Field Day, LLC et al v. County of Suffolk et al

Filing 216

ORDER granting in part and denying in part 168 Motion for Summary Judgment; denying 170 Motion for Partial Summary Judgment. See attached Order. Ordered by Senior Judge Denis R. Hurley on 6/28/2011. (Malley, Sean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
FIELD DAY, LLC, f/k/a/NEW YORK MUSIC
FESTIVAL, LLC, AEG LIVE LLC f/k/a
AEG CONCERTS LLC,
Plaintiffs
-againstCOUNTY OF SUFFOLK, SUFFOLK COUNTY
DEPARTMENT OF HEALTH SERVICES,
SUFFOLK COUNTY EXECUTIVE ROBERT
GAFFNEY, COMMISSIONER OF THE SUFFOLK
COUNTY DEPARTMENT OF HEALTH
SERVICES BRIAN L. HARPER, COMMISSIONER
OF SUFFOLK COUNTY POLICE DEPARTMENT
JOHN C. GALLAGHER, DIRECTOR OF SUFFOLK
COUNTY DEPARTMENT OF HEALTH SERVICES
ROBERT MAIMONI, CHIEF OF THE BUREAU OF
PUBLIC HEALTH PROTECTION BRUCE
WILLIAMSON, PRINCIPAL PUBLIC HEALTH
SANITARIAN ROBERT GERDTS, DEPUTY
SUFFOLK COUNTY ATTORNEY ROBERT
CABBLE, DEPUTY SUFFOLK COUNTY
EXECUTIVE JOE MICHAELS, SERGEANT
PATRICK MAHER OF THE SUFFOLK COUNTY
POLICE DEPARTMENT, THE TOWN OF
RIVERHEAD, RIVERHEAD CHIEF OF POLICE
DAVID HEGERMILLER and NEW YORK
STATE HEALTH COMMISSIONER ANTONIA
C. NOVELLO.
Defendants.
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APPEARANCES:
O'Melveny & Myers LLP
Attorneys for Plaintiffs
7 Times Square
New York, New York 10036
By:
Charles E. Bachman, Esq.
Peter Obstler, Esq.
B. Andrew Bednark, Esq.

MEMORANDUM & ORDER
Civil Action No. 04-2202

Christine Malafi, Suffolk County Attorney
Attorneys for Suffolk County Defendants
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, New York
By:
Christopher A. Jeffreys, Esq.
Susan A. Flynn, Esq.
Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP
Attorneys for Town of Riverhead
456 Griffing Avenue
P.O. Box 389
Riverhead, NY 11901
By:
Phil Siegel, Esq.
Thomas C. Sledjeski & Associates, PLCC
Attorneys for Riverhead Police Chief David Hegermiller
18 First Street
P.O. Box 479
Riverhead, New York 11901
By:
Thomas C. Sledjeski, Esq.

HURLEY, Senior District Judge:
Plaintiffs Field Day LLC f/k/a/ New York Music Festival and AEG Live LLC f/k/a/ AEG
Concerts LLC (collectively "Plaintiffs" or "Field Day") commenced this action for money
damages and injunctive relief against the County of Suffolk and the Suffolk County Department
of Health Services (collectively the "County") and numerous County employees1 (the County
1

The Individual County Defendants are Suffolk County Executive Robert Gaffney
("Gaffney"), Commissioner of the Suffolk County Department of Health Services Brian L.
Harper ("Harper"), Commissioner of the Suffolk County Police Department John C. Gallagher
("Gallagher"), Director of the Suffolk County Department of Health Services Robert Maimone
("Maimone"), Chief of the Bureau of Public Health Protection Bruce Williamson
("Williamson"), Principal Public Health Sanitarian Robert Gerdts ("Gerdts"), Deputy Suffolk
County Attorney Robert Cabble ("Cabble"), Deputy Suffolk County Executive Joe Michaels
("Michaels"), and Sergeant Patrick Maher of the Suffolk County Police Department ("Maher").
Parenthetically, the Court notes that Robert Maimone's name is variously spelled as Maioni,
Maimoni, and Maimone; the Court will use "Maimone" as it is the spelling used in his
2

employees named as Defendants are collectively referred to as the "Individual County
Defendants," and the Individual County Defendants and the County are collectively referred to as
the "County Defendants"), the New York State Health Commissioner, the Town of Riverhead
("Riverhead"), and the Riverhead Police Chief ("Hegermiller"). Plaintiffs allege that they were
unlawfully denied the right to stage a weekend-long concert within the Town of Riverhead
because of the actions of the various Defendants. Presently before the Court are (1) Plaintiffs'
motion for partial summary judgment against the County and the Individual County Defendants
except Maher and Harper, and (2) the County Defendants' motion for summary judgment.2 For
the reasons set forth below, Plaintiffs' motion for partial summary judgment is denied in toto; the
County Defendants' summary judgment motion is also denied subject to the following
exceptions: Plaintiffs' claims against Individual County Defendants Maher and Harper are
dismissed, as is Plaintiffs' prima facie tort claim as asserted against the County Defendants.

Background
This action arises out of Field Day's efforts to promote and produce a two-day music
festival featuring leading rap, hip-hop, and rock artists which was to take place June 7-8, 2003
(the "Festival").
After considering other locations, Field Day entered into a "License Agreement for
Outdoor Event" (the "Agreement") with the Riverhead Community Development Agency

deposition.
2

Defendants Riverhead's and Hegermiller's motions for summary judgment, as well as
Plaintiffs' motion for partial summary judgment against those two Defendants, are addressed in a
separate Memorandum and Order bearing today's date.
3

("CDA"), a "public instrumentality" of the Town of Riverhead on February 20, 2003.3 Under the
terms of the Agreement, Field Day had the responsibility of securing "a 'Mass Gathering Permit'
or such other assembly permit as is deemed necessary by the Commissioner of the Suffolk
County Department of Health" prior to the concert "and a 'Special Event Permit' from the Town
of Riverhead . . ." Agreement ¶ 2.
Precisely when Field Day submitted its application to the County for a Mass Gathering
Permit is unclear. Thus, in Robert H. Gerdts's ("Gerdts") letter of March 24, 2003 to Andrew
Dreskin ("Dreskin"), the Chief Operating Officer of Field Day, there is an indication that the
application was received by the Suffolk County Department of Health Services on "February 27,
2003." Bednark Decl. in Supp. of Pls.' Mot. for Partial Summ. J. against the County and
Individual County Defs., Ex. 12, ¶ 1. However, in an exhibit entitled "Field Day Music Festival
Activity Summary," there is a notation that the receipt date was March 21, 2003. Id., Ex. 11. In
any event, it is undisputed that Gerdts and other health department staff members attended a
meeting in Riverhead on February 27, 2003, and that thereafter during March and April of 2003,
Field Day met and otherwise communicated with officials from the County and Riverhead to
ensure coordination between the various agencies whose involvement would prove necessary for
the concert to be held. Id., Exs. 9, 11, 16. The project appeared to be moving in the right
direction from Field Day's perspective as evidenced by the following excerpt from the previously
mentioned March 24th letter from Gerdts to Dreskin: "The scope of the submitted document, the
Preliminary Draft Event Operations Plan for the Field Day Music Festival, is sufficient to allow
3

The Agreement is attached as Exhibit 1 to the Declaration of B. Andrew Bednark
submitted in support of Plaintiffs' motion for partial summary judgment against Suffolk County
and the Individual County Defendants.
4

advertising and the . . . sale of tickets to commence . . . ." Id., Ex. 12.
"Meanwhile, [Plaintiffs maintain], Plaintiffs' principal competitor, Clear Channel
Entertainment, was working to thwart Field Day's efforts to obtain a Mass Gathering Permit" by,
inter alia, hiring a lobbying firm to contact the County Executive's Office "to persuade it to deny
the [permit]." Pls.' Mem. in Supp. of Mot. for Partial Summ. J. against Suffolk County and the
County Individual Defs. at 9. That proposition finds support in the record. Bednark Decl. in
Supp. of Pls.' Mot. for Partial Summ. J. against the County and Individual County Defs., Ex. 47
at 20:14-21:4, 33:7-14, 37:13-38:2. While it is unclear what effect, if any, Clear Channel's
efforts to derail the project had in bringing about that result, it warrants mention that there is
evidence which indicates that Clear Channel was sufficiently committed to that goal to cause a
draft permit denial letter to be prepared for forwarding by the lobbyist to the County Executive
for his consideration. Id., Ex. 49; see also id., Ex. 46 at 40:6-25.
On May 27, 2003, Field Day's application was denied via a letter from Gerdts to Dreskin
which reads in pertinent part:
Chapter 1 State Sanitary Code Subpart 7-1 Temporary Residences
and Mass Gatherings § 7-1:41 requires that applications for a permit
to operate a mass gathering be accompanied by an engineering report.
This report must include, in part, "a statement from the County
sheriff, State police, New York State Department of Transportation
or other law enforcement agency certifying that the traffic control
plan is satisfactory."
The Department has received notification from David J. Hegermiller,
Chief of Police, Town of Riverhead, that his Department alone cannot
implement an effective traffic control plan and therefore, is not able
to support the issuance of the permit.
Accordingly, your application for a permit to operate a mass gathering
is denied.
5

Id., Ex. 75.
While Gerdts's reference to Hegermiller's position was correct, there is evidence that his
reliance on Mass Gathering § 7-1:41 was off-target. Id., Ex. 8 at 314:10-318:14.
On June 3, 2003, the County moved in the New York State Supreme Court for an
injunction to preclude Field Day from holding the Festival given the absence of the needed
permit. That effort resulted in an ex-parte temporary restraining order being issued on June 4,
2003. Ex. H to Hegermiller's Opp'n to Pls.' Mot. for Summ. J. against Riverhead and
Hegermiller.
Field Day alleges that Riverhead and Suffolk County, through their employees,
unlawfully failed to approve its application by imposing a series of arbitrary prerequisites to the
issuance of the permit. By way of two examples of such purported unconstitutional
impediments, Plaintiffs cite Riverhead Police Chief Hegermiller's position that approximately
200 police officers would be necessary to service the event, and Suffolk County's insistence that
before it could provide officers towards that goal, an intermunicipal agreement would have to be
executed between Riverhead and the County.
Field Day asserts claims against various County Defendants for violations of its federal
and state constitutional free speech rights, together with common law claims of tortious
interference with contractual relations, tortious interference with business relations, prima facie
tort, and negligence.
Discussion
I.

Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only
6

appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other
documentation demonstrates both the absence of a genuine issue of material fact and one party’s
entitlement to judgment as a matter of law. See Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 309 (2d Cir. 2008); Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d
Cir. 1994). The relevant governing law in each case determines which facts are material; "only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); see SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009);
Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007). No genuinely triable factual
issue exists when the moving party demonstrates, on the basis of the pleadings and submitted
evidence, and after drawing all inferences and resolving all ambiguities in favor of the
non-movant, that no rational jury could find in the non-movant’s favor. See SCR Joint Venture,
559 F.3d at 137; Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing
Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or
other documentation, the non-movant must offer similar materials setting forth specific facts that
show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d
1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence,"
Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting
Anderson, 477 U.S. at 252), or more than "some metaphysical doubt as to the material facts,"
Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in
7

his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the
motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal
citations omitted). Affidavits submitted in opposition to summary judgment must be based on
personal knowledge, must "set forth such facts as would be admissible in evidence," and must
show that the affiant is "competent to testify to the matters stated therein." Patterson v. County
of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)).4 "Rule 56(e)’s
requirement that the affiant have personal knowledge and be competent to testify to the matters
asserted in the affidavit also means that an affidavit’s hearsay assertion that would not be
admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial."
Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155,
160 (2d Cir. 1999)).
When determining whether a genuinely disputed factual issue exists, "a trial judge must
bear in mind the actual quantum and quality of proof necessary to support liability," or "the
substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55.
A district court considering a summary judgment motion must also be "mindful of the underlying
standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997)
(citing Anderson, 477 U.S. at 252), because "the evidentiary burdens that the respective parties
will bear at trial guide district courts in their determination of a summary judgment motion." See
Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here the nonmovant will
bear the ultimate burden of proof at trial on an issue , the moving party’s burden under Rule 56

4

The cited portion of Fed. R. Civ. P. 56(e) was renumbered as Rule 56(c)(4) as part of
the amendments to Rule 56 effective December 1, 2010.
8

will be satisfied if he can point to an absence of evidence to support an essential element of the
nonmoving party’s claim." Id. at 210-11. Where a movant without the underlying burden of
proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to
the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.'" Brady, 863
F.2d at 211 (citing Matsushita, 475 U.S. at 587). In deciding a summary judgment motion, a
court must resolve all factual ambiguities and draw all reasonable inferences in favor of the
non-moving party. See Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 57 (2d
Cir. 1987).

II.

County Defendants' Motion for Summary Judgment
County Defendants move for summary judgment maintaining that (A) the County

properly applied the Mass Gathering Statute Law; (B) Individual County Defendants are entitled
to qualified immunity; (C) Plaintiffs cannot establish Monell5 liability; (D) Field Day is estopped
by the doctrines of collateral estoppel and res judicata from litigating the validity of the denial of
the Mass Gathering Permit; and (E) the state claims should be dismissed either because once the
federal claims are dismissed, there is no pendent jurisdiction, or for lack of evidentiary support.
A.

Application of the Mass Gathering Statute

As to the County Defendants' first argument, they maintain that "evidentiary proof
elicited during the course of discovery has conclusively established that the individual Suffolk
County defendants properly applied the Mass Gathering Statute, and properly denied the
Plaintiffs' application for a Mass Gathering Permit. There was simply insufficient police
5

See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 693 (1978).
9

protection to implement any effective traffic control plan, and insufficient police protection to
make certain that the potential emergency needs of individuals traveling to the event, and those in
the neighborhood surrounding the proposed site, could be protected." County's Mem. in Supp. of
Mot. for Summ. J. at p. 8-9. There is abundant evidence in the record supporting that position;
however, there is also evidence – albeit slight by comparison – which would permit the trier of
fact to conclude that the County's refusal to complement the Riverhead officers available for the
event by supplying Suffolk County police officers as requested by Hegermiller (Bednark Decl. in
Supp. of Pls.' Mot. for Partial Summ. J. against Riverhead and Hegermiller, Ex. U) was
attributable to Clear Channel becoming involved in the process by, inter alia, contacting County
officials directly, as well as through a lobbying outfit, in an effort to prevent a permit from being
issued to Field Day. See, e.g., Bednark Decl. in Supp. of Pls.' Mot. for Partial Summ. J. against
the County and Individual County Defs., Ex., 31 at 204:1-205:14 (Clear Channel's vice president
Delsener directly communicating with Robert Delagi, an apparent Suffolk County Department of
Health Services employee [id. at 124:7-12] asking that the permit not be issued); at 20:14-21:10
(lobbyist discusses event with a Deputy County Executive on at least two occasions); Ex. 47 at
33:7-14 (lobbyist opines that Clear Channel did not want the event to go forward given that
"[t]hey were competitors"); and Ex. 49, compare the foregoing exhibits with Ex. I to Bednark
Decl. in Supp. of Hegermiller's Opp'n to Pls.' Mot. for Summ. J. against Riverhead and
Hegermiller at 50 (the deposition testimony of Clear Channel's Delsener in which he indicated, in
part, that "we wanted [the festival] to go forward . . . . They're going to fall on their face.")
(internal quotations marks deleted). To the extent Clear Channel improperly intervened and that
intervention was factored into the County's decision to deny Field Day the needed permit, the
10

County did not properly apply the Mass Gathering Statute. By way of another example of an
arguable misapplication of the Mass Gathering Statute, there is evidence that the County's
belated insistence6 on an intermunicipal agreement was out-of-sync with its approach vis-a-vis
some other events held "outside" the police district where police resources were provided absent
such an agreement. Bednark Decl. in Supp. of Pls.' Mot. for Partial Summ. J. against County and
Individual County Defs., Ex. 64 at 138:8-142:1. In sum, there are material issues of fact as to
whether the County Defendants properly applied the Mass Gathering Statute.

B.

Qualified Immunity

The Individual County Defendants next maintain that they are entitled to summary
judgment on the basis of qualified immunity. "Government actors have qualified immunity to §
1983 claims 'insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.'" Bolmer v. Oliveira, 594
F.3d 134, 141 (2d Cir. 2010) (quoting Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577
F.3d 415, 432 (2d Cir. 2009)). Thus, "[a] qualified immunity defense is established if (a) the
defendant's action did not violate clearly established law, or (b) it was objectively reasonable for
the defendant to believe that his action did not violate such law." Salim v. Proulx, 93 F.3d 86, 89
(2d Cir. 1996).
"Qualified immunity shields government officials from liability for civil damages as a

6

The purported need for an intermunicipal agreement was first communicated to Field
Day "[s]ometime after [] May 13th." Bednark Decl. in Supp. of Pls.' Mot. for Partial Summ. J.
against County and Individual County Defs., Ex. 58 at 47:4-12. The Riverhead Supervisor did
not receive notice of this requirement until May 15, 2003. Id., Ex. 65.
11

result of their performance of discretionary functions, and serves to protect government officials
from the burdens of costly, but insubstantial, lawsuits." Lennon v. Miller, 66 F.3d 416, 420 (2d
Cir. 1995). A court may grant summary judgment on qualified immunity grounds "if [the
movant] adduces sufficient facts such that no reasonable jury, looking at the evidence in the light
most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude
that it was objectively unreasonable for the [movant] to believe that he was acting in a fashion
that did not clearly violate an established federally protected right." Hartline v. Gallo, 546 F.3d
95, 102 (2d Cir. 2008) (internal quotations omitted).
Qualified immunity is an affirmative defense. As such, the burden of proof rests on the
Individual County Defendants asserting the defense to demonstrate that it was objectively
reasonable for him to believe that his conduct did violate a federal right of Plaintiffs. See Green
v. City of New York, 465 F.3d 65, 83 (2d Cir. 2006). However, those Defendants, in endeavoring
to discharge that burden, describe their activities in general terms collectively, supplemented by
the following argument:
Based upon applicable precedent, it is submitted that this
Honorable Court should dismiss the plaintiffs' action in its entirety.
However, for the sake of completeness, it is also submitted that all of
the individually named County defendants are entitled to immunity
for their actions. As demonstrated by the accompanying declaration
and its supporting exhibits, many of the individually named Suffolk
County defendants had absolutely nothing to do with the permitting
process: they were information gatherers, and nothing more. Surely,
there is no need to discuss the non-involvement of those individual
defendants any further.
Mem. in Supp. of Suffolk County Defs.' Mot. for Summ. J. at 6.
The referenced "declaration" consists of a well crafted overview of the case, including a

12

brief synopsis of some of the deposition testimony of the Individual County Defendants as well
as non-party witnesses. However, that general information, regarding "many" of the Individual
County Defendants, is simply insufficient to determine which individuals, if any, are entitled to
qualified immunity.7 To accomplish that task, a road map from counsel is needed, particularly
given the voluminous nature of the record (1) specifically referencing the evidence thus far
adduced pertaining to each qualified immunity-claimant's conduct, and (2) legal argument
explaining why that conduct entitles that Defendant to qualified immunity as a matter of law at
this stage of the proceeding. Simply put, the moving Defendants have failed to carry their burden
on the affirmative defense of qualified immunity, and their conclusory motion for summary
judgment on this ground is, therefore, denied. Cf. Shechter v. Comptroller of the City of New
York, 79 F.3d 265, 270 (2d Cir. 1996) and Crawford v. Coughlin, 1996 U.S. Dist. Lexis 6015,
*11 (W.D.N.Y.).
Attention will now be turned to Harper and Maher. Harper was the Commissioner of the
Suffolk County Department of Health Services, an administrative arm of the County, from 2004
through October 2006. He was not employed by the County of Suffolk during the time the
events detailed in the complaint took place. See uncontroverted fn. 1 of Jeffreys Decl. in Opp'n
to Pls.' Mot. for Partial Summ. J. against County and County Defendants. Moreover, he is sued
only in his official capacity (see Second Amended Complaint ¶ 15); therefore the real party in
interest is the County, see, e.g., Hafer v. Melo, 502 U.S. 21, 25-26 (1991); Kentucky v. Graham,
473 U.S. 159, 167 n.14 (1985), and the County is a named party to this action. For these

7

Individual County Defendants Harper and Maher, as will be explained in the text
momentarily, are entitled to summary judgment.
13

reasons, dismissal of the claims against Harper is appropriate.
Defendant Maher is also entitled to summary judgment. On the record before the Court
there is no dispute that Maher, a sergeant in the Suffolk County Police Department, was
assigned, as low man on the totem pole, to attend meetings regarding the Festival to gather
information and report it back to his superiors. (Maher Dep. at 64:9-65:16, 92:23-93:11) (said
Dep. is Ex. K to Jeffreys Decl. in Opp'n to Pls.' Mot. for Partial Summ. J. against County and
County Defendants.)) The uncontroverted evidence demonstrates that he played no meaningful
role in the County's decision not to assist Riverhead or otherwise in the permitting process.

C.

Monell Liability

In further support of its motion for summary judgment, the County asserts as its third
ground that Plaintiffs cannot establish liability on its part. A municipality cannot be held liable
under §1983 on a respondeat superior theory for its employees' torts. See Monell v. N.Y. City
Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). In order to bring a § 1983 claim against a
municipal defendant, a plaintiff must establish both a violation of his constitutional rights and
that the violation was motivated by a municipal custom or policy. Id. at 690-91.
The existence of a municipal policy or custom may be pled in any of four ways.
plaintiff may allege
(1) the existence of a formal policy which is officially endorsed by the
municipality; (2) actions taken or decisions made by municipal
officials with final decision-making authority, which caused the
alleged violation of plaintiff's civil rights; (3) a practice so persistent
and widespread that it constitutes a custom of which constructive
knowledge can be implied on the part of the policymaking officials;
or (4) a failure by policymakers to properly train or supervise their
14

A

subordinates, amounting to deliberate indifference to the rights of
those who come in contact with municipal employees.

Bonds v. Suffolk Cnty. Sheriff's Dept., 2006 WL 3681206, at *2 (E.D.N.Y. Dec. 5, 2006) (internal
quotations and citations omitted (emphasis added)); see also Gladwin v. Pozzi, 2010 WL
5141233, *2 (2d Cir. Dec. 20, 2010) (Summary Order) ("A municipality may be held liable under
§ 1983 where there is a deprivation of rights pursuant to a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body's officers, . . . or where .
. . the contention is not that the actions complained of were taken pursuant to a local policy but
instead that the actions were taken by an official who had final policymaking authority in the
particular area involved.") (internal quotations and citations omitted).
As Plaintiffs correctly note, such Individual County Defendants as Gaffney, Gallagher
and Gerdts were policy makers for present purposes. Moreover, as "it is plain that municipal
liability may be imposed for a single decision by municipal policymakers under appropriate
circumstances," even if "that action is taken only once," Pembaur v. City of Cincinnati, 475 U.S.
469, 480-81 (1986), the County Defendants' argument that Plaintiffs' claim fails under Monell
because the challenged action constitutes "a single, isolated occurrence rather than a policy or
custom of the County" (Mem. in Supp. of County Defs.' Mot. for Summ. J. at 12), is
unpersuasive.

D.

Collateral Estoppel and Res Judicata

Turning now to the County's argument that Field Day is estopped by the doctrines of
collateral estoppel and res judicata from litigating the validity of the denial of the Mass
15

Gathering Permit because of the temporary restraining order issued by a Justice of the New York
State Supreme Court, the Court similarly finds that position to be unpersuasive. First, the Court
notes that no such defense is contained in the County Defendants' answer. See Ex. B to County
Defs.' Rule 56.1 Statement. Assuming arguendo they may now assert these defenses, County
Defendants have not cited any case holding that a party who is restrained by a temporary
restraining order obtained ex parte had "a full and fair opportunity" to litigate the relevant issue.8
Also off-target is the County's argument that "based on the nature of the claim presented in the
State Supreme Court," the temporary restraining order "finally determined the issue presented [in
the current action]" (County Defs.' Reply Mem. in Further Supp. at 9); the issue in the state court
involved the impropriety of holding a mass gathering sans a Mass Gathering Permit, a distinct
issue from those before this Court.

E.

State Law Claims

Turning to the state law claims,9 many of the issues of fact that precluded summary
judgment in favor of County Defendants on Plaintiffs' § 1983 claim similarly preclude summary
judgment in their favor on the state-based claims for tortious interference with contract, tortious
interference with business relations, and negligence. However, the situation is otherwise with

8

The Court notes that less than a week after obtaining the temporary restraining order and
after Field Day held a shortened (one-day) version of the Festival in another venue, the County's
Health Department Commissioner (the named plaintiff in the proceeding) voluntarily
discontinued the action. See Bednark Decl. in Opp'n to the County Defs.' Mot. for Summ, J., Ex.
102.
9

Individual County Defendant Harper is not named as a Defendant in any of the statebased claims.
16

respect to the prima facie tort claim against the County Defendants. "There can be no cause of
action [for prima facie tort] unless malevolence is the sole motive for a defendant's otherwise
lawful act." Schutz v. Washington County, 157 A.D.2d 948, 950 (3d Dep't 1990)(emphasis
added; internal quotation marks and cite deleted). There is no evidence that any of the County
Defendants harbored animosity towards Field Day or its principals. Accordingly, the County
Defendants are awarded summary judgment as to this state-based claim.

In sum, the County

Defendants' motion for summary judgment is granted as to Harper, Maher, and as to Plaintiffs'
prima facie tort claim, and is otherwise denied.

III.

Subject Matter Jurisdiction
Before addressing Plaintiffs' motion for partial summary judgment, attention will be

directed to a more broad based contention contained in the County Defendants' submission, to
wit, that since the Plaintiffs are not pursuing a first amendment content-based discrimination
claim, this Court lacks the subject matter jurisdiction necessary to adjudicate the present dispute.
The following excerpt from the County Defendants' Memorandum of Law well synopsizes their
position:
In order to maintain subject matter jurisdiction in this Court,
the plaintiffs have continually alleged that the County defendants
improperly denied the plaintiffs' Mass Gathering Permit based upon
the content of their proposed event. In fact, the sole constitutional
tort alleged by the plaintiffs is a claimed violation of First
Amendment free speech rights.
The Second Circuit's initial determination in this case
established that the New York Mass Gathering Statute was a
constitutional exercise of governmental authority. See Field Day, 463
F.3d at 181. Thus, as the Circuit determined, the sole remaining First
17

Amendment claim was whether the County defendants improperly
applied to the Mass Gathering Statute based upon the alleged content
of the plaintiffs' proposed event. Field Day, 463 F.3d at 194.
The plaintiffs' brief in support of their motion for summary
judgment does not recite any example of content-based
discrimination. In fact, the plaintiffs' brief conclusively states
"Plaintiffs are not contending that defendants' conduct was content
based." See Plaintiffs' Memorandum of Law at page 20, fn. 6. That
concession ends the last remaining constitutional inquiry.
The plaintiffs' admission that there is no content based claim
requires denial of the plaintiffs' present motion, and dismissal of the
plaintiffs' claim.
County Defs.' Mem. in Opp'n to Pls.' Mot. for Partial Summ. J. at 2-3.
To place Plaintiffs' argument in context, it is necessary to consider the portion of the
Second Circuit decision in Field Day referenced above. That excerpt reads as follows:
Finally, the Suffolk County Employees raised, for the first time at oral
argument, several new contentions, including that Suffolk County had
no duty to provide police officers to assist in this event and that,
therefore, the refusal of assistance could not be a constitutional
violation. "Issues not sufficiently argued in the briefs are considered
waived and normally will not be addressed on appeal." Norton v.
Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998). We note only in
passing that the Second Amended Complaint, read fairly, indicates
that Field Day could prove that Suffolk County has provided
assistance to other events at the Park, including the New York Air
Show and the Bonnaroo Music Festival, and that its refusal here was
based solely on disapproval of Field Day as speaker or the content of
Field Day's speech. Such conduct would, of course, raise serious
constitutional concerns. See Chicago Park Dist., 534, U.S. at 325,
122 S. Ct. 775 ("Granting [discretionary] waivers to favored speakers
(or, more precisely, denying them to disfavored speakers) would of
course be unconstitutional."). However, we do not pass on this issue
given the lack of briefing to this court.
Field Day v. County of Suffolk, 463 F.3d 167, 194-95 (2d Cir. 2006).
The portion of the above excerpt beginning with "[w]e note only in passing," is dictum.
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But beyond that, it appears that the Circuit was simply indicating that the subject of the County
Defendants' belatedly raised arguments about the absence of a duty on their part to furnish police
officers for the Festival is tangential to the true gravamen of Plaintiffs' complaint. In the Circuit's
view, the references in the complaint vis-a-vis police assistance was done for the purpose of
alleging that police assistance was provided for other events at the site but not to Plaintiffs, with
the difference in treatment supposedly being due to the County's disapproval of the content of the
message sought to be conveyed by Field Day. There is nothing to suggest that the Circuit in
making that comment meant to circumscribe the First Amendment claims that may be pursued by
Plaintiffs consistent with portions of their complaint and the pretrial proof. And to step-back for
a moment, it is undisputed that the content of the Festival, namely music, "is speech for purposes
of the First Amendment." Id. at 175-176. Moreover, a prior restraint on speech was implicated
given that obtaining a Mass Gathering Permit was a precondition to holding the event. Lamar
Advertising Co. v. Township of Elmira, 328 F. Supp. 2d 725, 733 (E.D. Mich. 2004).
Here, as the County Defendants note, Plaintiffs are not claiming that Defendants' conduct
was content based.10 As a content-neutral regulation, the Mass Gathering Statute may

10

As explained by the Supreme Court, a "[g]overnment regulation of expressive activity
is content neutral so long as it is justified without reference to the content of the regulated
speech." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)(internal quotation marks and
cite deleted).
Plaintiffs are not, as the County Defendants contend, necessarily abandoning their
content-based claim. Instead Plaintiffs' position is as follows: "Although evidence abounds here
of animus towards the content of the Festival by a number of participants in the permitting
process, and Plaintiffs expect to be able to prove that animus at trial, for purposes of this
[summary judgment] motion, plaintiffs are not contending that defendants conduct was content
based." Pls.' Memo in Supp. of Mot. for Partial Summ. J. against Suffolk County and the
Individual County Defendants at 20, n.6.
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legitimately restrict the time, place and manner of the event, provided such restrictions are
"narrowly tailored to serve a significant government interest . . . ." Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989). Just as a content-neutral statute must be narrowly drawn to
pass constitutional muster, its implementation must be similarly cabined lest a constitutional
violation occur. If the trier of fact ultimately determines from the disputed proof already in the
record that, e.g., the County denied Field Day a Mass Gathering Permit by improperly requiring
an intermunicipal agreement or in response to pressures asserted by Clear Channel on individuals
within the permitting process, it follows that the County will be hard-pressed to justify the
obstacles placed in Field Day's path as "narrowly tailored to serve the government's legitimate . .
. interests." Ward, 491 U.S. at 798; see also Million Youth March, Inc. v. Safir, 18 F. Supp. 2d
334, 345-47 (S.D.N.Y. 1998). And, for present purposes, it does not matter whether the County
Defendants' actions were intended to impinge on Field Day's constitutional rights as long as the
proof at trial establishes that such actions brought about that result. See Ward, 491 U.S. 781 and
Million Youth March, Inc. v. Safir, 18 F. Supp. 2d 334 (both cases implicitly indicating as such
via the Courts' discussions of the factors to be considered in determining the validity of a
constitutional attack on a content-neutral regulation, or its implementation, without any reference
to the state actors' intent).
In sum, the fact that Field Day is not mounting a content based First Amendment attack in
seeking summary judgment on its § 1983 claim against the County Defendants and in opposing
the County Defendants' motion for like relief does not divest this Court of subject matter
jurisdiction; the County Defendants' purported misapplication of the Mass Gathering Statute, if
established, would establish a § 1983-First Amendment violation.
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IV.

Plaintiffs' Motion for Partial Summary Judgment Against the County
and Individual County Defendants

In support of their motion for summary judgment on their § 1983 claim, Plaintiffs
maintain that the County Defendants may not invoke reasons for the denial of the Mass
Gathering Permit other than the reason provided in its May 27, 2003 denial letter, citing the
Second Circuit's decision in this case. See Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167 (2d
Cir. 2006). The Circuit, in affirming the denial of the County Defendants' motion to dismiss
brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, stated as follows:
To the extent that the Suffolk County Employees now invoke other
sections of the Sanitary Code to support the denial of the Application,
New York law limits this Court's review "to the grounds invoked by
the agency." Scherbyn v. Wayne-Finger Lakes Bd. of Co-op. Educ.
Servs., 77 N.Y.2d 755, 758, 570 N.Y.S.2d 474, 573 N.E.2d 562
(1991). Furthermore, in accordance with the interpretation of the
Mass Gathering Law and Sanitary Code given above, the rejection of
the Application based on any other ground would still have to be
reasonable, and Field Day has alleged that the rejection was
unreasonable.
Field Day, 463 F.3d at 194.
I do not read the quoted excerpt from that decision as precluding consideration by this
Court or, ultimately, by the trier of fact of other reasonable grounds proffered by the County for
denying Field Day's permit application. The Second Circuit was simply explaining its appellate
role in reviewing the motion to dismiss. There is evidence in the record that would permit the
trier of fact to conclude that other reasonable grounds for the County's decision existed. For
example, if the jury found that requiring 200 police officers for the Festival was reasonable and
the County's decision not to supply officers in the absence of a intermunicipal agreement

21

appropriate, then the jury could conclude that public safety concerns provided a valid basis to
deny the Mass Gathering Permit.
Plaintiffs' motion for partial summary judgment against the County Defendants is denied.

Conclusion
Summary judgment is granted in favor of Defendants Harper and Maher and as to the
County Defendants' motion to dismiss Plaintiffs' prima facie tort claim; the motion of the County
Defendants is otherwise denied. Plaintiffs' motion for partial summary judgment is denied in
toto.
SO ORDERED.

Dated: Central Islip, New York
June 28, 2011
/s
Denis R. Hurley
United States District Judge

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