Conte v. County of Nassau, New York et al
Filing
624
MEMORANDUM AND OPINION. For the reasons contained herein, the County defendants' Rule 50 motion for judgment as a matter of law is granted in its entirety Wasilausky is entitled to judgment as a matter of law on plaintiffs false arrest claim an d Emmons, Falzarano and Wallace are entitled to judgment as a matter of law on plaintiff's tortious interference with contract claim. The County defendants' Rule 59 motion for a new trial and plaintiff's Rule 59 motion for a new damages trial are denied as moot. The Clerk of the Court shall enter judgment in favor of the County defendants and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/26/2013. (Samplin, Ilissa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 06-CV-4746 (JFB)(ETB)
_____________________
ANTHONY CONTE,
Plaintiff,
VERSUS
COUNTY OF NASSAU, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
July 26, 2013
___________________
review of the record and submissions of the
parties, the Court issued a Memorandum and
Order dated September 30, 2010, granting in
part and denying in part defendants’ motions
for summary judgment and denying
plaintiff’s motion for summary judgment in
its entirety. Pursuant to that Order, the
following claims survived summary
judgment: (1) plaintiff’s false arrest claim
against Wasilausky; (2) plaintiff’s abuse of
process claim against all of the County
defendants except Sardo; (3) plaintiff’s
Monell claim against the County; and (4)
plaintiff’s tortious interference with contract
claim against all of the County defendants
except Sardo and Shaska.
Joseph F. Bianco, District Judge:
Pro se plaintiff Anthony Conte
(“plaintiff” or “Conte”) filed the instant
action against the County of Nassau (“the
County”), Robert Emmons (“Emmons”),
Philip Wasilausky (“Wasilausky”), William
Wallace (“Wallace”), Christina Sardo
(“Sardo”), Michael Falzarano (“Falzarano”)
(collectively, the “County defendants”),
Tefta Shaska (“Shaska”), and Larry Guerra
(“Guerra”) (collectively, “defendants”),
alleging federal claims under 42 U.S.C.
§ 1983 for false arrest, malicious
prosecution, abuse of process, violation of
the First Amendment, conspiracy, and
Monell liability against the County. Plaintiff
also asserted various state-law claims.
The matter was then tried before a jury,
which found that (1) Wasilausky subjected
plaintiff to an unlawful arrest; (2) none of
the County defendants maliciously abused
process in connection with plaintiff’s arrest
Following discovery, both plaintiff and
defendants filed motions for summary
judgment with the Court. After a detailed
1
on a bad check charge or in connection with
the issuance of Grand Jury subpoenas; and
(3) Emmons, Wallace, and Falzarano
tortiously
interfered
with
plaintiff’s
contractual relationships.1 With respect to
damages, the jury awarded $500.00 in
compensatory damages and $26,000.00 in
punitive damages against Wasilausky in
connection with plaintiff’s false arrest claim.
As to plaintiff’s tortious interference with
contract claim, the jury awarded plaintiff
$3,500.00 in compensatory damages for
tortious acts which took place before June 1,
2005, and $700,000.00 in compensatory
damages for tortious acts which took place
on or after June 1, 2005. The jury also
awarded punitive damages in connection
with plaintiff’s tortious interference with
contract claim: $60,000.00 against Emmons;
$443,000.00
against
Wallace;
and
$175,000.00 against Falzarano.
precludes plaintiff’s cause of action entirely.
As to the tortious interference claim,
Emmons, Falzarano, and Wallace argue that
they are entitled to judgment as a matter of
law because there is no evidence of conduct
amounting to tortious interference with
contract that occurred within the applicable
limitations period. Specifically, Wallace
argues that the only alleged tortious conduct
that occurred within the limitations period
are his communications with Joseph Giaimo
(“Giaimo”) in the summer/early fall of 2005,
but that those conversations are not the basis
of a tortious interference with contract claim
because, inter alia, (1) there is no evidence
that, in speaking to Giaimo, Wallace
intentionally induced route distributors to
breach their contracts with plaintiff, and (2)
the damage plaintiff testified to at trial is
generalized reputational injury that sounds
in defamation, rather than in tortious
interference with contract. Moreover,
Emmons and Falzarano argue that there is
no evidence of any actions by them or any
injury sustained prior to the expiration of the
statute of limitations.
Presently before the Court are post-trial
motions brought by defendants Wasilausky,
Wallace, Emmons, and Falzarano. These
defendants move for judgment as a matter of
law pursuant to Federal Rule of Civil
Procedure 50(b) on the basis that plaintiff
has failed to establish the required elements
of the false arrest and tortious interference
with contract causes of action asserted
against them. As to the false arrest,
Wasilausky claims that he is entitled to
judgment as a matter of law on the following
grounds: (1) he had no personal involvement
with plaintiff’s arrest; (2) his actions are
immune from suit (he is entitled to absolute
immunity for his actions surrounding the
preparation and initiation of the prosecution,
and he is entitled to qualified immunity for
his role in the investigation phase); and (3)
the presumption of probable cause created
by the existence of a valid arrest warrant
The County defendants also move for a
new trial under Federal Rule of Civil
Procedure 59 on the grounds that (1) the
jury’s verdict finding tortious interference
with contract is against the weight of the
evidence; (2) the jury’s verdict, to the extent
it is based upon defamation against
representatives of a District Attorney’s
office during their investigation of plaintiff,
is erroneous and a miscarriage of justice; (3)
the jury’s verdict is inconsistent because the
jury found for the defendants on plaintiff’s
malicious abuse of process claim (the only
cause of action that required a showing of
malice), yet awarded punitive damages
against the defendants in connection with
plaintiff’s other claims; and (4) the damages
awarded by the jury finds no basis in the
record.
1
Plaintiff’s Monell claim was dismissed as a matter
of law at trial. (See Tr. 913-16.)
2
Also before the Court is plaintiff’s
motion for a new damages trial, made
pursuant to Rule 59 of the Federal Rules of
Civil Procedure. Plaintiff argues that,
because he was improperly denied the
opportunity to present certain evidence of
general damages to the jury, he is entitled to
a new trial on the issue of damages.
also featured on the cover of the publication.
(Id. at 59.) Conte anticipated that, over time,
his business would profit from advertising
revenues. (Id. at 57.)
1. Developing I Media and Attracting
Advertisers
To fund I Media initially, Conte took out
a second mortgage on his home and received
loans from his wife and her family. (Id. at
71.) Developing I Media required (1)
signing route distributors (who would
purchase specific routes along which to
deliver I Media’s publication), and (2)
finding a printer to print the publication. (Id.
at 69.) In May of 2003, Conte accepted a
quote from Walden Printing in Walden,
New York. (Id. at 69-70.) Over the next two
months, Conte signed between 20 and 30
route distributors and collected content for
his publication. (Id. at 70.) When he called
Walden Printing in the middle of June to
inform them of these developments, he
learned that the company “had stopped
printing and [that] they were going out of
business.” (Id.) Conte was forced to begin a
new search for a printer, which was time
consuming. (Id. at 71.) Conte also engaged
in discussions with Transcontinental
Printing, a company based out of Montreal,
Canada. (Id. at 626-28.) The company never
entered into a contract with I Media (it
merely supplied various quotations to
Conte) (id. at 632-33, 650), nor did it print
any editions of TV Time Magazine (id. at
For the reasons that follow, the County
defendants’ Rule 50(b) motion is granted in
its entirety – Wasilausky is entitled to
judgment as a matter of law on plaintiff’s
false arrest claim and Emmons, Falzarano,
and Wallace are entitled to judgment as a
matter of law on plaintiff’s tortious
interference
with
contract
claim.
Accordingly, the County defendants’ Rule
59 motion for a new trial is denied as moot,
as is plaintiff’s motion for a new trial.
I. BACKGROUND
A. Facts
Conte founded and created I Media, a
publishing and distribution company that
circulated a free, colored, glossy-covered
TV guide publication to households in given
zip codes. (Tr. 55-57.) The first TV guide
publication that I Media released was called
“TV Time Magazine.” (Id. at 58.) The first
edition of TV Time Magazine was released
for the period of November 12-27, 2004.
(See Pl.’s Ex. 130.) During the course of
2004 and 2005, I Media released
approximately 15 or 16 different editions of
the magazine. (Tr. 77.)
advertising affiliates did not pay money to have ads
for their products or services placed in TV Time
Magazine. Instead, they paid I Media based on sales
of their products or services that were generated from
ads that ran in the publication. (Id. at 244.)
Specifically, an ad in the publication would direct a
consumer to Conte’s website, where he or she could
click on a link to a product or service of interest. The
link would direct that consumer to the particular
affiliate’s website, where he or she could purchase
the product or service desired. (Id. at 250.)
Each publication contained a centerfold
shopper’s guide, which featured products
sold by I Media’s advertising affiliates. (Id.
at 57-58.)2 At times, certain products were
2
Conte testified that the affiliates were ones I Media
had contracted with in 2004. (Tr. 58.) These
3
631).3 Conte eventually signed a contract
with Quebecor World, a printing company
located in Canada, on January 9, 2004. (Id.
at 115-16.) Despite the existence of this
contract, no printing was ever done by
Quebecor World. (Id. at 130.) Conte finally
switched to Evergreen Printing in January of
2005, who he printed with approximately
thirteen times. (Id. at 689, 1283.)
contained a disclaimer indicating that
because the business was new, its success
could not be guaranteed, and that the route
distributor would have the option to ask for
a refund under certain conditions (i.e., if the
publication was not rolled out in a certain
period of time). (Id. at 73.) Each route
distributor paid Conte an up-front license fee
associated with the particular route that they
acquired. (Id. at 694.)5 Conte sold between
40 and 60 of these routes in 2003. (Id. at
701.) Distributors were generally paid
between 20 and 25 cents for each issue of
TV Time Magazine that they distributed.
(Id. at 693.) However, they did not begin
getting paid until the fall of 2004 (despite
the fact that they invested thousands of
dollars up-front in 2003), when TV Time
Magazine was first published. (Id. at 70001.)
I Media had its route distributors sign
home distributor agreements.4 The contracts
provided details of the route and how it was
to be operated, the number of years for
which the route would be in existence,
information about how the route distributor
would be paid, and rules and procedures of
the business. (Id. at 72.) The contracts also
3
Stuart Hubbard (“Hubbard”), a sales representative
for Transcontinental Printing, testified that his
Company needed, inter alia, “exact dates and a
contract in order to order paper,” but that “[t]here
were several things that never really transpired.” (Id.
at 630.) Hubbard stated that his Company “never got
files and [] never got money. [They] never got
materials to print. There was nothing to print.” (Id. at
634.) Hubbard explained that, “after close to a year of
going back and forth with Mr. Conte” without
receiving any payment, his Company got fed up. (Id.
at 670.) Conte eventually wired money to
Transcontinental Printing (even though he did not
send the requisite files or sign a contract with the
Company). It was immediately refunded since the
Company never actually performed work for I Media.
(Id. at 634.) When asked about this receipt of money,
Hubbard testified to the following:
I Media created a rate card for
prospective advertisers, which listed the
sizes and rates of various advertising
options, as well as the company’s current
and anticipated distribution figures. (Id. at
78.)6 I Media also created advertising
proposals, and sometimes full marketing
campaigns, for prospective affiliates. (Id. at
62-63.) I Media also sometimes created and
printed an advertisement for a company free
of charge, “with their representation . . . that
they were going to enter into a long-term
contract with [I Media].” (Id. at 61.)
After asking, negotiating, talking for six
months and a missed deadline, and I will do
it tomorrow, I can’t – there was never
anything there. And all of a sudden there
was money there when there was no
contract. There was nothing there. It was
just – there was no preparation whatsoever.
5
According to Conte’s testimony, the license fee
covered the exclusive right to distribute in a
particular area, as well as the cost to I Media of
acquiring route maps and household address lists for
the particular route. (Id. at 694.)
6
Monica Gallardo (“Gallardo”), a route distributor
and employee of I Media, testified that I Media was
unsuccessful in establishing its rate card because “the
numbers of publications were less than the numbers
that you can offer for distribution of magazines.” (Id.
at 725.)
(Id. at 634.)
4
According to Conte’s testimony, the contracts with
route distributors were from May 2003 to April 2004,
and there were later route distributor contracts from
October 2004 to April 2005. (Id. at 859-60.)
4
2. The Bad Check Incident
Conte was directed to appear at the
criminal complaint unit of the D.A.’s Office
on October 9, 2003 to discuss the check
situation. (Tr. 110.) He met with Rhoda
Zwicker (“Zwicker”), a paralegal in the
Office, and also spoke to her two or three
times on the telephone following that initial
meeting. Zwicker told Conte that if he did
not pay Cutolo the $2,500, he would be
arrested for “passing a bad check.” (Id. at
112.)9 On November 18, 2003, the District
Court of Nassau County signed a criminal
Information, in which Conte was charged
with violating Section 190.05(a) of the Penal
Law of the State of New York for issuing a
check without sufficient funds. An arrest
warrant was requested in connection with
the Information. (See Pl.’s Ex. 22, Criminal
Information.)10 Wasilausky testified that he
had signed off on approving and filing the
charge. (Tr. 460.) An application for an
arrest warrant in connection with the bad
check charge was signed by Assistant
District Attorney (“ADA”) Warren Thurer,
an Assistant in the Criminal Complaint
Bureau at the time. (Id. at 461.)
Conte began having problems with one
of his route distributors, Joseph Cutolo
(“Cutolo”), in June of 2003. (Id. at 102.)7
Cutolo was pressuring Conte for copies of
the publication so that he could begin
distributing along his route. At that point in
time, however, the publication was nowhere
near completion. (Id.) On or about June 17,
2003, Conte held a meeting at his house to
inform I Media’s route distributors about the
status of publication. Conte testified that,
following the meeting, Cutolo “cornered”
him and “physically raised his hand and
threatened me that if I didn’t have the
magazine going soon, that he was going to
assault me, literally.” (Id. at 103.)
Approximately one week later, Conte
went to Cutolo’s home and agreed to
advance him money for distribution
services, to “demonstrate good faith” that I
Media would be distributing by July 4th.
(Id.) Conte then wrote Cutolo a check for
two weeks’ worth of distribution services
($2,500). When Cutolo tried to cash the
check, it was returned for insufficient funds.
Cutolo filed a complaint with the Nassau
County District Attorney’s Office (“D.A.’s
Office” or the “Office”) on August 11, 2003.
(Id. at 109, 444; see also Pl.’s Ex. 1,
Cutolo’s Complaint.)8
The criminal information upon which
Conte was arrested, and which Cutolo
signed, alleges that the check Conte wrote
for Cutolo was “not post-dated” (Pl.’s Ex.
22), and Wasilausky testified that Zwicker
had concluded, based on her investigation,
that the check was not postdated (Tr. 462).
Specifically, the criminal information, which
7
Cutolo signed a distribution agreement with I Media
on May 1, 2003. (Id. at 104.)
8
In his complaint, Cutolo states the following:
9
Wasilausky testified that it is normal practice for the
Office to request that an individual who comes in on
a bad check complaint “make restitution for the face
of the check, as well as any bank fees with respect to
that check” if the Office believes that the complaint is
legitimate. (Tr. 459.)
10
Wasilausky testified that the prosecution was
initiated because “there was probable cause to file the
bad check charge, and prior to filing the bad check
charge, it was not resolved by restitution.” (Id. at
468.)
The defendant has sent E Mails threatening
my business. He has taken my money for a
business that I now thing doesn’t [e]xist. I
feel he has made up this Company to
[d]efraud people. There are no Routes. He
[r]effuses to give back our money. He has
claimed on several occasions to be an
Attorney. I have many witness [sic] to this.
(Pl.’s Ex. 1, at 2.)
5
payment with the balance to be paid in early
February of 2004. (Id. at 117.) Conte
received a check for the balance of the
money owed on approximately February 4th
or 5th of 2004. However, when he went to
cash the check, it came back to him as
stopped. (Id. at 117-18.) He then sent Guerra
a letter on February 24, 2004, demanding
that Guerra make good on the $4,500 check
and indicating that he would terminate the
distribution contract and keep the original
down payment as liquidated damages if
Guerra failed to do so. (Id. at 118.) When
Guerra refused to pay, Conte terminated his
distribution agreement. (Id. at 119.) A host
of disgruntled route distributors proceeded
to call Conte demanding their money back.
(Id. at 120.)
Cutolo signed under oath, states the
following:
[Conte] did utter to [Cutolo] a check
in the amount of $2,500.00, dated
July 15, 2003, drawn on Suffolk
Federal Credit Union . . . and made
payable to Joe Cutolo, which check
was returned for Not Sufficient
Funds within 30 days. Said check
was not post-dated. Bank records
show that, on the date the check was
issued, the account had insufficient
funds.
(Pl.’s Ex. 22.)
According to Conte, the check was
postdated July 5, 2003 and was labeled
“standby.” (Tr. 104, 108.) Conte testified
that he sent Cutolo a letter dated June 21,
2003, asking him not to cash the check until
July of 2003. (Id. at 106.) When Conte
subsequently realized that he would not be
ready for publication by July, he sent Cutolo
a letter asking him not to deposit the check.
According to Conte, despite his request to
the contrary, Cutolo attempted, on two
separate occasions, to deposit the check. On
both occasions, Conte had a stop payment
placed on the check. (Id. at 108.)
In March of 2004, Guerra filed a
complaint in the District Court of Suffolk
County. Conte and Guerra attended a
hearing before the judge in that case on
April 21, 2004. A few days later, the judge
held in favor of I Media, allowing the
company to retain the $4,500 in liquidated
damages. That decision was appealed,
without success. (Id. at 132-33.) Following
this incident, Conte received many calls
from disgruntled route distributors “accusing
I Media of being a scam and that [Conte]
was a fraud.” (Id. at 138.)
Cutolo also brought an action in small
claims court in Suffolk County, claiming
damages for money invested. (Id. at 821.)
The lawsuit settled on June 20, 2005, when
Conte paid Cutolo $3,500. (Id. at 822.)
4. The D.A.’s Office’s Investigation of
Conte and I Media
Conte also had problems with other
route distributors. Amongst other things,
many route distributors were disgruntled by
the fact that Conte often failed to deliver the
number of magazines promised.
3. Guerra’s Complaint
In early 2004, Conte had problems with
Larry Guerra (“Guerra”), another route
distributor. Guerra wanted to purchase a
distribution route in Brooklyn, New York.
He agreed to pay $9,000 for those
distribution rights, $4,500 in an initial down
For example, Gallardo testified that
Conte often provided only 10 to 20 percent
of the product promised, and that there were
often weeks where he failed to provide any
6
about Conte and I Media. (Id. at 412.)13 The
Office subsequently lodged an investigation
of Conte and I Media. Wasilausky was the
head of the Criminal Complaints Unit that
initiated the bad check charge against Conte.
Wallace, an ADA in the Criminal Frauds
Bureau, and Falzarano, an Investigator, were
running the investigation. (Id. at 135.) The
investigation of Conte and I Media was one
of the cases that Emmons, the Chief of the
Criminal Frauds Bureau, was supervising at
the time. (Id. at 362-63.)
copies of TV Time Magazine for
distribution. (Id. at 726-27.) Gallardo
testified that “the publications decreased
from day one” – that they “started with
25,000, and [] ended up with 5,000.” (Id. at
734.) When asked whether Conte had “built
up [her] route, the number of publications
for [her] to distribute every week,” Gallardo
responded, “That is not a conversation that I
had with you, Mr. Conte.” (Id. at 737.)11
Gallardo further explained that “there were a
lot of weeks in between [where] there were
no magazines, nothing, to distribut[e].” She
stated that the erratic manner in which the
magazines were provided by Conte for
distribution “doesn’t reflect a weekly
distribution,” which was what her route
distribution contract had promised. (Id. at
742-43.) Gallardo also testified that Conte
“stole money from a lot of distributors.” (Id.
at 757.)12
In February of 2004, the Office sent
letters to various route distributors attaching
a complaint form that they could use to
voice dissatisfaction with Conte and/or I
Media.14 Various complaints pertaining to I
Media and/or Conte were received, all
signed under penalty of perjury and many
containing supporting documentation. (Id. at
139-40, 583-84.)15 The Office also ran
federal and state criminal background
checks of Conte, from which it learned that
Conte was previously convicted of federal
bank fraud (a charge to which Conte pled
According to Conte, approximately 10 to
15 distributors, mostly from Long Island,
terminated their relationship with I Media
following the bad check incident with
Cutolo. (Id. at 114.) In early 2004, the
D.A.’s Office received further complaints
13
Emmons and Wallace testified that, in early 2004,
the Office received approximately 12 complaints
regarding Conte and I Media. (Id. at 412.)
14
Emmons, the Chief of the Criminal Frauds Bureau,
explained that when the Office receives complaints
and are advised that there may be more victims, it is
common practice for the Office to send letters to the
potential victims informing them of their right to file
a complaint. (Id. at 366-67.)
15
According to Emmons, up to 46 complaints about
Conte and I Media were received throughout the
course of the investigation (id. at 395; see also id. at
593 (Wallace testifying that approximately 45
complaints were received between March 2004 and
September 2004).) In total, these claimants alleged
that Conte owed them over $30,000. (Id. at 602.) As
an example of the type of complaints the Office
received, Falzarano testified that one of the
complainants indicated that when he called the
printer, he learned that the real reason copies of the
publication were not printed was because Conte
never paid the printer (and not because the printer
simply failed to do its job). (Id. at 290.)
11
To be clear, Conte was questioning Gallardo
directly at trial, as he was proceeding pro se.
12
When Conte asked Gallardo to explain why she
was upset with him, she testified to the following:
A lot of people sold their cars, mortgaged
their houses, gave [Conte] a lot of money to
get a route, thinking that they could get a
living. Most of these people wake up at 4
a.m. in the morning to deliver these papers
for Newsday. Many of them believe it was a
way out, to get paid and make more money.
It was unbelievable. Even if they went there,
[Conte] will never pay them for the amount
of money they paid [him] to buy this route.
That’s why I’m upset. . . . I’m upset with
you for the people.
(Id. at 757-58.)
7
guilty and was sentenced to probation,
which he was later accused of violating).
(Id. at 412, 848-51.) Emmons testified that
he was unaware of this prior conviction
when he initiated the investigation of Conte
and I Media, but that his learning of the
conviction “factored in the continuing of the
investigation.” (Id. at 412.) The Office
started their criminal investigation of Conte
in approximately early March of 2004. (Id.
at 512.)
and Conte, they directed investigators to
make undercover phone calls to Conte
attempting to buy distribution routes in order
to gauge what Conte’s proposals looked like
and to ascertain the validity of the
complaints about I Media and Conte that the
Office had received. (Id. at 287, 514.) They
also conducted interviews of the various
complainants (id. at 298), and reached out to
advertising affiliates in order to evaluate
their relationships with I Media (id. at 340).
In the fall of 2004, while the DA’s
Office’s investigation was still ongoing,
Conte was working to rebuild I Media. He
obtained office and storage space in
Melville, New York, and entered into a
contract with TV Media Inc. to provide TV
listings and pagination services to I Media.
(Id. at 143-44.) Conte testified that I Media
had contracted with over 200 advertising
affiliates (both retailers and service
providers) by that point in time. (Id. at 147,
152.) I Media began publishing and
distributing TV Time Magazine around
Thanksgiving of 2004. (Id. at 153.) Conte
testified that about 3.25 million copies of the
magazine were printed and distributed by 72
route distributors throughout Nassau,
Suffolk, and Queens Counties on Long
Island between the fall of 2004 and mid2005. (Id. at 194-95.) Paul Hoppe
(“Hoppe”), a route distributor in Melville,
Long Island, testified that he distributed
approximately 6,400 magazines on a weekly
basis. (Id. at 206.)
In regards to communications with
advertising affiliates during the course of the
investigation, Falzarano testified about a
specific interaction he had with BMW of
Oyster Bay. He went to BMW of Oyster
Bay after seeing an advertisement in TV
Time Magazine because he wanted to
determine if the ad was legitimately placed
in the publication. (Id. at 352.) When he
entered, he overheard a man having a
telephone conversation with Conte. When
the man got off the phone, Falzarano asked
him about BMW’s relationship with Conte
and I Media. The man replied that there was
no relationship. He also told Falzarano that,
during the previous phone call, Conte
apologized and offered to remove the ad he
had placed for BMW of Oyster Bay in TV
Time Magazine, and indicated that he had
intended to send BMW a contract for
advertising in his magazine. (Id. at 353-54,
355-56.) On February 2, 2005, Falzarano
also sent an email to Janet Clark at Bose
Sound, asking her whether or not Bose has
an advertising contract with I Media. (See
Pl.’s Ex. 98.)
When asked about the Office’s specific
investigative efforts, Emmons testified that
they
issued
subpoenas,
assigned
investigators to speak to people to get
documentation, spoke to former employees
of I Media and some of the publishers, and
did background checks on Conte. (Id. at
378.) Falzarano and Wallace testified that, in
connection with the investigation of I Media
In conducting their investigation of
Conte and I Media, members of the Office
also contacted route distributors. For
example, Hoppe testified that he was
approached by Falzarano in February of
8
2005.16 According to Hoppe, Falzarano told
him that he thought I Media was
fraudulently run and that Conte was a scam
artist, and asked him whether he was getting
paid for his distribution activities. Falzarano
also told him not to tell Conte about their
conversation. (Tr. 209-10.) Hoppe spoke to
a bunch of route distributors after this
incident, all of whom were concerned about
what the impact of the D.A.’s Office’s
investigation would be on their jobs. (Id. at
213.)17 The Office also reached out to I
Media employees, such as Al Amorizzo, I
Media’s former distribution manager. (See
Pl.’s Ex. 139, Report of Falzarano Interview
of Amorizzo, dated May 13, 2005.) In
addition, the Office attempted to contact
publishers. (See Tr. 535-44 (Wallace
testifying about a conversation he had with
Gabriel Sauro, a senior sales representative
at Quebecor World, during which Sauro told
Wallace that he was suspicious of Conte and
his company); id. at 550 (Wallace testifying
to
conversation
he
had
with
Transcontinental Printing in Newtown,
Connecticut about Conte); id. at 636-37
(Hubbard, a sales representative for
Transcontinental Printing, testifying about
his communications with Wallace in
December of 2004).)
sent by certified mail and was inadvertently
returned to the Office, the second was dated
January 28, 2005, the third was dated March
3, 2005, and the last was dated April 7,
2005. (Id. at 153-54.)19
In March of 2005, Conte retained an
attorney, John Halton (“Halton”). (Id. at
158.) Halton met with Wallace and
Falzarano at the D.A.’s Office a few weeks
later. According to Falzarano’s testimony, at
that meeting Falzarano informed Halton of
the fact that he had “uncovered during
internet searches that some, at least one,
maybe more than one, article that were in
TV Time Magazine that I had found were
cut and pasted or had an origination in other
magazines.” (Id. at 346.) Following the
meeting, Halton forwarded Conte a six-page
list of route distributors that the D.A.’s
Office claimed Conte owed money to. (Id. at
160-61.) Conte subsequently fired Halton.
(Id. at 163.)
On April 15, 2005, Conte faxed copies
of documents listed on the D.A.’s fourth
subpoena to Wallace. (Id. at 166.) Conte
also surrendered pursuant to the criminal
Information in September of 2005. He was
arraigned before a judge in the District
Court of Nassau County and released on his
own recognizance. (Id. at 192; 1271-72.)
The D.A.’s Office gave some thought to
presenting the case to a grand jury in the
spring of 2005. (Id. at 601.) However, no
The D.A.’s Office also served Conte
with four subpoenas in 2005.18 The first was
16
One of Falzarano’s reports, dated February 10,
2005, indicates that he in fact spoke to Hoppe. (See
Pl.’s Ex. 97.)
17
Hoppe’s concerns did not cause him to stop
working for Conte; Hoppe continued to distribute TV
Time Magazine. (Tr. 219.) Hoppe also testified that
he was not personally aware of any fraud or
fraudulent activity going on in I Media’s business
operations. (Id. at 223.)
18
Wallace testified that it is standard practice to
gather as much information as possible from
available sources before contacting the target of an
investigation. (Id. at 595.) This is done “to preserve
the integrity of the investigation and get all of the
evidence” before interviewing the target. (Id. at 596.)
19
In connection with its investigation of Conte, the
D.A.’s Office also served subpoenas on the Teacher
Federal Credit Union (a bank where Conte
maintained two accounts, one for I Media and one
that was personal) and Suffolk Federal Credit Union.
(Id. at 156.) Those subpoenas were served in 2004.
Wallace testified that the records the Office received
in response to those subpoenas were inconclusive, as
they “didn’t show a clear pattern that would suggest
criminal conduct at that time.” (Id. at 526.)
9
that point on, route sales dropped
dramatically (id. at 202), and advertisers (i.e.
Bose Sound) began terminating their
relationships with I Media (id. at 230).
Around the same time, I Media stopped
producing new editions of TV Time
Magazine. Conte testified that his last
payment to a printer was made in April of
2005. (Id. at 1288.) He also testified that the
last edition of TV Time Magazine was
published in May of 2005, and that the issue
was delivered by his route distributors. (Id.
at 1287-79.) Eventually, I Media went under
due to a significant lack of revenue. (Id. at
203-04.) Conte testified that the total loss to
him, his family, and the business was well in
excess of a million dollars. (Id. at 232.)20
evidence was ever presented to a grand jury
in this case. (Id. at 393-93 (Emmons stating
that the case “was scheduled on the grand
jury calendar on a repeated basis to issue
subpoenas to get information,” but that “no
evidence was presented to the grand jury”).)
Eventually, Cutolo and Conte settled the
matter pending in small claims court. (See
Pl.’s Aff. in Opp’n to the County Defs.’
Rule 50 and 59 Mots. (“Pl.’s Opp’n Aff.”)
Ex. A, Stipulation of Settlement between
Cutolo and Conte.) The matter settled for
$3,500.00. (Id.) Cutolo accepted a new
check from Conte and signed a release for
the payment. (See Pl.’s Opp’n Aff. Ex. A,
June 17, 2005 Signed Release.) In the
release,
Cutolo
acknowledged
his
acceptance of a bank check dated June 17,
2005 in the amount of $3,500.00 (as
“replacement in full for a post-dated check .
. . issued to me by I Media Corporation on
June 21, 2003 in the amount of $2,500.00
that was subsequently dishonored by I
Media’s bank,” the remainder to serve as
“consideration and fully settle[] any
outstanding claims, complaints and causes
of action relating to a contract between
Joseph Cutolo and I Media Corporation”).
(Id. (attaching a copy of the check dated
June 17, 2005 that Cutolo received from I
Media).)
Various route distributors brought a
class action against Conte in the Supreme
Court of Nassau County in the summer of
2005, alleging that Conte initiated a Ponzi
scheme. (Id. at 796-97.) Wallace discussed
the filing of this class action complaint with
Giaimo, the route distributors’ attorney. (Id.
at 573.) Giaimo sent Wallace a copy of the
complaint (see Pl.’s Ex. 162, Sept. 8, 2005
Email from Giaimo to Wallace attaching
complaint), but Wallace testified that he did
not work with Giaimo to create or edit the
document (Tr. 573-74), nor did he discuss
his Department’s criminal investigation of
Conte and I Media with Giaimo (id. at 576).
When asked whether he told Giaimo that
Conte was a fraud and that I Media was a
scam, Wallace replied that Giaimo was the
one who told him those things about Conte
and I Media. (Id. at 574.) The route
distributors’ lawsuit against Conte was
eventually dismissed. (Id. at 796-97.)
Around May of 2005, a number of route
distributors contacted Conte telling him that
“I Media was a scam,” and that he “was a
fraud.” (Tr. 197.) Conte testified about a
specific call that he received from Larry
Furnell (“Furnell”), a route distributor.
According to Conte’s testimony, Furnell told
Conte that if he did not pay the $35,000 he
owed him, he would tell Mark Harrington, a
Newsday reporter, to publish a story in
Newsday stating that I Media was a scam,
that Conte was a fraud, and that Conte was
operating a Ponzi scheme. (Id. at 203.) From
20
Specifically, Conte stated the following:
“Cumulatively, the impact, both of losses to the
business and me was well over a million dollars. The
loss to my family personally was several hundred
thousand dollars fold.” (Id. at 232.)
10
In a memo dated August 25, 2006 from
Wallace to Emmons, Wallace discussed the
findings of the investigation against Conte
and I Media. He expressed the belief that,
although “the conduct of the accused is
certainly suspicious, particularly when
viewed in light of the number of complaints
received,” “it would be [a] very difficult
case to prove and it ultimately may be more
civil than criminal in nature.” He further
stated that “[t]he accused appears to have
gone to great lengths to at least create the
appearance that he engaged in a legitimate
start-up business. While he took various
amounts of money from numerous
customers, it is clear that substantial efforts
were put forth to actually print the
publication, have it delivered.” (Id. at 422;
see also id. at 599-601 (Wallace testifying to
all the reasons they decided to close the
investigation, one being that it would be
difficult to prove beyond a reasonable
doubt).) In August of 2006, the D.A.’s
Office circulated its final determination –
that the complaints against I Media and
Conte did not merit the initiation of a
criminal prosecution and that the matter
should be closed. (Id. at 284-84; see also
Pl.’s Ex. 140.) The check charge was
dismissed about eight or nine months after
Conte’s arraignment. (Tr. 192.)21
2008, the Court granted in part and denied in
part defendants’ motions for judgment on
the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. See Conte
v. Cnty. of Nassau, No. 06-CV-4746
(JFB)(ETB), 2008 U.S. Dist. LEXIS 25694
(E.D.N.Y. Mar. 31, 2008). Specifically, the
Court dismissed all claims against New
York City and the NYPD, as well as the
claims against the individual County
defendants in their official capacities. The
Court also dismissed plaintiff’s due process,
equal protection, Lanham Act, Section 1985,
and Section 1986 claims. The parties then
proceeded to discovery on plaintiff’s
remaining claims.
Plaintiff filed a motion for summary
judgment against all of the defendants on
January 11, 2010. The County defendants
cross-moved for summary judgment on
March 5, 2010, as did Shaska. Guerra also
moved for summary judgment on March 12,
2013. Plaintiff submitted his oppositions to
defendants’ motions and replies in support
of his own motion on April 20, 2010. The
County defendants and Shaska filed replies
in support of their motions on May 7, 2010.
Plaintiff filed sur-replies in opposition to
defendants’ motions on May 18, 2010. The
Court held oral argument on the summary
judgment motions on September 8, 2010.
B. Procedural History
By Memorandum and Order dated
September 30, 2010 (“September 30
Memorandum and Order”), the Court denied
plaintiff’s motion for summary judgment in
its entirety and granted in part and denied in
part defendants’ motions. See Conte v. Cnty.
of Nassau, No. 06-CV-4746 (JFB)(ETB),
2010 U.S. Dist. LEXIS 104815 (E.D.N.Y.
Sept. 30, 2010). Specifically, the Court
granted summary judgment in the County
defendants’ favor on plaintiff’s claims for
malicious prosecution, violation of the First
Amendment, and conspiracy under Section
Plaintiff filed the complaint in this action
on August 30, 2006, an amended complaint
on January 4, 2007, and a second amended
complaint on April 4, 2007. By
Memorandum and Order dated March 31,
21
Conte also brought suit against Newsday,
Consumers Warehouse, and various other defendants
in this Court in September of 2006. Summary
judgment was granted in defendants’ favor, and the
case was closed on March 15, 2013. See Conte v.
Newsday, No. 06-CV-4859 (JFB)(ETB), 2013 U.S.
Dist. LEXIS 35676 (Mar. 13, 2013).
11
connection with plaintiff’s arrest on a bad
check charge or in connection with the
issuance of Grand Jury subpoenas; and (3)
Emmons, Wallace, and Falzarano (but not
Wasilausky) tortiously interfered with
plaintiff’s contractual relationships. On June
11, 2012, the jury awarded $500.00 in
compensatory damages and $26,000.00 in
punitive damages against defendant
Wasilausky in connection with plaintiff’s
false arrest claim. As to plaintiff’s tortious
interference with contract claim, the jury
awarded plaintiff $3,500.00 in compensatory
damages for tortious acts which took place
before June 1, 2005, and $700,000.00 in
compensatory damages for tortious acts
which took place on or after June 1, 2005.
The jury also awarded punitive damages in
connection
with
plaintiff’s
tortious
interference with contract claim: $60,000.00
against Emmons; $443,000.00 against
Wallace;
and
$175,000.00
against
Falzarano.
1983. The Court also granted summary
judgment in Sardo’s favor on all claims
alleged against her, and in Emmons’,
Wallace’s, and Falzarano’s favor on the
false arrest claim. The Court additionally
concluded that plaintiff’s federal and statelaw false arrest (against Wasilausky) and
abuse of process (against all County
defendants except Sardo) claims, as well as
plaintiff’s Monell claims against the County
of Nassau, survive summary judgment due
to triable issues of fact regarding those
claims. Finally, with respect to plaintiff’s
state-law claims, the Court denied the
County defendants and Guerra summary
judgment on plaintiff’s tortious interference
with contractual relationships claim, and
granted summary judgment to Shaska on
that claim. The Court also concluded that
plaintiff’s remaining state-law claims for
defamation, injurious falsehood, and
intentional infliction of emotional distress
were barred by the statute of limitations as
against all defendants.
Following the jury’s verdict, the Court
set a briefing schedule for the parties’
currently pending Rules 50(b) and Rule 59
motions. On June 13, 2012, plaintiff filed a
letter motion for a new trial. The County
defendants opposed plaintiff’s motion by
motion filed on August 13, 2012, and
plaintiff submitted an affidavit in further
support of his motion, dated August 24,
2012. The County defendants filed their
motion for judgment as a matter of law and
for a new trial on July 2, 2012. Plaintiff
submitted an affidavit in opposition to the
County defendants’ motion, dated July 31,
2012, and the County defendants replied on
August 13, 2012. Plaintiff also submitted a
sur-reply in further opposition to the County
defendants’ motion, dated August 24, 2012.
The Court held oral argument on September
6, 2012.
On October 4, 2010, Guerra filed a
motion for reconsideration of the Court’s
September 30 Memorandum and Order.
Conte filed a letter regarding the Court’s
September 30 Memorandum and Order on
October 15, 2010, as well as a motion for
reconsideration on December 8, 2010. The
County defendants filed their motion for
reconsideration on November 19, 2010. On
August 5, 2011, the Court orally ruled on the
motions for reconsideration, denying all
motions in their entirety.
A jury trial was subsequently held (and
proceeded in two phases, liability and
damages) before this Court, beginning on
May 21, 2012, and concluding on June 11,
2012. On June 5, 2012, the jury found that
(1) Wasilausky subjected plaintiff to an
unlawful arrest; (2) none of the County
defendants maliciously abused process in
12
Following oral argument, the County
defendants filed a letter, dated September
11, 2012, to address certain contentions
made by plaintiff in his sur-reply. Plaintiff
subsequently submitted letters to the Court
regarding the Rules 50(b) and 59 motions on
September 12 and 13, 2012, October 1, 2012
(which the County defendants opposed by
letter dated October 5, 2012), and November
4, 2012. By Order dated May 29, 2013, the
Court requested that the parties participate in
a telephone conference to discuss
supplemental briefing on the tortious
interference with contract statute of
limitations issue. The Court held that
telephone conference on May 31, 2013,
during which it set a schedule for the
supplemental briefing requested. The
County defendants filed a letter dated June
21, 2013, in support of its position on the
indemnification issue related to the statute of
limitations question. Plaintiff filed a letter in
opposition, dated June 27, 2013. The Court
has considered all of the party’s
submissions.
determinations and reasonable inferences
that the jury may have drawn at trial. See
Frank Sloup & Crabs Unltd., LLC v.
Loeffler, 745 F. Supp. 2d 115, 120
(E.D.N.Y. 2010). That is, a court
considering a Rule 50 motion “may not
itself weigh the credibility of witnesses or
consider the weight of the evidence.” Meloff
v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d
Cir. 2001) (quoting Galdieri-Ambrosini, 136
F.3d at 289); see also Playtex Prods., Inc. v.
Procter & Gamble Co., 02 Civ. 8046
(WHP), 2004 U.S. Dist. LEXIS 14084, at
*5-6 (S.D.N.Y. July 26, 2004) (“A Rule
50(b) motion cannot be granted ‘if, drawing
all reasonable inferences in favor of the
nonmoving party and making all credibility
assessments in his favor, there is sufficient
evidence to permit a rational juror to find in
his favor.’” (quoting Sir Speedy, Inc. v. L&P
Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir.
1992)).
Thus, judgment as a matter of law is
appropriately granted where “(1) there is
such a complete absence of evidence
supporting the verdict that the jury’s
findings could only have been the result of
sheer surmise and conjecture, or (2) there is
such an overwhelming amount of evidence
in favor of the movant that reasonable and
fair minded [persons] could not arrive at a
verdict against [it].” Advance Pharm., Inc. v.
United States, 391 F.3d 377, 390 (2d Cir.
2004) (alterations in original) (quoting
Galdieri-Ambrosini, 136 F.3d at 289); see
also Kinneary v. City of N.Y., 601 F.3d 151,
155 (2d Cir. 2010) (same); This is Me, Inc.
v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998)
(stating that a court assessing a Rule 50
motion must consider whether “the evidence
is such that, without weighing the credibility
of witnesses or otherwise considering the
weight of the evidence, there can be but one
conclusion as to the verdict that reasonable
[people] could have reached” (quoting Cruz
II. STANDARD OF REVIEW22
The standard governing motions for
judgment as a matter of law pursuant to Rule
50 is well-settled. A court may not properly
grant judgment as a matter of law under
Rule 50 against a party “unless the evidence,
viewed in the light most favorable to the
nonmoving party, is insufficient to permit a
reasonable juror to find in his favor.” Arlio
v. Lively, 474 F.3d 46, 51 (2d Cir. 2007)
(citing Galdieri-Ambrosini v. Nat’l Realty &
Dev. Corp., 136 F.3d 276, 289 (2d Cir.
1998)). Generally, a court reviewing such a
motion must defer to all credibility
22
Because, for the reasons discussed supra, both
motions for a new trial are denied as moot, the Court
addresses only the standard of review for Rule 50
motions for judgment as a matter of law.
13
immunity. As set forth below, the Court
agrees.
v. Local Union No. 3, Int’l Bd. of Elec.
Workers, 34 F.3d 1148, 1154-55 (2d Cir.
1994))). In other words, this Court may only
grant defendant’s Rule 50(b) motion “if it
cannot find sufficient evidence supporting
the jury’s verdict.” Playtex Products, 2004
U.S. Dist. LEXIS 14084, at *6; see also
Black v. Finantra Capital, Inc., 418 F.3d
203, 209 (2d Cir. 2005) (“A court evaluating
[] a motion [for judgment as a matter of law]
cannot assess the weight of conflicting
evidence, pass on the credibility of the
witnesses, or substitute its judgment for that
of the jury.”). For this reason, a party
moving to set aside a jury verdict must clear
“a high bar.” Lavin-McEleney v. Marist
College, 239 F.3d 476, 479 (2d Cir. 2001).
III.
Although the Court denied summary
judgment on plaintiff’s false arrest claim,
that decision was based upon the fact that
plaintiff
had
alleged
Wasilausky’s
involvement in the investigative stage of
the case and in the arrest, and the record
was sufficiently unclear as to Wasilausky’s
precise involvement in the investigation
and arrest so as to preclude summary
judgment on the false arrest claim. Plaintiff
incorrectly asserts, in his opposition
affidavit, that all of the issues now raised
by Wasilausky were already decided in
plaintiff’s favor at the summary judgment
stage. At that time, the Court simply could
not make the determinations necessary for
the false arrest claim, given the gaps in the
evidentiary record and the allegations that
were made by plaintiff. However, now,
having conducted the trial, it is abundantly
clear that, even construing the evidence
most favorably to plaintiff, there is simply
no evidence from which Wasilausky can be
held liable for a false arrest and, in any
event, based on the uncontroverted facts
presented at trial, he is shielded from
liability under the doctrines of absolute and
qualified
immunity.
Accordingly,
Wasilausky’s motion for judgment as a
matter of law on the false arrest claim is
granted.
DISCUSSION
The County defendants move for
judgment as a matter of law on plaintiff’s
false arrest and tortious interference with
contract claims. For the reasons discussed
in detail below, the motion for judgment as
a matter of law is granted in its entirety.23
A. Plaintiff’s False Arrest Claim
Defendant Wasilausky seeks judgment
as a matter of law on the false arrest claim
on the following grounds: (1) Wasilausky
had no personal involvement with the
arrest; (2) there was probable cause for the
arrest; and (3) Wasilausky’s actions are
shielded by both absolute and qualified
1. Legal Standard
In New York, the claim colloquially
known as “false arrest” is a variant of the
tort of false imprisonment, and courts use
that tort to analyze an alleged Fourth
Amendment violation in the Section 1983
context. See Singer v. Fulton Cnty. Sheriff,
63 F.3d 110, 118 (2d Cir. 1995). To prevail,
a plaintiff must prove four elements: “(1) the
defendant intended to confine him; (2) the
23
Because the Court grants defendants’ motion for
judgment as a matter of law in its entirety, the County
defendants’ motion for a new trial is denied moot, as
is plaintiff’s motion for a new damages trial. See,
e.g., Monz v. Rocky Point Fire Dist., 853 F. Supp. 2d
277, 289 (E.D.N.Y. 2012) (“As the Court granted
Defendants’ motion for judgment as a matter of law,
Defendants’ motions for a new trial . . . or for a new
trial as to damages are DENIED AS MOOT.”).
14
(Tr. 192; 1270-72.) After several hours at
the courthouse, he was arraigned by a judge
and released on his own recognizance. (Id.
at 1271-72.) There was no testimony by
plaintiff, or by Wasilausky, regarding any
personal involvement of Wasilausky in the
actual arrest. Instead, the uncontroverted
evidence was that it was ADA Warren
Thurer who signed the application for the
arrest warrant in connection with the bad
check charge. (Id. at 461.) In fact,
Wasilausky testified that the standard
procedure in the D.A.’s Office is that, once
the misdemeanor complaint has been signed,
the entire complaint and file is sent to the
District Court Bureau, which is an entirely
separate division from the Criminal
Complaint Unit that was operated by
Wasilausky at the time. (Id. at 508.)
Wasilausky testified that he had no personal
involvement with plaintiff’s bad check
charge once the matter was sent to the
District Court Bureau, and plaintiff offered
no evidence to the contrary. (Id. at 509.)
Thus, given that there is simply no evidence
that Wasilausky was involved in the arrest
itself, he is entitled to judgment as a matter
of law on the false arrest claim. See, e.g.,
Rogers v. Cartagena, 10 Civ. 9285 (JPO),
2013 U.S. Dist. LEXIS 44950, at *12 n.4
(S.D.N.Y. Mar. 28, 2013) (“Defendants
Keppler and Rinaldi, not being present, had
no personal involvement in [plaintiff’s]
arrest, and therefore any false arrest claim,
regardless of the claim’s validity,
necessarily fails as to them.”). In any event,
to the extent that plaintiff seeks to hold
Wasilausky liable based upon his work in
preparing for, and then filing, the arrest
warrant request, such actions (as discussed
below) are protected by the doctrines of
absolute and qualified immunity.
plaintiff was conscious of the confinement;
(3) the plaintiff did not consent to the
confinement; and (4) the confinement was
not otherwise privileged.” Broughton v. New
York, 37 N.Y.2d 451, 456 (1975).
2. Application
a. Personal Involvement
To state a claim for individual liability
under Section 1983, “a plaintiff must
demonstrate
a
defendant’s
personal
involvement in the alleged [constitutional
violation] in order to establish a claim
against such defendant in his individual
capacity.” Valenti v. Massapequa Union
Free Sch. Dist., No. 09-CV-977 (JFB)
(MLO), 2010 U.S. Dist. LEXIS 10076, at
*30 (E.D.N.Y. Feb. 5, 2010) (citation
omitted); see Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Because vicarious
liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Governmentofficial defendant, through the official’s own
individual actions, has violated the
Constitution.”); Gill v. Mooney, 824 F.2d
192, 196 (2d Cir. 1987) (“Absent some
personal involvement by [a defendant] in the
allegedly unlawful conduct of his
subordinates, he cannot be held liable under
section 1983.” (citation omitted)). “[M]ere
bald assertions and conclusions of law do
not suffice.” Davis v. Cnty. of Nassau, 355
F. Supp. 2d 668, 677 (E.D.N.Y. 2005)
(citation and internal quotation marks
omitted).
Although Conte alleged that ADA
Wasilausky was personally involved in his
bad check arrest, simply no evidence was
adduced at trial from which a rational jury
could find such personal involvement.
During the trial, plaintiff testified that he
surrendered himself for arrest at the Nassau
County District Court in September 2005.
15
b. Absolute Immunity
Based upon the above-referenced
precedent, any involvement by Wasilausky
or his unit in connection with the
preparation for and the filing of the warrant
request, as well as Wasilausky’s evaluation
of the strength of the evidence in support of
a probable cause determination, is entitled to
absolute immunity under Kalina. 522 U.S. at
129. Wasilausky tesitified that he “signed
off on approving and filing the [bad check]
charge.” (Tr. 460.) Other than this activity,
which is of the type shielded by absolute
immunity, there is simply no evidence of
involvement by Wasilausky. The Court
recognizes that, “[w]hen a district attorney
functions outside his or her role as an
advocate for the People, the shield of
immunity is absent. Immunity does not
protect those acts a prosecutor performs in
administration
or
investigation
not
undertaken in preparation for judicial
proceedings.” Hill, 45 F.3d at 661.
However, there is no such evidence in
connection with Wasilausky, whose role was
limited to his involvement in the preparation
and filing of the arrest warrant request.
Moreover, as noted above, Wasilausky
testified that, once the misdemeanor
complaint was signed by his unit, the entire
complaint and file was sent to the District
Court Bureau of the D.A.’s Office, and
Wasilausky had no further involvement in
the case after that transfer. (Tr. 508-09.)
Accordingly, even construing the evidence
most favorably to plaintiff, Wasilausky is
entitled to absolute immunity on the false
arrest claim.
“It is by now well established that ‘a
state prosecuting attorney who acted within
the scope of his duties in initiating and
pursuing a criminal prosecution is immune
from a civil suit for damages under §
1983.”’ Shmueli v. City of N.Y., 424 F.3d
231, 236 (2d Cir. 2005) (quoting Imbler v.
Pachtman, 424 U.S. 409, 410, 431 (1976)).
This absolute immunity “extends to ‘acts
undertaken by a prosecutor in preparing for
the initiation of judicial proceedings or for
trial, and which occur in the course of his
role as an advocate for the State.’” Smith v.
Garretto, 147 F.3d 91, 94 (2d Cir. 1998)
(quoting Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993)). In Kalina v. Fletcher, the
Supreme Court emphasized that it is clear
that a prosecutor’s “activities in connection
with the preparation and filing of . . . the
information and the motion for an arrest
warrant . . . are protected by absolute
immunity.” 522 U.S. 118, 129 (1997). The
Court further explained the work of the
prosecutor as an advocate in this context,
which is protected by absolute immunity:
That characterization [of work as an
advocate] is appropriate for her
drafting of the certification, her
determination that the evidence was
sufficiently strong to justify a
probable-cause finding, her decision
to file charges, and her presentation
of the information and the motion to
the court.
Id. at 130.24
c. Qualified Immunity
Even assuming arguendo that there was
evidence against Wasilausky of involvement
in the investigation that falls outside the
scope of absolute immunity, he is protected
by qualified immunity because there was, at
24
The only action that was not protected by absolute
immunity in Kalina was the prosecutor’s attesting to
the truth of the facts contained in the certification.
Kalina, 522 U.S. at 130-31. Here, the facts were
attested to by the complainant, Cutolo, not
Wasilausky. (Pl.’s Ex. 1; Tr. 507.)
16
845, 858 (2d Cir. 1996) (internal alterations,
citation, and quotation marks omitted). In
the context of false arrest and malicious
prosecution claims, an arresting officer is
entitled to qualified immunity if either: (a)
the arresting officer’s belief that probable
cause existed was objectively reasonable, or
(b) officers of reasonable competence could
disagree on whether the test for probable
cause was met. See Walczyk v. Rio, 496 F.3d
139, 163 (2d Cir. 2007). The Second Circuit
has defined this standard, which is often
referred to as “arguable probable cause,” as
follows:
a minimum, arguable probable cause for the
issuance of the arrest warrant.
i. Legal Standard
If absolute immunity does not apply,
government actors may be shielded from
liability for civil damages by qualified
immunity, i.e., if their “conduct did not
violate plaintiff’s clearly established rights,
or if it would have been objectively
reasonable for the official to believe that his
conduct did not violate plaintiff’s rights.”
Mandell v. Cnty. of Suffolk, 316 F.3d 368,
385 (2d Cir. 2003); see also Fielding v.
Tollaksen, 257 F. App’x 400, 401 (2d Cir.
2007) (“The police officers in turn, are
protected by qualified immunity if their
actions do not violate clearly established
law, or it was objectively reasonable for
them to believe that their actions did not
violate the law.”). As the Second Circuit has
also noted, “[t]his doctrine is said to be
justified in part by the risk that the ‘fear of
personal monetary liability and harassing
litigation will unduly inhibit officials in the
discharge of their duties.’” McClellan v.
Smith, 439 F.3d 137, 147 (2d Cir. 2006)
(quoting Thomas v. Roach, 165 F.3d 137,
142 (2d Cir. 1999)). Thus, qualified
immunity, just like absolute immunity, is not
merely a defense, but rather is also “an
entitlement not to stand trial or face the
other burdens of litigation.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985).
Accordingly, the availability of qualified
immunity should similarly be decided by a
court “at the earliest possible stage in
litigation.” Hunter v. Bryant, 502 U.S. 224,
227 (1991).
Arguable probable cause exists when
a reasonable police officer in the
same circumstances and possessing
the same knowledge as the officer in
question could have reasonably
believed that probable cause existed
in the light of well established law.
It is inevitable that law enforcement
officials will in some cases
reasonably but mistakenly conclude
that probable cause existed in the
light of well established law. It is
inevitable that law enforcement
officials will in some cases
reasonably but mistakenly conclude
that probable cause is present, and
we have indicated that in such cases
those officials—like other officials
who act in ways they believe to be
lawful—should
not
be
held
personally liable.
Cerrone v. Brown, 246 F.3d 194, 203 (2d
Cir. 2001) (citations and quotation marks
omitted). In particular, the Second Circuit
has affirmed that “‘[a]rguable’ probable
cause should not be misunderstood to mean
‘almost’ probable cause . . . . If officers of
reasonable competence would have to agree
that the information possessed by the officer
at the time of arrest did not add up to
“The availability of the defense depends
on whether a reasonable officer could have
believed his action to be lawful, in light of
clearly established law and the information
he possessed.” Weyant v. Okst, 101 F.3d
17
probable cause, the fact that it came close
does not immunize the officer.” Jenkins v.
City of N.Y., 478 F.3d 76, 87 (2d Cir. 2007).
Under this standard, an arresting officer is
entitled to qualified immunity, as a matter of
law, only ‘“if the undisputed facts and all
permissible inferences favorable to the
plaintiff show . . . that officers of reasonable
competence could disagree on whether the
probable cause test was met.”’ McClellan,
439 F.3d at 147-48 (quoting Robison v. Via,
821 F.2d 913, 921 (2d Cir. 1987)).
Singer, 63 F.3d at 119 (quoting O’Neill v.
Town of Babylon, 986 F.2d 646, 650 (2d
Cir. 1993)); see also Weyant, 101 F.3d at
852 (citing Dunaway v. New York, 442 U.S.
200, 208 n.9 (1979)) (additional citations
omitted). Furthermore, “[t]he validity of an
arrest does not depend upon an ultimate
finding of guilt or innocence.” Peterson v.
Cnty. of Nassau, 995 F. Supp. 305, 313
(E.D.N.Y. 1998) (citing Pierson v. Ray, 386
U.S. 547, 555 (1967), overruled on other
grounds by Harlow v. Fitzgerald, 457 U.S.
800 (1982)). “Rather, the court looks only to
the information the arresting officer had at
the time of the arrest.” Id. (citing Anderson
v. Creighton, 483 U.S. 635, 641 (1987)).
Moreover, a determination of probable cause
is based upon the “totality of the
circumstances, and ‘where law enforcement
authorities
are
cooperating
in
an
investigation . . . , the knowledge of one is
presumed shared by all.’” Calamia v. City of
N.Y., 879 F.2d 1025, 1032 (2d Cir. 1989)
(quoting Illinois v. Andreas, 463 U.S. 765,
771 n.5 (1983)) (additional citations
omitted); see also Bernard, 25 F.3d at 102
(citing Illinois v. Gates, 462 U.S. 213, 230
(1982)). “The question of whether or not
probable cause existed may be determinable
as a matter of law if there is no dispute as to
the pertinent events and the knowledge of
the officers, or may require a trial if the facts
are in dispute.” Weyant, 101 F.3d at 852
(citations omitted). Where an issue of
probable cause is “factual in nature,” it must
be presented to a jury. Moore v. Comesanas,
32 F.3d 670, 673 (2d Cir. 1994) (citations
omitted). Furthermore, an officer who
Although qualified immunity typically is
asserted by police officers, the qualified
immunity standard of arguable probable
cause also applies to prosecutors in some
situations. See Hickey v. City of N.Y., No.
01-CV-6506 (GEL), 2002 U.S. Dist. LEXIS
15944, at *14-15 (S.D.N.Y. Aug. 26, 2002)
(“There is no question that the right not to
be arrested and subjected to lengthy
involuntary detention in police custody
without probable cause to support the arrest
is firmly established, and any reasonable
police officer, let alone prosecutor, would
reasonably be expected to know that.”
(internal citations omitted)); Murphy v.
Neuberger, No. 94 Civ. 7421, 1996 U.S.
Dist. LEXIS 11164, at *37-38 (S.D.N.Y.
Aug. 6, 1996) (applying arguable probable
cause standard to prosecutor’s actions after
determining that prosecutor was not entitled
to absolute immunity).
In general, probable cause is established
where “the arresting officer has ‘knowledge
or reasonably trustworthy information
sufficient to warrant a person of reasonable
caution in the belief that an offense has been
committed by the person to be arrested.’”25
to believe that a person has committed an offense’
exists when evidence or information which appears
reliable discloses facts or circumstances which are
collectively of such weight and persuasiveness as to
convince a person of ordinary intelligence, judgment
and experience that it is reasonably likely that such
offense was committed and that such person
committed it.” Id. § 70.10.
25
In New York State, “a police officer may arrest a
person for . . . [a] crime when he has reasonable
cause to believe that such person has committed such
crime, whether in his presence or otherwise.” N.Y.
Crim. Proc. Law § 140.10(1)(b). “‘Reasonable cause
18
§ 3.4(a), at 205 (4th ed. 2007) (noting that
the Supreme Court has “proceeded as if
veracity may be assumed when information
comes from the victim of . . . criminal
activity” (citing Chambers v. Maroney, 399
U.S. 42 (1970))).
merely observes or assists in an arrest, even
if he is not the “arresting officer,” may be
liable for failing to intercede to prevent an
arrest without probable cause. See O’Neill
v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)
(“A law enforcement officer has an
affirmative duty to intercede on the behalf of
a citizen whose constitutional rights are
being violated in his presence by other
officers.” (citations omitted)).
ii. Analysis
Conte was arrested for issuing a bad
check under New York Penal Law § 190.05.
The statute provides:
With respect to an officer’s basis for
probable cause, it is well-established that
“[w]hen information [regarding an alleged
crime] is received from a putative victim or
an eyewitness, probable cause exists . . .
unless the circumstances raise doubt as to
the person’s veracity.” Curley v. Vill. of
Suffern, 268 F.3d 65, 70 (2d Cir. 2001)
(citing Martinez v. Simonetti, 202 F.3d 625,
634 (2d Cir. 2000) and Singer, 63 F.3d at
119); see also Martinez, 202 F.3d at 634
(“We have previously held that police
officers, when making a probable cause
determination, are entitled to rely on the
victims’ allegations that a crime has been
committed.”); McKinney v. George, 726
F.2d 1183, 1187 (7th Cir. 1984) (“If
policemen arrest a person on the basis of a
private citizen’s complaint that if true would
justify the arrest, and they reasonably
believe it is true, they cannot be held liable
for a violation of the Constitution merely
because it later turns out that the complaint
was unfounded.”). Moreover, “[t]he veracity
of citizen complain[an]ts who are the
victims of the very crime they report to the
police is assumed.” Miloslavsky v. AES
Eng’g Soc’y, Inc., 808 F. Supp. 351, 355
(S.D.N.Y. 1992) (citing Adams v. Williams,
407 U.S. 143, 148 (1972)), aff’d, 993 F.2d
1534 (2d Cir. 1993); accord Lee v.
Sandberg, 136 F.3d 94, 103 (2d Cir. 1997)
(quoting Miloslavsky with approval); see
also 2 Wayne LaFave, Search and Seizure:
A Treatise On The Fourth Amendment
A person is guilty of issuing a bad
check when . . . (a) [a]s a drawer or
representative drawer, he utters a
check knowing that he or his
principal, as the case may be, does
not have sufficient funds with the
drawee to cover it, and (b) he intends
or believes at the time of utterance
that payment will be refused by the
drawee upon presentation, and (c)
payment is refused by the drawee
upon presentation . . . .
N.Y. Penal Law § 190.05(1) (emphasis
added). The statute defines “check” as “any
check, draft or similar sight order for the
payment of money which is not post-dated
with respect to the time of utterance.” Id.
§ 190.00(1) (emphasis added).
In the instant case, even construing the
facts most favorably to plaintiff, Wasilausky
is entitled to qualified immunity for any
activities before the initiation of the
prosecution because he had, at the very
least, arguable probable cause to conclude
that plaintiff was guilty of issuing a bad
check. In particular, the following facts were
uncontroverted at trial: (1) the D.A.’s
Office’s investigation of plaintiff began
when the Criminal Complaint Unit received
a bad check complaint from Cutolo (Tr. 44446); (2) the Criminal Information, which
19
that there were “gaps in the evidentiary
record in this case” that prevented this issue
from being decided at summary judgment,
Conte, 2010 U.S. Dist. LEXIS 104815, at
*51, those gaps have now been filled at trial
and it is clear that there was arguable
probable cause for plaintiff’s arrest at the
time Wasiulisky’s unit requested the arrest
warrant and the file was sent to the District
Court Bureau. As a threshold matter,
Wasilausky did not recall being aware of the
information plaintiff presented to Zwicker.
(Tr. 457-63.) However, even if Wasilausky
was aware of all the information plaintiff
testified to providing to Zwicker, there was
still arguable probable cause for Wasilausky
to approve the filing of the criminal charge.
Although plaintiff had a different version of
events than that contained in Cutolo’s sworn
statement, there was still arguable probable
cause because reasonable officers would
disagree as to whether plaintiff’s version of
events or Cutolo’s version of events should
be credited at that juncture. Accordingly,
Wasilausky would also be entitled to
qualified immunity for any investigative
conduct related to the bad check charge that
was not protected by absolute immunity.26
was signed under oath by Cutolo, stated that
the check he had received from plaintiff was
returned the first time he attempted to cash it
for insufficient funds, and was returned a
second time because a stop payment was
placed upon it (Pl.’s Ex. 22); and (3) Cutolo
stated that the check was not post-dated, and
that when he called plaintiff to ask for his
money back, he was screamed at (see id.).
Cutolo’s sworn statement alone was
sufficient to create arguable probable cause
to arrest plaintiff for the issuance of a bad
check.
Plaintiff testified that he provided
information to the D.A.’s Office in support
of his position that the check was post-dated.
Specifically, Conte put forward evidence
that, at that meeting at the Office, he told
Zwicker that he gave Cutolo the check on
June 21, 2003, but the check was post-dated
for July 5, 2003. (Tr. 112.) Conte also
testified that he told Zwicker that he had
informed Cutolo by telephone and by letter
not to deposit the check. (Id. at 112-13.)
Conte also gave the D.A.’s Office copies of
various correspondences between him and
Cutolo, including the letter dated July 1,
2003, asking Cutolo to not cash the check.
(Id. at 110-11.) Conte also told Zwicker that
he had been threatened by Cutolo and
Cutolo’s friend, and he played for Zwicker
tapes of allegedly threatening voicemails
that he received from Cutolo. (Id. at 111.)
26
Wasilausky also argues that he is entitled to
judgment as a matter of law because plaintiff’s arrest
was made pursuant to a valid arrest warrant. The
Court notes that the arrest warrant was not produced
until trial. However, the arrest warrant was issued
pursuant to Section 120.10 of New York Criminal
Procedure Law and, inter alia: (1) indicates that it
was issued for plaintiff’s arrest by Judge Spinola of
the District Court of Nassau County on November
24, 2003; and (2) includes the criminal offense
charged in the warrant and Cutolo’s underlying
sworn affidavit. Wasilausky argues that this valid
arrest warrant created a presumption of probable
cause that has not been rebutted, and thus is a
complete defense as a matter of law to a false arrest
claim. See Phillips v. DeAngelis, 571 F. Supp. 2d
347, 353 (N.D.N.Y. 2008) (“No cause of action for
false arrest will lie where the arrest was effected
pursuant to an arrest warrant. The proper claim in
that instance is a malicious prosecution claim.”
As the Second Circuit has held, although
a police officer is generally not required to
investigate an arrestee’s claim of innocence,
“under some circumstances, a police
officer’s awareness of the facts supporting a
defense can eliminate probable cause.”
Jocks v. Tavernier, 316 F.3d 128, 135 (2d
Cir. 2003); see also Panetta v. Crowley, 460
F.3d 388, 395 (2d Cir. 2006) (“[A]n officer
may not disregard plainly exculpatory
evidence.”). Although this Court concluded
20
Finally, in an effort to counter the
evidence of arguable probable cause,
plaintiff points to evidence that, over 18
months after Wasilausky approved the
request for an arrest warrant (but before
Conte’s arrest in September 2005), Cutolo
sent a fax to Wallace (in June 2005)
containing a sworn release that he had
resolved the matter with plaintiff and that
the July 5, 2003 check was post-dated, thus
appearing to re-cant his prior sworn
statement to the contrary. (Pl.’s Opp’n Aff.
¶¶ 11-14; Id. Ex. A (indicating that the
stipulation of settlement for the matter in
small claims court between Cutolo and
Conte and Cutolo’s signed release were sent
from Cutolo to Wallace).) Thus, plaintiff
argues that, given this subsequent release by
Cutolo, probable cause was negated and he
should not have been arrested in September
2005 in connection with the bad check
charge.
that Wasilausky had no involvement in the
bad check charge after sending the case to
the District Court Bureau in 2003. Thus,
events that occurred in 2005 cannot be a
basis for liability against Wasilausky for his
conduct in 2003. In any event, arguable
probable cause for Conte’s arrest existed,
even despite Cutolo’s signed release, based
on all of the other complaints against Conte
filed with the D.A.’s Office, as well as the
fact that Cutolo settled his case for more
money than the 2003 check upon which his
lawsuit was based was written.
***
In sum, because the uncontroverted
evidence indicates that Wasilausky was not
personally involved in plaintiff’s arrest, no
rational jury could conclude that Wasilausky
is liable on a false arrest claim. Moreover, to
the extent plaintiff seeks to hold Wasilausky
liable for false arrest based on his
involvement in the preparation and filing of
the arrest warrant request, Wasilausky’s
actions taken in that regard are protected by
the doctrines of absolute and qualified
immunity. Accordingly, Wasilausky is
entitled to judgment as a matter of law on
the false arrest claim.
As a threshold matter, the Court notes
that there is absolutely no evidence that
Wasilausky had any involvement with, or
knowledge of, this subsequent information
provided by Cutolo. In fact, to the contrary,
it is uncontroverted that Cutolo spoke to
Wallace in June 2005, not Wasilausky. As
noted above, the uncontroverted evidence is
B. Plaintiff’s Tortious Interference with
Contract Claim
(citations omitted)), aff’d, 331 F. App.’x 894 (2d Cir.
2009). Plaintiff contends that the warrant was simply
a bench warrant for a failure to appear and that no
probable cause determination was made by the
issuing judge. Thus, plaintiff speculates that the
warrant must have been “rubber stamped.” (Pl.’s
Opp’n Aff. ¶ 15.) However, apart from plaintiff’s
speculation, there is no reason to believe that this
valid warrant – which was issued within a week of
the filing of the misdemeanor information in
November 2003 – should not create a presumption of
probable cause that was not rebutted. Accordingly,
this is an independent basis for judgment as a matter
of law on the false arrest claim. However, as noted
above, there are numerous other grounds that
independently require judgment as a matter of law in
Wasilausky’s favor on the false arrest claim.
Defendants Emmons, Falzarano, and
Wallace move for judgment as a matter of
law on plaintiff’s tortious interference with
contract claim on the grounds that (1)
because the one-year-and-ninety-day statute
of limitations prescribed by New York
General Municipal Law § 50-i governs
plaintiff’s tortious interference with contract
claim, any claim based on alleged tortious
conduct that occurred prior to June 1, 2005
is time barred, and (2) as to the conduct that
occurred on or after June 1, 2005, plaintiff
21
failed to present evidence at trial sufficient
to establish the elements of the tort alleged.
For the reasons discussed in detail below,
viewing the evidence in the light most
favorable to plaintiff and giving him the
benefit of all reasonable inferences, the
Court concludes that the evidence presented
at trial is insufficient to support a rational
jury’s finding that defendants Emmons,
Falzarano, and/or Wallace engaged in
conduct amounting to tortious interference
with plaintiff’s contracts during the
applicable limitations period. Accordingly,
the motion for judgment as a matter of law
on the tortious interference with contract
claim is granted.
again at trial at the end of plaintiff’s case
(see Tr. 903-06), at which point the Court
reserved decision under Rule 50(b) and
stated that the Court would allow the case to
go to the jury. Following the verdict,
defendants re-asserted the statute of
limitations defense in their Rule 50 and 59
moving papers, and the parties subsequently
briefed the issue extensively. Thus, the
statute of limitations defense is properly
before the Court at this time and, having
conducted the trial, it is clear that, even
construing the evidence in the light most
favorable to plaintiff, there is simply no
evidence from which Emmons, Falzarano,
or Wallace can be held liable for a timely
tortious interference with contract.28
The Court notes that the applicability of
the one-year-and-ninety-day statute of
limitations was not discussed at summary
judgment because defendants raised the
defense for the first time in their motion for
reconsideration of the Court’s September 30
Memorandum and Order.27 Defendants
raised their statute of limitations argument
28
Although the Court noted at the time that
defendants’ Rule 50 motion brought during trial
raised substantial issues (Tr. 912-13), the Court
reserved decision on all claims (except the municipal
liability claim) in order to (1) be able to consider
those issue after a careful review of the full record,
and (2) allow Conte to have the merits of his case
decided by the jury and to give him the opportunity
to preserve for appeal a favorable verdict (should the
jury rule in his favor, which it did on some claims).
Moreover, again in an effort to preserve any verdict
in light of the substantial statute of limitations issue
raised at the close of the plaintiff’s case by the
defendants in their Rule 50 motion, the Court divided
the damages issue on the verdict sheet – that is, the
Court had the jury decide (on the tortious interference
claim) what damages occurred before and after the
date that the defendants argued was the applicable
statute of limitations date. (See Id. at 1213-14 (“But
in order to be able to deal with this as a District Court
and as an Appellate Court, if I don’t have it divided
up by time, and if I said what are the damages, and if
I said to them what are the damages on the
interference with the contracts, and they came back
with some number, and then either I ruled or the
Second Circuit ruled that 50(i) applies, the verdict
would be no good and it would have to be retried.”).)
However, this Court, having carefully reviewed the
record, concludes, as discussed infra, that
(notwithstanding the jury’s verdict) there is no
evidence of any tortious interference with contracts
(or damages from such tortious conduct) within the
applicable limitations period. Obviously, having
27
Accordingly, the Court, in ruling on the motion for
reconsideration, explained that defendants’ statute of
limitations argument constituted a new theory of
dismissal that could not properly be raised for the
first time in a motion for reconsideration (Oral Arg.
& Ruling on Mots. for Reconsideration, Aug. 5,
2011). See, e.g., Learning Annex Holdings, LLC v.
Rich Global, LLC, 860 F. Supp. 2d 237, 241-42
(S.D.N.Y. 2012) (“A motion for reconsideration is
not an opportunity for making arguments that could
have been previously advanced . . . .”); Dart Mech.
Corp. v. XL Specialty Ins., 06-CV-2457 and 06-CV1933 (ENV MDG), 2011 U.S. Dist. LEXIS 16377, at
*7 (E.D.N.Y. Feb. 17, 2011) (declining to consider
argument raised in defendant’s motion for
reconsideration because it “was not raised in
[defendant’s] motion for summary judgment, and
obviously could have been”). In any event, the Court
held that, because the record was unclear as to
whether the alleged interferences with contract and/or
the injury resulting therefrom occurred within the
shorter statute of limitations period, summary
judgment was improper on that basis at that juncture.
(Oral Arg. & Ruling on Mots. for Reconsideration.)
22
1. Legal Standard
460 F.3d 281, 285 (2d Cir. 2006) (quoting
State Enter., Inc. v. Southridge Coop.
Section 1, Inc., 18 A.D.2d 226, 227-28 (1st
Dep’t 1963)).
Under New York law, to establish a
tortious interference with contact claim, a
plaintiff must prove (1) the existence of a
valid contract, (2) the defendant’s
knowledge of the contract’s existence, (3)
that the defendant intentionally procured a
breach of the contract, and (4) that it
resulted in damages to the plaintiff. See, e.g.,
Int’l Minerals & Res., S.A. v. Pappas, 96
F.3d 586, 595 (2d Cir. 1996); Lama Holding
Co. v. Smith Barney Inc., 88 N.Y.2d 413,
424 (1996). The tort has been explained as
follows: ‘“when there is knowledge of a
contract, and a competitor takes an active
part in persuading a party to the contract to
breach it by offering better terms or other
incentives, there is an unjustifiable
interference with the contract.’” White
Plains Coat & Apron Co. v. Cintas Corp.,
2. Application
a. Time Period Relevant to Plaintiff’s
Tortious Interference with Contract Claim
Defendants argue that plaintiff’s tortious
interference with contract claim must, given
the statute of limitations applicable to such
claims when they are alleged against
municipalities and their employees, be based
on tortious acts that occurred on or after
June 1, 2005 (one year and ninety days prior
to plaintiff’s filing of the complaint in this
action). Accordingly, defendants contend
that the only evidence that the jury could
have properly considered in evaluating
plaintiff’s claim is evidence of tortious
conduct by defendants Emmons, Wallace,
and/or Falzarano on or after June 1, 2005.
obtained a favorable verdict, plaintiff may raise this
issue, and this Court’s ruling on it, with the Court of
Appeals. In taking the steps it took on this issue, this
Court was following the guidance of the Second
Circuit articulated long ago:
New York General Municipal Law § 50i prescribes a one-year-and-ninety-day
statute of limitations period for tort claims
(other than wrongful death actions) asserted
against a municipality. See N.Y. Gen. Mun.
Law § 50-i (explaining that an “action or
special proceeding” for tort claims brought
against “a city, county, town, village, fire
district or school district . . . shall be
commenced within one year and ninety days
after the happening of the event upon which
the claim is based; except that wrongful
death actions shall be commenced within
two years”). Plaintiff concedes that, when
asserted against a municipality, a claim for
tortious interference with contract is
governed by New York General Municipal
Law’s one-year-and-ninety-day statute of
limitations. (Pl.’s Opp’n Aff. ¶ 16.) Plaintiff
argues, however, that the limitations period
applies only to actions maintained against a
It is unfortunate that (especially after a long
trial) the judge took the case from the jury.
As we said in Fratta v. Grace Line, 2 Cir.,
139 F.2d 743, 744: “We take this occasion
to suggest to trial judges that, generally
speaking – although there may be exceptions
– it is desirable not to direct a verdict at the
close of the evidence, but to reserve decision
on any motion therefor and allow the jury to
bring in a verdict; the trial judge may then, if
he thinks it improper, set aside the verdict *
* * and grant the motion, Federal Rules of
Civil Procedure, rule 50(b), 28 U.S.C.A.
following
section
732c,
with
the
consequence that if, on appeal, we disagree
with him, we will be in a position to
reinstate the verdict, thus avoiding the waste
and expense of another trial.”
Lindeman v. Textron, Inc., 229 F.2d 273, 276 (2d
Cir. 1956).
23
claim requirements of New York General
Municipal Law § 50 to be applicable to
claims brought against municipal officers
for “conduct by [the officers] that occurred
while they were acting within the scope of
their public employment and discharging
official duties” because “[a]s to such claims
the City would have a statutory obligation to
indemnify the officers”). Thus, the shorter
one-year-and-ninety-day
statute
of
limitations governs plaintiff’s tort claim
against Emmons, Wallace, and Falzarano, so
long as the claim is based on conduct
indemnified by the County.
municipality, and not to actions brought
against municipality employees. (Id.)
Accordingly, plaintiff contends that New
York’s three-year statute of limitations for
tortious interference with contract claims
governs his claims against defendants
Emmons, Wallace, and Falzarano. (Id. ¶ 17.)
The Court disagrees.
It is clear that the one-year-and-ninetyday limitations period of General Municipal
Law § 50-i applies not only to claims
brought against a municipality, but also to
claims brought against individual defendants
for conduct that a municipality would be
obligated to indemnify. See, e.g., Regan v.
Sullivan, 557 F.2d 300, 305 (2d Cir. 1977)
(explaining that suits against law
enforcement
officers
employed
by
municipalities “were treated for statute of
limitations purposes as suits against the
municipalities employing them, which were
governed by § 50-i,” when those officers
were required to be indemnified for the
claims brought against them); Int’l Shared
Servs. v. Cnty. of Nassau, 222 A.D.2d 407,
408 (2d Dep’t 1995) (“It is clear that the
one-year-and-90-day limitations period of
General Municipal Law § 50-i and the
notice of claim requirement of General
Municipal Law § 50-e apply to the claims
against the individual defendants only if the
defendant County of Nassau is obligated to
indemnify them.” (citation omitted));
Urraro v. Green, 106 A.D.2d 567, 568 (2d
Dep’t 1984) (concluding that because
individual defendant was acting within the
scope of his employment at the time he
engaged in the tortious conduct at issue, and
was, therefore, entitled to be indemnified by
the city for his conduct, the claim against the
individual defendant was governed by
General Municipal Law’s one-year-andninety-day statute of limitations); see also
Brenner v. Heavener, 492 F. Supp. 2d 399,
404 (S.D.N.Y. 2007) (finding notice of
Pursuant to § 22-2.8(3)(a) of the Nassau
County Administrative Code (“NCAC”),
Nassau County
shall indemnify and save harmless its
employees29 in the amount of any
judgment including punitive or
exemplary damages obtained against
such employees in any state or
federal court, . . . provided that the
act or omission from which such
judgment . . . arose, occurred while
the employee was acting within the
scope of his public employment or
duties.
NCAC § 22-2.8(3)(a). Whether an employee
was acting within the scope of public
employment during the conduct at issue
“shall be determined by a majority vote of a
panel consisting of one member appointed
29
“Employee,” as used in § 22-2.8 of the Nassau
County Administrative Code, means “any person
holding a position by election, appointment or
employment in the service of the County, whether or
not compensated . . . but shall not include an
independent contractor.” NCAC § 22-2.8(1). Former
employees of the County are included in this
definition. Id. Accordingly, the indemnity provision
of § 22-2.8 applies to actions taken by the Assistant
District Attorneys named in this action.
24
by the Nassau County Board of Supervisors,
one member appointed by the County
Executive and the Director of Personnel for
the County of Nassau.” Id.
Under New York law, a tortious
interference with contract claim accrues
when the plaintiff sustains damages (as a
result of a third party’s breach of the
contract that was tortiously interfered with).
See, e.g., St. John’s Univ. v. Bolton, 757 F.
Supp. 2d 144, 173 (E.D.N.Y. 2010) (“Under
New York law a tortious interference with
contract claim accrues when the tort is
completed – ordinarily when Plaintiff
sustains damages.” (citing Kronos, Inc. v.
AVX Corp., 81 N.Y.2d 90, 94 (1993))); Cary
Oil Co. v. MG Ref. & Mktg., Inc., 90 F.
Supp. 2d 401, 419 n.106 (S.D.N.Y. 2000)
(“A cause of action for tortious interference
with contract accrues at the time the injury is
sustained, rather than the date of defendant’s
alleged wrongful conduct or the date of
breach.” (citations omitted)). Accordingly,
plaintiff’s tortious interference with contract
claim may be based only on evidence of
tortious conduct that caused plaintiff
damage on or after June 1, 2005 (one year
and ninety days prior to plaintiff’s filing of
the complaint in this action).
On November 28, 2006, the requisite
panel of members met and determined that
the acts of Emmons, Wallace, and Falzarano
alleged in this lawsuit were committed while
in the proper discharge of their duties and
within the scope of their employment. (See
Defs.’ June 21, 2013 Letter, Ex. A,
Determination of Employee Indemnification
Board, at 2 (finding that the acts of all three
defendants related to this lawsuit, as well as
those of additional employees of the Nassau
County District Attorney’s Office, were
committed within the scope of their public
employment).)30 Thus, under NCAC § 222.8(3)(a), the acts of Emmons, Wallace, and
Falzarano at issue in this case are
indemnified by the County and, despite
plaintiff’s allegations to the contrary, the
shorter one-year-and-ninety-day statute of
limitations period of General Municipal Law
§ 50-i applies to plaintiff’s tortious
interference with contract claim brought
against those defendants.31
Plaintiff argues that even if the one-yearand-ninety-day statute of limitations applies,
pre-limitations period conduct should enter
into the analysis under the continuing tort
doctrine. (See Pl.’s Opp’n Aff. ¶ 25.)
30
To the extent plaintiff argues that the County’s
indemnification documents were not provided during
discovery or trial and should, therefore, not be
considered, the documents were filed in response to
the Court’s request for such information, made
during the May 31, 2013 telephone conference, and
were, therefore, timely.
31
Plaintiff argues that this provision is inapplicable
because the County Attorney has not concurred in the
certification under NCAC § 22-2.8(3)(c). The fact
that, under NCAC § 22-2.8(3)(c), the County
Attorney must concur in the certification for payment
by the County of a final judgment once it has been
entered against an employee does not alter the statute
of limitations analysis. The language of NCAC § 222.8(3)(a) indicates that the employee conduct at issue
in this case is of the type that the County could
indemnify, and the Indemnification Board explicitly
determined that the employees would be indemnified.
That is sufficient for statute of limitations purposes.
A holding to the contrary would defy common sense
because, under plaintiff’s position, the County
defendants would never be able to use the shorter
statute of limitations to avoid a trial because the
County Attorney’s concurrence occurs only after
final judgment has been entered.
To the extent Conte argues that the County
Attorney would not have been able to certify any
judgment because the claim brought against the
employees is for an intentional tort, NCAC § 222.8(3)(a) makes clear that the County can indemnify
an employee for any tort, including intentional torts
and punitive damages arising therefrom, so long as it
occurred while the employee was acting within the
scope of his public employment or duties (a
determination that was explicitly made by the Board
of Indemnification for the employees in this case).
25
a continuing tort, so [plaintiff’s continuing
tort doctrine] argument[] cannot rescue the
claim.” (citing Spinap Corp. v. Cafagno, 302
A.D.2d 588, 588 (2d Dep’t 2003) (“Since
tortious interference with contract is not a
continuing tort, it does not avail plaintiff to
argue that [defendant] continued to solicit its
customers up until the time of the filing of
the complaint . . . .”)) (additional citation
omitted)); see also Chevron Corp. v.
Donziger, 871 F. Supp. 2d 229, 258
(S.D.N.Y. 2012) (“Chevron’s attempt to
avoid the bar of the statute of limitations by
asserting that any tortious interference is
ongoing fails because ‘tortious interference
with contract is not a continuing tort.’”
(quoting Spinap Corp., 302 A.D.2d at 588));
Bloomfield Building Wreckers, Inc. v. City
of Troy, 41 N.Y.2d 1102, 1103 (1977)
(explaining that the wrongs alleged in the
complaint – “wrongful interference with the
performance of the contract” – are not
continuing torts).32
The continuing tort doctrine “provides
that, in certain tort cases involving
continuous or repeated injuries, the statute
of limitations accrues upon the date of the
last injury and that the plaintiff may recover
for the entire period of the employer’s
negligence, provided that an act contributing
to the claim occurs within the filing period.”
Mix v. Delaware & Hudson Ry. Co., Inc.,
345 F.3d 82, 88 (2d Cir. 2003). The Second
Circuit has explained that the doctrine “is
based on the idea that certain torts
continually give rise to new causes of action,
which can be brought notwithstanding the
expiration of the limitations period for prior
causes of action.” Syms v. Olin Corp., 408
F.3d 95, 108 (2d Cir. 2005). However, “New
York’s continuing tort doctrine does not
extend the limitations period for any
continuing pattern of tortious conduct, but
rather is limited to certain recognized torts
that involve continuing harm.” Bissinger v.
City of N.Y., 06 Civ. 2325 (WHP), 2007
U.S. Dist. LEXIS 70155, at *27 n.2
(S.D.N.Y. Sept. 24, 2007) (citation and
quotation marks omitted); cf. Farid v. State,
27 Misc. 3d 1229(A), at *9 (N.Y. Ct. Cl.
2010) (recognizing that the continuing tort
doctrine applies to cases involving employer
negligence, but declining to apply the
doctrine to claims of medical malpractice or
medical negligence); Favara Constr., LLC v.
Comptroller of City of N.Y., 2009 N.Y.
Misc. LEXIS 6515, at *15 (N.Y. Sup. Ct.,
N.Y. Cnty. Jan. 6, 2010) (rejecting argument
that plaintiff’s injurious falsehood claim is
subject to the continuing tort doctrine
because plaintiff alleged no facts that would
constitute a “continuing tort”). Tortious
interference with contract is not a continuing
tort, and so plaintiff’s invocation of the
continuing tort doctrine is unavailing. See,
e.g., Cantu v. Flanigan, CV-05-3580
(DGT/RLM), 2006 U.S. Dist. LEXIS 32983,
at *14 (E.D.N.Y. May 24, 2006)
(“[T]ortious interference with contract is not
The Court has also considered whether
there is any basis for equitable tolling of the
statute of limitations in this case. “Under
New York law, the doctrines of equitable
tolling or equitable estoppel may be invoked
to defeat a statute of limitations defense
when the plaintiff was induced by fraud,
misrepresentations or deception to refrain
from filing a timely action.” Abbas v. Dixon,
480 F.3d 636, 642 (2d Cir. 2007) (citation
and internal quotation marks omitted)); see
also Koch v. Christie’s Int’l PLC, 699 F.3d
141, 157 (2d Cir. 2012) (“Under federal
32
Indeed, the only case plaintiff cites to support his
theory that the continuing tort doctrine applies to his
tortious interference with contract claim concerns an
entirely different kind of tort claim – intentional
infliction of emotional distress. (See Pl.’s Opp’n Aff.
¶ 25 (citing Gonzalez v. Bratton, 147 F. Supp. 2d
180, 194 (S.D.N.Y. 2001) (discussing applicability of
the continuing tort doctrine to plaintiff’s intentional
infliction of emotional distress claim)).)
26
assuming arguendo that plaintiff may not
have been aware of the letters themselves
until 2009, it is uncontroverted that Conte
was aware long before June 2005 of (1) the
fact that the D.A.’s Office was investigating
him for fraud in connection with the route
distributors, and (2) that, in connection with
that investigation, they were contacting
route distributors and others to get
information about the alleged fraud. For
example, Conte testified that, at a hearing on
April 21, 2003, where Mr. Guerra was
accusing Conte of fraud, Guerra stated that
he was contacted by a detective who was
working with the Nassau County D.A.’s
Office. (Tr. 137-38.) In fact, Conte had
email exchanges in 2004 with Sauro of
Quebecor World about this issue. (See Pl.’s
Ex. 16 (emails between Conte and
Quebecor).)33 Similarly, in March 2005,
Conte received a fax sent by ADA Wallace
containing six pages of alleged victims of
fraud and amounts owed to them. (Tr. 161-
common law, a statute of limitations may be
tolled due to the defendant’s fraudulent
concealment if the plaintiff establishes that:
(1) the defendant wrongfully concealed
material facts relating to defendant’s
wrongdoing; (2) the concealment prevented
plaintiff’s discovery of the nature of the
claim within the limitations period; and (3)
plaintiff exercised due diligence in pursuing
the discovery of the claim during the period
plaintiff seeks to have tolled.” (citation and
internal quotation marks omitted)). There is
no allegation, nor is there any evidence
tending to indicate, that the County
defendants “prevented [plaintiff] from
discovering his claim.” Koch, 699 F.3d at
157. To the contrary, and as discussed infra,
the evidence adduced at trial demonstrates
that plaintiff was well aware of the
purported injuries that he sustained as a
result of any alleged tortious conduct that
occurred prior to June 2005 immediately
when those injuries occurred, and, thus, was
able (but failed) to assert a timely claim for
tortious interference with contract based on
those injuries. “The ineluctable conclusion is
that [plaintiff] failed to file his claim within
the statute of limitations not due to the
defendants’ fraudulent concealment, but due
to his own failure to exercise reasonable
diligence.” Id. Accordingly, the Court
concludes that, based on the circumstances
of this case, there is no basis for equitable
tolling of the one-year-and-ninety-day
statute of limitations applicable to plaintiff’s
tortious interference with contract claim.
33
In his summary judgment submissions, Conte
explained that he spent months in early 2004 trying to
unsuccessfully reassure route distributors that the
accusations against him were false. (See Pl.’s Reply
Aff. in Opp’n to Summ. J. ¶ 20 (“The plaintiff was
then subject to a barrage of telephone calls and emails from these route distributors who were
extremely upset and only then demanded refunds.
Many of those route distributors, including all those
from Westchester County the plaintiff spoke with,
told him that Mr. Guerra stated to them that the
plaintiff was a fraud and a crook, that I Media was a
scam, that defendant Guerra told them that his wife
was a police detective and that she had accessed the
plaintiff’s criminal record, that she determined that
all Guerra was saying to them about I Media and the
plaintiff was true and that Guerra told them that he
and his police detective wife were working with the
NCDAO. After spending the better part of his time in
February, March and April of 2004 involved in the
monumental task of trying to reassure and calm his
route distributors that these accusations were false, it
became clear to the plaintiff that he could not rely on
and utilize the services of any of the contracted route
distributors contacted by the defendants in
Westchester County.” (emphasis added)).)
Conte argues that defendants should be
equitably estopped from raising the statute
of limitations issue because they actively
concealed their tortious acts, including
sending letters to Conte’s route distributors
requesting information in connection with
their investigation and asking that they not
disclose the investigation to anyone. The
Court finds this argument unavailing. Even
27
62.) In addition, Conte was served with
multiple subpoenas for documents in early
2005. (Id. at 154.) Furthermore, Conte
testified that one of his route distributors,
Hoppe, came to him in confidence and told
him, in April 2005, that he had spoken to
Falzarno from the Nassau County D.A.’s
Office and that he had conveyed that
occurrence to other route distributors. (See
id. at 199 (“Mr. Hoppe told me that he had
spoken with Detective Investigator Mike
Falzarno of the Nassau County District
Attorney’s office and that he had told other
route distributors this.”).) Hoppe also
testified that he had been contacted by
Falzarno and told that Conte was running a
fraudulent business. He further testified that
Falzarno asked him for the names of other
route distributors, and that Hoppe relayed
the fraud allegations about Conte and I
Media to other distributors. (Id. at 210-11.)
Conte testified that his (Conte’s)
conversation with Hoppe occurred before
Falzarno visited Conte on April 8, 2005, at
which time Falzarno allegedly said to Conte,
while serving a subpoena, that he was going
get him. (Id. at 155, 228-29.) Thus, Conte
was well aware by April 2005 that the
County defendants had contacted his route
distributors regarding fraud allegations.34 In
short, Conte was aware of their conduct, and
was aware of the alleged injury from such
conduct, before June 2005, and, therefore,
there is no basis for the application of the
doctrine of equitable tolling or equitable
estoppel.
conduct that caused plaintiff to sustain
damages – as a result of a third-party’s
breach of contract – on or after June 1, 2005
(one year and ninety days prior to plaintiff’s
filing of the complaint in this action).
b. Pre-June 2005 Conduct
Emmons, Falzarano, and Wallace seek
judgment as a matter of law on plaintiff’s
tortious interference with contract claim as it
relates to their pre-June 2005 conduct. The
defendants claim that because any such
conduct occurred outside of the one-yearand-ninety-day statute of limitations, it is
not conduct upon which plaintiff’s tortious
interference with contract claim may be
based. As discussed supra, a cause of action
for tortious interference with contract
accrues at the time the injury is sustained,
rather than the date of defendant’s alleged
tortious conduct. See, e.g., Cary Oil Co., 90
F. Supp. 2d at 419 n.106. Thus, the relevant
inquiry for statute of limitations purposes is
the point at which plaintiff suffered injury as
a result of third-party breaches of contract
that were induced by the defendants’
actions.
Plaintiff’s tortious interference with
contract claim is based on the termination of
route distributor, printing vendor, and
advertising affiliate contracts. (See Pl.’s
Opp’n Aff. ¶ 24.) During the trial, plaintiff
testified that his last payment to a printer
was made in April of 2005. (Tr. 1288.) He
also testified that the last edition of TV Time
Magazine was published in May of 2005,
and that his route distributors delivered this
last edition of the magazine. (Id. at 128790.) There was no testimony by plaintiff, or
by any other witness, regarding any
continued printing or distribution of TV
Time Magazine after that point in time, nor
was any evidence presented that advertising
affiliates continued to work with plaintiff
In sum, because a one-year-and-ninetyday statute of limitations governs plaintiff’s
tortious interference with contract claim,
that claim may be based only on tortious
34
Contrary to Conte’s contention, knowledge of the
actual letters to his route distributors was not
necessary to assert the claim. In fact, Conte filed his
lawsuit in 2006, long before he received those letters
in discovery in 2009.
28
after he stopped producing publications
within which advertisements for their
products and/or services could run. Instead,
the uncontroverted evidence at trial clearly
indicates that printers had stopped printing,
route distributors had stopped distributing,
and advertising affiliates had stopped
advertising in May of 2005. In fact, plaintiff
testified that, in May of 2005, a number of
route distributors contacted him to tell him
that “I Media was a scam” and that he “was
a fraud” (id. at 197), and route distributors
were in the process of bringing a class action
lawsuit in the Supreme Court of Nassau
County, alleging that plaintiff had initiated a
Ponzi scheme (id. at 796-97).
in the light most favorable to plaintiff,
plaintiff has simply failed to prove a timely
claim of tortious interference with contract
against
Emmons
and
Falzarano.
Accordingly, defendants Emmons and
Falzarano are entitled to judgment as a
matter of law on the tortious interference
with contract claim.
c. Post-June 2005 Conduct
As to Wallace’s communications with
Giaimo in the late summer/early fall of
2005, the County defendants argue that such
conduct merely supports, if anything, a
claim of defamation, and not one for tortious
interference with contract. The County
defendants contend that plaintiff’s trial
testimony pertaining to the Wallace-Giaimo
discussions failed to establish the requisite
elements of a tortious interference claim,
and that, accordingly, plaintiff is merely
improperly attempting to recast his
defamation claim (a claim that had
previously been dismissed by this Court
prior to trial) as one for tortious interference
with contract. The Court agrees.
The uncontroverted evidence presented
at trial clearly demonstrates that plaintiff
sustained injury from the termination of
printer, route distributor, and advertising
affiliate relationships before June 1, 2005.
Because plaintiff’s injuries were sustained
outside of the limitations period, any prior
conduct that may have caused those injuries
cannot form the basis of a timely tortious
interference
with
contract
claim.
Accordingly, even viewing the evidence in
the light most favorable to plaintiff, there is
simply no evidence from which defendants
Emmons, Falzarano, or Wallace can be held
liable for tortious interference with contract
based on their pre-June 2005 conduct.
Plaintiff’s claim predicated on Wallace’s
communications with Giaimo is essentially
that Wallace told Giaimo lies about plaintiff
and his business (i.e., that plaintiff was
operating a Ponzi scheme) to intentionally
impel route distributors to breach their
contracts, causing plaintiff damage. (See
Pl.’s Opp’n Aff. ¶¶ 45-46.) Even if the
existence of valid route distributor contracts
and Wallace’s knowledge of them is
assumed, no evidence was adduced at trial
that Wallace, in speaking to Giaimo,
intentionally induced route distributors to
The only evidence of conduct that
occurred after June 1, 2005 is the
discussions Wallace had with Giaimo in the
late summer/early fall of 2005 about the
route distributors’ state court class action
complaint, which is discussed in detail
infra.35 Thus, even construing the evidence
35
Indeed, in his affidavit submitted in opposition to
the County defendants’ Rule 50 and Rule 59 motions,
plaintiff lists the acts upon which his tortious
interference with contract claims are based, and the
conversations between Wallace and Giaimo are the
only acts in that list that occurred on or after June 1,
2005. (See Pl.’s Opp’n Aff. ¶ 34.)
29
breach those contracts with plaintiff.36
Thus, plaintiff has failed to prove the third
requisite element of a tortious interference
with contract claim – that Wallace
intentionally procured a contractual breach.
36
As a preliminary matter, because the
uncontroverted evidence is that plaintiff’s I Media
Corporation was dissolved at the close of 2003 (see
County Defs.’ Mot. for Reconsideration of Sept. 30
Mem. & Order Ex. A., Certificate of Dissolution),
route distribution agreements signed after that date
are not valid, and thus are not agreements upon
which a tortious interference with contract claim may
be based. At trial, plaintiff acknowledged that I
Media Corporation had been dissolved by
proclamation of the New York Secretary of State on
December 31, 2003. (Tr. 703.) Under New York law,
“[a] dissolved corporation is prohibited from carrying
on new business,” Moran Enters., Inc. v. Hurst, 66
A.D.3d 972, 975 (2d Dep’t 2009) (citing N.Y. Bus.
Corp. Law § 1005(a)(1)) (“A dissolved corporation is
prohibited from carrying on new business and does
not enjoy the right to bring suit in the courts of this
state, except in the limited respects specifically
permitted by statute.” (citations omitted)); see also In
re C-TC 9th Ave. P’shp, 113 F.3d 1304, 1309 (2d Cir.
1997) (explaining that a dissolved corporation is
limited to activities involved in the winding up of its
affairs (citing N.Y. Bus. Corp. Law § 1006(a)));
Rosenson v. Mordowitz, 11 Civ. 6145 (JPO), 2012
U.S. Dist. LEXIS 120077, at *29 (S.D.N.Y. Aug. 23,
2012) (“Once dissolved, [] a former corporation no
longer may benefit from the protections of the
corporate form in New York. . . . “Upon dissolution,
the corporation’s legal existence terminates. . . . A
dissolved corporation is prohibited from carrying on
new business.” (citation omitted)), and various route
distribution agreements entered as exhibits at trial list
I Media Corporation as a contracting party and were
formed after the date of I Media Corporation’s
dissolution (see, e.g., Pl.’s Ex. 175 (route distribution
agreement dated February 10, 2005); see also Pl.’s
Ex. 164 (chart of route distributors followed by
copies of many route distribution agreements, some
of which were signed during 2003, others of which
were signed during 2004 or 2005)). However, under
New York law, a business may under certain
circumstances be treated as a de facto corporation
even if its legal charter has expired. See, e.g.,
Gelfman Int’l Enters. v. Miami Sun Int’l Corp., 05CV-3826 (CPS)(RML), 2009 U.S. Dist. LEXIS
64274, at *22 (E.D.N.Y. June 27, 2009) (“In order to
be considered a de facto corporation, a business
‘must function as if it were a corporation and make
substantial efforts to either incorporate or remedy any
defects of incorporation upon their discovery.’”
As a threshold matter, there is no
evidence that Wallace even made
disparaging remarks about plaintiff and his
business to Giaimo. At trial, Conte posed the
following question to Wallace in regards to
his conversations with Giaimo: “You did not
– you are stating you did not tell Mr. Giamo
[sic] that Mr. Conte was a fraud, that iMedia
was a scam, and that they had stolen money
(quoting Animazing Entm’t, Inc. v. Louis Lofredo
Assocs., 88 F. Supp. 2d 265, 269 (S.D.N.Y. 2000))).
At trial, plaintiff testified that he first learned about
the December 31, 2003 dissolution in late 2005, and
that he “tried to rectify that situation by paying back
taxes, but couldn’t afford it because of [his] financial
situation.” (Tr. 703.) Thus, plaintiff argues that,
because he was operating I Media as a corporation
after its dissolution and was making efforts to remedy
defects of incorporation upon their discovery, I
Media should be recognized as a de facto corporation
able to contract for new business. (See Pl.’s Opp’n
Aff. ¶¶ 40-42.) However, “[f]ailure to pay back taxes
has been held to preclude consideration of a business
as a de facto corporation,” Gelfman Int’l Enters.,
2009 U.S. Dist. LEXIS 64274, at *23; see also
George v. Yusko, 169 A.D.2d 865, 866-67 (3d Dep’t
1991) (“When [] the corporation has been dissolved
for neglecting to pay requisite franchise taxes, absent
subsequent reinstatement – achievable by payment of
unpaid franchise taxes, penalties and interest charges
– de facto corporateness is usually not recognized.”
(internal citations omitted)); see also Lorisa Capital
Corp. v. Gallo, 119 A.D.2d 99, 110-11 (2d Dep’t
1986) (“[A] corporation’s de jure existence is
removed for the very purpose of securing compliance
with the tax statute. Recognition of de facto status
would directly subvert the effectiveness of the
sanctions for franchise tax delinquency, removing all
incentive for a dissolve d corporation to seek
reinstatement.”), and Conte testified that he was
unable to pay the back taxes owed (see Tr. 703).
Plaintiff has failed, therefore, to prove that the route
distributor agreements signed after December 31,
2003 are valid. As such, he has failed to prove the
first, and a necessary, element of his tortious
interference with contract claim as it relates to those
post- December 31, 2003 distribution agreements.
30
from numerous individuals?” (Tr. 574.)
Wallace responded, “Mr. Giamo [sic] told
me that about you.” (Id.) At no point during
the remainder of his testimony did Wallace
admit to denigrating plaintiff or his business
to Giaimo, and Giaimo did not testify at
trial.37 Thus, plaintiff simply failed to elicit
any testimony or put forth any evidence
demonstrating that Wallace propounded the
falsities about plaintiff or I Media that
plaintiff claims caused route distributors to
breach their contracts.
substantiality of the interest protected, and it
conforms with this tort’s function as a backup remedy for breaches of contract.”
(citation omitted)); Israel v. Wood Dolson
Co., 1 N.Y.2d 116, 120 (1956) (explaining
that a tortious interference with contract
claim fails if the breach of the contract upon
which that claim is based is not proven).
Thus, plaintiff was required to prove that
route distributors breached their contracts
with him subsequent to Wallace’s
conversations with Giaimo.
In any event, even if Wallace made
disparaging remarks about plaintiff and his
business, there is simply no evidence that, in
so doing, he intentionally prompted route
distributors to breach their agreements with
plaintiff. First, there is no evidence that any
route distributors actually breached their
agreements with plaintiff after the
conversations between Wallace and Giaimo
took place. Under New York law, a plaintiff
must prove a breach of the contract at issue
in order to make out a claim against a third
party for tortious interference with that
contract. See, e.g., Sokol Holdings, Inc. v.
BMB Munai, Inc., 542 F.3d 354, 358-59 (2d
Cir. 2008) (“Sokol must prove Tolmakov’s
breach of the Emir Contract in order to make
out its claim for BMB’s tortious interference
with the contract . . . .”); NBT Bancorp v.
Fleet/Norstar Fin. Grp., 87 N.Y.2d 614,
623-24 (1996) (“Our requirement of breach
promotes the integrity of contract as well as
integrity of the marketplace; it signifies the
However, in this case, no evidence of
route distributors breaching their home
distribution contracts after June of 2005 was
presented at trial. To the contrary, and as
discussed supra, I Media stopped providing
route distributors with copies of TV Week
Magazine to deliver back in April or May of
2005 (Tr. 1287-90 (Conte testifying that the
last edition of TV Time was published in
May of 2005 and that route distributors
delivered that issue); id. at 219-20 (Hoppe
testifying that he likely stopped delivering
publications in late April of 2005)), thereby
leaving route distributors with no ability to
perform pursuant to their contracts after that
date (as their performance obligation under
their contracts was to distribute I Media’s
publications – which plaintiff was obligated
to first deliver to them – to households along
their routes in a timely fashion38). See, e.g.,
MHR Capital Partners LP v. Presstek, Inc.,
12 N.Y.3d 640, 645 (2009) (explaining that
a party’s obligation to perform under a
contract does not arise if there is an express
condition precedent that was not fulfilled by
the other side). Because the route
distributors’ obligations to perform did not
37
Accordingly, plaintiff’s allegation that “Wallace
not only suggested and induced Mr. Giaimo to file
this lawsuit based on the false representations he
made to him that the plaintiff and I Media were
operating a Ponzi/Pyramid scheme . . . but that he had
read and tacitly approved the allegation contained in
that complaint which he knew were false and were
the result of statements he made to attorney Giaimo”
(Pl.’s Opp’n Aff. ¶ 45), is merely speculative, and not
supported by any evidence adduced at trial.
38
(See Defs.’ Mem. of Law in Supp. of Rule 50 and
Rule 59 Mots. at 20-21 (excerpting provisions of the
home distribution agreements that define the
distribution obligations of the route distributors on
the one hand, and the delivery obligations of I Media
on the other).)
31
arise after May of 2005 due to plaintiff’s
failure to deliver new editions of TV Week
Magazine, the route distributors cannot be
deemed to have breached their contracts
with plaintiff after that date.39 Accordingly,
the uncontroverted evidence presented at
trial indicates that no route distribution
agreements were breached after the
communications between Wallace and
Giaimo that took place in the summer/early
fall of 2005.
that any route distributors did so as a result
of Wallace’s conversations with Giaimo.40
See Int’l Minerals & Resources, S.A. v.
Bomar Resources, Inc., 5 F. App’x 5, 8 (2d
Cir. 2001) (explaining that, in a tortious
interference with contract claim, “[t]he
causation required is that ‘but for’ the
activities of the defendant, there would have
been no breach of the contract” (citing
Sharma v. Skaarup Ship Mgmt. Corp., 916
F.2d 820, 828 (2d Cir. 1990))).
Moreover, the evidence presented at trial
indicates that Wallace’s discussions with
Giaimo took place after route distributors
had already (1) filed numerous complaints
with the D.A.’s Office claiming that plaintiff
owed them money (Tr. 160-61); (2)
informed plaintiff of their belief that he
“was a fraud” and that “I Media was a
scam” (id. at 197); (3) retained a lawyer to
file a class action complaint against plaintiff
(see id. at 573-74); and (4) filed their class
action complaint alleging that plaintiff had
initiated a Ponzi scheme (see id. at 573-74
(Wallace testifying to his discussions with
Giaimo about Giaimo’s filing of a civil class
action on behalf of plaintiff’s route
distributors and stating that he “didn’t even
know of Mr. Giaimo’s existence until he had
already filed his suit in civil court”)). Those
route distributors had clearly severed their
relationships with plaintiff and I Media prior
to the Wallace and Giaimo communications.
Thus, even if certain route distributors were
deemed to have breached their contracts
with plaintiff at some point in time, simply
no evidence was presented at trial, nor was
any testimony elicited, tending to indicate
Even assuming arguendo that the
evidence adduced at trial were sufficient to
prove that Wallace, in speaking with
Giaimo, intentionally induced route
distributors to breach their contracts with
plaintiff, plaintiff has failed to prove the
40
It is clear from plaintiff’s papers that his tortious
interference with contract claim rests on
conversations that members of the D.A.’s Office had
with route distributors, advertising affiliates, and
printers during the initial states of their investigation
(prior to the route distributors’ filing of their class
action complaint in the summer of 2005). (Pl.’s
Opp’n Aff. ¶ 34 (listing the “successive acts by the
individual County defendants that interfered with the
plaintiff’s contracts with route distributors, printers
and advertising affiliates,” four out of five of which
occurred prior to June of 2005).) However, as
discussed supra, any injury that may have resulted
from those interactions was sustained by plaintiff at a
point in time that falls outside of the one-year-andninety-day statute of limitations, meaning that any
claims based upon those communications are
untimely. Plaintiff’s attempt to link those pre-June
2005 occurrences to Wallace’s conversations with
Giaimo in the late summer/early fall of 2005, in order
to make out a claim for tortious interference with
route distributor contracts (see id. ¶ 25 (“[T]he
plaintiff submits that the ongoing pattern of acts of
tortious interference with contract committed by the
County defendants as far back as at least 2004 should
be attributable to the County itself in addition to the
individual County defendants . . . .”)), is simply
unavailing. See supra (discussing the inapplicability
of the continuous tort doctrine to claims for tortious
interference with contract).
39
The Court notes that the route distributors were
also required to pay plaintiff money pursuant to their
contractual relationship. However, because the route
distributors paid all of the fees associated with their
routes to plaintiff up-front (Tr. 694), their failure to
distribute magazines is the only action upon which
any alleged breach on their part could be based.
32
placed in a bad light,” and he “had severe
harm done to [his] business reputation” (id.
at 1265-66). Thus, at trial, plaintiff merely
testified to the generalized reputational
injury that he experienced as a result of the
publicized allegations contained in the route
distributors’ class action complaint; plaintiff
failed to prove that he was injured by
breaches of route distributor agreements
caused by Wallace’s discussions with
Giaimo. This distinction is critical, for to
succeed on a tortious interference with
contract claim, a plaintiff must prove that he
suffered damages as a specific result of a
breach of contract intentionally procured by
the defendant. See Int’l Minerals &
Resources, 5 F. App’x at 7-8 (“[A] plaintiff
must allege and prove . . . damages caused
by the defendant’s knowing and intentional
interference with [a] contract without
reasonable justification.” (citation and
internal quotation marks omitted)). Said
another way, the manner in which the injury
is accomplished is germane to a tortious
interference claim, unlike a defamation
claim that is defined in terms of the injury
sustained. See, e.g., Amaranth LLC v. J.P.
Morgan Chase & Co., 71 A.D.3d 40, 48 (1st
Dep’t 2009) (explaining that a complaint
sounds in defamation when a plaintiff relies
on generalized reputational harm (even if it
had an indirect effect on his or her ability to
form business relationships), but that it
sounds in tortious interference when
interference with existing or prospective
contracts is alleged); Ramsay v. Mary
Imogene Bassett Hosp., 113 A.D.2d 149,
151 (3d Dep’t 1985) (explaining that
“[u]nlike most torts, defamation is defined
in terms of the injury, damage to reputation,
and not in terms of the manner in which the
injury is accomplished” (citation omitted)).41
damages element of his tortious interference
with contract claim.
As discussed supra, all of plaintiff’s
route distributors stopped delivering TV
Time Magazine for him in May of 2005,
before the conversations between Wallace
and Giaimo took place. Moreover, by the
time Wallace first spoke to Giaimo, route
distributors had already retained Giaimo to
file a class action complaint against plaintiff
on their behalf. (Tr. 573-74 (Wallace
testifying that Giaimo sent him a copy of the
class action complaint when they spoke, but
that he had no role in creating it); id. at 574
(Wallace testifying that he “didn’t even
know of Mr. Giaimo’s existence until he had
already filed his suit [on behalf of plaintiff’s
route distributors] in civil court”).) The
uncontroverted evidence is that route
distributors had stopped working for
plaintiff, and were even seeking legal
recourse from him, prior to any of the
communications between Wallace and
Giaimo took place. Any injury to plaintiff
that resulted from route distributors
terminating their relationships with him was
sustained, therefore, prior to Wallace’s
conversations with Giaimo.
Moreover, the reputational harm that
plaintiff testified to at trial does not save his
claim against Wallace. Plaintiff testified
that, as a result of the allegations contained
in the route distributors’ class action
complaint that were also published in
newspaper and Internet articles, he “was
treated like a leper by [his] business
associates, and friends and neighbors didn’t
want to talk to [him] anymore and to this
day want nothing to do with [him].” (Id. at
1263.) He testified that he was “mortified,
embarrassed and humiliated by [the]
falsehoods that were written into [the]
lawsuit” (id. at 1264), and that his “feelings
of self-worth were destroyed,” he “was
41
Although plaintiff also requests reconsideration of
the Court’s granting of summary judgment on his
state law claims for defamation, intentional infliction
33
the filing of his complaint in this action.43
Thus, the evidence presented at trial, even
when viewed in the light most favorable to
plaintiff, was insufficient for a reasonable
jury to find Emmons, Falzarano, and/or
Wallace liable for tortious interference with
contract. Accordingly, Emmons, Falzarano,
and Wallace are entitled to judgment as a
matter of law on plaintiff’s tortious
interference with contract claim.44
Plaintiff’s
testimony
described
the
generalized reputational injury that he
suffered, but there was no testimony or
evidence presented at trial that plaintiff
sustained damage as a specific result of
contractual breaches induced by Wallace’s
conversations with Giaimo.
For all of these reasons, no rational jury
could conclude that Wallace’s conversations
with Giaimo amounted to tortious
interference with plaintiff’s contracts, and as
discussed supra, there is no other conduct
upon which a timely tortious interference
claim against Wallace can be based.42 Given
that there is simply no evidence that Wallace
tortiously
interfered
with
plaintiff’s
contracts during the applicable limitations
period, he is entitled to judgment as a matter
of law on the tortious interference claim.
43
Conte sought to introduce expert testimony, and a
valuation report, that projected lost earnings at
$549,000,000. (See Pl.’s Letter dated Dec. 15, 2009,
ECF No. 392 (attaching report created by plaintiff’s
business valuation and loss expert).) The Court did
not permit the expert to testify, or the introduction of
the expert valuation, for several reasons. First,
plaintiff did not disclose any experts in his list of
witnesses contained within the pre-trial order and,
thus, defendants did not have notice that there would
be any expert testimony at trial. Second, the report of
projected revenues of $549,000,000 for a start-up
company that never made any profit is not admissible
under New York law because it is too speculative.
See Zink v. Mark Goodson Prods., Inc., 261 A.D.2d
105, 106 (1st Dep’t 1999); see also Kenford Co. v.
Cnty. of Erie, 67 N.Y.2d 257, 261 (1986) (“[T]he
alleged loss [of future profits] must be capable of
proof with reasonable certainty. In other words, the
damages may not be merely speculative, possible or
imaginary, but must be reasonably certain and
directly traceable to the breach, not remote or the
result of other intervening causes. . . . If it is a new
business seeking to recover for loss of future profits,
a stricter standard is imposed for the obvious reason
that there does not exist a reasonable basis of
experience upon which to estimate lost profits with
the requisite degree of reasonable certainty.” (internal
citations omitted)). Third, the plaintiff is only
entitled to lost profits attributable to a particular
contract that was the subject of the tortious
interference. See Guard-Life Corp. v. S. Parker
Hardware Mfg. Corp., 50 N.Y.2d 183, 197 (1980).
Here, the expert report does not tie any damages,
including lost profits, to any alleged interference with
any particular contract and, thus, cannot be used as a
basis for recovery on the tortious interference with
contract claim.
44
The Court notes that, although Conte sought to
amend his complaint during the trial to add a claim
for tortious interference with business opportunities
(which plaintiff had decided prior to trial not to
***
In sum, plaintiff failed to prove that
Emmons, Falzarano, or Wallace tortiously
interfered with his contractual relationships,
causing him damage within the one-yearand-ninety-day limitations period prior to
of emotional distress, and injurious falsehoods (based
on Wallace’s communications with Giaimo) (see
Pl.’s Letter dated June 12, 2012, ECF No. 595), as
discussed supra, there was no evidence at trial of any
defamatory statements that were made by Wallace (or
by any other defendant) within the one-year statute of
limitations for these claims – namely, after August
30, 2005.
42
To the extent plaintiff argues that the jury found
damages within the relevant time period, the Court,
for all of the reasons discussed supra, finds that
determination to be irrational in light of the evidence
presented at trial. Indeed, when asked at oral
argument for evidence of any conduct upon which a
timely tortious interference claim could be based,
plaintiff referenced his continuing tort argument, in
an attempt to base his claim on the pre-June 2005
conduct that, as discussed supra, is beyond the
limitations period. (Oral Arg. on Post Trial Mots.
Sept. 6, 2012.)
34
IV. CONCLUSION
For the reasons stated herein, the County
defendants’ Rule 50 motion for judgment as
a matter of law is granted in its entirety –
Wasilausky is entitled to judgment as a
matter of law on plaintiff’s false arrest claim
and Emmons, Falzarano and Wallace are
entitled to judgment as a matter of law on
plaintiff’s tortious interference with contract
claim. The County defendants’ Rule 59
motion for a new trial and plaintiff’s Rule 59
motion for a new damages trial are denied as
moot. The Clerk of the Court shall enter
judgment in favor of the County defendants
and close this case.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: July 26, 2013
Central Islip, NY
***
Plaintiff is proceeding pro se. Defendants
are represented by Andrew Reginald Scott
and Sondra Meryl Toscano of the Nassau
County Attorney’s Office, 1 West Street,
Mineola, N.Y. 11501.
pursue, and which the Court denied as untimely
during the trial), such a claim would not overcome
the statute of limitations problem because there is no
evidence of any conduct by defendants within the
applicable limitations period in which defendants
interfered with a third party with whom plaintiff was
seeking to have a business relationship.
35
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