Barkai v. Nuendorf
| Decision Date | 29 March 2023 |
| Docket Number | 21-CV-4060 (KMK) |
| Parties | ARIEL DAN BARKAI, Plaintiff, v. DETECTIVE ROBERT NUENDORF, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Ariel D. Barkai Weston, FL Pro Se Plaintiff
Darius P. Chafizadeh, Esq. Mathew T. Dudley, Esq. Harris Beach PLLC White Plains, NY Counsel for Defendants Robert Nuendorf, Tom Walsh, Lou Falco, Captain Descalsis, Sheriff's Deputy Leonard, John Scanlon, Rockland County Sheriff's Department, County of Rockland, and Other Unnamed John Doe Employees RCDAO
John M. Flannery, Esq. Eliza M. Scheibel, Esq. Wilson Elser Moskowitz Edelman & Dicker LLP White Plains, NY Counsel for Defendants Anthony Culianos, Ray McCaullugh, Jeff Wannamaker, Lt. Cummings, and G. Hoehmann
Plaintiff Ariel Dan Barkai (“Plaintiff”), proceeding pro se, brings this Action pursuant to 42 U.S.C. § 1983 (“§ 1983”), against the Rockland County District Attorney's Office (“RCDAO”) Detective Robert Nuendorf (“Neuendorf”),[1]Rockland County District Attorney Tom Walsh (“Walsh”), Other Unnamed John Doe Employees at RCDAO (“RCDAO John Does”; collectively with Neuendorf and Walsh, “RCDAO Defendants”) Rockland County Sheriff's Department (“RCSD”), RCSD Sheriff Lou Falco (“Falco”), RCSD Sheriff's Deputy Leonard (“Leonard”), RCSD Captain Descalsis (“DeColyse”),[2] RSCD Detective John Scanlon (“Scanlon”), County of Rockland (“Rockland County”; collectively with RCSD, Falco, Leonard DeColyse, and Scanlon, “RCSD Defendants”; collectively with RCDAO Defendants, “Rockland Defendants”), Clarkstown Police Department (“CPD”) Police Officer (“PO”) Anthony Culianos (“Culianos”), CPD Chief of Police Ray McCallugh (“McCallugh”), CPD Captain Jeff Wannamaker (“Wannamaker”), CPD Lieutenant Glenn Cummings (“Cummings”), Clarkstown Town Supervisor George Hoehmann (“Hoehmann”; collectively with Culianos, McCallugh, Wannamaker, and Cummings, “Clarkstown Defendants”), CPD Dispatcher Monihan (“Monihan”), CPD Officer Donnegan (“Donnegan”; collectively with Monihan, “Other Clarkstown Defendants”), Montefiore Nyack Hospital (“MNH”), MNH CEO Mark Geller (“Geller”), MNH Head of Patient Services Kristin DeLorenzo (“DeLorenzo”), MNH Head of Security Jim Hastings (“Hastings”), MNH Nurse Tom Nguyen (“Nguyen”; collectively with MNH, Geller, DeLorenzo, and Hastings, “MNH Defendants”), Orangetown Police Department (“OPD”), OPD Chief of Police Donald Butterworth (“Butterworth”), OPD Detective Sergeant Anthony Palazolo (“Palazolo”), OPD Detective Dan Ryan (“Ryan”), and OPD Officer Ben Gorcynzski (“Gorcynzski”; collectively with OPD, Palazolo, and Ryan, “OPD Defendants”), alleging that Defendants violated his constitutional rights by, inter alia, maliciously prosecuting Plaintiff for harassment, detaining Plaintiff for a mental health evaluation pursuant to N.Y. Mental Hygiene Law § 9.41, and subsequently arresting Plaintiff for an alleged threat upon the RCDAO. (See generally Am. Comp. (“FAC”) (Dkt. No. 78).)[3],[4] Before the Court are two motions to dismiss: (1) Clarkstown Defendants' Motion to Dismiss; and (2) Rockland Defendants' Motion to Dismiss. [5]For the foregoing reasons, the Clarkstown Defendants' Motion To Dismiss is granted in part and denied in part, and the Rockland Defendants' Motion To Dismiss is granted.
The following facts are drawn from Plaintiff's Amended Complaints and associated filings are assumed to be true for the purpose of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam).[6]
1. Orangetown Police Department Harassment Charges
On January 27, 2020, Plaintiff's mother passed away at MNH. (FAC 1.) Plaintiff alleges that, at some time after his mother's death, Plaintiff went to MNH to obtain his mother's medical records. (Id. at 6.) At the time, Plaintiff spoke with Hastings and DeLorenzo who indicated that they were interested in launching an internal investigation about Plaintiff's mother's death. (Id.) Plaintiff alleges that he “exchanged several emails with DeLorenzo and she called [him] several times,” alleging that he sent DeLorenzo a total of eleven emails. (Id.; see also id. at 17 ( ).) On February 18, 2020, DeLorenzo filed a criminal complaint for harassment in the second degree against Plaintiff in which she alleged that Plaintiff “sent her ‘11 emails which served no legitimate purpose other than to cause annoyance and alarm and [that] were outside the scope of her professional duty.'” (Id. at 6 (emphasis omitted); see also id. at 19.) Plaintiff alleges that Gorcynzski at OPD took DeLorenzo's complaint. (Id. at 19.) Plaintiff alleges that DeLorenzo “act[ed] in full knowledge of CEO Mark Geller” when she knowingly lied about the harassment allegations, which Plaintiff alleges was an act of First Amendment retaliation and a violation of due process through malicious prosecution. (Id. at 18.) Finally, Plaintiff alleges that he sent “a few more emails to DeLorenzo” on February 28, 2020, after Hastings sent a cease-and-desist letter to Plaintiff. (Id. at 19.) However, Plaintiff alleges that, because he was travelling in Israel, he did not receive the letter until it was emailed to him by another hospital employee on February 28, 2020. (Id. at 19-20.)[7]
On or around March 7, 2020, Plaintiff raised his complaints regarding his mother's death to Geller, who Plaintiff alleges passed the complaints to Nguyen, a nurse involved in his mother's care. (Id. at 6, 20.) Nguyen then also filed a criminal complaint for harassment against Plaintiff on March 10, 2020. (Id. at 6, 8.) Plaintiff alleges that Nguyen “lied to the police saying that [Plaintiff] sent 22 emails that served no legitimate purpose but to cause annoyance and alarm,” and that Nguyen also “lied claiming that [Plaintiff] called [Nguyen's] unit on a day he was scheduled to work and made further harassing comments about [Nguyen].” (Id. at 6 (quotation marks omitted).) Plaintiff alleges that, “after the night [his] mom died, at no time did [Plaintiff] ever attempt to contact or communicate with Nguyen in any way.” (Id. at 7; see also id. at 20.) However, Plaintiff admits to looking at Nguyen's professional page on LinkedIn, which Nguyen “later claimed he found . . . threatening.” (Id. at 7.) Plaintiff alleges that Nguyen “filed these charges . . . to retaliate against [Plaintiff] in violation of New York State Law.” (Id.)
On April 8, 2020, Plaintiff was contacted via email by OPD Detective Ryan who informed Plaintiff that he was being charged with harassment and was subject to a restraining order. (Id. at 22.) Plaintiff alleges that OPD and the RCDAO “engaged in a malicious prosecution against” him by pursuing the two charges of harassment. (Id. at 7.) Specifically, Plaintiff alleges that OPD “advanced fraudulent harassment charges” without investigation or probable cause, because OPD allegedly never read the fraudulent emails underlying the harassment claims. (Id.)[8]Plaintiff alleges that he met with Butterworth and Palazolo on or about June 10, 2020, who both “admitted they never read the emails and now that they had[,] . . . they did not constitute harassment.” (Id. at 7; see also id. at 22.) Plaintiff alleges that after this meeting, OPD “alerted the RCDAO that they no longer support the charges having finally read the emails,” however RCDAO “refused to drop the charges in violation of the rules of the Court of the State of NY 3.8(a) Special Rules for Prosecutors regarding probable cause.” (Id. at 9.) The two charges of harassment in the second degree were dismissed at Plaintiff's arraignment on or about August 11, 2020. (Id. at 10, 23; see also Pl's Rockland Opp. Ex. C at 1-2 (Dkt. No. 151-3) (certificates of disposition); Pl's Rockland Opp. Ex. D at 1 (Dkt. No. 151-4) ().) Plaintiff alleges that RCDAO should have ensured that OPD had “done a simple investigation by reading the emails and getting [his] side of the story as they are lawfully obligated to do” and, had RCDAO done this, charges would not have been brought. (Id. at 9.)
Plaintiff alleges that, “[b]y taking sides in a civil dispute and charging [Plaintiff] criminally with zero probable cause and refusing to drop the charges in spite of the fact that he knew [Plaintiff] was being denied an [Small Business Administration Economic Injury Disaster Loan] [Plaintiff] desperately needed from the CARES Act, . . . Walsh violated his oath by showing favor and affection to [MNH] and failed to treat [Plaintiff] and [his] family fairly and with dignity.” (Id. at 9 (quotation marks omitted); see also id. at 23.) Plaintiff also alleges that, on or about August 31, 2020, his CARES Act loan was indeed funded. (Compl. 14 (Dkt. No. 2) (“[M]y EIDL loan was finally funded; the same loan denied me by the false charges . . . Walsh maliciously prosecuted on.”).)
2. Clarkstown Police Department Mental Hygiene Law Seizure
On August 21, 2020, Plaintiff alleges that he had a conversation with Detective Neuendorf where Neuendorf stated that “he was the only person in the DA's office with whom [Plaintiff] should speak.” (Compl 9.)[9]On this call, Plaintiff alleges that Neuendorf told Plaintiff that [10]Plaintiff alleges that...
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