Daytree at Cortland Square, Inc. et al v. Walsh et al

Filing 94

MEMORANDUM and ORDER: The Court is firmly persuaded that even after resolving all ambiguities and drawing all reasonable inferences against the moving party, a reasonable jury could not return a verdict for the plaintiffs on any of the claims presented. The defendants motion 89 for summary judgment is GRANTED. Ordered by Judge Frederic Block on 7/28/2021. (Innelli, Michael)

Case 2:15-cv-02298-FB-AYS Document 94 Filed 07/28/21 Page 1 of 14 PageID #: 4399

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DAYTREE AT CORTLAND SQUARE,
INC., et al.,
MEMORANDUM AND ORDER
Plaintiffs,

Case No. 2:15-cv-02298-FB-AYS

-againstMICHAEL P. WALSH, et al.,
Defendants.
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Appearances:
For the Plaintiffs:
ANDREW J. CAMPANELLI
Campanelli & Associates, P.C.
1757 Merrick Avenue, Suite 204
Merrick, NY 11566

For the Defendants:
TIMOTHY F. HILL
267 Carleton Avenue, Suite 301
Central Islip, NY 11722
JOHN R. DICIOCCIO
Islip Town Attorney’s Office
655 Main Street
Islip, NY 11751

BLOCK, Senior District Judge:
Plaintiffs Thomas A. Datre Sr. (“Datre Sr.”), Clara Datre, and Daytree at
Cortland Square, Inc. bring this action against defendants Michael P. Walsh,
Michael Torres, Robert L. Cicale, Anthony S. Senft Jr., Steven J. Flotteron, John
C. Cochrane, Trish Bergin Weichbrodt, and the Town of Islip (the “Town”).
Before the Court are claims for defamation (libel), stigma-plus, breach of contract,
and section 1983 conspiracy.

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Fundamentally, the plaintiffs contend the defendants engaged in a
conspiracy to cause the local community and members of law enforcement to
wrongfully believe that the plaintiffs were responsible for dumping toxic waste in
the Roberto Clemente Park (the “Park”). Notwithstanding these allegations,
Thomas Datre Jr., an employee of plaintiff Daytree at Cortland Square, Inc., has
pleaded guilty to four felonies in connection with the dumping of hazardous
materials in the Park.
For the following reasons, the Court grants the motion to dismiss.
I.
Daytree at Cortland Square is a New York State corporation formed in 2010
for the purpose of building a housing project in Bay Shore, NY known as Cortland
Square. Datre Sr. and Clara Datre were principals of the firm, and Daytree at Court
Square was run as a “family business.” See ECF No. 89-8 at 16, 73 (deposition of
Clara Datre). The organization employed Datre Sr. and Clara Datre’s daughter, Gia
Gatien, and son, Thomas Datre Jr. (“Datre Jr.”). See, e.g., ECF No. 89-10 at 71
(listing Datre Jr. as the “general manager” and “contact person” for “Daytree at
Cortland Square Inc.”). The family ran Daytree at Cortland Square and other
associated businesses out of a shared office located at 2150 Fifth Avenue in
Ronkonkoma, NY pursuant to a single lease. Datre Jr. was on the payroll of
Daytree at Cortland Square as an employee. See ECF No. 89-12. Daytree at

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Cortland Square shared equipment and employees with Datre Jr.’s businesses and
financed vehicles for use by Datre Jr. Clara Datre also issued interest free
payments to Datre Jr.’s businesses and sought repayment through a barter system.
See ECF No. 89-8 at 27, 97-99, 110. Corporate filings reveal overlap between the
various businesses of Datre Sr., Clara Datre, and Datre Jr. See, e.g., ECF No. 89-8
at 81 (Clara Datre identifying herself as a process server for Datre Jr.’s company
DFF Farm Corp).
In the summer of 2013, after a vast quantity of toxic waste was dumped in
the Park, an effort was undertaken by the Town to determine who was responsible.
According to a letter submitted by Deputy Town Attorney Michael P. Walsh to the
Town’s insurance carriers, the Town found that “Daytree at Cortland Square [was
the] responsible party.” See ECF No. 90-20 at 2-6. A wholly separate criminal
investigation by the Suffolk County District Attorney’s Office led to the indictment
of both Datre Sr. and Datre Jr. As acknowledged by the plaintiffs, Datre Jr.
ultimately pleaded guilty to four felonies in connection with the dumping of toxic
waste at the Park. He received concurrent one-year sentences on each count.
In the wake of the toxic dumping allegations, Datre Sr. was removed from a
paid position on the Town’s Plumbers’ Examining Board, and a tree removal
contract between the Town and Daytree at Cortland Square was cancelled.

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Notwithstanding these facts,1 the plaintiffs allege a wide-ranging, politically
motivated2 conspiracy by defendants who they claim “acted in concert to destroy
Plaintiffs’ lives by falsely branding them as heinous criminals who illegally
dumped tons of toxic materials in a children’s public park.” ECF No. 90 at 8. They
argue the defendants failed to properly supervise the Park and “orchestrated a
conspiracy to deflect blame for their own wrongdoings.” Id. These claims, and
plaintiffs’ theory, hinge on the notion that plaintiffs – Datre Sr., Clara Datre, and
Daytree at Cortland Square, Inc – are “entirely different entit[ies]” from Datre Jr.
ECF No. 90 at 18.
II.
“A district court may grant summary judgment only where ‘the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Reynolds v. Quiros, 990 F.3d 286, 293–
94 (2d Cir. 2021) (quoting Fed. R. Civ. P. 56(a)). “Material facts are those which
might affect the outcome of the suit under the governing law, and a dispute is

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The plaintiffs contend that “all the spurious assertions in Defendants’ joint
motion for summary judgment are nothing more than lies, fabricated for the sole
purpose of deflecting blame for Defendants’ own wrongdoing and placing it
squarely upon the Plaintiffs, thus making them the town’s scapegoats.” ECF No.
90 at 12.
2
The plaintiffs repeatedly claim that defendants’ conspiracy was motivated by a
desire to “deflect blame away from their Conservative Party operatives within the
town” and to “eviscerate” the “substantial political fundraising abilities” of the
Datres. ECF No. 90 at 20.
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genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233, 248 (2d
Cir. 2021) (internal citation omitted). At this stage, courts must resolve all
ambiguities and draw all reasonable inferences against the moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015). “In evaluating a motion for
summary judgment, a district court may not make credibility determinations, or
weigh evidence.” Reynolds, 990 F.3d at 294.
III. Defamation (Libel) Claim
“Under New York law, a plaintiff must establish five elements to recover in
libel: 1) a written defamatory statement of fact concerning the plaintiff; 2)
publication to a third party; 3) fault (either negligence or actual malice depending
on the status of the libeled party); 4) falsity of the defamatory statement; and 5)
special damages or per se actionability (defamatory on its face).” Electra v. 59
Murray Enterprises, Inc., 987 F.3d 233, 259 (2d Cir. 2021) (quoting Celle v.
Filipino Rep. Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000)).
The allegedly defamatory statement was sent on official stationery of the
“Office of the Town Attorney” of Islip, New York and signed by “Deputy Town

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Attorney” Michael P. Walsh. See ECF No. 90-20 at 2-6.3 The letter was sent to the
Town’s insurance carriers. Id. It informs them that “dumping of construction
material on town property located at 400 Broadway, Brentwood, New York
11717” occurred. Id. The letter states that “we have completed our investigation
and found that Daytree at Cortland Square is a responsible party.” Id.
The defendants contend this statement is covered by governmental/executive
privilege.
Under New York law, immunity from liability for defamation is afforded to
“an official [who] is … entrusted by law with administrative or executive policymaking responsibilities of considerable dimension’ … with respect to statements
made during the discharge of those responsibilities about matters which come
within the ambit of those duties.” Clark v. McGee, 49 N.Y.2d 613, 617 (1980)
(internal citations omitted); see also Ove Gustavsson Contracting Co. v. Floete,
299 F.2d 655, 658 (2d Cir. 1962) (analogous privilege applied to federal officials
for “acts, done within the scope of their duties, which necessarily involved the
exercise of a judgment or discretion which public policy requires be made without

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The plaintiffs contend the defendants’ statements “included, but were not
necessarily limited to, multiple statements to four insurance companies, one
broker, the DA’s Office, and the press.” ECF No. 90 at 28. However, in their
briefing, the plaintiffs do not identify the precise statements to which they are
referring other than the letter from Deputy Town Attorney Walsh identified as
plaintiffs’ “Exhibit S” and docketed at ECF No. 90-20.
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fear of personal liability”). Absolute privilege is afforded based on the position
held by the speaker and is limited to the speaker’s “official participation in the
process of government.” Park Knoll Associates v. Schmidt, 59 N.Y.2d 205, 209
(1983).
The privilege is designed “to secure the unembarrassed and efficient
administration of justice and public affairs” so that “public officials will be free to
speak their minds openly and bluntly as is required for the proper performance of
their duties, without subjecting themselves to the possibility of vexatious and
burdensome lawsuits.” Clark, 49 N.Y.2d at 617 (internal citations omitted). A
government official does not need to be a high-level executive to properly invoke
the privilege,4 and the privilege “must be carefully confined to that type of
situation in which the protection provided by the privilege will serve a necessary
societal function.” Id. at 618.
Here, the statement in question was made in the discharge of Michael

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See Augustyniak v. Koch, 588 F. Supp. 793, 797 (S.D.N.Y.), aff’d, 794 F.2d 676
(2d Cir. 1984) (application of privilege to city lawyers “acting within the scope of
their duties as executive officials enforcing the municipalities’ [housing code and]
laws”); Walls v. Town of Islip, No. 0011376/2004, 2008 WL 3333887 (N.Y. Sup.
Ct. July 07, 2008) (privilege attaching to “Deputy Commissioner of the
Department of Code Enforcement”); Clark, 49 N.Y.2d at 619 (application to town
supervisor); Ward Telecommunications & Computer Servs., Inc. v. State, 42
N.Y.2d 289, 290 (1977) (applying the privilege to “audit reports issued on behalf
of the State Comptroller by the Division of Audit and Accounts”); Gautsche v.
State, 67 A.D.2d 167, 170 (N.Y. App. Div. 3d Dep’t 1979) (granting “absolute[]
privilege” to Assistant Attorney General who was investigating fraud and abuse).
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Walsh’s official responsibilities as Deputy Town Attorney and came within the
ambit of his duties. It was part of a letter to the Town’s insurers – informing them
of a potential liability issue – and sent on stationery bearing the town seal. Sound
public policy and established law require that this Court find Walsh’s statement is
covered by governmental/executive privilege and cannot form the basis for a
defamation claim.5
IV. Stigma-Plus Claim
To prevail on a “stigma-plus” claim, a plaintiff must establish “(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 state-imposed alteration of the plaintiff’s status or
rights.” Mudge v. Zugalla, 939 F.3d 72, 80 (2d Cir. 2019).
The analysis above defeats any claim that Deputy Town Attorney Walsh’s
statements support a stigma-plus claim. Privileged statements cannot form the

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The Court also finds that Deputy Town Attorney Walsh’s straightforward
statement in letters to the Town’s insurers was not motivated by “actual malice,” or
“knowledge that [the statement] was false or with reckless disregard of whether it
was false or not.” Kipper v. NYP Holdings Co., 12 N.Y.3d 348, 353 (2009). As
such, even if an absolute privilege did not apply, Deputy Town Attorney Walsh’s
statement would also be subject to qualified governmental privilege, which
requires a showing of actual malice. See, e.g., Brennan v. Granite Equip. Leasing
Corp., 60 A.D.2d 877, 878 (N.Y. App. Div. 2d Dep’t 1978) (“It is well settled that
summary judgment is properly granted where a qualified privilege obtains and the
plaintiffs offer an insufficient showing of actual malice”) (quoting Trails W., Inc.
v. Wolff, 32 N.Y.2d 207, 221 (1973)).
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basis for a stigma-plus claim as a matter of law. See Paterno v. City of New York,
No. 17 CIV. 8278 (LGS), 2018 WL 3632526, at *4 (S.D.N.Y. July 31, 2018),
aff’d, 781 F. App’x 15 (2d Cir. 2019) (“Here, the Consent Decree and the
statements in it are absolutely privileged and cannot be the basis for a [stigma-plus]
claim”); Sharpe v. City of New York, No. 11 CIV. 5494 BMC, 2013 WL 2356063,
at *7 (E.D.N.Y. May 29, 2013), aff’d, 560 F. App'x 78 (2d Cir. 2014) (rejecting
stigma-plus claim because statements were “made in the course of court
proceedings” and were therefore “absolutely privileged under New York common
law”). Because the statements in question are subject to governmental/executive
privilege, they cannot serve as the basis for a stigma-plus claim.
Moreover, stigma-plus is a constitutional tort grounded in the Due Process
Clause. The Second Circuit has found the availability of an Article 78 hearing is a
“perfectly adequate post[-]deprivation remedy” sufficient to satisfy Due Process
concerns. Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d
877, 881 (2d Cir. 1996); see also Abdelhadi v. City of New York, No. 08-CV-380,
2011 WL 3422832, at *6 (E.D.N.Y. Aug. 4, 2011), aff’d sub nom. Abdelhadi v.
New York City Dep't of Correction, 472 F. App'x 44 (2d Cir. 2012) (applying
Hellenic to a stigma-plus claim and concluding “an Article 78 proceeding under
New York law provides an adequate post-deprivation opportunity for the plaintiff
to clear his or her name”). The plaintiffs could have availed themselves of the

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process they were due by pursuing an Article 78 proceeding in state court, but they
chose not to. Having failed to do so, plaintiffs cannot now state a stigma-plus claim
in federal court. See Paterno, 2018 WL 3632526, at *6 (finding, in stigma-plus
context, “[p]laintiff’s decision not to avail himself of the process he was due—i.e.,
an Article 78 proceeding—does not constitute a denial of due process”).
V. Section 1983 Conspiracy Claim
A § 1983 conspiracy claim requires a plaintiff to establish “(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 damages.” Ciambriello v. Cty. of Nassau, 292 F.3d 307, 325 (2d Cir.
2002).
With the benefit of discovery, it is evident that plaintiffs’ claim fails to
establish the first and second elements, which require an agreement between a state
actor and a private party to inflict an unconstitutional injury. Plaintiffs voluntarily
withdrew all their claims against Edward Walsh, leaving Michael Torres as the
only defendant who is not affiliated with the Town. Notwithstanding the bald
assertions of plaintiffs’ counsel,6 there is no clear evidence in the record

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Plaintiffs’ counsel contends that “among all Defendants’ meritless claims, this
one is probably the most preposterous” and repeats the theory that defendants met
to choose “Thomas Datre Sr. as their ‘scapegoat’ despite having not a single shred
of evidence, as of April 24, 2014, that Plaintiffs committed any violations at the
Roberto Clemente Park.” ECF No. 90 at 52.
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establishing that any of the Town defendants formed an agreement with Michael
Torres to inflict an unconstitutional injury. See generally ECF No. 89-24
(deposition of Michael Torres).7 Although there is evidence Michael Torres
reached out to Datre Jr. and Sr. in connection with the town’s investigation, this
simply does not rise to the level of infliction of an unconstitutional injury. See Fisk
v. Letterman, 401 F.Supp.2d 362, 377 (S.D.N.Y. 2005) (“[a]lleging merely that a
private party regularly interacts with a state actor,” as plaintiff did in this case,
“does not create an inference of agreement to violate a plaintiff's rights.”) (internal
citations omitted); see also Rzayeva v. United States, 492 F.Supp.2d 60, 82
(D.Conn. 2007) (“Although Plaintiffs generally assert that a network of
conspirators exists among [the named defendants] and others to deprive Plaintiffs
of their civil rights ... they allege no facts to establish that the private defendants
entered an agreement with the state actors to inflict a particular unconstitutional
injury upon them.”). Plaintiffs have failed to point the Court to other evidence –
aside from their factually unsubstantiated theory, which is directly contradicted by
the guilty plea of Datre Jr. – that the defendants inflicted an unconstitutional injury.
See Black v. Petitinato, 761 F. App’x 18, 23 (2d Cir. 2019) (where “[plaintiffs]
produced no evidence that the defendants entered into an agreement to deprive

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Torres was asked specifically whether he “participated in a conspiracy to frame
the plaintiffs” and answered with an unequivocal “no.” See ECF No. 89-24 at 78.
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[them] of [their] constitutional rights,” summary judgment was appropriate).
VI. Breach of Contract Claim
In order to state a breach of contract claim, a plaintiff must 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.
Both parties acknowledge that Daytree pleaded guilty to violating prevailing
wage laws in connection with performance of the tree removal contract.8 See ECF
No. 90 at 48-50 (acknowledging the breach and arguing it was “de minimis”).
Adherence to the prevailing wage law is a material term of the contract. See ECF
No. 89-10 at 94-95 (“the wages to be paid for a legal day’s work … shall not be
less than the prevailing rate for a day’s work in the same trade or occupation”); see
also United States v. Coren, No. 07-CR-265 (ENV), 2009 WL 2579260, at *2
(E.D.N.Y. Aug. 20, 2009), aff’d, 432 F. App'x 38 (2d Cir. 2011) (“Having work on

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The defendants further argue that Daytree breached the contract through
“performance and billing deficiencies,” “fail[ure] to comply with response-time
requirements set forth in the Tree Removal Contract,” and lack of insurance
coverage. ECF No. 89-1 at 59-60.
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government owned projects actually done by prevailing wage workers is a
fundamental part of the contract”).
The breach of contract claim cannot stand in light of Daytree’s prior,
material breach – namely, violation of the prevailing wage law. See New Windsor
Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 117 (2d Cir. 2006)
(“breach may excuse the nonbreaching party from further performance if the
breach is material.”); see also Shaub & Williams, L.L.P. v. Augme Techs., Inc., No.
13 CIV. 1101 GBD, 2014 WL 625390, at *1 (S.D.N.Y. Feb. 14, 2014)
(acknowledging the “affirmative defense[]” of “breach of contract”). Even if the
prior breach was not fully appreciated by the Town at the time of termination of
the contract, “a party may terminate a contract for cause, and gamble that its
estimate of the situation will be justified when all the facts are proven.” Kerns, Inc.
v. Wella Corp., 114 F.3d 566, 570 (6th Cir. 1997) (analyzing New York law); see
also Weber v. Tada, 589 F. App'x 563, 567 (2d Cir. 2014) (admitting “afteracquired evidence” as a defense to a “breach of contract claim, specifically to show
that [the other party] materially breached the contract first”).
The plaintiffs’ breach of contract claim must be dismissed based on their
admitted, prior material breaches.
CONCLUSION
The Court is firmly persuaded that even after resolving all ambiguities and

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drawing all reasonable inferences against the moving party, a reasonable jury could
not return a verdict for the plaintiffs on any of the claims presented. For the
foregoing reasons, the defendants’ motion for summary judgment is GRANTED.
SO ORDERED.

__/S/ Frederic Block______________

FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
July 28, 2021

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