Schoolcraft v. The City Of New York et al

Filing 174

DECLARATION of Walter Kretz in Support re: 173 MOTION for Leave to File Answer Amended with Counterclaims.. Document filed by Steven Mauriello(Tax Id. 895117, Individually), Steven Mauriello(Tax Id. 895117 in his official capacity). (Attachments: # 1 Exhibit Proposed Amended Answer, # 2 Exhibit NYPD Tapes cover)(Kretz, Walter)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,
Plaintiff,

DECLARATION

-against10-CV-06005 (RWS)
THE CITY OF NEW YORK, et al.,
Defendants.
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I, WALTER A. KRETZ, JR., declare under penalty of perjury that the
following is true and correct:
1.

I am a member of Scoppetta Seiff Kretz & Abercrombie,

attorneys for defendant Deputy Inspector Steven Mauriello in his official and
individual capacities. We first appeared on behalf of Steven Mauriello on May
24, 2012. The original Complaint in this action had been filed by the plaintiff on
August 10, 2010. The New York City Law Department originally represented
Steven Mauriello, and filed an Answer on his behalf and on behalf of the City of
New York and all individual City defendants on December 2, 2010, after plaintiff
had served an Amended Complaint. Plaintiff filed a Second Amended Complaint
on October 1, 2012, and we filed an Answer to that Second Amended Complaint
on behalf of defendant Mauriello on January 10, 2013.
Relief Sought
2.

I submit this Declaration in support of defendant Mauriello’s

motion for leave to file an amended Answer to assert counterclaims, annexed as
Exhibit A. The proposed counterclaims are state law claims against plaintiff in

his individual capacity for tortious interference with defendant Mauriello’s
employment relationship with the City of New York and prima facie tort. We also
ask the Court in its discretion to exercise supplemental jurisdiction over
defendant Mauriello’s counterclaims, and to find the counterclaims are timely.
Finally, we ask the Court to grant such other relief as it deems just.
Summary of Argument
3.

Defendant Mauriello’s counterclaims are so related to

plaintiff’s claims as to form part of “the same case or controversy” warranting this
Court’s exercise of supplemental jurisdiction pursuant to 28 U.S.C. section
1367(a). As recited in our memorandum of law, an alternative expression of the
“same case or controversy” requirement of section 1367(a), which, again, is
satisfied here, is whether the claims “derive from a common nucleus of operative
fact.” In addition, the Court “should freely give leave” to defendant Mauriello to
amend his Answer to add the counterclaims pursuant to Rule 15(a)(2) of the
Federal Rules because “justice so requires”. Finally, pursuant to section 203(d)
of the New York Civil Practice Law and Rules, the counterclaims are timely
asserted as the applicable statutes of limitations were tolled as of the date
plaintiff filed his original complaint.
Defendant Mauriello’s Counterclaims
4.

The proposed counterclaims allege plaintiff’s tortious

interference with defendant Mauriello’s employment with the NYPD and prima
facie tort, based principally upon plaintiff’s enactment of a plan devised with the
aid of his father, who apparently has had some experience suing police
departments both as an employee and as a private citizen. As revealed in a
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recording plaintiff made on October 7, 2009, of a conversation he had with his
father while plaintiff was on his way to meet for the first time with the NYPD
Quality Assurance Division (QAD), the plan was to “fuck [Mauriello] over” while
laying a false foundation for claims plaintiff intended to assert against the City.
5.

Plaintiff intended to carry out the plan, in part, by making

unfounded and/or exaggerated accusations against the supervising officers of
the 81st Precinct, which plaintiff and his father hoped would make Mauriello the
“scapegoat” for the alleged wrongdoing in the 81st Precinct and throughout the
NYPD, and thus cause Mauriello to get fired.
6.

To help create the appearance that the alleged wrongdoing

was real – that crime reports routinely were improperly downgraded – plaintiff
caused at least three incidents, two involving grand larceny and one burglary, all
reported directly to him, to be recorded instead as lost property, and caused at
least three other incidents of crime not to be recorded at all. Thus, while plaintiff
identified thirteen instances to QAD of improper crime reporting, he actually was
responsible for six such incidents. His plan apparently anticipated that the crime
victims would later return to the 81st Precinct -- and in some instances it appears
plaintiff reached out to them to do so -- to complain that their reports were not
taken or not followed up. This then would result in documentation of improper
handling of crime reports that QAD could readily discover.
7.

Plaintiff’s plan later included the sensationalized publication

in the press of selective recordings plaintiff had secretly made in the 81st Precinct
over a period of perhaps three years or longer. While the recordings no doubt
include statements of behind-the-door bravado, there is no evidence that the way
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in which plaintiff urged that the statements be misconstrued, as if constituting
proof of wrongdoing, is anything close to the actual performance of the officers in
the 81st Precinct. Yet, the damage desired by plaintiff inevitably has to some
extent occurred.
8.

Finally, plaintiff’s plan culminated in the August 2013 release

of a book authored by Graham A. Rayman, The NYPD Tapes, A Shocking Story
of Cops, Cover-Ups, and Courage, written with the apparent input and assistance
of plaintiff and his father. (See Exhibit B.) The book purports to be an accurate
account of plaintiff’s background and experience in the NYPD up until the events
of October 31, 2009. Perhaps one unintended consequence of the book,
however, is that it reveals elements of the scheme adopted by plaintiff and his
father, which might help us to prove just how malicious a scheme it has been.
9.

While plaintiff’s plan ultimately was not as successful as

plaintiff and his father might have hoped with respect to getting Mauriello fired,
the counterclaims allege that Mauriello has indeed undeservedly suffered and
may continue to suffer as a result of the scheme maliciously set in motion by the
plaintiff.
Plaintiff’s Deceit
10.

Part of plaintiff’s plan for enactment of the scheme to do

harm to Mauriello -- not just by interfering in his employment relationship with the
NYPD, but also in maliciously damaging his reputation -- was for plaintiff to hold
himself out to QAD as a police officer concerned about the safety of his fellow
officers and the rights of the residents in the substantially African American
community served by the 81st Precinct. In truth, however, as revealed by
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plaintiff’s October 7, 2009, recording of his conversation with his father, plaintiff
had little regard for his fellow officers, and apparently even less regard for African
Americans. Plaintiff’s actual goal apparently was not to assist his fellow officers
or the people of the 81st Precinct. It was to do harm to Mauriello while fabricating
support for claims he intended to bring, and has brought in this case, against the
City and his supervising officers.
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With respect to his fellow police officers, plaintiff said to his

father “ain’t nobody my friend” in the NYPD, and, as far as he was concerned, if
any fellow officers in the NYPD were to suffer an adverse impact from what
plaintiff intended to report to QAD, “none of these guys came to my fucking aid
when [the NYPD] started coming at me, so they fucking asked for it.”
12.

Plaintiff also reveals when speaking to his father just how

dishonestly he would, and ultimately did, express himself to QAD by speaking of
his purported concern for the people in the predominantly minority community
served by the 81st Precinct. In response to an inaudible question from his father,
apparently about whether one or more officers with whom plaintiff had worked
would be supportive of him, plaintiff told his father the other officers would not be
helpful, explaining that those officers and he “just worked together so we wouldn’t
have to work with any niggers.”
13.

While it is appalling enough that a New York City police

officer would harbor such racist sentiments, especially when serving a
predominantly African American community, his decision to pretend otherwise to
bolster his malicious scheme to harm Mauriello, while at the same time trying to

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create the appearance of a basis for his unfounded claims of retaliation, is that
much more despicable.
Summary of Plaintiff’s Version of the Case
14.

The essence of plaintiff’s case is as follows. He refused to

comply with the quotas allegedly imposed upon him in the 81st Precinct. As a
result, he received a sub-standard evaluation for 2008, after receiving a lower
evaluation for 2007 than he had in previous years. He indicated he was
appealing his 2008 evaluation, and thereafter suffered retaliation. During that
period, he visited an NYPD physician, who referred him to an NYPD psychiatrist,
who then determined his shield and gun should be taken from him, which plaintiff
suggests was an act of retaliation. While then serving as the telephone
switchboard operator at the 81st Precinct, plaintiff began to compile records he
claims support the existence of quotas, unlawful stops and frisks, and improper
crime reporting. He contacted IAB. IAB referred him to QAD. IAB and QAD
commenced investigations. He claims others found out the IAB and QAD
investigations were triggered by his complaints, and they then retaliated against
plaintiff by removing him from his home on October 31, 2009, and taking him to
Jamaica Hospital.
Summary of Defendant Mauriello’s Version of the Case
15.

Mauriello’s defense essentially will include the following. He

signed off on plaintiff’s 2008 evaluation as the Commanding Officer, and
otherwise had no involvement in the preparation of the evaluation. A meeting
was called by Mauriello at plaintiff’s request to discuss the evaluation and
plaintiff’s potential appeal of it. The meeting, which plaintiff also secretly
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recorded, was attended by plaintiff, his union delegate, and all of his supervising
officers from the 81st Precinct. The discussion centered on plaintiff’s diminished
performance on the job in 2007 and 2008, and the efforts the supervising officers
had made to get him to be more engaged and productive. Plaintiff suggested
that past events in which he was involved, such as CCRB complaints and
interviews by the FBI and IAB, had caused him to be disillusioned and
discouraged him from being fully engaged on the job. Still, he indicated he
intended to appeal the evaluation because he thought his rating was
miscalculated and believed it was based upon his failure to achieve specific
numbers (i.e., quotas) in the categories of police activity considered in the
evaluation. It was explained to him that he was wrong in both respects.
16.

Soon after the meeting, unbeknownst to Mauriello, plaintiff

was seen by the Department physician who referred plaintiff to the Department
psychiatrist, who determined that plaintiff’s gun and shield should be taken from
him. Prior to October 31, 2009, Mauriello never learned the reason plaintiff’s gun
and shield had been taken from him. In any event, in the ensuing six months
leading up to October 31, 2009, plaintiff served as the telephone switchboard
operator at the 81st Precinct without significant incident. At some point in the
latter half of that period, officers from the 81st Precinct were called down to IAB
and then later to QAD, but Mauriello did not know why they were being called
down. On October 31, 2009, Mauriello had not yet learned that complaints
plaintiff had made triggered the QAD and IAB investigations. In fact, shortly
before October 31, 2009, Mauriello called QAD and inquired whether there was
anything he should be concerned about since officers of the 81st Precinct had
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been notified to appear at QAD. He was told there was nothing to be concerned
about.
17.

On October 31, 2009, Mauriello had little to do with the

events relating to the plaintiff, and was not the person in charge at plaintiff’s
home. Nothing Mauriello or anyone else did on October 31, 2009, as far as he
knew, had anything to do with revenge of any kind, for past events or otherwise.
As far as Mauriello knew, the events of October 31, 2009, were triggered by
plaintiff’s unusual and ultimately bizarre behavior and were undertaken to make
sure plaintiff was not about to cause harm to himself or anyone else.
18.

To support Mauriello’s defense, as well as his counterclaims,

we will rely, among other things, on the recording of the conversation between
plaintiff and his father on October 7, 2009 – which was produced by the City,
apparently from recordings IAB was able to retrieve from the computer in
plaintiff’s apartment. The recording of that conversation was not produced by
plaintiff in discovery, though plaintiff did produce the balance of his October 7th
recording containing the QAD interview that followed the conversation with his
father. In any event, we intend to show through the recording of the
conversation between plaintiff and his father, as well as through other recordings,
that plaintiff’s complaints to QAD, and to IAB, were materially false and designed
purely to do Mauriello harm and to create unfounded support for plaintiff’s
intended claims against the City for retaliation.
19.

Additional support for Mauriello’s defense, and his

counterclaims, will include the complaint reports plaintiff mishandled as described
above.
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The Common Nucleus of Operative Fact
20.

For purposes of this motion, it does not matter which version

of the case ultimately proves to be true. What matters is that defendant
Mauriello’s counterclaims arise from the same transactions and occurrences and
are part of the same case or controversy, as the claims in plaintiff’s complaint.
Plaintiff alleges that he was motivated to do good by criticizing his supervising
officers, and suffered retaliation for doing so. Defendant Mauriello claims plaintiff
was not motivated to do good, but instead was hell-bent on revenge against
Mauriello for approving plaintiff’s sub-standard evaluation, while also creating
unfounded support for the claims he intended to bring against the City and the
NYPD.
21.

Neither plaintiff nor any of the other parties would suffer any

prejudice by the allowance of defendant Mauriello’s counterclaims, as the facts
and circumstances relating to the counterclaims also bear directly on the validity
of plaintiff’s claims and will be fully explored in this case, beginning with the party
depositions, none of which have been taken, other than the first day of an
expected three-day deposition of the plaintiff.
CONCLUSION
22.

Based upon the foregoing and defendant Mauriello’s

memorandum of law, we respectfully request: i) that the Court find supplemental
jurisdiction would be properly exercised over defendant Mauriello’s proposed
counterclaims (see Exhibit A); ii) that the Court grant defendant Mauriello leave
to serve the proposed Answer Amended With Counterclaims; iii) that the Court

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find the proposed counterclaims are timely asserted; and iv) that the Court grant
such other relief as it deems just.

Declaration executed on September 24, 2013.

_____________________________
Walter A. Kretz, Jr., (WK-4645)

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