Dr. Francis, the senior psychologist for OMS, because of the domestic incident. (Def.'s R. 56.1 Stmt. ¶¶ 8, 18; Pl.'s R. 56.1 Resp. ¶¶ 8, 18; Montalbano Dep. 91.) Dr. Francis found Montalbano fit for duty with the restriction that he could carry his firearm on duty only. (Def.'s R. 56.1 Stmt. ¶ 18; Pl.'s R. 56.1 Resp. ¶ 18; Compl. Ex 1 (disposition noting "firearm on duty only" restriction); Montalbano Dep. 94-95.) The parties dispute the basis for Dr. Francis' restriction: the defendants suggest that Dr. Francis' determination was based on her review of Montalbano's record and the 911 call from the August 12 incident, while Montalbano claims that Dr. Francis was abusive and that the restriction was baseless. (Compare Montalbano Aff. ¶ 5 with Def.'s R. 56.1 Stmt. ¶ 18.) Montalbano continued seeing Dr. Francis on a weekly basis until October 22, 2009. (Def.'s R. 56.1 Stmt. ¶ 21; Pl.'s R. 56.1 Resp. ¶ 21.) Thereafter, he began seeing Dr. Silver, the consultant psychologist. (Def.'s R. 56.1 Stmt. ¶ 22; Pl.'s R. 56.1 Resp. ¶ 22.) On August 21, 2009, Montalbano also began seeing a private psychologist, Dr. Martin Weinberg, whom he had previously seen, and he saw Dr. Weinberg 12 times over the remainder of 2009. (See Kromm Decl. Ex. H ("Weinberg Letter").)

On November 6, 2009, Dr. Silver requested that Dr. Weinberg opine on whether the gun restriction should be lifted. (Def.'s R. 56.1 Stmt. ¶ 23; Pl.'s R. 56.1 Resp. ¶ 23.) On January 8, 2010, Dr. Weinberg wrote a letter to Dr. Silver stating that Montalbano "remains behaviorally under control and despite his verbal complaints he does not present in a dangerous manner." (Weinberg Letter.) Dr. Weinberg's letter discussed Montalbano's "interest in having gun restrictions rescinded" but did not specifically recommend that the on duty only restriction be lifted. (Weinberg Letter.) Dr. Silver testified at her deposition that she told Montalbano that, if Dr. Weinberg disagreed with her continued recommendation of the restriction, then he would be entitled to a third-party evaluation. (Kromm Decl. Ex. B ("Silver Dep."), at 57-58.)

At no point was the on duty only restriction lifted. On January 19, 2010, Montalbano retired from the PAPD. (Def.'s R. 56.1 Stmt. ¶ 25; Pl.'s R. 56.1 Resp. ¶ 25.)

Montalbano never filed a grievance with the Port Authority Patrolmen's Benevolent Association, his union, in connection with the firearms restriction. (Def.'s R. 56.1 Stmt. ¶ 24; Pl.'s R. 56.1 Resp. ¶ 24; Montalbano Dep. at 97-98.) Montalbano never filed an Article 78 proceeding in New York State Supreme Court challenging the on duty only restriction. (Def.'s R. 56.1 Stmt. ¶ 27; Pl.'s R. 56.1 Resp. ¶ 27.)

After Montalabano retired in January 2010, he applied for a firearms permit. (See Montalbano Aff ΒΆ 6.) Montalbano claims, and the defendants do not dispute, that the City of New York, which issues such permits, would not accept his application ...

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