D'AURIZIO v. Palisades Park

• Decision Date: 29 April 1997
• Docket Number: Civil No. 93-4417(JAG).
• Parties: Albert D'AURIZIO, Plaintiff, v. PALISADES PARK, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

963 F.Supp. 387

Albert D'AURIZIO, Plaintiff, v. PALISADES PARK, et al., Defendants.

Civil No. 93-4417(JAG).

United States District Court, D. New Jersey.

April 29, 1997.

Michael S. Kimm, Hackensack, NJ, for plaintiff.

Sinisi, Van Dam, Sproviero & Sokolich, Paramus, NJ, for James Nichols, Carmine Verdicchio.

OPINION

GREENAWAY, District Judge.

This matter comes before the Court on the motion to dismiss, or alternatively for summary judgment, of Sinisi, Van Dam, Sproviero & Sokolich, attorneys for defendants James Nichols and Carmine Verdicchio. Because both parties present extrinsic material, the Court will treat this motion as one for summary judgment, pursuant to Fed. R.Civ.P. 56.

PRELIMINARY STATEMENT

Plaintiff Albert D'Aurizio ("D'Aurizio"), and his wife Debbie, are members of a large and politically active family in the Borough of Palisades Park (the "Borough"). For years, the D'Aurizios participated in local Republican and school board politics. D'Aurizio's sister-in-law, Carol Killion (one of the defendants in this case), was president of the Palisades Park Board of Education (hereinafter, the "Board"). All of the defendants in this case are individuals D'Aurizio knows through his involvement in local politics; they include William Maresca, the Republican Mayor of the Borough between 1991 and November 1995, and various members of the Board and the Borough Council. In short, D'Aurizio's claims against the defendants stem from his belief that because he ran for a seat on the Council in 1991 as an independent, as opposed to a Republican candidate, the defendants — all, except for one, who are affiliated with the Republican party — participated in a conspiracy to fire him from his Board-appointed position as a school custodian. In addition, D'Aurizio claims that subsequent to the elimination of his custodial position in June 1992, defendants continued their conspiracy against him by ensuring that the Board did not place his name on the part-time custodial roster in December 1992, thereby precluding him from exercising his alleged right of first refusal.¹

FACTS

D'Aurizio's Candidacy

In April 1991, D'Aurizio, a former Republican, announced his candidacy as an independent candidate for a seat on the Council. In late May or early June 1991, the Board hired D'Aurizio as a part-time custodian. In August 1991, the Board decided, by vote, to make D'Aurizio a fill-time custodian. In November 1991, D'Aurizio ran for Council against the Republican ticket and lost. D'Aurizio's alleges that his campaign caused a division among the local Republicans. Amended Complaint ¶ 27.

1992-1993 School Budget

In approximately December 1991, the budget process for the Borough's 1992-1993 school year began. On February 4, 1992, the Board met to discuss preliminary cuts to the budget; these cuts included the elimination of one custodial position (a $30,000 cut) and two maintenance positions (a $60,000 cut). Sherwood Dep., at 174-75.² On March 17, 1992, the Board presented its 1992-1993 school budget — with the proposed cuts — at a public hearing. Eichenholtz Dep., at 247.³ On or about April 7, 1992, the Borough voters defeated the school budget. Killion Dep., at 586-87.⁴ As a result, on April 22 and April 26, 1992, the Board, the Mayor (Maresca) and the Council met to review the budget and to determine if they could make any other cuts.⁵ These were open meetings mandated by New Jersey State statute and recited in the Council's School Board Budget Resolution, passed on April 27, 1992 (hereinafter, the "April 27 Budget Resolution").

Conspiracy Meetings

D'Aurizio alleges that in addition to the two mandated meetings, members of the "Republican majority" from the Borough secretly met in April⁶, and again on June 9, 1992, to conspire to eliminate D'Aurizio's position as a school custodian, i.e., in retaliation for his 1991 independent candidacy for Council.⁷ Amended Complaint ¶ 32. Specifically, D'Aurizio claims that Michael DeBartolo⁸, the campaign manager for D'Aurizio's Republican opponent in the November 1991 election, stated at the secret meeting in April: "We're getting rid of Al D'Aurizio because he ran against us." Id. D'Aurizio adds that all the other Republican members of the Board tacitly agreed with DeBartolo's suggestion "by nodding, or other acts showing ratification of the conspiracy proposal." Id.

However, D'Aurizio testified at his deposition that his basis for believing that the defendants secretly met, both in April and in June, came only from alleged conversations he had with Carol Killion (his sister-in-law), see D'Aurizio Dep., at 127-28, and defendant Peter Marose, a Democratic member of the Board. Id. at 135-36. Indeed, D'Aurizio admitted at his deposition that other than what he could "surmise" from these two conversations, he had no other knowledge of the alleged secret meeting, which he believes occurred some time in April. Id. at 136 & 139-40. In addition, Ms. Killion stated at her deposition that the April meeting was "an open meeting and anyone could have come." Killion Dep., at 105-06. Moreover, when D'Aurizio was specifically questioned about his conversation with Ms. Killion regarding the alleged secret meeting in April, D'Aurizio responded: "I do not recall exactly how we found out from her Ms. Killion." D'Aurizio Dep., at 127-28.

Ms. Killion also admitted at her deposition that the June meeting was an open Republican meeting, held at the law offices of Rotolo & Rotolo, to discuss the vacant seat on the Board. Killion Dep., at 178-86. In addition, Ms. Killion testified that D'Aurizio's name was not even mentioned during this June meeting other than in a private, side conversation she (Ms. Killion) had with Mr. Albanese, the content of which was: "Paul, Paul Albanese, come on, this is my brother-in-law", to which Mr. Albanese allegedly responded "well, fire them all." Id. at 101.

D'Aurizio's Termination

On June 2, 1992, the Board informed D'Aurizio by letter that his job would be discussed at the June 9 meeting. D'Aurizio Dec. ¶ 21. On June 9, 1992, the Board voted to eliminate one custodian and two maintenance positions. In short, the Board officially terminated D'Aurizio's custodian job. Id.

Nichols and Verdicchio

In November 1992 — i.e., after D'Aurizio's termination in June 1992 — the Board appointed defendant James Nichols ("Nichols") to replace George Fasciano⁹ as the Palisades Park Superintendent of Schools (the "Superintendent"). Nichols Aff. ¶ 2.¹⁰ As Superintendent, Nichols' primary area of focus was the educational curriculum; he generally left responsibility for non-educational matters to the Business Administrator/Board Secretary.¹¹ Id. at ¶ 4. At no time did Nichols have either the power or the authority to place D'Aurizio's name on — or to keep him off — the Board's list of part-time custodial/maintenance employees. Id. at ¶ 6. D'Aurizio specifically refers to Nichols in only 2 of the total 108 paragraphs of his Amended Complaint. First, in paragraph 17, D'Aurizio provides Nichols' address and position as Superintendent and alleges that "Nichols ... conspired and acted in his official and individual capacities in violation of D'Aurizio's rights as more fully stated below." Second, in paragraph 72, D'Aurizio makes a number of other allegations including that:

Defendant James Nichols acted in furtherance of the conspiracy by following the lead of other defendants notwithstanding his knowledge as to the impropriety of such conduct. In addition, defendant James Nichols actively covered up, and otherwise failed to prevent, the conspiracy and wrongful conduct committed by other defendants, notwithstanding his knowledge of such facts and his opportunity to prevent such conduct. Defendant James Nichols ratified the other defendants' conspiracy and meetings as though to be an actual participant from their inception.

Defendant Carmine Verdicchio ("Verdicchio") was, at all relevant times, employed by the Board as the "lead" custodian for the Palisades Park schools. Verdicchio Aff. ¶ 1.¹² As lead custodian, Verdicchio did not have the power or authority to hire or fire employees, including D'Aurizio. Id. at ¶ 3. Verdicchio also had no involvement, either in his capacity as lead custodian or individually, in the Board's (1) decision to eliminate one custodial and two maintenance positions in June 1992 or (2) "adoption of a list of part-time custodial/maintenance employees." Id. at ¶¶ 4-5. D'Aurizio similarly only specifically refers to Verdicchio in 2 paragraphs of his Amended Complaint. First, paragraph 16 provides Verdicchio's address, position as lead custodian and the same conclusory allegation as set forth against Nichols in paragraph 17. Second, paragraph 70, states, in pertinent part, that:

Defendant Verdicchio, as Lead Custodian, was empowered and authorized to process job vacancies and offers for the exercise of the right of first refusal. Defendant Verdicchio acted in furtherance of the conspiracy by following the lead of defendant DeBartolo, notwithstanding his knowledge as to the impropriety of such conduct. In addition, defendant Verdicchio actively covered up the conspiracy and wrongful conduct committed by the other defendants. Defendant Verdicchio ratified the other defendants' conspiracy and meetings as though to be an actual participant from their inception.

However, other than these sweeping allegations, D'Aurizio provides no evidence to bridge the chasm between his broad conclusion that his Constitutional rights were violated and the assertion that either Nichols or Verdicchio are to blame. Accordingly, D'Aurizio's allegations fail to state a claim as a matter of law against either Nichols or Verdicchio. Therefore, the Amended Complaint is dismissed as to defendants Nichols and Verdicchio.

DISCUSSION

Fed.R.Civ.P. 56(c) provides for summary judgment when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes...