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Crown Heights Shomrim Volunteer Safety Patrol, Inc. v. City of New York, Crown Heights Shmira, Inc.

United States District Court, E.D. New York

September 25, 2014



KIYO A. MATSUMOTO, District Judge.

On January 21, 2011, plaintiffs, Crown Heights Shomrim Volunteer Safety Patrol, Inc. ("Shomrim") and six of its members, filed the instant case. Plaintiffs filed the operative, Second Amended Complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") and state law on June 8, 2012, alleging violations of plaintiffs' rights pursuant to the First, Fourth and Fourteenth Amendments of the United States Constitution and analogous rights protected by New York law. ("2d Am. Compl., " ECF No. 41.) Defendants Levi (s/h/a Paul) Huebner and Elie (s/h/a Eli) Poltorak answered the Second Amended Complaint on June 28, 2012 and asserted counterclaims against plaintiffs for libel and slander per se, intentional infliction of emotional distress, and violations of 18 U.S.C. § 1030(g) (fraud and related activity in connection with computers). (ECF No. 44.) The remaining appearing defendants moved to dismiss. Now before the court are motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) by two sets of defendants: first, by The City of New York, Peter Simonetti (s/h/a "Peter Simminetti"), Robert Troise (s/h/a "Bobby Troise"), John Hammond (s/h/a "John Hammad"), Leonard Wright (s/h/a "Leonard White"), Brian Duffy, Wayne Mangan, Timothy Kelch, and Seamus McHugh (collectively, "the City defendants") (City Defs. Mot. to Dismiss, ECF No. 53); and, second, by Crown Heights Shmira, Inc. ("Shmira") and Leib Skoblo ("the Shmira defendants") (Shmira Defs. Mot. to Dismiss, ECF No. 64). For the reasons that follow, the defendants' respective motions are granted, and the claims against them are dismissed.


I. Documents Considered

The following facts are drawn primarily from plaintiffs' Second Amended Complaint, as well as certain documents submitted by the City defendants. "Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to consideration of the complaint itself." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). The court "must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. New York Cardiothoracic Grp., PPLC, 570 F.3d 471, 475 (2d Cir. 2009) (internal quotation and citation omitted). Nonetheless, the court is "not bound to accept as true legal conclusions couched as factual allegations, " id. at 475-76, and "[c]onclusory allegations... will not suffice to [defeat] a motion to dismiss, " Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (alterations in original and internal quotation marks omitted).

Moreover, there is a limited category of documents outside of the complaint that may be taken into account on a motion to dismiss. "Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered, " as may "a document upon which [the complaint] solely relies and which is integral to the complaint. '" Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)) (emphases in the original). In addition, "[i]t is well established that a district court may rely on matters of public record in deciding a motion to dismiss under Rule 12(b)(6)." Vasquez v. City of New York, No. 99-CV-4606, 2000 WL 869492, at *2 n.1 (S.D.N.Y. June 29, 2000) (quoting Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998)). Matters of public record of which the court may take judicial notice include arrest reports and certificates of disposition, see Wingate v. Deas, No. 11-CV-1000, 2012 WL 1134893, at *1 n.1 (E.D.N.Y. Apr. 2, 2012), arraignments, see Parker v. City of New York, No. 09-cv-910, 2010 WL 1693007, at *3 n.2 (E.D.N.Y. Apr. 28, 2010), and criminal complaints and indictments, see Garcia-Garcia v. City of New York, No. 12-CV-1302, 2013 WL 3832730, at 1 n.1 (S.D.N.Y. July 22, 2013). In addition, a "court may take judicial notice of a document filed in another court - not for the truth of the matter asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998).

II. Relationship Between Shomrim, Shmira, and the City

Plaintiff Shomrim is a New York non-profit corporation, made up of volunteers who act as a safety patrol in Crown Heights, Brooklyn. (2d Am. Compl. ¶¶ 6, 30.) The organization was founded in 1968 and incorporated in 1997, and similar groups exist in other Hasidic Jewish neighborhoods in Brooklyn and internationally. ( Id. ¶¶ 30-31.) Shmira, a similar group also operating in Crown Heights, was formed in 1999, by two former Shomrim members who had been expelled from Shomrim. ( Id. ¶ 31.) Plaintiffs indicate in their Complaint that tension exists between the two groups. ( See id. ¶¶ 32, 42.)

Plaintiffs allege "on information and belief" that, on an unspecified date, defendants Yossi Stern, the Administrative Director of Shmira, and Paul ("Levi") Huebner, legal advisor to Shmira, as well as other Shmira members, met with the "District Attorney of Kings County and/or members of his staff and police officials of NYPD." ( Id. ¶ 34.) At that meeting, it was decided that Shmira would work with the police to combat crime in the Jewish community in Crown Heights. ( Id. ) In December of 2007, defendant Simonetti, the commanding officer of New York City Police Department ("NYPD") Precinct 71 in Crown Heights, informed Shomrim members that NYPD would recognize only one volunteer citizen patrol in Crown Heights, and Shmira made a similar announcement that it was endorsed by the NYPD. ( Id. ¶¶ 20-21, 33, 35.) As a result of its affiliation with the NYPD, Shmira members "wore patches simulating the patches worn by members of the [NYPD] and [used] vehicles supplied by the NYPD similar in appearance to police cars and [used] other equipment supplied by the NYPD." ( Id. ¶ 36.) Shmira patrolled the Crown Heights neighborhood and apprehended those it observed committing crimes. ( Id. )

III. The January 22 and 28, 2008 Arrests

In January of 2008, plaintiffs Chaim Hershkop, Yehuda Hershkop, Benjamin Lifshitz, Schneur Pinson, and Nechemiz Slatter were arrested for the alleged December 29, 2007 assault of several residents at a dormitory located at 749 Eastern Parkway in Brooklyn. ( Id. ¶ 43; see also Haber Decl. Exs. G (NYPD SPRINT reports) and H (Omniform System Complaints).)[1] On that date, the NYPD received 911 calls regarding men being attacked at the dormitory. (Haber Decl. Ex. G, at 7.) Four victims went to the hospital suffering injuries to the head and body, including facial fractures, bruising, swelling and contusions, and, on December 30, 2007, while still at the hospital and thereafter, lodged complaints with defendant Sergeant Wayne Mangan. ( See Haber Decl. Exs. I (NYPD Aided Reports), and J (Kings County District Attorney Complaint Room Screening Sheet).) Defendant NYPD Detective Brian Duffy, of the 77th Precinct Detective Squad, subsequently began investigating the case. ( See Haber Decl. Ex. K, at NYC34.)

Plaintiffs allege that on January 3, 2008, defendant Huebner contacted the Detective Squad and spoke with Detective Duffy. ( Id. ) Huebner conveyed to Duffy that he knew the victims of the December 29 incident and that they primarily spoke Hebrew. Aware that Huebner was legal advisor to Shmira, which had interests "strongly adverse to Shomrim, " the NYPD accepted Huebner's offer to come to the Precinct with one of the victims and act as a translator, "notwithstanding Huebner's interest being at variance with the NYPD." ( Id.; 2d Am. Compl. ¶¶ 43-44.)

Between January 9 and January 22, 2008, Detective Duffy and other officers interviewed the complaining witnesses with Huebner translating. During these interviews, the complainants identified plaintiffs as their attackers. (Haber Decl. Ex. K, at NYC35 (witness's statement that plaintiff Lifshitz "grabbed [the witness], shook him around and attempt[ed] to tear off his clothes); 40 (witness identified photograph of plaintiff Lifshitz); 49 (witness's statement that, after another individual started choking him and pushed him against a wall, "Yehudah (Yudi') Herschkop punshed [ sic ] him three times in the face and then kicked him in the head" and "Nossi Slater [ sic ] punched him"); 55 (witness' identification of photographs of plaintiffs Slatter and Chaim Hershkop as his assailants); 66 (witness statement that plaintiffs Pinson and Lifshitz attacked him); 72 (witness's identification of plaintiffs Pinson and Lifshitz's photographs); 81 (witness's statement that Yehudah Hershkop, Chaim Hershkop, and Slatter attacked him); 87 (witness photo identification of plaintiffs Pinson, Chaim Hershkop, and Slatter). The complainants subsequently signed supporting deposition forms regarding the incident, which also identified the above-named plaintiffs. ( See generally Haber Decl. Ex. L.)

On an unspecified date in January of 2008, Shmira provided the Police Department with a video of the incident. (2d Am. Compl. ¶ 45.) Plaintiffs allege that the video was later used at trial. ( See Pls. Ltr. dated Sept. 9, 2013, ECF No. 62.) Detective Duffy testified at trial, however, that he was not aware of the videotape. (Haber Decl. Ex. Q, at 1708-09.) In light of the fact that the video is specifically referenced and relied upon in the Complaint, the court has viewed and considered the video. See Roth, 489 F.3d at 509; see also Garcia v. Does, ___ F.3d ___, 2014 WL 4099270, at *1 (2d Cir. Aug. 21, 2014) (considering video evidence incorporated into the complaint by reference when evaluating defendants' qualified immunity prior to discovery taking place in the case). The video depicts one member of Shomrim, identifiable by his labeled jacket and hat, speaking to a group of men. It is clear that several members of the crowd do not wish for the Shomrim member to be there, and one man appears to be accusing Shomrim of assaulting people in the past. Subsequently, as the argument escalates and some pushing occurs, another member of Shomrim can be seen attempting to calm the crowd and then pushing a man in the crowd defensively. The video goes black at the same time as there is increased shouting, and the video ends.

On January 22, 2008, plaintiffs Chaim Hershkop, Lifshitz, Pinson, and Slatter surrendered themselves at the 77th Precinct and were arrested and charged with Assault in the Third Degree. ( See Haber Decl. Exs. K, M, N.) They were issued Desk Appearance Tickets. ( Id. Ex N.) Plaintiff Yehuda Hershkop later surrendered on January 28, 2008 and was arrested. ( Id. Ex K, at NYC57.)

In March of 2008, the Kings County District Attorney's Office charged plaintiffs (other than Aron Hershkop) with Assault in the Third Degree, Assault in the Second Degree, Menacing in the Third Degree, and the Harassment in the Second Degree. Plaintiffs Lifshitz and Pinson were additionally charged with Menacing in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. ( Id. Ex. O.) On approximately July 7, 2008, the Grand Jury indicted plaintiffs. ( Id. Ex. P (Grand Jury indictment).) Following a jury trial, plaintiffs were acquitted of the charges against them on December 9, 2009. (2d Am. Compl. ¶ 49.)

IV. Other Alleged Harassment of Shomrim by the NYPD and City

Plaintiffs allege, without providing specific dates, locations, or supporting facts, that NYPD officers engaged in a number of actions calculated to "intimidate" and "humiliate" Shomrim because of the Police Department's favoritism of Shmira. (2d Am. Compl. ¶ 38.) These actions include the following. Plaintiffs allege that defendant Robert Troise, an NYPD sergeant in the 71st Precinct, threatened Shomrim members with future arrests or harassment if plaintiffs continued to associate with Shomrim and that Troise supervised other officers who issued meritless parking tickets. ( Id. ¶¶ 22, 38A.) Plaintiffs similarly allege that they were threatened with arrest and further harassment by defendant NYPD Officer Leonard Wright. ( Id. ¶¶ 24, 38C.)

Plaintiffs further allege that 71st Precinct Officers John Hammond and Seamus McHugh engaged in the improper ticketing of Shomrim and Shomrim members' vehicles. ( Id. ¶¶ 23-24, 38B, 38F.) Specifically, plaintiffs allege that Officer Hammond ticketed and caused to be towed Shomrim vehicles that were legally parked during a Jewish holiday. ( Id. ¶ 38B.) According to the Complaint, the towing of the vehicles was scheduled to coincide with the time that community members were leaving synagogue, "which greatly impaired [Shomrim's] standing in the community." ( Id.; see also id. ¶ 78 (alleging that the NYPD issued tickets and towed vehicles at the direction of Shmira and the Crown Heights Jewish Community Council, Inc. ("CHJCC"), which is not a named defendant in this matter).)[2]

V. Other Alleged Harassment of Shomrim by Shmira Members

Plaintiff alleges that Shmira members harassed plaintiff Aron Hershkop, President of Shomrim, by making unfounded complaints to the City regarding certain real property owned by Mr. Hershkop. ( Id. ¶¶ 62-63.) Defendant Leib Skoblo, a member of Shmira, allegedly initiated the complaints by providing information to defendant Yitzchok Shuchat, who is also a Shmira member. ( Id. ¶¶ 14, 16, 65.) Skoblo also surveilled Aron Hershkop's property in a vehicle provided to him by the City. ( Id. ¶ 65.) Shuchat in turn informed City agencies, which issued unspecified citations on unspecified dates to Mr. Hershkop. Most of these citations have now been dismissed. ( Id. ¶¶ 63-64.)

Plaintiff also makes a set of allegations regarding non-moving defendant Efraim Okonov, a member of Shmira. ( See id. ¶¶ 19, 70.) According to the Complaint, in 2008, Okonov, acting on Shmira's instructions, began to harass Shomrim members by "jamming Shomrim's radio system and making false police reports that [plaintiffs] Aron [Hershkop] and [Benjamin] Lifshitz made threats to kill [Okonov] and [Okonov's] family." ( Id. ¶ ...

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