Daytree at Cortland Square, Inc. et al v. Walsh et al
Filing
65
ORDER granting in part and denying in part 56 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, the Court grants defendants' motion to dismiss the claims for declaratory and injunctive relief and all claims against the councilmember defendants (Flotteron, Cochrane, and Weichbrodt), but denies the motion in all other respects. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/15/2018. (Baum, Sabrina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-2298 (JFB) (AYS)
_____________________
DAYTREE AT CORTLAND SQUARE, INC., ET AL.,
Plaintiffs,
VERSUS
MICHAEL P. WALSH, ET AL.,
Defendants.
_______________________
MEMORANDUM AND ORDER
August 15, 2018
_______________________
JOSEPH F. BIANCO, District Judge:
Plaintiffs Thomas A. Datre Sr. (“Mr.
Datre”), Clara Datre (“Mrs. Datre” and,
together with Mr. Datre, the “Datres”), and
Daytree at Cortland Square, Inc. (“Daytree”
and, collectively, “plaintiffs”) bring this
action against defendants Michael P. Walsh,
Edward Walsh,1 Michael Torres, Robert L.
Cicale, and Anthony S. Senft, Jr.;
councilmembers of the Town of Islip (the
“Town”) Steven J. Flotteron, John C.
Cochrane, Jr., and Trish Bergin Weichbrodt
(“councilmember defendants”) in their
official capacities; and the Town
(collectively, “defendants”). Plaintiffs bring
their claims pursuant to 42 U.S.C. §§ 1983
and 1988, alleging violations of their Fourth,
Eighth, and Fourteenth Amendment rights.
Plaintiffs bring claims for declaratory and
injunctive relief, as well as defamation
1
On August 21, 2015, the complaint was dismissed by
stipulation as against Edward Walsh. (ECF No. 25.)
(libel), stigma-plus, breach of contract, and
Section 1983 conspiracy.
In particular, plaintiffs allege that
defendants conspired and carried out a plan
to cause local authorities and the public to
wrongly believe plaintiffs were responsible
for dumping toxic materials in the Roberto
Clemente Park (the “Park”), a public park in
the Town. Plaintiffs allege that, as part of the
conspiracy, defendant Michael Walsh used
his position as Deputy Town Attorney to
proclaim that the Town had completed an
investigation and determined that plaintiff
Daytree was responsible for the toxic
dumping—a statement that defendants
allegedly knew to be false. Specifically,
plaintiffs assert that there was no
investigation by the Town, nor was there a
finding that Daytree was responsible.
Additionally, plaintiffs claim that defendants
shared this false information with the Suffolk
Thus, references to “defendant Walsh” in this opinion
are to Michael Walsh.
County District Attorney’s Office (“DA’s
Office”) and the media, leading to
widespread dissemination via social media.
Plaintiffs allege that defendants’ defamatory
statements were motivated by a desire to
deflect blame for the environmental scandal
onto plaintiffs for defendants’ own political
gain.
claim for defamation (libel) and, although
defendants argue that the statements are
subject to the litigation privilege because
they were made in a notice letter to insurance
carriers, the issue of privilege cannot be
decided on a motion to dismiss in this case
(especially in light of the allegations of bad
faith and malice). Plaintiffs have also
sufficiently alleged a plausible stigma-plus
claim under Section 1983 in alleging that
these false and defamatory statements were
made, inter alia, to terminate Daytree’s treeremoval contract with the Town without any
process. The Section 1983 conspiracy and
municipal liability claims also contain
sufficient allegations to survive a motion to
dismiss. Similarly, plaintiffs have stated a
plausible breach of contract claim under New
York state law in connection with the Town’s
alleged failure to pay plaintiffs under the treeremoval contract. However, the declaratory
judgment and injunctive relief claims fail as
a matter of law in this particular case, and the
claims against the individual councilmember
defendants must be dismissed as duplicative
of the municipal liability claim.
As a result of defendants’ allegedly false
statement that plaintiffs were responsible for
the toxic dumping, plaintiffs claim that they
have suffered extreme injuries, including Mr.
Datre’s removal from a paid position with the
Town, the raid and seizure of plaintiffs’
contracting business as a result of the DA’s
Office investigation, the filing of multiple
civil lawsuits against plaintiffs by third
parties, and plaintiffs’ vilification in the
community, which has prevented them from
resuming business operations, among other
harms. Plaintiffs allege loss of their personal
and professional reputations in addition to
business and monetary harms. Plaintiffs seek
compensatory and punitive damages for the
alleged violations of their civil rights, as well
as a declaratory judgment that they are not a
responsible party for any alleged dumping in
the Park.
I. BACKGROUND
A. Factual Background
Presently before the Court is defendants’
motion to dismiss the complaint.2 For the
reasons set forth below, the Court grants
defendants’ motion to dismiss the claim for
declaratory relief, grants the motion to
dismiss the claims against the individual
councilmember defendants, and denies the
motion to dismiss in all other respects. In
particular, plaintiffs have alleged a plausible
1. The Allegations of Toxic Dumping
The Court takes the following facts from
plaintiffs’ complaint and the exhibits
attached thereto.3
Starting in or around August 2013, the
Town’s Parks Department supervised the
creation of soccer fields inside the Park,
2
3
Defendant Michael Torres is not represented by the
attorneys that submitted the joint motion to dismiss,
but the remaining defendants note in their papers that
“Counsel for Mr. Torres has . . . indicated that he joins
in and adopts the arguments set forth herein.” (ECF
No. 57.) The Court, therefore, accepts this motion to
dismiss as filed on behalf of all remaining defendants,
including Torres.
As discussed infra, in considering a motion to
dismiss, courts may consider documents attached to,
integral to, or referred to in the complaint, as well as
documents filed in other courts and other public
records. See, e.g., Glob. Network Commc’ns, Inc. v.
City of New York, 458 F.3d 150, 157 (2d Cir. 2006);
Subaru Distribs. Corp. v. Subaru of Am., Inc., 425
F.3d 119, 122 (2d Cir. 2005).
2
which involved contractors delivering fill
materials to the Park. (Compl. ¶¶ 102-03.)
Defendant Senft, who served as the Town
Board’s liaison to the Parks Department (the
“Parks Liaison”) at the time, was among
those individuals at the Parks Department
supervising this project (the “Park project”).4
(Id. ¶ 103.) According to the complaint, in
September 2013, one or more persons
complained that materials were being
transported into the Park without permits,
and/or that “objectionable” materials had
been dumped there. (Id. ¶ 110.) In particular,
it is alleged that “tons” of “toxic materials”
were illegally dumped at the Park.5 (Id. ¶ 2.)
As discussed further infra, plaintiffs allege
that defendants wrongly blamed them for the
dumping, and deny “hav[ing] ever ‘dumped’
so much as one grain of dirt
. . . or anything else, whatsoever, in the park,”
or having “transported anything to the park
. . . period.” (Id. ¶¶ 30-31.)
“scapegoated” them for two reasons: (1) to
deflect blame for the incident away from
fellow Conservative Party members, and
(2) to “destroy plaintiffs’ reputation and
thereby eviscerate the plaintiffs’ wellestablished ability to raise campaign funds
for political candidates who were not
[members of the Conservative Party].” (Id.
¶¶ 240, 255, 258.)
Mr. Datre has served as the chairman of a
local and national Political Action
Committee (“PAC”), through which he has
raised “hundreds of thousands of dollars in
campaign moneys” for both Republican and
Democratic candidates. (Id. ¶ 5.) According
to the complaint, “much to the chagrin” of
defendants, Mr. Datre has not raised funds for
the Conservative Party or its candidates. (Id.
¶ 6.) At the time of the events at issue,
defendants allegedly felt that Mr. Datre’s
fundraising activities had hurt the Suffolk
County Conservative Party by limiting its
leader’s ability to influence the outcomes of
elections. (Id. ¶¶ 6-8.)
2. The Political Backdrop
According to the complaint, defendants
accused plaintiffs of the alleged toxic
dumping as part of a politically motivated
conspiracy. (Id. ¶¶ 232-72.) Plaintiffs
explain that defendants, who were all
members of the Conservative Party or held a
position in the Town government,
Many of plaintiffs’ allegations involve
that leader, Eddie Walsh, who served as the
Suffolk County Conservative Party’s
Chairman. (Id. ¶ 233.) Although Eddie
Walsh was dismissed as a defendant from this
case, the complaint alleges that the other
4
Plaintiffs state that the two other members of the
Parks Department team supervising the soccer field
project are also defendants in this action (Compl.
¶ 103), but plaintiffs did not serve them and it does not
otherwise appear they named them as defendants.
claims. Town of Islip, 245 F. Supp. 3d at 403. The
Town brought these claims based on the same
underlying facts that gave rise to the instant action: the
alleged illegal dumping of hazardous waste at the Park
(although in Town of Islip the Town claimed that
numerous parties in addition to plaintiffs here played
a role). Id. In its Memorandum and Order granting
multiple defendants’ (including plaintiffs in this
action) motions to dismiss, the Court discussed the
Park, the alleged toxic waste dumping, and the DA’s
Office investigation into the dumping. Id. at 404-07.
The Court also granted leave to re-plead, id. at 404,
and denied subsequent motions to dismiss the
amended complaint, Order, Town of Islip v. Datre, No.
16-CV-2156 (E.D.N.Y. Mar. 28, 2018), ECF No. 114.
5
The allegations regarding the alleged illegal dumping
are the subject of a separate lawsuit. See Town of Islip
v. Datre, 245 F. Supp. 3d 397 (E.D.N.Y. 2017). In
Town of Islip, the Town brought suit against numerous
defendants, including Daytree and Mr. and Mrs. Datre
(plaintiffs in this action), alleging violations of the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1962(d), 1964(c), and the
Comprehensive
Environmental
Response
Compensation and Liability Act (“CERCLA”), 42
U.S.C. § 9601 et seq., and asserting multiple state law
3
and Michael Walsh became concerned that
the three Parks Department officials could be
held responsible for the dumping, and thus
“fabricated and proceeded to carry out a
plan” to “deflect blame” away from them and
onto plaintiffs. (Id. ¶¶ 15, 113.)
defendants were his “political operatives”
and participated in the alleged conspiracy in
furtherance of his political objectives. (See,
e.g., id. ¶¶ 6-8, 10, 15-22.) The remaining
defendants in this case all held positions in
the Conservative Party; some also held
positions in the Town municipal government.
These defendants include: Michael Walsh,
member of the Conservative Chairman’s
Club (id. ¶ 236), member of the Town of Islip
Conservative Executive Committee (id.), and
Deputy Town Attorney (id. ¶ 70); Michael
Torres, Town of Islip Conservative Party
Chairman, serving directly under Eddie
Walsh (id. ¶ 234); Robert Cicale, Town
Attorney (id. ¶ 25); and Anthony Senft, Jr.,
Committeeman of the Town of Islip
Conservative Party, serving directly under
Eddie Walsh, and Parks Liaison (id. ¶¶ 74,
235). Plaintiffs also sued councilmembers
Steven Flotteron, John Cochrane, Jr., and
Trish Weichbrodt, but in their official
capacities only. (Id. ¶¶ 78-82.)
3. The Datres’ Relationship with the
Town and Individual Defendants
At the time of these events, plaintiffs Mr.
and Mrs. Datre were the principals of
plaintiff Daytree, a corporation “engaged in
the business of building residential homes.”
(Id. ¶¶ 83, 85.) According to the complaint,
Daytree “is not, and has never been, engaged
in the business of material transport, or
material disposal, except to the extent it
removed trees, branches and greenery under
a tree-removal contract it secured with the
Town of Islip in 2012.” (Id. ¶ 84.)
Plaintiffs allege that, as of January 2014,
defendants “were affirmatively aware” that
the Datres were the principals of Daytree (id.
¶ 104), and had contracted to perform tree
removal services for the Town (id.
¶ 112), and that the Datres’ son, Thomas
Datre, Jr. (“Datre Jr.”), owned a materials
transport company that was “completely
separate and independent from the company
owned by his parents” (id. ¶¶ 105-06).
Plaintiffs allege defendants were aware that
Datre Jr.’s transport company was involved
in the Park project, and had transported
materials into the Park. (Id. ¶ 107.) Plaintiffs
allege defendants were also aware that,
unlike their son’s company, they had not
transported materials into the Park. (Id.
¶ 111.)
Plaintiffs allege that Eddie Walsh had
secured paid positions in the Town
government for his political operatives,
several of whom were responsible for
overseeing the Park at the time of the alleged
dumping. (Id. ¶ 9.) Two of Eddie Walsh’s
alleged operatives who are not defendants in
this case served as the Parks Commissioner
(the “Commissioner”) and Secretary to the
Parks Commissioner (the “Secretary”). (Id.
¶ 11.) According to the complaint, sometime
prior to January 21, 2014, the Commissioner,
Secretary, and defendant Senft (Parks
Liaison) learned of the allegations that there
had been unlawful dumping of potentially
toxic materials “while the park was under
their collective supervision.” (Id. ¶ 12.)
They allegedly consulted with Eddie Walsh
and defendant Torres, “their Islip
Conservative Party Superiors . . . who had
secured . . . their positions within the Town.”
(Id. ¶ 15.) Plaintiffs claim that, at this point,
Eddie Walsh and defendants Torres, Senft,
After receiving complaints about
dumping in September 2013, the
Commissioner and defendant Torres met
with Datre Jr. to discuss these complaints.
(Id. ¶¶ 110-11.) Plaintiffs assert that the
Commissioner and Torres arranged this
meeting because defendants knew of Datre
4
Jr. and his company’s involvement in the
Park project and in transporting materials
into the Park.6 (Id. ¶¶ 109-11.) Plaintiffs
allege that, even though defendants were
aware that Daytree was separate from Datre
Jr.’s company, and had no involvement in
bringing materials into the Park (id. ¶ 111),
defendants devised a plan to “falsely project
blame” onto plaintiffs (id. ¶ 114).
a single employee of the Town sent anything
to Michael Walsh which . . . indicated that
[Daytree] was in any way, shape or form,
involved in the alleged dumping.” (Id. ¶ 13233.) Plaintiffs further assert that the Town “is
not in possession of a single document or
record of any type” that suggests plaintiffs’
involvement, “with one exception.” (Id.
¶ 134.) That exception is a copy of
handwritten notes from a Town government
group meeting, which defendant Walsh
attached to an email to the DA’s Office
Economic Crime Bureau Chief on April 23,
2014, and which includes the question
“Where does Datre fall into this project?”
(Id. ¶ 135; ECF No. 1-3 at 30, 33.)
Plaintiffs allege that, in furtherance of
this plan, Torres and another member of the
Conservative Party appeared at Daytree’s
office and falsely accused plaintiffs of
illegally dumping construction and/or other
materials
in
the
Park.
(Id.
¶ 119.) The Datres informed them that
neither they nor their company had dumped
“anything, whatsoever” in the Park. (Id.
¶ 112.) Plaintiffs allege that, despite this
conversation, Eddie Walsh and defendants
Torres, Senft, and Cicale “then conspired to
. . . have defendant Michael P. Walsh use his
position as Deputy Town Attorney” to shift
blame for the dumping to plaintiffs and
falsely state that the Town had “completed”
an investigation, through which it determined
that plaintiffs were responsible. (Id. ¶ 121.)
4. The Alleged Defamatory Statements
Plaintiffs allege that on April 24, 2014,
defendant Walsh made the aforementioned
defamatory statements about plaintiffs,
which he knew to be false, and subsequently
published these statements to third parties,
including the press and the DA’s Office. (Id.
¶¶ 123, 126, 130.) As discussed supra, the
alleged false statements were that the Town
had completed an investigation through
which it had determined that Daytree was a
“responsible party” for the toxic dumping.
(Id. ¶ 124.) First, defendant Walsh sent five
letters to insurance companies on April 24,
2014, each stating:
According to the complaint, defendant
Walsh7 knew that the Town had not
completed any such investigation, and had
not determined that plaintiffs were
responsible. (Id. ¶ 122.) Plaintiffs allege
that, in response to a subpoena from the DA’s
Office, on April 21, 2014, defendant Walsh
allegedly sent “a flurry of emails throughout
the Town,” directing Town employees and
representatives to begin collecting records
reflecting who was involved in the dumping.
(Id. ¶¶ 130-31.) According to the complaint,
the DA’s Office investigation revealed that,
from April 21, 2014 through the present, “not
Please be advised that our office
received notice of dumping of
construction material on town
property located at [Roberto
Clemente Park]. . . . Enclosed please
find photos and field reports
completed by town law enforcement
person[nel] of the debris at the subject
location. This letter shall serve to
6
7
Plaintiffs emphasize that the Commissioner and
Secretary attested in sworn statements to knowing of
Datre Jr. and his company’s involvement. (Id. ¶ 109.)
As stated supra, any reference to “defendant Walsh”
is to Michael Walsh, rather than Eddie Walsh (against
whom the complaint was dismissed).
5
place your company on notice of the
above listed loss.
¶ 33; ECF No 1-1 at 17-20, 22-24.)
According to the first Newsday article,
“Walsh’s letters to the insurance companies
represent the first formal notification by Islip
as to who town officials believe is
responsible for the dumping.” (ECF No 1-1
at 17.) Additionally, the story was published
on television and the radio (see Compl. ¶ 34
(citing ECF No 1-1 at 51-52 (News 12 article,
“Town of Islip blames [Daytree] in dumping
scandal”), 54 (LI News Radio article
discussing Daytree, “Islip blames contractor
for toxic dumping”))), and was disseminated
via social media (see, e.g., Compl. ¶ 35
(citing ECF No 1-1 at 56, 58 (Facebook and
Twitter messages sharing and responding to
this story))).
We have completed our investigation
and found that Daytree at Cortland
Square is a responsible party.
(ECF No. 1-1 at 11-15.)8 Plaintiffs allege that
defendant Cicale, the Town Attorney, “had
apparently consented” to defendant Walsh’s
publication of these statements. (Compl.
¶ 25.) According to the complaint, Cicale
later told a News 12 reporter that “the letters
and their content were: ‘actually just a
precautionary measure being taken to reserve
the Town’s right to take action later.’” (Id.)
He allegedly further stated to this reporter
that:
5. The Alleged Harm to Plaintiffs
In this case, it’s not that we made a
final determination.
We have
insurance policies on file with the
town of Islip for work done by this
company, that may have also been
done in the park, and if that’s enough
of a connection or a nexus for us,
we’re going to protect our interests.
(Id. ¶ 26.) Plaintiffs assert that Cicale was
referencing the work they did under their
tree-removal contract, “which was limited to
the plaintiffs removing trees, tree trunks and
branches at the request of the Town.” (Id.
¶ 27.)
According to the complaint, Facebook
users’ responses to news stories about the
toxic dumping, featuring Daytree, show the
public outrage that led plaintiffs to feel
defendants “vilified” them. For instance, one
Facebook user wrote, “Du[m]ping toxic
waste in [a] playground where children play?
. . . Brentwood is a vulnerable,
disadvantaged, segregated community. The
racist implicati[o]ns are obvious. Real pigs.”
(ECF No 1-1 at 56.) Another portion of this
message seems to incite violence against
those responsible for the dumping. (See id.)
According to the complaint, defendants
also informed the media and DA’s Office that
they had completed an investigation and
found Daytree to be responsible. (Id. ¶ 32.)
As a result, Newsday published the following
articles:
“Islip Town formally blames
dumping on Daytree [at] Cortland Square,”
dated May 25, 2014, and “ISLIP PLACES
BLAME: Tells insurers Daytree at Cortland
Square at fault,” dated May 26, 2014. (Id.
Plaintiffs allege that defendants further
stigmatized them by terminating their twoyear tree-removal contract with the Town
shortly after sending the aforementioned
letters to the insurance companies. (Compl.
¶¶ 36-37; ECF No. 1-2 at 2 (defendant
Walsh’s letter to Mrs. Datre terminating the
contract).)
Plaintiffs assert that this
termination was “without cause, and without
any form of hearing prior to such
8
ECF No. 1-1 contains a compilation of exhibits
attached to the complaint.
6
have suffered a “loss of both their personal
and professional reputations.” (Id. ¶ 51.)
They claim that they have suffered financial
loss due to loss of their business, and became
defendants in multiple civil lawsuits as a
result of defendants’ defamatory statements.
(Id. ¶¶ 50, 53.)
termination.” (Compl. ¶ 37.) Plaintiffs
allege that Eddie Walsh and defendants
Senft, Cicale, and Michael Walsh “caused”
the Town to terminate this contract and
“contemporaneously publish to the press that
the Town was ‘severing all ties’ with the
plaintiffs.” (Id. ¶¶ 36, 139.) The same
defendants allegedly also caused the Town to
terminate Mr. Datre from a paid position as
the Town’s Plumbers Examining Board
Chairman, without cause or hearing, and
again shared this information with the press.
(Id. ¶¶ 38-39.) In both instances, plaintiffs
allege that Eddie Walsh and these three
defendants “exercised their influence and
control over the Town and defendants
Flotteron, Cochrane Jr. and BerginWeichbrodt” to bring about these contract
terminations. (Id. ¶¶ 139-40.)
B. Procedural Background
Plaintiffs commenced this action on April
22, 2015. Defendants filed a motion to
dismiss on November 13, 2017. Plaintiffs
filed their opposition to defendants’ motion
on January 11, 2018. Plaintiffs replied on
February 2, 2018. The Court held oral
argument on February 5, 2018, and reserved
decision. The Court has fully considered the
parties’ submissions and arguments.
II. STANDARD OF REVIEW
Finally, defendants allegedly accused
plaintiffs of having committed “heinous
criminal activity (i.e., illegal dumping of
toxic materials in a children’s public park),”
as a result of which the DA’s Office raided,
seized, and “abruptly shut[] down” plaintiffs’
business. (Id. ¶¶ 41-45.) Plaintiffs claim that
the DA’s Office seized all of their personal
property and, to date, has not returned any of
it. (Id. ¶ 46.)
In reviewing a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6),
the Court must accept the factual allegations
set forth in the complaint as true and draw all
reasonable inferences in favor of the plaintiff.
See Cleveland v. Caplaw Enters., 448 F.3d
518, 521 (2d Cir. 2006); Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.
2005). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint
must allege a plausible set of facts sufficient
‘to raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Tr.
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570.
According to the complaint, defendants’
actions that publicly vilified plaintiffs were
“equally fatal to the plaintiffs’ business” as
those of the DA’s Office. (Id. ¶ 47.)
Plaintiffs discuss the thousands of images of
Mr. Datre “mailed directly to residents” in
Suffolk County, thereby associating his
picture with “the company that dumped
32,000 tons of toxic waste in our local parks.”
(Id. ¶ 48; ECF No. 1-2 at 10-11.) Plaintiffs
claim that they cannot resume their normal
business operations because they “are now
shunned by the community, to the extent that
no one with whom they formerly conducted
business will speak to them.” (Compl. ¶ 47.)
As discussed supra, plaintiffs claim that they
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Supreme Court
7
instructed district courts to first “identify[]
pleadings that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” Id. at 679 (explaining
that though “legal conclusions can provide
the framework of a complaint, they must be
supported by factual allegations”). Second,
if a complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
Id. A claim has “facial plausibility when the
plaintiff pleads factual content that allows the
court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged. The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant
has acted unlawfully.” Id. at 678 (quoting
and citing Twombly, 550 U.S. at 556-57).
to dismiss with respect to (1) the Town under
Monell, (2) the councilmember defendants,
who were sued only in their official
capacities, and (3) the remaining individual
defendants based on qualified immunity.
As discussed infra, the Court concludes
that the request for declaratory and injunctive
relief must be dismissed, and the claims
against the individual councilmember
defendants in their official capacity are
dismissed as duplicative of the municipal
liability claim. The motion to dismiss is
denied in all other respects as to the Town
and remaining individual defendants.9
A. Claims for Declaratory and Injunctive
Relief
1. Applicable Law
Under the Declaratory Judgment Act,
“[i]n a case of actual controversy within its
jurisdiction,” a federal court “may declare the
rights and other legal relations of any
interested party seeking such declaration,
whether or not further relief is or could be
sought.” 28 U.S.C. § 2201(a). “The decision
to grant declaratory relief rests in the sound
discretion of the district court.” Lijoi v.
Cont’l Cas. Co., 414 F. Supp. 2d 228, 247
(E.D.N.Y. 2006) (citing Wilton v. Seven Falls
Co., 515 U.S. 277, 289-90 (1995)). That
discretion is informed by two primary
considerations: (1) “whether the judgment
will serve a useful purpose in clarifying or
settling the legal issues involved,” and
(2) “whether a judgment would finalize the
controversy and offer relief from
uncertainty.” Dow Jones & Co. v. Harrods
Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003)
III. DISCUSSION
Defendants move to dismiss, arguing that
plaintiffs’ claims surrounding their “political
conspiracy theory” fail, and that the
complaint amounts to a “wholly defective,
state law claim for defamation.” (Defs. Mem.
at 3.) Specifically, defendants move to
dismiss plaintiffs’ complaint on the grounds
that: (1) plaintiffs’ claim for declaratory
judgment and injunctive relief must be
dismissed because these are remedies, rather
than independent causes of action, (2) the
“single statement at issue” is not defamatory
as a matter of law, (3) plaintiffs fail to state a
“stigma-plus” claim, (4) plaintiff Daytree’s
material breach of its contract with the Town
precludes plaintiffs’ breach of contract claim,
and (5) plaintiffs fail to state a conspiracy
claim under Section 1983. Defendants move
9
In the following sections, the Court discusses
whether plaintiffs’ claims are dismissed with respect
to defendants generally. The Court notes that, as the
complaint is dismissed with respect to the three
councilmember defendants (Flotteron, Cochrane, and
Weichbrodt), where it denies the motion to dismiss
specific claims, that denial is with respect to the four
non-councilmember individual defendants (Walsh,
Torres, Cicale, and Senft) and, for the Section 1983
claims, the Town.
8
and reality’ to warrant declaratory relief.”
M.V.B. Collision, Inc. v. Allstate Ins. Co., No.
07 Civ. 0187 (JFB) (JO), 2007 WL 2288046,
at *7 (E.D.N.Y. Aug. 8, 2007) (quoting
Duane Reade, Inc., 411 F.3d at 388); see also
Reichhold Chems., Inc. v. Travelers Ins. Co.,
544 F. Supp. 645, 650 (E.D. Mich. 1982)
(“The difference between an abstract
question and a controversy contemplated by
the Declaratory Judgment Act is necessarily
one of degree and, as such, it is extremely
difficult to fashion a precise test for
determining the existence, or non-existence,
of an actual controversy in every fact
situation.”).
(citing Broadview Chem. Corp. v. Loctite
Corp., 417 F.2d 998, 1001 (2d Cir. 1969)).
The party seeking a declaratory judgment
bears the burden of demonstrating that the
district court has jurisdiction—that is, that
there is an “actual controversy,” 28 U.S.C.
§ 2201(a), which is defined as one that is
“real and substantial . . . admitting of specific
relief through a decree of a conclusive
character, as distinguished from an opinion
advising what the law would be upon a
hypothetical state of facts,” E.R. Squibb &
Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154,
177 (2d Cir. 2001) (internal citation omitted);
see also Georgia-Pacific Consumer Prods.,
LP v. Int’l Paper Co., 566 F. Supp. 2d 246,
255 (S.D.N.Y. 2008). In a declaratory
judgment action, “[t]he standard for ripeness
. . . is that ‘there is a substantial controversy
between parties having adverse legal
interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory
judgment.’” Duane Reade, Inc. v. St. Paul
Fire & Marine Ins. Co., 411 F.3d 384, 388
(2d Cir. 2005) (quoting Md. Cas. Co. v.
Pacific Coal & Oil Co., 312 U.S. 270, 273
(1941)).
Courts “cannot adjudicate
conjectural or hypothetical cases or
controversies. A controversy cannot be a
mere possibility or probability that a person
may be adversely affected in the future.”
U.S. Underwriters Ins. Co. v. Kum Gang,
Inc., 443 F. Supp. 2d 348, 352 (E.D.N.Y.
2006) (internal citations omitted).
2. Analysis
Plaintiffs argue that they are entitled to a
declaratory judgment, pursuant to 28 U.S.C.
§ 2201, declaring that they are not a
responsible party under CERCLA, pursuant
to 42 U.S.C. § 9607, for any of the alleged
dumping in the Park. Plaintiffs also seek
“concomitant injunctive relief” barring
defendants from continuing to disseminate
allegedly false statements about plaintiffs’
involvement. They bring this claim pursuant
to 28 U.S.C. § 2202, which provides that a
court may grant “[f]urther necessary or
proper relief based on a declaratory judgment
or decree.” Plaintiffs argue that the Court
should grant these requests because
defendants’ false statements have caused and
continue to cause them irreparable harm.
Further, plaintiffs argue that they have
satisfied the requirement that an actual
controversy exists, referencing the other
ongoing litigation surrounding the alleged
dumping. In support of their claim for
injunctive relief, they also inform the Court
that the Town has commenced a remediation
project to remove the illegally dumped
materials from the Park that threatens to
destroy potential evidence of their innocence.
“Whether a real and immediate
controversy exists in a particular case is a
matter of degree and must be determined on
a case-by-case basis.” Kidder, Peabody &
Co., Inc. v. Maxus Energy Corp., 925 F.2d
556, 562 (2d Cir. 1991) (citation omitted).
“Several courts have acknowledged the
difficulty of line-drawing between those
cases in which a controversy is of a
hypothetical or speculative nature, and those
that present issues of ‘sufficient immediacy
Defendants request that the Court
dismiss these claims on the grounds that
9
‘when the parties are asking for an advisory
opinion’ . . . .” (citing Velvet Underground v.
Andy Warhol Found. for the Visual Arts, Inc.,
890 F. Supp. 2d 398, 403 (S.D.N.Y. 2012))).
Even if the Court were to assume the “actual
controversy” requirement has been satisfied
here—which the Court could, in light of the
ongoing litigation relating to the statements
at issue—it is within the Court’s discretion to
decline to grant declaratory relief. Lijoi, 414
F. Supp. 2d at 247.
(1) declaratory judgment and injunctive relief
are remedies, rather than independent causes
of action, and (2) plaintiffs have failed to
establish that an actual controversy exists as
required for the Court to award such relief.
Defendants
argue
that
plaintiffs
“impermissibly seek[] an advisory opinion
which is without a sufficient nexus to the
independent claims asserted.” (Defs. Reply
at 3.) Defendants explain that the issues
surrounding plaintiffs’ responsibility for the
dumping are “front and center in separate
actions” that are currently pending in this
court, including one before the undersigned.
(Id. (citing Town of Islip v. Datre, No. 16-cv2156 (E.D.N.Y filed Apr. 29, 2016), and
Seggos v. Datre, No. 17-cv-2684 (E.D.N.Y.
filed May 4, 2017) (New York State Attorney
General and New York State Department of
Environmental Conservation CERCLA
action)).)
Plaintiffs argue that a declaratory
judgment in this case would not lead to
inconsistency with a subsequent decision in
the Town of Islip case because this case was
filed first, and would thus “have priority.”
(Pls. Mem. at 7 n.3.) However, the focus of
this lawsuit is much narrower than the
declaratory relief sought by plaintiffs. More
specifically, plaintiffs allege here that the
Town’s statements were false because
(1) no investigation had been completed by
the Town, and (2) no determination had been
made by the Town that plaintiffs were the
responsible party for the alleged dumping. In
other words, the claims hinge on the Town’s
conduct and knowledge, and the falsity of
those statements by the Town could
potentially be resolved without a
determination as to the parties responsible for
any alleged dumping. Therefore, plaintiffs
seek declaratory relief regarding past conduct
that is not an essential element of the claims
brought here, and essentially seek an
advisory opinion with respect to the subject
matter of other pending lawsuits. In addition,
a declaratory judgment that plaintiffs were
not responsible parties likely would not settle
the issues, Dow Jones & Co., 346 F.3d at 359,
and further, risks contradicting later
decisions by this Court on these exact issues.
The Court, therefore, grants defendants’
motion to dismiss any claim for declaratory
judgment.
The Court agrees with defendants. As a
threshold matter, it is well settled that a
request for declaratory and/or injunctive
relief is not an independent cause of action.
See KM Enterprises, Inc. v. McDonald, No.
11-cv-5098 (ADS)(ETB), 2012 WL
4472010, at *19-20 (E.D.N.Y. Sept. 25,
2012) (collecting cases). In any event, there
is no basis for declaratory or injunctive relief
in this case.
With respect to declaratory relief, given
that the pending actions defendants reference
were brought “pursuant to the actual
applicable law” to determine liability for
dumping in the Park (Defs. Reply at 3; see
also Pls. Mem. at 7 (discussing multiple
CERCLA cases naming plaintiffs as
defendants)), a declaratory judgment in this
case runs the risk of amounting to an advisory
opinion. Norton v. Town of Brookhaven, 33
F. Supp. 3d 215, 241 (E.D.N.Y.), on recons.,
47 F. Supp. 3d 152 (E.D.N.Y. 2014) (“As
with any federal action, courts may not
entertain actions for declaratory judgment
10
proven true or false; and (3) whether
either the full context of the
communication in which the
statement appears or the broader
social context and surrounding
circumstances are such as to signal
. . . [to] readers or listeners that what
is being read or heard is likely to be
opinion, not fact.
Plaintiffs have also failed to articulate in
the complaint any basis for injunctive relief
in connection with the federal or state claims.
It is well settled that “[t]he fact that the false
statements may injure the plaintiff in his
business or as to his property does not alone
constitute a sufficient ground for issuance of
an injunction. The party wronged has an
adequate remedy at law.” Bynog v. SL Green
Realty Corp., No. 05 Civ. 0305 WHP, 2005
WL 3497821, at *3 (S.D.N.Y. Dec. 22, 2005)
(citations omitted). Because plaintiffs have
failed to articulate any plausible basis for
injunctive relief even if they prove their
allegations, any claim for injunctive relief is
dismissed.
Id. (citations omitted).
Under New York law, “[g]enerally, a
written statement may be defamatory ‘if it
tends to expose a person to hatred, contempt
or aversion, or to induce an evil or unsavory
opinion of him in the minds of a substantial
number of the community.’” Golub v.
Enquirer/Star Grp., Inc., 89 N.Y.2d 1074,
1076 (1997) (citation omitted). Courts may
also find statements that “would cause
apprehension about a person’s ability to
conduct business,” or otherwise reflect on his
or her performance of that business, to be
defamatory. Id. The determination as to
whether a statement qualifies as defamatory
depends on the context, but “courts will not
strain to find defamation where none exists.”
Dillon v. City of New York, 261 A.D.2d 34,
38 (1st Dep’t 1999) (citations and internal
quotation marks omitted).
B. Defamation Claim (Libel)
1. Applicable Law
In order to state a cause of action for libel
under New York law, a plaintiff must plead:
(1) a written false and defamatory statement
of fact concerning the plaintiff; (2) that was
published by the defendant to a third party;
(3) due to the defendant’s negligence or
actual malice, depending on the status of the
person libeled; and (4) special damages or
per se actionability. Celle v. Filipino
Reporter Enters., 209 F.3d 163, 176 (2d Cir.
2000). In this case, defendants primarily
argue that plaintiffs have inadequately pled
the first element. As set forth below, the
Court disagrees and concludes that plaintiffs
have alleged a plausible defamation claim.
To determine whether a statement is “of
and concerning” the plaintiff, courts in this
circuit look for a “reasonable connection
between the plaintiff and the alleged libel.”
Church of Scientology Int’l v. Time Warner,
806 F. Supp. 1157, 1160 (S.D.N.Y. 1992)
(citation omitted). The test in this circuit is
whether “the libel designates the plaintiff in
such a way as to let those who knew [the
plaintiff] understand that [s]he was the
person meant. It is not necessary that all the
world should understand the libel.” Dalbec
v. Gentleman’s Companion, Inc., 828 F.2d
921, 925 (2d Cir. 1987) (citation omitted).
Although in general, an “an individual
plaintiff must be clearly identifiable [in an
A statement that is an expression of
opinion, not fact, cannot be the subject of an
action for defamation. Mann v. Abel, 10
N.Y.3d 271, 276 (2008) (citation omitted).
Whether an individual statement is one of
fact or opinion is a question of law, and New
York courts consider the following factors:
(1) whether the specific language in
issue has a precise meaning which is
readily understood; (2) whether the
statements are capable of being
11
2. Analysis
allegedly defamatory statement] to support a
claim for defamation,” New York courts have
permitted exceptions. Algarin v. Town of
Wallkill, 421 F.3d 137, 139 (2d Cir. 2005)
(citation omitted).
Plaintiffs bring their defamation claim
based on allegations that defendants made
multiple statements that the Town had
completed an investigation and determined
they were “a responsible party” for the illegal
dumping in the Park. Plaintiffs allege that
these statements include the letters to the
insurance companies, as well as the
subsequent statements to Newsday and the
DA’s Office.
They argue that these
statements “not only accuse the plaintiffs of
committing serious criminal activity, but also
tended to severely injure the plaintiffs in their
trade, business and occupation” (Compl.
¶ 175), and were “defamatory and libelous
per se” (id. ¶ 173). Plaintiffs discuss the
reverberating effects of these statements in
addition to the harms to their reputations,
business,
and
livelihood,
including
“[g]awkers” visiting plaintiffs’ offices “to
sneer at the plaintiffs,” hate messages on the
company’s answering machine, and the
shunning and harassment plaintiffs’
grandchildren endured at school, among
others. (Id. ¶¶ 176-82.)
Even where the pleading requirements
for a defamation claim have been met, New
York law affords qualified protection to
statements that are “fairly made by a person
in the discharge of some public or private
duty, legal or moral, or in the conduct of his
[or her] own affairs, in a matter where his [or
her] interest is concerned.” Front, Inc. v.
Khalil, 24 N.Y.3d 713, 719 (2015). In Front,
the court stated the “well-settled” rule that
“statements made in the course of litigation
are entitled to absolute privilege,” id. at 718,
and resolved the spilt among the New York
Appellate Division Departments with regard
to the level of privilege afforded to attorneys’
statements made in connection with
prospective litigation, id. at 719-20. The
court held that a qualified privilege applies
for pre-litigation statements, and “that the
privilege is lost where a defendant proves that
the statements were not pertinent to a good
faith anticipated litigation.” Id. at 720. For
instance, the Second Circuit has stated that,
As a premise for their motion to dismiss
this claim, defendants argue that plaintiffs
challenge a single defamatory statement: the
statement in defendant Walsh’s letters to the
insurance companies. Defendants request
that the Court dismiss this claim on the
grounds that (1) the statement at issue failed
to meet the pleading requirements, in
particular, because the statement was not of
“fact,” “defamatory,” or directed at the
Datres, and (2) regardless, the statement
qualified as privileged. (Defs. Mem. at 9-14.)
A defendant forfeits this qualified
privilege by making a false,
defamatory statement with “malice”
. . . . Common-law malice “mean[s]
spite or ill will,” and defeats the
privilege only if it is “the one and only
cause for the publication,” . . . .
Constitutional or “actual” malice
means publication with “knowledge
that [the statement] was false or . . .
reckless disregard of whether it was
false or not.”
Before turning to the pleading
requirements, the Court rejects defendants’
premise that plaintiffs’ claim challenges a
single statement (even if repeated in multiple
letters to insurers). At this stage, plaintiffs
have adequately alleged that the defamatory
statements included multiple statements,
Albert v. Loksen, 239 F.3d 256, 272 (2d Cir.
2001) (citations omitted).
12
including those to the media and the DA’s
Office, in addition to the initial statements to
the insurers.
The news articles, other
publications, and public social media
response that plaintiffs supplied in their
exhibits provide support for plaintiffs’
plausible claim that defendants’ statements
went beyond defendant Walsh’s initial
communications.10
The Court has considered
remaining arguments regarding
defamatory statements and, for
discussed below, denies their
dismiss this claim.
Although defendants point out that the
Court must look at the context, an analysis of
that context does not change the factual
nature of the statements. As an example,
context impacted this analysis in Mann,
where the court determined that the at-issue
statement was one of opinion based in part on
the tone, and the fact that the statement
appeared in the “opinion page” of a
newspaper along with a note that the article
expressed the author’s opinion. Id. at 276-77.
Here, by contrast, the alleged context does
not transform the statements from fact to
opinion.
According to the complaint,
defendant Walsh stated without qualification,
“[w]e have completed our investigation and
found that Daytree at Cortland Square is a
responsible party.” (ECF No. 1-1 at 11.) No
other statement in defendant Walsh’s letters
suggested that whether there was an
investigation and a finding was opinion,
rather than fact. Further, defendant Walsh
wrote this statement to insurance companies
in a “notice” that defendants claim was a
precursor to potential litigation—a context
that the Court views as indicative of a letter
containing factual statements.
Even
considering the statement to the insurers
alone (and not to the DA’s Office and the
media), the Court disagrees with defendants
that the notice falls in the “zone of protected
opinion” because “[i]t is universally
understood that such notifications of claims
are going to be independently evaluated and
investigated by the insurer.”11 (Defs. Reply
at 9.) Defendants’ reasoning would permit
speakers in many settings to distance
themselves from factual statements by
retroactively invoking an audience’s duty to
defendants’
the alleged
the reasons
motion to
i. Statement of Fact
First, the Court considers defendants’
argument that the statement in the letters to
the insurers does not qualify as a “false and
defamatory statement of fact” because it
“takes a legal position more akin to an
opinion.” (Defs. Mem. at 10.) The Court
disagrees. Defendant Walsh’s statement that
the Town completed an investigation and
found plaintiffs to be responsible satisfies
each of the requirements in the New York
standard for distinguishing fact from opinion:
the statement has a “precise meaning,” it is
capable of being proven true or false, and the
context of the insurance letter indicates that
this was a factual statement. Mann, 10
N.Y.3d at 276. In other words, statements
pertaining to whether there was an
investigation by the Town or not, and
whether there was a finding as to
responsibility by the Town or not, are both
clearly factual in nature, rather than opinion.
10
11
Defendants note that “[n]o defamation claim is
stated as against Defendants Senft or Cincale since
neither is alleged to have made the defamatory
statement.” (Defs. Mem. at 9 n.3.) In light of the
Court’s conclusion that plaintiffs alleged multiple
defamatory statements in connection with the alleged
conspiracy, the Court rejects this argument.
Defendants noted at oral argument that they sent this
notice to plaintiffs’ insurers, rather than their own.
They argue that the insurers would therefore be
especially likely to investigate and challenge
defendants’ claim. This argument does not change the
Court’s assessment that defendants’ statement is
factual in nature.
13
fact-check. For all of these reasons, the
complaint plausibly alleges actionable
statements of fact.12
Although the “of and concerning”
requirement is generally an issue of
fact, which the jury alone may decide,
the Court properly may dismiss an
action pursuant to Rule 12(b)(6)
where the statements “are incapable
of supporting a jury’s finding that the
allegedly libelous statements refer to
plaintiff.” Whether the complaint
alleges facts sufficient to demonstrate
a reasonable connection between the
plaintiff and the alleged libel is thus a
question for the Court.
ii. Defamatory Statement
With regard to the defamatory nature of
defendants’ statements, the Court concludes
that even what defendants assert is plaintiffs’
single alleged statement—namely, that, after
an investigation, plaintiffs were found to be
responsible for toxic dumping in a public
children’s park—easily satisfies this pleading
In particular, the Court
requirement.13
concludes that plaintiffs have plausibly
alleged statements that “tend[ed] to expose
[plaintiffs] to hatred, contempt or aversion, or
to induce an evil or unsavory opinion of
[them] in the minds of a substantial number
of the community,” and reflected on the
conduct of their business. Golub, 89 N.Y.2d
at 1076. The alleged public response,
including calling plaintiffs “racists” and
“pigs,” provides additional evidence beyond
the statement itself.
Church of Scientology Int’l, 806 F. Supp. at
1160 (quoting Handelman v. Hustler
Magazine, Inc., 469 F. Supp. 1048, 1050
(S.D.N.Y. 1978)). “In determining whether
the ‘of and concerning’ requirement has been
sufficiently pleaded, the Court must consider
whether those who know the plaintiff, upon
reading the statements, would understand
that the plaintiff was the target of the
allegedly libelous statement.” Church of
Scientology Int’l, 806 F. Supp. at 1160; see
also Algarin, 421 F.3d at 139 (affirming
decision to dismiss complaint where it failed
to “set forth circumstances from which to
infer the identity of any particular officers
who might be understood to have been the
subject of any defamatory allegations in the
Report”); Dalbec, 828 F.2d at 925 (“The test
is whether ‘the libel designates the plaintiff in
such a way as to let those who knew [the
iii. “Of and Concerning”
With respect to the question of whether
defendants’ statements were “of and
concerning” all three plaintiffs, the Court
concludes that plaintiffs have asserted facts
that could plausibly satisfy this element for
each of the plaintiffs.
12
13
The Court also notes that the statement regarding
responsibility for the alleged dumping could itself
provide a plausible basis for a defamation claim
because it could be reasonably understood as being
based upon undisclosed facts justifying the opinion.
See, e.g., Long v. Marubeni Am. Corp., 406 F. Supp.
2d 285, 296 (S.D.N.Y. 2005) (“The essential task is to
decide whether the words complained of, considered
in the context of the entire communication and of the
circumstances in which they were spoken or written,
may be reasonably understood as implying the
assertion of undisclosed facts justifying the opinion.”
(quoting Steinhilber v. Alphonse, 68 N.Y.2d 283, 290
(1986))).
Defendants argue that the statement was not
defamatory because of the “exceedingly narrow
context”—its purpose was to notify the insurers of the
potential claim, and its audience was limited to those
companies. As discussed supra, the Court rejects
these arguments because plaintiffs have alleged
multiple defamatory statements, including those to the
media and DA’s office. Considering all of these
communications, the Court finds that plaintiffs have at
this stage
adequately alleged that defendants’
statements were defamatory.
14
individual Plaintiffs received equal and
distinctly separate harm.” (Pls. Mem. at 9
n.6.)
plaintiff] understand that [s]he was the
person meant. It is not necessary that all the
world should understand the libel.’” (citation
omitted)).
Given the facts alleged in the complaint,
and drawing all reasonable inferences in
plaintiffs’ favor for purposes of this motion
to dismiss, the Court concludes that it is
plausible that the allegedly defamatory
statements are capable of supporting a jury’s
finding that such statements refer to
plaintiffs. See Excellus Health Plan, Inc. v.
Tran, 287 F. Supp. 2d 167, 174 (W.D.N.Y.
2003) (“[T]he court may grant a motion to
dismiss a defamation claim where the
challenged statements ‘are incapable of
supporting a jury’s finding that the allegedly
libelous statements refer to plaintiff.’”
(quoting Handelman, 469 F. Supp. at 1050)).
Defendants argue that this element cannot
be satisfied because the statement at issue
named Daytree, but not the Datres, as a
responsible party. Courts have allowed
claims where the statement did not identify
the plaintiff, but named an individual who
was understood to represent that plaintiff.
See Dalbec, 828 F.2d at 923, 925 (finding
statement identifying plaintiff by her maiden
name and address qualified as “of and
concerning” plaintiff because the audience
“need[ed] only believe that it was about
her”). Courts have also allowed plaintiffs to
bring defamation claims based on a statement
made against a group, even where the
individual plaintiff was not named. Algarin,
421 F.3d at 139; see also DeBlasio v. N.
Shore Univ. Hosp., 213 A.D.2d 584, 584
(1995) (finding plaintiff adequately alleged
that a press release discussing improper
treatment by hospital “personnel” was
defamatory because plaintiff “was one of a
handful of doctors [at the hospital]
prescribing [this] treatment”). In such cases,
courts will look to circumstances including
the size of the group, and whether the
statement refers to all or only some group
members. Algarin, 421 F.3d at 140.
iv. Litigation Privilege
Finally, defendants argue that the alleged
defamatory statements, contained in letters
issued to Daytree’s insurers, are absolutely
privileged as pertinent to litigation. As set
forth below, the Court also declines to
dismiss the claim at this stage because the
Court cannot determine, based on the
complaint, that these defamatory statements
are protected by the litigation privilege.
First, plaintiffs allege that the statements
in the letters to the insurance carriers were not
“pre-litigation” in any respect. (See Pls.
Mem. at 13 (“The letters, mailed to the
insurance carriers and a broker and
eventually given by Defendants to the press
and District Attorneys’ office, certainly
served no pre-litigation function . . . . The
statements were purely unsolicited third party
communications intentionally designed to
shift focus and blame away from the
Defendants and onto the Datres.” (footnote
and citation omitted)).) Defendants, on the
other hand, want the Court to take judicial
notice of the fact that it is “common
knowledge that such notice letters are a
Here, notwithstanding the fact that the
statement refers to Daytree only (and not to
Mr. and Mrs. Datre), plaintiffs argue that
readers would understand the statement to
refer to all three plaintiffs because (1) the
Datres were the only principals of Daytree,
and “as the owners of such [a] closely-held
corporation,” their “personal reputations are
inseparably intertwined,” (2) “‘Daytree’ is a
homophone for ‘Datre,’” and (3) “[p]ublic
response, as evidenced by the Internet
comments . . . annexed to the Complaint,
underscores that the corporation and
15
compulsory component of insurance
protocols and the litigation (of either the
underlying claim or disputed coverage) that
they so often precede.”14 (Defs. Mem. at 11.)
However, the fact that notice letters are
generally part of insurance protocols and
potential litigation does not necessarily mean
that such a letter (and the statements at issue
here) was part of the pre-litigation process in
this particular case. Given the allegations
here and the ambiguity regarding the timing
and scope of the letter, the Court believes that
this issue is more appropriately addressed
once discovery is complete. See, e.g., Bel
Canto Design, Ltd. v. MSS HiFi, Inc., No. 11
Civ. 6353 CM, 2012 WL 2376466, at *14
(S.D.N.Y. June 20, 2012) (“To prove that its
statements to eBay and to its former
authorized dealers were ‘part of’ the instant
judicial proceeding, Bel Canto will need to
introduce factual material into the record that
is not properly considered on a motion to
dismiss.”).
It is further alleged that this was done with
malice in order for defendants to deflect
blame for the dumping onto plaintiffs
because they were political opponents. (Id.
¶¶ 12-15, 114-22.)
Thus, given these
allegations, the issues of privilege defendants
raised cannot be decided here at the motion
to dismiss stage. See, e.g., Giuffre v.
Maxwell, 165 F. Supp. 3d 147, 155-56
(S.D.N.Y. 2016) (in denying motion to
dismiss on grounds of self-defense and prelitigation privileges, the court emphasized
that “[p]laintiff has repeatedly pled that the
January 3 and 4 Statement were made with
malice and knowledge of their falsity . . .
[and] has therefore pled sufficient facts to
show a plausible defeat of any qualified
privilege defense” (citations omitted)).
In sum, the motion to dismiss the
defamation (libel) claim is denied.
C. Stigma-Plus Claim
In order to bring a Section 1983 due
process claim on a so-called “stigma-plus”
theory, a plaintiff must allege “a stigmatizing
statement plus a deprivation of a tangible
interest.” Vega v. Lantz, 596 F.3d 77, 81 (2d
Cir. 2010) (quoting Algarin, 421 F.3d at
138); see also Paul v. Davis, 424 U.S. 693,
701 (1976) (establishing that allegations of
reputational harm alone are insufficient
grounds for a federal constitutional tort). “To
establish a ‘stigma plus’ claim, a plaintiff
must show (1) ‘the utterance of a statement
sufficiently derogatory to injure his or her
reputation, that is capable of being proved
false, and that he or she claims is false,’ and
(2) ‘a material state-imposed burden or stateimposed alteration of the plaintiff’s status or
rights.’” Vega, 596 F.3d at 81 (quoting
Similarly, even assuming arguendo that
the letter falls within the pre-litigation
privilege, dismissal in this case would still be
unwarranted because only a qualified
privilege
applies
to
pre-litigation
communications, Front, 24 N.Y.3d at 720,
and plaintiffs have adequately alleged bad
faith and malice to survive a motion to
dismiss, Albert, 239 F.3d at 272. According
to the complaint, defendant Walsh notified
the insurers that defendants had completed an
investigation and found plaintiffs to be
responsible, even though he knew both
statements to be false (he allegedly knew that
the Town had not completed any such
investigation, and had not determined that
plaintiffs were responsible). (Compl. ¶ 122.)
14
Defendants argue that they sent these letters because
the insurers’ policies “might be called upon to satisfy
damages” if toxic materials were found in the Park.
(Defs. Mem. at 10.) Defendants claim that they sent
these letters to “protect the Town’s rights” by
notifying the insurers of potential claims “as a
predicate to and in contemplation of litigation.” (Id. at
11.) Defendants argue that the statements to Daytree’s
insurers were privileged because the insurers “could
help in the resolution of the dispute.” (Id. at 13.)
16
Sadallah v. City of Utica, 383 F.3d 34, 38 (2d
Cir. 2004)).
rights. Specifically, plaintiffs allege that—
without providing any form of due process—
defendants deprived them of their liberty
interests, including their chosen occupations,
and their property rights, including Daytree’s
tree-removal contract with the Town and Mr.
Datre’s paid position on the Town’s
Plumbers Examining Board.
Further,
plaintiffs allege that the Town’s “top-ranking
officials and final decision-makers” (naming
defendants Senft, Cicale, Walsh,16 and the
councilmembers) carried out or approved the
challenged actions (Compl. ¶ 209), thereby
satisfying the “state-imposed” element of this
claim and making the Town liable.
Even where these requirements have been
met, “the availability of adequate process
defeats a stigma-plus claim.” Segal v. City of
New York, 459 F.3d 207, 213 (2d Cir. 2006)
(citing DiBlasio v. Novello, 344 F.3d 292,
302 (2d Cir. 2003)). The Second Circuit has
held that in cases “[w]here deprivation at the
hands of a government actor [wa]s ‘random
and unauthorized,’ hence rendering it
impossible for the government to provide a
pre-deprivation hearing, due process requires
only a post-deprivation proceeding.”
DiBlasio, 344 F.3d at 302 (citations omitted)
(providing as examples of random and
unauthorized acts a case where a prisoner’s
mail was lost due to a prison employee’s
negligence, and a case where a prison guard
destroyed an inmate’s property). Otherwise,
the general rule is that adequate process
requires a pre-deprivation hearing.15 See
DiBlasio, 344 F.3d at 302 (“Generally, due
process requires that a state afford persons
‘some kind of hearing’ prior to depriving
them of a liberty or property interest.”).
The Court concludes that plaintiffs have
adequately alleged both elements required for
a stigma-plus claim. First, for the same
reasons discussed in relation to the state-law
defamation claim, the Court finds that
plaintiffs have adequately pled that
defendants made “sufficiently derogatory
[statements] to injure [their] reputation[s].”
Vega, 596 F.3d at 81. Next, the Court
concludes that plaintiffs have also properly
pled the second portion of the test for a
stigma-plus claim through their allegations of
a “material state-imposed burden or stateimposed alteration of the plaintiff’s status or
rights.” Id. Plaintiffs’ loss of their business
through the termination of Daytree’s contract
and Mr. Datre’s contract amounts to exactly
this type of deprivation.17
See, e.g.,
In support of their stigma-plus claim,
plaintiffs allege that defendants’ false
statements were not merely defamatory and
injurious to their business and reputations,
but that defendants maliciously brought
about a deprivation of their constitutional
15
17
For the purposes of this discussion, the Court
references the required process as a “pre-deprivation
hearing.” The Court recognizes, however, that in
some cases there could be other forms of adequate predeprivation process. See, e.g., Adams v. Suozzi, 517
F.3d 124, 127 (2d Cir. 2008) (finding the combination
of pre-deprivation notice and grievance procedures
under a collective bargaining agreement to be
adequate process prior to deferral of plaintiffs’ wages).
Had plaintiffs brought this claim based on only the
deprivation of their rights to pursue their chosen
occupation, defendants’ motion would present a more
difficult question. In Valmonte v. Bane, the Second
Circuit explained,
Our prior decisions indicate, as does Paul v.
Davis, that defamation is simply not enough
to support a cognizable liberty interest. It
therefore follows that the deleterious effects
which flow directly from a sullied reputation
would normally also be insufficient. These
would normally include the impact that
defamation might have on job prospects, or,
for that matter, romantic aspirations,
16
Plaintiffs include the “Deputy Town Attorney” in
this list, who they identified earlier as defendant
Walsh.
17
Valmonte, 18 F.3d at 1001 (describing
“defamation in conjunction with termination
of government employment” as “the clear
situation that satisfies the ‘stigma plus’ test”);
Sacco v. Pataki, 114 F. Supp. 2d 264, 271
(S.D.N.Y. 2000) (explaining that the “plus”
requirement of a stigma-plus claim “has been
met in most cases by dismissal from
government employment”).
deprivation hearing. In Segal, the Second
Circuit recognized that adequate process
varies based on the interest at stake. 459 F.3d
at 213-14 (describing “adequate process” as
“the right to be heard ‘at a meaningful time
and in a meaningful manner’” (citation
omitted)).
In particular, the Court
differentiated between at-will employment
and other types of government contracts,
concluding that, as Segal “involv[ed] an atwill government employee, the availability of
an adequate, reasonably prompt, posttermination name-clearing hearing [wa]s
sufficient to defeat a stigma-plus claim.” Id.
at 214; see also Walsh v. Suffolk Cty. Police
Dep’t, No. 06-CV-2237 (JFB)(ETB), 2008
WL 1991118, at *13-14 (E.D.N.Y. May 5,
2008), affd, 341 F. App’x 674 (2d Cir. 2009)
(same). The Court clarified that its decision
in Segal did not upset its holdings in Velez v.
Levy, 401 F.3d 75 (2d Cir. 2005), and
DiBlasio, in which it found that predeprivation hearings were required, because
“neither [Velez nor DiBlasio] involved the
sort of liberty interest presented by . . . an atwill employee.” 459 F.3d at 217. Velez
involved a plaintiff who “could ‘only be
removed by the Chancellor for cause’ and
enjoyed ‘statutory restrictions [from]
removal,’” id. (quoting Velez, 401 F.3d at 8586), and DiBlasio involved a plaintiff who
challenged the “summary suspension of his
medical license,” id. (citing DiBlasio, 344
F.3d at 294-95). The Court explained that
these cases “presented interests that the
government could deprive only through a
showing of cause.”18 Id. Plaintiffs here seek
Defendants argue that, even if plaintiffs
adequately alleged a deprivation of their
liberty and/or property interests, their stigmaplus claim fails because they did not pursue
an Article 78 post-deprivation proceeding
and, as discussed supra, “the availability of
adequate process” defeats a stigma-plus
claim. Segal, 459 F.3d at 213. The Court
disagrees with defendants because, based on
plaintiff’s allegations, (1) the challenged
governmental action was not “random and
unauthorized,”
and
(2)
plaintiffs’
compromised interests fall outside of the
category for which the Second Circuit has
found post-deprivation process to be
sufficient.
First, the Court concludes that plaintiffs’
allegations regarding defendants’ scheme to
blame them for toxic dumping, if true, would
defeat any argument that defendants’
defamatory
statements
and
contract
termination were “random and unauthorized”
government action.
Second, plaintiffs’
liberty and property interests at issue fall
within the category of interests that the
Second Circuit has found requires a prefriendships, self-esteem, or any other typical
consequence of a bad reputation.
deprivation proceedings to be adequate where the right
at issue was at-will government employment, see
Gallagher v. N.Y.C. Health & Hosps. Corp., No. 172942-CV, 2018 WL 2049114, at *2 (2d Cir. May 2,
2018); Guerra v. Jones, No. 5:08-CV-0028
(NPM/GHL), 2010 WL 986403, at *10 (N.D.N.Y.
Mar. 17, 2010), aff’d, 421 F. App’x 15 (2d Cir. 2011)
(“Guerra had no property interest in his temporary
position.”); Carter v. Incorporated Village of Ocean
Beach, 415 F. App’x 290, 293 (2d Cir. 2011);
18 F.3d 992, 1001 (2d Cir. 1994). Here, however, the
Town’s termination of the two contracts allegedly
effected the equivalent of a loss of employment for all
three plaintiffs (including Mrs. Datre, through her role
as a principal of Daytree).
18
In the Second Circuit’s subsequent decisions in
stigma-plus cases, it has since found Article 78 post-
18
to challenge the termination of their two-year
tree-removal contract—an interest that their
pleadings indicate the government could
terminate only for cause.
Plaintiffs claim that the Town breached
its tree-removal contract with Daytree by
“fail[ing] to pay plaintiff [Daytree] for such
services rendered.”
(Compl. ¶ 227.)
According to the complaint, on or about
December 13, 2012, the Town “adopted a
formal resolution awarding a contract to
plaintiff Daytree” for two years, under which
Daytree “was to provide tree trimming, tree
removal, and stump removal services” in
exchange for payment at the contractual
rates. (Id. ¶ 222.) Plaintiffs allege that both
parties executed the contract, and that
Daytree performed these services until the
Town terminated the contract without cause
on May 7, 2014. (Id. ¶ 223, 225-26.)
Plaintiffs claim that defendants owe Daytree
an amount equal to or exceeding $73,940 for
the services Daytree performed under the
contract, as well as an additional $1.6 million
for the third-party services the parties
contracted for Daytree to provide. (Id.
¶¶ 227-31.)
The Court concludes that, in light of both
the alleged nature of defendants’ actions and
plaintiffs’ specific interests at stake, plaintiffs
have plausibly asserted that they were
entitled to a pre-deprivation hearing. The
availability of an Article 78 post-deprivation
proceeding, therefore, is clearly an
inadequate substitute and does not defeat
their stigma-plus claim with respect to at least
the two-year tree-removal contract. The
Second Circuit has also found this process to
be inadequate where stigma-plus claims were
based on actions other than terminations of
government employment. See DiBlasio, 344
F.3d at 295, 302 (explaining that the district
court erred in finding availability of postdeprivation process defeated plaintiff’s
stigma-plus claim, where the challenged
government actions were defendant’s
allegedly defamatory statements in press
releases). Accordingly, dismissal of the
stigma-plus claim at the motion to dismiss
stage is unwarranted.
Defendants argue that plaintiffs failed to
attach a copy of the contract to the complaint,
or to allege the material terms of the contract.
The Court disagrees, and finds that plaintiffs
have adequately pled the necessary elements
of their breach of contract claim. At this
stage, plaintiffs were required to “disclose
sufficient information to permit the
defendant[s] ‘to have a fair understanding of
what the plaintiff is complaining about and to
know whether there is a legal basis for
recovery.’” Kittay v. Kornstein, 230 F.3d
531, 541 (2d Cir. 2000) (citation omitted).
Plaintiffs were not required to attach a copy
of the complaint. See Malmsteen v. Berdon,
LLP, 477 F. Supp. 2d 655, 666 (S.D.N.Y.
2007) (discussing plaintiff’s failure to attach
the contract or specify its terms and how
defendant breached). Based on its review of
the facts summarized above, the Court finds
D. Breach of Contract Claim
In order to state a breach of contract
claim, courts in this circuit have required
plaintiffs to allege, “at a minimum, the terms
of the contract, each element of the alleged
breach and the resultant damages.” Kaplan
v. Aspen Knolls Corp., 290 F. Supp. 2d 335,
337 (E.D.N.Y. 2003) (citation omitted).
“The key elements of a breach of contract
claim are: (1) the formation of an agreement
via offer, acceptance and consideration;
(2) performance by one party; (3) breach of
the agreement by the other party; and
(4) damages.” Id.
Anemone v. Metro. Transp. Auth., 629 F.3d 97, 121
(2d Cir. 2011), but has not stated that this process
would suffice in cases where the government
employment was not at-will.
19
that plaintiffs satisfied their burden by
alleging: (1) the elements of the contract
formation (memorialized in the Town’s
formal resolution awarding the contract),
(2) plaintiffs’ performance of tree removal
and other services, (3) the Town’s breach by
terminating the contract without cause and
failing to pay plaintiffs, and (4) monetary
damages.
damages.” Ciambriello v. County of Nassau,
292 F.3d 307, 324-25 (2d Cir. 2002) (citing
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d
Cir. 1999)). Elaborating on that standard, the
Second Circuit requires “more than
‘conclusory, vague or general allegations of
conspiracy to deprive a person of
constitutional rights.’” Ali v. Connick, 136 F.
Supp. 3d 270, 282 (E.D.N.Y. 2015) (quoting
Boddie v. Schnieder, 105 F.3d 857, 862 (2d
Cir. 1997)).
The Court declines to accept defendants’
request that it “take judicial notice of plaintiff
Daytree’s material breach” and grant the
motion to dismiss this claim on this basis.
(Defs. Mem. at 18.) Defendants argue that
Daytree breached by failing to pay prevailing
wages in connection with its performance of
this contract, and assert that Daytree pleaded
guilty to and was convicted of this offense.
(Id.; Defs. Reply at 11.) Although courts will
take judicial notice of facts such as that of a
conviction, see Vaughn v. Consumer Home
Mortg. Co., 470 F. Supp. 2d 248, 256 n.8
(E.D.N.Y. 2007), aff’d, 297 F. App’x 23 (2d
Cir. 2008), including at the motion to dismiss
stage, Kramer v. Time Warner Inc., 937 F.2d
767, 773 (2d Cir. 1991), here, defendants ask
the Court to do so to resolve a factual dispute.
The Court will consider the parties’
competing accounts of Daytree’s alleged
breach along with other defenses at a later
stage, but at this time denies the motion to
dismiss the breach of contract claim.
As discussed at length supra, plaintiffs
allege that defendants conspired to deflect
blame for the dumping in the Park from
themselves onto plaintiffs, in order to
preserve their reputations and to further their
political objectives (which plaintiffs
allegedly hindered through their own
political activities). Plaintiffs discuss the
roles each of the individual defendants held
in the Town’s municipal government and/or
the Conservative Party.19 They discuss
communications among the individual
defendants, including specific meetings they
had at which they “devised [their] scheme.”
(See Compl. ¶¶ 240, 247.) Plaintiffs also
allege acts defendants carried out in
furtherance of the alleged conspiracy,
including conspiring to cause defendant
Walsh to send the letters at issue to the
insurers and to disseminate the accusations
they contained to the media and DA’s Office,
and conspiring to cause the Town to
terminate plaintiffs’ contracts.
Finally,
plaintiffs allege damages resulting from the
harms to their business and other injuries.
Considering these pleadings, the Court finds
that plaintiffs have adequately alleged an
agreement among state actors to inflict an
unconstitutional injury on plaintiffs (through
E. Conspiracy Claim
It is well established that a plausible
Section 1983 conspiracy claim must allege
“(1) an agreement between a state actor and a
private party; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act
done in furtherance of that goal causing
19
In their roles as members of the Conservative Party,
defendants were not state actors. Although some held
positions in both, defendant Torres, at least, held no
position within the Town government. Plaintiffs’
claim, thus, does not run afoul of the intracorporate
conspiracy doctrine, which provides “that the officers,
agents and employees of a single corporate or
municipal entity, each acting within the scope of his
employment, are legally incapable of conspiring
together.” Henneberger v. County of Nassau, 465 F.
Supp. 2d 176, 196 (E.D.N.Y. 2006).
20
their loss of business), and acts committed in
furtherance resulting in damages, to support
a Section 1983 conspiracy claim. The motion
to dismiss this claim is, therefore, denied.
F.3d at 219 (“Monell does not provide a
separate cause of action for the failure by the
government to train its employees; it extends
liability to a municipal organization where
that organization’s failure to train, or the
policies or customs that it has sanctioned, led
to an independent constitutional violation.”).
F. Liability of Specific Defendants
1. Municipal Liability Claim
Plaintiffs sued the Town, alleging that
defendants’ actions were “undertaken at the
direction of, and with the consent of, the
Town officials who . . . possessed . . . final
decision-making authority at the Town.”
(Compl. ¶ 192.) Plaintiffs assert that the
individual defendants, who participated in
the
conspiracy
and
“affirmatively
authorized” defendant Walsh’s actions,
include final decision-makers of the Town,
among them Town councilmembers, the
Town Attorney, and the Deputy Town
Attorney. (Id. ¶ 193.) Plaintiffs also note that
defendant Walsh’s letters were sent using
Town letterhead, and argue that these letters
constituted “formal policies and decisions of
the Town.” (Id. ¶ 194.)
A municipal entity may be held liable
under Section 1983 where the plaintiff
demonstrates that the constitutional violation
complained of was caused by a municipal
“policy or custom.” Monell v. Dep’t of Soc.
Servs. of City of N.Y., 436 U.S. 658, 694
(1978) (emphasizing that the municipal
policy must be the “moving force of the
constitutional violation”). “The policy or
custom need not be memorialized in a
specific rule or regulation.” Kern v. City of
Rochester, 93 F.3d 38, 44 (2d Cir. 1996)
(citing Sorlucco v. N.Y.C. Police Dep’t, 971
F.2d 864, 870 (2d Cir. 1992)). Instead,
constitutional violations by government
officials that are “persistent and widespread”
can be “so permanent and well settled as to
constitute a ‘custom or usage’ with the force
of law,” and “thereby generate municipal
liability.” Sorlucco, 971 F.2d at 870-71
(quoting Monell, 436 U.S. at 691).
In short, the Court concludes that
plaintiffs have alleged sufficient facts to state
a plausible claim for municipal liability under
Monell in light of the actions allegedly taken
by the Town’s “authorized policymakers.”
Amnesty Am., 361 F.3d at 126. Further,
although courts have found a single action to
be sufficient to establish municipal liability,
id., plaintiffs here have alleged multiple
actions (including letters to numerous
insurers, communications with the media and
DA’s office, and contract terminations). The
Court, therefore, denies defendants’ motion
to dismiss with respect to the Town.
Additionally, a single action can
“provide[] a basis for municipal liability
where it is taken by, or is attributable to, one
of the city’s authorized policymakers.”
Amnesty Am. v. Town of West Hartford, 361
F.3d 113, 126 (2d Cir. 2004). In order to be
deemed a “policymaker” or “decisionmaker,”
an official must “possess[] final authority to
establish municipal policy with respect to the
action ordered.”
Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986). It is
important to emphasize that a municipal
entity may be held liable only where the
entity itself commits a wrong; “a
municipality cannot be held liable under
§ 1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691; see also Segal, 459
2. Official Capacity Claims
With regard to the individual defendants
sued in their official capacities, plaintiffs
brought claims against councilmember
defendants in their official capacities as
agents of the Town. “[O]fficial-capacity
21
3. Qualified Immunity
suits generally represent only another way of
pleading an action against an entity of which
an officer is an agent.” Castanza v. Town of
Brookhaven, 700 F. Supp. 2d 277, 283-84
(E.D.N.Y. 2010) (quoting Monell, 436 U.S.
at 690 n.55); see also Jackler v. Byrne, 658
F.3d 225, 244 (2d Cir. 2011) (noting that “a
claim asserted against a government official
in his official capacity is essentially a claim
against the governmental entity itself”);
Davis v. Stratton, 360 F. App’x 182, 183 (2d
Cir. 2010) (“The suit against the mayor and
police chief in their official capacities is
essentially a suit against the City of
Schenectady, because in a suit against a
public entity, naming officials of the public
entity in their official capacities ‘adds
nothing to the suit.’” (citation omitted)).
Accordingly, where a plaintiff brings claims
against both a municipality and individuals in
their official capacities as agents of that
municipality, “courts have routinely
dismissed corresponding claims against
individuals named in their official capacity as
redundant and an inefficient use of judicial
resources.” Castanza, 700 F. Supp. 2d at 284
(quoting Escobar v. City of New York, No.
05-CV-3030-ENV-CLP, 2007 WL 1827414,
at *3 (E.D.N.Y. June 25, 2007)).
“Qualified immunity attaches when an
official’s conduct ‘does not violate clearly
established statutory or constitutional rights
of which a reasonable person would have
known.’” White v. Pauly, 137 S. Ct. 548, 551
(2017) (per curiam) (quoting Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per
curiam)). The Second Circuit has held that
“[a] right is clearly established if (1) the law
is defined with reasonable clarity, (2) the
Supreme Court or the Second Circuit has
recognized the right, and (3) ‘a reasonable
defendant [would] have understood from the
existing law that [his] conduct was
unlawful.” Luna v. Pico, 356 F.3d 481, 490
(2d Cir. 2004) (quoting Anderson v. Recore,
317 F.3d 194, 197 (2d Cir. 2003)); see also
McCullough v. Wyandanch Union Free Sch.
Dist., 187 F.3d 272, 278 (2d Cir. 1999).
The Court considers this motion with
respect to the remaining individual
defendants: Michael Walsh, Torres, Cicale,
and Senft. Torres served as the Town
Conservative Party Chairman, but did not
hold a position within the Town government.
Given that Torres was not a government
actor, he cannot claim qualified immunity for
his allegedly defamatory statements or his
alleged participation in the conspiracy.
Plaintiffs stated in their complaint that
councilmember
defendants
Flotteron,
Cochrane, and Weichbrodt were joined “in
their official capacities as Councilmembers
. . . only, and no claim[] for personal or
individual liability is asserted against such
defendants herein.”
(Compl. ¶ 199.)
Councilmember defendants have moved to
dismiss all claims brought against them in
their official capacities. Because the Town is
named as a defendant—and, as discussed
supra, the claims against the Town survive
this motion—the Court grants the motion to
dismiss all claims as brought against the
councilmember defendants.
With respect to the other three individual
defendants, they argue that they are entitled
to qualified immunity in light of their
objectively reasonable beliefs that their
actions did not violate a constitutional right.
Their primary defense is that the Town sent
the letters to the insurers to protect the
Town’s interests, “in the objectivelyreasonable exercise of governmental
functions and duties.” (Defs. Mem. at 2223.) Defendants argue that it was objectively
reasonable to identify Daytree as responsible
“based on [the] Town’s law enforcement
photos and reports as the letters indicate.”
(Id. at 23.)
22
The Court concludes that the qualified
immunity issue cannot be decided at the
motion to dismiss stage given the allegations
in the complaint.
As discussed supra,
plaintiffs allege that the individual
defendants participated in disseminating
knowingly false and defamatory statements,
in bad faith, for the specific purpose of
destroying their business and reputation,
including by terminating their tree-removal
contract with the Town. Moreover, the
complaint alleges that, • as part of this
malicious plan, defendants falsely stated that
an investigation had been conducted, and a
finding of responsibility reached, even
though they knew that neither of those things
had taken place. In other words, according to
the complaint, defendants wrote these false
and defamatory letters and wrongfully
terminated plaintiffs' contract in order to
shift blame for the toxic dumping, with the
intention of depriving plaintiffs-their
political adversaries-of their liberty and
property interests. If plaintiffs can prove all
of these facts, no reasonable defendant would
have understood his or her conduct to be
lawful.
SO ORDERED.
SEPH F. BIANCO
nited States District Judge
Dated:
August 15, 2018
Central Islip, NY
***
Plaintiffs are represented Andrew J.
Campanelli and Amanda Rose Disken of
Campanelli & Associates, P.C., 1757
Merrick Avenue, Suite 204, Merrick, New
York 11566.
Defendants Michael Walsh, Anthony S.
Senft, Jr., and Robert L. Cicale are
represented Timothy F. Hill and Vincent J.
Messina, Jr. of Sinnreich & Kosakoff LLP,
267 Carleton Avenue, Central Islip, New
York 11722.
Defendant Michael Torres is represented by
Joseph J Ferrante and William John Keahon
of Keahon, Fleischer, Duncan & Ferrante,
1393 Veterans Memorial Highway, Suite 312
North, Hauppauge, New York 11788.
In sum, if the allegations in the complaint
are true, there would be no basis for
concluding that defendants held an
objectively reasonable belief that their
actions would not violate plaintiffs'
constitutional rights. The Court, therefore,
de.nies the remaining individual defendants'
motion to dismiss based on qualified
immunity. However, this issue may be raised
again at the summary judgment stage.
Defendants
Town
of
Islip
and
councilmembers Steven J. Flotteron, John C.
Cochrane, Jr., and Trish Bergin Weichbrodt
are represented by John Ryan DiCioccio of
the Islip Town Attorney's Office, 655 Main
Street, Islip, New York 11751.
IV. CONCLUSION
For the foregoing reasons, the Court
grants defendants' motion to dismiss the
claims for declaratory and injunctive relief
and all claims against the councilmember
defendants (Flotteron, Cochrane, and
Weichbrodt), but denies the motion in all
other respects.
23
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