United States District Court, E.D. New York
DANA BENTZ, Individually and as Executor of the Estate of ARTHUR MONDELLA, Deceased, DOMINIQUE MONDELLA, Individually, Plaintiffs,
THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, and JOHN DOE LAW ENFORCEMENT OFFICERS 1-100, Defendants.
MEMORANDUM AND ORDER
Glasser Senior United States District Judge
case stems from the untimely death of Arthur Mondella, the
owner of Dell's Maraschino Cherries Company, Inc., who
committed suicide during the execution of a search warrant at
that company's facility on February 24, 2015. Mr.
Mondella's daughters, Dominique Mondella and Dana Bentz,
individually and as Executrix of his estate, bring this
action against the City of New York, The New York City Police
Department, and John Doe Law Enforcement Officers 1-100
pursuant to 42 U.S.C. § 1983 and state law claims for
recklessness and negligence.
action comes before the Court on (1) Defendants' motion
to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), and (2) Plaintiffs' cross motion
for leave to amend the Complaint pursuant to Fed.R.Civ.P. 15.
For the reasons stated herein, Defendants' motion to
dismiss is GRANTED, and Plaintiffs' motion for leave to
amend is DENIED.
following facts are drawn from the Complaint, ECF 1
(“Compl.”), unless otherwise noted. Arthur
Mondella was the owner of Dell's Maraschino Cherries
Company, Inc. (“Dell's”). At all times
relevant herein, Dell's offices and processing facility
occupied three addresses located at 81 - 97 Ferris Street in
Brooklyn. Id. ¶¶ 2, 3; ECF 11 Exh. B. On
February 23, 2015, Defendants sought and obtained search
warrants for the Dell's facility to investigate alleged
improper wastewater discharge from the premises. Compl.
¶ 24; ECF 11 Exhs. B, C, D (the “environmental
warrants”). The affidavits in support of the search
warrants made no reference to the presence of drugs or drug
activity on the premises to be searched. Id.
¶¶ 29, 33, 34-38.
February 24, 2015, officers of the New York State Department
of Environmental Conservation Division of Law Enforcement
(“DEC”), the New York City Police Department
(“NYPD”), and the Kings County District Attorney
arrived to execute the environmental warrants at the
Dell's facility. Id. ¶ 2. Pursuant to the
warrants' authority, officers had broad permissions to
inspect piping, electronic devices, and other equipment used
to store, monitor or treat wastewater at the facility. ECF 11
Exhs. B, C, D. During the search, the officers moved,
touched, searched, altered and removed fixtures, furniture
and shelving. Compl. ¶ 40. Mr. Mondella's person was
not searched, nor did the warrants authorize it. Id.
¶ 55; ECF 11 Exhs. B, C, D. Assuming the facts alleged
in the Complaint to be true, as Fed.R.Civ.P. 12(b)(6)
requires, Mr. Mondella, present in a room not yet searched,
became “agitated, stressed, upset and nervous.”
Id. ¶¶ 2, 4, 52. The search team neither
knew nor had reason to inquire whether Mr. Mondella was
carrying a gun with which he committed suicide while the
search was in progress. Id. ¶¶ 2, 4, 5,
recovered in the course of the search revealed that Mr.
Mondella was in the business of dealing in marijuana as well
as in maraschino cherries. ECF 11 Exhs. E, F. Criminal
charges were subsequently filed against Dell's for
Criminal Possession of Marihauna in the First Degree in
violation of N.Y. Penal Law § 221.30, and criminal
negligence in discharging publicly owned treatment works
without complying with toxic effluent standards, in violation
of New York State Environmental Conservation Law (“N.Y.
E.C.L.”) §§ 71-1933(3)(a)(i) and 17-0825.
Dell's pled guilty to those charges pursuant to a plea
deciding a Fed.R.Civ.P. 12(b)(6) motion to dismiss, and
accepting the facts pleaded to be true, Plaintiffs must state
a claim that is plausible on its face from which the Court
can draw the reasonable inference that the claim has merit.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted).
before the Court is the Defendants' motion to dismiss for
failure to state a claim. Plaintiffs' memorandum opposing
the Defendants' motion seeks leave to amend the
Complaint, without substantively responding to the
Defendants' arguments to dismiss it. To the extent that
Plaintiffs address the motion to dismiss at all, they cite to
no authority whatsoever. ECF 14 at 14-15. For the reasons
that follow, the motion to dismiss is GRANTED.
Claims Brought Pursuant to 42 U.S.C. § 1983
allege that the Defendants' conduct in executing the
warrants and failing to prevent Mr. Mondella's suicide
violated his constitutional rights. ...