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Polimeni v. Estate of Ella Renckert

United States District Court, W.D. New York

March 31, 2015

ROBERT A. POLIMENI, DEBORAH POLIMENI, and ROBERT J. POLIMENI Plaintiffs,
v.
ESTATE OF ELLA RENCKERT, MURCY BURFOOT, THE MONROE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, THE MONROE COUNTY CHILD PROTECTIVE SERVICES, MARY GREENE, SANDRA CLARK, GEORGE REYNGOUDT, JANET SPENCER, GLADYS GARCIA, PAULA KITTLEBERGER, THE ROCHESTER POLICE DEPARTMENT and KNOWN AND UNKNOWN MEMBERS OF THE ROCHESTER POLICE DEPARTMENT, Defendants.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Robert A. Polimeni, Deborah Polimeni, and their son, Robert J. Polimeni (collectively, "the Polimenis" or "Plaintiffs"), instituted this action pursuant to 42 U.S.C. §§ 1983 and 1988, alleging violations of their rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Presently before the Court is the motion for summary judgment on behalf of the Estate of Ella Renckert and Murcy Burfoot[1] (collectively, "the State Defendants"), to dismiss them as parties from this action.

II. Factual Background[2]

The Polimenis are owners of four daycare facilities in the County of Monroe, New York, operating under their corporation Wee Luv Childcare, Inc. At all relevant times, the Polimenis' daycare facilities were licensed as Group Family Day Care centers by the New York State Office for Children and Family Services ("OCFS"). Mr. and Mrs. Polimeni were entitled to, and did receive, referrals from Monroe County of parents entitled to subsidized child care. Renckert was the Regional Manager of OCFS. Burfoot was the Supervisor of the Bureau of Early Childhood Services ("BECS") of OCFS, and reported to Renckert.

There are two incidents implicating the State Defendants described in the complaint. The first occurred in 2003, and stemmed from Plaintiffs' provision of temporary foster-care to two children. The second occurred in 2004, and revolved around the discovery of guns and ammunition by the police at one of Plaintiffs' daycare facilities. These incidents will discussed in turn below.

1. The Grant Children Foster-Care Situation

In 2003, Sharita Grant ("Mrs. Grant") was a client of Plaintiffs' and regularly brought her two children ("the Grant children") to Plaintiffs' daycare. In late September, Mrs. Grant was hospitalized. Judy Gradford ("Gradford") of Monroe County Child Protective Services ("CPS")[3] asked Mrs. Polimeni if she would provide temporary foster-care to the Grant children. Mrs. Polimeni expressed concern about obtaining the proper authorization first, as their facilities were not licensed to provide foster-care. Gradford assured her it would be forthcoming. Mrs. Polimeni took the Grant children into foster care on September 26, 2003. During the time she had the Grant children, Mrs. Polimeni never received written authorization despite repeated requests to CPS and OCFS. Mrs. Polimeni left voicemails with various CPS employees, including Gladys Garcia ("Garcia"), complaining about the way the Grant situation was being handled and that she did not have adequate supplies for the children. Mrs. Polimeni testified that she did not believe that CPS and OCFS handled the situation professionally and that she was not reimbursed adequately for the amount of care she provided and the liability she understood with regard to the Grant children.

On October 13, 2003, Mrs. Grant was released from the hospital. No one from CPS or OCFS contacted the Polimenis about returning the Grant children to their mother that day. Mrs. Polimeni made a number of unsuccessful attempts to contact Mrs. Grant and even stopped by her residence, but Mrs. Grant was not there. Mrs. Polimeni proceeded to the home of Michelle Rogers ("Rogers"), one of the individuals authorized by Mrs. Grant to receive the children, according to the signed permission slip in Plaintiffs' file. Mrs. Polimeni spoke to Rogers, who agreed to take the children.

On October 14, 2003, the day after Mrs. Polimeni dropped off the Grant children, Garcia of CPS called Mrs. Polimeni and told her there was "an issue" because Mrs. Polimeni had no right to drop off the Grant children with Rogers. Mrs. Polimeni assured Garcia that she had authorization from Mrs. Grant to do so and agreed to fax Garcia the permission slip signed by Mrs. Grant authorizing Rogers to receive the children. Garcia then told Mrs. Polimeni that the DHS had "other issues" about Plaintiffs' daycare operations and that the County would be paying "special attention" to all of the children in their care. Garcia said that there was "going to be a meeting between Paula Kittelberger and, [she] believe[d], OCFS regarding lodging an official complaint against [her] for the drop off the Grant children to Michelle Rogers." (Polimeni: 368).[4]

Garcia also informed Mrs. Polimeni that she was removing two school-aged children from Plaintiffs' care because "the parent didn't need to have care for the school-age children because the parent ended her program at 3 and... it didn't make sense for them to come to the daycare for a few hours, although her other two children... would continue in care til 5 p.m." (Polimeni: 369). Garcia told Mrs. Polimeni she believed that it was a "waste" of money to have these children in daycare. (Id.).

Mrs. Polimeni testified that the Grant children did not return to Plaintiffs' daycare after October 13th, and Mrs. Polimeni never learned why. (Polimeni: 375). The Notice of Decision she received later in October 2003 from Garcia and Kittleberger of CPS simply stated that the Grant children were no longer attending daycare with Plaintiffs. See id. Mrs. Polimeni testified that beginning on October 14, 2003, other children were involuntarily discontinued as Plaintiffs' clients, and parents were denied referrals to enroll their children into Plaintiffs' daycare facilities, without explanation. See Declaration of Deborah Polimeni ("D. Polimeni Decl."), ¶¶ 14-21 & Exhibits ("Exs.") J, K, & L (detailing instances of children being terminated from Plaintiffs' daycare or being denied approval to enroll in Plaintiffs' daycare) (Dkt #72-3).

2. The Search of 641 Jay Street

The two-story apartment at 641 Jay Street housed two of Plaintiffs' daycare facilities. The upstairs facility was operated by the Polimenis' son, Robert J. Polimeni; the downstairs facility was separately licensed and operated by his father, Robert A. Polimeni.

At about 10:30 p.m. on May 4, 2004, Investigator David Mace ("Inv. Mace") and Investigator John F. Muller ("Inv. Muller") of the Rochester Police Department ("RPD") were in a patrol car parked on Jay Street when they saw a man, carrying what appeared to be a rifle case, run across the street from 642 Jay Street and enter 641 Jay Street. The investigators proceeded to 641 Jay Street and knocked on the door, which was answered by Robert J. Polimeni. Juan Rivera ("Rivera"), the man they had seen running across Jay Street, was there, along with three other men who were visiting Robert J. Polimeni. Rivera led them to a bedroom closet where they found the rifle case, which contained a Stevens.22-caliber rifle along with a box of.22-caliber ammunition and a fully loaded.22-caliber magazine. See Field Information Form ("FIF"), Deposition Exhibit ("Dep. Ex.") 6, attached as Ex. D to Plaintiffs' Opposition (Dkt #72-4, pp. 8-9 of 71). Rivera said he had recently purchased the rifle in the case from Walmart and wanted to show it to his friends. Id. Inv. Mace testified that in the same room where he recovered the rifle case, there were two cribs with a changing area; he said he learned during the visit that the apartment was a licensed daycare ...


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