Rodrigues v. City of New York

• Decision Date: 21 September 1993
• Citation: 193 A.D.2d 79,602 N.Y.S.2d 337
• Parties: Antonio RODRIGUES and Inner City Drywall Corporation, Plaintiffs-Respondents, v. The CITY OF NEW YORK, et al., Defendants, and District Attorney Robert M. Morgenthau, A.D.A. Edward Mechmann, A.D.A. Robert Mass, and Melvin Eckhaus, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 337

602 N.Y.S.2d 337

193 A.D.2d 79

Antonio RODRIGUES and Inner City Drywall Corporation Plaintiffs-Respondents, v. The CITY OF NEW YORK, et al., Defendants and District Attorney Robert M. Morgenthau, A.D.A. Edward Mechmann, A.D.A. Robert Mass, and Melvin Eckhaus Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

Sept. 21, 1993.

Norman A. Bloch, of counsel (Douglas E. Grover, with him on the brief) (Grover & Bloch, attorneys), for defendant-appellant Eckhaus.

Ann P. Wyllie, of counsel (Mark Dwyer, with her on the brief) (Robert M. Morgenthau, attorney), for defendants-appellants Morgenthau, Mechmann and Mass.

Alexander J. Wulwick, of counsel (Bonita E. Zelman, attorney), for plaintiffs-respondents.

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER and KUPFERMAN, JJ.

JOSEPH H. SULLIVAN, Justice.

In October, 1987, defendant Melvin Eckhaus, an employee of United Brotherhood of Carpenters and Joiners of America, Local 135 (Local 135), and a delegate of the Local to the District Council, was arrested for accepting a bribe from a contractor. Thereafter, in exchange for an agreement "voiding" his arrest, Eckhaus became a paid informer for the New York County District Attorney's office in an investigation into corruption in the construction industry. He was "wired" with a recording device and, over approximately an eighteen-month period, recorded his conversations with, among others, plaintiff Antonio Rodrigues, president of plaintiff Inner City Drywall Corporation, a minority contractor employing some 400 workers. In July 1989, Rodrigues and the corporation were indicted on charges that they had bribed Eckhaus and for related offenses. At that time Inner City had several contracts with the City of New York for construction and drywall installation at several city-owned sites. Following Rodrigues' arrest, these contracts were terminated. On December 21, 1989, the indictment was dismissed on the District Attorney's own motion; the case was never re-presented.

Meanwhile, beginning on or about November 30, 1989, in connection with a separate investigation into plaintiffs' financial affairs, including the nonpayment and nonfiling of corporate income tax returns, fraud with respect to union benefit funds, and conspiracy to avoid payment and collection of city, state and federal income taxes, the District Attorney's office issued numerous grand jury subpoenas to Inner City's customers, suppliers and business contacts. Although the subpoenas were made returnable before the grand jury at 100 Centre Street, at the time of their issuance and until the commencement of this action no grand jury had been convened to hear evidence against plaintiffs, and when the witnesses responded to the subpoenas they were directed to the District Attorney's office where they allegedly gave deposition-type statements. On June 19, 1990, two of these subpoenas became the subject of a motion to quash in the Supreme Court, New York County. That motion was denied (John A.K. Bradley, J.).

On or about June 23, 1990, plaintiffs commenced this action against, inter alia, District Attorney Morgenthau and assistant district attorneys Mechmann and Mass (the prosecutor defendants), District Council of New York City and vicinity United Brotherhood of Carpenters and Joiners of America (District Council), Local 135 and Eckhaus. The complaint alleged causes of action for false arrest, malicious prosecution, abuse of process, dissemination of false information, civil rights violations, negligence and negligent supervision on the part of the District Attorney, and breach of and conspiracy to induce a breach of the union contracts, plaintiffs alleging that the prosecutor defendants, through Eckhaus, engaged in an extortion scheme to harass and destroy them and that said defendants' conduct has brought them to financial ruin. All of these causes of action are asserted against the background of a claim, never pleaded in the complaint, however, that the indictment was procured for political reasons. Several defendants, including the prosecutor defendants and Eckhaus, moved to dismiss the complaint pursuant to, inter alia, CPLR 3211(a)(7); plaintiffs cross-moved to amend the complaint.

Finding that plaintiffs were entitled to amend the complaint without leave of the court, the IAS court deemed the dismissal motions directed to the amended complaint and dismissed numerous causes of action, but found, with respect to the prosecutor defendants and Eckhaus, that the fifth cause of action stated a claim for civil rights violations in three respects, to which plaintiffs' civil rights claim was limited: the prosecutor defendants' alleged abuse of process based on the issuance of grand jury subpoenas; their alleged press leaks of false information; and their "investigative activities", including the extortion and entrapment of plaintiffs committed through Eckhaus, not taken in pursuit of the bribery indictment itself; that, in the absence of allegations of actual or special damages, the third cause of action against the prosecutor defendants for abuse of process must be dismissed, with leave to replead, and that the thirteenth cause of action states a claim for intentional interference with Inner City's collective bargaining agreement with the unions. The court held that since it was alleged that Eckhaus was a "paid informer" of the District Attorney's office he could be classified as an agent of that office. Even as a private individual, the court held, Eckhaus could be subject to liability under 42 U.S.C. § 1983, if, as alleged, he willfully participated in the prosecutor defendants' actions. The prosecutor defendants and Eckhaus appeal, arguing that the entire complaint should have been dismissed as against them. We affirm.

At the outset, we note, with respect to the IAS court's limitation of the civil rights cause of action to the three aforementioned aspects of the prosecutor defendants' actions "not taken in pursuit of the bribery indictment itself", that the amended verified complaint alleges that "[b]eginning on or about October 7, 1987 and continuously continuing thereafter for approximately 18 months," the prosecutor defendants "participated in and directed defendant ... Eckhaus ... in attempts to extort money payments as part and parcel of a plan and/or scheme to unlawfully entrap plaintiffs", that "[b]eginning in or about June of 1989 and continuing thereafter" the prosecutor defendants released to the media "false information calculated and designed to create an atmosphere hostile to the rights of plaintiffs", and that "[o]n or about November 30, 1989 and continuing thereafter" assistant District Attorney Mechmann was permitted by Morgenthau and Mass, "both of whom knew and/or reasonably should have known of [his] misuse of subpoena power," to issue numerous grand jury subpoenas against plaintiffs at a time when no grand jury had been convened to hear evidence against plaintiffs.

The prosecutor defendants argue, initially, that the civil rights cause of action is insufficient since it is set in broad, conclusory terms and, with the exception of the issuance of grand jury subpoenas by Mechmann, fails to point to any individual conduct on their part. In our view, however, these allegations sufficiently specify both the conduct on which the cause of action is based and defendants' personal involvement. (See, McKinnon v. Patterson, 568 F.2d 930, 934 [2d Cir.1977], cert denied 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792; see also, Heller v. Plave, 743 F.Supp. 1553, 1566 [S.D.Fla.1990], quoting Greason v. Kemp, 891 F.2d 829, 836 [11th Cir.1990] [A supervisor can be held liable for civil rights violations where his "conduct is causally related to the constitutional violation committed by his subordinate."].)

While a claim of entrapment is not sufficient to state a civil rights cause of action under 42 U.S.C. § 1983 since entrapment does not violate a constitutional right (see, Johnston v. Nat'l Broadcasting Co., Inc., 356 F.Supp. 904, 908 [D.C.N.Y.1973]; see, also, Jones v. Bombeck, 375 F.2d 737, 738 [3rd Cir.1967]; the allegations of entrapment here must not be viewed in isolation but in the context of the other allegations of tortious conduct, which, taken as a whole, if proven, would establish a pattern of "systematic and intentional harassment" by government officials aimed at injuring plaintiffs' business. (Chalfy v. Turoff, 804 F.2d 20, 23 [2d Cir.1986].) This is a cognizable wrong under section 1983. (Id.; see also, Manti v. New York City Transit Authority, 165 A.D.2d 373, 378, 568 N.Y.S.2d 16.)

Similarly, the allegations of press leaks, arguably insufficient in themselves to serve as the basis for a section 1983 claim, are significant when viewed as part of this alleged pattern. Thus, in alleging the prosecutor defendants' attempts at extortion and entrapment, the issuance of numerous grand jury subpoenas without any legal basis therefor, and the leaks to the media of false information, "calculated and designed to create an atmosphere hostile to" plaintiffs' rights, all of which, allegedly, were intended to and did cause injury to their business, plaintiffs have set forth a due process deprivation of property and therefore a claim for federal civil rights relief. (See, Espanola Way Corp. v. Meyerson, 690 F.2d 827 [11th Cir.1982], cert den, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 791.)

The prosecutor defendants argue that they are entitled to absolute immunity with respect to the claim for abuse of process as a section 1983 violation. We disagree. "The entitlement of a prosecutor to absolute immunity from a claim for damages against him in his individual capacity on account of his official actions depends principally on the nature of the function performed, not on the office itself." (Ying Jing Gan v. The City of New York, 996 F.2d 522, 530 [2d Cir.1993].) Where the prosecutorial activities are ...