Spagnuolo v. Suffolk County et al

Filing 50

MEMORANDUM & ORDER re: 24 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. It is GRANTED as to Plaintiff's Section 1983 claim and Plaintiff's claims for allegedly slanderous statements made to private investigators and during the course of the police investigation and Grand Jury hearing. It is DENIED as to allegedly slanderous claims made to a 9-1-1 operator. Hubbard did not move to dismiss Plaintiff's intentional and negligent infliction of emotional distress claims against her and such claims will proceed. To the extent that Hubbard's counter-claims rest upon any of the claims dismissed herein, her counterclaims are also DISMISSED. Ordered by Judge Joanna Seybert on 7/24/2013. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
PETER V. SPAGNUOLO,
Plaintiff,

MEMORANDUM & ORDER
12-CV-4327(JS)(ETB)

-againstSUFFOLK COUNTY, SUFFOLK COUNTY
POLICE DEPARTMENT, FORMER POLICE
COMMISSIONER RICHARD DORMER,
DETECTIVE MARLENE TULLY, DETECTIVE
DENNIS MURPHY, COMMANDING OFFICER
JAMES RHOADES, JOHN DOE’S NUMBERS
1-5 THOSE OFFICERS BEING OFFICERS
WHO ASSISTED IN THE ARREST,
INVESTIGATION AND/OR PROSECUTION
OF PLAINTIFF, SUFFOLK COUNTY
DISTRICT ATTORNEY’S OFFICE,
DISTRICT ATTORNEY THOMAS J. SPOTA,
ASSISTANT DISTRICT ATTORNEY
LAWRENCE OPISSO, SUFFOLK COUNTY
SHERIFF’S DEPARTMENT, SHARON
HUBBARD, and COREY BONAVIA,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
Peter V. Spagnuolo, pro se
120 E. Main Street
Mount Kisco, NY 10549
For Defendant
Hubbard:

Joseph DeDonato, Esq.
Morgan Melhuish Arvidson Abrutyn & Lisowski
39 Broadway, 35th Floor
New York, NY 10006

For Defendants
Suffolk County,
Dormer, Tully,
Murphy, Rhoades:

Jason Bassett, Esq.
Susan A. Flynn, Esq.1
Office of the County Attorney
H. Lee Dennison Building
100 Veterans Memorial Highway

The docket lists Ms. Flynn’s appearance for Suffolk County
only.
1

1

P.O. Box 6100
Hauppauge, NY 11788
SEYBERT, District Judge:
Currently pending before the Court is Defendant Sharon
Hubbard’s (“Hubbard”) Motion to Dismiss (Docket Entry #24).

For

the foregoing reasons, Hubbard’s motion is GRANTED IN PART and
DENIED IN PART.
BACKGROUND2
Pro se Plaintiff Peter V. Spagnuolo (“Plaintiff”), an
attorney admitted to practice law in the State of New York,
commenced

this

action

on

August

28,

2012

against

Defendants

Suffolk County, Suffolk County Police Department, former Police
Commissioner Richard Dormer, Detective Marlene Tully, Detective
Dennis
numbers

Murphy,
1-5,

Commanding

the

Suffolk

Officer
County

James
District

Rhoades,

John

Attorney’s

Does

Office,

District Attorney Thomas J. Spota, Assistant District Attorney
Lawrence Opisso, the Suffolk County Sheriff’s Department, Sharon
Hubbard, and Corey Bonavia (collectively “Defendants”).

(See

Compl. ¶ 20.)
Although Plaintiff brought this case against various
Defendants, the Court will discuss only those facts relevant to
the

pending

motion.

Specifically,

in

April

2011,

Plaintiff

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2

2

decided to propose to his girlfriend, Tamara Peterson, and began
searching for an engagement ring.

(Compl. ¶ 23.)

As part of

this search, Plaintiff checked craigslist.com, where he saw a
listing from Defendant Hubbard advertising an engagement ring
for sale.

(Compl. ¶¶ 24-25.)

Plaintiff contacted Hubbard via

email about the ring, but ultimately decided that the requested
price was too high and that he was not interested in purchasing
the ring from Hubbard.
On
himself

as

May

11,

“Pete”

(Compl. ¶¶ 25, 28.)
2011,

came

to

(Compl. ¶¶ 76-77, 81.)

an

individual

Hubbard’s

who

had

to

view

home

identified
the

ring.

This individual arrived at Hubbard’s

residence driving a light-colored sedan and smoking a cigarette.
(Compl. ¶ 82.)

Two witnesses, John Kupres and Corey Bonavia,

described the gentleman as “six feet tall” and “over six feet
tall.”

(Compl. ¶ 31.)

The gentleman entered Hubbard’s home and

suddenly drew a gun, or what appeared to be a gun, and fled with
the ring.

(Compl. ¶ 84.)
Subsequently, Hubbard met with Detective Marlene Tully

(“Tully”) and identified Plaintiff from a photo lineup, although
Plaintiff is 5’8” or less and did not fit the description of
“six feet tall” or more.

(Compl. ¶¶ 32, 34.)

Plaintiff alleges

that Tully erroneously allowed Hubbard to see his picture prior
to the photo array or that Tully otherwise pointed Plaintiff out
and that she did not use the proper procedures in presenting
3

Hubbard with the photo array.

(Compl. ¶¶ 35-36.)

Also during

that meeting with police, Hubbard stated that the robber drove a
gray sedan.

(Compl. ¶ 40.)

After police learned that Plaintiff

had owned a gray Panoz, described as “an oddly shaped sports
car” (Compl. ¶ 41), Hubbard “swore that night that the robber
was driving an ‘odd shaped gray car’” (Compl. ¶ 44).
On May 31, 2011, police arrested Plaintiff.
¶¶

55-57.)

Plaintiff

was

arraigned

the

ultimately appeared before a Grand Jury.
Hubbard

testified

before

the

Grand

next

(Compl.

morning

(Compl. ¶¶ 117, 125.)

Jury

and,

according

Plaintiff, “provided false and incomplete testimony.”
¶ 128.)

Thereafter,

perpetrator,

however,

Christopher

“the

Wolkoff,

identity

was

(Compl. ¶ 139.)

to

criminal

crime

dismissed.

and

the

case

to

(Compl.

of

established

subpoena to craigslist.”
the

and

the

real

through

a

Mr. Wolkoff confessed
against

Plaintiff

was

(Compl. ¶¶ 66-67.)
Plaintiff now brings suit against various defendants

for constitutional violations pursuant to 42 U.S.C. § 1983 and
for

additional

state

law

violations.

The

Court

reads

the

Complaint to assert the following claims, and only the following
claims,

against

Hubbard:

(1)

a

claim

pursuant

to

42

U.S.C.

§ 1983 (“Section 1983”) that Hubbard conspired with others to,
inter

alia,

Plaintiff

offer

(Compl.

false
¶

181

statements
(Fourth
4

and

Cause

testimony
of

against

Action));

(2)

intentional

infliction

of

emotional

distress

(Compl.

¶

198

(Sixth Cause of Action)); (3) negligent infliction of emotional
distress

(Compl.

¶

203

(Seventh

Cause

of

Action));

and

(4)

slander (Compl. ¶¶ 217-20 (Eleventh Cause of Action)).
DISCUSSION
Hubbard now moves to dismiss Plaintiff’s slander and
Section

1983

claims

against

her.

Hubbard

argues

that

Plaintiff’s slander claims are time-barred and privileged and
that

any

claims

pursuant

to

Section

1983

because Hubbard is not a state actor.

must

be

dismissed

The Court will first

address the applicable standard of review on a motion to dismiss
before turning to Plaintiff’s slander claims against Hubbard and
Plaintiff’s Section 1983 claims against Hubbard, in that order.
I.

Standard of Review under Rule 12(b)(6)
In

Court

deciding

applies

a

Rule

12(b)(6)

“plausibility

“[t]wo working principles.”

motions

standard,”

to

which

dismiss,
is

guided

the
by

Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court

must

accept

“inapplicable

to

all

allegations

legal

as

conclusions;”

First, although the

true,

this

thus,

“tenet”

is

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.
5

Iqbal, 556 U.S. at 678;

Second, only complaints that

state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether

a complaint does so is “a context-specific task that requires
the

reviewing

common sense.”

court

to

draw

on

its

judicial

experience

and

Id.; accord Harris, 572 F.3d at 72.

Furthermore, although Plaintiff appears in this action
pro se, Plaintiff is an attorney duly admitted to practice in
the State of New York.

(Compl. ¶ 20.)

Accordingly, Plaintiff

is not entitled to the same leniency normally afforded pro se
parties.

See Chira v. Columbia Univ. in N.Y.C., 289 F. Supp. 2d

477, 482 (S.D.N.Y. 2003) (“Although Chira proceeds pro se here,
he is an experienced attorney and accordingly the Court is not
obligated to read his pleadings liberally.”).
II.

Slander Claims
The

Complaint

makes

the

following

allegations

regarding slanderous statements by Hubbard:
217. Defendant Hubbard falsely stated
that Plaintiff robbed her to the responding
Police Officers, Detectives and others and
made
other
false
statements
regarding
Plaintiff, the case and the circumstances
surrounding the case.
218. Defendant Hubbard also stated to
private investigators that Plaintiff had
hired [sic] words to the effect that
Plaintiff robbed her.
This was at a time
when Defendant Hubbard knew that another
person had confessed to the crime and that
Plaintiff was not the perpetrator.
219. Defendant Hubbard, in the presence
of the private investigators, called 911 and
6

informed them that the person who robbed her
had sent two gentleman [sic] over to her
house.
This not only shows Defendant
Hubbard’s
indifference
to
her
initial
accusation but shows her indifference to the
truth and her readiness to lie to a 911
operator in order to obtain the response
that she desires.
(Compl. ¶¶ 217-19.)
Hubbard

maintains,

as

an

initial

matter,

that

Plaintiff’s claims are time-barred under the one-year statute of
limitations for slander.

See N.Y. C.P.L.R. 215(3).

According

to Hubbard, the alleged slanderous statements were made prior to
Plaintiff’s indictment on June 3, 2011, but Plaintiff did not
commence this suit until August 28, 2012.
Entry 24-5, at 5.)

(Hubbard Br., Docket

Plaintiff concedes that his allegations

contained in paragraph 217 regarding Hubbard’s statements to the
police

and

detectives

were

made

prior

to

June

3,

2011.

Accordingly, such claim is DISMISSED WITH PREJUDICE3.

Furthermore, to the extent that the Plaintiff attempts to raise
any other claims of slander against Plaintiff for statements she
made during the police investigation or grand jury hearing, such
statements are privileged. See Boyd v. Nationwide Mut. Ins.
Co., 208 F.3d 406, 409-10 (2d Cir. 2000) (“[G]ood faith
communications of a party having an interest in the subject, or
a moral or societal duty to speak, are protected by a qualified
privilege if made to a party having a corresponding interest or
duty.” (internal quotation marks and citation omitted)).
Hubbards’ statements essentially reporting a crime create a
rebuttable presumption of good faith. Id. at 410 (noting that
reporting a crime “easily falls within the scope of the
privilege” and that, therefore, a rebuttable presumption
arises). “To overcome the qualified privilege defense, the
plaintiff must show both that the allegedly defamatory
3

7

With
statements,

respect

only

to

those

the

remaining

statements

made

alleged
within

statute of limitations are actionable.

slanderous

the

one-year

See Carlson v. Geneva

City Sch. Dist., 679 F. Supp. 2d 355, 371 (W.D.N.Y. 2010).
if

timely,

slanderous

however,
statements

Hubbard
she

consented to by Plaintiff.

argues

made

to

that

private

any

Even

purportedly

investigators

were

The Court agrees.

Here, the Complaint provides only a vague discussion
of

the

statements

Plaintiff

alleged

investigators and to a 9-1-1 operator.

Hubbard

made

to

private

In his opposition brief,

Plaintiff maintains that he hired a private investigator in or
around December 2011, after the charges against him had been
dismissed.

(Pl. Opp. Br., Docket Entry 42, at 6-74.)

When the

private investigator and his friend questioned Hubbard, Hubbard
maintained that Plaintiff had robbed her.
7.)

(Pl. Opp. Br. at 6-

Hubbard also called 9-1-1 and told the operator “that there

statements were false and that the defendants abused their
qualified privilege.” Brattis v. Rainbow Adver. Holdings,
L.L.C., No. 99-CV-10144, 2000 WL 702921, at *5 (S.D.N.Y. May 31,
2000).
Here, however, Plaintiff offers only conclusory
allegations that Hubbard’s statements abused the privilege. See
id. at *6 (plaintiff must allege facts sufficient to show that
statements are consistent with malice); see also D’Lima v. Cuba
Mem’l Hosp., Inc., 833 F. Supp. 2d 383, 391 (W.D.N.Y. 2011)
(dismissing slander claims where plaintiff did not allege
malice).
The page numbers cited for Plaintiff’s opposition brief refer
to those provided by the Electronic Case Filing system.
4

8

were two individuals at her premises that were sent there by the
person who robbed her.”

(Pl. Opp. Br. at 7.)

“Under New York law, a cause of action for slander
contains

four

elements:

(1)

an

oral

defamatory

statement

of

fact, (2) regarding the plaintiff, (3) published to a third
party by the defendant, and (4) injury to the plaintiff.”

Boyd,

208 F.3d at 409 (internal quotation marks and citation omitted).
Here, because the alleged slanderous statements pertain to a
“serious crime,” they fall within the category of slander per se
and the Court presumes injury.
However,

See id.

statements

Hubbard

made

to

Plaintiff’s

private investigator nonetheless are not actionable.
Court

previously

noted,

the

Complaint

offers

As the

virtually

no

factual context surrounding Hubbard’s alleged statements to a
private
Plaintiff

investigator
asserts

is

or

private

that

he

investigators.
hired

one

or

All
more

that

private

investigators and that Hubbard stated “words to the effect that
Plaintiff robbed her.”
“Consent
. . . .”

is

an

a

bar

to

a

recovery

for

defamation

Teichner v. Bellan, 7 A.D.2d 247, 251, 181 N.Y.S.2d

842 (4th Dep’t 1959).
make

(Compl. ¶ 218.)

inquiry

on

When a plaintiff authorizes “an agent to
his

behalf,”

he

is

considered

to

have

consented if “he had reason to anticipate that the response
might be a defamatory one.”

Id.; accord Handlin v. Burkhart,
9

220 A.D.2d 559, 559, 632 N.Y.S.2d 608 (2d Dep’t 1995).

Thus,

when Plaintiff’s private investigator(s) appeared at Hubbard’s
house to inquire about what was likely a somewhat traumatic
event, knowing that Hubbard had at least previously suspected or
implicated Plaintiff in the armed robbery, Plaintiff certainly
could

have

anticipated

that

Hubbard

would

statements that Plaintiff was the robber.

reiterate

her

See Handlin, 220

A.D.2d at 559 (due to prior statements made during a meeting,
plaintiff

could

anticipate

statements in report).

that

defendants

would

make

same

Indeed, the very purpose of the private

investigator(s) was to inquire about the robbery.

See Fashion

Boutique of Short Hills, Inc. v. Fendi USA, Inc., No. 91-CV4544, 1998 WL 259942, at *5 (S.D.N.Y. May 21, 1998) (“When a
plaintiff engages an agent whose mission is to induce defamatory
statements,

the

defamation.”);

plaintiff

Dickson

v.

consents
Slezak,

73

to

any

A.D.3d

such
1249,

resulting
1251,

902

N.Y.S.2d 206 (3d Dep’t 2010) (“[B]ecause plaintiff hired Hills
to

garner

what

he

had

every

reason

to

anticipate

would

be

defamatory comments from defendants, he implicitly consented to
the publication of such comments.”).
Moreover, although Plaintiff has not requested leave
to

amend,

futile.

the

Court

notes

that

any

such

amendment

would

be

See Milanese v. Rust–Oleum Corp., 244 F.3d 104, 110 (2d

Cir. 2001) (leave to amend should be granted unless there is
10

evidence of undue delay, bad faith, undue prejudice to the nonmovant,

or

futility).

Here,

Plaintiff’s

opposition

brief

proffers the added factual background that Hubbard essentially
blurted out that Plaintiff was the robber before the private
investigator could even ask a question.
However,

Plaintiff’s

recitation

of

(Pl.’s Opp. Br. at 10.)

the

facts

notes

that

the

private investigator and his friend arrived at Hubbard’s house,
identified themselves, and stated that they “were retained by
the individual that she had picked out initially.”
Br. at 6-7.)
me.”

(Pl.’s Opp.

In response, Hubbard stated “the man who robbed

(Pl.’s Opp. Br. at 7.)

The parties dispute whether “the

man who robbed me” was a statement or merely a question.
event,

even

unprovoked.
Thus,

when

if

a

statement,

Hubbard’s

comment

In any

was

not

Two men came to her door, asking about the robbery.
the

private

investigator

acknowledged

the

subject

matter of his investigation, Plaintiff should have anticipated
that

Hubbard

Plaintiff’s

would
claim

make
against

such

a

Hubbard

statement.
for

alleged

Accordingly,
slanderous

statements made to the private investigator is DISMISSED WITH
PREJUDICE.
Finally, the Court turns to Hubbard’s statements made
to the 9-1-1 operator.

Once again, the Complaint is minimal,

but asserts that Hubbard called 9-1-1 “and informed them that
the person who robbed her had sent two gentleman [sic] over to
11

her house.”

(Compl. ¶ 219.)

Defamatory statements made to a

9-1-1 operator are actionable.

See Dobies v. Brefka, 273 A.D.2d

776, 777, 710 N.Y.S.2d 438 (3d Dep’t 2000) (“We further concur
with [the] Supreme Court that the first three causes of action
for defamation arising from the statements made during the 911
emergency call . . . remain viable against defendant since it is
undisputed that she communicated certain information.”).
Hubbard’s

only

argument

for

dismissal

of

this

particular claim is that “the statement to the 911 operator is
devoid of any reference to ‘Peter Spagnuolo.’”
Br., Docket Entry 43, at 4.)

(Pl.’s Reply

Failure to identify Plaintiff by

name, however, “is not necessarily fatal to his claim.”
v. Spitzer, 902 F. Supp. 2d 389, 395 (S.D.N.Y. 2012).

Gilman
At this

stage, Plaintiff must allege that the slanderous statement is
“of and concerning the plaintiff.”

Thai v. Cayre Grp., Ltd.,

726 F. Supp. 2d 323, 329 (S.D.N.Y. 2010) (internal quotation
marks and citation omitted).

The Complaint, minimal though it

may be, sufficiently pleads “a reasonable connection” between
Plaintiff

and

the

alleged

slanderous

statement.

Cardone

v.

Empire Blue Cross & Blue Shield, 884 F. Supp. 838, 847 (S.D.N.Y.
1995).

The Court cautions, however, that Plaintiff bears the

burden of proof on this issue.
329-30.

See Thai, 726 F. Supp. 2d at

Although Plaintiff does not necessarily need to plead

the exact words in this case, see Gen. Sec., Inc. v. APX Alarm
12

Sec. Solutions, Inc., 647 F. Supp. 2d 207, 216-18 (N.D.N.Y.
2009), the particular words used may ultimately govern whether
Plaintiff

can

establish

slander

against

Hubbard

for

her

statement to the 9-1-1 operator.
III.

Section 1983 Claims
Finally, Hubbard moves to dismiss any of Plaintiff’s

claims against her which are brought pursuant to Section 1983
because she is not a state actor.

The Court agrees.

To state a claim under Section 1983, a plaintiff must
“allege

that

(1)

the

challenged

conduct

was

attributable

at

least in part to a person who was acting under color of state
law

and

(2)

the

conduct

deprived

the

plaintiff

of

a

guaranteed under the Constitution of the United States.”

right
Snider

v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999); see also Cornejo v.
Bell,

592

F.3d

121,

127

(2d

Cir.

2010).

Only

in

limited

circumstances will courts recognize that a private individual
may be subject to liability under Section 1983.
Plaintiff here alleges that Hubbard acted under color
of state law by conspiring with state actors.

(Pl. Opp. Br. at

12.)

“To state a claim against a private entity on a section

1983

conspiracy

theory,

the

complaint

must

allege

facts

demonstrating that the private entity acted in concert with the
state actor to commit an unconstitutional act.”

Ciambriello v.

Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (internal
13

quotation

marks

Culbertson,

200

and

citation

F.3d

65,

omitted);

72

(2d

Cir.

see

also

1999)

Pangburn

(stating

that

v.
a

Section 1983 conspiracy requires (1) an agreement between state
and

private

actors;

unconstitutional
furtherance

of

“(2)

injury;
that

to

act

and

goal

in

(3)

causing

concert

an

to

overt

act

damages”).

inflict
done
“A

an
in

merely

conclusory allegation that a private entity acted in concert
with a state actor does not suffice to state a § 1983 claim
against the private entity.”

Ciambriello, 292 F.3d at 324; see

also Spear, 954 F.2d at 68.
To the extent that Plaintiff is asserting that Hubbard
conspired with Tully, Murphy, or any of the other Defendants,
the Complaint is lacking any allegations that would plausibly
suggest a “meeting of the minds.”
110 (2d Cir. 2003).

Webb v. Goord, 340 F.3d 105,

Rather, Plaintiff makes allegations such as

that Tully improperly suggested Plaintiff to Hubbard, and that
Hubbard essentially changed her story at times.
devoid

from

those

assertions

is

an

However, wholly

allegation

to

“plausibly

suggest[] that these acts were done in furtherance of an agreed
upon conspiracy.”

Bermudez v. City of N.Y., No. 11-CV-0750,

2013 WL 593791, at *8 (S.D.N.Y. Feb. 14, 2013).

Thus, Hubbard’s

motion to dismiss Plaintiff’s Section 1983 claim against her is
GRANTED and such claim is DISMISSED WITH PREJUDICE.

14

CONCLUSION
For the foregoing reasons, Hubbard’s motion to dismiss
is GRANTED IN PART and DENIED IN PART.

It is GRANTED as to

Plaintiff’s

Section

her

claims

allegedly

for

1983

claim

slanderous

against

statements

and
made

Plaintiff’s
to

private

investigators and during the course of the police investigation
and Grand Jury hearing.

It is DENIED as to allegedly slanderous

claims made to a 9-1-1 operator.

Furthermore, Hubbard did not

move to dismiss Plaintiff’s intentional and negligent infliction
of emotional distress claims against her, and accordingly such
claims will proceed.
To the extent that Hubbard’s counter-claims rest upon
any of the claims dismissed herein, her counterclaims are also
DISMISSED.
SO ORDERED.

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

July
24 , 2013
Central Islip, NY

15