Ferrari v. County of Suffolk et al

Filing 14

MEMORANDUM AND ORDER granting in part and denying in part 4 Motion to Dismiss. For the reasons set forth herein, this motion is GRANTED IN PART AND DENIED IN PART. The claims against Suffolk County remain, but the claims against Christine Malafi and John Does #1-10 ("Individual Defendants") are DISMISSED WITHOUT PREJUDICE. So Ordered by Judge Joanna Seybert on 6/7/2011. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JAMES B. FERRARI,
Plaintiff,

MEMORANDUM & ORDER
10-CV-4218 (JS)(WDW)

-againstCOUNTY OF SUFFOLK,
CHRISTINE MALAFI, individually,
JOHN DOES # 1-10, individually,
Defendants.
-----------------------------------X
APPEARANCES:
For Plaintiff:
David Antwork, Esq.
Andrew J. Campanelli, Esq.
Campanelli & Associates
129 Front Street
Mineola, NY 11501
For Defendants:

Christopher M. Gatto, Esq.
Suffolk County Attorney's Office
H. Lee Dennison Building, 5th Floor
100 Veterans Memorial Highway
Hauppauge, NY 11788-4311

SEYBERT, District Judge:
Pending before the Court is Defendants’ Fed. R. Civ. P.
12(b)(6) motion to dismiss. See Docket Entry 4. For the following
reasons, this motion is GRANTED IN PART AND DENIED IN PART.

The

claims against Suffolk County remain, but the claims against
Christine Malafi and John Does #1-10 (“Individual Defendants”) are
DISMISSED WITHOUT PREJUDICE.

BACKGROUND1
On May 26, 2009, Plaintiff James B. Ferrari drove his
2003 Ferrari westbound on South Country Road in Bellport, New York
at a speed in excess of 100 miles per hour, zigzagging across the
double-yellow line as he sped along.

Mot. to Dismiss, Ex. A.2

Pulled over by an arresting officer, Ferrari, whose eyes were red
and whose gait was marked by a decided lack of maneuverability and
performance, had a smell of alcohol about him.

Id.

With slurred

speech, Ferrari duly confessed to having consumed alcohol before
driving and also confided that his intoxication was partly fueled
by thirteen prescribed medications at the time. Id. The arresting
officer then spotted what appeared to be crack cocaine inside
Ferrari’s Ferrari.

“The crack pipe’s mine,” Ferrari offered.

Id.

Driven back to the police precinct following his arrest,
Ferrari stalled when asked to submit to a chemical test.

Id.

Here

it was discovered that he had been previously convicted of driving

1

Plaintiff’s Complaint attaches, and relies upon, the transcript
of the informal hearings before Justice John DiNoto.
Accordingly, though accepting the Complaint’s factual allegations
as true, the Court constructs much of this opinion’s factual
background from documents introduced into evidence at this
hearing, or from statements made during these proceedings. See,
e.g., ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87,
98 (2d Cir. 2007) (noting that, on a Rule 12(b)(6) motion, the
Court may consider any written instrument attached to the
complaint, documents possessed by, or known to, the Plaintiff and
upon which he relied in bringing this lawsuit, and statements or
documents incorporated into the complaint by reference).
2

Plaintiff’s Exhibit B, attached to the Complaint, makes
repeated reference to the arresting officer’s report.
2

while intoxicated on April 26, 2007.

Id.

The decision was

therefore made, pursuant to Suffolk County Code Chapter 270, to
temporarily

impound

Ferrari’s

Ferrari

pending

a

post-seizure

hearing scheduled for June 9, 2009.
At the post-seizure hearing on June 9, 2009, Ferrari’s
counsel informed the neutral magistrate, Justice John DiNoto, that
Ferrari would not be appearing in the courtroom that day.
Ex. A, at 3.

Compl.,

To counsel’s surprise, Justice DiNoto reacted by

holding that the hearing could not move forward without Ferrari in
court.

“Credibility is a big issue in any trial,” Justice DiNoto

noted, “and there may be a determination with respect to the issues
that have to be addressed by counsel asking questions of the
witness.”

Id.

Over counsel’s protests, Justice DiNoto then

adjourned the post-seizure hearing for nearly three months to
September 1, 2009.
Once again on September 1, 2009, Ferrari’s counsel made
an appearance on his client’s behalf, without Ferrari present.
Compl., Ex. B, at 4.

This time around, however, Justice DiNoto

permitted the hearing to proceed.

Plaintiff’s counsel began by

stating,

bore

correctly,

that

Ferrari

no

burden

of

proving

anything, and thus had no obligation to personally appear.
5.

Id. at

The County opened by: (i) seeking a missing witness charge

based on Ferrari’s non-appearance; (ii) arguing that “there is no
reason

that

this

gentleman

needs

3

this

vehicle

back”;

(iii)

contending, incorrectly, that “Mr. Ferrari needs to testify as to
what his hardship is going to be in this particular case”; (iv)
setting forth, wrongly, that Ferrari had “the burden under the
statute to show hardship and should be present.”

Id. at 5-6.

The parties then stipulated to the admission of the
following relevant evidence: (i) Exhibit A, comprising two sworn
felony complaints filed by the arresting officer, who attested
that, on May 26, 2009, Ferrari drove while impaired by the combined
influence of drugs and alcohol, and/or while under the influence of
drugs and alcohol (Mot. to Dismiss, Ex. A); (ii) Exhibit B-2, the
“Report of Refusal to Submit to a Chemical Test,” which showed that
Ferrari refused to submit to a chemical test at the precinct (id.
at Ex. B); (iii) Exhibit C-1, which established Ferrari’s prior
conviction for driving while intoxicated on April 26, 2007 in New
York County; (iv) Exhibit C-2, an abstract of Ferrari’s New York
State DMV driving record, indicating that he also had convictions
for driving while impaired (on June 13, 2005 in Nassau County
Court), for unlicensed operation of a motor vehicle (on April 2,
2006), as well as a host of driver’s license suspensions or
revocations (id., Ex. C); and, (v) Exhibit E, another printout from
the DMV, which showed that Ferrari owned another vehicle--a 2003
Land Rover, which was registered under his name.
After

introducing

this

evidence

the

County

counsel, meanwhile, offered no evidence.

4

(id., Ex. F)

rested;

Ferrari’s

Compl., Ex. B, at 11.

After resting, but before summation, the County again
reiterated that Ferrari owned another vehicle, the Land Rover, and
thus could not show “hardship” from losing the Ferrari. Id. at 1011.
Summations then ensued.

Ferrari’s counsel argued that,

because the County adduced no evidence that the Ferrari would be
moved out of the state, destroyed, or sold, the sports car could
not be properly impounded pursuant to Krimstock v. Kelly, 306 F.3d
40 (2d Cir. 2002).

For its part, the County argued that: (i)

“based on his driving record . . . [t]he County believes that the
vehicle would be damaged or even removed from the state if it was
allowed to go back to the owner”; (ii) “there’s obviously a problem
with Mr. Ferrari.

Therefore, the County believes that a bond, a

restraining order, or any of the other means available to them . .
. would not maintain this vehicle in the manner and in the form
that it was taken when it was seized”; (iii) “Mr. Ferrari has not
proven to be a responsible driver in this particular case”; and
(iv) because there are no lien holders, Krimstock is “dicta.”
at 14-17.

Id.

The County added, however, that it sustained any

“burden” Krimstock might impose.

Id.

After weighing the parties’ arguments, Justice DiNoto
ruled as follows: “After a hearing and based on the credible
evidence adduced at the hearing, I find firstly that there was, in
fact, probable cause for the stop and arrest in this case.

5

The

second part of my determination is that Suffolk County is directed
to

retain

the

proceeding.”

vehicle

Id. at 18.

pending

resolution

of

the

forfeiture

Apart from his reference to probable

cause, the Justice did not explain how (or, indeed, whether) his
reasoning squared with Krimstock.

Id.

At no time did Justice

DiNoto take issue with, or even acknowledge, the County’s multiple,
flagrant misstatements of the law, including: (i) its belief that
Ferrari’s failure to appear entitled it to a missing witness
charge; (ii) its astonishing claim that Ferrari had the burden of
proving hardship, and needed to do so through his testimony; (iii)
its attestation that Ferrari had the burden of “prov[ing] to be a
responsible driver in this particular case”; and (iv) its odd
interpretation of Krimstock as “dicta.”3
On June 29, 2010, Ferrari was convicted by guilty plea of
all the underlying charges4: Driving While Intoxicated (Vehicle and

3

The County also expended considerable effort arguing that,
because the car was moveable property, Ferrari could take it to
another state. The County did not, however, articulate any
cognizable interest in precluding Ferrari from taking the car,
temporarily, to say, Connecticut. Nor did it explain why a
restraining order (by requiring Ferrari to keep the car instate), or a bond (by proving financial back-up if Ferrari
absconded with the vehicle) could not protect that supposed
interest.
4

In the Rule 12(b)(6) context, a court may take judicial notice
of prior pleadings, orders, judgments, and other related
documents that appear in the court records of prior litigation
and that relate to the case sub judice. See, e.g., Patrowicz v.
Transamerica Homefirst, Inc., 359 F. Supp. 2d 140, 144 (D. Conn.
2005); see also Thomas v. Westchester Cty Health Care Corp., 232
F. Supp. 2d 273, 276-77 (S.D.N.Y. 2002) (noting that the Court
6

Traffic Law § 1192.4); Driving While Ability Impaired by Drugs
(Vehicle and Traffic Law § 1192.4); Driving While Ability Impaired
by the Combined Influence of Drugs or of Alcohol and any Drug or
Drugs (Vehicle and Traffic Law § 1192.4-a); and Criminal Possession
of a Controlled Substance in the 7th Degree (Penal Law § 220.03).
Mot to Dismiss, Ex. G.
On

September

16,

2010,

Plaintiff

filed

this

action

pursuant to 42 U.S.C. § 1983, alleging that his procedural and
substantive due process rights were violated by the County of
Suffolk, the County Attorney for Suffolk County (Christine Malafi),
and John Does 1-10 (who are allegedly responsible for training
hearing

officers

principles).

and

The

county

attorneys

Complaint

alleges,

to

violate

inter

Krimstock’s

alia,

that

the

Defendants knowingly train, and/or deliberately permit, the hearing
officers

who

preside

over

post-seizure

retention

hearings

to

deliberately and systematically refuse to comport with the due
process requirements set out in Krimstock and Suffolk County Code
§ 270-26.

It is claimed that, as a matter of policy and practice,

the County was not required at the second retention hearing to meet
its “entire burden” of demonstrating whether probable cause existed
for Ferrari’s arrest, whether the County would likely succeed on
the

merits

in

its

forfeiture

action,

whether

retention

was

“may take judicial notice of the records of state administrative
procedures, as these are public records”).
7

necessary to prevent the destruction or sale of the vehicle pending
the forfeiture proceeding, and whether any less restrictive means
existed for protecting the County’s interest. Compl., ¶ 42. It is
further

alleged

that

Defendants

deliberately,

willfully,

and

contumaciously deprived Plaintiff of his rights under Krimstock by
requiring him to appear personally at retention hearings and by
improperly shifting onto him the burden of showing hardship.

Id.

at 29, 49.
Defendants’

Rule

12(b)(6)

motion

argues

that:

(1)

Plaintiff does not state a claim for a procedural due process
violation against any of the Individual Defendants; (2) Plaintiff
does not state a claim for a substantive due process violation
against any of the individual Defendants; (3) the Monell claim
against the County must be dismissed; and (4) the Individual
Defendants are, in any event, entitled to absolute and/or qualified
immunity.
DISCUSSION
I. Standard of Review
To overcome a motion to dismiss under Rule 12(b)(6), a
complaint must plead facts sufficient "to state a claim for relief
Bell Atl. Corp. v. Twombly, 550

that is plausible on its face."

U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007).
Considering

such

a

motion,

the

Court

draws

all

reasonable

inferences in favor of the party against whom dismissal is sought.

8

See, e.g., Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d
Cir. 1998).

At the same time, the Court shall not credit the

Complaint’s “legal conclusions” or any “threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements.”

Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937,

1949, 173 L. Ed. 2d 868 (2009).

Where the complaint “pleads facts

that are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility to relief.”
Id.
II. Plaintiff’s Procedural Due Process Claims
A. The Appropriate Due Process Standard
In Krimstock v. Kelly, 306 F.3d 40, 67 (2d Cir. 2002),
the Second Circuit held that a municipality may properly seize a
car pending resolution of a civil forfeiture proceeding only if it
affords claimants a “prompt post-seizure, pre-judgment hearing
before a neutral judicial or administrative officer.”

Krimstock

then held that, at this hearing, the hearing officer must determine
“whether the [municipality] is likely to succeed on the merits of
the forfeiture action and whether means short of retention of the
vehicle can satisfy the [municipality]'s need to preserve it from
destruction or sale during the pendency of proceedings.” Id at 67.
It could, however, be argued that Krimstock set forth
another way for a municipality to justify retaining a vehicle.
Earlier in the decision, Krimstock remarked, in a footnote, that “a

9

claimant’s proven history of persistent drunkenness or repeated DWI
violations . . . might justify a fact-finder in denying release of
the vehicle pendente lite.”

Id. at 67 n. 28 (emphasis added).

But, as seen above, Krimstock did not ultimately incorporate that
footnote, or its reasoning, into its holding.

For it framed the

municipality’s “need” and “legitimate interests” as “preserv[ing]
[the vehicle] from destruction or sale during the pendency of
proceedings,” not as protecting the public from a habitually
intoxicated driver, or precluding the car from being used as an
instrumentality in further crimes.

Id. at 67-68.

Moreover,

Krimstock remanded to the District Court to fashion “appropriate
procedural relief.” Id. at 69. And, on remand, the District Court
did not factor a municipality’s interest in furthering public
safety into its test. Instead, it merely required the municipality
to prove “whether probable cause existed for the arrest of the
vehicle operator; whether it is likely that the City will prevail
in an action to forfeit the vehicle, and whether it is necessary
that

the

vehicle

remain

impounded

in

availability for a judgment of forfeiture.”5

order

to

ensure

its

Thus, a plain reading

of Krimstock does not permit a municipality to retain vehicles for
public safety reasons, when such retention is not “necessary” to

5

See
43845
other
Supp.

Krimstock v. Kelly, 99-CV-12041, 2005 U.S. Dist. LEXIS
at *4 (S.D.N.Y. Nov. 29, 2005) (Mukasey, J.), vac'd on
grounds at 464 F.3d 246 (2d Cir. 2006), on remand at 506 F.
2d 249, 252 (S.D.N.Y. 2007).
10

protect the municipality’s interests in ultimately obtaining the
vehicle’s forfeiture.6
Similar to Krimstock, New York’s Court of Appeals has
also recognized a potential government interest in protecting
society from drunk drivers, but has also failed to incorporate that
interest into its standard. In County of Nassau v. Canavan, 1 N.Y.
3d 134, 144, 802 N.E.2d 616 (N.Y. 2003), the Court of Appeals
expressly agreed that “retention is a rational means of protecting
the public from an increased risk of drunk drivers,” though it
noted that this interest drops when a defendant has another car at
his disposal, because retention “does little to prevent the person
from driving another car drunk.”

But, inexplicably, the Court of

Appeals then went on to ignore this recognized government interest
in enunciating its standard, instead requiring the municipality to
“establish that probable cause existed for the defendant's initial
warrantless arrest, that it is likely to succeed on the merits of
the forfeiture action, and that retention is necessary to preserve
the vehicle from destruction or sale during the pendency of the
proceeding,” regardless of attendant public safety risks.

1 N.Y.

3d at 144-45.
Suffolk County’s applicable Local Law is worded a little

6

The Court expresses no opinion about the merits of Krimstock’s
standard. It merely interprets Krimstock’s plain words. Perhaps
the Second Circuit should clarify the appropriate standard, if
this issue reaches it again.
11

better.

That law, at § 270-26(B)(1), requires “the neutral

Magistrate to determine whether probable cause existed for the
defendant's warrantless arrest, whether the County is likely to
succeed on the merits of the forfeiture action, whether retention
is necessary to preserve the vehicle from destruction or sale
during the pendency of the forfeiture proceeding, and whether any
other measures would better protect the County's interest during
the proceedings.” Unlike Krimstock and Canavan, the Suffolk County
Local

Law

speaks

generally

about

protecting

“the

County’s

interest,” without limiting that interest to protecting against
destruction or sale.

Moreover, in highlighting “other measures”

that would protect “the County’s interest,” the Local Law includes
“use of an interlock device,” thereby strongly suggesting that the
Local Law understands the County’s “interest” as being broader than
a property interest in the car’s value, and extends to protecting
the public from continued drunk driving, and/or the car from being
used as an instrumentality in the crime of drunk driving.7
Suffolk

County’s

(and,

7

for

that

matter,

Canavan’s)

New York Vehicle and Traffic Law § 119-a defines an “ignition
interlock device” as “[a]ny blood alcohol concentration
equivalence measuring device which connects to a motor vehicle
ignition system and prevents a motor vehicle from being started
without first determining through a deep lung breath sample that
the operator's equivalent breath alcohol level does not exceed
the calibrated setting on the device as required by section
eleven hundred ninety-eight of this chapter.” The Court presumes
that Suffolk County intended a similar definition for “interlock
device.”
12

standards cannot, however, trump the federal due process standards
that Krimstock enunciated.

And, as discussed above, Krimstock

requires a municipality to show its “need to preserve it from
destruction or sale during the pendency of proceedings,” regardless
of

the

municipality’s

additional

interest

in

ensuring

public

safety.
C.

Does Plaintiff Plead Any Underlying Due Process
Violations?
Before

addressing

whether

Suffolk

County,

or

the

Individual Defendants, may be held liable, the Court must first
answer

the

threshold

question

of

whether

underlying constitutional violations.

Ferrari

pleads

any

See, e.g., Segal v. City of

New York, 459 F.3d 207, 219 (2d Cir. 2006).

Here, the Court is

satisfied that Plaintiff has sufficiently pled a violation of the
Due Process rules laid down in Krimstock, and codified in Suffolk
County Code § 270-26, to withstand a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6).
To begin with, Ferrari pleads that, on June 9, 2009,
Justice DiNoto refused to permit the Krimstock hearing to proceed,
based on his erroneous belief that Ferrari needed to personally
appear and testify. Compl. Ex. A. at 3. Justice DiNoto’s decision
unnecessarily delayed the hearing for three months. Compl., Ex. A,
at 3.

Krimstock, however, held that it was “constitutionally

infirm” to deprive a person of property, without a hearing, for
“months.”

Krimstock, 306 F.3d at 45.
13

And Justice DiNoto’s

misunderstanding of the law is not a legitimate reason to cause
such a constitutional infirmity.

Accordingly, the Court finds

that, at this stage, Ferrari successfully pleads a deprivation of
his due process right to a prompt hearing.
Additionally,

Ferrari

alleges

that,

at

the

second

hearing: (1) the County’s attorney misstated the law by improperly
shifting the burden to the Plaintiff, such as by arguing that “Mr.
Ferrari needs to testify as to what his hardship is going to be in
this particular case.

If he is not here to testify, he can’t show

a hardship; therefore he does have the burden under the [Suffolk
County Code] to show hardship and should be present.” Compl. ¶ 43;
(2) Justice DiNoto did not correct, cure, or demonstrate his
disagreement with the County’s invalid statements of the law; (3)
the County presented no evidence demonstrating why retention of the
vehicle--as opposed to the other alternative means found in § 27026--was necessary, especially given that Plaintiff owned another
vehicle, presumably thwarting any effort to keep him off the road
through retention; and (4) regardless of whether he had sufficient
evidence to do so, Justice DiNoto did not expressly make the
requisite finding under Krimstock and § 270-26 that retention of
the vehicle was “necessary to preserve the vehicle from destruction
or sale during the pendency of the forfeiture proceeding.”

14

§ 270-

26(B)(1)8.

In addition to these allegations, the Court notes that

the County, bizarrely, argued that Krimstock’s requirements were
only “dicta.”

Compl. Ex. B at 17; County of Suffolk, New York v.

First American Real Estate Solutions, 261 F.3d 179, 184 (2d Cir.
2001) (on motion to dismiss, court may accept as true facts
contained in documents “attached, incorporated by reference, or
integral to the claims asserted”). And Justice DiNoto expressed no
disagreement with that position.

Id.

Ferrari argues that the

County’s misstatements of law, Justice DiNoto’s silence as to those
misstatements, and Justice DiNoto’s failure to expressly find that
retention was “necessary” to preserve the vehicle from destruction
or sale, when taken together, amount to a violation of Ferrari’s
Due Process rights.
The Court agrees. As discussed above, Krimstock requires
the County to prove, by a preponderance of the evidence, that
“means short of retention of the vehicle” cannot “satisfy the
[County]'s need to preserve it from destruction or sale during the
pendency of proceedings.”

Id at 67.

Indeed, on remand, the

Krimstock District Court framed the inquiry as whether “it is
necessary that the vehicle remain impounded in order to ensure its
availability for a judgment of forfeiture,” a formula that the New

8

Likewise, even if Krimstock and Canavan do, in fact, permit
retention as a means of preventing continued drunk driving,
Justice DiNoto made no such findings that retention was
appropriate on this ground.
15

York Court of Appeals then adopted in Canavan.9
Here, the County introduced no evidence supporting the
Krimstock/Canavan prong.

At its strongest, the County argued that

Ferrari might damage the vehicle through continued reckless or
impaired driving.

Compl. Ex. B at 15-16.

But the County did not

explain why a bond or a restraining order would not adequately
protect its financial interest in the vehicle.

Indeed, "[a] bond

is in some respects a superior form of security because it entails
no storage costs or costs of sale."

Krimstock, 306 F.3d at 65; see

also Boyle v. County of Suffolk, 10-CV-3606, 2010 U.S. Dist. LEXIS
114487, at *14-15 n. 6 (E.D.N.Y. Oct. 19, 2010) (suggesting, as
possible ways to meet this burden, introducing evidence “showing
that the claimant is unable or unwilling to post a bond, and/or
lacks other assets that could be easily restrained”).
More charitably, it could be argued that the County
sought to apply Krimstock’s dicta suggesting that a municipality
can validly impound a vehicle, pre-judgment, to protect public
safety.

And, in this regard, the County argues now that this is

exactly what it sought to prove.

Def. Br. at 15-18.

For instance,

on reply, the County contends that, because Ferrari’s alleged

9

See Krimstock, 2005 U.S. Dist. LEXIS 43845 at *4, vac’d on
other grounds at 464 F.3d 246, on remand at 506 F. Supp. 2d at
252 (framing the prong, after remand, as whether “it is necessary
that the vehicle remain impounded in order to ensure its
availability in the eventual civil forfeiture action”); Canavan,
1 N.Y. 3d at 144-45.
16

intoxication resulted from both drugs and alcohol, an interlock
ignition device would not have precluded him from driving while
impaired again.
But,

Def. Reply Br. at 3.
even

assuming

arguendo

that

Krimstock

permits

retention for public safety reasons (when not needed to prevent
“destruction or sale”), the County’s argument runs into several
problems.

First, and principally, Due Process does not just

require an impartial hearing, and some oblique discussion of
Krimstock’s factors during that hearing by the property owner’s
counsel. It requires that the hearing officer “decide those issues
by a statement of findings on the record, or by a written statement
to be made a matter of record.”10

Here, Justice DiNoto did not

issue an oral or written “statement of findings” that either
addressed the third Krimstock/Canavan prong, or concluded that
impounding the Ferrari was necessary for public safety reasons.
Instead, just as Ferrari alleges, Justice DiNoto limited his
“statement of findings” to the first Krimstock/Canavan prong, the

10

Krimstock, 2007 U.S. Dist. LEXIS 82612, at *3 (S.D.N.Y. Sept.
27, 2007) (requiring the presiding judge to "decide those issues
by a statement of findings on the record, or by a written
statement to be made a matter of record"). The Court notes that
this requirement is not particular to Krimstock hearings. On the
contrary, to comport with Due Process, an impartial hearing
offer’s decision “must rest solely on the legal rules and
evidence adduced at the hearing.” Goldberg v. Kelly, 397 U.S.
254, 271, 90 S. Ct. 1011, 1022 (1970) (termination of property
interest in public assistance). And, “[t]o demonstrate
compliance with this elementary requirement, the decision maker
should state the reasons for his determination and indicate the
evidence he relied.” Id.
17

existence of probable cause, and then, without finding anything
else (not even the second prong, a likelihood of success on the
merits), issued a “determination” that “Suffolk County is directed
to

retain

proceeding.”

the

vehicle

pending

resolution

of

a

forfeiture

Compl. Ex. B at 18.

Second, beyond the per se violation stemming from Justice
DiNoto’s failure to issue a Krimstock-complaint “statement of
findings,” other Due Process concerns scream out from the face of
hearing transcript.

Instead of trying to meet its Krimstock/

Canavan burden, the County instead spent the hearing enunciating
one erroneous legal principle after another, from a bizarre effort
to shift the burden, to a nonsensical interpretation of Krimstock
as “dicta.”

And Justice DiNoto never corrected the County, or

otherwise expressed his disagreement with the County’s flagrantly
illogical presentation.

On the contrary, the two times Justice

DiNoto presented his legal views, he too got the law wrong--first
by postponing the hearing based on his incorrect belief that
Ferrari needed to appear and testify, and then by issuing findings
that failed to address two of Krimstock’s and Canavan’s three
prongs.

So, construing the pleadings and exhibits in the light

most favorable to Plaintiff, this is not just a case of a judge
failing to recite the “magic words” that constitute an applicable
legal standard, or a case of a judge neglecting to sufficiently
explain his reasons.

Instead, given the undisputed record, it is

18

quite plausible that Justice DiNoto predicated his decision, in
whole or in part, on the County’s misstatements of law, or his own
misunderstanding about what the law requires.

And, if Justice

DiNoto in fact impounded the Ferrari for these reasons, the court
violated Ferrari’s due process rights by acting in an arbitrary,
capricious or irrational manner. See generally Toney v. Gammon, 79
F.3d 693, 699 (8th Cir. 1996) (a decision based on a judge’s
“erroneous belie[fs]” regarding the appropriate legal standard
violates due process).
A recent Second Circuit decision magnifies the Court’s
concerns in this area.

In Nnebe v. Daus, 2011 WL 1338119, at *11

(2d Cir. Mar. 25, 2011), the Second Circuit addressed whether New
York City provides an adequate post-deprivation remedy to suspended
taxi drivers.

The Second Circuit postulated that the post-

deprivation standard on the books “may be well within the range of
adequate due process protections.” But the Second Circuit found it
“troubl[ing]” that this standard “appears to be an oft-quoted
nullity that in no way resembles a part of the standard” the
supposedly neutral hearing officer actually applies.
11.

So to here.

process.

Id. at *10-

The Krimstock standard affords adequate due

But Ferrari successfully pleads that the County has a

pattern and practice of not applying Krimstock, because its neutral
hearing

officers

routinely

only

require

the

County

“probable cause,” thereby ignoring the “necessary” prong.

19

to

show

Finally, even if the Court could interpret Krimstock’s
public safety footnote as part of its holding, and even if the
Court could somehow overlook Justice DiNoto’s and the County’s
glaring errors, and could instead, on a motion to dismiss, somehow
conduct some kind of “harmless error” review, the Court could not
find that the multiple errors here were harmless.

It is, in fact,

a close call as to whether the County met its (arguable) burden in
showing that impoundment was “justif[ied]” based on Ferrari’s
“proven

history

violations.”

of

persistent

drunkenness

or

repeated

DWI

Krimstock, 306 F.3d at 66 n. 28.

In the County’s favor, it adduced evidence supporting
that Ferrari had a previous DWI conviction, and several license
suspensions or revocations.

Additionally, as the County argues on

reply (but did not expressly argue at the hearing, in its initial
motion papers), Ferrari’s underlying arrest involved impairment
from

both

alcohol

and

prescription

possession of crack cocaine.

medication,

along

with

So, even if an interlock device

(breathalyser) could shield the public from further drunk driving,
it would not protect against Ferrari driving under the influence of
other substances.
But Ferrari also makes a strong case.

Namely, as the

County itself pointed out, his Ferrari was not his only car.
also owns a Land Rover that is “able to be used” by him.
Ex.

B.

at

11.

And

Ferrari’s

20

ability

to

drive

He

Compl.

another

car

significantly weakens the County’s interest in the “remedy of
continued impoundment.”
N.Y.3d

at

144

(“while

Krimstock, 306 F.3d at 66; Canavan, 1
retention

of

a

car

indeed

prevents

a

defendant from again driving that particular car drunk, it does
little to prevent the person from driving another car drunk”).
Indeed, if impounding his Ferrari causes Ferrari to instead drive
his Land Rover, impoundment might actually undermine the County’s
interest in protecting public safety.

After all, holding other

factors equal, the basic “laws of physics” dictate that the much
larger, much heavier Land Rover would do much greater damage in a
collision

than

the

lighter,

smaller

Ferrari.11

Thus,

though

impoundment certainly deprived Ferrari of a substantial property
interest, it is unclear if it furthered any cognizable municipal
interest.
Had Justice DiNoto made or articulated findings resolving
this

close

question,

substantial deference.

the

Court

would

afford

those

findings

But, as he did not, the Court cannot

resolve this dilemma in the County’s favor under Rule 12(b)(6).

11

See generally http://www.iihs.org/news/rss/pr041409.html (last
visited April 15, 2011) (“Size and weight affect injury
likelihood in all kinds of crashes. In a collision involving two
vehicles that differ in size and weight, the people in the
smaller, lighter vehicle will be at a disadvantage. The bigger,
heavier vehicle will push the smaller, lighter one backward
during the impact. This means there will be less force on the
occupants of the heavier vehicle and more on the people in the
lighter vehicle. Greater force means greater risk, so the
likelihood of injury goes up in the smaller, lighter vehicle.”)
21

Considering all these factors, the Court finds that
Ferrari’s Complaint pleads underlying violations of both procedural
and substantive due process.

With respect to procedural due

process, Ferrari alleges that: (i) the inexplicable three-month
hearing postponement deprived him of his right to a “prompt”
Krimstock hearing; (ii) in violation of Krimstock, the County
failed to establish, by a preponderance of the evidence, that
retention was to prevent the car’s destruction or sale; and (iii)
Justice DiNoto failed to make “a statement of findings” covering
two of Krimstock’s three prongs.

And, with respect to substantive

due process, Ferrari successfully pleads that the County obtained
impoundment because Justice DiNoto failed to apply settled law, and
instead

may

have

relied

misstatements of the law.

on

the

County’s

multiple,

egregious

See generally Daniels v. Williams, 474

U.S. 327, 331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (substantive
due process covers “arbitrary” or “conscience-shocking” government
actions).12

12

Defendants also argue that Ferrari’s substantive due process
claim fails because “a claim based on the seizure of his car . .
. must be raised as a Fourth Amendment claim,” citing the wellestablished principle that, when an plaintiff “alleges a cause of
action protected by an ‘explicit textual source' of the
Constitution, ‘that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing' the
claim." Def. Br. at 18 (citing Kaluczky v. City of White Plains,
57 F.3d 202, 211 (2d Cir. 1995)). But Defendants are wrong. When
a government “seize[s] property not to preserve evidence of
wrongdoing, but to assert ownership and control over the property
itself,” such as when it seeks “forfeiture,” the Due Process
clauses of the Fifth and Fourteenth Amendments control. United
22

C.

Monell Liability
Having pled underlying violations, the question thus

turns

to

whether

Ferrari

has

liability for those violations.

successfully

pled

the

County’s

To properly plead a Section 1983

claim against a municipality, Plaintiff must also allege three
separate elements: (1) an official custom or policy that (2)
subjected the Plaintiff 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).
It is quite clear that this is exactly what Plaintiff has
done here.

In this regard, Ferrari alleges that Suffolk County

“knowingly train[s] and/or deliberately permit[s], the hearing
officers who ‘preside’ over retention hearings to deliberately and
systematically refuse to comport with the requirements of Due
Process or the Suffolk County Code.”

Compl. ¶ 19.

And, although

Ferrari does not plead much factual detail concerning Suffolk
County’s training programs, "[i]t is unlikely that a plaintiff
would have information about the city's training programs or about
the cause of the misconduct at the pleading stage."

Amnesty

States v. James Daniel Good Real Property, 510 U.S. 43, 51-52,
114 S. Ct. 492, 126 L. Ed. 2d 490 (1993).
23

America v. Town of West Hartford, 361 F.3d 113, 130 n. 10 (2d Cir.
2004).

Thus, a plaintiff "need only plead that the city's failure

to train caused the constitutional violation," in order to plead
municipal liability.

Id.; Michael v. County of Nassau, 2010 U.S.

Dist. LEXIS 82764, at *11 n.3 (E.D.N.Y. Aug. 11, 2010) (noting that
the

Iqbal/Twombly

standard

is

“context-specific,”

and

that

a

plaintiff has “no realistic way to learn about a municipality's
training programs without discovery”); Williams v. City of New
York, 690 F. Supp. 2d 338, 344 (S.D.N.Y. 2010) (continuing to apply
Amnesty

America's

lenient

pleading

standard,

post-Iqbal

and

Twombly).
Additionally, Plaintiff alleges more than just a failure
to train.

He also alleges that Suffolk County “deliberately

permit[s]” its hearing officers to violate Krimstock. In so doing,
Plaintiff pleads that Justice DiNoto’s actions subjected Suffolk
County to municipal liability by conforming to “a widespread
practice that, although not expressly authorized, constitutes a
custom or usage of which a supervising policy-maker must have been
aware.”

Yang Feng Zhao v. City of New York, 656 F. Supp. 2d 375,

392 (S.D.N.Y. 2009).

And this allegation is not conclusory.

On

the contrary, Plaintiff augments this allegation by identifying,
without the benefit of discovery, two other instances in which
Suffolk County’s supposedly neutral hearing officers failed to
properly apply Krimstock.

See Sullivan v. County of Suffolk, 04-

24

CV-3651 (E.D.N.Y.) (referenced in Compl. ¶¶ 24-27); Boyle, 2010
U.S. Dist. LEXIS 114487 (referenced in briefs, and subject to
judicial notice).

Three instances (including Plaintiff’s own

claim) might not suffice to overcome summary judgment.

But, at

this stage, they do permit a plausible inference of a widespread
practice or informal custom within Suffolk County.13
Accordingly, Defendants’ motion is DENIED with respect to
Suffolk County.
B.

Claims Against Individual Defendants
The Complaint alleges that Chistine Malafi, the County

Attorney for Suffolk County, in her individual capacity, together
with

the

County

and

John

Does

1-10,

has

“intentionally

and

willfully continued [her] campaign to violate the rights of those
whose

cars

have

been

seized

by

requiring

owners

to

appear

personally for retention hearings and by improperly shifting the
burden of continued retention to the owner to show hardship or some
other necessity.” Compl. ¶ 29. Yet the Complaint’s sole purported
fact in support this allegation is that Malafi was “emboldened by
the mere one dollar award” the County paid to a plaintiff who made

13

Additionally, the Court notes, without taking any position,
that “a single unconstitutional act or decision, when taken by an
authorized decision-maker, may be considered policy and thus
subject a municipality to liability.” Sulehria v. City of New
York, 670 F. Supp. 2d 288, 320 (S.D.N.Y. 2009). Ferrari does
not, however, expressly plead that Suffolk County vested Justice
DiNoto with policy making authority, and the parties did not
brief such a theory.
25

similar Due Process Clause allegations in Sullivan.
pleads

no

substantive

factual

allegations

that

personal conduct to the deprivations complained of.

Plaintiff

link

Malafi’s

Consequently,

as to Malafi, Plaintiff’s claim “stops short of the line between
possibility and plausibility to relief.”

Iqbal, 129 S. Ct. at

1949.
As for Defendants John Does 1-10, they do not even rate
a single complete sentence in the Complaint, apart from a glancing
reference to their inadequate “training” of the County’s hearing
officers.

See Compl. ¶ 30.

The problem is not so much that they

are not identified as it is that none of their characteristics,
actions, motivations, positions, or specific roles in the alleged
violations are hinted at in even the most speculative fashion.
These
Consequently,

defects
although

are,
the

however,

potentially

Complaint’s

claims

curable.

against

the

Individual Defendants are DISMISSED, this dismissal is without
prejudice.

Plaintiff is free to seek the Court’s leave to replead

his claims against these Defendants, either now or upon obtaining
new information during discovery.
CONCLUSION
Ferrari is not the most sympathetic plaintiff, to put it
mildly.

But

the

Due

repeated drunk drivers.

Process

clause

protects

everyone--even

Here, Ferrari has adequately pled that

Suffolk County violated his Due Process rights.

26

Consequently,

Defendants’ motion to dismiss is DENIED insofar as it seeks to
dismiss the claims against Suffolk County.
Ferrari

has

not,

however,

pled

sufficient

facts

to

properly allege that the Individual Defendants violated his rights.
Consequently, Defendants’ motion to dismiss is GRANTED insofar as
it seeks to dismiss the claims against the Individual Defendants.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

June
7 , 2011
Central Islip, New York

27