United States District Court, E.D. New York
[Copyrighted Material Omitted]
For the Plaintiff: Robert G. Sullivan, Esq., Brian J. Shoot, Esq., Matthew J. Jones, Esq., SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO, P.C., Garden City, New York.
For the Defendant: John Ciampoli, Esq., NASSAU COUNTY ATTORNEY, Mineola, New York.
Denis R. Hurley, Unites States District Judge.
Plaintiff Wayne Chrebet (" Chrebet" ) commenced this action against Nassau County (" the County" ), Nassau County Police Officers Richard Herman (" Herman" ), Brian Fitzgerald (" Fitzgerald" ), Arnold Rothenberg (" Rothenberg" ), Richard Soto (" Soto" ), Kevin Lowry (" Lowry" ), and Nassau County Fire Marshals Paul Szymanski (" Szymanski" ), Bohdan Pilczak (" Pilczak" ), Scott Tusa (" Tusa" ), and Michael Krummenacker (" Krummenacker" ) in Nassau County Supreme Court. On October 2, 2009, defendants removed the action to federal court in the Eastern District of New York.
Plaintiff sets forth ten causes of action in the original Complaint. Count I alleges a due process claim brought under 42 U.S.C. § 1983 against the police officer defendants for depriving Plaintiff of his property interest in violation of the Fifth and Fourteenth Amendments. (Compl. ¶ ¶ 119-126.) Count II alleges a similar due process claim in violation of Article I, § 6 of the New York State Constitution. ( Id. ¶ ¶ 127-135.) Count III asserts a due process claim under Section 1983 against the police officer defendants for deprivation of Plaintiff's liberty interest in violation of his Fifth and Fourteenth Amendment rights. ( Id. ¶ ¶ 136-145.) Count IV sets forth a similar due process claim under Article I, § 6 of the New York State Constitution. ( Id. ¶ ¶ 146-156.) Plaintiff's due process claims are premised on the theory that defendants " use[d] bogus raids and similar means to deliberately drive [plaintiff's] business into the ground." (Pl.'s Mem. in Opp'n at 9.) It is implied in plaintiff's submission that defendants behaved
in this way in retaliation against plaintiff because of his business relationship with Matthew Prince (" Prince" ), who had previously given grand jury testimony against other Nassau County police officers. ( Id. at 17-18.)
In addition, Counts V and VI assert Section 1983 claims against the Nassau County Police Department supervisory defendants and the Nassau County fire marshal supervisory defendants under a theory of supervisory liability. ( Id. ¶ ¶ 157-169; 170-193.) Moreover, Count VII contains a claim of municipal liability against the County. ( Id. 183-193.)
Finally, plaintiff asserts several state tort claims. Count VIII consists of a tortious interference with business relations claim against the police officer defendants and defendant Nassau County. ( Id. ¶ ¶ 194-201.) Count IX seeks recovery for intentional infliction of emotional distress against the police officer defendants and Nassau County. ( Id. ¶ ¶ 202-207.) Finally, in Count X, plaintiff alleges negligent supervision and/or negligent retention of employment services against Defendant Nassau County. ( Id. ¶ ¶ 208-215.)
Presently before the Court is defendants' motion for summary judgment on all of plaintiff's claims. For the reasons set forth below, defendants' motion is granted.
The facts are taken from the parties' Local Rule 56.1 Statements and other evidentiary submissions.
At all times relative to the Complaint, defendants Szymanksi, Pilczak, Tusa, and Krummenacker all were employed by the Nassau County Office of the Fire Marshall. Tusa was a Division Supervisor from 1997 to 2010, Pilczak served as a Fire Investigator from 2006 until 2010, Krummenacker became a Fire Marshal in 1994, and Szymanksi became a Fire Marshal in 1996. In addition, at all relevant times, defendants Herman, Fitzgerald, Rothenberg, Soto, and Lowry were all employed by the Nassau County Police Department and worked in the First Precinct. Fitzgerald was a Lieutenant Desk Officer from December 2006 until July 2009, Soto became a Sergeant in December 2005, Rothenberg became a Sergeant in 2006, Herman became a Sergeant in 2006, and Lowry retired in October of 2010 as an Assistant Chief.
Plaintiff, before opening an upscale restaurant called Chrebet's, incorporated the entity Chrebet's Inc., which transacted business as Chrebet's. Plaintiff was the registered agent and President of Chrebet's Inc. Plaintiff, personally and as President of Chrebet's Inc., entered into a business consulting agreement with Prince. Under the agreement, Prince was to serve as a General Manager of Chrebet's and retained full control over the management and operation of Chrebet's. The agreement stated that it was to remain in full force and effect for such period of time until Prince became a shareholder in Chrebet's Inc. or until Prince voluntarily withdrew from his position.
Chrebet's opened in March of 2007. On April 28, 2007 Soto and two other police officers conducted what Soto referred to as a " routine" inspection of Chrebet's. They observed no violations, but told a manager on site that the liquor and occupancy licenses should be conspicuously posted on
the wall. Plaintiff maintains that the liquor license was properly posted.
June 14-15, 2007 Events
Chrebet's opened a lounge area on or around June 14, 2007. According to defendant, on the evening of June 14, 2007, someone notified Fire Marshal Szymanksi of an overcrowding situation at Chrebet's, and Szymanski then notified Tusa and Pilczak of the complaint, after which each arrived on the scene. At 12:30 a.m. on June 15, 2007, Police Officer Soto responded to a call to assist the Fire Marshals at Chrebet's and also came to the scene. While waiting to speak with someone in charge, Szymanski and Pilczak performed a walk-through of the premises to check exits and visually observe the number of people in the establishment. Although Szymanski and Pilczak testified that Chrebet's was overcrowded, Prince testified that he did not believe that the restaurant was filled beyond capacity that night.
Plaintiff states that he was already at the door when Nassau County law enforcement officers arrived and that he immediately identified himself as the owner, however, defendants claim that plaintiff appeared only after Tusa asked for an agent in charge. According to plaintiff, the officers present repeatedly asked him " where is Matt Prince?" Tusa and Szymanski told plaintiff that they believed the premises were overcrowded and that there would have to be a " count out" of patrons. The Police Department present assisted during the " count out" by sealing all of the exits. According to defendants, Tusa performed the " clicker count," while Szymanski performed the stick figure count on a tally sheet as patrons exited through the front door. Tusa and Szymanski found that 573 persons were at Chrebet's, even though the establishment's maximum occupancy was 330 people. Plaintiff was not allowed to make his own count or observe the count and disputes the accuracy of the count. Chrebet also testified that the security employees usually kept a count of how many persons came through the entrance, but he did not know if they kept a count that night. Szymanksi issued appearance tickets to Chrebet's Inc. d/b/a Chrebet's for an overcrowding violation and a purported issue with the patio gate exit; plaintiff signed the tickets to acknowledge receipt. Chrebet's Inc. d/b/a Chrebet's was prosecuted in connection with the tickets.
According to plaintiff, on that night in question the liquor license was posted behind the bar, and no one asked him to present any license. Soto testified that the required licenses were not properly displayed and that he informed plaintiff that this was not allowed. Soto, however, did not issue any tickets or summons for violations regarding the licenses, and he did not make a referral to the State Liquor Authority.
June 21-22, 2007 Events
At 12:40 a.m. on June 22, 2007, Soto was dispatched to Chrebet's in response to a call about a fight at the location. Plaintiff was not at Chrebet's at this time. Prince, who was present, testified that no fight occurred that night. Plaintiff claims that Prince introduced himself to Soto as soon as he arrived, but Soto claims that he was informed by a security manager that Prince was in charge and that this was the first occasion that he had heard Prince was connected to Chrebet's. It is undisputed that Prince told Soto he was a consultant and the person in charge that evening. Soto asked Prince for his identification, for the liquor license, and the public assembly license. According to Prince, ...