Brinn v. Syosset Public Library et al

Filing 38

EXHIBIT by Joshua Brinn. Related document: 36 Affidavit in Opposition to Motion filed by Joshua Brinn. (Attachments: # 1 Exhibit Part 2) (Glueckert, Lisa)

Brinn v. Syosset Public Library et al

Doc. 38

EXHmITl

Dockets.Justia.com

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National Insurance Group
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FACSIMILE TRANSMISSION
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Date

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04/0812008
1 of

Attention of:

Randi/Joshua Brinn Morris Duffy Alonso & Faley
2127663252
Betty Winkler

Company:
FAX#: From: Office or Dept.:

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NYMRO Claims

P.O. BOX 6589, UTICA, NY 13504~6589 [phone]
(315)266~109

OffIce Phone:

Claim#: 0001026555
Subject.

Return Fax:

General Release

Confidentiality Notice: Ttl. inlormnon and

ttl)' documents .ccompan~ng this f.c:slmile m."8ge is intended only fOl the use of Ihe indivtdual or whom'lt Is sddre...d and may conlaln irlformation !hit is confidentiallnd llIOtlCled from disclosure bylaw. If )'0'" lite nollh. Intended reciClient. you n I'oereby notlt'lecllhat any di.clOsure. copying cIIatrlbUllon or laking of any action iii l'8~snce Dn tna conten\5 this teleoop.d intormation II strlcUv prohlbltect. If you llave received thi. communi~lion in error. plea. notify US immediatelY 10 that we can arranoe for the ,alum of the orlalnel document to UI at no lXJst to YOU.

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Attached please find a

copy of the general release we discussed.
Send me the

Please heve Mr. arinn sign the general release and have his signature notarIZed.

original and fax me a copy.
The $10 mentioned in the release is standard language and no money will be paid to Mr. Brinn. Any questions, please contact me at 516479 5116. Thank you.

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On etle {~. day of Aft I l - , 2008, before me, en. undersigned, a Hocary Pu.o11c in and for said Stat., perllonally appeared uo..hua Brinn, personally known to me or proved to me on
the " · · 1 s

name ie eubacrib.d to the within instruMent and acknowledged to me that he .. executed the aame in hi. capiu:ity, and t.hat by his signature on the in8~rument, che 1nd1v1dua1, or the person upon behalf of which ~e individual acted, executed the instrument:..

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

--------------------------------------x
JOSHUA BRINN, Plaintiff, -against- SYOSSET PUBLIC LIBRARY, MORRIS DUFFY ALONSO &: FALEY, UTICA NATIONAL INSURANCE COMPANY, JUDITH LOCKMAN, I Director of the' SYOSSET PUBLIC LIBRARY, in her individual and professional capacities, ROBBRT GLICK, Trustee of the SYOSSET PUBLIC LIBRARY in his individual and professional capacities, Defendants. 0 9 - 0 1 1 5 1 (TCP) (WDW)

--------------------------------------x

DECLARATION OF JOSHUA BRINN, Esq.

LAW OFFICE OF RAYMOND NARDO
129 THIRD STREET
MINEOLA, NY 11501
[phone]
ATTORNEY FOR
PLAINTIFF
TO: Peter Contini, Esq. L'Abbate, Balkan, Colavita Contini, L.L.P. 1001 Franklin Avenue Garden City, NY 11530 Thomas A. Catalano, Esq.
Lester Schwab Katz &: Dwyer
120 Broadway
New York, NY 10271
Sherri N. Pavloff, Esq. FARBER BROCKS &: ZANE L.L.P. 51 Charles Street, Second Floor Mineola, NY 11501

&:

RAYMOND NARDO, Eag.

ATTORNEY FOR PLAINTIFF 129 Third Street Mineola, NY 11501
(516) 248 -2121

UNITED STATES DISTRICT COURT
for the
EASTERN DISTRICT OF NEW YORK

JOSHUA BRINN
Plaintiff,
09-01151 (TCP) (WOW)

-againstSYOSSET PUBLIC LIBRARY, MORRIS DUFFY ALONSO & FALEY, UTICA NATIONAL INSURANCE COMPANY,JUDITH LOCKMAN,in her individual and professional capacities, ROBERT GLICK, Trustee if the SYOSSET PUBLIC PUBLIC LIBRARY in his individual and professiqnal capacities
~

"

Defendants.
BRIEF
O~ BEHALF OF PLAINTIFF IN OPPOSITION TO THE L:;I:BRARY DEFENDANTS' MOTION TO DISMISS
1

Dated: October 12, 2009

TABLE OF CONTENTS
TABLE OF AUTHORITIES STATEMENT OF FACTS ARGUMENT
ii
1

2

POINT I 2 PLAINTIFF'S CLAIM SETS FORTH PLAUSIBLE CLAIMS OF RELIEF UNDER RULE 8 OF THE FEDERAL RULES OF CIVIL PROCEDURE 2 POINT I I . . . . . . 8 THE PLEADING ALLEGES A PLAUSIBLE VIOLATION OF THE FIRST AMENDMENT . . . . . . . . . . .. .. 8 A. B. Plaintiff's Grievance Need not Raise a ~Matter of Public Concern" ......
.8

Plaintiff Pleads a Valid First Amendment Retaliation Claim because he was Terminated for Petitioning the Government 10 13 13

POINT III ................ QUALIFIED IMMUNITY DOES NOT PROTECT THE INDIVIDUAL DEFENDANT IN THEIR INDIVIDUAL CAPACITIES

POINT IV . . . . . . . ........... 16 PLAINTIFF PROPERLY PLEADS THAT DEFENDANTS INTENTIONALLY , INTERFERED WITH A BUSINESS OPPORTUNITY BY TERMINATING HIM FOR REFUSING TO SIGN A RELEASE IN FAVOR OF THE LIBRARY . 16 POINT V . . . . . ... . 22 PLAINTIFF PLEADS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 22 CONCLUSION
23

--------

TABLE OF AUTHORITIES
A s h c r o f t v. Iqbal, _ _ U.S. , 129 s.Ct. 1937 (2009)
. . . . .7

Atherton v. 21 East 92 nd Corp., 149 A.D. 2d 354, 539 N.Y.S.2d 933 (lst Dept. 1989) .... .... 23 Bell Atlantic corp. v. Twombly, 550 U.S. 544 (2007)
.2

Cioffi v. Averill Park Central School District, 444 F.3d 158 (2d Cir. 2006) ............. .8 Collins v. Goard, 428 F. Supp.2d 399 (S.D.N.Y. 2006) Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957) Connell v. Signoracci, 153 F.3d 74 (2d Cir. 1998) Connick v. Myers, 461 U.S. 138 (1983) ... 11 .2 11 12 11 13 10

Dawes v. Walker, 239 F.3d 489 (2d Cir. 2001) Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009) Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)

Friedman v.Coldwater Creek, Inc., 551 F.Supp.2d 164 (S.D.N.Y. 2008) . . .'. . . . . . . . . . ...... 16 Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980) 2

Ha1io v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759 (2d Dep't. 1961) .... 23 Harlow v. Fitzgerald, 457 U.S. 800 (1982) Hoesten v. Best, 34 A.D.3d 143, 821 N.Y.S.2d 40 (First Dep't. 2006) . . . .. Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350 (1993) Jermosen v. Smith, 945 F.2d 547 (2d Cir. 1991) Kenney v. Genesee Valley Board of Cooperative Educational Services, 2008 WL 343110, 97-CV-6442, (W.D.N.Y. Feb. 6,2008) La F a r o v. New York Cardiothoracic Group, PLLC, 570 F.3d 471 (2d
c

13 16 22 13 12

ii

Cir. 2009)

.3

Lawrence v. Union of Orthodox Jewish Corporations of America, 32 A.D.3d 304, 820 N.Y.S.2d 60 (In Dept. 2006) 19 Lewis v. Cohen, 165 F.3d 154 (2d Cir. 1999 13, 14

Lobel v. Maimonides Medical Center, 39 A.D. 3d 275, 835 N.Y.S.2d 28 (2007) ' . ' . . .... .... 20 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003)
. . . . . ... . . . . . . . . .. .3

Murphy v. American Home Prods. Corp., 58 N.Y.2d 293 (1983) Rankin v. McPherson, 483 U.S. 378 (1987)

22
9

Sanchez v. Orozco, 178 A.D. 2d 391, 578 N.Y.S.2d 145 (1 s t Dept. 1991 . . .. . . . . . . . ...... 23 Shabtai v. Levande, 38 Fed. Appx. 684 (2d Cir. 2002) Snyder v. Sony Music Entertainment, Inc., 252 A.D.2d 294, 684 N.Y.S.2d 235 (1st Dep't 1999) . Sousa v. Roque, 2009 WL 2568949 (2d Cir. 2009) Swierkiewicz v. Soremna N.A., 534 U.S. 506 (2002) Taylor v. New York University, 7 A.D.3d 401, 776 N.Y.S.2d 474 (pt D e p ' t . 2 0 0 4 ) .................. United Euram Corp. v. Occidental Petroleum Corp., 123 Misc.2d574, 474 N.Y.S.2d 372 (Sup. Ct. 1984) United Mine Workers v. Illinois State Bar Ass'n, 88 S.ct. 353, 19 L.Ed.2d 426 (1967) . 389 U.S. 217, 10 .2 16 12 11 16 20

White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2d Cir. 1993) ..... 12 ..............." Williams & Co. v. Collins, Tuttle & Co., 6 A.D.2d 302, 176 N.Y.S.2d 99 (1st Dep't. 1958) .... . . . .. Williams v.Town of Greenburgh, 535 F.3d 71 (2d Cir. 2008) Wolff v. To~n of Mount Pleasant, 2009 WL 1468691, 06 Civ. 3864 (CS) (LMS) ( S ' . D . N . Y . Apr 27, 2009) ..........
iii

18 9 9

Ying Jing Gap v. City of New York, 996 F.2d 522

(2d Cir. 1993)
13

iv

STATEMENT OF FACTS
The facts are set forth in the Complaint, annexed as Exhibit A to the Granofsky Declaration, and the Brinn Declaration, submitted herewith. In addition, plaintiff is withdrawing his

second cause of action alleging a violation of due process and his fifth cause of action alleging a breach of covenants of good faith and fair dealing.

ARGUMENT POINT I PLAINTIFF'S CLAIM SETS FORTH PLAUSIBLE CLAIMS OF RELIEF UNDER RULE 8 OF THE FEDERAL RULES OF CIVIL PROCEDURE Rule 8 (a) (2) of the Federal Rules of Civil Procedure requires a pleading to state "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8 Fed.R.Civ.P. This pleading "statement must be concise 'because

unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.'" Shabtai v. Levande, 38 Fed. Appx. 684 2002) (internal citation omitted). (2d Cir.

As set forth in Geisler v.

Petrocelli, '616 F.2d 636, 639 (2d Cir. 1980) (emphasis added): The office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof. As formulated in Conley v. Gibson, 355 U.S. 41, 45, 78 S.ct. 99 (1957), a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), the United States Supreme Court held that a plaintiff must "state a claim for relief that is plausible on its face." Further,

"[o]n a motion to dismiss or for judgment on the pleadings we

2

'must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor.'" LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir.

2009), citing, Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).
Plaintiff's complaint is a short and

plain statement which, drawing all inferences in favor of plaintiff, establishes a plausible claim for relief. The Library Defendants complain that plaintiff does not allege "he
~as

present during the alleged conversation between

[defendant] Glick and McMahon concerning him, nor does he allege that he has any personal, or even hearsay, knowledge that the

conversation actually took place" (Library Defendants brief, p. 17). However, there is no such pleading requirement. Further,

if the Library Defendants are able to demonstrate any technical
pleading defect" plaintiff seeks leave of the court to replead. Plaintiff's allegations, even as characterized by the Library Defendants, are factual allegations - n o t legal conclusions' - w h i c h suffice to sustain a pleading. in Bell Atlantic Corp. V. Twombly, 550 U.S. 544 As set forth

(2007), "a

complaint attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual allegations . . pleads, in relevant part, as follows: 23. Upon information and belief, after receiving the First Notice of Claim, Judith Lockman, Director of the Syosset Public

"

Plaintiff's complaint

3

Library, directed Robert Glick, Esq., a Member of the Board of Trustees of the Syosset Public Library, to call plaintiff at his place of work.

24. On or about January 10, 2008, Glick phoned plaintiff and advised him to drop the First Notice of Claim and also stated that Glick knew the attorneys at MORRIS DUFFY ALONSO & FALEY and that it would be very bad for plaintiff to pursue the Notice of Claim 25. On or about January 11, 2008, Glick made phone calls to plaintiff at his workplace, further demanding that plaintiff discontinue the Notice of Claim.
u~solicited

Upon information and belief, Glick
contacted Kevin Mahon, Esq., a partner at
MORRIS DUFFY ALONSO & FALEY to further
interfere with plaintiff's employment and
d~mand that the First Notice of Claim be
withdrawn.
27. During these conversations, Mr. Glick
also disclosed information to a third party
a~out plaintiff's confidential library
records.
28. Betty Winkler is a Claims Examiner
employed by defendant UTICA NATIONAL
INSURANCE COMPANY.
29. On March 19, 2008, at the direction of defendant SYOSSET PUBLIC LIBRARY, and at the direction of her supervisor at UTICA MUTUAL INSURANCE COMPANY, Robin Nelson, Betty W~nkler, also contacted partners of defendant MORRIS DUFFY ALONSO & FALEY to exert pressure on plaintiff to withdraw his First Notice of Claim. 4

26.

30. At various times from March 19, 2008 through April 16, 2008, Faley, Alsono, and DeGennaro, partners of MORRIS DUFFY ALONSO & FALEY, demanded that plaintiff withdraw his Notice of Claim against defendant SYOSSET PUBLIC LIBRARY or he would be terminated. 31. Ultimately, plaintiff withdrew his First Notice of Claim, due to the threats regarding his employment.

On April 16, 2008, Andrea Alonso, Esq. directed plaintiff to sign a partial document which was apparently the signature page of a general release which would waive his claims against the defendant SYOSSET PUBLIC LIBRARY.
32.

33. Plaintiff refused to sign this document.

34. Defendant MORRIS DUFFY ALONSO & FALEY tJrminated plaintiff because he refused to sign the general release.
35. Subsequently, plaintiff filed the Second Notice of Claim. Defendants, all acting under color of law, terminated plaintiff for the exercise of his First Amendment Rights, in violation of the First and Fourteenth Amendments to the United States Constitution, and are all liable under 42 U.S.C. Section 1983. This caused plaintiff to suffer economic and non e 9 0 n o m i c damages. (Exhibit A to Granofsky Declaration). alleges that, In sum, the complaint

36.

on or about January 10 and January 11, 2008, the

Individual Library Defendants phoned plaintiff, or were directed to phone plaintiff, and threatened that it would be "very bad"

5

for him to pursue his Notice of Claim.

Thereafter, Library

Defendant "Glick contacted Kevin Mahon, Esq., a partner at MORRIS DUFFY ALONSO & FALEY, ("Morris DuffyU) to further interfere with
u

plaintiff's employment.

Glick also contacted defendant Utica

Mutual Ins. Co., a client of Morris Duffy, to further exert undue economic pressure upon plaintiff's employment as an associate attorney at Morris Duffy. Morris Duffy obeyed the overtures of

Glick and Utica, and directed plaintiff to withdraw his Notice of Claim, and then terminated plaintiff when he refused to sign a general release in favor of Syosset Public Library. Since defendants urge this Court to consider evidence outside, but referred to, in the pleadings, the Court should also consider the fax cover page sent from the Library's counsel (Spellman Rice) to Defendant Utica National Ins. Co. ("Utica H ) ,

to Defendan~ Morris Duffy, requesting that Morris Duffy "have Mr. Brinn sign the General Release H (Exhibit 1 to Brinn Declaration). In violation of New York Penal Law, the space for plaintiff's signature was pre-notarized, and plaintiff was never shown the complete content of what appeared to be a release (Brinn Declaration). This type of deceit, fraud, and misrepresentation

demonstrates that all three defendants conspired to terminate plaintiff because he refused to sign a release in favor of the Library. Therefore, the pleading plausibly establishes the

underlying causes of action.

6

Plaintiff's pleading, supplemented by the fax cover page and pre-notarized signature page of the Release, details the conversations between Glick and plaintiff, Morris Duffy, and Utica, gives dates where available, and demonstrates the undue coercive pressure and unlawful tactics that Defendants exerted upon plaintiff simply because plaintiff sought to redress his suspension from the Library, and because he would not execute a release in favor of the Library regarding this grievance. These

factual and. legal allegations are more than speculative; they establish "more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, __ U.S. 1949 (2009), citing, Twombly, 550 ,129 S.Ct. 1937,

u.s.

at 556, and are sufficient

to satisfy the Rule 8 pleading requirement.

7

POINT II THE PLEADING ALLEGES A PLAUSIBLE VIOLATION OF THE FIRST AMENDMENT
~

Plaintiff's Grievance Need not Raise a "Matter of Public Concern" The First Amendment to the United States Constitution

prohibits laws abridging freedom of speech and abridging the right to petition the Government for redress of grievances. The

Library defendants correctly concede that "[aJ notice of claim, being a petition to the government for redress of grievances, could conceivably form the basis for a claim under the Right to Petition Clause" (Library Defendants, p. lO). Defendants
~hen

The Library

assert that "not every governmental petition is In order for a petition to be

protected by the First Amendment.

actionable under the First Amendment, it must relate to a 'matter of public concern'" Id. The Library Defendants rely on two cases

where public employees alleged First Amendment violations in the workplace. At best, the Library Defendants misapprehend the law.

Since public employees may express opinions on a variety of matters in the workplace, the First Amendment protects only those matters which are a "matter of public concern." This Pickering

test evolvea because "a public employer has a distinct interest in regulating the speech of its employees in order to ensure and promote the 'efficiency of the public services it performs.'" Cioffi v. Averill Park Central School District, 444 F.3d 158, 162

8

(2d Cir. 2006), citing, Rankin v. McPherson, (1987). employee:

483 U.S. 378, 384

However, in the instant case, plaintiff was not a public
p~aintiff

did not work for the Library; he was an Consequently, the expression

associate attorney at Morris Duffy.

of opinions by an employee in the pUblic workplace, and the efficiency and potential disruption of a pUblic employer's services are not implicated - t h e Pickering test does not apply. Where plaintiff is not a public employee at the time of his First Amendment speech, the Second Circuit has ruled that,
~[b]ecause

[plaintiff] was not a public employee when he criticized [defendant] Bland, his speech need not have been on a matter of public concern for it to fall within the protection of the First Amendment for the purposes of this action." Williams v. Town of Greenburgh, 535 F.3d 71 (2d Cir. 2008). Similarly, as set forth

in Wolff v. Town of Mount Pleasant, 2009 WL 1468691 at *6, 06 Civ. 3864 (CS) (LMS) (S.D.N.Y. Apr 27, 2009) (internal citations

omitted) (emphases added), the court held that: [i]n order to maintain a First Amendment retaliation claim, a private citizen complainant must allege that the defendant took some action in response to his or her First Amendment activity that 'effectively chilled the exercise of his [or her] First Amendment right . . . . Differinq from this test, a public employee plaintiff who claims that he or she was retaliated against for exercising his or her First Amendment rights must show that he defendant implemented an 'adverse employment action' against the plaintiff because of his or her engagement in First Amendment activity touchinq upon a
9

matter of pub1ic concern. Although defendants cite Town of Greenburgh, they fail to apprehend that the "matter of public concern" requirement - w h i c h defendants discuss at length in their motion papers by continuously citing inapposite cases involving public employees d o e s not apply to a First Amendment retaliation claim brought by a private citizen. Despite defendants' invitation to do so, the

Court need not "examine the First Notice of Claim, and the October 15,2007 letter referred to therein, and decide whether plaintiff was merely seeking to redress a personal grievance, or was raising a matter of public concern" (Library Defendants brief, p. 8).
~

Plaintiff Pleads a Valid First Amendment Retaliation Claim because he was Terminated for Petitioning the Government Plaintiff alleges a First Amendment retaliation claim

because, as a private citizen, he exercised his First Amendment right to petition the Library by filing a Notice of Claim. As

set forth in Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988): The Supreme Court has described the right to petition government for redress of grievances as 'among the most precious of the liberties safeguarded by the Bill of Rights.' See United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967). Moreover, the right of petition applies with equal force to a Person's right to seek redress from all branches of government. There is no'doubt that the Notice of Claim constitutes a petition

10

to the government for redress of plaintiff's library privileges, which were suspended. Plaintiff's First Amendment retaliation

claim, outside the context of employment, must therefore be analyzed as follows: To survive dismissal, 'a plaintiff asserting First Amendment retaliation claims must advance non-conclusory allegations establishing: (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.' Collins v. Goord, 428 F. Supp.2d 399, 419 (S.D.N.Y. 2006),

citing, Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001),
overruled on other grounds, Swierkiewicz v. Soremna N.A., 534 U.S. 506 (2002).1 In Collins, the Court held that the first

factor was ~leaded because the ~filing of both lawsuits and administrative grievances is constitutionally protected." l.Q.... Similarly, plaintiff's filing of a Notice of Claim (Complaint, 'll 13) satisfies this requirement. Plaintiff pleads the second

.

factor by alleging that all defendants took an adverse action against plaintiff, in concert, (Compl. '.lI'.lI 11, 12, 36) by

compelling him to withdraw the First Notice of Claim and then

I Put another way, plaintiff must plead that "(i) he has an interest protected by the First Amendment; (ii) the defendant's actions were motivated by or SUbstantially caused by the plaintiff's exercise of that right; and (iii) the defendant's action effectively chilled the exercise of the plaintiff's First Amendment rights." Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (citations omitted) .

11

terminating his employment when he refused to sign a document releasing the public Library from liability (Complaint, 11 33, 34). Plaintiff pleads the third factor by alleging that there

was a causal connection between the Notice of Claim and his termination since plaintiff alleges that all defendants terminated him in violation of his Constitutional rights, for filing a Notice of Claim, and refusing to release his claims (Complaint,
~'j[

19-36).

Plaintiff suffered a "chilling effect,"

as set forth in Collins and Wolff when he was terminated because he exercised his First Amendment right to petition a public Library. Consequently, plaintiff pleads a plausible First
-

Amendment retaliation claim 2

h e was terminated for petitioning

the government for redress - w h e t h e r or not his petition relates to a "matter of public concern."3

2 Since, plaintiff's retaliation claim under the New York State Constitution is subject to the same analysis, plaintiff's sixth cause of action should also survive defendants' motion to dismiss. Kenney v. Genesee Valley Board of Cooperative Educational Services, 2008 WL 343110 at *3, 97-CV-6442, (W.D.N.Y. Feb. 6, 2008).
3 Though not relevant, plaintiff's Notice of Claim for refusing him entry and access to a public institution would raise a "matter of pUblic concern." A claim that "at least minimally touch[es] upon a matter of p~lic concern" is sufficient. White Plains Towing Corp. y. Patterson, 991 F.2d 1049, 1060 (2d Cir. 1993). Further, "[w]hether or not speech addresses a matter of public concern 'must be determined by the content; form, and context of a given statement, as revealed by the whole record.'" Sousa v. Rogue, 2009 WL 2568949 (2d Cir. 2009), citing, Connick v. Myers, 461 U.S. 138, 147-48 (1983). In the present matter, an individual seeking access to a public institution may raise a matter of public concern, when the form and context of plaintiff's banishment are taken into account, after the record is developed through discovery.

12

POINT III QUALIFIED IMMUNITY DOES NOT PROTECT THE INDIVIDUAL DEFENDANT IN THEIR INDIVIDUAL CAPACITIES Qualified immunity "generally shields government officials from liability for damages on account of their performance of discretionary official functions 'insofar as their conduct does not violate clearly established statutory or constitutional rights of
~hich

a reasonable person would have known.'" Ying Jing

Gan v. City of New York, 996 F.2d 522, 531 (2d Cir. 1993), quoting, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To

determine if a right was clearly established, the Court must consider: (1) whether the right in question was defined with 'reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable Circuit Court support the ~xistence of the right in question; and (3) ~hether under pre-existing law a reasonable defendant official would have understood that his or acts were unlawful. (2d Cir. 2009), citing, A court

".

Dean v. Blumenthal, 577 F.3d 60, 68 Jermosen
v~

Smith, 945 F.2d 547, 550 (2d Cir. 1991).

has to determine whether, based on the pleading, "the defendants should have known that the specific actions complained of violated plaintiff's freedom of speech." Lewis v. Cohen, 165 F.3d 154, 166-67 (2d Cir. 1999). Defendants claim that its termination of the plaintiff for petitioning the government for redress under the First Amendment
13

is protected by qualified by qualified immunity because it was objectively reasonable for the defendants to believe that its termination did not violate the First Amendment. Defendants

premise their alleged "objectively reasonable" belief upon the fact that plaintiff could not have violated the First Amendment because the Notice of Claim "fails to reveal any clearly delineated issues of public concern that would have put a reasonable person on notice that First Amendment rights were implicated", (Library Defendants brief at p. 15). Again,

defendants claim that the First Notice of Claim pertained to personal and private matters, and not to matters of pUblic concern, which is entirely irrelevant to the constitutional analysis of plaintiff's claims. As set forth in Point II, supra,

the Pickering test does not apply to private citizens who seek to petition the government for redress. Plaintiff's Notice of Claim

constitutes a petition for redress under the law, since "the right of petition applies with equal force to a person's right to seek redress from all branches of government." Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). Defendants cannot retaliate The

against a person for exercising his First Amendment rights. individual Library Defendants' attempt to claim qualified immunity based on an objectively reasonable belief that the

Notice of Claim did not pertain to matters of public concern must fail since the Pickering test does not apply, and the activities

14

of the defendants, as set forth in Point IV, supra, which include unlawful disclosure of Library records, a criminal notarial act, and an attempt to obtain a release through fraud, indicate that defendants ;used unlawful means and should have known, objectively, that both the means and the substance of the retaliation was unlawful.

15

POINT IV
PLAINTIFF PROPERLY PLEADS THAT DEFENDANTS INTENTIONALLY INTERFERED WITH A BUSINESS OPPORTUNITY BY TERMINATING HIM FOR REFUSING TO SIGN A RELEASE IN FAVOR OF THE LIBRARY To plead tortuous interference with a business opportunity: a plaintiff must demonstrate that the defendant's interference with its prospective business relations was accomplished by 'wrongful means' or that defendant acted for the sole purpose of harming the plaintiff. 'Wrongful means' includes physical violence, fraud, misrepresentation, civil suits, criminal prosecutions and some degree of economic pressure, but more than simple persuasion is required. Snyder v. Sony Music Entertainment, Inc., 252 A.D.2d 294, 300-01, 684 N.Y.S.2d 235 (1 s t Dep't 1999). This is true, even where

plaintiff is an employee at will. Hoesten v. Best, 34 A.D.3d 143, 159, 821 N. Y. S. 2d 40 (First Dep' t. 2006) ("As an at-will employee with no written contract, plaintiff could only succeed on his tortious interference claim if he established that Best acted solely to harm him or used wrongful means to achieve the interference"); Taylor v. New York University, 7 A.D.3d 401, 402, 776 N.Y.S.2d 474
(pt

Dep't. 2004).

As set forth in Friedman v. Coldwater Creek, Inc., 551 F.Supp.2d 164, 170 (S.D.N.Y. 2008): £or Defendants' interference to constitute the kind of 'wrongful means' that will support Plaintiff's claim for tortious interference, one of the following must be true: (1) that conduct must amount to an independent crime or tort; (2) that conduct

16

must have been taken solely out of malice; or (3) that conduct must amount to 'extreme and unfair' economic pressure. In the present matter, despite the fact that Defendants blithely contend that there plaintiff has not pled any "malice" or "unlawful means," the pleading establishes that the defendants committed crimes, acted out of malice, and exerted undue economic pressure by having plaintiff terminated from his employment at Morris Duffy because he would not release the Library. First, the Library Defendants disclosed confidential library records to .the other defendants (~ 27 of Complaint), including plaintiff's employer and an insurance company who were not involved in the Library's suspension of plaintiff's privileges. This violates CPLR 4509, which requires that "Library records . . shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon
request or consent of the user or pursuant to sUbpoena, court
order or where otherwise required by statute." Second, the Library Defendants conspired with the other defendants to procure a release by misrepresentation, deceit, fraud, and. criminal notary fraud. As set forth in the Brinn

Declaration, plaintiff was shown only the signature page of what purported to be a release, which was unlawfully pre-notarized. § 135-a(2) of the Executive Law provides that "ra] notary public or
17

commissioner of deeds, who in the exercise of the powers, or in the performance of the duties of such office shall practice any fraud or deceit, the punishment for which is not otherwise provided for by this act, shall be guilty of a misdemeanor." offering a pre-notarized partial release to plaintiff, and secreting the fact that the document was a release, defendants engaged in misrepresentation, deceit, fraud, and criminal conduct. This is sufficient to establish tortious interference By

with plaintiff's business opportunity as an associate attorney at Morris Duffy. See, Williams & Co. v. Collins. Tuttle & Co., 6 A.D.2d 302, 176 N.Y.S.2d 99 (lst Dep't. 1958) (sustaining a complaint for tortious interference with business opportunity where defendants conspired to deprive plaintiff of a real estate commission) . Further, the Library engaged in "interference" because it had no legitimate business interest in plaintiff's employment as an associate attorney with Morris Duffy. The Library Defendants'

interference in Brinn's employment with Morris Duffy had no relationship to its mission of running a Library, and the method of their interference, as set forth above, was tortuous. Defendants' reliance on Hoeston, and similar cases, is misplaced. In all the cases relied upon by defendants, the defendant had a legitimate interest to "interfere" with the plaintiff's employment relationship. In this case, plaintiff's grievance

18

against the Library for his suspension had no relationship to his employment 'and an insurance company that referred business to plaintiff's employer. Therefore, defendants acted maliciously

and used ~~nlawful means" to intimidate and coerce Morris Duffy to terminate plaintiff because he would not sign a release in favor of the Library. For instance, in Hoeston, plaintiff, a stage manager for a television program employed by ABC, sued a union official for reporting his abusive behavior toward actors while on the job. The Union defendant had a legitimate interest in intervening by reporting the conduct of one of its members to an employer with which the Union has a collective bargaining agreement. Similarly, in Lawrence v. Union of Orthodox Jewish Corporations of America, 32 A.D.3d 304,820 N.Y.S.2d 60 (lst Dept. 2006), plaintiff employee (employed by a kosher slaughterhouse) sued the Orthodox Union (OU), a kosher certifying organization, alleging that the OU threatened to boycott the slaughterhouse if plaintiff were not terminated from the slaughterhouse. Again, defendant

had a legitimate business reason to intervene and ensure that all the requirements of kosher food preparation were complied with at the slaughterhouse. In Snyder v. Sony Music Entertainment, 252
(lst

A.D.2d 294, 684 N.Y.S.2d 235

Dep't 1999) (where opposing

counsel informed plaintiff's law firm that plaintiff was acting outside the scope of his employment with his law firm) and Taylor

19

v. New York University Medical Center, 7 A.D.3d 401, 776 N.Y.S.2d 474 (2004) (where plaintiff's former employer brought a "conflict of interest" to the attention of plaintiff's current employer), the defendants had legitimate reasons, and used legitimate means, to inform plaintiffs' former employers about plaintiff. Also, in

Lobel v. Maimonides Medical Center, 39 A.D. 3d 275, 835 N.Y.S.2d 28 (2007), ,a co-employee was alleged to have interfered in plaintiff's contract with his employer. The court found that the

co-employee was motivated by his own self interest, stating, "it is clear that any motivation on [the defendant's] part was based on economic self-interest and not for the sole purpose of harming plaintiff." rd. at 277. These cases are inapposite to the present matter, in which the Library Defendants had no legitimate economic self-interest to meddle in plaintiff's employment. Further, the interference

was accomplished by criminal means, misrepresentation, and deceit. The Library Defendants' interest in obtaining a release

from Brinn's constitutional claims is not "economic self interest" ~ithin the purview of governing caselaw. And any

"justification" proffered by defendants for its interference raises a jury question, which should not be resolved on a pleading. United Euram Corp. v. Occidental Petroleum Corp., 123 Misc.2a 574, 577-78, 474 N.Y.S.2d 372, 375 (Sup. Ct. 1984). Since all defendants conspired to dismiss plaintiff because

20

of his constitutional claims, and did so by disseminating confidential records, fraudulently attempting to procure a release, criminally pre-notarizing plaintiff's signature, and having plaintiff terminated when he refused to sign the release, these facts sustain a plausible pleading of intentional interference with a business opportunity.

21

POINT V PLAINTIFF PLEADS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS To plead a claim of intentional infliction of emotional distress, plaintiff must demonstrate that engaged in extreme and outrageous conduct; (i) the defendant (ii) defendant

intended to cause or disregarded a substantial probability of causing severe emotional distress; (iii) a causal connection

between the conduct and injury; and (iv) severe emotional distress. Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 353 (1993). Liability is found
~only

where the

conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Murphy v. American Horne Prods. Corp., 58 N.Y.2d 293, 303 (1983). In the present matter, plaintiff pleads that, because of his suspension from a Library, the Library defendants, Utica Mutual Insurance Company, and Morris Duffy conspired to terminate him because he·· would not sign a document releasing the Library from liability.· Plaintiff's dispute with the Library had no relation

to his employment as an associate attorney with Morris Duffy. Yet the Library defendants enlisted plaintiff's employer, and an insurance company that provides work to plaintiff's employer, to maliciously exert undue economic pressure upon plaintiff.

22

Further the defendants proffered a signature page of a release, without permitting plaintiff to examine the full document, pren o t a r i z e d his signature (which constitutes a misdemeanor), disclosed confidential library records in violation of law, and terminated plaintiff when he would not execute a release in favor of the Library. This is sufficient to plead intentional

infliction of emotional distress. Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759 (2d Dep't. 1961); Sanchez v. Orozco, 178 A.D. 2d 391, 578 N.Y.S.2d 145 (1 s t Dept. 1991); Atherton v. 21 East Corp., 149 A.D. 2d 354, 539 N.Y.S.2d 933 (1 s t Dept. 1989).
92~

CONCLUSION For the foregoing reasons, plaintiff requests that this Court deny 'defendants' motion to dismiss, and grant such other and further relief as the Court deems just and equitable. Dated: October 12, 2009 Mineola, NY Respectfully submitted, RAYMOND NARDO (RN 4773) Attorney for Plaintiff 129 Third Street Mineola, NY 11501 [phone]

23

CERTIFICATE OF SERVICE
I certify that on October 12, 2009, I, Raymond Nardo, served by XXX mail, first class overnite mailed served via ECF the enclosed:
Brief on Behalf of Plaintiff in Opposition to the Library
Defendants'. Motion to Dismiss
to Counsel for the defendants located at:
Thomas A. Catalano, Esq.
Lester Schwab Katz & Dwyer
120 Broadway
New York, NY 10271
Sherri N. Pavloff, Esq.
FARBER BROCKS & ZANE L.L.P.
51 Charles Street, Second Floor
Mineola, NY 11501
Peter Contini, Esq.
L'Abbate, Balkan, Colavita & Contini, L,t,.:"b
1001 Franklin Avenue /
Garden City, NY 11530
return receipt requested faxed
~electronically mailed

DATE t

(0112-)&

.

;'

7

RAYMOND NARDO, Esq.

ATTORNEY FOR PLAINTIFF ~29 Third Street Mineola, NY ~1501 [phone]

UNITED STATES DISTRICT COURT for the EASTERN DISTRICT OF NEW YORK
JOSHUA BRINN

Plaintiff,
09-01151 (TCP) (WDW)

-againstSYOSSET PUBLIC LIBRARY, MORRIS DUFFY ALONSO & FALEY, UTICA NATIONAL INSURANCE COMPANY,JUDITH LOCKMAN, in her individual and professional capacities, ROBERT GLICK, Trustee if the SYOSSET PUBLIC PUBLIC LIBRARY in his individual and professional capacities

Defendants.
BRIEF ON BEHALF OF PLAINTIFF IN OPPOSITION TO THE LIBRARY DEFENDANTS' MOTION TO DISMISS

Dated: October 12, 2009

TABLE OF CONTENTS
TABLE OF AUTHORITIES STATEMENT OF FACTS ARGUMENT
ii

1

2

POINT I 2
PLAINTIFF'S CLAIM SETS FORTH PLAUSIBLE CLAIMS OF RELIEF
UNDER RULE 8 OF THE FEDERAL RULES OF CIVIL
PROCEDURE 2
8
POINT I I . . . . . . THE PLEADING ALLEGES A PLAUSIBLE VIOLATION OF THE FIRST
AMENDMENT . . . . . . . . . . .. . . 8
A. B. Plaintiff's Grievance Need not Raise a "Matter of Public Concern" ......
·8

Plaintiff Pleads a Valid First Amendment
Retaliation Claim because he was Terminated
for Petitioning the Government 10
13
13

POINT· I I I ................ QUALIFIED IMMUNITY DOES NOT PROTECT THE INDIVIDUAL
DEFENDANT IN THEIR INDIVIDUAL CAPACITIES

POINT I V . . . . . . . ........... 16
PLAINTIFF PROPERLY PLEADS THAT DEFENDANTS INTENTIONALLY
INTERFERED WITH A BUSINESS OPPORTUNITY BY
TERMINATING HIM FOR REFUSING TO SIGN A RELEASE IN
FAVOR OF THE LIBRARY 16
POINT V . . . . . .... 22
PLAINTIFF PLEADS INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS 22
CONCLUSION
23

TABLE OF AUTHORITIES
Ashcroft v. Iqbal, _ U.S. _, 129 S.Ct. 1937 (2009) ..... 7

Atherton v. 21 East 92 n d Corp., 149 A.D. 2d 354, 539 N.Y.S.2d 933 (1st D e p t . 1989 ) ...... 23 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

.2

Cioffi v. Averill Park Central School District, 444 F.3d 158 (2d Cir. 2 0 0 6 ) ............. .8 Collins v. Goord, 428 F. Supp.2d 399 (S.D.N.Y. 2006) Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957) Connell v. Signoracci, 153 F.3d 74 (2d Cir. 1998) Connick v. Myers, 461 U.S. 138 (1983) ...
11 .2

11 12 11 13 10

Dawes v. Walker, 239 F.3d 489 (2d Cir. 2001) Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009) Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)

Friedman v. Coldwater Creek, Inc., 551 F.Supp.2d 164 (S.D.N.Y. 2008) . . . . . . . . . . . . . ...... 16 Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980) 2

Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759 (2d Dep't. 1961) ........... ...... 23 Harlow v. Fitzgerald, 457 U.S. 800 (1982) .. . (First Dep't. 16 13

Hoesten v. Best, 34 A.D.3d 143, 821 N.Y.S.2d 40 2006) "

Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350 (1993) Jermosen v. Smith, 945 F.2d 547 (2d Cir. 1991) Kenney v. ~enesee Valley Board of Cooperative Educational Services, 2008 WL 343110, 97-CV-6442, (W.D.N.Y. Feb. 6, 2008) LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471 (2d
ii

22
13 12

Cir. 2009)

.

...

............

.3

Lawrence v. Union of Orthodox Jewish Corporations of America, 32 A.D.3d 304,820 N.Y.S.2d 60 (lst Dept. 2006) 19 L e w i s v. Cohen, 165 F.3d 154 (2d Cir. 1999 13, 14

Lobel v. Maimonides Medical Center, 39 A.D. 3d 275, 835 N.Y.S.2d 28 (2007) . . . . .... .... 20 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003) ......... .... ......3 Murphy v. American Home Prods. Corp., 58 N.Y.2d 293 Rankin v. McPherson, 483 U.S. 378 (1987) (1983) 22
9

Sanchez v. Orozco, 178 A.D. 2d 391, 578 N.Y.S.2d 145 (1 s t Dept. 1991 ...... 23 Shabtai v. Levande, 38 Fed. Appx. 684 (2d Cir. 2002) Snyder v. Sony Music Entertainment, Inc., 252 A.D.2d 294, 684 N.Y.S.2d 235 (1st Dep't 1999) . Sousa v. Roque, 2009 WL 2568949 (2d Cir. 2009) .2 16 12 11 16 20

Swierkiewicz v. Soremna N.A., 534 U.S. 506 (2002) Taylor v. New York University, 7 A.D.3d 401, 776 N.Y.S.2d 474 ( 1 s t Dep' t. 2004) .................. United Euram Corp. v. Occidental Petroleum Corp., 123 Misc.2d 574, 474 N.Y.S.2d 372 (Sup. Ct. 1984)

United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 88 S.ct. 353, 19 L.Ed.2d 426 (1967) . . . . . 10 White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2d Cir. 1993) . . . . . . . . . . . . . . . .. ..... 12 Williams & Co. v. Collins, Tuttle & Co., 6 A.D.2d 302, 176 N.Y.S.2d 99 (1 S t Dep't. 1958) .... . . . .. Williams v: Town of Greenburgh, 535 F.3d 71 (2d Cir. 2008) Wolff v. Town of Mount Pleasant, 2009 WL 1468691, 06 Civ. 3864 ( C S ) (LMS) (S. D · N · Y. Ap r 2 7 , 2 0 0 9 ) ..........
18

9 9

iii

Ying Jing Gan v. City of New York, 996 F.2d 522

...

..

..

...

..........

(2d Cir. 1993)

..

'"

..

13

IV

STATEMENT OF FACTS

The facts are set forth in the Complaint, annexed as Exhibit A to the Granofsky Declaration, and the Brinn Declaration, submitted herewith. In addition, plaintiff is withdrawing his

second cause of action alleging a violation of due process and his fifth cause of action alleging a breach of covenants of good faith and fair dealing.

ARGUMENT
POINT I
PLAINTIFF'S CLAIM SETS FORTH PLAUSIBLE CLAIMS
OF RELIEF UNDER RULE 8 OF THE FEDERAL RULES OF CIVIL PROCEDURE Rule 8(a) (2) of the Federal Rules of Civil Procedure requires a pleading to state "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8 Fed.R.Civ.P. This pleading "statement must be concise 'because

unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.'" Shabtai v. Levande, 38 Fed. Appx. 684 2002) (internal citation omitted). Petrocelli, 616 F.2d 636, (2d Cir.

As set forth in Geisler v.

639 (2d Cir. 1980) (emphasis added):

The office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof. As formulated in Conley V. Gibson, 355 U. S. 41, 45, 78 S. Ct. 99 (1957) I a complaint should not be dismissed for insufficiency unless it appears ~ certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), the United States Supreme Court held that a plaintiff must "state a claim for relief that is plausible on its face." Further,

"[o]n a motion to dismiss or for jUdgment on the pleadings we

2

'must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor.'" LaFaro v. New York Cardiothoracic Group. PLLC, 570 F.3d 471, 475 (2d Cir.

2009), citing, Miller V. Wolpoff & Abramson. L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Plaintiff's complaint is a short and

plain statement which, drawing all inferences in favor of plaintiff, establishes a plausible claim for relief. The Library Defendants complain that plaintiff does not allege "he was present during the alleged conversation between [defendant] Glick and McMahon concerning him, nor does he allege that he has any personal, or even hearsay, knowledge that the

conversation actually took place" (Library Defendants brief, p. 17). However, there is no such pleading requirement. Further,

if the Library Defendants are able to demonstrate any technical pleading defect,. plaintiff seeks leave of the court to replead. Plaintiff's allegations, even as characterized by the Library Defendants, are factual allegations - n o t legal conclusions - w h i c h suffice to sustain a pleading. in Bell Atlantic Corp. V. Twombly, 550 U.S. 544 As set forth

(2007), "a

complaint attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual allegations . . pleads, in'relevant part, as follows: 23. Upon information and belief, after receiving the First Notice of Claim, Judith Lockman, Director of the Syosset Public

"

Plaintiff's complaint

3

Library, directed Robert Glick, Esq., a Member of the Board of Trustees of the Syosset Public Library, to call plaintiff at his place of work.

24. On or about January 10, 2008, Glick phoned plaintiff and advised him to drop the First Notice of Claim and also stated that Glick knew the attorneys at MORRIS DUFFY ALONSO & FALEY and that it would be very bad for plaintiff to pursue the Notice of Claim 25. On or about January 11, 2008, Glick made unsolicited phone calls to plaintiff at his workplace, further demanding that plaintiff discontinue the Notice of Claim. : 26. Upon information and belief, Glick
contacted Kevin Mahon, Esq., a partner at
MORRIS DUFFY ALONSO & FALEY to further
interfere with plaintiff's employment and
demand that the First Notice of Claim be
withdrawn.
27. During these conversations, Mr. Glick
also disclosed information to a third party
about plaintiff's confidential library
records.
Betty Winkler is a Claims Examiner
employed by defendant UTICA NATIONAL
INSURANCE COMPANY.

~9. On March 19, 2008, at the direction of defendant SYOSSET PUBLIC LIBRARY, and at the direction of her supervisor at UTICA MUTUAL ~NSURANCE COMPANY, Robin Nelson, Betty Winkler, also contacted partners of defendant MORRIS DUFFY ALONSO & FALEY to exert pressure on plaintiff to withdraw his First Notice of Claim.

28.

4

30. At various times from March 19, 2008 through April 16, 2008, Faley, Alsono, and DeGennaro, partners of MORRIS DUFFY ALONSO & FALEY, demanded that plaintiff withdraw his Notice of Claim against defendant SYOSSET PUBLIC LIBRARY or he would be terminated. 31. Ultimately, plaintiff withdrew his First Notice of Claim, due to the threats regarding his employment.

32. On April 16, 2008, Andrea Alonso, Esq. directed plaintiff to sign a partial document which was apparently the signature page of a general release which would waive his claims against the defendant SYOSSET PUBLIC LIBRARY. 33. Plaintiff refused to sign this document.

34.

Defendant MORRIS DUFFY ALONSO & FALEY terminated plaintiff because he refused to sign the general release. 35. Subsequently, plaintiff filed the Second Notice of Claim. 36. Defendants, all acting under color of law, terminated plaintiff for the exercise of his First Amendment Rights, in violation of the First and Fourteenth Amendments to the United States Constitution, and are all liable under 42 U.S.C. Section 1983. This caused plaintiff to suffer economic and non e c o n o m i c damages.

(Exhibit A'to Granofsky Declaration).

In sum, the complaint

alleges that, on or about January 10 and January 11, 2008, the Individual,Library Defendants phoned plaintiff, or were directed to phone plaintiff, and threatened that it would be "very bad"

5

for him to pursue his Notice of Claim.

Thereafter, Library

Defendant "Glick contacted Kevin Mahon, Esq., a partner at MORRIS DUFFY ALONSO & FALEY, ("Morris Duffy") to further interfere with Glick also contacted defendant Utica

plaintiff's employment."

Mutual Ins. Co., a client of Morris Duffy, to further exert undue economic pressure upon plaintiff's employment as an associate attorney at Morris Duffy. Morris Duffy obeyed the overtures of

Glick and Utica, and directed plaintiff to withdraw his Notice of Claim, and then terminated plaintiff when he refused to sign a general release in favor of Syosset Public Library. Since defendants urge this Court to consider evidence outside, but referred to, in the pleadings, the Court should also consider the fax cover page sent from the Library's counsel (Spellman Rice) to Defendant Utica National Ins. Co. ("Utica"),

to Defendant Morris Duffy, requesting that Morris Duffy "have Mr. Brinn sign the General Release" (Exhibit 1 to Brinn Declaration). In violation of New York Penal Law, the space for plaintiff's signature was pre-notarized, and plaintiff was never shown the complete content of what appeared to be a release (Brinn Declaration). This type of deceit, fraud, and misrepresentation

demonstrates that all three defendants conspired to terminate plaintiff because he refused to sign a release in favor of the Library. Therefore, the pleading plausibly establishes the

underlying causes of action.
6

Plaintiff's pleading, supplemented by the fax cover page and pre-notarized signature page of the Release, details the conversations between Glick and plaintiff, Morris Duffy, and Utica, gives dates where available, and demonstrates the undue coercive pressure and unlawful tactics that Defendants exerted upon plaintiff simply because plaintiff sought to redress his suspension from the Library, and because he would not execute a release in favor of the Library regarding this grievance. These

factual and legal allegations are more than speculative; they establish "more than a sheer possibility that a defendant has acted unla~fully,U Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937,

1949 (2009), citing, Twombly, 550 U.S. at 556, and are sufficient to satisfy the Rule 8 pleading requirement.

7

POINT II
THE PLEADING ALLEGES A PLAUSIBLE VIOLATION OF THE FIRST AMENDMENT
~

Plaintiff's Grievance Need not Raise a "Matter of Public Concern" The First Amendment to the United States Constitution

prohibits laws abridging freedom of speech and abridging the right to petition the Government for redress of grievances. The

Library defendants correctly concede that "[a] notice of claim, being a petition to the government for redress of grievances, could conceivably form the basis for a claim under the Right to Petition Clause" (Library Defendants, p. 10). The Library

Defendants .then assert that "not every governmental petition is protected by the First Amendment. In order for a petition to be

actionable under the First Amendment, it must relate to a 'matter of public concern'" Id. The Library Defendants rely on two cases

where public employees alleged First Amendment violations in the workplace. At best, the Library Defendants misapprehend the law.

Since public employees may express opinions on a variety of matters in the workplace, the First Amendment protects only those matters which are a "matter of public concern." This Pickering

test evolved because "a public employer has a distinct interest in regulating the speech of its employees in order to ensure and promote the 'efficiency of the public services it performs.'" Cioffi v. Averill Park Central School District, 444 F.3d 158, 162

8

(2d Cir. 2006), citing, Rankin v. McPherson, 483 U.S. 378, 384 (1987). However, in the instant case, plaintiff was not a public

employee; plaintiff did not work for the Library; he was an associate attorney at Morris Duffy. Consequently, the expression

of opinions by an employee in the public workplace, and the efficiency.and potential disruption of a public employer's services are not implicated - t h e Pickering test does not apply. Where plaintiff is not a public employee at the time of his First Amendment speech, the Second Circuit has ruled that, \\[b]ecause [plaintiff] was not a public employee when he criticized [defendant] Bland, his speech need not have been on a matter of public concern for it to fall within the protection of the First Amendment for the purposes of this action." Williams v. Town of Greenburgh; 535 F.3d 71 (2d Cir. 2008). Similarly, as set forth

in Wolff v. Town of Mount Pleasant, 2009 WL 1468691 at *6, 06 Civ. 3864 (CS) (LMS) (S.D.N.Y. Apr 27,2009) (internal citations omitted) (emphases added), the court held that: [i]n order to maintain a First Amendment retaliation claim, a private citizen complainant must allege that the defendant took some action in response to his or her First Amendment activity that 'effectively chilled the exercise of his [or her] First Amendment right . . . . Differing from this test, a public employee plaintiff who claims that he or she was retaliated against for exercising his or her First Amendment rights must show that he defendant implemented an 'adverse employment action' against the plaintiff because of his or her engagement in first Amendment activity touching upon a
9

matter of public concern.
Although defendants cite Town of Greenburgh, they fail to apprehend that the "matter of public concern" requirement - w h i c h defendants discuss at length in their motion papers by continuously citing inapposite cases involving public employees d o e s not apply to a First Amendment retaliation claim brought by a private citizen. Despite defendants' invitation to do so, the

Court need not "examine the First Notice of Claim, and the October 15, 2007 letter referred to therein, and decide whether plaintiff was merely seeking to redress a personal grievance, or was raising a matter of public concern" (Library Defendants brief, p. 8).
~

Plaintiff Pleads a Valid First Amendment Retaliation Claim because he was Terminated for Petitioning the Government Plaintiff alleges a First Amendment retaliation claim

because, as a private citizen, he exercised his First Amendment right to petition the Library by filing a Notice of Claim. As

set forth in Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988): The Supreme Court has described the right to petition government for redress of grievances as 'among the most precious of the liberties safeguarded by the Bill of Rights.' See United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967). Moreover, the right of petition applies with equal force to a person's right to seek redress from all branches of government. There is no doubt that the Notice of Claim constitutes a petition

10

to the government for redress of plaintiff's library privileges, which were suspended. Plaintiff's First Amendment retaliation

claim, outside the context of employment, must therefore be analyzed as follows: To survive dismissal, 'a plaintiff asserting First Amendment retaliation claims must advance non-conclusory allegations establishing: (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.' Collins v.Goord, 428 F. Supp.2d 399, 419 (S.D.N.Y. 2006),

citing, Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Soremna N.A., 534

u.s.

506 (2002).1

In Collins, the Court held that the first

factor was pleaded because the "filing of both lawsuits and administrative grievances is constitutionally protected." Id. Similarly, plaintiff's filing of a Notice of Claim (Complaint, lJI 13) satisfies this requirement. Plaintiff pleads the second

factor by alleging that all defendants took an adverse action against plaintiff, in concert, (Compl. lJIlJI 11, 12, 36) by

compelling!him to withdraw the First Notice of Claim and then

I Put another way, plaintiff must plead that "(i) he has an interest protected by the First Amendment; (ii) the defendant's actions were motivated by or substantially caused by the plaintiff's exercise of that right; and (iii) the defendant's action effectively chilled the exercise of the plaintiff's First Amendment rights." Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (citations omitted) .

11

terminating his employment when he refused to sign a document releasing the public Library from liability (Complaint, 34) .
i~ 33,

Plaintiff pleads the third factor by alleging that there

was a causal connection between the Notice of Claim and his termination since plaintiff alleges that all defendants terminated him in violation of his Constitutional rights, for

filing a Notice of Claim, and refusing to release his claims (Complaint,.
~lJl

19-36).

Plaintiff suffered a "chilling effect,"

as set forth in Collins and Wolff when he was terminated because he exercised his First Amendment right to petition a public Library. Consequently, plaintiff pleads a plausible First
-

Amendment retaliation claim2

h e was terminated for petitioning

the government for redress - w h e t h e r or not his petition relates to a "matter of public concern."3

2 Since, plaintiff's retaliation claim under the New York State Constitution is subject to the same analysis, plaintiff's sixth cause of action should also survive defendants' motion to dismiss. Kenney v. Genesee Valley Board of Cooperative Educational Services, 2008 WL 343110 at *3, 97-CV-6442, (W.O.N.Y. Feb. 6, 2008).

Though not relevant, plaintiff's Notice of Claim for refusing him entry and access to a pUblic institution would raise a "matter of public concern." A claim that "at least minimally touch[es] upon a matter of p~blic concern" is sufficient. White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1060 (2d Cir. 1993). Further, "[w]hether or not speech addresses a matter of public concern 'must be determined by the content~ form, and context of a given statement, as revealed by the whole record.'ff Sousa v. Rogue, 2009 WL 2568949 (2d Cir. 2009), citing, Connick v. Myers, 461 u.s. 138, 147-48 (1983). In the present matter, an individual seeking access to a public institution may raise a matter of public concern, when the form and context of plaintiff's banishment are taken into account, after the record is developed through discovery.

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