United States District Court, E.D. New York
OFFICES OF GREGORY J. GALLO, PC, GREGORY J. GALLO, ESQ.
Attorneys for Plaintiff
CARNELL T. FOSKY, NASSAU COUNTY ATTORNEY BY: DIANE C.
PETILLO, 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
Complaint, pursuant to Federal Rule of Civil Procedure
12(b)(6). Plaintiff opposes the motion. For the following
reasons, Defendants' motion is granted in part and denied
relevant facts can be summarized as follows: Plaintiff,
Michael Freund, ("Plaintiff or "Freund"), is a
former Corrections Officer who was employed by the Nassau
County Sheriffs Department (the "Sheriffs
Department") from August 1995 to September 6, 2011, when
he retired on disability due to an injury suffered in 2009 in
the course of his duties as a corrections officer. Following
his retirement, Plaintiff applied to the Sheriffs Department
for a "good guy letter, " which would allow him to
possess and carry a pistol as a retiree. Plaintiffs
application for a good guy letter was denied by Defendant
Sheriff Michael Sposato ("Sposato") on or about
February 22, 2014, on the grounds that Plaintiff was injured
and/or disabled for medical reasons at the time of his
commenced the within action on October 27, 2015, alleging
that Defendants have violated his Second Amendment, due
process and equal protection rights under 42 U.S.C. §
1983. Plaintiff further alleges that Defendants have
discriminated against him 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, Plaintiff
asserts a claim for municipal liability, as well as state law
claims for gross negligence and tortious interference with
prospective contractual advantage.
filed the instant motion, seeking to dismiss the entire
Complaint for failure to state a claim, pursuant to Federal
Rule of Civil Procedure 12(b)(6). However, Defendants only
address the due process, equal protection, discrimination and
municipal liability claims in their motion. Although not
addressed by Defendants, the Court finds, for the reasons
discussed below, that Plaintiffs Complaint fails to state a
claim for violation of his Second Amendment rights, gross
negligence and tortious interference with prospective
contractual advantage. In addition, the Court finds that
Plaintiff has failed to state a claim for violation of his
due process rights and disability discrimination. The Court
finds, however, that Plaintiff has met his burden with
respect to his equal protection and municipal liability
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. Iqbal. 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, 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). ...