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Glacken v. Incorporated Village of Freeport

United States District Court, E.D. New York

May 8, 2014

WILLIAM F. GLACKEN, Plaintiff,
v.
THE INCORPORATED VILLAGE OF FREEPORT, ANDREW HARDWICK, in his official capacity as Mayor of the Incorporated Village of Freeport and individually, the BOARD OF TRUSTEES FOR THE INCORPORATED VILLAGE OF FREEPORT, HOWARD COLTON, individually and in his official capacity as Village Attorney for the Incorporated Village of Freeport, DENNIS WARREN, individually,

Jonathan Lovett, Esq., White Plains, New York, Attorney for Plaintiff William F. Glacken.

L'Abbate, Balkan, Colavita & Contini, LLP, Peter L. Contini, Esq., Garden City, New York, Attorneys for Defendant Dennis Warren.

D'Amato & Lynch, LLP, Stephen F. Willig, Esq., New York, New York, Attorneys for Defendants, Andrew Hardwick and Howard Colton, Two World Financial Center.

Jaspan Schlesinger LLP, Stanley A. Camhi, Esq., Jessica M. Baquet, Esq., Garden City, New York, Attorneys for Defendant, Incorporated Village of Freeport.

MEMORANDUM & ORDER

DENIS R. HURLEY, Senior District Judge.

Plaintiff, William F. Glacken ("Glacken" or "Plaintiff"), brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging that defendants, the Incorporated Village of Freeport ("Village"), Andrew Hardwick ("Hardwick"), in his official capacity as Mayor of the Village and individually, the Board of Trustees for the Village ("Board"), Howard Colton ("Colton"), individually and in his official capacity as Village Attorney, Dennis Warren ("Warren"), individually, John Doe #1, John Doe #2, John Doe #3, Jane Doe #1, and Jane Doe #2, violated his First, Fifth, and Fourteenth Amendment rights, and that Warren, Hardwick and Colton conspired to violate those rights.

Presently before the court are Hardwick's and Colton's motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56, directed as to all causes of action in the complaint, i.e., the first cause of action alleging a conspiracy, second cause of action alleging a substantive due process violation, third cause of action alleging a First Amendment violation, fourth cause of action seeking injunctive and declaratory relief, fifth cause of action alleging a procedural due process violation, and sixth cause of action seeking legal fees; the Village's motion for summary judgment pursuant to Rule 56 seeking dismissal of the second cause of action alleging a substantive due process violation, third cause of action alleging a First Amendment violation, fourth cause of action seeking injunctive and declaratory relief, fifth cause of action alleging a procedural due process violation, and sixth cause of action seeking legal fees; and Warren's motion for summary judgment pursuant to Rule 56, directed as to the first cause of action alleging a conspiracy.[1] For the reasons set forth below, the motions by the Village and by Hardwick and Colton are granted in part and denied in part, and Warren's motion is granted.

BACKGROUND

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

Plaintiff served as Mayor of the Village from April 1997 through April 2009. In 2009, Plaintiff ran for re-election. Hardwick was Plaintiff's opponent in the mayoral election. In February 2009, Plaintiff attended a Candidates Forum at the Freeport Public Library which was sponsored by the Northwest Civic Association. Plaintiff was invited to attend the Candidates Forum because he was running for re-election, and the invitation was sent to his campaign committee. Plaintiff would not have been invited to attend the forum had he not been a mayoral candidate, and he had not been invited to similar events by the Northwest Civic Association during the years he was not campaigning. Hardwick was also invited to attend the Candidates Forum. Plaintiff and Hardwick both attended the Candidates Forum on February 26, 2009. While the Village, Hardwick, Colton and Warren (collectively, "Defendants") argue that Plaintiff attended the Candidates Forum as part of his re-election campaign, Plaintiff argues that he attended the forum in his capacity as Mayor of the Village.

At the Candidates Forum, a moderator asked the candidates questions that had been proposed by members of the public who were in attendance. One such question involved lawsuits that had been brought by the Water Works Realty Corp. and Gary Melius ("Melius") against the Village and several of its officials (the "Water Works Actions"), and inquired about the impact of the Water Works Actions on the Village and its residents. The question was asked to both Plaintiff and Hardwick. Defendants assert that in response to the question, Plaintiff commented that Melius was an extortionist.

On March 13, 2009, Melius brought a lawsuit against Plaintiff in the Supreme Court of New York in Nassau County (the "Defamation Action"), alleging that Plaintiff made a defamatory remark about him at the Candidates Forum.[2] Plaintiff asked the Board to provide him with a defense and indemnification in the Defamation Action pursuant to New York Public Officers Law § 18 and Village Code § 130-6. Public Officers Law § 18 and Village Code § 130-6 both provide that the Village will provide an employee who is sued with a defense and indemnification so long as the acts or omissions at issue in the lawsuit occurred while the employee was acting within the scope of his public employment or duties.

Plaintiff lost the mayoral election to Hardwick on March 18, 2009; however, on March 30, 2009, prior to the end of Plaintiff's term as Mayor, the Board voted to provide Plaintiff with a defense and indemnification in the Defamation Action. The Board issued a Directive the next day to that effect. At the time of the Board's March 30, 2009 vote, the Village Attorney advising the Board was Harrison J. Edwards, Plaintiff's brother-in-law, and the Board consisted of Plaintiff, former Deputy Mayor Renaire Frierson-Davis, former Trustee Donald K. Miller, Trustee William H. White and Trustee Jorge A. Martinez.

Hardwick was sworn in as the new Mayor on April 6, 2009. Colton, the former Deputy Village Attorney of Freeport, became the new Village Attorney. Colton did not learn until July 2009 that the Board had previously voted to provide Plaintiff with a defense in the Defamation Action. In July and August of 2009, Colton began to consider the propriety of providing Plaintiff with a defense and indemnification in the Defamation Action. No later than August 2009, Colton consulted with the New York Conference of Mayors and the New York State Comptroller's Office regarding the issue, and was informed that providing Plaintiff with a defense in the Defamation Action would be improper.

On September 3, 2009, Plaintiff sent a letter to the new Mayor, Hardwick, and the Board, criticizing a proposed settlement of the Water Works Actions. However, Plaintiff's letter had been received by Colton after he had received the opinions of the New York State Comptroller's Office and New York Conference of Mayors, and the letter did not affect Colton's opinion regarding the propriety of providing Plaintiff with a defense in the Defamation Action.[3]

On September 14, 2009, the Board voted to withdraw the defense and indemnification of Plaintiff in the Defamation Action because it had determined that Plaintiff had not been acting within the scope of his public employment or duties when he made the alleged defamatory statements about Melius at the Candidates Forum. The Board then issued a Directive and a corrected Directive in confirmation of its new determination to withdraw Plaintiff's defense and indemnification in the Defamation Action. Plaintiff's September 3, 2009 letter had not been discussed by the Board at the September 14, 2009 meeting.

As a result of the Board's actions, Plaintiff commenced the present action on November 5, 2009, alleging, inter alia, that the Board voted to withdraw the defense and indemnification of Plaintiff in the Defamation Action because Colton and Warren had "knowingly and intentionally misinformed the Board" as to the legality of funding Plaintiff's defense and indemnification. (Complaint ¶ 66.) Plaintiff also alleged that Colton and Warren had misinformed the Board regarding the Village's duty to defend and indemnify Plaintiff in the Defamation Action in retaliation for Plaintiff's having spoken out against the proposed settlement of the Water Works Action.

The Village entered into a settlement agreement with the plaintiffs in the Water Works Actions in which the Village agreed to pay $3.5 million over six years in full settlement of the plaintiffs' claims. In return, the plaintiffs in the Water Works Actions agreed to discontinue their action against the Village and the individual defendants, including Plaintiff, without requiring any admission of liability, provided the defendants signed a stipulation of discontinuance. The settlement agreement provided that the individual defendants were not required to pay any of the settlement amount. The Defendants claim that Plaintiff and certain other individual defendants in the Water Works Actions refused to sign the stipulation of discontinuance because it contained a non-disparagement clause which prohibited criticism of the Water Works Actions settlement.

On January 4, 2010, the Board voted to withdraw the defense and indemnification that it had previously provided for Plaintiff and certain other defendants in the Water Works Actions because they had refused to sign the stipulation of discontinuance, and, thus, had failed to cooperate with the Village in obtaining a global settlement of the Water Works Actions. Plaintiff and the other defendants then commenced Article 78 proceedings in the Supreme Court of New York challenging the Board's decision to withdraw their defenses and indemnification in the Water Works ...


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