Conway v. Village of Mount Kisco, N.Y.

• Decision Date: 11 December 1984
• Docket Number: D,No. 91,91
• Citation: 750 F.2d 205
• Parties: Lynn H. CONWAY, Appellant, v. The VILLAGE OF MOUNT KISCO, NEW YORK: Vincent Cerbone as Justice of the Village Court, Village of Mount Kisco, New York; Detective Larry McKinsey, Officer of the Village of Mount Kisco Police Department, Defendants, and Bano Buick, Inc.; Alfred Martabano, individually and as an officer of Bano Buick, Inc.; and Alfred V. Martabano, individually and as an officer of Bano Buick, Inc., Appellees. ocket 83-7318.
• Court: U.S. Court of Appeals — Second Circuit

Page 205

750 F.2d 205

40 Fed.R.Serv.2d 1174

Lynn H. CONWAY, Appellant, v. The VILLAGE OF MOUNT KISCO, NEW YORK: Vincent Cerbone as Justice of the Village Court, Village of Mount Kisco, New York; Detective Larry McKinsey, Officer of the Village of Mount Kisco Police Department, Defendants and Bano Buick, Inc.; Alfred Martabano, individually and as an officer of Bano Buick, Inc.; and Alfred V Martabano, individually and as an officer of Bano Buick, Inc., Appellees.

No. 91, Docket 83-7318.

United States Court of Appeals, Second Circuit.

Argued Oct. 18, 1984.

Decided Dec. 11, 1984.

Lynn H. Conway, Pro Se.

George J. Calcagnini, Calcagnini & Lichtenstein, Mount Kisco, N.Y., for appellees Bano Buick, Inc., Alfred Martabano, and Alfred V. Martabano.

Before OAKES and WINTER, Circuit Judges, and CLARIE, District Judge. ^*

OAKES, Circuit Judge:

Lynn Conway, pro se, appeals from a judgment of the Southern District of New York, Mary Johnson Lowe, Judge, dismissing her complaint alleging causes of action under 42 U.S.C. Secs. 1983, 1985 (1982). The case arises out of a prosecution of Ms. Conway initiated by an automobile dealer for issuing a bad check in violation of N.Y. Penal Law Sec. 190.05 (McKinney 1975), ¹ for purposes of paying a repair bill. Ms. Conway's complaint advances claims in the nature of those for arrest without probable cause, false imprisonment, malicious prosecution, and conspiracy. She complains that the defendants initiated and maintained a prosecution against her even though aware that her check had been dishonored not for lack of sufficient funds, but because she had ordered her bank to stop payment on the check.

FACTS

The complaint named as defendants Bano Buick, Inc. ("Bano Buick"), a New York corporation doing business as an auto dealer; Alfred Martabano and Alfred V. Martabano ("the Martabanos"), president and vice president of Bano Buick, and father and son, respectively; Vincent Cerbone, the attorney for Bano Buick and, during the relevant time period, concurrently a justice of the Village of Mount Kisco; Larry McKinsey, a detective in the Mount Kisco police department, who arrested Ms. Conway; and the Village of Mount Kisco. From the record, the affidavits, and the exhibits attached thereto, including a portion of the transcript of the deposition of defendant Alfred V. Martabano, the following facts appear.

On or about April 15, 1977, Ms. Conway brought a 1973 Opel that she and her husband owned to Bano Buick for repair work in connection with the engine. Evidently, there was a dispute as to whether Bano Buick was to obtain Mr. Conway's prior approval concerning a replacement engine; in any event, a replacement engine was installed. ² After some discussion ³ Ms. Conway drew a check dated May 10, 1977, in the amount of $431.34 on the Conways' joint account at Dry Dock Savings Bank.

Evidently, when the automobile stalled and coughed on its way to her house, she went the next morning to the bank and stopped payment on the check.

Bano Buick subsequently received an advice from its bank, Bankers Trust Co., dated May 18, 1977, that Ms. Conway's $431.34 check had been unpaid by reason of "insufficient" funds. According to the senior Martabano's affidavit, Bano Buick then made unsuccessful attempts to contact Ms. Conway by telephone on seven separate occasions between May 31 and June 21, 1977, at which point the junior Martabano discussed the matter with Bano Buick's attorney, Vincent Cerbone, who advised that the issuance of a bad check constituted a violation of New York criminal law. ⁴ His affidavit further states that, on advice of counsel, Bano Buick contacted the police department of the Village of Mount Kisco, and it was not until June 30, 1977, that Ms. Conway was arrested and charged with issuing a bad check.

Ms. Conway's affidavit, on the other hand, states that the reverse side of the check shows quite clearly the "stop payment" disposition by the bank, and that furthermore the face of the check shows the word "stop." Attached to her affidavit is a copy of an undated letter from Dry Dock Savings Bank to her husband, Jeffrey Conway, stating that the bank's advice to him of May 25, 1977, should have been marked "payment stopped" instead of "insufficient" funds. Here we note that Ms. Conway makes the point in her brief, not made in her affidavit, that she expressly told the Martabanos that the check was not a problem of insufficient funds but a matter of stopped payment, and that the bank had erroneously marked the check "insufficient funds" and would verify that matter. ⁵ Nor does her affidavit include her current claim that when the Martabanos put the check through the bank a second time, the bank again returned it sometime after May 26, this time correctly marked "stop payment." Finally, her affidavit does not include her current claim that while her husband attempted to settle the matter with the Martabanos, the Martabanos attempted to collect the original debt, among other ways, by having her called late at night (11:00 p.m. on June 28, 1977), by Detective McKinsey, who threatened her with arrest. ⁶

Notwithstanding the deficiencies in Ms. Conway's affidavit, her allegations are supplemented by the deposition testimony of the defendants. For example, it appears from the deposition of Alfred V. Martabano that the Martabanos consulted Vincent Cerbone after they had received the second advice indicating that the check had been dishonored because of the stop payment order, and that the second advice was shown to Attorney/Justice Cerbone. Alfred V. Martabano testified that Cerbone told him that the first return notice for insufficient funds "is a criminal whatever" and that "the second had no bearing upon it, because it is an action after the fact." He also told Martabano to take the check to the police department, which Martabano did, giving it to Detective McKinsey.

Beyond this, when the district court granted summary judgment in the defendant's favor, it noted that Conway's affidavit "includes no facts which would demonstrate that she tried to resolve or explain the matter to defendants." Her affidavit states, however, that the check facially indicated that payment had been stopped, as It is undisputed that on June 30, 1977, Ms. Conway was arrested pursuant to an arrest warrant obtained from an acting village justice by Detective McKinsey on Alfred V. Martabano's complaint. Allegedly the detective but not the subscribing village justice had knowledge both of the correct reason that the check had been returned and of the bank's acknowledgment of its error. Ms. Conway also alleges that she was then imprisoned and detained at the Mount Kisco Village police station for some seven hours prior to being arraigned; and that, despite repeated demands and requests, the defendants refused to dismiss the complaint or subsequently to commence a jury trial. Eventually, the complaint was dismissed, with the consent of the district attorney. The senior Martabano's affidavit states, however, that while the criminal charge was dismissed on September 20, 1979, dismissal was not on the merits but rather, with the consent of the district attorney, "in the interests of justice due to the delay in prosecution." The docket entries in the village court, appearing in the record in uncertificated form (incorporated in Vincent Cerbone's affidavit seeking attorney's fees against Ms. Conway in the district court, incorporated in our record), show that an assistant district attorney appeared in court on August 30, 1979, before Justice Joseph Cerbone, who is apparently the brother of Vincent T. Cerbone, and made a motion to withdraw the charge pending against Ms. Conway, even though the docket entry of August 16, 1979, shows that Joseph Cerbone had disqualified himself from the case. The argument on August 30 by the assistant district attorney, according to the docket entry, was that the "time period has passed and makes [sic ] it extremely difficult to prepare for any kind of case." Justice Joseph Cerbone denied the motion. Finally, on September 20, 1979, the docket entry shows that "People move to withdraw the charge (Lynn Farrell, ADA) due to the period of time that has elapsed (not on the merits)." The person who inserted the parenthetical words "not on the merits" is not identified, but Vincent Cerbone does state in his affidavit that "[a]lthough I disqualified myself from acting on this case for the reasons stated in the attached decision dated 7 March 1978 (Exhibit D) [alluding to his prior representation of Bano Buick], I nonetheless decided the motion to dismiss the accusatory instrument because at the time, I was the only available town justice." The appropriateness of the docket entry parenthetical "not on the merits" is thus highly debatable, since it was made before a judge who not only had been counsel for the On January 15, 1980, Ms. Conway commenced an action in the Supreme Court of the State of New York, Westchester County, against the Martabanos, Bano Buick, Vincent Cerbone, Detective McKinsey, the Police Department of Mount Kisco, and the Village of Mount Kisco, seeking damages for assault, false arrest, and malicious prosecution. By order dated July 23, 1982, the court granted Detective McKinsey's motion for summary judgment relying upon his defense of quasi-judicial immunity and by order dated July 30, 1982, also granted his motion to dismiss for lack of jurisdiction due to improper service of summons. On May 14, 1982, the Appellate Division, Second Department, granted the Village of Mount Kisco's motion to dismiss for failure to serve a proper notice of claim. ⁸ Conway v. Bano Buick, Inc., 88 A.D.2d 609, 450 N.Y.S.2d 56 (1982).

                did the reverse of the check.  It also states that before the Martabanos initiated their private criminal complaint, they were in possession of knowledge that payment had been stopped on the check and that the original advice indicating insufficient

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