Cipolla v. County of Rensselaer

• Decision Date: 11 January 2001
• Docket Number: No. 99-CV-1813.,99-CV-1813.
• Parties: Victor J. CIPOLLA and Susan E. Martin, Plaintiffs, v. The COUNTY OF RENSSELAER, County of Rensselaer Executive's Office, Henry Zwack, individually and as County Executive for the County of Rensselaer, Joseph Cybulski, individually and as Deputy County Executive for the County of Rensselaer, Daniel Ehring, individually and as Deputy County Attorney for the County of Rensselaer, Jack Madden, individually and in his capacity as Stop DWI Coordinator for the County of Rensselaer, John Doe, an individual whose name is unknown to plaintiffs individually and in his capacity as an official of the County of Rensselaer, Jane Doe, an individual whose name is unknown to plaintiffs, individually and in her capacity as an official of the County of Rensselaer, and ABC Department, an office or department of the County of Rensselaer whose identity is unknown to the plaintiffs, Defendants.
• Court: U.S. District Court — Northern District of New York

129 F.Supp.2d 436

Victor J. CIPOLLA and Susan E. Martin, Plaintiffs, v. The COUNTY OF RENSSELAER, County of Rensselaer Executive's Office, Henry Zwack, individually and as County Executive for the County of Rensselaer, Joseph Cybulski, individually and as Deputy County Executive for the County of Rensselaer, Daniel Ehring, individually and as Deputy County Attorney for the County of Rensselaer, Jack Madden, individually and in his capacity as Stop DWI Coordinator

for the County of Rensselaer, John Doe, an individual whose name is unknown to plaintiffs individually and in his capacity as an official of the County of Rensselaer, Jane Doe, an individual whose name is unknown to plaintiffs, individually and in her capacity as an official of the County of Rensselaer, and ABC Department, an office or department of the County of Rensselaer whose identity is unknown to the plaintiffs, Defendants.

No. 99-CV-1813.

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

January 11, 2001.

COPYRIGHT MATERIAL OMITTED

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Joseph R. DeMatteo, New York, NY, Jeffrey L. Bernfeld, New York, NY, for Plaintiffs.

Dreyer Boyajian LLP, Albany, NY, for Defendants, William J. Dreyer, Daniel J. Stewart, Of Counsel.

MEMORANDUM—DECISION & ORDER

McAVOY, District Judge.

Presently before the Court is Plaintiffs' motion for reconsideration pursuant to FED. R. CIV. P. 59(e) of this Court's September 14, 2000 Memorandum-Decision & Order, Cipolla v. County of Rensselaer, 113 F.Supp.2d 305 (N.D.N.Y.2000). Defendants argue that the motion for reconsideration is untimely because it was filed more than ten (10) days after entry of judgment in violation of FED. R. CIV. P. 59(e) and Local Rule 7.1(g). See N.D.N.Y.L.R. 7.1(g). However, because Plaintiffs move for reconsideration of a final, dispositive, order the motion falls within FED. R. CIV. P. 60 rather than FED. R. CIV. P. 59(e). See, e.g., Alvarez v. American Airlines, Inc., 2000 WL 145746, at *1 (S.D.N.Y. Feb.8, 2000) (quoting 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 60.23 (3d ed.1999)). Because Rule 60(b) motions must be made within a "reasonable time," this motion is timely. See FED. R. CIV. P. 60(b).

Rule 60 "prescribes procedures by which a party may seek relief from a final judgment. Properly applied, the rule preserves a balance between serving the ends of justice and ensuring that litigation reaches an end within a finite period of time." Paddington Partners v. Bouchard, 34 F.3d 1132, 1144 (2d Cir.1994) (citing House v. Secretary of Health & Human Servs., 688 F.2d 7, 9 (2d Cir.1982)); see also Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986); Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970). Therefore, in deciding a Rule 60(b) motion "a court must balance the policy in favor of hearing a litigant's claims on the merits against the policy in favor of finality." Kotlicky v. United States Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir.1987). Since Rule 60(b) allows extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances, see Employers Mutual Casualty Co. v. Key Pharmaceuticals, 75 F.3d 815, 824-25 (2d Cir.1996), and is addressed to the sound discretion of the trial court.

It is well-settled that Rule 60(b) is not intended to substitute for a direct appeal from an erroneous judgment. See Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950); Matarese v. LeFevre, 801 F.2d 98, 106-07 (2d Cir. 1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987). Therefore, a district court may not vacate an order under Rule 60(b) where "[n]o additional claims are advanced" and where movants "simply argue on the same facts that there are `extraordinary circumstances' justifying the exercise of the district court's equitable powers." Cruickshank & Co. v. Dutchess Shipping Co., 805 F.2d 465, 469 (2d Cir.1986); see also Competex, S.A. v. LaBow, 783 F.2d 333, 335 (2d Cir.1986) ("Rule 60(b) is not a substitute for appeal. LaBow may not relitigate the bases for the enforcing judgment entered by Judge Werker."); Matura v. U.S., 189 F.R.D. 86, 90 (S.D.N.Y.1999).

Rule 60(b) authorizes the vacating of final judgments in six specific circumstances: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ...; (3) fraud..., misrepresentation, or other misconduct of an adverse party; (4)[if] the judgment is void; (5)[if] the judgment has been satisfied, released... or (6)[for] any other reason justifying release from the operation of the judgment." Plaintiffs' reconsideration motion cites to new evidence relevant to the Court's prior decision. Thus, both the interests of justice and judicial economy compel the Court to invoke its discretionary power to grant Plaintiffs' motion for reconsideration in part. The Court will reconsider its prior decision in light of the new evidence presented by Plaintiffs in support of their motion for reconsideration.¹ Accordingly the Court's September 14, 2000 is VACATED and SUPERSEDED in its entirety by the following decision.

I. Background

Plaintiffs Victor Cipolla and Susan Martin are former employees of Rensselaer County (the "County") whose claims arise out of their criminal prosecution for official misconduct.² Defendant Henry Zwack was the elected County Executive at the time of Plaintiffs' prosecution; Steve Madden and Joseph Cybulski were employees of the County;³ and Defendant Daniel Ehring was a Deputy County Attorney,⁴ who served as a contact between the County and the District Attorney's office throughout the investigation and prosecution. A brief outline of the events leading up to this prosecution follows.

Zwack was elected as County Executive in late 1995 and took office on January 1, 1996. Prior to his election, Zwack served on the County Legislature. During the period after Zwack's election, but prior to his taking office, the individual Defendants and Plaintiffs worked with the outgoing County Executive and administration to facilitate a smooth transition between administrations. Zwack wanted to make numerous organizational changes in the County government. Because the changes needed to be made while Zwack was a county legislator, they had to be signed by the outgoing County Executive.⁵ The outgoing County Executive made certain demands on Zwack, including the continued employment of five County employees, in exchange for his agreement to sign the organizational changes into law. One of these employees was Dirk Van Ort.

Because the changes Zwack made prior to taking office included elimination of Van Ort's position⁶ and the department from which that position was funded, it became necessary to find a new position for Van Ort. Zwack reassigned Van Ort to the Department of Emergency Services, run by David Cooke. Cooke objected to this placement and Zwack then assigned Van Ort to Cipolla's Department, BRIS. Although Cipolla objected to this placement, Zwack refused to reassign Van Ort.⁷

It does not appear that anyone was given any instructions regarding how to use Van Ort and Van Ort was given little, if any, job direction.⁸ Throughout 1996, Van Ort's County employment continued. He did not report to work at the County offices and was not assigned work by Plaintiffs or Defendants, but continued to submit time cards, which were signed by himself and, in some cases, Cipolla. During this period, Cipolla continued to sign payroll authorization sheets for Van Ort's work.⁹ At Martin's direction the payroll authorizations were processed, despite certain irregularities including Van Ort's submission of a number of time cards requesting back pay. Plaintiffs do not dispute the above facts. However, they allege that they signed and processed Van Ort's time cards and the related payroll authorization sheets under protest and pursuant to direct instructions from Zwack. See Cipolla Aff.; Martin Aff.

Plaintiffs allege that Zwack held several meetings, attended by all of the parties hereto with the exception of Ehring, to resolve the issue of Van Ort's back pay request at which they protested paying Van Ort any back pay.

Cipolla acknowledges that, technically speaking, he was Van Ort's supervisor. There is dispute as to who was responsible for actually supervising Van Ort and assigning him work. Plaintiffs allege that Zwack specifically told Cipolla not to contact Van Ort, that Madden was responsible for finding Van Ort work, and that Cipolla was instructed to sign Van Ort's time cards. Defendants, on the other hand, contend that Cipolla was in charge of finding Van Ort work and supervising him. In contrast to both of the above view points, Van Ort testified before the grand jury that Martin was his contact person who he expected to assign his work. See Van Ort Testimony, Sept. 3, 1997 Grand Jury Tr. at 73.

In 1996, Zwack agreed to place Van Ort on an early retirement list and Van Ort retired in December 1996. In late 1996, Zwack asked for Plaintiffs' resignations. In December 1996, Cipolla resigned. Martin refused and, thus, was terminated.

In or about February 1997, the news media began investigating and reporting a series of stories regarding the alleged improprieties committed by the Zwack administration. The stories included that of Van Ort, an alleged "no show employee." Public statements of some of the Defendants to the media indicated that Cipolla was responsible for supervising and finding work for Van Ort.

The County District Attorney's office convened a grand jury in 1997 to investigate allegations that Van Ort was a no show employee of the County. The grand jury heard testimony from Christina Mahoney, the County Director of Personnel as of April 28, 1997; Jennifer Fitzpatrick, the County employee in charge of inputting the County payroll in 1996; Manette Eddy, the Deputy Commissioner of BRIS in 1996; David Cooke, the County's Director of...