Ilchert v. City Of New York et al

Filing 28

OPINION & ORDER re: (41 in 17-CV-47) MOTION to Dismiss the amended complaint: Defendants the City of New York, District Attorney Cyrus Vance, and five Assistant District Attorneys, move to dismiss this federal civil-rights action by retired police o fficers who were indicted in a massive Social Security fraud. For the reasons stated above, Defendants motion is granted and this case is dismissed. The Clerk of Court is directed to terminate all pending motions and mark this case as closed. (Signed by Judge William H. Pauley, III on 9/1/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PHILIP BLESSINGER, et al.,
Plaintiffs,
-againstCITY OF NEW YORK, et al.,
Defendants.

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17cv47
17cv108
OPINION & ORDER

WILLIAM H. PAULEY III, District Judge:
Defendants the City of New York, District Attorney Cyrus Vance, and five
Assistant District Attorneys, move to dismiss this federal civil-rights action by retired police
officers who were indicted in a massive Social Security fraud. For the following reasons,
Defendants’ motion to dismiss is granted.
BACKGROUND
Plaintiffs Philip Blessinger, John Byrne, Scott Greco, and Darlene Ilchert were
indicted in a sweeping investigation by the Manhattan DA into a large-scale Social Security
Disability insurance fraud. The masterminds of the scheme, the “Lavallee Group,” approached
retired police officers like Plaintiffs and offered to prepare fraudulent applications for Social
Security Disability Insurance (“SSDI”) in exchange for cash kickbacks from the resulting SSDI
benefits. The Lavallee Group sent Plaintiffs to selected mental-health professionals who
provided documentation of psychiatric conditions such as post-traumatic stress disorder, anxiety
disorder, and depression. Plaintiffs allegedly used these diagnoses to file fraudulent SSDI
applications, which were prepared by the Lavallee Group and contained substantively identical

claims. Once they obtained the SSDI benefits, Plaintiffs paid the Lavallee Group in cash
increments of less than $10,000.
In January 2014 a Manhattan grand jury indicted Plaintiffs (along with more than
one hundred other individuals), charging them with Grand Larceny and Criminal Facilitation.
They were subsequently arrested on warrants issued under the indictments. ADA Bhatia also
filed civil asset forfeiture proceedings against Plaintiffs, alleging that the proceeds of the scheme
were subject to forfeiture. Three of the Plaintiffs filed motions to dismiss their indictments for
lack of evidence and improper venue; the presiding New York Supreme Court justice denied
each motion. Following the indictments, the District Attorney’s office continued to investigate
the charges by, inter alia, sending investigators to speak to Plaintiffs’ family members,
neighbors, and friends.
In August 2016 ADA Santora moved to dismiss the charges against each Plaintiff,
citing “additional information and records . . . includ[ing] psychiatric reports, additional medical
records, [and] work history reports, each of which was not available to the People at the time the
Grand Jury voted the Indictment.” (Declaration of Elizabeth N. Krasnow (“Krasnow Decl.”),
ECF No. 42, Ex. D at 2.) In light of “this and other newly discovered information,” Santora
stated, “the People believe they are unable to prove the cases against these four defendants
beyond a reasonable doubt.” (Krasnow Decl., Ex. D at 2.) The District Attorney also stipulated
to a dismissal of the civil forfeiture proceedings the following day. Notably, these stipulations
contained remedy waivers that Defendants are not seeking to enforce in this case. (See, e.g.
Krasnow Decl., Ex. L at 2.)

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DISCUSSION
A. The Individual § 1983 Claims
Defendants argue that the claims for false arrest, malicious prosecution,
unreasonable asset seizure, and abuse of process under § 1983 are barred by the Eleventh
Amendment (with respect to claims brought against the DA Defendants in their official
capacities) and the doctrine of absolute prosecutorial immunity (with respect to claims brought
against the DA Defendants in their individual capacities). See Ying Jing Gan v. City of New
York, 996 F.2d 522, 529 (2d Cir. 1993) (“[T]he capacities in which a state official is sued for
damages under § 1983 establish parallel lines of privileges.”)
Plaintiffs’ claims against the DA Defendants in their official capacities are plainly
barred by the Eleventh Amendment which, “with few exceptions, bars federal courts from
entertaining suits brought by a private party against the state in its own name.” Ying Jing Gan,
996 F.2d at 529. Prosecutors are entitled to Eleventh Amendment immunity when they are
acting as state officials rather than city or county employees. When prosecuting a criminal
matter on behalf of the state—for example, in “making an individual decision whether to
prosecute”—a district attorney is considered a state official for Eleventh Amendment purposes.
Peterson v. Tomaselli, 469 F. Supp. 2d 146, 157 (S.D.N.Y. 2007); see also Baez v. Hennessy,
853 F.2d 73, 77 (2d Cir. 1988) (“[W]hen prosecuting a criminal matter, a district attorney in New
York State, acting in a quasi-judicial capacity, represents the State not the county.”).
Here, Plaintiffs allege that the DA Defendants violated their constitutional rights
by indicting and arresting them, freezing their assets as possible proceeds of fraud, and later
dismissing the charges. All of this conduct is part and parcel of a district attorney’s role in

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prosecuting (or deciding whether to continue to prosecute) a crime on behalf of the state.
Accordingly, these claims cannot form the basis for liability against the DA Defendants in their
official capacities.
Similarly, the claims against the DA Defendants in their individual capacities are
barred by the doctrine of absolute immunity. See Ying Jing Gan, 996 F.2d at 529. This
immunity “is broader than Eleventh Amendment immunity . . . and extends beyond the decision
of whether or not to prosecute.” Peterson, 469 F. Supp. 2d at 159. Absolute prosecutorial
immunity reflects the need “to preserve the integrity of the judicial process and . . . enable
zealous performance of prosecutorial duties . . . without the constant threat of legal reprisals.”
Pinaud v. Cty. of Suffolk, 52 F.3d 1139, 1147 (2d Cir. 1995). Prosecutors can claim absolute
immunity for “prosecutorial activities that are ‘intimately associated with the judicial phase of
the criminal process, [including] initiating a prosecution and [] presenting the state’s case.’”
Peterson, 469 F. Supp. 2d at 159 (quoting Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976)).
Ultimately, absolute immunity covers “virtually all acts, regardless of motivation, associated
with [the DA’s] function as an advocate.” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
Plaintiffs’ claims against the DA Defendants in their individual capacities are
based on conduct that falls squarely within the scope of absolute immunity. Specifically,
Plaintiffs allege that the DA Defendants conducted a subpar investigation and, as a result,
indicted innocent parties. These acts are exactly the type that courts in this circuit have
repeatedly found to be protected by the doctrine of absolute immunity. See, e.g. Bernard v. Cty.
of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) (finding absolute immunity for prosecutor’s
decision to seek indictment without probable cause); Hill v. City of New York, 45 F.3d 653, 661
(2d Cir. 1995) (absolute immunity applies even when prosecutor alleged to have presented

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falsified evidence to the grand jury); Spear v. West Hartford, 954 F.2d 63, 66 (2d Cir. 1992)
(applying absolute immunity to prosecutors who initiated civil suits in connection with criminal
prosecutions).
B. Monell Claims
Plaintiffs also bring claims against the City of New York for municipal liability as
a result of the alleged § 1983 violations of the DA Defendants. To state a claim for municipal
liability under § 1983, a plaintiff must prove that (1) the alleged actions by the municipal
employees were the result of a specific official policy, custom, or practice of the municipal
defendant, (2) this policy, practice, or custom caused plaintiff’s alleged injuries and (3) those
alleged injuries constituted a violation of plaintiff’s constitutional rights. Monell v. Dept. of
Social Svcs. of the City of N.Y., 436 U.S. 658, 691–94 (2000). This claim fails at the outset
because, as discussed above, Plaintiffs have failed to plead an underlying violation of their
constitutional rights. 1 Accordingly, Plaintiffs’ municipal liability claims must be dismissed.
C. State-Law Claims
Plaintiffs’ remaining state-law claims for abuse of process, gross negligence, and
respondeat superior are dismissed for failure to comply with the notice of claim requirement of
General Municipal Law §§ 50-e and 50-i. Plaintiffs did not respond to Defendants’ arguments
regarding the late notices of claim, and accordingly concede those points. See In re Jumei Int’l

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Even if Plaintiffs had pled a constitutional violation, however, their theory of liability—that the City failed in its
duty to properly oversee the DA’s office—misconstrues the relationship between the City and the District Attorney.
Because “[t]he responsibilities attendant the position of [district attorney] necessitate the exercise of completely
impartial judgment and discretion,” the City is not responsible for regulating and overseeing the conduct of the DA
or ADAs. Jones v. City of New York, 988 F. Supp. 2d 305, 314 (E.D.N.Y. 2013). Similarly, any Monell claim
based on a failure-to-train theory fails because Plaintiffs do not allege a single previous constitutional violation—
much less a pattern of similar violations—that would have put the City or Defendant Vance on notice of a deficient
training or oversight program. See Connick v. Thompson, 563 U.S. 51, 67 (2011).

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Holding Ltd. Sec. Litig., No. 14-CV-9826, 2017 WL 95176, at *5 n.4 (S.D.N.Y. Jan. 10, 2017)
(arguments not rebutted in opposition briefs are deemed conceded).
CONCLUSION
For the reasons stated above, Defendants’ motion is granted and this case is
dismissed. The Clerk of Court is directed to terminate all pending motions and mark this case as
closed.

Dated: September ___, 2017
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New York, New York
SO ORDERED:

_______________________________
WILLIAM H. PAULEY III
U.S.D.J.

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