Ferrari v. County of Suffolk et al

Filing 60

MEMORANDUM & ORDER re: 51 Plaintiff's Motion for Summary Judgment on the issue of liability is GRANTED IN PART and DENIED IN PART and re: 54 County's Motion for Summary Judgment is also GRANTED IN PART and DENIED IN PART. Summary judgme nt is GRANTED in favor of Plaintiff on the issue of liability on the procedural due process claim arising out of the County's failure to meet its burden at retention hearings and is otherwise DENIED. Summary judgment is GRANTED in favor of the C ounty on the substantive due process claim as well as Plaintiff's other procedural due process claims, and those claims are DISMISSED WITH PREJUDICE. The County's motion is otherwise DENIED. The action is hereby REFERRED to Magistrate Judge Gary R. Brown to resolve any remaining pretrial issues and to determine whether this action is ready for trial on the issue of damages on the procedural due process claim for which summary judgment has been granted in favor of Plaintiff i.e., the claim regarding the County's failure to meet its burden at retention hearings. Ordered by Judge Joanna Seybert on 8/6/2013. (Nohs, Bonnie)

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

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

COUNTY OF SUFFOLK,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Andrew J. Campanelli, Esq.
David Antwork, Esq.
Campanelli & Associates, P.C.
1757 Merrick Avenue, Suite 204
Merrick, NY 11566
For Defendant:

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

SEYBERT, District Judge:
On

September

16,

2010,

Plaintiff

James

B.

Ferrari

(“Plaintiff”) commenced this action asserting claims under 42
U.S.C. § 1983 arising out of Suffolk County’s seizure of his
vehicle after he was arrested for driving while intoxicated.
Pending before the Court are cross-motions for summary judgment
filed by Plaintiff and Defendant Suffolk County (the “County”).
For the following reasons, both motions are GRANTED IN PART and
DENIED IN PART.

BACKGROUND
I.

Legal Framework: Krimstock & its Progeny
In Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002)

(“Krimstock I”), the Second Circuit held that, although the police
can temporarily seize a vehicle while arresting a drunk driver,
the municipality cannot indefinitely hold the vehicle pending
resolution of a civil forfeiture proceeding.
Circuit

found

that

“the

Fourteenth

Instead, the Second

Amendment

guarantee

that

deprivations of property be accomplished only with due process of
law requires that plaintiffs be afforded a prompt post-seizure,
pre-judgment hearing before a neutral judicial or administrative
officer.”

Id. at 67.

The Circuit “declin[ed] to dictate a

specific form for the prompt retention hearing,” but held that “at
a minimum, the hearing must enable claimants to test the probable
validity of continued deprivation of their vehicles, including the
[municipality]’s

probable

cause

for

the

initial

warrantless

seizure” and “whether less drastic measures than impoundment, such
as

a

bond

or

a

restraining

order,

would

protect

the

[municipality]’s interest in the allegedly forfeitable vehicle
during the pendency of proceedings.”

Id. at 69-70.

The Circuit,

in a footnote, also stated that “[a] claimant’s proven history of
persistent drunkenness or repeated DWI violations . . . might
justify a fact-finder in denying release of the vehicle pendente

2

lite.”

Id. at 66 n.28.

The case was remanded to the district

court to “fashion[] appropriate relief.”

Id. at 70.

On remand, the district court concluded that due process
requires that, at a post-seizure hearing, the municipality prove
by a preponderance of the evidence that: (1) “probable cause
existed for the arrest of the vehicle operator,” (2) “it is likely
that the [municipality] will prevail in an action to forfeit the
vehicle,”

and

(3)

“it

is

necessary

that

the

vehicle

remain

impounded in order to ensure its availability for a judgment of
forfeiture.”

Krimstock v. Kelly, No. 99-CV-12041, 2007 U.S. Dist.

LEXIS 82612, at *2 (S.D.N.Y. Sept. 27. 2007).1 A neutral magistrate
must “decide those issues by a statement of findings on the record,
or

by

a

written

statement

to

be

made

a

matter

of

record.”

Krimstock, 2005 U.S. Dist. LEXIS 43845, at *4; accord Krimstock,
2007 U.S. Dist. LEXIS 82612, at *3.

If the municipality fails to

meet its burden on any of the three Krimstock elements, the vehicle

There were actually multiple orders issued by the district
court on remand. The decision cited above is the “Third Amended
Order & Judgment.” The quoted language in the Third Amended
Order & Judgment is identical to the language in a prior,
unpublished order that was affirmed in relevant part on appeal.
See Jones v. Kelly, 378 F.3d 198, 204 (2d Cir. 2004) (stating
that it “affirm[s] the district court’s order as it relates to
cars held for forfeiture”).
1

A detailed summary of Krimstock’s relevant procedure history can
be found in Krimstock v. Kelly, 506 F. Supp. 2d 249, 251-53
(S.D.N.Y. 2007).
3

must be returned.

See Krimstock, 2005 U.S. Dist. LEXIS 43845, at

*6-7; Krimstock, 2007 U.S. Dist. LEXIS 82612, at *3.
Shortly after Krimstock I was decided, the New York Court
of Appeals took up the issue and also concluded that due process
requires

“a

prompt

post-seizure

retention

hearing”

where

the

municipality must “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.”

Cnty. of Nassau v.

Canavan, 1 N.Y.3d 134, 144-45, 770 N.Y.S.2d 277, 286, 802 N.E.2d
616, 625 (2003).
Courts in New York have consistently looked to the three
requirements articulated in both the Krimstock line of cases and
Canavan when analyzing whether a post-seizure vehicle retention
hearing comports with due process, see, e.g., Boyle v. Cnty. of
Suffolk, No. 10-CV-3606, 2010 WL 4340627, at *2 (E.D.N.Y. Oct. 19,
2010); Price v. Prop. Clerk of N.Y.C. Police Dep’t, 74 A.D.3d 1078,
1079, 903 N.Y.S.2d 142, 144 (2d Dep’t 2010), and the Krimstock
standard

has

been

incorporated

into

the

Suffolk

County

Administrative Code, which states, in relevant part, as follows:
[T]here will be a hearing promptly scheduled
before a 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
4

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, including,
but not limited to:
(a)

Issuance of a restraining order
prohibiting the sale, transfer, or
loss
of
the
vehicle
with
imposition(s)
of
appropriate
penalties for violation of said
restraining order;

(b) Taking of a bond; and/or
(c) Use of an interlock device.
(Gatto Decl. Ex. R.)2
II.

Factual Background3
On May 26, 2009, Plaintiff was arrested after being

pulled over for driving under the influence of drugs and/or
alcohol.

(Cnty. 56.1 Stmt. ¶ 4; Gatto Decl. Ex. B.)

He was

subsequently indicted and formally charged with driving while
intoxicated in violation of N.Y. VEH. & TRAF. LAW § 1192.3, driving

The County has provided the Court with a copy of Section 270-26
of the Suffolk County Administrative Code--which was the
relevant section of the Code at the time this action was
commenced. The Code, however, was completely overhauled in
2011, and Section 270-26 is now Section 420-6. See
http://ecode360.com/print/SU0867?guid=14958241&children=true.
The language of the current Section 420-6, available at
http://ecode360.com/14945224, is identical to the prior version
of Section 270-26 provided by the County.
2

The following facts are drawn from the parties Local Rule 56.1
Statements (“56.1 Stmt.”) and the exhibits attached thereto and
submitted therewith. The facts are largely undisputed.
3

5

while impaired by drugs in violation of N.Y. VEH. & TRAF. LAW §
1192.4, driving while impaired by the combined influence of drugs
and alcohol in violation of N.Y. VEH. & TRAF. LAW § 1192.4-a, and
criminal possession of a controlled substance in the seventh degree
in violation of N.Y. PENAL LAW § 220.03.
56.1 Stmt. ¶ 5.)

(Gatto Decl. Ex. I; Cnty.

Upon his arrest, the 2003 Ferrari that he was

driving was temporarily impounded pending a post-seizure retention
hearing.

(Cnty. 56.1 Stmt. ¶ 6; Gatto Decl. Ex. F.)
Plaintiff received a Notice of Seizure and Hearing,

dated May 28, 2009, scheduling a retention hearing for June 9,
2009.

(Cnty. 56.1 Stmt. ¶ 6, Pl. 56.1 Stmt. Ex. A.)

At the

hearing, which took place before now-retired Justice John DiNoto,
Assistant County Attorney Kelly Green, Esq. represented the County
and Andrew J. Campanelli, Esq. (Plaintiff’s counsel in the present
action) represented Plaintiff.

(Pl. 56.1 Stmt. Ex. A, at 2.)

At

the hearing, the following colloquy between Mr. Campanelli and
Justice DiNoto took place after Mr. Campanelli informed the court
that Plaintiff would not be attending:
THE COURT: Where is he?
MR. CAMPANELLI: He will not be attending the
hearing, Your Honor.
THE COURT: Oh, yes, he will. I am not going
to conduct a hearing without him here.
MR. CAMPANELLI: I am here as his counsel. He
has consented to my appearing on his behalf.

6

I don’t think he is required to testify at his
own hearing, [Y]our Honor.
THE COURT: As far as I am concerned, he is.
Credibility is a big issue in any trial, and
there may be a determination with respect to
the issues that have to be addressed by
Counsel asking questions of the Witness--a lot
different th[a]n having him subject to crossexamination by the County Attorney. It is a
lot different than having hearsay testimony
from you.
MR. CAMPANELLI: I don’t intend to offer any
testimony, Your Honor.
(Id. at 3-4.)

Mr. Campanelli then correctly explained that,

pursuant to Krimstock, the County--not the Plaintiff--bore the
burden of establishing the necessity of retention.

(Id. at 4-5.)

When Justice DiNoto asked for Ms. Green’s response, she asserted
that “[her] understanding of the Krimstock [sic] is entirely
different th[a]n Counsel’s” (id. at 10), and, even though she was
prepared to conduct a Krimstock hearing that morning, she asked
for time to conduct research on Mr. Campanelli’s argument--i.e.,
the appropriate burden of proof at the hearing (id. at 11 (“Your
Honor, I need time.”)).

Notwithstanding Ms. Green’s request,

Justice DiNoto interpreted Mr. Campanelli’s request as a motion
to proceed without Plaintiff and denied the motion.
12.)

The hearing was adjourned to September 1, 2009.

(Id. at 6-7,
(Cnty. 56.1

Stmt. ¶ 8.)
The parties appeared before Judge DiNoto on September 1,
2009.

Ms. Green represented the County, and Charles Martin, Esq.
7

of Campanelli & Associates represented Plaintiff.

(Pl. 56.1 Stmt.

Ex. B, at 2-3.) Plaintiff did not personally appear, and the issue
of whether Plaintiff was required to appear was again raised.

Ms.

Green incorrectly asserted that Plaintiff “should be present”
because he “ha[s] the burden under the statute to show hardship.”
(Id. at 6.)

She believed that his failure to appear entitled her

to a missing witness charge.

Nonetheless, she conceded that she

was willing to move forward with the hearing without him.
7.)

Ms. Green did not call any witnesses.

(Id. at

Instead, the parties

stipulated to the admission of the following documentary evidence:
(1) the felony complaint (Gatto Decl. Ex. B)4; (2) a “Drug/Alcohol
Influence Report” which revealed that Plaintiff refused to submit
to a chemical test (Gatto Decl. Ex. C); (3) a certificate of
disposition for a 2007 conviction for driving while intoxicated
(Gatto Decl. Ex. D)5; (4) his Abstract Driving Record, which

According to the Felony Complaint, a Suffolk County police
officer observed Plaintiff driving at a speed in excess of 100
miles per hour and crossing the double yellow line on multiple
occasions. (Gatto Decl. Ex. B.) The officer pulled Plaintiff
over and, upon interviewing him, noted that he smelled strongly
of alcohol, his eyes were bloodshot, his speech was slurred, and
his gait was unsteady. (Id.) Plaintiff admitted to the officer
that he had consumed alcohol prior to driving, that he was also
taking thirteen prescribed medications for blood pressure and
anxiety disorder, and that a crack pipe found in the vehicle was
his. (Id.) Crack cocaine was also found in his possession upon
arrest. (Id.)
4

Plaintiff was arrested on January 13, 2006, pled guilty on
April 26, 2007, and was sentenced on June 6, 2007 to a
5

8

revealed that Plaintiff had also been convicted of driving while
impaired in 2005 and that his license had been suspended and
revoked on multiple occasions (Gatto Decl. Ex. D; Cnty. 56.1 Stmt.
¶ 9); (5) Plaintiff’s title and registration records for the
Ferrari he was driving at the time of arrest, which revealed that
he was the owner of the vehicle (Gatto Decl. Ex. E); (6) the May
28, 2009 Notice of Seizure and Hearing (Gatto Decl. Ex. F); and
(7) a printout from the Department of Motor Vehicles revealing
that Plaintiff also had a 2003 Land Rover registered in his name
(Gatto Decl. Ex. G; Cnty. 56.1 Stmt. ¶ 9).

Mr. Martin did not

present any evidence.
After resting, but before summation, Ms. Green asserted
that because Plaintiff owned another vehicle, the Land Rover, he
could not establish “hardship” from the retention of his Ferrari.
(Pl. 56.1 Stmt. Ex. B, at 10-11.)
On summation, Mr. Martin argued that, because the County
adduced no evidence that the Ferrari would be moved out of the
state, destroyed, or sold, the car could not be impounded pursuant
to Krimstock.

(Id. at 12-14.)

Ms. Green then argued that: (1)

there was probable cause for the stop and arrest based on the
arresting officer’s observations of Plaintiff’s erratic driving
and Plaintiff’s admission that he owned the crack pipe found in

conditional discharge of one year and a suspension of his
license for six months. (Gatto Decl. Ex. D.)
9

the vehicle (id. at 14-15); (2) “based on his driving record . . .
a bond, a restraining order, or any of the other means available
to [the County], in this particular case, would not maintain th[e]
vehicle in the manner and in the form that it was taken when it
was seized” (id. at 15, 16); and (3) “there’s obviously a problem
with Mr. Ferrari” who “has not proven to be a responsible driver
in this particular case” (id. at 16).

With respect to Krimstock,

Ms. Green argued that it was “dicta,” and thus inapplicable,
because “there is no le[i]nholder in this particular case.”
at 17.)

(Id.

She also added, however, that the County had sustained

the burden imposed by Krimstock:
As to the burden in the case, yes, it talks to
the County to make that burden, but the County
has sustained that burden and there is nothing
to refute it by Mr. Ferrari or his attorney in
testimony form or evidentiary form to allow
this Court to determine that the County should
not retain it any further.
(Id.)
After the parties’ summations, 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.
The second part of my determination is that
Suffolk County is directed to retain the
vehicle pending resolution of the forfeiture
proceeding.

10

(Id. at 18.)

Justice DiNoto’s written determination stated, in

its entirety, that “Suffolk County is directed to retain the
vehicle pending resolution of a forfeiture proceeding . . .
[because] probable cause for the stop & arrest has been shown by
the evidence.”

(Pl. 56.1 Stmt. Ex. C.)

That same day, the County commenced a forfeiture action
for the Ferrari (Gatto Decl. Ex. K); on June 29, 2010, Plaintiff
was convicted, by a plea of guilty, of all the underlying charges
(Cnty. 56.1 Stmt. ¶ 17); and on June 1, 2012, Plaintiff surrendered
title to the Ferrari pursuant to a Stipulation of Settlement in
the forfeiture action (Cnty. 56.1 Stmt. ¶ 16; Gatto Decl. Ex. M).
III. Procedural History
Plaintiff commenced this action on September 16, 2010,
asserting claims against the County, the Suffolk County Attorney,
Christine Malafi, and John Does 1-10 (the individuals allegedly
responsible for training hearing officers and assistant county
attorneys) under 42 U.S.C. § 1983 for violation of his procedural
and substantive due process rights as articulated in Krimstock.
On November 4, 2010, Defendants moved to dismiss the Complaint for
failure to state a claim under Rule 12(b)(6) of the Federal Rules
of Civil Procedure.
On June 7, 2011, the Court issued a Memorandum and Order,
granting in part and denying in part Defendants’ motion to dismiss.
Ferrari v. Cnty. of Suffolk, 790 F. Supp. 2d 34 (E.D.N.Y. 2011)
11

(Docket Entry 14).

The Court granted the motion to the extent

that it sought dismissal of the claims against Ms. Malafi and the
John Doe defendants because the Complaint failed to plead their
individual involvement in the alleged constitutional violations.
Id. at 46.

The Court denied the motion to the extent that it

sought dismissal of the claims against the County, finding that
the

Complaint

sufficiently

pled

violations

substantive and procedural due process rights.

of

Plaintiff’s

Specifically, the

Court made the following findings with respect to Plaintiff’s
procedural due process claims as pled: (1) Justice DiNoto’s refusal
to conduct the hearing on June 9 “based on his erroneous belief
that Ferrari needed to personally appear and testify[,] . . .
unnecessarily delayed the hearing for three months” in violation
of Plaintiff’s due process right to a prompt hearing, id. at 41
(stating that it is “‘constitutionally infirm’ to deprive a person
of property, without a hearing, for ‘months’” (quoting Krimstock,
306 F.3d at 45)); (2) “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,” id. at 45; see also
id. at 42 (finding that the County failed to introduce any evidence
to show why a bond or restraining order would not adequately
protect its financial interest in the vehicle, such as evidence
that Plaintiff “is unable or unwilling to post a bond, and/or lacks
other assets that could be easily restrained” (quoting Boyle, 2010
12

WL 4340627, at *4 n.6)); and (3) notwithstanding Krimstock’s
requirement

that

the

hearing

officer

“decide

[the

Krimstock

factors] by a statement of findings on the record, or by a written
statement to be made a matter of record,” Krimstock, 2007 U.S.
Dist. LEXIS 82612, at *3, Justice DiNoto failed to make a statement
of findings as to two of Krimstock’s three prongs, Ferrari, 790 F.
Supp. 2d at 43, 45.

In so finding, the Court rejected the County’s

argument that the footnote in Krimstock I, which suggests that a
municipality may validly retain a vehicle pre-judgment for public
safety reasons, was anything more than dicta, as it was not
included in Krimstock I’s holding nor was it included in any of
the decisions of the district court on remand.

Id. at 40 (“[A]

plain reading of Krimstock does not permit a municipality to retain
vehicles for public safety reasons, when such retention is not
‘necessary’ to protect the municipality’s interest in ultimately
obtaining the vehicle’s forfeiture.”).

The Court also found that

Plaintiff

substantive

had

successfully

pled

a

due

process

violation because Justice DiNoto failed to apply settled law and
instead relied on the County’s “multiple, egregious misstatements
of law,” stating that a decision based on a judge’s erroneous
beliefs regarding the appropriate legal standard violates due
process.

Id. at 43, 45.

Finally, the Court found that Plaintiff

had adequately pled the County’s liability.

13

Id. at 45-46.

On November 26, 2012, the County filed a motion for
summary

judgment

(Docket

Entry

51).

On

December

10,

2012,

Plaintiff cross-moved for summary judgment solely on the issue of
liability (Docket Entry 54).6

In support of his motion, Plaintiff

provided transcripts from eleven other retention hearings that
took place in Suffolk County between April 2007 and September 2010,
as well as four written determinations from hearing officers. (Pl.
56.1 Stmt. Exs. D-R.)7

These motions are presently pending before

the Court.
DISCUSSION
The Court will first discuss the applicable standard of
review before addressing the merits of the parties’ motions.

Plaintiff moved solely on the issue of liability,
notwithstanding counsel’s assertion at the October 5, 2012 premotion conference that Plaintiff would be moving on both damages
and liability.
6

The County objects to the admissibility of these exhibits
pursuant to Rule 37(c) of the Federal Rules of Civil Procedure
on the grounds that Plaintiff failed to disclose them during the
course of discovery. There are two issues with the County’s
argument. First, the Court may take judicial notice of the
transcripts and judicial determinations. See Pelosi v. Spota,
607 F. Supp. 2d 366, 371 (E.D.N.Y. 2009) (citing Global Network
Comm’cns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir.
2006)). Second, “discovery need not be required of documents of
public record which are equally accessible to all parties.”
See, e.g., Krause v. Buffalo & Erie Cnty. Workforce Dev.
Consortium, Inc., 426 F. Supp. 2d 68, 90 (W.D.N.Y. 2005).
Therefore, Plaintiff was not required to produce the
transcripts, and thus there is no basis for preclusion under
Rule 37(c). See, e.g., Bey v. City of N.Y., No. 99-CV-3873,
2010 WL 3910231, at *4 (S.D.N.Y. Sept. 21, 2010).
7

14

I.

Standard of Review
Summary judgment is appropriate where “the movant shows

that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

FED. R. CIV.

P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986).

“In assessing the record to determine whether there is a

genuine issue to be tried as to any material fact, the court is
required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought.”

McLee v. Chrysler Corp., 109 F.3d 130, 134

(2d Cir. 1997).
“The burden of showing the absence of any genuine dispute
as to a material fact rests on the party seeking summary judgment.”
Id.; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90
S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

A genuine factual issue

exists if “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”
To

defeat

summary

judgment,

“the

Anderson, 477 U.S. at 248.
non-movant

must

‘set

forth

specific facts showing that there is a genuine issue for trial.’”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)
(quoting Anderson, 477 U.S. at 256).

“[M]ere speculation or

conjecture as to the true nature of the facts” will not overcome
15

a motion for summary judgment.

Knight v. U.S. Fire Ins. Co., 804

F.2d 9, 12 (2d Cir. 1986); see also Williams v. Smith, 781 F.2d
319, 323 (2d Cir. 1986) (“Mere conclusory allegations or denials
will not suffice.” (citation omitted)); Weinstock, 224 F.3d at 41
(“[U]nsupported allegations do not create a material issue of
fact.”).
“The same standard applies where, as here, the parties
filed cross-motions for summary judgment . . . .”

See Morales v.

Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001) (citing
Terwilliger v. Terwilliger, 206 F.3d 240, 244 (2d Cir. 2000)).
Thus, even if both parties move for summary judgment and assert
the absence of any genuine issues of material fact, “a district
court is not required to grant judgment as a matter of law for one
side or the other.”

Heublein, Inc. v. United States, 996 F.2d

1455, 1461 (2d Cir. 1993).

“Rather, each party’s motion must be

examined on its own merits, and in each case all reasonable
inferences must be drawn against the party whose motion is under
consideration.”

Morales, 249 F.3d at 121 (citation omitted).

Here, however, as none of the material facts are in
dispute and the parties’ arguments in support of and opposing
summary judgment are identical, rather than address each motion
separately, the Court will instead discuss the merits of the
parties’ arguments in their moving and opposition briefs one claim
at a time.
16

II.

Analysis
Plaintiff brings his claims pursuant to 42 U.S.C. § 1983,

which provides, in relevant part, that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law.
42 U.S.C. § 1983.

Thus, to prevail on a claim under Section 1983,

a plaintiff must establish that: (1) the defendant acted under
color of state law and (2) as a result of the defendant’s actions,
the plaintiff suffered a deprivation of his or her rights or
privileges as secured by the Constitution or laws of the United
States.

See Am. Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–

50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130, 143 (1999).

For a

municipality to be held liable under Section 1983, a plaintiff
must

further

demonstrate

that

the

constitutional

violation

complained of was caused by a municipal “policy or custom.” Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978).

The Court will address the parties’ arguments

regarding the alleged constitutional violations and the County’s
liability under Monell separately.

17

A.

Alleged Constitutional Violations
“It is well-settled that § 1983 does not create a federal

right or benefit; it simply provides a mechanism for enforcing a
right or benefit established elsewhere.”

Morris–Hayes v. Bd. of

Educ., 423 F.3d 153, 159 (2d Cir. 2005).

Here, the Plaintiff

asserts that his rights to procedural and substantive due process,
as protected by the Fourteenth Amendment, were violated.
1.

Procedural Due Process Claim

To prevail on a procedural due process claim, Plaintiff
must show that he: (1) had a “protected liberty or property
interest” and (2) was “deprived of that interest without due
process.”

McMenemy v. City of Rochester, 241 F.3d 279, 286 (2d

Cir. 2001).

Here, it is undisputed that Plaintiff had a protected

property interest in his Ferrari.

At issue is whether he was

afforded adequate process.
Notwithstanding the Court’s prior Memorandum and Order,
which explicitly held that the unnecessary delay, Ms. Green’s
failure to establish by a preponderance of the evidence that
retention was necessary, and Justice DiNoto’s failure to make
findings on the record regarding Krimstock’s second and third
prongs

all

constitute

violations

of

Plaintiff’s

right

to

procedural due process, the County argues that it is entitled to
summary judgment on this claim.

The County makes basically two

arguments--neither of which is of any merit.
18

First, the County argues that there was no procedural
due process violation because Ms. Green “in essence argued” that
it was necessary to retain the vehicle to preserve the County’s
interest.

(Cnty. Mot. 5.)

The Court disagrees.

Although Ms.

Green did state at the hearing that she believed that, due to
Plaintiff’s driving record, vehicle retention was necessary to
ensure its availability for a judgment of forfeiture (see Pl. 56.1
Stmt. Ex. B, at 15-16), “the County’s burden was to establish that
it was ‘necessary’ to retain [Plaintiff]’s car by a preponderance
of the evidence, not a preponderance of attorney argument.” Boyle,
2010 WL 4340627, at *4. As the Court stated in its prior Memorandum
and Order, the County failed to introduce any evidence regarding
the necessity of retention, Ferrari, 790 F. Supp. 2d at 42, “[a]nd
attorney argument is not evidence,” Boyle, 2010 WL 4340627, at *4
(finding

that

the

County’s

“conclusory

argument”

that

the

stipulated exhibits concerning the plaintiff’s likely guilt, his
previous conviction, and his ownership of the car established that
retention was necessary was insufficient to satisfy due process).8

The County attempts to distinguish Boyle by arguing that the
circumstances surrounding the arrest in Boyle were less
egregious than the circumstances here--i.e., Boyle was only
charged with misdemeanor offenses and had a less extensive
criminal history than Plaintiff. However, as the Court stated
above, such evidence supports a finding of probable cause for
arrest, not necessarily a finding that retention was necessary
to preserve the County’s interest in the vehicle. The County
must establish by a preponderance of the evidence that “less
drastic measures than continued impoundment, such as a bond or a
8

19

Second, the County argues that Plaintiff’s “failure to
avail himself of State procedural remedies such as an Article 78
proceeding to challenge the post-seizure determination” precludes
his procedural due process claim.
disagrees.

(Cnty. Mot. 18.)

The Court

Although the Second Circuit has held that an Article

78 proceeding generally satisfies due process “if the deprivation
is caused by random, unauthorized state conduct,” Kraebel v. N.Y.C.
Dep’t of Hous. Pres. & Dev., 959 F.2d 395, 404 (2d Cir. 1992)
(citing Parratt v. Taylor, 451 U.S. 527, 543, 101 S. Ct. 1908, 68
L. Ed. 2d 420 (1981); Hudson v. Palmer, 468 U.S. 517, 533, 104 S.
Ct. 3194, 82 L. Ed. 2d 393 (1984)), an Article 78 proceeding is
not sufficient where “it is the state system itself that destroys
a complainant’s property interest, by operation of law,” Logan v.
Zimmerman Brush Co., 455 U.S. 422, 436, 102 S. Ct. 1148, 71 L. Ed.
2d 265 (1982); see also Hellenic Am. Neighborhood Action Comm. v.
City

of

N.Y.,

101

deprivation

occurs

established

state

F.3d
in

877,
the

procedures,

880
more

(2d

Cir.

1996)

structured

rather

than

(“When

the

environment

of

random

acts,

the

restraining order,” would not protect its interest in the
vehicle during the pendency of the proceedings. Krimstock I,
306 F.3d at 70. That Plaintiff, due to his driving record, was
arguably more likely to damage his vehicle than the plaintiff in
Boyle, does not speak to whether a less severe alternative, such
as an interlock device, was available. No evidence as to the
availability of alternatives to retention was presented in
either case, and, for that reason, the Court finds that Boyle is
directly on point.
20

availability of postdeprivation procedures will not, ipso facto,
satisfy due process.”); Van Oss v. New York, 783 F. Supp. 2d 681,
695

(S.D.N.Y.

2011)

(“[W]here

the

deprivation

is

systemic,

litigants have a well-established right to pursue their claims in
federal court without resorting to state judicial remedies.”).
In the present case, the issue is not whether Justice
DiNoto was a lone judge who randomly misapplied the law or whether
Assistant County Attorney Green arbitrarily attempted to shift the
burden to Plaintiff.

If this were the case, the County’s argument

that the availability of a state remedy bars any due process claim
would be much stronger.
procedures

for

vehicle

Rather, the issue is whether the County’s
retention

hearings,

in

fact,

ignore

Krimstock and the Suffolk County Administrative Code. See Ferrari,
790 F. Supp. 2d at 44 (framing the issue as whether “the County
has a pattern and practice of not applying Krimstock, because its
neutral hearing officers routinely only require the County to show
‘probable cause,’ thereby ignoring the ‘necessity’ prong”); cf.
Nnebe v. Daus, 644 F.3d 147, 160 (2d Cir. 2011) (remanding an
action regarding the adequacy of post-deprivation hearings for
suspended taxi drivers to the district court to develop the record
because, although the official standard for the hearings “may well
be within the range of adequate due process protections,” that
standard “appears to be an oft-quoted nullity that in no way
resembles a part of the standard” actually applied).
21

Because the

deprivation

here

is

allegedly

systemic,

and

not

random,

the

availability of an Article 78 proceeding does not bar Plaintiff’s
claim.

Cf. Boyle, 2010 WL 4340627, at *4 (finding that the

plaintiff,

who

had

not

commenced

an

Article

78

proceeding,

nonetheless established “a certainty of success” on his claim that
his

post-seizure

vehicle

retention

hearing

violated

process rights for failing to comply with Krimstock I).

his

due

Whether

Plaintiff has sufficiently established that his deprivation was
systemic will be addressed infra.
2.

Substantive Due Process Claim

To prevail on a substantive due process claim, Plaintiff
must establish that that the County infringed on a protected
liberty or property interest in an arbitrary or irrational manner
that shocks the conscience.

See Natale v. Town of Ridgefield, 170

F.3d 258, 262 (2d Cir. 1999); Local 342 v. Town Bd., 31 F.3d 1191,
1196 (2d Cir. 1994).

Not all property rights, however, are

entitled to the protections of substantive due process.

See Local

342, 31 F.3d at 1196. “Substantive due process protects only those
interests that are ‘implicit in the concept of ordered liberty,’”
id. (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct.
149, 82 L. Ed. 2d 288 (1937))--i.e., those rights that are “so
rooted in the traditions and conscience of our people as to be
ranked as fundamental,” United States v. Salerno, 481 U.S. 739,
751, 107 S. Ct. 1439, 123 L. Ed. 2d 1 (1993)); see also Regents of
22

Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S. Ct. 507, 88 L.
Ed.

2d

523

(1985)

(Powell,

J.,

concurring)

(“While

property

interests are protected by procedural due process even though the
interest is derived from state law rather than the Constitution,
substantive

due

process

rights

are

created

only

by

the

Constitution.”); cf. Albright v. Oliver, 510 U.S. 266, 272, 114 S.
Ct. 807, 127 L. Ed. 2d 114 (1994) (“The protections of substantive
due process have for the most part been accorded to matters
relating to marriage, family, procreation, and the right to bodily
integrity.” (citing Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833, 847-849, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992))).
The Court finds that Plaintiff’s property interest in his vehicle
is not the type of fundamental right subject to substantive due
process protections.

See, e.g., Wrench Transp. Sys., Inc. v.

Bradley, 340 F. App’x 812, 816 (3d Cir. 2009) (finding that a
plaintiff’s personal property interest in his trucks, which were
seized

by

the

municipality

in

connection

with

a

criminal

investigation, was not “fundamental” and thus not entitled to
substantive due process protections).
Accordingly, the County’s motion for summary judgment on
the substantive due process claim is GRANTED, Plaintiff’s motion
on this claim is DENIED, and Plaintiff’s substantive due process
claim is DISMISSED WITH PREJUDICE.

23

B.

Monell Liability
A municipality may not be held liable under Section 1983

for alleged unconstitutional actions committed by its employees
solely on the basis of respondeat superior.

Monell, 436 U.S. at

690–91. Rather, as the Court stated above, “to hold a municipality
liable in such an action, a plaintiff is required to plead and
prove three elements: (1) an official policy or custom that (2)
causes

the

plaintiff

to

constitutional right.”

be

subjected

to

(3)

a

denial

of

a

Zahra v. Town of Southold, 48 F.3d 674,

685 (2d Cir. 1995) (internal quotation marks and citation omitted);
see also Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008).

A

plaintiff can establish the existence of a municipal policy or
custom by showing: (1) the existence of a formal policy which is
officially endorsed by the municipality; (2) actions taken or
decisions made by municipal officials with final decision-making
authority, which caused the alleged violation of plaintiff’s civil
rights; (3) a practice so persistent and widespread that it
constitutes

a

custom

of

which

constructive

knowledge

and

acquiescence can be implied on the part of the policy making
officials; or (4) a failure by policymakers to properly train or
supervise

their

subordinates,

amounting

to

“deliberate

indifference” to the rights of those who come in contact within
the municipal employees.

Sulehria v. City of N.Y., 670 F. Supp.

24

2d 288, 320 (S.D.N.Y. 2009); see also Davis v. Lynbrook Police
Dep’t, 224 F. Supp. 2d 463, 478 (E.D.N.Y. 2002).
Here, Plaintiff asserts two grounds for establishing
Monell liability: that the County’s hearing officers and assistant
county attorneys’ practice of ignoring Krimstock and the Suffolk
County Administrative Code is so widespread that it constitutes a
municipal custom and/or that the County failed to train its hearing
officers

and

assistant

county

attorneys

on

constitutionally sufficient retention hearings.

how

to

conduct

The Court will

address each ground separately.
1.

Municipal Custom

There are three different due process violations that
could give rise to municipal liability here:

(1) the unnecessary

delay of Plaintiff’s hearing due to the County’s belief that
Plaintiff had to be present, (2) the County’s failure to satisfy
its burden under Krimstock, and (3) Justice DiNoto’s failure to
issue a statement of findings.

As to the unnecessary delay,

Plaintiff has presented no evidence regarding any other incidents
of delay arising out of the County’s erroneous belief that the
respondent had to be present, and a single incident involving an
employee below the policymaking level is insufficient to support
an inference of municipal policy or custom, Oklahoma City v.
Tuttle, 471 U.S. 808, 823-24, 105 S. Ct. 2427, 85 L. Ed. 2d 791
(1985); see also Bliven v. Hunt, 478 F. Supp. 2d 332, 337 & n.2
25

(E.D.N.Y.

2007)

(finding

that

municipal

judges

are

not

policymakers under Monell), aff’d, 579 F.3d 204 (2d Cir. 2009).
Similarly, Plaintiff has failed to establish a pattern or practice
of hearing officers failing to issue a statement of findings.
Plaintiff

has

introduced

four

determinations

from

hearing

officers--three from Justice DiNoto that are all identical to the
determination in the present case and one from another hearing
officer that is similarly deficient.
Q, R.)

(Pl. 56.1 Stmt. Exs. F, N,

Two were accompanied by transcripts of the hearing, and

two were not.

Without the transcripts, however, the Court cannot

determine whether the hearing officer made a statement of findings
on the record.

Accordingly, the Court cannot find as a matter of

law that the two other incidents establish a custom under Monell.
See, e.g., Marcavage v. City of Phila., No. 04-CV-4741, 2006 WL
2338261, at *9 (E.D. Pa. Aug. 9, 2006) (finding as many as seven
incidents

insufficient

to

establish

a

municipal

custom

under

Monell).
The Court does find that Plaintiff has established that
the County has a widespread practice of failing to meet its burden
under Krimstock.

Plaintiff has introduced transcripts from eleven

retention hearings where the assistant county attorney not only
failed to introduce evidence of the necessity of retention, but
repeatedly misrepresented the law by attempting to shift the burden
of establishing hardship onto the respondent.
26

(See Pl. 56.1 Stmt.

Ex. D, at 12-16, 18-19 (transcript of April 23, 2007 hearing, where
the County argued that retention was proper because it “ha[d]
established probable cause for the DWI arrest” and “would likely
succeed on the merits if it was for [sic] the County to bring a
forfeiture action against the defendant for retention of the
vehicle”--there was no mention of necessity of retention at the
hearing

and

the

County

questioned

the

respondent

regarding

hardship); id. Ex. E, at 25-26 (transcript of December 17, 2007
hearing, where there was no mention of necessity of retention and
the County questioned the respondent regarding hardship); id. Ex.
G, at 13-14 (transcript of May 19, 2009 hearing, where there was
no mention of necessity of retention and the County questioned the
respondent regarding hardship); id. Ex. H, at 47-49 (transcript of
June 1, 2009 hearing, where the County argued that it “ha[d] proved
beyond a reasonable doubt that there was probable cause[,] . . .
that there ha[d] been no hardship indicated by [the respondent,
and]

.

.

.

that

[the

County]

w[ould]

be

successful

on

any

forfeiture action, if [it was] allowed to retain the vehicle”-there was no mention of necessity of retention); id. Ex. I, at 1112 (transcript of September 22, 2009 hearing, where the County
argued that “there was probable cause for the stop and arrest”
based on the documentary evidence submitted and that the respondent
failed to establish hardship--there was no mention of necessity of
retention); id. Ex. J, at 20-23 (transcript of December 7, 2009
27

hearing, where the County argued that there was probable cause for
the stop and arrest based on the documentary evidence submitted,
that it would be successful on merits of any forfeiture action,
and, in response to the respondent’s request that the vehicle be
equipped with an interlock device, that “no real hardship ha[d]
been established”); id. Ex. K, at 19-20 (transcript of December
12, 2009 hearing, where the County argued that it had established
probable cause for the arrest and likelihood of success in a
forfeiture action but did not mention alternatives to retention);
id. Ex. L, at 23-24 (transcript of April 29, 2010 hearing, where
the County argued that it had established probable cause for the
arrest and likelihood of success in a forfeiture action and that,
“[b]ased on the risk to the public at large, [the respondent]
should not be driving” so retention was necessary to preserve the
vehicle--whether alternatives to retention were available was not
discussed); id. Ex. M, at 12-13 (transcript of July 29, 2010
hearing, where the County argued that it had established probable
cause and likelihood of success on the merits, but also argued
that retention was necessary because the respondent had prior
convictions and “[a] motor vehicle is destructible by their [sic]
own nature”--there was no mention of the availability of lessrestrictive alternatives to retention); id. Ex. O (the transcript
of the hearing in Boyle, discussed supra); id. Ex. P, at 47-49
(transcript of September 28, 2010 hearing where the County argued
28

that retention was appropriate because: (i) it had established
probable cause and likelihood of success in a forfeiture action,
(ii) the respondent failed to introduce any evidence regarding
hardship, and (iii) retention was necessary to preserve the vehicle
in its current condition, even though no discussion of alternatives
The transcripts span a period of

to retention were discussed).)9
over

three

years,

involve

four

different

hearing

officers,

including Justice DiNoto, and three different assistant county
attorneys, including Ms. Green.

Further, although eleven other

incidents over a three-year span may not on their own be sufficient
to establish municipal liability as a matter of law, Ms. Green
testified at her deposition that her training with respect to
retention hearings consisted of observing other assistant county
attorneys conduct hearings and that the legal arguments that she
asserted at Plaintiff’s hearing--namely that Plaintiff bore the

The County argues that this Court cannot determine whether the
County met its burden at these eleven other hearings because
Plaintiff has failed to provide the Court with the exhibits
introduced at those hearings. The Court disagrees. In each of
these hearings, similar to Plaintiff’s hearing, the County
introduced the following documentary evidence: the charging
instrument, an alcohol/drug influence report, a report of the
respondent’s refusal to submit to a chemical test (if
applicable), evidence of any other convictions and the
respondent’s driving record, a Department of Motor Vehicle
printout indicating the registration and title owner, and the
Notice of Seizure and Hearing. The Court is familiar with these
types of records and finds that it is not reasonable to infer
that such records would contain information regarding whether
alternatives to retention would preserve the County’s interest
in the vehicle.
9

29

burden of establishing hardship--was consistent with the training
she received.

(Antwork Decl. Ex. A, Green Dep. 13-14, 23-24, 110-

11, 123-24.)

In other words, the other assistant county attorneys

were similarly misrepresenting the law and their burden at these
retention hearings.

Finally, the County has not come forward with

one example of a hearing in which the County did, in fact,
establish that there were no less restrictive means of preserving
the vehicle pending a determination regarding forfeiture.

The

Court finds that this is sufficient to establish, as a matter of
law, that the County’s practice of attempting to shift the burden
to the respondent and failing to establish the necessity of
retention was so widespread as to constitute a custom under Monell.
Accordingly, the Court hereby GRANTS summary judgment in
favor of Plaintiff on his procedural due process claim arising out
of the County’s failure to establish its burden at his retention
hearing and DENIES the County’s motion for summary judgment on
this same claim.
2.

Failure to Train

For the purpose of completeness, the Court will address
whether Plaintiff has established Monell liability for his other
two procedural due process claims by showing a failure to train.
To support a claim that a municipality’s failure to train amounted
to “deliberate indifference,” a plaintiff must establish:

(1)

that “a policymaker [of the municipality] knows ‘to a moral
30

certainty’ that [its] employees will confront a given situation;”
(2) that “the situation either presents the employee with a
difficult choice of the sort that training or supervision will
make less difficult or that there is a history of employees
mishandling the situation;” and (3) that “the wrong choice by the
. . . employee will frequently cause the deprivation of a citizen’s
constitutional rights.”

Walker v. City of N.Y., 974 F.2d 293,

297-98 (2d Cir. 1992) (citations omitted).

With respect to the

first element, a plaintiff “must do more than show the need for
training

on

policymaker’s

the

issue;

specific

[he]

choice

must
with

show
respect

how
to

a

particular

the

training

deficiency at issue reflects ‘deliberate indifference’ to their
constitutional rights, and how this indifference directly caused
their injuries.”

Ferreira v. Westchester Cnty., 917 F. Supp. 209,

215-16 (S.D.N.Y. 1996) (quoting City of Canton v. Harris, 489 U.S.
378, 388-89, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)).
In the present case, Plaintiff has failed to introduce
any evidence of how hearing officers are trained; therefore, the
Court must GRANT summary judgment in favor of the County on
Plaintiff’s due process claim regarding Justice DiNoto’s failure
to issue a statement of findings.

Further, although Plaintiff has

introduced some evidence of how assistant county attorneys were
trained to conduct retention hearings, he has failed to identify
any policymakers involved in implementing that training, let alone
31

“show how a particular policymaker’s specific choice with respect
to

the

training

deficiency

at

issue

reflects

‘deliberate

indifference’ to their constitutional rights,” id. at 215-16.
Accordingly, the Court must GRANT summary judgment in favor of the
County on these procedural due process claims as well.
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

motion

for

summary judgment on the issue of liability is GRANTED IN PART and
DENIED IN PART, and the County’s motion for summary judgment is
also GRANTED IN PART and DENIED IN PART.

Summary judgment is

GRANTED in favor of Plaintiff on the issue of liability on the
procedural due process claim arising out of the County’s failure
to meet its burden at retention hearings and is otherwise DENIED.
Summary

judgment

substantive

due

is

GRANTED

process

in

claim

favor
as

well

of
as

the

County

Plaintiff’s

on

the

other

procedural due process claims, and those claims are DISMISSED WITH
PREJUDICE.

The County’s motion is otherwise DENIED.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

32

The action is hereby REFERRED to Magistrate Judge Gary
R. Brown to resolve any remaining pretrial issues and to determine
whether this action is ready for trial on the issue of damages on
the procedural due process claim for which summary judgment has
been granted in favor of Plaintiff--i.e., the claim regarding the
County’s failure to meet its burden at retention hearings.

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

August
6 , 2013
Central Islip, NY

33