346 F.Supp.2d 430 (S.D.N.Y. 2004), 02 Civ. 9802, Higazy v. Millennium Hotel and Resorts

Docket Nº:02 CIV. 9802NRB.
Citation:346 F.Supp.2d 430
Party Name:Abdallah HIGAZY, Plaintiff, v. MILLENNIUM HOTEL AND RESORTS, CDL (New York) L.L.C., the Hilton Hotels Corporation, Ronald Ferry, Stuart Yule, and FBI Agent Michael Templeton, Defendants.
Case Date:September 30, 2004
Court:United States District Courts, 2nd Circuit, Southern District of New York

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346 F.Supp.2d 430 (S.D.N.Y. 2004)

Abdallah HIGAZY, Plaintiff,


MILLENNIUM HOTEL AND RESORTS, CDL (New York) L.L.C., the Hilton Hotels Corporation, Ronald Ferry, Stuart Yule, and FBI Agent Michael Templeton, Defendants.

No. 02 CIV. 9802NRB.

United States District Court, S.D. New York.

Sept. 30, 2004

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Earl S. Ward, Esq., Robert S. Dunn, Esq., New York, NY, for Plaintiff.

Sean Lane, Esq., Heather K. McShain, Esq., United States Attorney's Office, New York, NY, for Defendant Templeton.

E. Gordon Haesloop, Esq., Neil Mascolo, Esq., Bartlett, McDonough, Bastone & Monaghan, LLP, Mineola, NY, for Defendants Millennium, Hilton and Yule.

Kevin G. Faley, Esq., Morris Duffy Alonso & Faley, New York, NY, for Defendant Ferry.


BUCHWALD, District Judge.

On December 17, 2001, the FBI arrested Abdallah Higazy, the plaintiff in this action ("Higazy" or "plaintiff"), as a material witness suspected by the Government of having involvement in or knowledge of the September 11, 2001 attacks on the World Trade Center. These suspicions were founded in large measure on a statement to the FBI by a hotel security guard that a radio bearing a resemblance to a walkie-talkie, along with an Egyptian passport and a Koran, were found locked in a safe in a hotel room adjacent to the site of the attacks. The room had been occupied by Higazy, who had vacated the hotel, along with its other guests, on September 11, 2001. Higazy was ordered detained without bail on December 18, 2001, a status that was renewed ten days later. On January 11, 2002, the Government filed criminal charges against Higazy accusing him of falsely denying ownership or possession or knowledge of the radio. Four days later, the device's true owner--a pilot--came forward. The criminal complaint was promptly dismissed, Higazy was released from his month-long custody, and the security guard was indicted for his false report.

Several claims against the various defendants arise from these events. Through an amended complaint, Higazy alleges that the actions of FBI Special Agent Michael Templeton ("Templeton") violated his Fourth, Fifth and Sixth Amendment rights. Additionally, Higazy's amended complaint includes claims against Millennium Hotel ("Millennium"), the hotel located across from the attack site where Higazy had been staying and where the communications device initially connected to Higazy was found; Millennium's corporate owner, CDL (New York) L.L.C. ("CDL"); Millennium's operator, Hilton Hotels Corp. ("Hilton"); Stuart Yule ("Yule"), Millennium's chief security officer throughout the time relevant to this action; and Ronald Ferry ("Ferry"), a Millennium security employee during the time relevant to this action. Higazy accuses Yule, Ferry, Millennium, Hilton and CDL of false arrest and false imprisonment, malicious prosecution, and intentional infliction of emotional distress. Relatedly, Higazy claims negligent hiring, retention, training and supervision, as well as ordinary negligence, on the part of Millennium, Hilton and CDL.

Each of the defendants except for Ferry-

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1 now moves for summary judgment pursuant to Fed.R.Civ.P. 56. Specifically, there are two summary judgment motions before the Court--one from Agent Templeton, and the other from Millennium, Hilton, CDL and Yule (collectively, the "Hotel defendants" or the "Hotel"). For the reasons that follow, we grant Templeton's motion and the Hotel defendants' motion with the exception of defendant Yule's motion, which we grant in part and deny in part. 2


Except where noted, the following factual background is endorsed by the plaintiff and undisputed by Agent Templeton and the Hotel defendants for purposes of this motion only. 3

A. The Retrieval of a Communications Device From the Millennium.

The Millennium Hotel is located across the street from the site of the former World Trade Center, and was evacuated and cordoned off shortly after the September 11, 2001 attacks, separating many Hotel guests from their personal belongings. Plaintiff was one of those guests. In either late September or early October, Yule and the other Hotel defendants instituted a plan for retrieving and inventorying guest property, which, inter alia, assigned the responsibility of opening locked room safes to security officer Ronald Ferry, a defendant in this action, and the responsibility of inventorying property found in the safes to another hotel employee, Christiana Franco. 4 As part of the process, Ferry and Franco were to place all property recovered from each room and room safe on the floor in the room ending in "01" on each of the hotel's fifty-five floors. On or about October 11, 2001, Ferry retrieved a radio during the sweep and told Yule that it was found in hotel room 5101, inaccurately referred to in the Hotel defendants'

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papers as 5501. 5

Ferry also told Yule that a passport, a yellow metal medallion and copy of the Koran were found with the radio in the room's safe. Yule went up to the room, and, according to an FBI report taken from Yule on January 2, 2002, when Ferry first presented the radio and passport to him, he did not find the objects suspicious and instructed Ferry to "store the device with the rest of the guest's belongings." Declaration of Earl S. Ward of July 7, 2004 ("Ward Decl. II"), Ex. E. But in late November, another hotel employee who was conducting a second inventory of guest property in a make-shift storage locker again brought the radio to Yule's attention. Together with the passport, Yule found the "circumstances to be more sinister" and therefore notified the FBI that he had found "something of interest they should see." Id. In the month and a half that lapsed between Ferry's notification to Yule and Yule's call to the FBI, Yule and Ferry did not have a conversation about the radio.

In late November or early December of 2001, following Yule's telephone call, Special Agents Vincent Sullivan and Christopher Bruno of the FBI went to the Millennium Hotel. Yule showed the agents an Egyptian passport and a radio that resembled a walkie-talkie, both of which, Yule explained, were recovered from a guest room when inventorying possessions of guests who were staying in the Hotel on the morning of September 11, 2001. The FBI later determined that the radio was an air-band transreceiver capable of air-to-air and air-to-ground communication.

B. Higazy is Detained as a Material Witness (12/17/01)

On December 17, 2001, plaintiff returned on his own initiative to the Hotel with an appointment to retrieve his belongings. The FBI, having previously been notified that Higazy would be visiting the hotel at this time, dispatched Special Agents Sullivan and Bruno as well as Special Agent Adam Suits to the Millennium. During a three hour interview with the agents, Higazy emphatically denied ownership of the radio. However, Higazy did eventually divulge his past service as a first lieutenant in the Egyptian Air Force and how, through this service, he acquired some familiarity with radio communications devices. See Declaration of Heather K. McShain ("McShain Decl."), Ex. E at 29-31.

At the same time as Higazy's interview, the FBI questioned defendant Ferry two times. Each time, Ferry said that he found the radio in Higazy's safe on top of a passport. Apparently armed with Ferry's reiterated claim, the agents re-questioned Higazy about the radio. Higazy again denied ownership. At the conclusion of the interview, the FBI detained Higazy as a material witness. 6

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That same day, shortly after Higazy's arrest, another FBI agent and a detective with the New York City Police Department began questioning Higazy. At first, Higazy indicated an interest in cooperating and speaking with the agents, waiving his right to an attorney by signing an advice of rights form. However, Higazy changed his mind and asked for an attorney after declining to sign a form stating that he did not want the Egyptian Consulate notified of his detention. The day's questioning evidently concluded upon this request.

C. Higazy's First Material Witness Proceeding (12/18/01)

Title 18 U.S.C. § 3144 provides that "[i]f it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may warrant the arrest of the person and treat the person in accordance with the provisions of section 3142 [of Title 18, which is the section concerning bail]." Section 3144 further provides that:

No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

On the evening of December 18, 2001, Higazy and his court appointed attorney, Robert Dunn, appeared before The Honorable Jed S. Rakoff of this Court. The hearing began with Judge Rakoff approving a material witness arrest warrant for Higazy based upon an affidavit of Special Agent Bruno testifying to Higazy's possible possession of information bearing on the September 11, 2001 attacks. The hearing then explored the issue of bail. In weighing the evidence assembled by the Government, Judge Rakoff considered the...

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