Perros et al v. County of Nassau et al

Filing 52

MEMORANDUM AND ORDER granting in part and denying in part 38 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, Defendants' motion to dismiss is granted in part and denied in part. Specifically, the motion is gran ted with respect to Plaintiffs' due process, Second Amendment, ADA and Rehabilitation Act claims, and those claims are hereby dismissed. In addition, Defendants' motion is also granted with respect to Plaintiffs' state law claims for t ortious interference with prospective contractual advantage and gross negligence and those claims are also dismissed. Finally, because the Nassau County Police Department and the Nassau County Sheriffs Department are not suable entities, all claims a gainst them aredismissed in their entirety. In all other respects, Defendants' motion to dismiss is denied and this action shall continue solely with respect to Plaintiffs' equal protection and municipal liability claims. (Ordered by Judge Leonard D. Wexler on 2/24/2017.) (Fagan, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FILED

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ALE){ANDER PERROS, THOMAS DELLE,
NICHOLAS LENOCI, VICTOR PATALANO,
RONALD LANIER and IBRAHIM ZAHRAN
Collectively on Behalf of All Persons
Similarly Situated and/or Sheriff's Department
Former Personnel Unfairly Denied Proper
"Recommendation for Consideration of
Application for Pistol License for Retiring
Peace [Police] Officer" Forms and/or "Good Guy
Letters" Following Retirement, Due to Injury
and/or Disability,

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

*

FEB 2 4 2017

*

LONG ISLAND OFFICE

MEMORANDUM AND ORDER

cv 15-5598

Plaintiffs,

(Wexler, J.)

-againstCOUNTY OF NASSAU, NASSAU COUNTY
POLICE DEPARTMENT, NASSAU COUNTY
SHERIFF'S DEPARTMENT, and MICHAEL
SPOSATO, in his Individual and Official
Capacities,
Defendants.

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APPEARANCES:
LAW OFFICES FREDERICK K. BREWINGTON
BY: FREDERICK K. BREWINGTON, ESQ.
Attorneys for Plaintiffs
556 Peninsula Boulevard
Hempstead, New York 11550
CARNELL T. FOSKY, NASSAU COUNTY ATTORNEY
BY: RALPH J. REISSMAN, DEPUTY COUNTY ATTORNEY
Attorneys for Defendants
One West Street
Mineola, New York 11501
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WEXLER, District Judge:
Before the Court is the Defendants' motion to dismiss Plaintiffs' First Amended
Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs oppose the motion.
For the following reasons, Defendants' motion is granted in part and denied in part.

BACKGROUND
The relevant facts can be summarized as follows: Plaintiffs, Alexander Perros ("Perros"),
Thomas Delle ("Delle"), Nicholas Lenoci ("Lenoci"), Victor Patalano ("Patalano"), Ronald
Lanier ("Lanier") and Ibrahim Zahran ("Zahran") (collectively, "Plaintiffs"), are all former
Corrections Officers or Deputy Sheriffs who were employed by the Nassau County Sheriffs
Department (the "Sheriffs Department") for a number of years before retiring on disability due
to injuries suffered in the course of their duties as Sheriffs Department employees. Following
their retirement, Plaintiffs each applied to the Sheriffs Department for a "good guy letter," which
would allow them to possess and carry pistols as retirees. Plaintiffs' applications for good guy
letters were all denied by Defendant Sheriff Michael Sposato ("Sposato"), on the grounds that
Plaintiffs were injured and/or disabled for medical reasons at the time of their retirement.
Plaintiffs commenced this putative class action on September 28, 2015, and amended
their Complaint, as of right, on November 9, 2015. The First Amended Complaint alleges that
Defendants violated Plaintiffs' 2nd Amendment, due process and equal protection rights under 42
U.S.C. § 1983. Plaintiffs further allege that Defendants discriminated against them on the basis
of disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132,
and the Rehabilitation Act, 29 U.S.C. § 794. Finally, Plaintiffs assert a claim for municipal
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liability, as well as state law claims for gross negligence and tortious interference with
prospective contractual advantage.
Defendants move to dismiss Plaintiffs' First Amended Complaint in its entirety, pursuant
to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the Court finds
that Plaintiffs' First Amended Complaint fails to state a claim for violation of their due process
and Second Amendment rights. In addition, the Court finds that Plaintiffs have failed to state a
claim for disability discrimination, and tortious interference with prospective contractual
advantage and gross negligence. The Court finds, however, that Plaintiffs have met their burden
with respect to their equal protection and municipal liability claims.

DISCUSSION
I.

Legal Standard
"To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a complaint must contain

sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."'
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). "Facial plausibility" is achieved when the "the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). As a general rule, the court
is required to accept as true all of the allegations contained in the complaint, see Iqbal, 556 U.S.
at 678; Kassner v. 2nd Ave. Delicatessen. Inc., 496 F.3d 229, 237 (2d Cir. 2007), and to "draw[]
all reasonable inferences in the plaintiffs favor." Troni, 2010 U.S. Dist. LEXIS 79670, at *5
(quoting In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007)).
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However, "[t]hreadbare recitals ofthe elements of a cause of action, supported by mere
conclusory statements ... are not entitled to the assumption oftruth." Iqbal, 556 U.S. at 678-79
(citation omitted); see also Twombly, 555 U.S. at 555 (stating that the Court is "not bound to
accept as true a legal conclusion couched as a factual allegation"). "While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations," which
state a claim for relief. Iqbal, 556 U.S. at 679. A complaint that "tenders 'naked assertion[s]'
devoid of'further factual enhancement"' will not suffice. Iqbal, 556 U.S. at 678 (quoting
Twombly, 555 U.S. at 557).

II.

The NCPD and NCSD are not Suable Entities
As Defendants correctly point out in their motion, and Plaintiffs concede in their

opposition, Defendants Nassau County Police Department and Nassau County Sheriffs
Department are not suable entities. It is well-established that "[u]nder New York law,
departments that are merely administrative arms of a municipality do not have a legal identity
separate and apart from the municipality and, therefore, cannot sue or be sued." Davis v.
Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002) (citing cases). Accordingly,
the Nassau County Police Department and the Nassau County Sheriffs Department are hereby
dismissed from this action.

III.

The Due Process and Second Amendment Claims
Plaintiffs allege that they each have a protected property and/or liberty interest in a

firearms license - and, by extension, the good guy letter - which was denied by Defendants
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without due process oflaw, in violation of 42 U.S.C. § 1983.
1.

Procedural Due Process
"A procedural due process claim is composed of two elements: (1) the existence

of a property or liberty interest that was deprived and (2) deprivation of that interest without due
process." Bryant v. N.Y. State Educ. Dep't, 692 F.3d 202, 218 (2d Cir. 2012) (citing
Narumanchi v. Bd. ofTrustees, 850 F.2d 70, 72 (2d Cir. 1988)). To establish deprivation of a
property interest, a plaintiff must demonstrate an interest "in a benefit that is 'more than an
abstract need or desire for it ... [He] must, instead, have a legitimate claim of entitlement to it'
under state or federal law in order to state a§ 1983 claim." Finley v. Giacobbe, 79 F.3d 1285,
1296 (2d Cir. 1996) (quoting Board ofRegents v. Roth, 408 U.S. 564, 577 (1972)).
"[A] benefit is not a protected entitlement if government officials may grant or deny it in
their discretion." Town of Castle Rock v. Gonzalez, 545 U.S. 748, 756 (2005) (citing Kentucky
Dep't of Corrections v. Thompson, 490 U.S. 454,462-63 (1989)). Under New York law, "[i]t is
well-settled that the possession of a handgun license is a privilege, not a right." Papaioannou v.
Kelly, 788 N.Y.S.2d 378, 378 (1st Dep't 2005) (citing cases). Moreover, the parties do not
dispute that under New York Penal Law, decisions on whether or not to issue pistol permits are
made by the licensing officer in the county where the applicant resides, which, in this case, is
Defendant Sposato. See N.Y. Penal Law§ 400.00(3)(a). Licensing officers, such as Sposato, are
vested with broad discretion in making the determination whether or not to issue a pistol permit.
See Simmons v. New York City Police Dep't License Div., 825 N.Y.S.2d 768, 769 (2d Dep't
2006).
Since it is a discretionary decision on Sposato's part whether to issue a pistol permit, and
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by extension, a good guy letter, Plaintiffs cannot establish that they have a protected property
interest1 in either the pistol permit or the good guy letter they seek to obtain. Accordingly, their
First Amended Complaint fails to state a claim for a procedural due process violation and that
claim is hereby dismissed.
2.

Second Amendment
The Second Amendment provides: "A well regulated Militia, being necessary to

the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
U.S. Const. amend. II. The Supreme Court has held that the Second Amendment "codified a preexisting right" that includes an "individual right to possess and carry weapons in case of
confrontation."2 District of Columbia v. Heller, 554 U.S. 570, 592 (2008).
The "right secured by the Second Amendment is not unlimited," however, such that it
does not protect a right "to keep and carry any weapon whatsoever in any manner whatsoever and
for whatever purpose." Heller, 554 U.S. at 626. Moreover, case law within this circuit indicates
that "the 'right to bear arms' is not a right to hold some particular gun." Garcha v. City of
Beacon, 351 F. Supp. 2d 213, 217 (S.D.N.Y. 2005). As Defendants point out, and Plaintiffs do
not dispute, Plaintiffs are still able to obtain a gun license to own a shotgun or a rifle as a good
guy letter is not necessary for the purchase and possession of those firearms. Without the good

1

Plaintiffs argue that in addition to a property interest, they have a liberty interest in the
continued possession of a firearm. (Pl. Mem. ofLaw in Opp'n 29.) However, as discussed infra
in connection with Plaintiffs' Second Amendment claim, Defendants are not preventing Plaintiffs
from obtaining any firearm. They are simply refusing to provide them with the necessary
paperwork to obtain the firearm of their choice.
2

In 2010, the Supreme Court held for the first time that the Second Amendment's
protections apply fully to the states through the Fourteenth Amendment's Due Process Clause.
See McDonald v. Chicago, 561 U.S. 742, 750 (2010).
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guy letter, Plaintiffs are simply prevented from possessing and carrying a pistol, not all firearms.
Since "there is no allegation that Defendants' actions have affected Plaintiff[s'] ability to
retain or acquire other firearms ... the conduct alleged in the [First] Amended Complaint does
not amount to a Second Amendment violation." Vaher v. Town ofOrangetown, 916 F. Supp. 2d
404, 430 (S.D.N.Y. 2013); see also McGuire v. Village ofTarrytown, No. 08 Civ. 2049, 2011
WL 2623466, at *7 (S.D.N.Y. June 22, 2011) (holding that because "defendants did not prevent
[plaintiff] from acquiring another weapon, they did not impede plaintiff's 'right to bear arms"').
Accordingly, Defendants' motion to dismiss Plaintiffs' claim for violation of their Second
Amendments rights is granted.

IV.

The ADA and the Rehabilitation Act
Plaintiffs allege that Defendants discriminated against them based on their disabilities in

violation of the ADA and the Rehabilitation Act when they failed to issue the requested good guy
letters. According to Plaintiffs, their disabilities were the sole reason for Defendants' denial of
the good guy letters.
Title II of the ADA provides, in pertinent part, that "no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity." Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009) (quoting 42
U.S.C. § 12132. "Similarly, the Rehabilitation Act requires that specified 'otherwise qualified'
disabled individuals receive reasonable accommodations from programs receiving federal
financial assistance." Harris, 572 F.3d at 73 (quoting 29 U.S.C. § 794(a)).
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To establish a prima facie violation of the ADA, Plaintiffs must demonstrate: (1) that they
are "qualified individual[ s]" with disabilities; (2) that they were "excluded from participation in a
public entity's services, programs or activities or [were] otherwise discriminated against by a
public entity;" and (3) that such discrimination was "due to [their] disabilit[ies]." Hargrave v.
Vermont, 340 F.3d 27, 34-35 (citing 42 U.S.C. § 12132). "These requirements apply with equal
force to [P]laintiffs' Rehabilitation Act claims." Hargrave, 340 F.3d at 35 (citing Rodriguez v.
City ofNew York, 197 F.3d 611, 618 (2d Cir. 1999)).
To satisfy this standard at the motion to dismiss stage, Plaintiffs are required to allege that
they suffer from physical or mental impairments that "substantially limit" an activity that
"constitutes a major life activity under the ADA." Telemaque v. Marriott Int'l. Inc. No. 14 Civ.
6336, 2016 WL 406384, at *6 (S.D.N.Y. Feb. 2, 2016) (quoting Colwell v. Suffolk Cty. Police
Dep't, 158 F.3d 635, 641 (2d Cir. 1998)) (additional citations omitted). "Not every impairment
is a 'disability' within the meaning of the ADA; rather, there are two requirements: the
impairment must limit a major life activity and the limitation must be substantial." Capobianco
v. City ofNew York, 422 F.3d 47, 56 (2d Cir. 2005) (citing 42 U.S.C. § 12102(2)(A)). "A
'major life activity' is one that is 'of central importance to daily life,' including functions such as
caring for oneself, walking, seeing, hearing, speaking, breathing, learning and working."
Telemaque, 2016 WL 406384, at *6 (quoting Primmer v. CBS Studios. Inc., 667 F. Supp. 2d
248, 258 (S.D.N.Y. 2009)) (additional citations omitted).
Here, Plaintiffs do not allege that any of the foregoing major life activities are
substantially limited by reason of their disabilities. In fact, Plaintiffs repeatedly allege
throughout their First Amended Complaint that they do not suffer from any "impairments to their
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abilities to own, handle, operate and secure pistols/firearms." (See, e.g., 1st Am. Compl. ~ 235.)
Accordingly, while Plaintiffs may have retired from their positions with the Sheriffs Department
due to disabilities that prevented them from continuing their employment, they do not allege that
they are "disabled" within the meaning of the ADA or the Rehabilitation Act.
Rather, Plaintiffs appear to allege that the ability to own and operate a firearm is a major
life activity, pursuant to the ADA and the Rehabilitation Act. However, at least one court in this
circuit has rejected the argument that the "ability to carry a gun" constitutes a "major life
activity," noting that the definition of"major life activity" is "limited to eating, sleeping,
walking, seeing, talking, hearing and breathing." Santiago v. New York City Police Dep't, No.
05 Civ. 3035, 2007 WL 4382752, at *8 (S.D.N.Y. Dec. 14, 2007), affd, 329 Fed. App'x 328 (2d
Cir. 2009) (citing Mescall v. Marra, 49 F. Supp. 2d 365, 373 (S.D.N.Y. 1999)). This Court
agrees and finds that because the ability to own or operate a firearm is not a major life activity,
Plaintiffs are not disabled within the meaning of the ADA or the Rehabilitation Act. As such, the
First Amended Complaint fails to state a claim under the ADA and the Rehabilitation Act and
those claims are dismissed. 3

3

In addition, as Plaintiff concedes, it is well-established that there is no individual
liability under the ADA or the Rehabilitation Act, whether the individual is sued in their official
or individual capacity. See Spiegel v. Schulmann, 604 F.3d 72, 79-80 (2d Cir. 2010) (explaining
that there is no individual liability under the ADA); Cohn v. KeySpan Corp., 713 F. Supp. 2d
143, 154 (E.D.N.Y. 2010) ("Individuals may not be sued in their individual or personal capacity
under the ADA or Rehabilitation Act."); Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d
282, 302 n.10 (S.D.N.Y. 2010) ("[I]ndividuals cannot be named as defendants in ADA or
Rehabilitation Act suits in their official or representative capacities."). Accordingly, the ADA
and Rehabilitation Act claims asserted against Defendant Sposato in both his individual and
official capacities are hereby dismissed on this ground as well.
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V.

The State Law Claims
Plaintiffs allege the following state law claims stemming from the denial of their

requested good guy letters: (1) tortious interference with prospective contractual advantage and
(2) gross negligence.
1.

Tortious Interference with Prospective Contractual Advantage
"Under New York law, to state a claim for tortious interference with prospective

economic advantage, the plaintiff must allege that '(1) it had a business relationship with a third
party; (2) the defendant knew of that relationship and intentionally interfered with it; (3) the
defendant acted solely out of malice, or used dishonest, unfair or improper means; and (4) the
defendant's interference caused injury to the relationship."' Kirch v. Libertv Media Corp., 449
F.3d 388, 400 (2d Cir. 2005) (quoting Carvel Corp. v. Noonan, 350 F.3d 6, 17 (2003)).
Plaintiffs' First Amended Complaint is completely devoid of any allegations concerning a
business relationship between Plaintiffs and a third party. Nor are there any allegations that
Defendants interfered with any such relationship.
In their Memorandum of Law in opposition to the within motion, Plaintiffs argue that
they have met the pleading standard for a claim for tortious interference with prospective
economic advantage because they "repeatedly" allege that Plaintiffs had "a business relationship
with Defendants, including Defendant Sposato." (Pl. Mem. of Law 34.) However, this is a
complete misinterpretation of the elements of the claim. A claim of tortious interference requires
a business relationship with a third party, not the defendant. It further requires that the defendant
interfered with that third-party relationship. Nothing in the First Amended Complaint alleges the
required elements of the claim. Accordingly, Plaintiffs' claim for tortious interference with
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prospective contractual advantage is dismissed.
2.

Gross Negligence
To state a claim for negligence under New York law, a plaintiff must establish

three elements: "( 1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this
duty; and (3) injury to the plaintiff as a result thereof." Alfaro v. Wal-Mart Stores, Inc., 210 F.3d
111, 114 (2d Cir. 2000) (12§: curiam) (quoting Akins v. Glen Falls City Sch. Dist., 53 N.Y.2d
325, 333 (1981 )). The existence of a duty on defendant's part is "a sin qua non of a negligence
claim: 'In the absence of a duty, as a matter oflaw, no liability can ensue."' Alfaro, 210 F.3d at
114 (quoting McCarthy v. Olin Com., 119 F.3d 148, 156 (2d Cir. 1997)).
Plaintiffs' claim for gross negligence fails as a matter of law because they cannot
establish that Defendants owed them a duty to issue a good guy letter. As stated above in
connection with Plaintiffs' due process claim, licensing officers in New York- as Sposato is here
- are vested with broad discretion in making the determination whether or not to issue a pistol
permit. See Simmons v. New York City Police Dep't License Div., 825 N.Y.S.2d 768,769 (2d
Dep't 2006). Since it is a discretionary decision on Sposato's part whether to issue a pistol
permit, and by extension, a good guy letter, Plaintiffs cannot establish that Defendants owed
them any duty to issue a good guy letter. Accordingly, their gross negligence claim fails as a
matter of law and is hereby dismissed.

VI.

Equal Protection and Municipal Liability
Finally, Plaintiffs' allege that Defendants violated their equal protection rights in that

similarly situated Sheriffs Department employees who retire without disability are issued good
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guy letters. Plaintiffs further assert a claim for municipal liability, pursuant to Monell v.
Department of Social Services, 436 U.S. 658 (1978), alleging that the County has permitted a
pattern and practice of unreasonable denials of good guy letters to Sheriff's Department
employees who retire due to disability.
To state an equal protection claim, Plaintiffs must demonstrate that they were "treated
differently than others similarly situated as a result of intentional or purposeful discrimination."
Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) (citing Giano v. Senkowski, 54 F.3d 1050,
1057 (2d Cir. 1995)). Taking the allegations in the First Amended Complaint as true, as the
Court must at this stage of the litigation, Plaintiffs have adequately pleaded that they were treated
differently from Sheriffs Department employees who retired without disability and that
Defendants purposely withheld Plaintiffs' good guy letters because of their retirements due to
disability. Moreover, Plaintiffs have adequately alleged a pattern and practice on Defendants'
part of withholding good guy letters on the basis of disability retirement.
Accordingly, Plaintiffs have satisfied their burden with respect to their equal protection
and Monell claims and Defendants' motion to dismiss those claims is denied.

CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is granted in part and denied in
part. Specifically, the motion is granted with respect to Plaintiffs' due process, Second
Amendment, ADA and Rehabilitation Act claims, and those claims are hereby dismissed. In
addition, Defendants' motion is also granted with respect to Plaintiffs' state law claims for
tortious interference with prospective contractual advantage and gross negligence and those
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claims are also dismissed. Finally, because the Nassau County Police Department and the
Nassau County Sheriffs Department are not suable entities, all claims against them are
dismissed in their entirety. In all other respects, Defendants' motion to dismiss is denied and this
action shall continue solely with respect to Plaintiffs' equal protection and municipal liability
claims.

SO ORDERED:
Dated: Central Islip, New York
February 2.&\-, 2017

~EONARD/D. WEX2'ER
United States District Judge

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