Airday v. The City Of New York , et al

Filing 92

OPINION re: 74 MOTION for Summary Judgment . filed by The City Of New York David M. Frankel, Keith Schwam. Defendants the City of New York (the "City"), Keith Schwam ("Schwam") and David Frankel ("Frankel& quot;) (collectively, the "Defendants" ) have moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the Amended Compl aint ("AC") of plaintiff George Airday ("Airday" or the &q uot;Plaintiff" ) alleging violations of 42 U. S.C. §§ 1983 and 1988, and the First, Fifth, and Fourteenth Amendments of the United States Constitution. (As further set forth in this Order.) For the foregoing reasons, Defendants' motion for summary judgment is granted in part, and denied in part. (Signed by Judge Robert W. Sweet on 5/10/2018) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-- ---- - - ---------------------------------- -x
GEORGE AIRDAY ,
Plaintiff ,
- against -

14 Civ. 8065
OPINION

THE CITY OF NEW YORK, KEITH SCHWAM , and
DAVID M. FRANKE L ,
Defendants .

---- - --- ------ - - - --- --- - - -- - - ---- - - - - ---- - -x
APPEARANCES:

Attorneys for Plaint i ff
LAW OFFICE OF NATHANIEL B . SMITH
111 Broadway , Suite 1305
New York, NY 10006
By : Nathaniel B. Smith, Esq .

Attorneys for Defendants
ZACHARY W. CARTER , ESQ.
Corporation Counsel of the City of New York
100 Church Street , Room 2-122
New York , NY 10007
By :
Don H. Nguyen , Esq .

Sweet, D . J.

Defendants the City of New York (the "City"), Keith
Schwam ( "Schwam") and David Frankel ("Frankel")

(collectively ,

the "Defendants" ) have moved pursuant to Rule 56 of the Federal
Rules of Ci v il Procedure for summary judgment dismissing the
Amended Comp l aint

("AC") of plaintiff George Airday ("Airday" or

the "Plaintiff" ) alleging violati o ns of 42 U. S.C .

§§

198 3 and

198 8 , and the First, Fifth, and Fo urteenth Amendments of the
United States Constitution . Based on the facts and conclusions
which foll o w, the motion of the Defendants is granted in part
and denied in part , and the First Amendment claims of the
Plaintiff are dismissed .

I.

Prior Proceedings

Airda y commenced this action on Oct ober 7 , 2014
against the Cit y of New York , Keith Schwam , and David Frankel
alleging violations of 42 U. S . C.

§§

1983 and 1988 , and the

First , Fifth , and Fourteenth Amendments of the United States
Constituti o n . In particular, Plaintiff alleged :

( 1) retaliation

against him in violation of his First Amendment right of free
speech;

(2) vio l ation of his Fourteenth Amendment procedural and

1

substantive due process rights; and (3) v i olation of his
Fourteenth Amendment right to equal protection .

This Court granted in part and denied in part
Defendants' dismissal motion on September 15 , 20 15 (the
"S eptember Opinion " ) . See Airday v . City of New York, 1 31 F.
Supp . 3d 174

(S . D.N . Y. 2015) . I n so doing , this Court dismissed

all cla ims except f or "Plaintiff ' s procedural due process claim
with respect to Defendants ' decision to not renew his office in
[December] 2013 ." Id. at 184 .

Plaintiff filed an amended complaint (the "AC" ) on
Octobe r 8 , 20 1 5 , a l leging that Airday was a City Marsha l for 29
years from January 1984 through December 2013 ; that a City
Marshal is a public off icer who operates his or her own business
enforcing judgments and collecting fees upon execut ion of those
judgments on behalf of judgment - creditors who are his clients or
customers ; and that as a City Marshal , Airday satisfactorily
performed his duties over the course of his career .

(See id.

~~

8 - 17 . ) Plaintiff further alleges that his five - year term of
office was regularly renewed , consistent with the established
practice of ren ew ing the terms of the other City Marshals .
~~

13 -1 6 . ) Discovery proceeded .

2

(Id .

Defendants brought the instant motion for summary
judgment on January 10, 2018 , and it was heard and marked fully
submitted on February 21 , 2018 .

II.

The Facts

The facts have been set forth in the Defendants' Local
Civil Rule 56.1 Statement of Undisputed Facts,

(Dkt . No. 76) ,

the Plaintiff's Rule 56.1 Responsive and Counter - Statement ,
(Dkt. No. 83), and Defendants' Responses to Plaintiff ' s Local
Rule 56 .1 Statement,

(Dkt . No. 91). The facts are not in dispute

except as noted below .

Defendants assert that New York City Marshals ("City
Marshals") are officers of New York ' s court system, empowered to
perform sensitive , law enforcement work , including enforcing
judgments, garnishing wages , seizing property , and effecting
evictions.

(Affirmation of Marjorie Landa in Opposition to

Respondent's Motion to Dismiss and Cross-Motion for Judgment on
the Pleadings dated March 28, 2013 ("Landa Aff ." ), Ex. I, Dkt .
No. 77 at~ 8 . ) City Marshals carry a badge and are permitted to
carry a firearm.

(Id.) They are entrusted to use both with the

utmost discretion.

(Id.) The position is one of trust and

requires sound judgment and an unwavering commitment to lawful
3

and ethical conduct .

(Id.) These statements are objected to by

Plaintiff as lacking foundation and instead being legal
conclusions rather than statements of fact.

(Pl.'s 56.1

~

4. )

Defendants assert that New York City Civil Court Act§
1601(1) authorizes the Mayor to appoint an applicant to a fiveyear term as City Marshal ,

(Defs .' 56.1

~

5), but Plaintiff

objects to this statement on the ground that it is a conclusion
of law, not a statement of fact , for which no response is
required.

(Pl. 's 56 . 1

~

5.) Plaintiff further states that City

Marshals are appointed in practice to five-year terms that are
regularly renewed by way of holdover status or a reappointment
process.

(Id.)

Defendants provide that a City Marshal must seek

reappointment before the expiration of his or her term , or risk
(Tang - Alejandro Dep. 77:11 -1 8 1 .

not being reappointed to off i ce,

)

Again , Plaintiff objects to this assertion as a legal conclusion
and states that the evidence from this deposition is
inadmissible because the deposition itself lacks foundation and
qualification since the statutory provisions cited do not
support the contention that an application for reappointment

1

Citations to "T ang-Alejandro Dep.u refer to the deposition
of Caroline Tang-Alejandro dated August 17 , 2017, Ex. D, Dkt No.
77 , deposition pages for which were submitted with the
Declaration of Garrett S . Kamen dated January 10 , 2018 ("Kamen
Decl .u ) , Ex. A, Dkt. No . 77 , and incorporates the exhibits
referenced therein.

4

before a City Marshal goes into a holdover status is required as
a condition to reappointment.

(Pl. ' s 5 6. 1

<JI

6.)

New York City Civil Court Act§ 1610 authorizes the
New York State Appellate Division to discipline , suspend and
remove a City Marshal :
The appellate division may discipline by
reprimand or censure , or may temporarily
suspend or permanently remove any marshal
for cause, provided that written charges are
first filed with said court , and that the
marshal be given due notice thereof and be
afforded an opportunity to be heard at a
full and complete hearing . The appellate
division may , in its discretion, suspend a
marshal from the performance of his or her
official duties pending a hearing upon the
charges . Upon charges being preferred
against a marshal by a judge of the
appellate division, such court sha l l
forthwith cause notice of suspension of the
marshal to be served upon him or her , and
the marshal shall thereupon remain suspended
until the hearing and determination of the
charge.s.
(N.Y . City Civ . Ct . Act§ 1610 . )

In November 1975 and February 1976, the Appellate
Division for the First and Second Departments issued Joint
Administrative Orders

("JAO") 453 and 456 setting forth the

Department of Investigation ' s

("DOI " ) supervisory powers , which

include the power to conduct investigations into a City
Marshal ' s activities , examine their books and records ,
5

promulgate directives concerning the off icia l records to be kept
by them and the procedures for performing their official duties ,
as well as the power to discipline them.

(New York City Marshals

Handbook of Regulations effective April 24, 2013 ("Marshals'
Handbook" or the "Handbook") , Ex . J, Dkt No . 77 . ) JAO 453 also
author ized DOI t o promulgate the Marshals ' Handb ook , which was
approved by the Appellate Division in JAO 542 .

(Id . at 905-909 . )

Plaintiff concurs with the above , but states that§
1601 gives the Appellate Divisions for the First and Second
Department the authority to discipline City Marshals, and the
Appellate Divisions '

JAO 456(4) prohibits DOI from immediately

or unilaterally suspending a City Marshal.

(Pl .' s 56. 1

<J[

8. )

Plaintiff further states that JAO 453(8) provides that a City
Marshal can be disciplined for "failure to testify concern ing
his offic ial duties at an investigative or administrative
hearing held at the [DOI] after being granted immunity for the
use of the testimony in a criminal proceeding ." (Marshals '
Handbook at 908 . ) Plaintiff asserts that the Marshals ' Handbook
similarly provides a City Marshal with protection against selfincrimination in that a refusal to answer questions or provide
information is grounds for discipline "after the marshal has
been advised that neither his or her statement nor any
information or evidence derived therefrom will be used against
6

the marshal i n a subsequent cr i min a l prosec u tion other than fo r
perjury or contempt arising from such testimony ." (Id. at 731 . )

The Marshals ' Handbook p r ovides that " (a) No perso n
shal l prevent , seek to prevent , interfere with , obstruct , or
otherwise hinder any study or investigation conducted pursuant
to the New York Ci ty Ch a rter ,

[ JAO ] 453 , or th i s Handbook . A

marshal ' s violation of this subsection shall constitute cause
for removal from office or other appropr i ate penalty .

(b)

Full cooperation with the [DO I ] sha l l be afforded by every c it y
marsha l.

. A marshal ' s violation of th i s subsection shall

const i tute cause of removal from of f ice or other appropriate
pena l ty .

." ( I d . at 73 1. ) Moreover , Sect i on§ 1 - 16 of the

Handbook provides that : " If the criminal charges bear upon the
marshal ' s f i tness for office , the pendency of such charges may
be a cause for discipli n ary action , inc luding b u t not limited to
an applicat i on to the Appellate Divisions for the mars h al ' s
suspension pending a hearing or pending resolution of the
cr i mi nal c h arges . "

(Id . at 735 - 36 . )

A City Marshal ' s day - to - day activities are overseen by
two different mayoral agencies , the DOI and the Department of
Finance (" DOF " ) .
2017

(Deposition of Louis Jordan dated August 8 ,

(" Jordan Dep ." ) Ex . C, Dkt . No . 77 at 38 : 22 - 39 : 04 . ) Keith
7

Schwam ( "Schwam" ) served as the Director of the Marshals' Bureau
at DOI, and Louis Jordan ("Jordan" ) served as the Director of
the Marshal Program at DOF.
March 30 , 20 17

(Deposition o f Keith Schwam dated

( "Schwam Dep.") Ex. B,

Dkt. No.

77 at 7:21-24;

Jordan Dep., Ex. C. at 12:15-19; Deposition of George Airday
dated March 29, 2017

("Airday Dep.") Ex. A,

Dkt. No.

77 at

33:06-10.)

Plaintiff was appointed to a five-year term as a City
Marshal with Badge Number 7 on January 24, 1984 by Mayor Edward
Koch.

(Airday Dep. at 17:04-05, 20:22-25.) After Plaintiff

submitted an application for re-appointment, Mayor Michael
Bloomberg re-appointed Plaintiff on January 22 , 2009 with a
stated expiration date of December 20 , 2013.

(Re -app o intment

Letter by Mayo r Bloomberg dated January 22, 2009
Letter") Ex. K,

Dkt. No. 77.)

("Bloomberg

Plaintiff states that this

statement skips over two decades of history where he was
regularly held over and re-appointed, along with other marshals.
(Pl .s'

56.1 1 13. ) Plaintiff's five-year term as a marshal

expired on December 20, 2013.

(Airday Dep. at 106:13-15. )

The DOF oversees the New York City Scofflaw Program
( "Scofflaw Program"), a program in which the DOF enforces
parking related fines and judgments against offe nding owners by,
8

among other things, securing or towing vehicles.

(Id. at 26:22-

27:02.) Defendants assert that the Scofflaw Program can be
effectuated in a number of ways, including but not limited to
the use of City Marshals, New York City Sheriffs, and collection
agencies.

(Deposition of Andrew Salkin dated November 21, 2017

("Salkin Dep.") Ex. E, Dkt. No. 77 at 55:10-24.) However,
Plaintiff denies this statement.

(Pl.'s 56.1 1 16.) Defendants

further provide that DOF may select, suspend, and remove a City
Marshal from the Scofflaw Program at any time and for any
reason.

(Jordan Dep. at 47:13-18.)

Plaintiff disagrees with this

statement to the extent that it is a conclusion of law.

(Pl.'s

56.1 1 17.)

Plaintiff served in the Scofflaw Program, where his
responsibilities included the enforcement of parking and related
fines and judgments against vehicles and their owners by towing
vehicles, enforcing and collecting on the unpaid fines and
judgments, and otherwise taking responsibility for the care,
custody, and control of the vehicles.

(Am. Compl. at 11 20-21.)

Plaintiff provides that over time about 12-14 City Marshals,
including Plaintiff, were part of the DOF's Scofflaw Program at
the relevant times and not all City Marshals were part of the
Scofflaw Program.

(Pl.'s 56.1 1 11.) Plaintiff, like each City

9

Marshal , was "assigned" to specific "areas of enforcement."
(Airday Dep . at 31 : 20 - 32 : 24 . )

Plaintiff asserts that Jordan provided that Plaintiff
always performed satisfactorily as a member of the DOF ' s
Scofflaw Program,

(Jordan Dep. at 79 - 80) , but Defendants state

that there were "minor " issues that "raised questions or
concerns" about whether Plaintiff should be allowed to
participate in the Scofflaw Program ( I d . at 78:21-79:21.)

The DOF initiated the Paylock Booting Program
("Paylock Booting Program" or the " Boot ing Program"), a program
in which a metal boot is affixed to a wheel of a veh icl e as an
alternative means t o compel payment of unpaid fines and
judgments.

(Airday Dep. at 47:15-21.)

In other words, the

Booting Program i s an "open procurement that [the City ] put on
the street " for a "s elf -removing booting system with supporting
turnkey technology that included the payment process and vehicle
finding systems." (Salkin Dep. at 1 7:21 -1 8:05 , 1 9 :05-15. )
Defendants assert that the City engaged in an " open procurement "
in wh i ch it inv it ed b idders to respond, and to which Paylock and
other bidders responded.

(Id . ) Plaintiff disagrees with this

statement , instead noting that this contract (the "P aylock
Contract " ) was a five-year no-bid contract with the Cit y for up
10

to $70,152,000.00.

(See Airday Dep. at 134:2-22; Schwam Dep.

34:23-36:11.) Defendants further assert that Schwam and Jordan
had no involvement in the negotiation of or approval of the
Paylock Contract,

(see Schwam Dep. at 60:16-21; Jordan Dep. at

32:14-25); however, Plaintiff alleges that both Schwam and
Jordan admitted to having discussions about objections and
concerns raised by the City Marshals over the Paylock proposal.
(Schwam Dep. at 16:22-21:11. )

From 2010 to 2012, Plaintiff alleges that he
"question[ed] the appropriateness and the legality of the
Paylock [B]ooting [P]rogram," and "disseminated his analysis and
criticisms" to "Ken Kelly and the other marshals in the
program."

(See Am. Compl. at~~ 32, 34, 39; Airday Dep. at

53:04-08, 54:18-25.)

In his capacity as Executive Director of

the City Marshal Association, Ken Kelly ("Kelly")

served as

"spokesperson" for the City Marshals and expressed concerns
about Paylock on the association's behalf.

(See Schwam Dep. at

24:09-23; Airday Dep. at 33:11-20.)

Plaintiff identified a number of inquiries that he
allegedly made to Kelly and the other City Marshals, all of
which concerned the program's implementation and operation
including the following inquiries:
11

(a) "how Paylock was chosen

by the City and whether a no - bid contrac t was appropriate and
legal ";

(b) " who would be in charge under the proposa l

tracking fines paid to Paylock";
for supervising Paylock ";
vehicle owners ";

for

(c) "who would be responsible

(d) " what fees would be charged to the

(e) "what would be the City Marshal's law

enforcement and administrat i ve roles, if any , in the booting
process";

(f)

"what would .

proposed system";

. Paylock's fee be under the

(g) "whether a vehicle could be legally 'un-

booted ' upon payment of the outstanding fines and judgments and
left operational on City streets where the vehicle 's
registration status had expired and the vehicle cannot under law
be parked or operated on public streets "; and (h) "whether it
was appropriate to omit or disregard necessary and legal
gu i delines from the Paylock [B]ooting [P]r ogram ." (Am. Compl . at
<J[<J[

39 - 40 . )

Plaintiff alleges that he contacted four elected
officials in 2011 and "e arly 20 1 2 " to " create political pressure
to oppose the Paylock Booting Program" by notifying them that
Paylock "was not properly designed and that the program [was] a
mistake and the fact that it was done without open bid."
Am. Compl . at

<JI

36 ; Airday Dep. at 135:14-20.)

(See

Pl aint if f further

alleges that he spoke to Cit y Council Member Oliver Koppell
("Councilman Koppe ll" ) in a "casual" manner on two or more
12

occas i ons before and after March 2011 when he saw the Council
member walking " on the street," where he "t o l d him that it would
be a good idea if he and the City Counc il l ooked into this
proposal that seems .
Compl. at 1 37.)

. to be way off the reservation."

(Am .

Plaintiff states that he testified to bringing

up the is sue at least twice with Councilman Koppe ll.

(Id.)

Plaintiff also alleges that he spoke to a person in
the "contracts department " at the Office for the New York City
Comptroller in or around March 2011 to ask "if they had any
information about the [Paylock] contract ; if they were aware of
it[,]

[a]nd that it seems as if there's a problem with this

proposed contract ." (See Airday Dep . at 57 :1 6- 60 : 02 ; Am . Compl .
at 1 37.)

Plaintiff did not communicate with Schwam or anyone

else at DOI about his concerns as to Paylock .
60 : 03 - 07 . ) Moreover,

(Airday Dep. at

Plaintiff did not communicate with Frankel

about Paylock in any manner, and did not commun i cate with Jordan
about Paylock until after the program had "already started ,"
(see Airday Dep . at 60:21 - 61 : 09 ; 136 : 04 - 08) , although Plaintiff
denies the statement with respect to Jordan,

(see id . at 60:21 -

61 : 25 ; Jordan Dep . at 93:23-100 :1 6 . )

On December 21 , 2011 , Plaintiff was arrested and
charged with assault in the third degree
13

(a class A

misdemeanor) , menacing in the third degree (a class B
misdemeanor) , and harassment in the second degree following an
incident with his fiancee.

(Schwam Email , dated May 30 , 2012

(" May 30 , 2012 Schwam Email"), Ex. L.) Those charges were filed
by the Bronx Dis trict Attorney 's Office in the Bronx Supreme
Court , Criminal Division .

(Id. at 238 - 39.) The criminal

complaint charged that Plaintiff "shoved" his fiancee to the
ground, "struck her several times in the face with an open
hand," and threatened to "kill" her , and further charged that
Plaintiff's actions caused his fiancee to sustain " bruising and
swelling to her lower back and face and experienced annoyance,
alarm and fear for her physical safety." (Id . )

In response to this allegation , Airday admits that
Lynda Schaefer ("Schaefer") made a crimina l complaint against
him but denies that she was his "fiancee" on the ground that she
was his girlfriend .

(Airday Dep . at 62 : 5 -1 0.)

Plaintiff further

states that he was acquitted of the charges after a trial when
the court found that the complaining witness was not credible.
Judge Ruben Franco of the Bronx County Criminal Court issued an
Order of Protection ("OP") against Plaintiff on December 22 ,
2011 that directed Plaintiff to " surrender any and all .
firearms owned or possessed." (May 30 , 20 1 2 Schwam Email, Ex. L
at 243.) Plaintiff was advised in court of the contents of the
14

OP, and it was served on him in court later that day.
56.1

~

(Pl.'s

29.)

In the early morning hours of December 22, 2011,
before the OP was issued and while Airday was locked up at the
l ocal precinct on the charge, Plaintiff admits that he gave the
arresting police officer the information and access required to
take his five weapons from his safe at home.

(May 30 , 2012

Schwam Email, Ex. Lat 243.) The New York City Police Department
("NYPD") took custody of five handguns in Plaintiff's possession
during the overnight period of December 21-22, 2017.

(Id. at

240-42 . ) The arresting police officer searched the safe, which
is three feet square, and stopped searching after finding five
guns, not locating a sixth gun that Airday had been given in
1980 when he was a probation officer.

(Pl. 's 56.1

~

30.)

Plaintiff alleges that he did not recall that he owned a sixth
gun, a small handgun given to him 30 years prior, which he never
used and for which he did not even have any bullets.

(Id.)

Plaintiff further provides that when he received this sixth gun
in 1980, he was not required to register it as he was a peace
and probation officer at the time.

(Id.) Each of the five guns

retrieved was listed with a detailed description, including its
make, model number, caliber, color, and serial number, on the
NYPD property clerk 's invoice that the arresting Officer
15

prepared on December 22 , 2011 .

(May 30 , 20 1 2 Schwam Email , Ex.

L . at 240 - 42 . )

On December 22 , 2011 , DOI learned that " [plaintiff]
was arrested last night (12/21/2011 at about 10 p.m . )
domestic violence complaint by his fiancee."

on a

(Dec. 22, 2011

Schwam Email , Ex . M, Dkt . No . 77 . ) Airday notes that the
complaining witness was his g i rlfriend , not his fiancee.

(Pl. ' s

56 . 1 'II 31.)

On January 10 , 2012 , the Bronx District Attorney ' s
Office n ot ified DOI that the "injuries [allegedly caused by
plaintiff] to the complainant [were] more severe than originally
believed and that she had some broken ribs . "
Pinckney dated January 10 , 2012

(Email from Teresa

("Pinckney Email " ) , Ex. N, Dkt.

No . 77 . ) Plaintiff denies this assertion , and provides instead
that the injuries Pinckney refers to occurred earlier in the
month of December 2011 when Plaintiff ' s g i rlfr i end was in a car
accident .

(Pl. ' s 56 . 1 'II 32 . )

On January 13 , 2012 , the NYPD Li cense Division mailed
a letter to Plaint i ff advising him that his gun licenses were
suspended and instructing him to surrender any and all firearms
immediately to his local precinct.
16

(May 30 , 2012 Schwam Email at

245-46.) On January 18, 2012, the NYPD License Division notified
detectives that a gun registered to Plaintiff had not been
turned over on December 22 , 2011 , following Plaintiff ' s arrest,
and that one of the five guns removed on that date was
unregistered .

(Airday Dep . at 72 : 25 - 76 : 01.) However, Plaintiff

denies this statement.

(Pl . 's 56 . 1 i 34.)

On January 18 , 2012 , Plaintiff was arrested on charges
of (1) criminal contempt and criminal possession of a weapon
based on his possession of a . 22 ca l iber Derringer in violation
of the OP , and (2) criminal possession of a weapon ,
specifically , an unregistered . 25 caliber Hawes handgun.

(May

30 , 2012 Schwam Email at 247-48.) The criminal comp l aint , filed
by the Bronx District Attorney ' s Office in Bronx Supreme Court ,
Criminal Division , charged Plaintiff with criminal contempt in
the second degree (a class A misdemeanor) .

(Id.)

Pl aintiff

denies these statements , and contends that he was only charged
with the first count of criminal contempt .

(Id. at 247 . )

Plaintiff asserts that there is no evidence in the
record supporting that he misrepresented the origins of the
Hawes .25 caliber weapon.

(Pl .' s 56 . 1 i 86 . ) Defendants object

to this statement on the grounds that Plaintiff has fa il ed t o
cite admissible evidence , and that it is i nstead based on
17

uncorroborated, self - serving hearsay co ntradi cted by the record
evidence.

(Defs .' Responses to Pl .' s 56 . 1

~

85 . ) NYPD determined

that the Hawes . 25 firearm taken from Plaintiff on December 22 ,
2011 was unregistered and unlicensed and on January 20 , 2012,
Plaintiff's attorney represented to DOI that the "unlicensed gun
that was recovered from [Plaintiff's] safe

belong[ed] to

his father and when his father passed away [Plaintiff] put it in
his safe f or safe keeping ." (Lit wack letter to Schwam, dated
January 20 , 2012 ("Litwa ck Letter t o Schwam"), Defs. ' Ex. Pat
31 . ) Plaintiff l ater testified instead that he received this
firearm from a "supervisor at the Probation department" in 1980 ,
i.e., several years before Plaintiff became a City Marshal .
(Airday Dep . at 68 : 14 - 19 . )

By email dated January 19, 20 1 2 , Schwam informed
Commissioner Rose Gi ll Hearn (" Commissi oner Hearn " ) that:
[Y]este rday evening .
. Airday .
was arrested
and charged with 2 counts of Criminal Possession o f a
Weapon (f ir earm) and Criminal Contempt , both class A
misdemeanors. These are arrest c harges .
. Th e
contempt charge and one weapon charge is based on his
possession yesterday of a handgun , in his residence ,
in v i olat i on of an Order of Protection issued on
December 22, 2012, which in turn was a result of his
arrest the previous day on an assault charge in a
domestic incident involving his fian cee . Yesterday ,
the police .
. went to Airday's Bronx residence in
response to the NYPD Licensing Division's report that
one of the firearms on his license was not turned in
on 12/22/2011 .

18

I have told [Airday's attorney] Ken Litwack that under
these circumstances, Airday cannot be permitted to
perform the duties of a marshal and that he should
resign. Litwack does not disagree .
. I am sending
both of them a letter that says the same and that
unless Airday resigns we will be compelled to seek his
immediate suspension and removal.
I am also directing him pending further instructions
to cease performing duties other than redeeming cars
already in his custody (a function that his office
staff handles). Will keep you posted.
(Schwam Email to Hearn, dated January 19, 2012

("Jan. 19, 2012

Schwam Email to Hearn"), Ex. O, Dkt. No. 77.) The statement is
objected to as hearsay, speculation, and for lack of personal
knowledge.

(Pl.'s 56.1

<JI

36.)

In making this recommendation, Defendants allege that
Schwam relied on the "police report" and "the records of the
guns that were recovered from Marshal Airday's premises on two
occasions, which came from the police[;]

there were

conversations between [the] detectives or investigators at DOI
and [the] detectives [and] police officers at the police
department. We also had records at DOI that in effect listed all
the guns that we know about that Marshal Airday had.
also .

[Schwam]

. had a discussion with [Airday's attorney] Ken

Litwack, who made certain representations about what had
occurred." (Schwam Dep. at 101:23-102-20.) Defendants allege
that Commissioner Hearn acknowledged Schwam's recommended course

19

of action,

(see Jan. 19, 2012 Schwam Email to Hearn); however

Plaintiff denies this statement .

On January 19, 2012 , Schwam sent a letter to Plaintiff
requesting that he resign his appointment as a City Marshal:
[DOI] has been informed that you were arrested
on .
. January 18, 2012 and charged by the arresting
officer with two counts of Criminal Possession of a
Weapon (firea rm ) in the Fourth Degree and Criminal
Contemp t in the Second Degree, both class A
misdemeanors , based in part upon your possession
yesterday of a handgun, recovered by the Police, in
v i olation of an Order of Protection dated December 22 ,
2011 and upon your possession on December 22 , 201 1 of
an unregistered handgun. That arrest follows closely
your arrest on December 21, 2011 on assault and other
charges in a domestic incident, which resulted in the
above-mentioned Order of Protection. Furthermore the
Police Department reports that a handgun listed on
your license was not turned in by you and is
unaccounted for.
Under these circumstances, you cannot be permitted to
hold office and perform the duties of a Ci ty marshal ,
and this Department will be compelled to seek your
removal and immediate suspension unless you
immediately submit your resignation . Pending that
resignation or suspension you are not to perform any
duties other than the order ly redemption of vehicles
and col le ction and remittance of funds in relation to
vehicles already in your custody and all necessary
recordkeeping attendant to those activities . You are
not to perform any other functions without express
written authorization of thi s Department . Upon
resignation you will be responsible to comply with the
wind-down procedure specified in Joint Administrative
Order 453 and the Marsha ls Handbook .
(Schwam Email to Airday, dated January 19, 2012

("Schwam Email

to Airday " ) , Pl.'s Ex. 4 , Dkt. No. 86 -4. ) In this letter, Schwam

20

advised Plaintiff that he could continue to "collect money" and
"release vehicles ," as well as "perform the functions that
involved the accounting for the money and remitting it ." (Id . )

On January 20 , 2012 , Plaintiff's attorney , Ken Litwack
("Litwack " ) , sent a letter to DOI setting forth Plaintiff's
account of the two arrests. In that letter, Litwack made the
following representations:
I am following up on our conversation .
in which I
proposed that Marshal Airday be allowed to maintain
his office with his duties severely circumscribed
until the matters before the Crimina l Court are sorted
out . Under my proposal Marshal Airday will not be
allowed to do any work whatsoever in the field .
I
have spoken to the Marshal and he will be willing to
agree to this .
I know that there are some troubling facts here and I
know that if any of the negative inferences that can
be drawn from these facts are established it would not
bode well for the Marshal .
. I am requesting that
the Marshal be put on limited duty , pending the
outcome of these matters .
(Litwack Letter to Schwam at 30 - 31 . ) Plaintiff objects to this
email as inadmissible under Rule 408 of the Federal Rules of
Evidence in that it reflects an attempt by Litwack to reach a
resolution of the dispute with DOI , and that it is being
improperly used as an alleged admission of liability in
violation of that Rule.

(Pl .'s 56.1

~

41.) Moreover, Plaintiff

contends that the letter is cited out of context in that the
offer of compromise by Plaintiff's counsel was that Plaintiff
21

would not be required to close his office and that an Associate
Marshal would carry out Plaintiff ' s City Marshal duties while
the criminal charges remain pending.
Litwack's letter that same day .
January 20 , 2012

(Id.) Schwam responded to

(Schwam Letter to Litwack, dated

("Schwam Letter to Litwack " ), Defs .' .Ex . Pat

27 - 29.)

The January 23 , 2012 DOI Weekly Status Report states
that : "City Marshal Airday was arrested on charges relating to
possession of handguns either not on his license or in his
possession after an Order of Protection required his surrender
of all guns . Discussions with his attorney re[garding] possible
resignation are underway." (DOI ' s Weekly Status Report , dated
January 23 , 2012

("DOI Weekly Status Reports") , Defs . ' Ex. Q at

23.) The statement is objected to by Plaintiff on best evidence
and hearsay grounds .

(Pl. ' s 56.1

<JI

43.)

On January 30 , 2012 , DOI instructed Plaintiff to
provide documents by the following day , January 31 , 2012 ,
related to his NYPD - issued handgun licenses and handguns
identified by the NYPD as having been in his custody, including
but not limited to :

( 1) a copy of the criminal complaint ;

( 2)

any correspondence or notices he received from the NYPD on or
after December 22 , 2011 regarding his handgun licenses;
22

(3)

copies of a ll app l ications for handgun licenses and renewals ;
(4) records reflecting the loss , theft , or transfer of any
handgun and any notifications to the NYPD of such loss , theft ,
or transfer ; and (5) any and al l records re l at i ng to the above described Derringer and Hawes handguns.
Plaintiff , dated Jan. 30 , 2012

(Pinckney Letter to

("Pinckney Letter to Plaintiff") ,

Defs. ' Ex . Rat 61 . ) De f endants state that Plaintiff d i d not
produce the requested documentation by the date directed in the
above - mentioned letter .

(Defs .' 56 . 1

~

45 . ) On January 31 , 2012 ,

Plaintiff ' s attorney , Stuart London (" London " ) , posed two
questions to Schwam :

(1) whether Plaintiff could resume his tow

operation using an Associate Marshal ; and (2) whether DOI would
bring departmental charges against Plaint i ff if he refused to
resign as City Marshal .
2012

(London Letter to Schwam , dated Jan . 31 ,

("London Letter to Schwam"), Defs. ' Ex . Sat 36 . )

Defendants assert that on February 7 , 2012 , DOF
learned from Plaintiff that he had been arrested in December
2011 and January 2012.

(Jordan Dep . at 40 : 23 - 41: 06 . ) Jordan

contacted h i s supervisor , New York City Sheriff Edgar Domenech
("Sher i ff Domenech " ) , to advise him of the situation and , in
response , Sheriff Domenech requested Jordan "send him a
recommendation . "

(Id . at 44:13 - 20 . ) Plaintiff denies these

statements , and instead provides that DOI and DOF were notified
23

of Plaintiff's arrests when they happened, and that DOF
suspended Plaintiff when DOI suspended h i m.

(See Pl .' s 56 . 1

~

46. )

The following day , on February 8 , 2012 , Jordan sent a
recommendation to Sheriff Domenech advising that Plaintiff not
be " reinstated [into the Scofflaw Program ] due to lack of
notification to DOF of the incident and not hearing from him
until .

. yesterday February 7 , 2012 ." (Jordan Letter to

Domenech , dated Feb. 8 , 2012
Defs. ' Ex . Tat 946.)

("Jordan Letter to Domenech " ),

Plaintiff denies this statement , and notes

that Jordan testified that DOI suspended Plaintiff in January of
2012 and that suspension from the Scofflaw Program was therefore
automatic following his suspens i on by Schwam .

(P l.' s 56 . 1

~

47 . )

Plaintiff further states that the DOF sent Plaintiff a letter
formally stating that it was not providing him with work under
the Scofflaw Program because of the pending charges .

(Id.)

In response to a request by Sheriff Domenech that DOI
state its position , Schwam stated in relevant part that :
My understanding is that it is DOF ' s discretionary
decision to choose which marshal or marshals to
enforce the City ' s judgments , including the decision
not to have Airday towing for the City . I be li eve that
is an entirely appropriate decision , g i ven t h e pending
criminal charges , including that of violating the
Court's order of protection , particularly when the
24

work of a City marsha l, for DOF and ot h ers , is to
enforce court orders . I a l so understand that you have
additional operat i ona l concerns , inc luding , among
ot h ers , Airday ' s fa ilu re to not i fy yo u or provide
i nformation to DO F regarding his stat u s in the weeks
since his January 18 arrest , during which he was not
towing .
(Schwam Letter to Domenech , dated Feb . 9 , 2012

(" Schwam Letter

to Domenech " ) , Defs .' Ex . Tat 945 . ) Plai n tiff objects to this
stateme n t as hearsay .

(P l.' s 56 . 1 'TI 48.)

Defendants assert that Sheriff Domenech accepted
Jordan ' s recommendation that Plaintiff not be reinstated i nto
the Scofflaw Program and "made the dec i sion to remove Marsha l
Airday from the Scofflaws .

. Program" on February 9 , 20 1 2 .

(Jordan Dep . at 47 : 09 - 48 :1 0 . ) However , Pla i ntiff states that he
was removed as a result of actions taken by the DOI , and not
based on Sheriff Domenech ' s decision and Jordan ' s
recommendation .

(Pl. ' s 56 . 1 'TI 49.)

In separate and in conjunction , Defendant s assert that
the December 201 1 arrest , the January 2012 arrest , and the
failure to notify DOF of t he two arrests f ormed a sufficient
basis to terminate Pl aintiff from the Scoff l aw Program .
Dep . at 55 : 06 - 20.)

(Jordan

Plaintiff denies this statement , and states

that Jordan testified that the official pos i tion of DOF was set
forth in the letter by its counsel on May 29 , 2012 , which states
25

that Plaintiff was suspended because of the pending criminal
charges .

(Grossel Letter to Sterinbach, dated May 29 , 2012

("Grossel Letter to Sterinbach"), Pl.'s Ex. 17.)

In a letter dated February 10, 2012 , DOI advised
Plaintiff that: "It is [DOI's] position that under the
circumstances .
a

[that] Airday needs to step down,

following

brief wind - down period. It is our hope that rather than

attempting to prolong the process, the marshal will avail
himself of the opportun ity he is being offered to bring his
business as a City marshal to an o rderly and responsible
conclusion, deal with the criminal charges he faces,
this matter behind him."

and put

(Schwam Letter to London , dated Feb.

10, 2012 ("S chwam Letter to London"), Defs.' Ex. U at 689 . ) DOI
added, "[l]eaving aside the domestic v iolen ce allegations,
Marshal Airday's failure to comply with a court order fully and
scrupulously, while already facing criminal charges in a matter
as serious as this one , demonstrates a lack of fitness for his
office." (Id . at 690.)

Plaintiff denies that the charges or

allegations demonstrate a lack of fitn ess to serve as City
Marshal.

(P l.'s 56.1

<l[

52.)

The February 13, 2012 DOI Weekly Status Report rep orts
that: "DOI 's position is that Airday must resign."
26

(Jan. 23,

2012 DOI Status Report) . Plaintiff objects to this statement as
hearsay .

(P l.'s 56 . 1

~

53 . )

Defendants provide that in a letter dated February 13 ,
2012 and a letter dated February 17, 20 12, Plaintiff's attorney
inf ormed DOI that Plaintiff would not provide the documentation
requested by DOI unless DOI fi l ed formal d is ciplinary charges
against him .

(May 30 , 2012 Schwam Email . ) Plaintiff denies this

statement and provides that he was not able to provide the
requested documents due to the pending criminal charges , which
took precedent over administrative proceedings .

(Pl .' s 56.1

~

54.)

On February 17 and on February 23 , 2012 , DOI advised
Plaintiff's attorney that Plaintiff ' s continuing failure to
comply with DOI's instruction was a breach of his legal
ob ligati ons under the City Charter , the Marshals ' Handbook , and
JAO 453, and was obstructing DOI ' s investigation.

(May 30 , 2012

Schwam Email at 253 -54. ) On May 30 , 2012 , DOI filed Charges and
Specifications with the Appellate Division f or the First and
Second Departments.

(Id . at 226 - 28 . ) Charge One alleged that

Plaintiff interfered and failed to coope rate with an
investigation by the DOI into issues related to his handguns and
discrepancies in his handgun li cense records uncovered by the
27

NYPD in the wake of his arrests , and that this conduct violated
Chapter I , §§ 1 - 9(a) and (b) of the Marshals ' Handbook .

( I d . at

227 . ) Charges Two and Three alleged that Plaintiff had been
arrested in December 2011 and January 2012 with charges stemming
from those arrests pending in criminal court , in violation of
New Yo r k City Civil Court Act§ 1610 and Chapter I , § 1 - 1 of the
Marshals ' Handbook .

( I d . at 227 - 28 . ) Pl a i nt i ff confirms the

above , but asserts that Schwam was the one who fi l ed the
charges.

(Pl. ' s 56 . 1

c_rr

56 . )

On June 1 , 2012 , DOI served Pla i ntiff and Plaintiff ' s
attorney with the Charges and Specifications.
Airday & London , dated June 1 , 2012

(Schwam Ema il to

("Schwam Email to Airday &

London " ) , Defs. ' Ex . V. ) Plaintiff states that Schwam ema il ed
the charges to the Appellate Division on May 30 , 2012 and failed
to provide him wi th notice of the charges until two days later
on June 1 , 2012 because the Appe ll ate Div i sions told Schwam to
make such service of process .

(Pl .' s 56. 1

c_rr

57 . )

On June 11 , 20 1 2 , the Appellate Division for the First
and Second Departments iss u ed JAO 2012 - 1 , which suspended
Plaintiff from serving as a City Marshal pending a hear i ng on
the Charges and Specifications .
2012 - 1 , dated June 11 , 2012

(Joint Administrative Order

("JAO 2012- 1 ") , Defs .' Ex . W at 364 28

65.) On June 13 , 2012 , DOI Deputy Commission & General Counsel
Marjorie Landa ("Deputy Landa" ) filed the Charges and
Specifications with the New York City Office of Administrative
Trials and Hearings
13, 2012

("OATH").

(Landa Letter to OATH, dated June

( "Landa Letter to OATH"), Defs.' Ex . X at 382-83.)

On July 2 , 2012 , OATH Admi nistrative Law Judge Faye
Lewis granted the parties '

request to adjourn In the Matter of

Department of Investigation v. George Airday , No. 12 - 2038

(July

2, 2012) pending the resolution of the matters pending in
criminal court .

(Defs .' Ex. Y. ) On October 19, 20 1 2,

Plaintiff

was found not guilty as to the charges stemming fr om the
December 2011 arrest and the Bronx District Attorney ' s Office
elected to dismiss the remaining charges on March 1 , 20 13.
(Sterinbach Letter , dated March 4, 20 13
Sterinbach Letter"),

("March 4 , 2013

Defs .' Ex. Z . ) DOI contacted OATH and

Plaintiff on March 7 , 2013 to reinstate Charge One of the
Charges and Specifications .
7, 2013

(Kearney Letter to OATH, dated March

("March 7, 2013 Kearney Letter to OATH " ) , Defs .' Ex .

AA.)

In April and May 2013 , DOI and Plaintiff's attorney
discussed resolving the disciplinary proceeding pending before
OATH by way of a " fine, with Airday to be replaced at the end of
29

✓

his term in December 2013."

(See Jan. 23, 2012 DOI Status Report

at 748-749, 765-766, 779-780 & 806-807.)

Plaintiff denies this

statement, noting that the DOI Status Report is hearsay and does
not support the contention that there was discussion about
Plaintiff being replaced.

(Pl.'s 56.1

~

63.) Also,

Plaintiff

states that Schwam testified that he did not give notice to
Plaintiff when he replaced him and that he did not feel
obligated to tell Plaintiff what he was going to do "down the
road."

(Schwam Dep. at 158:14-160:19 & 224:20-23.)

On May 23, 2013, the Appellate Division for the First
and Second Departments received a stipulation executed by
Plaintiff, Plaintiff's attorney, and DOI resolving the formal
disciplinary proceeding pending before OATH. (Stipulation, dated
May 20, 2013

("the Stipulation"), Defs.' Ex. BB at 850-52.) By

entering into this Stipulation, Plaintiff agreed:
guilty to some administrative charge,
with DOI";

(i)

to "plead

[i.e.,] not cooperating

(ii) to pay a $7,500 fine as the penalty for his

failure to provide DOI with the documents specified in Charge
One of the Charges and Specifications;

(iii)

to "fully cooperate

with DOI's investigation of his conduct"; and (iv) that his
guilty plea would be "filed as a public record in DOI and with
the Appellate Divisions of the New York State Supreme Court .
. and will be considered for all purposes as part of Marshal
30

Airday's official record . "

(See id . ; Airday Dep . at 96:02 - 11 . )

Plaintiff further states that the Stipulation provides that
Charges Two and Three are withdrawn and that the Stipulation was
the "final disposition" of Charge One.

(Pl .' s 56.1 i

65 . )

In a May 29, 2013 email sent to Plaintiff's attorney
and the Appellate Division for the First and Second Departments ,
DOI clarified that the Stipulation was a " final disposition of
Charge One" and warned that it "does not resolve the underlying
i ssues or foreclose the possibility of future disciplinary
charges . "

(Agost ino Email to Schwam, dated May 28 , 2013

(" Agostino Email to Schwam") , Defs . ' Ex. CC at 891 . ) Plaintiff
denies this statement , and provides that the evidence does not
show that Schwam sent the email to Plaintiff ' s counsel .

(Pl . 's

56 . 1 i 67 . )

On June 11, 2013 , the Appellate Division for the First
and Second Departments issued JAO 2013 - 5 lifting Plaintiff ' s
suspension , which began one year earlier on June 11 , 2012 .
(Tang-Alejandro Dep . at 61 : 23 - 62:10 . ) Also in June 2013 and in
accordance with the Stipulation , Plaint i ff was questioned by DOI
about the circumstances giving rise to the gun charges.

(Airday

Dep . at 97 : 25 -9 8 : 23 . ) Plaintiff stated, among other things , that
he had " forg otten " that he possessed an unlicensed firearm and
31

admitted that he never " registered " that · firearm .

(Id . at 71 : 15 -

17 & 99 : 09 - 18 . ) Tang - Alejandro testified that " it didn ' t

seem

that [Plaintiff] was cooperating wi t h Mr . Schwam ' s
investigation." (Tang - Alejandro Dep . at 61: 23 - 62 : 10 . ) Following
this questioning , on June 11 , 2013 Plaintiff ' s suspension was
lifted and he resumed working as a City Marshal .

(Airday Dep . at

102 : 20 - 22.)

In an October 23 , 2013 memorandum entitled
" Appointment of New City Marshal to Succeed City Marshal George
Airday ," Schwam recommended that "one of the four prospective
new City Marshals be appo i nted to succeed Ci ty Marshal George
Airday , Badge No . 7 , upon expiration of his term on December 20 ,
2013. "

(Schwam Memorandum , dated Oct . 23 , 2013

("Schwam Memo " ) ,

Defs .' Ex . EE . ) In th i s memorandum , Schwam detailed the basis
for his decision , which inc l uded among ot h er things :
Plaintiff ' s possession of an " unlicensed gun ";

(2)

(1 )

Plaintiff ' s

failure to "list all of his guns " on numerous applications
throughout his tenure as a City Marshal ;

(3) the disclosure on

June 1 4 , 2013 that Plaintiff misrepresented the origin of the
un l icensed gun to DO I i nvestigators in January 20 , 2012 ; a n d
Plaint i ff ' s refusal to provide documents and records to DOI ,
which was the subject of Charge One in the ' above - described

32

(4)

Charges and Specifications that resulted in Plaintiff's one year
suspension and a $7,500 fine.

(Id . at 987 - 88.)

Defendants further state that Schwam made a
recommendation to the "Offi ce of the Mayor" that "Marshal
Airday's successor be appointed to the office that [Airday]
held, which in effect would replace Marshal Airday as a Ci ty
marshal in accordance with the New York City Civil Court Act
that expressly authorizes that."

(Schwam Dep. at 65:03-67:17.)

Schwam identified the "reas ons for recommending that [the Office
of the Mayor appoint a successor upon the expiration of Airday 's
term]

. had to do with Marshal Airday's conduct and judgment

that was exposed in the aftermath of his two arrests in December
2011 and January 2012 ." (Id. at 68:24-69:10.) In particular,
Schwam testified that :
It involved several elements. One, the marshal was in
possession unlawfully of two firearms. Two, the fact
became known after the marshal was arrested on a
domestic v i olence charge , and was under an obligation
to surrender all of his firearms. The fact that he was
arrested within four weeks of the domestic violence
arrest with facts that indicated that he had not
surrendered all his firearms as directed by the court ,
and that he had been in possession for some period of
time before his domestic violence arrest of an
unregistered firearm were the principal acts that
caused me to make the recommendation.
Those acts .
. reflected judgment that fell far
short of the standard that I believe was warranted for
someone who is, Number 1 , [a] mayoral appointee; and
Number 2 , holding the position that involves the
33

scrupulous attention to rules, court orders , and
adherence to the law in situations that invo l ve
actions that - the position involves actions at ken
against members of t h e public .
[T]he position involves a mayoral appointment , a
delegation of very serious authority to take away
people's property, to remove people ' s vehicles , to
remove people from their homes , to remove money from
people ' s bank accounts . Those are very serious
responsibilities that call for uncompromised
integrity , mature judgment , adherence , scrupulous
adherence to rules , laws and court orders and basic
seriousness in how the person goes about conducting
their affairs both personal and off i cial.
The conduct that I described and the fact that the
marshal having been arrested once failed to do the
things that were required of him to stay well clear of
being arrested again , and that he had not done those
th i ngs and that, in fact , done the opposite , said to
me that we need [ ed ] to replace Marshal Airday .
(Id . at 69 : 11 - 71:07.)

Plaintiff denies that Schwam made any

"recommendation" because Schwam testified that he acted
unilaterally and did not obtain or seek approval for his
decision .

(Id . at 148:9 - 150 & 213:23 - 217 : 23 . )

The December 6 , 2013 DOI Weekly Status Report reports
that : " We expect that a new marshal , already approved and
qualified , will be appointed to succeed Ci ty Marshal George
Airday upon expiration of Airday ' s term on December 20 . Special
Investigator Caroline Tang-Alejandro is coordinating the
prospective marshal ' s completion of the necessary statutory
steps

(bond, oath , badge, etc.)."

34

(DOI Weekly Status Report at

937-938 & 943-944.) Plaintiff objects to this statement as
hearsay.

(Pl.'s 56.1

<JI

74.)

Plaintiff's five-year term as a marshal expired on
December 20, 2013.

(Airday Dep. at 106: 13-15.)

The December 20, 2013 DOI Weekly Status Report reports
that: "A letter of appointment for new City Marshal Frankie
Alvarez signed by the Mayor will be issued .

. appointing

Alvarez to the office that will be vacant upon the expiration of
City Marshal George Airday's term on December 20." (DOI Weekly
Status Report at 949-950.) Plaintiff objec ts to this statement
as hearsay.

(Pl.'s 56.1

<JI

76.)

Frankie Alvarez ("Alvarez") was appointed to Airday's
badge number (Badge No. 7) on December 20, 2013, and "qualif ied"
for the off i ce on December 21, 2013, by filing his oath of
office with the City c lerk.

(Bloomberg Letter to Alvarez, dated

Dec. 21 , 2013 ("Bl oomberg Letter"), Defs.' Ex. FF.)

DOI notified

Plaintiff by letter dated December 23, 2013 that: "Yo ur term of
office has expired. In accordance with Section 1601 of the New
York City Ci v il Court Act [], your successor has been appointed
to that of fi ce . Accordingly, your service as a City Marshal has
ended." (Schwam Letter to Airday, dated Dec. 23 , 2013 ("Dec . 23,
35

2013 Schwam Letter to Airday"), Defs.' Ex. GG.)

Plaintiff

provides that it was Schwam who made the notification.

Defendants assert that DOI advised Plaintiff, through
his attorneys, that he would not be reappointed at the
expiration of his term in December 2013 on multiple occasions ,
including in January and February 2012 , as well as in May 2013 .
(See , e.g., Schwam Dep. at 151:03-152:02 & 152:03-18.) Plaintiff
denies this statement on the grounds that Schwam testified that
he gave Airday no notice and objects that it is hearsay.
56 .1

~

(Pl.'s

79.)

Schwam testified that it was not reasonable for
Plaintiff to have assumed that he would remain a City Marshal
after the expiration of his term:
[T]he law is very clear that upon the expiration of a
marsha l's term, his successor shall be appointed, and
that upon expiration of the term, the marshal's office
is cons idered vacant for purposes of choosing his
successor.
To me, that should put anyone who understands anything
about the business of being a marshal on notice that
what you get is a five-year term. At the end of that
five-year term, the presumption is you are going to be
replaced.
In light of Marshal Airday's conduct and the lack of
judgment that was exposed by his two arrests and the
facts that were developed as a result of them, Marshal
Airday should have been we ll aware that his future as
a marshal was in grave jeopardy.
36

(Schwam Dep . at 159:16-160:19.) Airday objects to these
statements as speculation and opinion ,

(P l.' s 56 .1

<JI

80) ,

although he concedes that he had "no[] explicit" reas on to
believe he would be reappointed as a City Marshal or maintained
in a holdover role after the expiration of his five - year term in
December 2013 .

(Airday Dep. at 136:10-14.)

Defendants provide that Plaintiff told City Council
member Andrew Cohen that: "[T]he NYC Civil Court Act Sect[ion]
1602 states that a Marshal may be replaced without cause.
This is true for all Marshals whose terms expire ; a marshal
whose term has expired can be replaced at will .

. My

agreement to the stipulation was pro-forma . The option to
terminate is in the law whether or not I had agreed to the
stipulation." (Airday Lett er , dated Jan . 17, 2014

("Jan . 17 ,

2014 Airday Letter"), Defs. ' Ex. HH at 971.) Plaintiff objects
on the ground that he is not qualified to provide a legal
opinion and that his lay reading of Section 1602 is wrong.
(Pl .' s 56 . 1

<JI

82 . ) Plaintiff further states that the context of

his statement shows that he was simply stating that the law
generally gives the courts the power to discipline City
Marshals .

(Id.)

37

Defendants assert that prior to commencing this
action, Plaintiff believed that the reason he was not
reappointed as a City Marshal was because: "[Schwam held]
animosity and anger at [him] for challenging his order to resign
or face charges." (Jan. 17, 2014 Airday Letter at 971.)
Plaintiff states that there were other reasons expressed in that
letter and in the subsequent court pleadings for why the
Defendants acted as they did against Airday.

(Pl.'s 56.1

83.)

~

Plaintiff further provides that his statements about Schwam's
state of mind are incomplete and not admissible.

(Id.)

Plaintiff provides that there are several comparable
City Marshals who were not harshly disciplined or replaced in
the way that Schwam treated Airday, including Charles
Marchisotto ("Marchisotto"); Joel Shapirro ("Shapirro"); Howard
Schain ("Schain"); and Jeffrey Rose ("Rose").

(Pl.'s 56.1

~

91.)

Defendants object to this statement because Plaintiff does not
identify or describe what he means by this statement, making it
impossible to provide a meaningful response. Defendants further
object for failing to cite admissible evidence to support the
contention, and because it is based on an uncorroborated, selfserving hearsay statement.

38

Plaintiff prov i des that on June 20 , 2008 , City Marshal
Marchisotto was arrested for aggravated harassment and stalking
of his former girlfriend .
2008

(Marchisotto Record, dated June 24 ,

("Marchisotto Record " ) , Pl .' s Ex . 28 . ) Over the course of

several months , Marchisotto repeatedly text messaged and
tailgated his girlfriend .

(Id . ) A few days after Marchisotto ' s

arrest , he invoked his Fi ft h Amendment rig h t against se l f incrimination at a meeting at DOI with Schwam and his attorney .
(Id . ) The NYPD Licensing Division also revoked his firearm
permit because Marchisotto failed to not i fy the Licensing
Division of the arrest and fa i led to cooperate with their
invest i gation .

(Id . ) Schwam never suspended March i sotto ; never

told h i m to resign ; never filed any charges against him.

(Id . )

March i sotto was a l so found not guilty of the criminal charges
against him on March 25 , 20 1 0, but unlike Airday , Marchisotto
was never suspended and continues to be a Marsha l today .

(Id . )

Moreover , Plaintiff states that Marchisotto is also a
landlord in Brooklyn , owning two large res i dential buildings ,
and in 2006 , Schwam learned that these bu il dings had over 115
vio l at i ons , 43 of which had been deemed hazardous by the NYC
Department of Buildings for lead paint v i olations .

(City Marshal

Records , Pl .' s Ex . 29 . ) Plaintiff says that Schwam told
Marchisotto to simply cont i nue in his purported efforts to
39

address the violations and did not take any disciplinary action.
(Pl.'s 56.l

~

93.)

Defendants object to these statements as

failing to cite admissible evidence, and as being based on an
uncorroborated, self-serving hearsay statement.
93.)

(Defs.' 56.1

~

Defendants further state that the issue pertaining to the

buildings owned by Marchisotto pre-dates his initial appointment
as a City Marshal, and that DOI could not discipline a person
before being appointed as a City Marshal.

(City Marshal Records

at 1450.) Moreover, the cited documentation confirms that DOI
investigated Marchisotto's background and presented its findings
to the Mayor's Committee on City Marshals on October 31, 2006.
(Id. at 1394-95.) As Committee Member Judge Daniel Joy observed,
the Committee examined the "documents and other information
provided .

. by Keith Schwam, and

concluded that the

nature and extent of the violations currently pending against
this applicant's buildings should not disqualify Mr. Marchisotto
from further processing by this Committee."

(Id. at 1450.)

Defendants also state that the statement is not material or
relevant.

(Defs.' 56.1

~

93.)

Next, Plaintiff provides that on April 20, 2004, City
Marshal Shapirro was accused of assault by a victim of alleged
assault, and the only step that Schwam took was to issue to
Shapirro a letter of admonition.

(See Schwam Dep. at 80:16-24 &
40

171:8-172:14; Shapirro Investigation , dated Dec . 3, 2004
("Shapirro Investigation"), Pl.'s Ex. 31.) Previously, Shapirro
was arrested on November 5 , 1985 for menacing and crimina l
possession of a weapon and was acquitted on July 24 , 1986.
(Shap irr o Investigation at 2772 . ) In a third incident, on May 5,
2009 , Schwam interviewed Shapirro about a claim that he
committed perjury during a landl ord-tenant proceeding, and
Shapirro asserted his Fifth Amendment right against self incrimination.

(Shapirro Perjury Case , dated Oct . 10, 2009

(" Shap ir ro Perjury Case " ) , Pl.'s Ex. 33 at 3174 . ) Schwam took no
action to suspend Shapirro and five months after the charge was
made, Shap irr o resigned his office .

(Schwam Dep . at 76:8-83:6.)

Defendants object to this paragraph as failin g to c it e
admissible evidence to support its content i on , and argue that it
is based on an uncorroborated, self-serving hearsay stateme n t .
(Defs .' 56.1 1 94.) Defendants further state that Shapirro was
not accused of " assault " by a v i ct im, bu t was the "subject of a
complaint from a person who called [ DOI ' s] office , and said he
put his hands on [him] " while effecting an eviction in April
2004 , and that Schwam took many steps after th i s accusation,
e.g ., Schwam conducted an investigation t h at included
interviewing Shapirro , the comp l ainant , and three additional
witnesses and that based on the investigation, Schwam issued
41

Shapirro a "letter of admonition" and that Schwam immediatel y
commenced an investigation following accusations that Shapirro
lied under oath while testifying in an eviction proceeding in
2008 and analyzed the "court decision, Marshal Shapirro's
records, and the court's audio and printed record of his
testimony" and had DOI investigators interview Marshal Shapirro
and Judge Madhavan,

(Shapirro Perjury Case at 3172), and that

Schwam "s ubstantiate [d] the al legati on " that Shapirro committed
perjury and instructed Shapirro to resign "no later than
September 15, 2009 ," warning that he could be removed from
office after a "formal disciplinary proceeding" with the
Appellate Division and, even if Shapirro prevailed, the Mayor
could exercise his " discretionary authority to appoint a
qualified successor" and that Shapirro resigned from office
effective on September 15, 2009 , obviating the need for "further
administrative action by DOI with resp ec t to any potential
disciplinary penalty or remova l," (id. at 317 1, 3175), and that
Shap irro was not a member of the Scofflaw Program.

(Schwam Dep.

at 82 :2 3 - 83 : 03 . ) Defendants also state that the statement is not
material or relevant.

Next, Plaintiff provides that City Marshal Schain was
f ound guilty of misconduct by Schwam, including tampering with
official records and filing false records, paid a fine of
42

$50,000 and agreed to a four-month suspension.

(Pl.'s 56.1

~

95 . ) At no time during Schwam's investigation of Schain did
Schwam seek Schain 's temporary suspension or tell Schain to
resign or cease activities after the four-month suspension.
(Schwam Dep. at 173:14-179:4.) Scha in resumed duties as a City
Marshal and as a part of the Scofflaw Program, and after his
term expired he was held over and continues to act as a City
Marsha l.

( Id. )

Defendants object to these statements for failure to
cite admissible evidence and for being based on an
uncorroborated , self-serving hearsay statement.

(Defs .' 56 .1

~

95 . ) Schwam invest igat ed Schain and brought charges against him
on or before 2000 , ultimately resulting in Schain
"a cknowledg[ in g] his responsibility for the charged misconduct ,
and agree[ing] to [a 4 month] suspension and [$50,000] fine."
(DOI Press Release, dated Oct . 6 , 2015 ,

("DOI Press Release" ) ,

Pl.'s Ex. 30 . ) Schwam did not recommend Schain for reappointment
after he investigated the condu ct described above.

(Schwam Dep.

at 175:03-05.) Defendants also state t hat the statement is not
material or relevant.

Finally, on March 31 , 2009 , Schwam resolved
disciplinary issues against City Marshal Rose with a $40,000
43

fine for several violations or other acts of misconduct ,
including false arrest and assault; failing to provide DOI with
information ; and preparing and filing false records of his
office.

(Ro se Disciplinary Stipulation , dated March 31 , 2009

("Rose Disciplinary Stipulation") , Pl . 's Ex. 34 ; Rose
Stipulation of Settlement and Order of Dismissal, dated March 5 ,
2013 ("Rose Settlement Agreement"), Pl .' s Ex . 35.)

In resolving

the false arrest and assault charge , the City paid $10 , 000 and
Rose and his attorney paid $5 , 000 .

(Rose Settlement Agreement . )

Although all these events took place while Schwam was the
Director of the Marshal ' s Bureau , Schwam never directed Rose to
cease operations during the pendency of the charges either as a
City Marshal or as a member of the DOF Scofflaw Program .

(Schwam

Dep . at 183:12-184:21.) Rose was held over as a City Marshal
after these charges were resolved , and he continues to be a City
Marshall today .

(Id . )

Defendants object to these statements on the grounds
of failing to cite admissible evidence to support the
contention, and for being an uncorroborated, self - serving
hearsay statement.

(Defs .' 56 . 1

~

96.)

Defendants state that DOI

investigated Rose for seizing a car in a traffic lane ,
inaccurate rec o rdkeeping, and delays in reporting criminal
activity by an employee (not a false arrest or assault), and
44

that Rose cooperated with the investigation , took responsibility
for his actions, and agreed to a $40 , 000 fine as an "alternative
to a formal disciplinary proceeding . "

(Rose Disciplinary

Stipulation ; Schwam Dep . at 183:12 - 23) . Plaintiff cites to a
civil lawsuit, where the parties reached a "settlement [that]
does not indicate any fault or liability on the part of any
party. "

(Rose Settlement Agreement.)

Defendants also state that

the statement is not material or relevant .

III. The Applicable Standard

Summary judgment is appropriate only where " there is
no genuine issue as to any material fact and .

. the moving

party is entitled to a judgment as a matter of law . " Fed. R .
Civ . P. 56(c) . A dispute is "genuine " if "the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party ." Anderson v . Liberty Lobby , Inc., 477 U. S . 242 , 248
(1986). The relevant inquiry on application for summary judgment
i s "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law . " Id. at 251 - 52 . A
court is not charged with weighing the evidence and determining
its truth , but with determin i ng whether there is a genuine issue
for trial. Westinghouse Elec . Corp . v . N. Y.C. Transit Auth. , 735
45

F . Supp. 1205 , 1212 (S . D.N . Y. 1990)

(quot ing Anderson , 477 U. S .

at 249). "The moving party is ' entitled to a judgment as a
matter of law' because the nonmoving party has failed to make a
sufficient showing on an essential element of her case with
respect to which she has the burden o f proof ." Celotex Corp. v.
Catrett , 477 U. S . 317 , 323 ( 19 86) . "[T]he mere existence of some
alleged factual dispute between the parties will not defeat an
othe rwise properly supported moti on for summary judgment ; the
requirement is that there be no genuine issue of material fact."
Anderson , 477 U.S . at 247 - 48

IV .

(emphasis in original).

Defendants ' Motion for Summary Judgment is Granted in Part ,
and Denied in Part

Th e c laims against Defendant Frankel , the former
Commissioner of the DOF, have been withdrawn by the Plaintiff as
there is no evidence of his personal involvement in the actions
taken against Plaintiff by Schwam.

(Pl.'s Opp. Br. 5 . ) Moreover,

the demand for punitive damages in the ' whereas clause '

of the

AC is limited to Schwam as a claim for punitive damages may not
be made against the City of New York .

(Id . ) The class-of-one

equal protecti on claim and the substantive due process claim in
the AC are duplicative of the procedural due process and

46

select i ve enforcement claims, so the latter have s i mi larly been
withdrawn .

(Id.)

a . Defendants' Motion for Summary Judgment Dismissing
Plaintiff ' s Due Process Claim is Granted in Part, and
Denied in Part

Plaintiff's AC asserts that Defendants violated his
right to procedural due process when , first,

Schwam temp o rarily

suspended Airday in January 2012 without notice or a hearing ,
and second , Schwam unilaterally and without notice permanently
removed Airday from his office in December 2013 by not adhering
to the long - standing practice for all City Marshals to renew
their terms.

(Pl. ' s Br. 19 - 21.) The facts upon which Plaintiff

bases his procedural due process violation are established in
part and disputed in part . As a consequence , Defendants ' motion
for summary judgment as to this claim is granted in part , and
denied in part.

The Due Process Clause of the Fourteenth Amendment
provides certain procedural safeguards as to the deprivation of
liberty and property interests . Bd. of Regents of State Colls .
v. Roth , 408 U. S. 564, 570 (1972) . " When protected interests are
implicated , the right to some kind of prior hearing is
47

paramount ." Id. Accordingly, "[t]he threshold issue is always
whether the plaintiff has a property or liberty interest
protected by the Constitution." Narumanchi v. Bd . of Trustees,
850 F.2d 70 , 72

(2d Cir. 1988) . To determine whether procedural

requirements apply at all , "we must look not to the weight but
to the nature of the interest at stake ." Roth , 408 U.S. at 571
(citing Morrissey v. Brewer , 408 U.S . 471 , 481).

"Property interests .

. are created and their

dimensions are defined by existing rules or understandings that
stem from an independent source such as state law-rules or
understandings that secure certain benefits and that support
clams of entitlement to those benefits ." Id . at 577 . "T o have a
property interest in a benefit , a person clearly must have more
than an abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it." S & D Maint . Co. ,
v . Goldin, 844 F.2d 962 , 965 (2d Cir . 1988)
U. S. at 577); see also Roth, 408 U.S . at 578

Inc.

(citing Roth , 408
("Just as the

welfare recipients ' property interest in welfare payments was
created and defined by statutory terms , so the respondents '
property interest in employment at Wisconsin State UniversityOshkosh was created and defined by the terms of his
appointment.") . In the public employment context , a person is
48

deemed to have a property interest in continued employment where
a tenured position is held , see Slochower v . Bd. of Educ., 350
U.S . 551 , 559 (1956) , a contract provides as such , see Wieman v .
Updegraff , 344 U. S. 183 ( 1952 ) , or where there is a clearly
implied promise of continued employment, see Connell v.
Higginbotham , 403 U. S. 207 , 208

(197 1 ).

First, Plaintiff asserts that he maintained a property
interest in his continued employment with the Scofflaw Program ,
and that his procedural rights were v i ola ted when he was
temporarily suspended from the program in January 20 12. Pursuant
to the Standard Operat ing Procedures ("SOP") of the Scofflaw
Program , "DOF.

. reserves the right .

to direct a Marshal

to discontinue the participation of any personnel in the
program," and "[i]n the exercise of discretion, the City may
terminate the services of a Marshal under this S . O. P . for a
confl ict of interest or appearance of impropriety." (Scoff law
SOP , date effective Aug . 24, 2009 (" Scoff law SOP " ) , Pl.'s Ex. 27
at 955 . ) Plaintiff has not pointed to a statute , rule,
contractual agreement or policy providing for his continued
appointment to the Scofflaw Program for a designated period of
time . Accordingly , absent specific language or facts
demonstrating a custom or practice providing for Plaintiff's
continued employment with the Scofflaw Program, Plaintiff has
49

failed to establish that he held a property interest in this
position , and as such his constitutional right to due process
was not violated by his removal from the Scofflaw Program
without notice or an opportunity to be heard. See Roth , 408 U. S.
at 577

("A person's interest in a benefit is a

'property'

interest for due process purposes if there are such rules or
mutually explicit understandings that support his claim of
entitlement to the benefit and that he may invoke at a
hearing.") .

Second, Plaintiff argues that as part of his position
as City Marshal, he enjoyed an entitlement to the renewal of his
five-year term, and that Schwam 's unilateral decision not to
rehire Plaintiff for another term violated Plaintiff's
constitutional rights to notice and a meaningful opportunity to
be heard. Specifically , Airday contends that he had a due
process right based on the practice for all City Marshals to
renew their terms .

(Pl.'s Br. 20 . ) Defendants contend that

"there is no statute, rule , or policy that guaranteed
[Plaintiff] the right to remain in that office after the
expiration of his stated term of appointment ," and that,
instead, the controlling statutes required that Plaintiff be
appointed to an office with a fixed term of employment and that
the office be deemed vacant at the time that the term expired.
50

(Defs .' Br . 15 . ) Defendants further argue that , pursuant to
these statutes, Plaintiff ' s term expired on December 20 , 2013 ,
and Alvarez was appointed to succeed him on December 20 , 2013
and was deemed qualified for that o ffice on December 21 , 2013 ,
bringing Plaintiff's service as a City Marsha l to an end at that
time .

(Id . at 16.)

While the presence o f a written contract out lining a
party ' s formal rights "would make the existence of the right
much more apparent , its absence does not foreclose the
possibility" that Airday possessed a property interest in a
renewed term as City Marshal . Ezekwo v . New York City Health &
Hosps. Corp ., 940 F.2d 775 , 782 (2d Cir . 1991) . The parties
through their course of dealing and practice can create
additional rights and duties . Id. "In determining which
interests are . afforded such protection , a court must look to
whether the interest involved would be protected under state law
and must weigh ' the importance to the holder of the right .'" Id .
at 783. A person has the required property interest for purposes
of due process where rules or mutually explicit understandings
support an expectation of cont inued employment . Perry v .
Si ndermann , 408 U. S . 593 , 601 (1972) . The law of contracts ,
including the rules governing implied contract , can establish
the required property interest, based on a party's words ,
51

conduct , the surrounding circumstances , and the meaning of the
parties' conduct as found based on their past practices. Id.

For instance, in Ezekwo, 940 F.2d at 782, the Circuit
held that a doctor had a property interest in being rotated into
the Chief Resident position at the defendant hospital based on a
long-standing practice of rotating all residents into the
position and the resident 's reasonable reliance on the practice .
Moreover , in Perry , 408 U. S . at 603 , the Supreme Court held that
a professor who spoke out against educational authorities had a
protected property interest in his position and was therefore
entitled to "a hearing at his request , where he could be
informed of the grounds for his nonretention and challenge their
sufficiency ."

Under New York law, a contract implied can be based
upon the conduct of the parties , Parsa v . State of New York , 64
N.Y . 2d 143, 148 (1984) . Whether an implied contract was formed
involves factua l issues regarding the parties' intent and the
surrounding circumstances , Jemzura v . Jemzura, 36 N. Y. 495 , 503 04

(1974) . The existence of an i mplied contract is ordinari l y

determined by an objective test; that is, whether a reasonable
person would think the parties intended to make a new binding
agreement . Martin v. Camanaro , 156 F.2d 1 27
52

(2d Cir . 1946).

Here , Plaintiff has demonstrated that a factual issue
exists as to whether an implied contract was created as a result
of the past practice of ho l ding over City Marshals for
reappointment following the expiration of their statutory term .
The issue concerns the existence of a property interest in
reappointment of Marsha l s after the expiration of their terms.
In the September Op i nion , it was concluded that there was a
factual issue as to whether the part i es had a mutual
understanding of the renewal of the position after expiration ,
and the factual dispute rema i ns. See Airday, 131 F . Supp . 3d at
183 . The Plaintiff himself has held a City Marshal position by
way of holdover status for over two decades since his initial
appointment in 1984 .

(Pl.s '

56 . 1

~

13 . ) Moreover , Plaintiff has

established that several other City Marshals have also
maintained their positions by way of holdover status . Schwam
unilaterally without notice permanently removed Airday from his
office in December 2013 and assigned Airday ' s badge to Alvarez .
Accordingly , there remains a factual dispute as to whether
Plaintiff was entitled to notice and a hearing. This dispute
bars the Defendants ' mot i on for summary judgment dismissing
Airday ' s procedural due process cla i m.

53

b . Defendants ' Motion for Summary Judgment Dismissing
Plaintiff ' s Selective Enforcement Claim is Denied

Plaintiff alleges that his suspension as Ci ty Marshal
in January 20 12 and his removal in December 2013 v i olated his
constitutional right to equal protection because the evidence
demonstrates that several other simil arly situated City Marshals
accused of assault, harassment , or other misconduct were not
similarly deprived of their off ices.

To prevail on his equal protection claim , which is
based on a theory of selective enforcement , Plaintiff must show
both (1) that he was treated differently from other similarly
situated individuals ; and (2) that "such differential treatment
was based on impermissible considerations such as race ,
religion , intent to inhibit or punish the exercise of
constitutional rights , or malicious or bad faith intent to
injure a person ." Cine SKB , Inc. v . Town of Henrietta , 507 F.3d
778 , 790 (2d Cir. 2007) . As to the first prong , plaintiffs must
show that they are similarly situated such that "(1 ) the persons
to whom they compare themselves are similarly situated in all
material respects and (2) the defendants knew there were
similarly situated indi v iduals and consciously applied a
different standard to plaintiffs ." Mosdos Chofetz Chaim ,
54

Inc . v .

Village of Wesley Hills, 815 F. Supp . 2d 679 , 696 (S . D. N. Y.
2011). "The t est is whether a prudent person , looking
objectively at the incidents , would think them roughly
equivalent and the protagonists similarly situated. Much as the
lawyer ' s art of distinguishing cases , the 'r elevant aspects '

are

those factual elements which determine whether reasoned analogy
supports, or demands , a like result. Exact corre lation is
neither likely or necessary, but the cases must be fair
congeners . In other words, apples should be compared to apples."
Id.

(c iting T . S. Haulers, Inc. v . Town of Riverhead , 190 F.

Supp. 2d 455 , 463 (E . D. N.Y . 200 2 )

(internal citation omitted))

"Generally , whether two entities are similarly situated is a
factual issue that should be submitted to the jury .

[but]

this rule is not absolute and 'a court c an properly grant
summary judgment where it is clear that no reasonable jury could
fin d the simi l ar ly situated prong met.'" Cine SK8, In c ., 507
F. 3d at 790 - 91 .

The facts as set forth above establish a factual
conflict both as to whether Plaintiff is similarly situated to
the other Marshals cited and whether Schwam ' s conduct amounted
to malice and bad faith sufficient t o satisfy the second prong
of the inquiry. While Defendants argue that the City Marshals
Plaintiff compares himself to are sufficiently dissimilar to
55

Plaintiff to warrant dismissal of this claim, the "relevant
aspects" overlap enough to present a genuine issue of material
fact to a jury. Each of the persons cited are City Marshals who
engaged in similar behavior to Plaintiff, including harassment,
assault, and misconduct of which DOI was aware . Unlike the other
City Marshals, Airday was temporarily suspended and then
permanently removed from his office , raising a genuine question
as to why Plaintiff was treated differently than the other
similarly situated individuals . Moreover, it remains an open
factual question whether Plaintiff's grievances were the result
of Defendants malice or bad faith . These factual disputes bar
the Defendants ' motion for summary judgment to dismiss Airday's
equal protection claim.

c . Defendants ' Motion for Summary Judgment Dismissing
Plaintiff ' s First Amendment Claim is Granted

Finally , Plaintiff contends that Schwam's actions
against him constituted an act of retaliation in violation of
his First Amendment right to free speech. While a similar claim
concerning speech between Plaintiff and other City Marshals and
the Marshals' Association of the City of New York was dismissed
in Airday , 131 F. Supp. at 182 , the AC has since been revised to
assert that Defendants retaliated against Plaintiff after he
56

con ta cted e l ected off i cials in 2011 and 2012 to " oppose " the
implementation of the Pay l ock Boot ing Program.
56 . 1

~

23.)

(See AC~~ 32-37 ;

Defendants seek dismissal of t his claim on the

grounds that Airday spoke as an employee rather than as a public
citizen and because the communications a ll eged in the AC were
not the cause of Schwam 's actions. Because Plaintiff failed to
establish either that his speech was protected or that a nexus
existed between his speech and Schwam ' s actions , Defendants'
motion f or summary judgment as to this claim is granted .

The requirements to establish a violation of a First
Amendment speech right were previously set forth in the
September Opinion , and are summarized as follows. "A plaintiff
asserting a First Amendment retalia ti on claim must establish
that:

' (1) his speech or conduct was protected by the First

Amendment;

(2) the defendant took an adverse action against him ;

and (3) there was a causal connection between this adverse
action and the protected speech .'" Matthews v . City of New York ,
779 F . 3d 167, 17 2 (2d Cir . 2015)

(citing Cox v . Warw i ck Va ll ey

Cent. School Dist. , 654 F . 3d 267 , 272 (2d Cir. 2011)). The issue
of whether speech is protected by the First Amendment is a
matter of law. See Conn i ck v . Myers , 461 U.S. 138 , 148 (1983) .

57

Courts follow a two-step inquiry for determining
whether a government employee's speech is protected: First, it
must determine "whether the employee spoke as a citizen on a
matter of public concern," which in turn encompasses two
subquestions: "(l ) whether the subject of the employee's speech
was a matter of public concern and (2) whether the employee
spoke 'as a citizen' rather than solely as an employee." Id.
(citing Jackler v . Byrne, 658 F.3d 225 , 235 (2d Cir . 2011)
(internal citation omitted) . If either question is answered
negativel y , then the relevant speech is not protected and the
inquiry ends. Id. If both questions are answered affirmatively,
the second determination is "whether the relevant government
entity 'had an adequate justification for treating the employee
differently from any other member of the public based on the
government's needs as an employer.'" Id.

(citing Lane v. Franks,

134 S .Ct. 2369 , 2380 (2014)). "Only if the statements involved
address a matter of public concern is it necessary for a court
to balance the interests of the speaker against the state's
interest in efficient government." Ezekwo, 940 F. 2d at 781
(citing Rankin v . McPherson, 483 U.S. 378 , 388

(1987)). "The

Supreme Court has recognized a tension in public employment free
speech cases between an employee's First Amendment rights and
the ' common sense realizati on that government offices could not
function if every employment decision became a constitutional
58

matter .'" Id .

(citing Connick , 461 U. S . at 143) . Accordingly ,

" when public employees make statements pursuant to their
officia l duties , the employees are not speaking as citizens for
First Amendment purposes ," and this speech does not enjoy
constitutional protection . Garcetti v . Ceballos , 547 U. S . 410 ,
421 (1 951) . The re l evant question is whether the speech is
directed to the employee ' s "regu l ar dut i es ." Matt h ews , 779 F . 3d
at 173.

The Plaintiff contends that he " disseminated his
criticisms of the Paylock program to other City Marshals , to the
Marshals ' Association , to the [DOF] , to l ocal po l iticians and to
the NYC Comptroller ' s Office ." (P l.' s Br . 11 , 29 - 30 ; see also
~~

Pl .' s 56 . 1

" complaints .

22 - 27 . ) The September Op i n i on determi ned that
[that] were not expressed to anyone beyond his

own colleagues , the Marshals ' Association , and un i dentified
individuals

. support a conclusion that Airday engaged in

speech as a pub li c servant pursuant to his job duties , not as a
citizen." Airday , 131 F. Supp . 3d at 180~8 1 .

Plaint i ff has not estab li shed that he "spoke as a
citizen on a matter of public concern , " in relaying his concerns
about the Paylock Program . See Jackler , 658 F.3d at 235 .
Plaintiff noted an email sent to Kelly , Executive Director at
59

the Marshals' Association in March 2011, and "the other City
Marshals," in which he discussed his concerns about the
program ' s implementation and operation.

(Pl.' s 56. 1 ':II 2 2 .)

Specifically, Plaintiff communicated his concerns regarding the
foll o wing inquiries:

(a)

"how Paylock was ~hosen by the City and

whether a no-bid contract was appropriate and legal";

(b)

"who

would be in charge under the proposal for tracking fines paid to
Paylock";

(c) "who would be responsible for supervising

Paylock" ;

(d) "what fees would be charged to the vehicle

owners" ;

(e) "what would be the City Marshal ' s law enforcement

and administrati v e roles, if any , in the booting process";
"what would .
(g)

(f)

. Paylock's fee be under the proposed system" ;

"whether a vehicle could be legally 'un-booted' upon payment

of the outstanding fines and judgments and left operational on
City streets where the vehicle's registration status had expired
and the vehicle cannot under law be parked or operated on public
streets" ; and (h) "whether it was appropriate to omit or
disregard necessary and legal guidelines from the Paylock
[B]ooting [P]rogram." (Id.) This email was principally concerned
with the impact of Paylock on the Plaintiff's business
operation , and there is no evidence that it was directed to the
Defendants or an elected official .

60

Plaintiff also contends that he contacted four elected
offic ials in 2011 and 2012 to complain about the implementation
and operation of the Paylock Booting Program.

(Id .

<JI

23.)

However, no details as to the time, method or substance of these
communications are set forth other than a conclusory allegation.
(See id.; see also Rankin , 483 U.S. at 388
U.S. at 14 6)

(citing Connick , 461

("Whether an employee's speech addresses a matter

of public concern must be determined by the content , form, and
context of a given statement, as revealed by the whole
record.")).

Next, Plaintiff al leges that he spoke to City
Councilmember Koppell in a "casual" manner when he saw him
walking "on the street," at which point Plaintiff "t old him that
it would be a good idea if he and the City Council looked into
this proposal that seems .
(Pl.'s 56.1

<JI

. to be way off the res ervat ion."

24 . ) Plaintiff spoke in similarly cryptic terms

when he allegedly telephoned an unknown person at the Office for
the New York City Comptro ll er to ask in general terms "if they
had any information about the [Pa ylock] contract; if they were
aware of it,

[a]nd that it seems as if there's a problem with

this proposed contract ." (Id.

<JI

25.) These allegations lack the

evidentiary support needed to warrant a finding that the
Plaintiff engaged in protected speech. Plaintiff has not
61

established any information regarding the speech that he alleged
was disseminated to City Councilmember Koppell and the New York
City Comptroller ' s Office , except t o say that it may have
occurred in 2011 or 2012.

(See - - 'lI'lI 24-25 . ) Plaintiff adds
id.
--

only that his " objections and concerns about Paylock were not
limited to concerns about how his job would be performed and his
first concern was the means whereby Paylock was selected and the
procurement process ." (Id . 'lI 89.) However he provides no further
detail as to the content of his concerns. The conclusory nature
of Plaintiff ' s allegations fall short of stating a matter of
public concern.

In addition , Plaintiff's speech "focused primarily on
private motives related to employment gr ie vances ." See Reuland
v . Hynes , 460 F.3d 409 , 417
781

(2d Cir . 2006) ; Ezekwo, 940 F . 2d at

(holding that the speech at issue was not a matter of public

concern because both the motive of the speaker and the content
of the speech were related to personal grievances) . Plaintiff ' s
criticisms focused on how the Paylock Booting Program would
impact his business operation :

( i) " who would be in charge under

the proposal for tracking fines paid to Paylock";

(ii) " who

would be responsible for supervising Paylock"; and (iii) " what
would be the City Marshal 's law enforcement and administrat i ve
roles , if any, in the booting process ." (Pl .' s 56 .1. 'lI 22) . As
62

the Circuit has noted, "[s]peech that, although touching on a
topic of general importance, primarily concerns an issue that is
'personal in nature and generally related to [the speaker's] own
situation,' such as his or her assignment, promotion, or salary,
does not address matters of public concern." Jackler,

658 F.3d

at 236 (citation omitted); see also Connick, 461 U.S. at 149
("To presume that all matters which transpire within a
government office are of public concern would mean that
virtually every remark-and certainly every criticism directed at
a public official-would plant the seed of a constitutional
case.").

Finally, no evidence has been submitted that DOI, DOF,
Schwam, or Frankel were aware of the Plaintiff's purported
speech described in the AC. Accordingly, Plaintiff is unable to
establish the requisite nexus to support his claim of
retaliation. See Cobb v. Pozzi, 363 F.3d 89, 108

(2d Cir. 2003)

(holding "that a plaintiff may not rely on conclusory assertions
of retaliatory motive to satisfy the causal link," and
"[i]nstead, he must produce some tangible proof to demonstrate
that his version of what occurred was not imaginary.")
(quotation, citation, and alteration omitted). The Plaintiff
contends that a jury could find that Schwam knew of Plaintiff's
"objections and is simply feigning lack of knowledge."
63

(Pl.'s

Br. 30-31.) However, this unsupported speculation is belied by
the Plaintiff's acknowledgement that he "did not communicate
with Schwam or anyone else at DOI about his concerns as to
Paylock," as set forth in paragraph 26 of the Plaintiff's 56.1
Statement of Facts.

(Pl.'s 56.1

<JI

26.)

Because the Plaintiff has not established protected
speech as a citizen, and in the absence of a nexus between that
speech and the actions taken by Schwam in January 2012 and
December 2013, the Defendants' motion for summary judgment as to
Airday's First Amendment claim is granted.

d. The Defendants' Motion for Summary Judgment Dismissing
the AC Against Schwam on the Grounds of Qualified
Immunity is Denied

"Qualified immunity shields federal and state
officials from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was

'clearly

established' at the time of the challenged conduct." Ashcroft v.
al-Kidd,

563 U.S. 731,

735

(2011). This doctrine "balances two

important interests-the need to hold public officials
accountable when they exercise power irresponsibly and the need
64

to shield officials from harassment, distraction, and liability
when they perform their duties reasonably." Pearson v. Callahan,
555 U.S. 223, 231 (2009).

In determining whether the relevant law is "clearly
established," courts "consider the specificity with which a
right is defined, the existence of Supreme Court or Court of
Appeals case law on the subject, and the understanding of a
reasonable officer in light of preexisting law." Terebesi v.
Torreso, 764 F.3d 217, 231 (2d Cir. 2014). A clearly established
right "is one that is 'sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.'" Mullenix v. Luna, 136 S.Ct. 305, 308
(citing Reichle v. Howards, 566 U.S. 658,

664

(2015)

(2012); see also

Terebesi, 764 F.3d at 230 (internal citations and quotations
omitted)

("Official conduct violates clearly established law

'when, at the time of the challenged conduct, the contours of a
right are sufficiently clear that every 'reasonable official
would have understood that what he is doing violates that
right.'")). As such, "existing precedent must have placed the
statutory or constitutional question beyond debate." Aschroft v.
al-Kidd, 563 U.S. 731 (2011).

65

First , as to the due process claim , the Defendants
argue that they are entitled to qualified immunity because there
is no support for the theory that they should have known that
removing Plaintiff from the Scofflaw Program in February 2012 ,
recommending his suspension to the Appellate Division in 2012 ,
and appointing a successor at the expiration of Plaintiff ' s term
in 2013 violated a constitutional right.

(Defs .' Br . 22 . )

However, United States and Circuit case law cited above
demonstrate that the constitutional law regarding property
interests and the rights that attach to such interests is a
clearly established area of the law. Moreover , Schwam , an
attorney , has acknowledged that notice is a fundamenta l aspect
of due process ,

(see Schwam Dep . 109 : 21-24) , demonstrat i ng his

knowledge of this area of law . Schwam also prepared the
submission to the First and Second Departments , which sets forth
the law on how the Appe l late division , rather than DOI or
Schwam, makes the decision to temporarily suspend a City
Marshal .

(Pl .' s Ex . 5 at 234 . ) Moreover , "[s]ummary judgment on

qualified immunity grounds is not appropr i ate when there are
facts in dispute that are material to a determination of
reasonab l eness. " Kerman v . City of New York , 261 F . 3d 229 , 240
(2d Cir . 2001) . Thus , to the extent that there remains a factual
dispute as to the due process claim regarding whether an implied
contract existed as a result of the City ' s alleged practice of
66

holding over City Marsha l s for reappointment following the
exp i rat i on of their statutory term , and as to the select i ve
enforcement claim, Defendants are not ent it led to qua l ified
immunity.

V.

Conclusion

For the forego i ng reasons , Defendants ' motion for
summary judgment is granted in part , and denied in part .

It is s o ordered .

New York, NY
May

(tJ,

2018

U . S.D.J.

67