United States District Court, E.D. New York
ALEXANDER PERROS, THOMAS DELLE, NICHOLAS LENOCI, VICTOR PATALANO, RONALD LANIER and IBRAHIM ZAHRAN Collectively on Behalf of All Persons Similarly Situated and/or Sheriffs Department Former Personnel Unfairly Denied Proper "Recommendation for Consideration of Application for Pistol License for Retiring Peace [Police Officer" Forms and/or "Good Guy Letters" Following Retirement, Due to Injury and/or Disability, Plaintiffs,
COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY SHERIFF'S DEPARTMENT, and MICHAEL SPOSATO, in his Individual and Official Capacities, Defendants.
OFFICES FREDERICK K. BREWINGTON, FREDERICK K. BREWINGTON,
ESQ. Attorneys for Plaintiffs
CARNELL T. FOSKY, NASSAU COUNTY ATTORNEY RALPH J. REISSMAN,
DEPUTY COUNTY ATTORNEY Attorneys for Defendants
MEMORANDUM AND ORDER
LEONARD D. WEXLER, United States District Judge
the Court is the Defendants' motion to dismiss
Plaintiffs' First Amended Complaint, pursuant to Federal
Rule of Civil Procedure 12(b)(6). Plaintiffs oppose the
motion. For the following reasons, Defendants' motion is
granted in part and denied in part.
relevant facts can be summarized as follows: Plaintiffs,
Alexander Perros ("Perros"), Thomas Delle
("Delle"), Nicholas Lenoci ("Lenoci"),
Victor Patalano ("Patalano"), Ronald Lanier
("Lanier") and Ibrahim Zahran ("Zahran")
(collectively, "Plaintiffs"), are all former
Corrections Officers or Deputy Sheriffs who were employed by
the Nassau County Sheriffs Department (the "Sheriffs
Department") for a number of years before retiring on
disability due to injuries suffered in the course of their
duties as Sheriffs Department employees. Following their
retirement, Plaintiffs each applied to the Sheriffs
Department for a "good guy letter, " which would
allow them to possess and carry pistols as retirees.
Plaintiffs' applications for good guy letters were all
denied by Defendant Sheriff Michael Sposato
("Sposato"), on the grounds that Plaintiffs were
injured and/or disabled for medical reasons at the time of
commenced this putative class action on September 28, 2015,
and amended their Complaint, as of right, on November 9,
2015. The First Amended Complaint alleges that Defendants
violated Plaintiffs' 2nd Amendment, due
process and equal protection rights under 42 U.S.C. §
1983. Plaintiffs further allege that Defendants discriminated
against them on the basis of disability in violation of the
Americans with Disabilities Act ("ADA"), 42 U.S.C.
§ 12132, and the Rehabilitation Act, 29 U.S.C. §
794. Finally, Plaintiffs assert a claim for municipal
liability, as well as state law claims for gross negligence
and tortious interference with prospective contractual
move to dismiss Plaintiffs' First Amended Complaint in
its entirety, pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons discussed below, the Court finds
that Plaintiffs' First Amended Complaint fails to state a
claim for violation of their due process and Second Amendment
rights. In addition, the Court finds that Plaintiffs have
failed to state a claim for disability discrimination, and
tortious interference with prospective contractual advantage
and gross negligence. The Court finds, however, that
Plaintiffs have met their burden with respect to their equal
protection and municipal liability claims.
survive a motion to dismiss [pursuant to Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iabal. 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twomblv.
550 U.S. 544, 570 (2007)). "Facial plausibility" is
achieved when the "the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal. 556 U.S. at 678 (citing Twomblv. 550
U.S. at 556). As a general rule, the court is required to
accept as true all of the allegations contained in the
complaint, see Iqbal. 556 U.S. at 678; Kassner
v. 2nd Ave. Delicatessen. Inc.. 496 F.3d 229, 237 (2d
Cir. 2007), and to "draw all reasonable inferences in
the plaintiffs favor." Troni. 2010 U.S. Dist.
LEXIS 79670, at *5 (quoting In re NYSE Specialists Sec.
Litig.. 503 F.3d 89, 95 (2d Cir. 2007)).
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements ... are not
entitled to the assumption of truth." Iqbal,
556 U.S. at 678-79 (citation omitted); see also
Twombly. 555 U.S. at 555 (stating that the Court is
"not bound to accept as true a legal conclusion couched
as a factual allegation"). "While legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations, " which state a claim
for relief. Iqbal. 556 U.S. at 679. A complaint that
"tenders 'naked assertion[s]' devoid
of'further factual enhancement'" will not
suffice. Iqbal. 556 U.S. at 678 (quoting
Twomblv. 555 U.S. at 557).
The NCPD and NCSD are not Suable Entities
Defendants correctly point out in their motion, and
Plaintiffs concede in their opposition, Defendants Nassau
County Police Department and Nassau County Sheriffs
Department are not suable entities. It is well-established
that "[u]nder New York law, departments that are merely
administrative arms of a municipality do not have a legal
identity separate and apart from the municipality and,
therefore, cannot sue or be sued." Davis v. Lvnbrook
Police Dep't. 224 F.Supp.2d 463, 477 (E.D.N.Y. 2002)
(citing cases). Accordingly, the Nassau County Police
Department and the Nassau County Sheriffs Department are
hereby dismissed from this action.
The Due Process and ...