Norton v. Town of Islip et al

Filing 149

MEMORANDUM & ORDER: For the foregoing reasons, the Islip Defendants' 144 motion for reconsideration of the court's 143 order denying summary judgment is DENIED. The stay of discovery is lifted and the parties are directed to contact Magistrate Judge William D. Wall to set a schedule for discovery proceedings. Ordered by Judge Nicholas G. Garaufis on 5/7/2012. (Lee, Tiffeny)

DIp

FILED

IN CLERK'S OFFICE
U S DISTRICT COURT E.D.N.V.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MAY 0 9 2012

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BROOKLYN OFFICE

HOWARD NORTON,

MEMORANDUM & ORDER
Plaintiff/Counter-Defendant,
04-CV-3079 (NGG) (WOW)
-againstTOWN OF ISLIP, COUNTY OF SUFFOLK,
VINCENT J. MESSINA, JR., individually and in his
official capacity as Town Attorney for the Town of
Islip, RICHARD HOFFMAN, indiVidually and in his
official capacity as Deputy Town Attorney for the
Town ofIslip, RICHARD C. SHERMAN,
individually and in his official capacity as a Town of
Islip Assistant Town Attorney, JOANNE HUML,
individually and in her official capacity as a Town of
Islip Assistant Town Attorney and Director of the
Division ofLaw Enforcement of the Town ofIslip
Office of the Town Attorney, J. TIMOTHY SHEA,
JR., individually and in his official capacity as a
Town ofIslip Assistant Town Attorney and Director
of the Division ofLaw Enforcement of the Town Of
Islip Office of the Town Attorney, RONALD P.
STABILE, JR., individually and in his official
capacity as Investigator for the Town ofIslip Office
of the Town Attorney, CARL MALTESE,
individually and in his official capacity as Division
Director ofthe Division ofBuilding of the Town of
Islip Department ofPlanning and Development, and
as Town ofIslip Director of Building and Housing,
Defendants/Counter-Plaintiffs.

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NICHOLAS G. GARAUFIS, United States District Judge.
On September 15,2011, Defendants Town ofislip, Vincent J. Messina, Jr., Richard
Hoffinan, Richard C. Sherman, Joanne Huml, J. Timothy Shea, Jr., Ronald P. Stabile, Jr., and
Carl Maltese ("Islip Defendants" or "Defendants") filed a motion for reconsideration of this
court's September 1,2011 Memorandum and Order. (Defs.' Mot. (Docket Entry # 144).) The
Islip Defendants raise three grounds for reconsideration: (1) that "critical dicta" against the Islip

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Defendants should be corrected; (2) that the court should prohibit Plaintiff s declaratory
judgment claims from proceeding against the individually named Defendants; and (3) that the
court "misapprehended" the Islip Defendants' arguments concerning probable cause.
(Reconsideration Mem. (Docket Entry # 145).)

I.

MOTION FOR RECONSIDERATION STANDARD
Pursuant to Local Rule 6.3, a motion for reconsideration will generally be denied unless

the moving party can establish: "(1) that the court overlooked controlling decisions or data [or]
that there has been a change in decisions or data; (2) that there has been a change in controlling
law; (3) that new evidence has become available; or (4) that reconsideration is necessary to
correct a clear error or prevent manifest injustice." Hughes v. McWilliams, No. 04-CV -7030
(KMW), 2009 WL 2971757, at *1 (S.D.N.Y. Sept. 16,2009) (citing Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Courts narrowly construe and strictly apply this rule in
order to avoid "repetitive arguments on issues that have already been considered fully by the
court." Caleb & Co. v. E.L Du Pont De Nemours & Co., 624 F. Supp. 747, 748 (S.D.N.Y.
1985).

II.

CRITICAL DICTA
Defendants argue that the court's summary judgment order "misapprehended the Town's

reasonable and good faith (indeed meritorious) citation to Arteaga v. State of New York, 72
N.Y.2d 212, 216-17,532 N.Y.S.2d 57 (1988)." (Reconsideration Mem. at 2-3.) Defendants ask
that this "critical dicta . .. be corrected.... " (Id. at 4.) Since Defendants are not seeking to
"alter the conclusion by the court," its motion must be denied. Shrader, 70 F.3d at 257. See also
RJE Corp. v. Northville Industries Corp., No. 02-CV-1440 (FB), 2002 WL 1750763 (E.D.N.Y.
2002) (holding that a motion for reconsideration must be denied when a party merely seeks to

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alter a previous order's dicta).l

III.

DECLARATORY JUDGMENT
Having reviewed the Defendants' motion and the responsive submissions, the court finds

that the demanding standard for reconsideration has not been met. Defendants' arguments
largely rehash arguments previously made in its motion for summary judgment. The court fully
considered and rejected these arguments in its denial of that motion.
Defendants argue that a declaratory judgment against the Individual Town Defendants is
not warranted since they are no longer employed by the Town. (Reconsideration Mem. at 4. See
also Reply Mem. (Docket Entry # 148) at 4.) This argument was made in Defendants' Summary
Judgment Memorandum. (See Mem. (Docket Entry # 130) at 5 "None of the Individual Town
Defendants are even still employed with the Town. Accordingly, any requested declaration
against these individuals ... would be improper and of no use." See also Mem. (Docket Entry #
129 at 27 "[I]t is manifest that plaintiff's declaratory judgment claims against the Individual
Town Defendants, all of who are former Town employees or officials, must be dismissed.".)
The only cases cited in Defendants' motion on this point (two district court cases outside of this
Circuit) were the same cases cited in their motion for summary judgment. The court addressed
the argument in its September I, 2011 Memorandum and Order, and ordered discovery on the
issue, noting that the Magistrate Judge would "cabin discovery appropriately." (Mem. and Order
(Docket Entry # 143) at II.) Since Defendants have failed to meet the standard outlined in
Hughes and Shrader, the motion for reconsideration is denied.

I Defendants also assert that the Town oflslip is immune from plaintiff's state law claims. Any remaining state law
claim against the Town oflslip for malicious prosecution is dismissed. "Whether absolute or qualified,"
governmental immunity applies "when official action involves the exercise of discretion or expert judgment in
policy matters, and is not exclusively ministerial ...." Haddock v. City of New York, 75 N.Y.2d 478, 483 (1990).

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IV.

PROBABLE CAUSE

As in Section III, the court finds that the demanding standard for reconsideration has not
been met. Defendants seem to argue that the Monell claim against Islip must fail because the
Circuit held that probable caused existed to prosecute Plaintiff. (See Reconsideration Mem. at
5.) The Circuit, however, found arguable probable cause in ruling on the issue of qualified
immunity for the individual town defendants; there was no finding of actual probable cause for
either the individual defendants or the Town defendant. The Circuit Court explicitly stated that
"it would have been a mistake for the individual defendants to rely on those notations as a basis
for probable cause." Norton v. Town ofIslip, 378 Fed. App'x. 85, 89 (2d Cir. 2010). The
Circuit went on to merely find that at the time, this reliance was a "reasonable mistake" which
entitled the individual defendants to qualified immunity on the federal-law claim. Id.
Furthermore, as this court mentioned in its Order denying summary judgment, "there is no
logical inconsistency with the court concluding the Individual Defendants acted 'reasonably' and
that [the municipality's] policies and procedures regarding its criminal prosecution of zoning
violations are constitutionally violative." (Mem. and Order at 8.)
Defendants' citation to the Circuit's Order is unconvincing. The Circuit was clear that it
was making no finding related to the Monell claim against the town; instead the Circuit
remanded the cause to this court. Norton, 378 Fed. App'x, at 90 ("Accordingly, rather than risk
a decision on an issue that is poorly briefed and that may exceed our jurisdiction, we remand the
cause to the District Court.... "). This court specifically addressed Defendants' argument that
qualified immunity for the individual defendants requires a finding of immunity for the Town.
(See Mem. and Order at 9-10.) The court held that "Islip is not entitled to immunity from
Norton's Monell claim" even where the individual defendants were entitled to immunity. (Id. at

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10.) Defendants have failed to identify new or additional controlling decision or data that impact
the court's analysis, and they have not identified any clear error or manifest injustice in the
court's reasoning.
V.

CONCLUSION

For the foregoing reasons, the Islip Defendants' motion for reconsideration of the court's
order denying summary judgment is DENIED. The stay of discovery is lifted and the parties are
directed to contact Magistrate Judge William D. Wall to set a schedule for discovery
proceedings.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
May l , 2012

NICHOLAS G. GARAUFIS \I
United States District Judge

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