Carter v. INCORPORATED VILLAGE OF OCEAN BEACH

• Decision Date: 19 February 2010
• Docket Number: No. CV-07-1215 (SJF)(ETB).,CV-07-1215 (SJF)(ETB).
• Citation: 693 F. Supp.2d 203
• Parties: Edward CARTER, Frank Fiorillo, Kevin Lamm, Joseph Nofi, and Thomas Snyder, Plaintiffs, v. INCORPORATED VILLAGE OF OCEAN BEACH, Mayor Joseph C. Loeffler, Jr., individually and in his official capacity, Former Mayor Natalie K. Rogers, individually and in her official capacity, Ocean Beach Police Department, George B. Hesse, acting deputy police chief, individually and in his official capacity, Suffolk County, Suffolk County Police Department, Suffolk County Department of Civil Service, Alison Sanchez, individually and in her official capacity and Suffolk County District Attorney's Office, Defendants.
• Court: U.S. District Court — Eastern District of New York

693 F. Supp.2d 203

Edward CARTER, Frank Fiorillo, Kevin Lamm, Joseph Nofi, and Thomas Snyder, Plaintiffs, v. INCORPORATED VILLAGE OF OCEAN BEACH, Mayor Joseph C. Loeffler, Jr., individually and in his official capacity, Former Mayor Natalie K. Rogers, individually and in her official capacity, Ocean Beach Police Department, George B. Hesse, acting deputy police chief, individually and in his official capacity, Suffolk County, Suffolk County Police Department, Suffolk County Department of Civil Service, Alison Sanchez, individually and in her official capacity and Suffolk County District Attorney's Office, Defendants.

No. CV-07-1215 (SJF)(ETB).

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

February 19, 2010.

Andrew Scott Goodstadt, Douglas Holden Wigdor, Kenneth P. Thompson, Scott Browning Gilly, Ariel Yigal Graff, Cindy Eun Uh, Thompson, Wigdor & Gilly LLP, New York, NY, for Plaintiffs.

Kenneth A. Novikoff, Michael P. Welch, Rivkin Radler, LLP, Uniondale, NY, James Michael Skelly, Marks, Oneill, Obrien & Courtney, Elmsford, NY, William John Keahon, William J. Keahon, P.C., Islandia, NY, Arlene S. Zwilling, Rudolph Max Baptiste Hauppauge, NY, Rosalind C. Gray, Riverhead, NY, for Defendants.

OPINION & ORDER

FEUERSTEIN, District Judge.

On March 21, 2007, plaintiffs Edward Carter, Frank Fiorillo, Kevin Lamm, Joseph Nofi and Thomas Snyder (collectively, "plaintiffs") commenced this action against defendants Incorporated Village of Ocean Beach, Mayor Joseph C. Loeffler, Jr., former Mayor Natalie K. Rogers and Ocean Beach Police Department (collectively, "the Ocean Beach defendants")¹; George B. Hesse ("Hesse"); Suffolk County, Suffolk County Police Department, Suffolk County Department of Civil Service and Alison Sanchez (collectively, "the County defendants"); and the Suffolk County District Attorney's Office, pursuant to, inter alia, 42 U.S.C. §§ 1983 and 1985, asserting claims for retaliation in violation of the First Amendment and New York Constitution and violation of plaintiffs' due process² rights, as well as state law claims for violation of New York Civil Service Law § 75-b; defamation per se; negligent retention of an unfit employee; civil conspiracy; and tortious interference with a business relationship.

Defendants now move, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), for summary judgment dismissing the complaint. For the reasons set forth herein, defendants' motions are granted in part and denied in part.

I. BACKGROUND

A. Factual Background³

Plaintiffs are former seasonal and/or part-time police officers previously employed by the Ocean Beach defendants.⁴ Plaintiffs worked during the summer season, which commenced two (2) weeks prior to Memorial Day and continued until two (2) weeks after Labor Day, as well as part-time throughout the off-season during the years 2002 through 2006.

Plaintiffs allege that beginning in May 2002, Hesse⁵ hired police officers who had not been certified by the Civil Service Department of Suffolk County; hired civilians as police dispatchers; permitted police officers to drink alcoholic beverages while on duty; and instructed other officers to chauffeur intoxicated officers and their civilian friends. According to plaintiffs, they each complained to Hesse on numerous occasions that the Village of Ocean Beach ("the Village") and the Ocean Beach Police Department ("OBPD") were left dangerously short of personnel when officers were permitted to drink on duty and in their vehicles and when other officers were assigned to chauffeur them around, but Hesse ignored their complaints. In addition, plaintiffs allege that they complained to Hesse that the retention of uncertified officers posed a constant threat to the public's and their own safety. Plaintiffs allege that the Suffolk County Police Department (SCPD) endangered public safety by allowing certain of the uncertified officers to obtain firearms certifications without possessing pistol permits and receiving proper training.

On or before January 18, 2006, Hesse was designated as the acting police chief of the OBPD following the withdrawal from active duty of Paradiso.

Plaintiff Edward Carter ("Carter") last worked for the Ocean Beach defendants on February 8, 2006. Plaintiff Frank Fiorillo ("Fiorillo") last worked for the Ocean Beach defendants on October 1, 2006. Plaintiff Kevin Lamm ("Lamm") last worked for the Ocean Beach defendants on October 22, 2005. Plaintiff Joseph Nofi ("Nofi") last worked for the Ocean Beach defendants on January 2, 2006. Plaintiff Thomas Snyder ("Snyder") last worked for the Ocean Beach defendants on March 31, 2006. Plaintiffs allege, however, that their employment with the Ocean Beach defendants was not terminated until April 2, 2006, when Hesse informed them prior to the summer 2006 preseason meeting that their employment was being terminated.

Plaintiffs allege that during the April 2, 2006 meeting, Hesse made comments, inter alia, that they were "rats" and wore "wires" for the Suffolk County District Attorney investigating corruption and brutality in the OBPD. In addition, plaintiffs allege that Hesse made defamatory entries on an internet blog called The Schwartz Report.

On or about April 2, 2006, defendant Alison Sanchez ("Sanchez") was employed by defendant County of Suffolk ("the County") as a personnel analyst in the County's Civil Service Department. The functions of the Civil Service Department include, inter alia, monitoring compliance with the New York Civil Service Law by municipalities located within the geographical boundaries of the County, including the Village; administering written civil service examinations for police officer positions; and arranging for other qualifying examinations to be given to police officer candidates. Sanchez has never been employed by the Ocean Beach defendants.

In April 2006, Sanchez met with plaintiffs Fiorillo, Nofi and Lamm to discuss the Ocean Beach defendants' decision not to hire them for the summer 2006 season. Those plaintiffs informed Sanchez that they believed their employment was terminated by the Ocean Beach defendants in retaliation for their complaints regarding repeated instances of obstruction of justice, abuse of power and other unlawful conduct committed by, or at the direction of, Hesse. According to plaintiffs, Sanchez advised Fiorillo, Nofi and Lamm that Hesse acted lawfully and that they would not have recourse against him, and then she notified Hesse of their conversation with her, notwithstanding that she had promised to keep the conversation confidential.⁶ Sanchez denies ever promising those plaintiffs confidentiality.

In addition, plaintiffs allege that Hesse subsequently interfered with their attempts to obtain new employment by, inter alia, providing bad references and forwarding false information to potential employers.

B. Procedural History

On March 21, 2007, plaintiffs commenced this action against the Ocean Beach defendants, Hesse, the County defendants and the Suffolk County District Attorney's Office pursuant to, inter alia, 42 U.S.C. §§ 1983 and 1985, asserting claims for retaliation in violation of the First Amendment and New York Constitution and violation of plaintiffs' due process rights, as well as state law claims for violation of New York Civil Service Law § 75-b; defamation per se; negligent retention of an unfit employee; civil conspiracy; and tortious interference with a business relationship.⁷ Plaintiffs allege, inter alia, that their employment with the Ocean Beach defendants was unlawfully terminated in retaliation for their complaints of misconduct within the OBPD.

Defendants now move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment dismissing the complaint.

II. DISCUSSION

A. Standard of Review

Summary judgment should not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a summary judgment motion, the district court must first "determine whether there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotations and citations omitted); see Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (holding that "on a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts." (Emphasis added) (internal quotations and citation omitted)). "A fact is material if it `might affect the outcome of the suit under governing law.'" Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Ricci, 129 S.Ct. at 2677 (quoting Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

If the district court determines that there is a dispute as to a material fact, the court must then "resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment," Spinelli, 579 F.3d at 166 (internal quotations and citation omitted), to determine whether there is a genuine issue for trial. See Ricci, 129 S.Ct. at 2677. The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to "come forth with evidence sufficient to allow a reasonable jury to find in its favor." Spinelli, 579 F.3d at 166 (internal quotations and citation omitted). Thus, the...