Kogut v. The County of Nassau et al

Filing 86

MEMORANDUM AND ORDER - Based on the December 10 proceeding and the Courts December 11 Order, Restivo and Halsteads claims for respondeat superior based on their state law malicious prosecution claims remain DISMISSED. This in no way, however, affects the Countys potential liability under any of Plaintiffs remaining theories. Ordered by Judge Joanna Seybert on 12/21/2009. (Coleman, Laurie)

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)

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: On December 10, 2009, the Court held oral argument on Plaintiffs' motions for reconsideration. At the outset of that

proceeding, the Court asked the Plaintiffs, on the record, to which claims their motions applied. Memorandum and Order Granting 2 The next day, the Court issued a in part and Denying in part

Plaintiffs' motions for reconsideration ("December 11 Order").

In

that Order, the Court memorialized its prior conversation with Plaintiffs' counsel, held at the proceeding, as to which claims remained dismissed: 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. (Dec. 11 Order 10, n.8.) On December 15, 2009, counsel for

Plaintiffs Restivo and Halstead submitted a letter to the Court, seeking clarification of the December 11 Order as it applies to their respondeat superior claims against Nassau County. Based on the December 10 proceeding and the Court's December 11 Order, Restivo and Halstead's claims for respondeat superior based on their state law malicious prosecution claims remain DISMISSED. This in no way, however, affects the County's

potential liability under any of Plaintiffs' remaining theories. SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: December 21 , 2009 Central Islip, New York 3