Freund v. County of Nassau et al
MEMORANDUM AND ORDER granting in part and denying in part 21 Motion to Dismiss. For the reasons stated herein, Defendants' motion to dismiss is granted in part and denied inpart. Specifically, the motion is granted with respect to Plaintiff& #039;s due process, ADA andRehabilitation Act claims, and those claims are hereby dismissed. In addition, the Court findsthat Plaintiff's Complaint fails to state a claim with respect to his Second Amendment claim, aswell as his state law claims for tortious interference with prospective contractual advantage and negligence and those claims are also dismissed sua sponte. Finally, because the Nassau County Police Department and the Nassau County Sheriff's Department are not suable entit ies, all claims against them are dismissed in their entirety. In all other respects, Defendants' motionto 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)
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.O.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
FEB 2 4 2017
MEMORANDUM AND ORDER
-againstCOUNTY OF NASSAU, NASSAU COUNTY
POLICE DEPARTMENT, NASSAU COUNTY
SHERIFF'S DEPARTMENT, and
SHERIFF MICHAEL SPOSATO, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITIES,
LAW OFFICES OF GREGORY J. GALLO, PC
BY: GREGORY J. GALLO, ESQ.
Attorneys for Plaintiff
34-11 Queens Boulevard
Long Island City, New York 11101
CARNELL T. FOSKY, NASSAU COUNTY ATTORNEY
BY: DIANE C. PETILLO, DEPUTY COUNTY ATTORNEY
Attorneys for Defendants
One West Street
Mineola, New York 11501
WEUER, District Judge:
Before the Court is the Defendants' motion to dismiss Plaintiff's Complaint, pursuant to
Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion. For the following
reasons, Defendants' motion is granted in part and denied in part.
The relevant facts can be summarized as follows: Plaintiff, Michael Freund, ("Plaintiff'
or "Freund"), is a former Corrections Officer who was employed by the Nassau County Sheriffs
Department (the "Sheriff's Department") from August 1995 to September 6, 2011, when he
retired on disability due to an injury suffered in 2009 in the course of his duties as a corrections
officer. Following his retirement, Plaintiff applied to the Sheriffs Department for a "good guy
letter," which would allow him to possess and carry a pistol as a retiree. Plaintiff's application
for a good guy letter was denied by Defendant Sheriff Michael Sposato ("Sposato") on or about
February 22, 2014, on the grounds that Plaintiff was injured and/or disabled for medical reasons
at the time of his retirement.
Plaintiff commenced the within action on October 27,2015, alleging that Defendants
have violated his Second Amendment, due process and equal protection rights under 42 U.S.C. §
1983. Plaintiff further alleges that Defendants have discriminated against him 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, Plaintiff asserts a claim for municipal liability,
as well as state law claims for gross negligence and tortious interference with prospective
Defendants filed the instant motion, seeking to dismiss the entire Complaint for failure to
state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). However, Defendants only
address the due process, equal protection, discrimination and municipal liability claims in their
motion. 1 Although not addressed by Defendants, the Court finds, for the reasons discussed
below, that Plaintiffs Complaint fails to state a claim for violation of his Second Amendment
rights, gross negligence and tortious interference with prospective contractual advantage. In
addition, the Court finds that Plaintiff has failed to state a claim for violation ofhis due process
rights and disability discrimination. The Court finds, however, that Plaintiffhas met his burden
with respect to his equal protection and municipal liability claims.
"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 reliefthat 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.
Defendants also move to dismiss Plaintiffs purported claim for violation of the Law
Enforcement Officers Safety Act ("CEOSA"), 18 U.S.C. § 926, on the grounds that there is no
private right of action under this statute. While the Court does not find a cause of action under
LEOS A contained in Plaintiffs Complaint, Plaintiff failed to even address Defendants'
arguments in his opposition to the within motion. Accordingly, to the extent there is a LEOSA
claim alleged in Plaintiff's Complaint, the Court deems it abandoned. See Martinez v. City of
New York, No. 11 Civ. 7461, 2012, U.S. Dist. LEXIS 173500, at *3 (S.D.N.Y. Dec. 6, 2012)
("A court 'may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a
defendant's arguments that the claim should be dismissed."') (quoting Lipton v. County of
Orange, 315 F. Supp. 2d 434,446 (S.D.N.Y. 2004)).
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)).
However, "[t]hreadbare recitals ofthe elements of a cause of action, supported by mere
conclusory statements ... are not entitled to the assumption of truth." 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).
The NCPD and NCSD are not Suable Entities
As Defendants correctly point out in their motion, Defendants Nassau County Police
Department and Nassau County Sheriffs Department are not suable entities. It is wellestablished 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.
The Due Process an Second Amendment Claims
Plaintiff alleges that he has a protected property and/or liberty interest in a firearms
license - and, by extension, the good guy letter - which was denied by Defendants without due
process oflaw, in violation of 42 U.S.C. § 1983. "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." Bzyant v. N.Y. State Educ. Dep't, 692 F.3d
202, 218 (2d Cir. 2012) (citing Narumanchi v. Bd. of Trustees, 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 of Regents v. Roth, 408
U.S. 564, 577 (1972)) (alteration in original).
"[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
Since it is a discretionary decision on Sposato's part whether to issue a pistol permit, and
by extension, a good guy letter, Plaintiff cannot establish he has a protected property interest in
either the pistol permit or the good guy letter he seeks to obtain. Accordingly, his Complaint
fails to state a claim for a procedural due process violation and that claim is hereby dismissed.
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). Here, Plaintiff is 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 ofthose firearms. Without the good guy letter, Plaintiff is simply prevented from
possessing and carrying a pistol, not all firearms.
Since "there is no allegation that Defendants' actions have affected Plaintiffs ability to
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).
retain or acquire other firearms ... the conduct alleged in the ... 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 ofTanytown, 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, Plaintiffs claim for violation of his Second Amendments rights is hereby
The ADA and the Rehabilitation Act
Plaintiff alleges that Defendants discriminated against him based on his disability in
violation of the ADA and the Rehabilitation Act when they failed to issue the requested good guy
letter. According to Plaintiff, his disability was the sole reason for Defendants' denial of a good
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)).
As stated above, Defendants did not move to dismiss this claim. Rather, after
reviewing the Complaint, the Court dismisses the claim sua sponte.
To establish a prima facie violation of the ADA, Plaintiff must demonstrate: (1) that he is
a "qualified individual" with a disability; (2) that he was "excluded from participation in a public
entity's services, programs or activities or was otherwise discriminated against by a public
entity;" and (3) that such discrimination was "due to his disability." Hargrave v. Vermont, 340
F.3d 27, 34-35 (citing 42 U.S.C. § 12132). "These requirements apply with equal force to
[P]laintiffl's] Rehabilitation Act claims." Hargrave, 340 F.3d at 35 (citing Rodriguez v. City of
New York, 197 F.3d 611, 618 (2d Cir. 1999)).
To satisfy this standard at the motion to dismiss stage, Plaintiff is required to allege that
he suffers from a physical or mental impairment that "substantially limit[s]" 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) (alteration in original).
"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, Plaintiff does not allege that any of the foregoing major life activities are
substantially limited by reason ofhis disability. In fact, Plaintiff repeatedly alleges throughout
his Complaint that he does not suffer from any "impairments to his abilities to own, handle,
operate, and secure pistols/firearms." (See. e.g., Compl. ~ 132.) Accordingly, while Plaintiff
may have retired from his position with the Sheriffs Department due to a disability that
prevented him from continuing his employment, he does not allege that he is "disabled" within
the meaning of the ADA or the Rehabilitation Act.
Rather, Plaintiff appears 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 carry own or operate a firearm is not a major life
activity, Plaintiff is not disabled within the meaning ofthe ADA or the Rehabilitation Act. As
such, Plaintiffs Complaint fails to state a claim under the ADA and the Rehabilitation Act and
those claims are dismissed. 4
In addition, 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 Cor_p., 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.
The State Law Claims
Plaintiff alleges the following state law claims stemming from the denial of his requested
good guy letter: (1) tortious interference with prospective contractual advantage and (2) gross
negligence. Although Defendants did not move to dismiss these claims, the Court finds that they
fail as a matter of law and dismisses them sua sponte.
Tortious Interference with Prospective Business 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. Liberty Media Corp., 449
F.3d 388, 400 (2d Cir. 2005) (quoting Carvel Corp. v. Noonan, 350 F.3d 6, 17 (2003)).
Plaintiffs Complaint is completely devoid of any allegations concerning a business relationship
between Plaintiff and a third party. Nor are there any allegations that Defendant Sposato
interfered with any such relationship, both of which are required elements of a claim for tortious
interference with prospective economic advantage. Accordingly, Plaintiffs claim for tortious
interference with prospective contractual advantage is dismissed.
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) (m 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 Cotp., 119 F.3d 148, 156 (2d Cir. 1997)).
Plaintiffs claim for gross negligence fails as a matter oflaw because he cannot establish
that Defendants owed him 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, Plaintiff cannot establish that Defendants owed him any duty to
issue a good guy letter. Accordingly, his gross negligence claim fails as a matter of law and is
Equal Protection and Municipal Liability
Finally, Plaintiff alleges that Defendants violated his equal protection rights in that
similarly situated Sheriffs Department employees who retire without disability are issued good
guy letters. Plaintiff further asserts 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 Sheriffs Department
employees who retire due to disability.
To state an equal protection claim, Plaintiff must demonstrate that he was "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 Complaint as true, as the Court must at this
stage of the litigation, Plaintiff has adequately pleaded that he was treated differently from
Sheriffs Department employees who retired without disability and that Defendants purposely
withheld Plaintiffs good guy letter because of his retirement due to disability. Moreover,
Plaintiff has adequately alleged a pattern and practice on Defendants' part of withholding good
guy letters on the basis of disability retirement.
Accordingly, Plaintiff has satisfied his burden with respect to his equal protection and
Monell claims and Defendants' motion to dismiss those claims is denied.
For the foregoing reasons, Defendants' motion to dismiss is granted in part and denied in
part. Specifically, the motion is granted with respect to Plaintiff's due process, ADA and
Rehabilitation Act claims, and those claims are hereby dismissed. In addition, the Court finds
that Plaintiff's Complaint fails to state a claim with respect to his Second Amendment claim, as
well as his state law claims for tortious interference with prospective contractual advantage and
gross negligence and those claims are also dismissed sua sponte. Finally, because the Nassau
County Police Department and the Nassau County Sheriff's 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.
Dated: Central Islip, New York
February \.'-\, 2017
United States District Jl!rlge
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