United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief District Judge.
In this action, Plaintiff Leydy Bello alleges that her constitutional rights were violated and she was subjected to the negligent infliction of emotional distress when she was arrested on charges of welfare fraud in or about November 2010.
Presently before this Court is Defendants' Motion for Summary Judgment seeking dismissal of Plaintiff's claims in their entirety. For the reasons stated below, the motion will be granted.
Ms. Bello, who previously resided in New York City and now resides in Niagara Falls, New York, has received assistance from various programs available to low-income households. On February 6, 2009, the Home Energy Assistance Program ("HEAP") received an application from Ms. Bello for assistance with her utility bills in Niagara Falls.
On February 9, 2009, HEAP requested that the New York State Office of Temporary Disability Assistance ("OTDA") conduct an investigation of Bello's household to look into: household composition, whether Ms. Bello was receiving self-employment income from an internet business, and the source of a $500 deposit to her checking account. An email from OTDA, dated February 17, 2009, confirms that the agency received fraud referrals from Albany relating to Ms. Bello, and also to Donnell Richardson, who is the father of Bello's children. OTDA was informed Bello and Richardson had maintained separate households in New York City, with one child residing with each of them. Each household, which received New York City benefits, moved to Niagara Falls in or about April 2008, where each household continued to receive separate benefits. According to the OTDA email, there was reason to believe the family was then living in a single household. Ms. Bello had purchased a home, Richardson was seen there, and the budgets each had submitted in New York City did not reflect sufficient income to allow either of them to separately purchase or maintain a home.
Ms. Bello purchased her home on McKoon Avenue on January 9, 2008 for $63, 500. In her HEAP application and other applications for social services, Bello stated that she and one child reside at the McKoon house, her monthly mortgage payment is $704.12, her utilities are $242 or more per month, and her monthly income is $117.
In 2009, Ms. Bello's food stamps were discontinued for failure to include Richardson as part of her household in her applications for benefits. Ms. Bello appealed the determination, and an OTDA Administrative Law Judge conducted a Fair Hearing on October 1, October 29, and December 22, 2009. The ALJ heard testimony, reviewed the documents the agency relied on to conclude that Richardson resided at the McKoon house, and upheld the determinations in a written decision dated January 29, 2010.
On March 25, 2010, Defendant Leggett, acting as an investigator for the Niagara County Sheriff's Office Welfare Fraud Unit, arrived at Ms. Bello's home where he found Richardson meeting with a cable television provider. On May 12, 2010, the Niagara County District Attorney issued a welfare fraud report to the Niagara County Department of Social Services showing that Ms. Bello had improperly collected $3, 853 in food stamps and $820 from HEAP for the period April 6, 2009 to February 28, 2010. Ms. Bello subsequently requested reconsideration of the Fair Hearing determination on which the food stamp calculation was based. The request was denied by letter dated July 22, 2010. Ms. Bello also commenced an Article 78 proceeding seeking to annul the OTDA's determination regarding HEAP benefits. The Appellate Division, Fourth Department unanimously confirmed the agency determination on December 30, 2011.
In an affidavit, sworn to November 9, 2010, Defendant Gaffney of the Investigative Fraud Unit of the Niagara County Department of Social Services stated that, on or about April 6, 2009, Ms. Bello filed written instruments with the Department of Social Services knowing that they contained false information concerning her household composition. Ms. Bello was arrested on or about November 29, 2010, and charged with Grand Larceny in the Third Degree, Misuse of Food Stamps, and two counts of Offering a False Instrument for Filing, First Degree.
Ms. Bello's attorney in the criminal action requested repeated adjournments over the course of more than a year, and a hearing was finally held on March 27, 2012. Prior to the hearing, on or about January 30, 2012, Ms. Bello's attorney filed a motion to dismiss on the ground the People could not prove Richardson resided at the McKoon house during the relevant period. At the hearing, Ms. Bello produced a letter from the New York City Housing Authority addressed to Richardson's mother Margie Brady. The letter confirmed that Brady was granted permission for Richardson to reside with ...