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Dave v. County of Suffolk

United States District Court, E.D. New York

June 2, 2017

RITA DAVE, Plaintiff,
THE COUNTY OF SUFFOLK, DETECTIVE INVESTIGATOR LAWRENCE SHEWARK, Shield No. 308, P.O. “JANE DOE”, Individually and in her Official Capacity, and P.O.s “JOHN DOE” #1-10, Individually and in their Official Capacities, the name “John Doe” being fictitious, as the true names are presently unknown, Defendants.


          GARY R. BROWN, United States Magistrate Judge

         Before the undersigned is an application by plaintiff seeking the unsealing of grand jury minutes relating to the prosecution underlying this civil action, which criminal prosecution was dismissed based upon a finding by a state court judge that the County failed to present sufficient evidence to the grand jury. After plaintiff raised this issue, the undersigned directed plaintiff to seek relief in the state court that had custody of the relevant grand jury minutes. Upon consideration, the state judge returned the matter to the undersigned, suggesting that, following an in camera review of the subject transcripts, this Court would be in the best position to make a determination as to the propriety of releasing such minutes in the context of this action.

         In making this application, plaintiff faces a substantial burden of demonstrating a particularized need for the record of the grand jury proceedings. For the reasons set forth herein, she has failed to meet this burden, and the application is DENIED.


         This matter was commenced on July 1, 2015 by the filing of a complaint alleging, inter alia, claims of malicious prosecution. DE 1. Defendants filed an answer on August 10, 2015. DE 9. On October 7, 2015, the undersigned held an initial conference at which the plaintiff was directed to file an application with the state court for release of the relevant records. See Minute Entry dated October 7, 2015. On August 4, 2016, the Honorable Martin I. Efman of the Suffolk County Supreme Court issued a decision and order stating, in relevant part, as follows:

Under Indictment No. 01029B-2013, defendant Rita Dave was charged with eleven felonies, the most serious charges being seven counts of Grand Larceny in the Second Degree, PL§ 155.40(1). On September 9, 2013, the Court issued an Order denying defendant's motion to reduce or dismiss based upon a review of the Grand Jury minutes. Defendant subsequently filed an omnibus motion. On December 9, 2014, the Court rescinded its previous Order. Pursuant to CPL §210.20(1)(b) and §210.20(4), all counts of this indictment pertaining to this defendant were dismissed with leave to the People to submit the matter to another Grand Jury. The basis for the Court's 2014 decision was that the minutes of the Grand Jury presentation were not legally sufficient to support the indictment.
* * *
With respect to defendant's application for release of the Grand Jury Minutes, the People are opposed to the general unsealing and release of the Grand Jury transcripts but consent to the alternative relief of unsealing for the limited purpose of transferring the transcripts to the presiding Justice in the Federal civil action. The Court determines that defendant has not demonstrated a compelling and particularized need for general access to the Grand Jury transcripts and defendant has shown no public interest, In the Matter of District Attorney of Suffolk County, 58 N.Y.2d 436 (1983); People v. DiNapoli, 27 N.Y.2d 229, 238 (1970); Albert v. Zahner's Sales Co., 51 A.D.2d 541 (2nd Dept. 1976). Although this Court has discretion to disclose the Grand Jury minutes, it determines that the extent to which disclosure of the Grand Jury minutes should be allowed, and the timing of that disclosure, is best determined by the Federal District Court following in camera inspection. That Court is in the best position to identify which evidence should be disclosed in the context of the Federal action.

DE 15-1. Following further efforts to resolve this matter without resort to costly motion practice, see Minute Order dated Sept. 20, 2016, DE 17; Electronic Order dated October 11, 2016, DE 18, those efforts failed to come to fruition. DE 19. On January 5, 2017, plaintiff filed the instant motion, which was fully briefed on January 27, 2017. DE 28. This opinion follows.


         The complaint in this action alleges, in relevant part, as follows:

         Plaintiff, Rita Dave, began the practice of law in 1992, ran her own practice as a general practitioner, and received various awards for her pro bono efforts. Compl. ¶¶ 13-15, DE 1. As part of her practice, she represented clients in hundreds of real estate transactions. Id. at ¶ 18. One such client, Dr. Kamal Zafar, purportedly without Dave's knowledge or involvement, became entangled in a massive mortgage fraud scheme. Id. at ¶¶19-53. An investigation into Zafar's activities led to plaintiff's arrest and indictment on eleven criminal counts. Id. at ¶¶ 54-57.

         Plaintiff further alleges that the relevant investigators, including defendant Shewark, though aware of her purported ignorance of the scheme, misled the District Attorney's Office through false statements and reports and the suppression of exculpatory evidence, into believing that Dave bore culpability in the scheme. Id. at ¶¶ 58-63. As part of that recitation, the complaint catalogs matters about which defendants purportedly made misrepresentations to the District Attorney's Office. Id. While the complaint makes no specific allegations concerning misstatements before the grand jury, plaintiff alleges more generally that defendants “misrepresented and falsified evidence throughout all phases of the criminal proceedings.” Id. at ¶ 93; cf. id. at ¶ 94 (referencing “the perjurious and fraudulent conduct of defendants”). The complaint further describes the December 9, 2014 dismissal of the indictment on the grounds that the evidence presented to the grand jury was not legally sufficient to support the counts of the indictment charged as against her. Id. at ¶¶ 65-70, Attachment A. The state court's order is discussed in further detail below.

         Based on these facts, the complaint purports to set forth claims, as relevant herein, for malicious prosecution under 42 U.S.C. §1983 and pursuant to state law.

         The Dismissal Decision

         Justice Efman's decision dismissing the indictment is highly probative to the matters before the Court on this motion. See generally DE 25-2. In that decision, Justice Efman described findings ...

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