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Tadco Construction Group Corp. and Thomas Demartino v. Dormitory Authority of the State of New York

July 23, 2012

TADCO CONSTRUCTION GROUP CORP. AND THOMAS DEMARTINO, PLAINTIFFS,
v.
DORMITORY AUTHORITY OF THE STATE OF NEW YORK, TYRONE MIDDLETON, PAT CINELLI, JAMES GRAY, JACK KEMP AND JOHN DOES #1-#5, DEFENDANTS.



The opinion of the court was delivered by: Kiyo A. Matsumoto United States District Judge Eastern District of New York

MEMORANDUM & ORDER

MATSUMOTO, UNITED STATES DISTRICT JUDGE:

On January 7, 2008, plaintiff TADCO Construction Corporation ("TADCO") and TADCO's on-site superintendent and management representative, Thomas DeMartino ("DeMartino") (collectively, "plaintiffs"), brought this action against the Dormitory Authority of the State of New York ("DASNY") and several DASNY employees, alleging thirty-nine federal and state causes of action arising out of a contentious construction contract dispute between TADCO and DASNY. On March 19, 2010, then-presiding Judge Trager*fn1 granted in part and denied in part defendants' motion to dismiss all of plaintiffs' federal claims and DeMartino's state-law claims. The claims Judge Trager dismissed included certain of DeMartino's federal claims and all of DeMartino's state-law claims for false arrest, malicious prosecution, and abuse of process. On February 14, 2012, this court denied DeMartino's motion for reconsideration of Judge Trager's March 19, 2010 order.

Presently before the court is DeMartino's motion for this court's entry of partial final judgment of Judge Trager's March 19, 2010 order and issuance of a certificate of appealability as to that judgment pursuant to Federal Rule of Civil Procedure 54(b). For the reasons set forth below, DeMartino's motion is denied.

BACKGROUND

The court assumes the parties' familiarity with the underlying facts as alleged by plaintiffs and as set forth in Judge Trager's Memorandum and Order dated March 19, 2010 (see ECF No. 39, Memorandum and Order dated 3/19/2010 ("Trager M&O") at 2--10), and repeats only facts relevant to the instant motion.

I.Relevant Facts

On June 15, 2005, DASNY awarded TADCO a general construction contract (the "Contract") for work on a new ten-bed residence building for the Staten Island Developmental Disabilities Services Office (the "Project"). (ECF No. 1, Complaint ("Compl.") at ¶¶ 14, 17, 23 & Ex. A at 2.) The project was plagued by delays that TADCO generally attributes to DASNY's inadequate pre-construction planning and failure to manage DASNY's other contractors. (Id. ¶¶ 22, 42-45.)

A.November 9, 2006 Arrest

On November 9, 2006, defendant Tyrone Middleton ("Middleton"), one of DASNY's field representatives, ordered DeMartino, TADCO's on-site superintendent and management representative for the Project, to cover with wood planks the site's open trenches, which could not be backfilled. (Compl. ¶¶ 74, 76.) DeMartino refused, on grounds that the work was not specified in the Contract and required extra labor, materials, supplies, and equipment not specified in the Contract. (Id. ¶¶ 77-78.) Middleton then lodged a criminal complaint against DeMartino, demanding that the state police officers assigned to the facility arrest DeMartino for trespassing on the job site. (Id. ¶ 80.) Based on Middleton's complaint, the police arrested and handcuffed DeMartino, and brought him to the local precinct, where he was charged with trespass in violation of New York Penal Law § 140.05.*fn2 (Id. ¶ 82.) The trespass charge was later dismissed. (Id. ¶ 83.)

B.January 2007 Arrest

In early January 2007, Middleton and another DASNY personnel lodged another criminal complaint against DeMartino, demanding his arrest for trespassing on the job site. (Id. ¶ 84.) DeMartino was arrested based on the complaint and spent the night in jail. (Id. ¶¶ 85-86.) DeMartino alleges that the January 2007 complaint was "patently false[] for the same reasons that the [November 9, 2006] complaint was false." (Id. ¶ 85.) Although DeMartino was again charged with trespass in violation of New York Penal Law § 140.05,*fn3 the charge was later dismissed. (Id. ¶¶ 86-87.)

II.The Instant Action

A.Plaintiff's Claims*fn4

DeMartino asserted claims of false arrest, malicious prosecution, and abuse of process pursuant to 42 U.S.C. § 1983 ("Section 1983") and state law against DASNY, Middleton, Cinelli, and Jack Kemp (Chief of Construction Contracts for DASNY),*fn5 for their respective roles in effectuating DeMartino's arrest on November 9, 2006. (Compl. ΒΆΒΆ 124-150, 399-419.) DeMartino also asserted claims of false arrest, malicious prosecution, and abuse of process pursuant to Section 1983 and state law against DASNY, Middleton, Cinelli, ...


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