Kogut v. The County of Nassau et al

Filing 83

MEMORANDUM AND ORDER - The Court finds Defendants remaining defenses without merit for purposes of the Rule 12(c) motion. Accordingly, for the foregoing reasons, Defendants motion to dismiss is GRANTED in part and DENIED in part. The Court permits th e following claims to continue forward: Plaintiffs malicious prosecution claims relating to their first trial, (2) Koguts malicious prosecution claim relating to his second trial, (3) Plaintiffs Due Process claims, (4) Plaintiffs Monell Claims, (5) Koguts negligent supervision claim, (6) Koguts claim based on respondeat superior; and (6) Restivo and Halsteads conspiracy claims. Ordered by Judge Joanna Seybert, on 12/11/2009. (Coleman, Laurie)

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 1 of 33

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------X JOHN KOGUT, Plaintiff, -againstTHE COUNTY OF NASSAU, POLICE COMMISSIONER DONALD KANE, POLICE COMMISSIONER WILLIAM J. WILLETT (2005), POLICE COMMISSIONER JAMES LAWRENCE, DETECTIVE SEAN SPILLANE (HEAD OF HOMICIDE 1985), DETECTIVE DENNIS FARRELL (HEAD OF HOMICIDE 2005), DETECTIVE JOSEPH VOLPE, DETECTIVE ROBERT DEMPSEY, DETECTIVE ALBERT MARTINO, DETECTIVE WAYNE BIRDSALL, DETECTIVE MILTON G. GRUBER, DETECTIVE CHARLES FRAAS, DETECTIVE FRANK SIRIANNI, DETECTIVE HARRY WALTMAN, P.O. MICHAEL CONNAUGHTON, P.O. WILLIAM DIEHL, and JOHN DOES 1-5, Defendants. ----------------------------------------X JOHN RESTIVO, DENNIS HALSTEAD, MELISSA LULLO, JASON HALSTEAD, HEATHER HALSTEAD and TAYLOR HALSTEAD, Plaintiffs, - against NASSAU COUNTY, JOSEPH VOLPE, in his individual capacity, ROBERT DEMPSEY, in his individual capacity, FRANK SIRIANNI, in his individual capacity, MILTON GRUBER, in his individual capacity, HARRY WALTMAN in his individual capacity, ALBERT MARTINO, in his individual capacity, CHARLIE FRAAS, in his individual capacity, THOMAS ALLEN in his individual capacity, RICHARD BRUSA, in his individual capacity, VINCENT DONNELLY, in his individual capacity, MICHAEL CONNAUGHTON, in his individual capacity, WAYNE BIRDSALL, in his individual capacity, WILLIAM DIEHL, in his individual capacity, JACK SHARKEY, in his individual capacity, MEMORANDUM AND ORDER 06-CV-6695 (JS)(WDW) (LEAD CASE)

06-CV-6720(JS)(WDW) (MEMBER CASE)

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 2 of 33

DANIEL PERRINO, in his individual capacity, ANTHONY KOZIER, in his individual capacity, Detective Sergeant CAMPBELL, (Shield #48), in his individual capacity, SEAN SPILLANE, in his individual capacity, RICHARD ROE SUPERVISORS #1-10, in their individual capacities, Defendants. ----------------------------------------X APPEARANCES: For Plaintiffs: John Kogut Anthony M. Grandinette, Esq. Grandinette & Serio, LLP 114 Old Country Road, Suite 420 Mineola, NY 11501 Paul Casteleiro, Esq. 200 Washington Street, Suite 500 Hoboken, NJ 07030 John Restivo, Dennis Halstead, Melissa Lullo, Jason Halstead, Heather Halstead, and Taylor Halstead For Defendants: Barry C. Scheck, Esq. Deborah L. Cornwall, Esq. Monica R. Shah, Esq. Nick Joel Brustin, Esq. Anna Benvenutti Hoffman, Esq. Cochran, Neufeld & Scheck, LLP 99 Hudson Street, 8th Floor New York, New York 10013 Liora M. Ben-Sorek, Esq. Sondra Meryl Toscano, Esq. Office of the Nassau County Attorney One West Street Mineola, NY 11501

SEYBERT, District Judge: INTRODUCTION Plaintiffs, John Kogut ("Kogut"), John Restivo

("Restivo"), Dennis Halstead ("Halstead"), Melissa Lullo ("Lullo"), Jason Halstead ("J. Halstead"), Heather Halstead ("H. Halstead"),

2

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 3 of 33

and Taylor Halstead ("T. Halstead")1 (collectively "Plaintiffs") commenced these actions 07-CV-6695 and 07-CV-6720 on December 19, 2006, and December 21, 2006, respectively. Subsequently, the Court Kogut,

consolidated both cases into the earlier-filed action.2

Restivo, and Halstead base the majority of their claims against Nassau County ("County") and various Nassau County Police Department ("NCPD") officers and supervisors (collectively "Defendants") on 42 U.S.C. § 1983, alleging, inter alia, malicious prosecution, false arrest, and false imprisonment.3 Additionally, Kogut, Restivo, and

Halstead assert 14th Amendment due process violations, and a variety of state claims4 stemming from their prior interrogations, arrests, and subsequent state prosecutions. Finally, Halstead's Children

asserted their own cause of action, unconstitutional denial of familial association, which they claim stems from their father's wrongful conviction and imprisonment. On August 27 and 28, 2008, Defendants moved to dismiss

Lullo, J. Halstead, H. Halstead, and T. Halstead will collectively be referred to as "Halstead's Children." The parties are directed to file future submissions under 06-CV-6695 and should no longer file submissions under the closed case 06-CV-6720. Plaintiffs name forty-eight Defendants in total, including the fictitiously named Defendants, John Does 1-5 (Kogut Compl. 2), John Doe Officers and Detectives #1-10, and Richard Roe Supervisors #1-10. (Restivo & Halstead Am. Compl. 1.) Restivo and Halstead later withdrew their state law claims for false arrest, false imprisonment and assault and battery. (Pl.'s Mem. in Opp'n to Mot. to Dismiss 18, n.11). 3
4 3 2

1

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 4 of 33

both actions.

In an Order dated August 3, 2009 ("August 2009

Order"), the Court granted in part and denied in part Defendants' motions. Plaintiffs now move for reconsideration of the Court's

August 2009 Order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure and Local Rule 6.3. For the reasons that follow,

the Court GRANTS in part and DENIES in part Plaintiffs' motions. BACKGROUND5 I. Murder of Theresa Fusco On November 10, 1984, Theresa Fusco ("Fusco"), a sixteenyear-old girl, left Hot Skates--a local roller skating rink. Approximately three weeks later, on December 5, 1984, Fusco's body was discovered naked and brutalized by the railroad tracks near Park Place and Rocklyn Avenue in Lynbrook. Defendant Joseph Volpe

("Volpe") of the Nassau County Police Department was assigned as lead detective for the investigation. The medical examiner

estimated that the time of death occurred between seven to fourteen days prior to the date of discovery of the body. The autopsy also

revealed that Fusco had suffered severe blows to the face, and death, ultimately, resulted from ligature strangulation. There was

no trauma around the vaginal area; however, a vaginal swab produced

The facts, as stated herein, are derived from the Kogut's Complaint ("Kogut Compl.") and the Amended Complaint filed by Restivo, Halstead, Lullo, J. Halstead, H. Halstead, and T. Halstead ("Restivo & Halstead Am. Compl.") (collectively "Complaints"), and is accepted as true for the purpose of deciding this motion. 4

5

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 5 of 33

seminal fluids.

After interviews with Fusco's mother and best

friend it was concluded, by Vople, that Fusco was not sexually active. officers (Restivo & Halstead Am. Compl. ¶ 49). knew of these findings; however, The investigating not all of this

information was made public. In ("Sirianni"), early Daniel March Perrino 1985, Defendants and Frank others Sirianni questioned

("Perrino")

Harold Smyle ("Smlye") as a suspect in the Fusco rape and murder. Smyle, who had a history of psychological illness, informed the Defendants that Plaintiff Restivo told Symle he knew who killed Fusco. (Id. ¶ 50.) On March 5, 1985, Volpe had Restivo brought to (Id. ¶ 51.) The Defendants then proceeded to

NCPD headquarters. interrogate Restivo.

Restivo claims that his interrogation lasted twenty-four hours, during which Defendants refused to let him leave the

interrogation room, denied his request to contact a lawyer or his girlfriend, and employed coercive and abusive interrogation tactics in order to produce false accusations against Halstead. (See id.

¶¶ 52-64.) After suffering through hours of "physical and emotional abuse," Restivo claims that he signed a written statement, created by Defendants, which falsely indicated that Halstead had told him that he raped a girl by a cemetery and then strangled and killed her. (Id. ¶ 60.) Morever, Restivo maintains that he had no

knowledge of the Fusco murder and that the Defendants provided him

5

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 6 of 33

with all of the facts related to the rape and murder.

(Id. ¶ 61.)

Subsequently, based on Restivo's statements, the Defendants acquired a warrant to wiretap Halstead's phone. On March 11 and again on

March 13, 1985, Defendants Volpe, Allen, and others stopped Halstead as he was walking in the street, placed him in one of their police vehicles, and drove him to the parking lot of the Lynbrook Police Department. Halstead claims that during these two informal

interrogations, members of the NCPD placed listening devices in his apartment. During the time that he was in police custody on both

dates, Halstead was questioned about the Fusco rape and murder, and he repeatedly denied any involvement in or knowledge of the crime. (Id. ¶ 69.) On March 21, 1985, Volpe had Kogut brought to NCPD

headquarters for questioning. Restivo's moving business.

Kogut was a part-time employee of At this first interrogation, Kogut (Id. ¶ 70.) On

repeatedly denied any knowledge of the murder.

March 25, 1985, Kogut was again brought to the NCPD headquarters for questioning. Plaintiffs allege that during this twelve-hour

interrogation, Defendants utilized abusive and coercive tactics. Finally, Kogut signed a confession that included the following information: (1) Halstead and Restivo raped Fusco in the cemetery; (2) Kogut strangled her to death with a cord as she lay face down on the ground because she threatened to tell the authorities who raped her; and (3) all three of them transported Fusco's dead body in

6

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 7 of 33

Restivo's van to "the Fort" area where they hid her body under leaves and wooden pallets. (See id. ¶ 76.) Kogut was never

informed of his Miranda rights, and only signed a Miranda waiver after fifteen hours of interrogation. (Id. ¶ 79.) After Kogut

signed his confession, Volpe and Robert Dempsey ("Dempsey") directed Sirianni and Harry Waltman ("Waltman"), "with the active

participation and approval of [D]efendant Camp[b]ell," to take Kogut to the area of the cemetery where Fusco's body was discovered. ¶ 80.) (Id.

Plaintiffs further allege that, during this time, Sirianni

and Waltman were under Volpe's and Dempsey's orders to coach Kogut about the particular circumstances of the crime. (Id.) Finally,

Volpe, Dempsey, and their fellow officers compelled Kogut to repeat his confession on videotape in front of Assistant District Attorneys Peck and McCarty.6 (Id. ¶ 81.) Kogut's interrogation and confession culminated in his arrest and arraignment on March 26, 1985,

approximately nineteen hours after he was picked up for his second interrogation. Subsequently, on March 26, 1985, NCPD seized Restivo's van and transported it to police headquarters. Defendant Charlie Frass

("Frass") compared samples taken from Plaintiff Restivo's van with the hair and blood samples taken from Fusco. Plaintiffs claim that

between March 1, 1985 and June 20, 1985 the Defendants, through

The full names of Assistant District Attorneys Peck and McCarty are not contained in the motion papers or pleadings. 7

6

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 8 of 33

coercion, evidence

intimidation, against the

and

physical

force, ¶

began In

collecting addition,

Plaintiffs.

(Id.

90.)

Plaintiffs state that Defendants failed to disclose or document exculpatory evidence or statements that were allegedly made by witnesses. II. (Id. ¶ 92.)

Plaintiffs' Convictions and Subsequent Appeals On June 20, 1985, Restivo and Halstead were arrested for

Fusco's rape and murder.

On December 3, 1986, they were both

convicted of rape and second-degree murder; they were sentenced to thirty-three and one-third years to life in prison. On May 28,

1986, Kogut was convicted on all counts in the Indictment, and on June 27, 1986 was sentenced to an aggregate indeterminate term of imprisonment of 31.5 years to life.7 unnumbered page 2.) (Kogut Compl., Ex. A.,

Kogut appealed his conviction, claiming, inter

alia, that the trial court erred in ruling that his confession was voluntary. The Appellate Division affirmed Plaintiff's conviction (Kogut Compl. ¶ 79.) denied leave to On November 21, 1991, (Id. ¶ 80.)

on October 17, 1991. the Court of Appeals

appeal.

Subsequently, Plaintiff petitioned for a writ of habeas corpus alleging numerous constitutional challenges to his conviction. April 15, 2002, the U.S. District Court dismissed the writ. III. DNA Exoneration; Proceedings After Discovery On

Hereinafter, the Court will refer to these 1985-1986 trials as the "Plaintiffs' First Trials." 8

7

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 9 of 33

From 1993 to 2003, various samples of semen obtained from Fusco's body were subjected to DNA testing; on five separate

occasions, Plaintiffs claim, the tests proved that the DNA found inside the victim did not belong to Restivo, Halstead, or Kogut. On

June 11, 2003, the convictions of Restivo, Halstead and Kogut were vacated; however, the charges were not dropped. 81.) (Kogut Compl. ¶

In 2005, the Nassau County District Attorney, armed with newly At Kogut's second trial, Judge

discovered evidence, retried Kogut.

Victor Ort, held that "the question hairs were [not] left in the van on or about November 10th of 1984, and absent those hairs, there is no corroboration, whatsoever, for the [Kogut's] confession

concerning the count of rape."

(Id. ¶ 73.)

Kogut was acquitted of Shortly thereafter,

all charges on December 21, 2005.

(Id. ¶ 85.)

on December 29, 2005, upon the motion of the Nassau County District Attorney's Office, Judge William C. Donnino of the Nassau County Supreme Court dismissed the charges against Restivo and Halstead for lack of evidence. (Restivo & Halstead Am. Compl. ¶ 113.) On

December 19, 2006 and December 21, 2006, respectively, Plaintiffs commenced these actions. In its August 2009 Order, the Court dismissed the

following claims: (1) Plaintiffs' claims for malicious prosecution, based on Section 1983 and New York law, relating to Plaintiffs' First Trials; (2) Plaintiffs' claims for false arrest and false imprisonment, based on Section 9 1983 and New York law;

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 10 of 33

(3)

Plaintiffs'

claims

of

due of

process false

violations evidence;

based

on

Defendants'

alleged

offering

(4)

Kogut's

conspiracy claim; (5) Plaintiffs' Monell claims; (6) Halstead's Children's claims for loss of familial association; (7) Kogut's battery claim; (8) Restivo's and Halstead's claims for failure to intercede; (9) Restivo's and Halstead's claims for intentional or reckless infliction of emotional distress; (10) Plaintiffs' claims for negligent infliction of emotional distress; (11) Restivo's and Halstead's claims based on negligent supervision; and (12) Restivo's and Halstead's claims based on respondeat superior. On August 18 and 31, 2009, Plaintiffs moved for

reconsideration of the Court's August 2009 Order.

Specifically,

Plaintiffs ask the Court to reconsider its decision regarding their (1) malicious prosecutions claims, under state and federal law; (2) false arrest and false imprisonment claims; (3) Monell claims, and (4) due process claims. Additionally, Kogut asks the Court to

reconsider its findings with regard to his (5) Battery claim, and (6) negligent infliction of emotional distress claim.8

To be clear, Kogut does not seek reconsideration of his conspiracy claim, none of the Plaintiffs seek reconsideration of their false arrest and false imprisonment claims, Halstead's Children do not seek reconsideration of their claims for loss of familial association; and Restivo and Halstead do not seek reconsideration for their claims based on (1) failure to intercede; (2) intentional or reckless infliction of emotional distress; (3) negligent infliction of emotional distress; (4) negligent supervision; and (5) respondeat superior. Thus, these claims remain DISMISSED. 10

8

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 11 of 33

DISCUSSION I. Rule 59(e) Standard of Review on Motion for Reconsideration Motions for reconsideration may be brought pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure and Local Rule 6.3. See Wilson v. Pessah, No. 05-CV-3143, 2007 U.S. Rule 59(e)

Dist. LEXIS 17820, at *4 (E.D.N.Y. March 14, 2007).

permits a moving party to file a motion for reconsideration when it believes the Court overlooked important "matters or controlling decisions" that would have influenced the prior decision. Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151, (S.D.N.Y. 1999). Reconsideration is not a proper tool to repackage and relitigate arguments and issues already considered by the Court in deciding the original motion. See United States v. Gross, No. 98-CR-0159, 2002

WL 32096592, at *4 (E.D.N.Y. Dec. 5, 2002) ("A party may not use a motion to reconsider as an opportunity to reargue the same points raised previously."). issues. Nor is it proper to raise new arguments and

See Lehmuller v. Inc. Vill. of Sag Harbor, 982 F. Supp. Reconsideration may only be granted when

132, 135 (E.D.N.Y. 1997).

the Court did not evaluate decisions or data that might reasonably be expected to alter the conclusion reached by the Court. Wechsler

v. Hunt Health Sys., 186 F. Supp. 2d 402, 410 (S.D.N.Y. 2002). II. Rule Against Undermining Underlying Convictions in Parallel Civil Proceedings 11

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 12 of 33

Courts' concerns about the potential for civil proceedings undermining criminal convictions reach back over a century: [I]f [an] action for malicious prosecution were allowed to be maintained before the termination of the criminal proceeding [in plaintiff's favor,] the plaintiff might be found guilty in that proceeding, and yet maintain [his] action for malicious prosecution on the ground that []he was not guilty, and that the defendant had no probable cause to believe [him] guilty; and thus there might be two conflicting determinations as to the same transaction. Robbins v. Robbins, 30 N.E. 977, 978, 133 N.Y. 597, 599 (1892). This concern stems from the law's general policy of protecting criminal complainants against a civil action for damages where the criminal proceeding results in the defendant's conviction. See id. Thus, when fairly conducted, a criminal proceeding that results in the conviction of the person charged with a crime "is held to be conclusive evidence of probable cause. Id. On the other hand

where the criminal proceeding is terminated favorably to the accused, or without his conviction, so that there can be no further proceeding upon the complaint or indictment, and no further prosecution of the alleged offense without the commencement of a new proceeding, then there has been a sufficient termination thereof to enable him, proving the other requisite facts, to maintain an action for a malicious prosecution. Id. In this case, what constitutes favorable termination is a

significant point of contention between the parties. A. Heck v. Humphrey: Malicious Prosecution under § 1983 When a claim for damages under § 1983 calls into question 12

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 13 of 33

the validity of an underlying conviction, a district court must dismiss the claim, unless the conviction has been invalidated. Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). The petitioner in Heck was an inmate with a direct appeal

from his conviction pending, who brought a § 1983 action for damages against state officials who, he claimed, acted unconstitutionally in arresting and prosecuting him. Drawing an analogy to the tort of

malicious prosecution, the Supreme Court held that an inmate's § 1983 claim for damages was unavailable because he could not

demonstrate that the underlying criminal proceedings had terminated in his favor. Id. at 486-87. This favorable termination

requirement is similarly applicable to a released prisoner seeking to bring a § 1983 action implying the invalidity of a conviction. Id. at 490, n.10. The Supreme Court in Heck enumerated four methods of demonstrating that a conviction has been invalidated: (1) the conviction was reversed on a direct appeal; (2) an executive order expunged the conviction; (3) a habeas corpus petition was issued by a federal court; or (4) an authorized state tribunal declared the conviction invalid. Id. at 486-87. In this case, Plaintiffs cannot

maintain that their convictions were invalidated by any of the first three methods. Therefore, Plaintiffs argue that they overcome Heck

because their convictions were vacated and the charges against them were later dismissed. Defendants, on the other hand, maintain that 13

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 14 of 33

Plaintiffs fail to satisfy any of the four possibilities outlined in Heck. In its August 2009 Order, the Court reached the conclusion that Plaintiffs failed to establish that their convictions were invalidated under Heck. Relying primarily on New York v. Crimmins,

343 N.E.2d 719, 38 N.Y.2d 407, 381 N.Y.S.2d 1 (1975), the Court found that the District Attorney's motion under New York Criminal Procedure Law § 440.10(1)(g), and the subsequent dismissal of the indictments against the Defendants, did not attack the validity "of the judgment . . . , only the likelihood of a similar verdict being rendered if there were an enlargement of the evidence on the principle issue." Id. at 728. In light of the additional authority

submitted by the parties, and upon further reflection, the Court finds its prior decision to be in error. In their various memoranda in support of their motions, Plaintiffs cite to several cases, most notably DiBlasio v. City of New York, 102 F.3d 654 (2d Cir. 1996). DiBlasio involved a

physician who, in 1986, was convicted of the criminal sale of a controlled substance (cocaine) in the first, second and third degrees, and criminal possession of a controlled substance in the fourth degree. Four years later, following an unsuccessful appeal

in the State courts, the United States District Court for the Eastern District of New York granted DiBlasio a writ of habeas corpus based on his claim that the prosecution's failure to produce 14

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 15 of 33

or identify a confidential informant deprived him of a fair trial. The Second Circuit affirmed. Cir. 1991). DiBlasio v. Keane, 932 F.2d 1038 (2d

The State retried DiBlasio, and he was convicted only Subsequently, DiBlasio

on the charge of unlawful possession.

brought a malicious prosecution claim against the police officers claim pursuant to 42 U.S.C. § 1983. The district court dismissed

the complaint as time-barred and for failure to state a claim. DiBlasio appealed. In examining DiBlasio's malicious prosecution claim, the Second Circuit began by outlining the four elements of a common law tort for malicious prosecution: "(1) commencement or continuance of a criminal proceeding, (2) lack of probable cause, (3) existence of malice, and (4) termination in plaintiff's favor." DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir. 1996). Turning to the

question of favorable termination, the Circuit wrote: "Proceedings are `terminated in favor of the accused' only when their final disposition is such as to indicate the accused is not guilty." Id.

Ultimately, the Second Circuit rejected DiBlasio's claim because his habeas did not demonstrate his innocence; hence, his later retrial and conviction of the lesser crime of possession. Beyond its general statement that the favorable

termination requirement is satisfied when the final disposition indicates the accused is not guilty, neither the Supreme Court nor the Second Circuit provide significant guidance as to the meaning of 15

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 16 of 33

favorable termination under Heck. Defendants urge the Court to seek guidance from the state court's determinations. flawed. But this theory is

Although ill-defined, the standard for determining whether

Plaintiffs have satisfied Heck's favorable termination requirement must be based on federal, not state law, else a Plaintiff's ability to seek redress for violations of his constitutional rights would vary by the state of his conviction. Supreme Court intended. This cannot be what the

Accordingly, whether Plaintiffs obtained a

favorable termination of the prior proceeding under Heck is a separate question from whether they obtained a favorable termination under New York law. In light of DiBlasio, the Court finds that Plaintiffs have plead sufficient facts to establish that they obtained a favorable termination of the state court proceedings.9 Therefore, Heck

provides no bar to their § 1983 claims. B. Malicious Prosecution under New York Law: Invalidation Under New York Law, Motions Pursuant to N.Y. Crim. Proc. Law § 440.10(1)(g), the District Attorney's Dismissal of the Indictments, New York v. Crimmins, and Smith-Hunter v. Harvey To maintain a malicious prosecution claim under New York law, a plaintiff must establish the same four elements as under a § Plaintiffs argue that DiBlasio "mandates" that their § 1983 actions proceed "as Plaintiffs have no remedy in Federal Habeas." (Restivo-Halstead Reply in Supp 5.) While the Court disagrees with Plaintiffs on this point, it recognizes that the Second Circuit interpreted Heck's favorable termination requirement very broadly, such that Plaintiffs' claims may proceed. 16
9

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 17 of 33

1983 claim: "(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the

termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice [.]" Smith-Hunter v. Harvey, 734 N.E.2d 750, 752, 95 N.Y.2d Again, the biggest hurdle the favorable termination

191, 195, 712 N.Y.S.2d 438, 440 (2000). for Plaintiffs to overcome remains

requirement. Plaintiffs' convictions were vacated upon motion by the District Attorney pursuant to New York Criminal Procedure Law § 440.10. Section 440.10 provides in relevant part: 1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: . . . (g) New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence . . . . N.Y. Crim. Proc. Law § 440.10(1)(g) (McKinney 2007). In

interpreting this section, the New York State Court of Appeals has stated that, on "motion to vacate judgment upon the ground of newly 17

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 18 of 33

discovered evidence[,] the validity of the judgment is not attacked, only the likelihood of a similar verdict being rendered if there were an enlargement of the evidence on the principle issue." New

York v. Crimmins, 343 N.E.2d 719, 728, 38 N.Y.2d 407, 381 N.Y.S.2d 1 (1975). The Crimmins decision led the Court to conclude that the

2003 vacating of the Plaintiffs' convictions could not demonstrate the conviction's "unlawfulness" under New York State law.

Nevertheless, much has happened since the Crimmins decision, nearly thirty-five years ago. Upon reconsideration, the Court also finds

that its prior determination was in error. Smith-Hunter involved a plaintiff who was charged with trespass, a violation under New York Penal Law § 140.05. After her

arraignment, plaintiff served demands for discovery and filed a motion to dismiss. After approximately four months, the prosecutor

failed to respond to plaintiff's demands, and he failed to appear on six separate court dates. Smith-Hunter, 734 N.E.2d at 751-52.

Plaintiff then moved to dismiss pursuant to Criminal Procedure Law § 30.30, New York's speedy trial statute. The trial court

subsequently granted the motion, and plaintiff brought a malicious prosecution claim against the prosecutor. prosecution trial, the New York State During the malicious Supreme Court granted

defendants' summary judgment motion on the basis that dismissal pursuant to § 30.30 provides "nothing . . . from which it can fairly be implied that . . . the accused [was] innocent of the charges 18

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 19 of 33

lodged against her."

Id. at 752.

The Appellate Division affirmed,

"concluding that a CPL 30.30 dismissal could never constitute a `favorable termination.'" Id. Plaintiff appealed.

The Court of Appeals began its analysis with the general rule under New York law: "As we stated in Robbins v. Robbins, 133 N.Y. 597, 599, 30 N.E. 977, a criminal proceeding is terminated favorably to the accused when `there can be no further proceeding upon the complaint or indictment, and no further prosecution of the alleged offense.' Moreover, it makes no `difference how the

criminal prosecution is terminated, provided it is terminated, and at an end[.]'" Id. at 753. The court then went on to discuss the

exceptions to the common law, where termination of the criminal prosecution does not imply the innocence of the accused: A termination is not considered favorable, for example, if the charge is dismissed []because of misconduct on the part of the accused or in his behalf for the purpose of preventing proper trial . . . . [A]n accused should not benefit where his own misconduct. . . . A termination is not favorable to the accused, additionally, if the charge is withdrawn or the prosecution abandoned pursuant to a compromise with the accused. Indeed, it is hornbook law that []where charges are withdrawn or the prosecution is terminated . . . by reason of a compromise into which [the accused] has entered voluntarily, there is no sufficient termination in favor of the accused . . . . Accordingly, . . . an adjournment in contemplation of dismissal--a disposition that requires the consent of the prosecutor, the accused and the court--does not qualify as a favorable termination. 19

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 20 of 33

Similarly, if the charge is withdrawn or dismissed out of mercy requested or accepted by the accused, there is no favorable termination. Mercy, it is reasoned, would not be appropriate if the prosecution were groundless; rather, mercy []implies a belief in the guilt of the accused or at the least in the possibility that he may be guilty . . . . Id. at 753-54 (quotation marks and citations omitted). After

examining the record in the prior criminal proceeding, the court found that "the prosecution terminated in a manner not inconsistent with plaintiff's innocence." Id. at 755. It then rejected

defendant's argument that a plaintiff must establish her innocence prior to recovery on a malicious prosecution claim, id., and instead held that only "dispositions inconsistent with innocence . . . cannot be viewed as favorable to the accused." Id. (rejecting the

language in Ward v. Silverberg, 652 N.E.2d 914, 85 N.Y.2d 993, 994, 629 N.Y.S.2d 168 (1995), Hollender v. Trump Vil. Coop., 448 N.E.2d 432, 58 N.Y.2d 420, 461 N.Y.S.2d 765 (1983), and MacFawn v. Kresler, 666 N.E.2d 1359, 88 N.Y.2d 859, 644 N.Y.S.2d 486 (1996) implying that plaintiff had to affirmatively prove her innocence to maintain a malicious prosecution claim). Accordingly, the Court reversed and remanded the case to the Supreme Court. Although the Smith-Hunter court limited its holding

somewhat to the speedy trial context, its analysis and rationale is instructive. Similarly the Hollender decision also aids the Court Hollender, 448 N.E.2d at 435 ("[I]n a

in reaching its decision.

malicious prosecution action, it is for the one who brings the suit 20

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 21 of 33

to establish that the criminal proceeding allegedly instigated by the defendant terminated in favor of the accused. Indeed, it is

`only when [the] final disposition is such as to indicate innocence' that this burden is met." (internal quotation marks and citations omitted)). The Court reads the Crimmins decision, together with the more recent decisions in Smith-Hunter and Hollender not as a per se rule that 440.10 dismissal can never constitute a favorable

termination. Instead, Crimmins states that a 440.10 dismissal alone does not necessarily establish a defendant's innocence such that he may automatically satisfy the favorable termination requirement. Where, however, the new evidence justifying 440.10 relief is DNA evidence that strongly implicates defendant's innocence, and

evidence that other damning material that was presented at trial may have been planted, it is possible that 440.10 dismissal could constitute favorable termination for purposes of bringing a

malicious prosecution claim.

See generally Smith-Hunter v. Harvey,

734 N.E.2d 750, 752, 95 N.Y.2d 191, 195, 712 N.Y.S.2d 438, 440 (2000); Hollender v. Trump Vil. Coop., 448 N.E.2d 432, 58 N.Y.2d 420, 461 N.Y.S.2d 765 (1983). In this case, for purposes of defeating Defendants' Rule 12(c) motion, Plaintiffs have gone above and beyond the requirements of Smith-Hunter. III. Kogut's Confession and Collateral Estoppel Kogut's confession was perhaps the most significant piece 21

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 22 of 33

of evidence offered by the County in Plaintiffs' First Trials.

In

the case now before the Court, Kogut's confession plays a similarly pivotal and troubling role. Defendants argue that the confession

(1) was determined to be voluntary in prior state court proceedings, (2) established probable cause for Plaintiffs' arrests and

prosecutions, (3) cannot be relitigated because of the doctrine of collateral estoppel, and (4) provides a defense against many of Plaintiffs' claims here. collateral estoppel is Plaintiffs, on the other hand, argue that inapplicable with regard to Kogut's

confession, because, in light of the recently discovered evidence, Plaintiffs did not have a full and fair opportunity to litigate the issue of the voluntariness of the confession. A. Collateral Estoppel Under New York Law In applying the doctrine of issue preclusion "federal court[s] must . . . [utilize] the collateral estoppel rules of the state which rendered the judgment." 607 (2d Cir. 1989). Owens v. Treder, 873 F.2d 604,

Accordingly, this Court must apply New York law

to determine the preclusive effect of the prior state criminal judgment. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465

U.S. 75, 81, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984); Allen v. McCurry, 449 U.S. 90, 95-96, S. Ct. 411, 66 L. Ed. 2d 308 (1980). In New York, to invoke the doctrine of issue preclusion, a plaintiff must prove: "First . . . that the identical issue was necessarily decided in the prior action and is decisive in the 22

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 23 of 33

present action[, and] [s]econd, [that] the party to be precluded from relitigating an issue . . . had a full and fair opportunity to contest the prior determination." D'Arata v. N.Y. Cent. Mut. Fire

Ins. Co., 564 N.E.2d 634, 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24 (1990) (citing Kaufman v. Lilly & Co., 482 N.E.2d 63, 65 N.Y.2d 449, 455­56, 492 N.Y.S.2d 584 (1985)); see also Green v. Montgomery, 219 F.3d 52, 55 (2d Cir. 2000). and the determination is When a court makes a "final judgment, essential to the judgment, the

determination is conclusive."

Restatement (Second) of Judgments §

27 (1980) (emphasis added); see also Owens v. Treder, 873 F.2d at 607. In Owens, the Second Circuit clearly articulated the application of the first part of the test. Owens involved a

Plaintiff who brought a Section 1983 action alleging that his prior confession was false and had been coerced due to police brutality. Owens, 873 F.2d at 605. arguing that the issue Defendants moved for summary judgment of the voluntariness of Plaintiff's

confession was precluded since it had been litigated at Plaintiff's prior criminal trial and affirmed on appeal. Id. at 606. The

District Court held that since the Appellate Division, Second Department, in affirming Plaintiff's conviction, failed to make a special finding on the issue of the voluntariness of the confession, the issue was not precluded. emphasized that "[h]ad [the Id. at 612. Appellate 23 However, the Court specifically

Division]

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 24 of 33

addressed

the

suppression

issue,

we

would

have

no

problem

in

determining that collateral estoppel would apply."

Id. at 610­11

(noting that collateral estoppel did not apply to the issue of the voluntariness of the confession because the Appellate Division's decision was ambiguous and "federal district and appellate courts should not attempt to divine the unspoken intent of state courts rendering ambiguous decisions"). B. Collateral Estoppel does not Prevent any of the Plaintiffs from Relitigating the Issue of the Voluntariness of Kogut's Confession; Although the Identical Issue was Necessarily Decided in the Prior Action, a Vacated Judgment Cannot have any Preclusive Effect on Subsequent Proceedings In the Court's prior Order, the Court noted that the Appellate Division, Second Department, made a specific finding that the "totality of the defendant's statements were [voluntarily] made . . . ." New York v. Kogut, 176 A.D.2d 757, 757­58, 575 Owens made clear that an unambiguous

N.Y.S.2d 96 (App. Div. 1991).

Appellate Division ruling that the trial court properly refused to admit a confession after a suppression hearing "would have barred relitigation of the coercion issue in th[e] § 1983 action." 611. Furthermore, it held that contrary to the Id. at

Plaintiffs'

contention, the Appellate Division's judgment cannot be invalidated by Kogut's subsequent acquittal. This finding was in error. "[A]

vacated judgment, by definition, cannot have any preclusive effect in subsequent litigation." Boston Firefighters Union v. Boston

Police Patrolmen's Ass'n, 468 U.S. 1206, 1211, 104 S. Ct. 3576, 82 24

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 25 of 33

L. Ed. 2d 874 (1984); United States v. Lawson, 736 F.2d 835 (citing United States v. Ayres, 76 U.S. 608, 19 L. Ed. 625 (1869)). Court's inquiry need only go this far.10 Only Kogut's ability to relitigate the issue of collateral estoppel is now at issue. In his December 2004 decision, Judge Ort stated: Defendant requests a "rehearing" or a de novo suppression hearing based upon the newly discovered scientific evidence and an alleged Rosario violation, the failure to turn over the charts of defendant's polygraph examination. The People argue that the court is barred from ordering a new suppression hearing by the law of the case doctrine. See People v. Bilsky, 95 N.Y.2d 172 (2000). However, law of the case is not an "inflexible rule." People v. Leone, 44 N.Y.2d 315, 320 (1978) (Fuchsberg, J., Concurring). "In criminal no less than in civil cases, where circumstances require it, one Judge has the power to deviate from a decision made by another." 44 N.Y.2d at 321. Since the trial court has discretion to reopen a suppression hearing after an appellate court has remitted the case for a new trial, People v. Hults, 150 A.D.2d 726 (2d Dep't 1989), it should have similar discretion upon the granting of a motion to vacate a judgment of conviction. However that may be, defendant presents no facts militating in favor of the granting of a new hearing. While the newly discovered scientific evidence tends to rebut the alleged motive for committing the crime and discredits the forensic evidence connecting defendants to the murder, it does not bear on the voluntariness of defendant's confession. Moreover, the Court notes that, to the extent that defendant denies making tbe statement attributed to him by the Police, the issue of whether the statement was in fact made by the defendant is reserved for trial and beyond tbe scope of a suppression hearing. People v. Washington, 51 N.Y.2d 25
10

The

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 26 of 33

Accordingly, collateral estoppel does not bar any of the Plaintiffs voluntary. IV. Plaintiffs' Claims of Due Process Violations Based on Falsified Evidence and Falsified Documents The Plaintiffs allege that the Defendants committed the following acts with regards to falsified evidence: (1) coerced confessions/statements from Kogut, Restivo, and other witnesses; (2) planted Fusco's hair with other hairs found in Restivo's van; and (3) withheld material exculpatory evidence from the prosecution. (Restivo & Halstead Am. Compl. ¶¶ 138-40.) Claims of falsified evidence only constitute a cause of action under Section 1983 when the falsified evidence results in a deprivation without due process of law in violation of the Fifth Amendment. Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000). In from relitigating whether Kogut's confession was

order to establish a claim for falsified evidence a plaintiff must demonstrate the following: (1) that defendant utilized misconduct in order to procure false evidence; (2) that the plaintiff suffered a deprivation of liberty; and (3) that the "deprivation of liberty may

214, 221 (1980). According to the Court's reading, based on the newly discovered evidence, Judge Ort clearly found that the confession was false, weighing heavily against Defendants' arguments that Judge Ort found in their favor. (See Kogut Mem. in Supp., Ex. A at 1 ("[I]t is the finding of this court that I do not believe that the question hairs were left in the van on or about November 10th of 1984.").) 26

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 27 of 33

be

considered

a

legally

cognizable

result

of

the

initial

misconduct."

Id. at 348.

This causation requirement is consistent

with Supreme Court precedent, which establishes "that section 1983 claims `should be read against the background of tort liability that makes a man responsible for the natural consequences of his

actions.'"

Id. at 349-50 (citing Malley v. Briggs, 475 U.S. 335,

344-45 n.7, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)). Upon reconsideration of the Court's August 2009 Order, the Court finds that collateral estoppel does not bar Plaintiffs from relitigating the issue of the voluntariness of Kogut's confession. Thus, the confession, along with the other facts alleged by

Plaintiffs, satisfy the first prong.

Similarly, assuming these

alleged facts to be true, Plaintiffs easily satisfy the second and third prongs. V. Statute of Limitations for Malicious Prosecution Claim and Due Process Violation Claims In its August 2009 Order, the Court held that to determine the applicable statue of limitations, a federal court must look "to the law of the state in which the cause of action arose." Wallace

v. Kato, 549 U.S. 384, 387, 127 S. Ct. 1091, 1094, 166 L. Ed. 2d 973 (2007). The time at which accrual begins, however, "is a question Id.

of federal law that is not resolved by reference to state law." at 388.

In the present action, the parties correctly agree that, in

New York, the general statute of limitations for personal injury claims is three years. See N.Y.C.P.L.R. § 214(5). 27 Thus, the only

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 28 of 33

issue presented is when accrual began. When state law is not directly on point, Section 1983

actions "are governed by federal rules conforming in general to common-law tort principles." Wallace, 549 U.S. at 388 (citing Heck, 512 U.S. at 483). Thus, utilizing this standard, a claim's statute

of limitations begins to accrue "when the plaintiff has `a complete and present cause of action.'" Id. (citing Bay Area Laundry and Dry

Cleaning Pension Trust Fund v. Ferber Corp. of Cal., 522 U.S. 192, 201, 118 S. Ct. 542, 139 L. Ed. 2d 553 (1941)). Because claims of falsified evidence constitute a cause of action under Section 1983 only when the falsified evidence results in a deprivation without due process of law, Zahrey, 221 F.3d at 349, they become "complete and present" after the underlying deprivation is terminated. Wallace, 549 U.S. at 388. On one hand, Defendants maintain that the accrual date for the Plaintiffs' cause of action began on June 11, 2003; the day their convictions were vacated and they were released. On the other See

hand, Plaintiffs' claim that the proper date for accrual is December 29, 2005, the day their Indictments were dismissed. In its August Upon

2009 Order, the Court agreed with Defendants' position.

reconsideration, the Court finds that its previous determination was in error. Citing the Supreme Court's holding in Wallace, the Court previously held that Plaintiffs' claims accrued at the time of their 28

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 29 of 33

release because, it found, that Plaintiffs could have only suffered a deprivation of due process until they were released from prison. This holding was incorrect for two reasons: (1) the Indictments were still pending against the Plaintiffs until their dismissal,11 and (2) Plaintiffs were released, but were still being deprived of their property in that each Plaintiff was required to post bond and suffer other restrictions of their liberty to secure release. Accordingly, the Court finds that Plaintiffs' due process claims for falsified evidence and malicious prosecution claims were timely. Additionally, in its August 2009 Order, the Court found

that because Plaintiffs only alleged facts against Defendant Milton The termination dates of the Indictments are relevant to Plaintiffs' federal and state malicious prosecution claims, and their claims for due process violations. With regard to the malicious prosecution claims pursuant to § 1983, Plaintiffs' claims could not accrue until they obtained a favorable termination. As stated previously, the favorable termination came at the time the Indictments were dismissed. DiBlasio, 102 F.3d at 658. Similarly, for Plaintiffs' state law malicious prosecution claims, they are required to demonstrate favorable termination; however, they could not demonstrate the favorable termination requirement until after they could no longer be prosecuted. See Britt v. Legal Aid Soc., Inc., 95 N.Y.2d 443, 448, 741 N.E.2d 109, 718 N.Y.S.2d 264 (2000) ("A disposition in a criminal proceeding that allows or contemplates renewal cannot serve as a foundation for a malicious prosecution action because it cannot be determined that the prosecution was unjust or unfounded until it is terminated."); Robbins, 30 N.E. at 978 ("[W]here the criminal proceeding is terminated favorably to the accused, or without his conviction, so that there can be no further proceeding upon the complaint or indictment, and no further prosecution of the alleged offense without the commencement of a new proceeding, then there has been a sufficient termination thereof to enable him, proving the other requisite facts, to maintain an action for a malicious prosecution."). 29
11

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 30 of 33

Gruber ("Gruber") relating to the falsification of evidence, all claims against Gruber should have be dismissed. However, upon

reconsideration, Gruber should not have been dismissed from the case. Therefore, going forward, Plaintiffs' claims for

falsification of evidence against Gruber are reinstated. VI. Monell-based Claims To prevail against a municipality in a Section 1983 action, a plaintiff must plead and prove three elements: (1) an official policy or custom that (2) caused the plaintiff to be subjected to (3) a denial of a constitutional right. See Hartline

v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008); Zahra v. Southold, 48 F.3d 674, 685 (2d Cir. 1995); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983); see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1977). "Local

governing bodies . . . may be sued for constitutional deprivations pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Monell, 436 U.S. at 690-91 (citations omitted). A

plaintiff also has the burden of showing "a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385, 109 S. "It is only when the

Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989).

`execution of the government's policy or custom . . . inflicts the injury' that the municipality may be held liable under § 1983." 30

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 31 of 33

Springfield v. Kibbe, 480 U.S. 257, 267, 107 S. Ct. 1114, 1119, 94 L. Ed. 2d 293 (1987) (O'Connor, J., dissenting). Having now found that Plaintiffs have sufficiently pled underlying constitutional violations, and taking all facts alleged in the Complaints as true, the Court finds that Plaintiffs have sufficiently pled their Monell claims to withstand Defendants' motion to dismiss. Accordingly, Defendants' motion to dismiss is

DENIED on this ground. VII. Kogut's Battery and Negligent Infliction of Emotional Stress Claims At the outset, the Court notes that Kogut altogether fails to satisfy the reconsideration standard with regard to his battery claim. heading In fact, Kogut's argument on this point consists of a point in his table of contents alone, with no accompanying

argument.

Therefore, that claim is DISMISSED as time-barred. Under New York law, it is well settled that the

"`circumstances under which recovery may be had for purely emotional harm are extremely limited and, thus, a cause of action seeking such recovery must generally be premised upon a breach of a duty owed directly to the plaintiff which either endangered the plaintiff's physical safety or caused the plaintiff fear for his or her own physical safety.'" Jason v. Krey, 2009 WL 614961, at *1 (App. Div.

Mar. 10, 2009) (quoting Creed v. United Hosp., 190 A.D.2d 489, 491, 600 N.Y.S.2d 151 (App. Div. 1993)); see, e.g., Friedman v. Meyer, 90 A.D.2d 511, 512, 454 N.Y.S.2d 909 (App. Div. 1992), appeal dismissed 31

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 32 of 33

59 N.Y.2d 763 ("plaintiff[`s] wife may not recover for emotional and psychic harm as a result of [a] stillborn birth"). In his motion

papers Kogut states: "The plaintiff's complaint is littered with allegations of fear and physical and emotional intimidation, a fact apparently recognized by this Court as the lack of these elements is not referenced by the Court at all." Despite his assertions that his (Kogut's Mem. in Supp. 24.) complaint is littered with Kogut

allegations, interestingly, he fails to cite to any of them.

goes on to state that he is puzzled by the Court's dismissal of the claim because he failed to assert any physical injury in his Complaint. He states: "Simply put, physical injury is not an

element that need be established for this cause of action to succeed." (Id.) In general, New York courts have exhibited a "longstanding reluctance to recognize causes of action for negligent infliction of emotional distress, especially in cases where the plaintiff suffered no independent physical or economic injury. . . . [because] tort liability is not a panacea capable of redressing every substantial wrong." Broadnax v. Gonzalez, 2 N.Y.3d 148, 153, 809 N.E.2d 645,

648, 777 N.Y.S.2d 416, 419 (2004) (carving out an exception to the general rule, and allowing expectant mothers to recover damages for emotional stress in cases involving medical malpractice resulting in miscarriage or stillbirth); see also Mobley v. King, 4 N.Y.3d 627, 637, 830 N.E.2d 301, 304, 797 N.Y.S.2d 403, 406 (2005) (recognizing 32

Case 2:06-cv-06695-JS-WDW Document 83

Filed 12/11/09 Page 33 of 33

the holding in Broadnax/Fahey as "a narrow one, intended to permit a cause of action where otherwise none would be available to redress the wrongdoing that resulted in a miscarriage or stillbirth.") Based on the foregoing, Kogut fails to establish that the Court overlooked important "matters or controlling decisions" that would have influenced its prior decision on this issue. Therefore,

Kogut's claim for negligent infliction of emotional distress is DISMISSED. CONCLUSION The Court finds Defendants' remaining defenses without merit for purposes of the Rule 12(c) motion. Accordingly, for the

foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. The Court permits the following claims to

continue forward: Plaintiffs' malicious prosecution claims relating to their first trial, (2) Kogut's malicious prosecution claim relating to his second trial, (3) Plaintiffs' Due Process claims, (4) Plaintiffs' Monell Claims, (5) Kogut's negligent supervision claim, (6) Kogut's claim based on respondeat superior; and (6) Restivo and Halstead's conspiracy claims. SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: December 11 , 2009 Central Islip, New York

33