Galgano v. Cnty. of Putnam

• Decision Date: 28 September 2018
• Docket Number: Case No. 16-CV-3572 (KMK)
• Parties: GEORGE GALGANO, Plaintiff, v. COUNTY OF PUTNAM, NEW YORK; PUTNAM COUNTY DISTRICT ATTORNEY'S OFFICE; TOWN OF CARMEL, NEW YORK; TOWN OF CARMEL POLICE DEPARTMENT; ADAM LEVY; ANDRES GIL; HEATHER ABISSI; HENRY LOPEZ; LOURDES GONZALEZ; MICHAEL T. NAGLE, Defendants.
• Court: U.S. District Court — Southern District of New York

GEORGE GALGANO, Plaintiff, v. COUNTY OF PUTNAM, NEW YORK; PUTNAM COUNTY DISTRICT ATTORNEY'S OFFICE;TOWN OF CARMEL, NEW YORK; TOWN OF CARMEL POLICE DEPARTMENT; ADAM LEVY;ANDRES GIL; HEATHER ABISSI; HENRY LOPEZ;LOURDES GONZALEZ; MICHAEL T. NAGLE, Defendants.

Case No. 16-CV-3572 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 28, 2018

OPINION & ORDER

Appearances:

Richard Weill, Esq.

Boies, Schiller & Flexner LLP

Armonk, NY

Counsel for Plaintiff

Lewis R. Silverman, Esq.

Caroline Beth Lineen, Esq.

Joshua Matthew Goldstein, Esq.

Silverman and Associates

White Plains, NY

Counsel for Defendants County of Putnam and the Putnam County District Attorney's Office

Robert J. Pariser, Esq.

Michael E. Longo, Esq.

Jordyn Leigh Aronowitz, Esq.

Counsel for Defendants Town of Carmel, Town of Carmel Police Department, and Michael Nagle

Michael A. Miranda, Esq.

Miranda Sambursky Slone Sklarin Vervenioits, LLP

Mineola, NY Counsel for Individual Defendants Adam Levy, Andres Gil, Heather Abissi, Lourdes Gonzalez, and Henry Lopez

Richard B. Epstein, Esq.

Virginia & Ambinder, LLP

New York, NY

Counsel for Individual Defendants Adam Levy, Andres Gil, Heather Abissi, Lourdes Gonzalez, and Henry Lopez

KENNETH M. KARAS, District Judge:

Plaintiff George Galgano ("Galgano" or "Plaintiff") brings this Action against the County of Putnam ("Putnam County"),the Putnam County District Attorney's Office ("PCDAO"), the Town of Carmel ("Carmel"), the Town of Carmel Police Department ("Carmel Police Department"), former Putnam County District Attorney Adam Levy ("Levy"), Assistant Putnam County District Attorney Andre Gil ("Gil"), Assistant Putnam County District Attorney Heather Abissi ("Abissi"), Putnam County District Attorney's Office Investigator Lourdes Gonzalez ("Gonzalez"), Putnam County District Attorney's Office Senior Investigator Henry Lopez ("Lopez"), Carmel Police Department Detective Sergeant Michael T. Nagle ("Nagle," and collectively "Defendants") alleging violations of federal and New York state law. (See generally Am. Compl. (Dkt. No. 72).) Plaintiff brings thirteen claims: (1) federal claims under 42 U.S.C. § 1983 against all Defendants for the unlawful seizure of Galgano's communications from June 7, 2014 through July of 2014; (2) federal claims under 42 U.S.C. § 1983 against all Defendants for malicious prosecution; (3) federal claims under 42 U.S.C. § 1983 against all Defendants for denial of due process; (4) New York state law claims against all Defendants for malicious prosecution; (5) federal claims under 42 U.S.C. § 1983 against all Defendants for the unlawful search of Galgano's home, offices and motor vehicle and the seizure of his computers and electronic storage devices; (6) federal claims under 42 U.S.C. § 1983 against all Defendants for the unlawful search and seizure of Galgano and the ensuing seizure of his cellular phone;(7) federal claims under 42 U.S.C. § 1983 against all Defendants for the unlawful search of Galgano's computers, cellular phone, and electronic storage devices; (8) federal claims under 42 U.S.C. § 1983 against Defendants Levy and Nagle for retaliation in violation of the First Amendment; (9) New York state law claims against all Defendants for defamation; (10) New York state law claims against all Defendants for abuse of process; (11) New York state law claims against all Defendants for failure to intercede; (12) federal claims under 42 U.S.C. § 1983 against Defendants Putnam County, Putnam District Attorney's Office, Carmel, Carmel Police Department, Levy, Gil, Abissi, and Lopez for supervisory liability; and (13) federal claims under 42 U.S.C. § 1983 for conspiracy against the Individual Defendants. (See generally Am. Compl.)

Before the Court are three Motions To Dismiss. The first is filed on behalf of Putnam County and the PCDAO (the "Putnam County Defendants"). (Cty. Notice of Mot. (Dkt. No. 139); Cty. Mem. of Law in Supp. of Mot. To Dismiss ("Cty. Mem.") (Dkt. No. 141); Decl. of Lewis R. Silverman, Esq. in Support of Cty. Mot. To Dismiss ("Silverman Decl.") (Dkt. No. 140).) The second is filed on behalf of Carmel, Carmel Police Department, and Nagle ("Carmel Defendants"). (Carmel Notice of Mot. (Dkt. No. 143); Carmel Mem. of Law in Supp. of Mot. To Dismiss ("Carmel Mem.") (Dkt. No. 145); Decl. of Robert J. Pariser, Esq. in Support of Carmel Mot. To Dismiss ("Pariser Decl.") (Dkt. No. 144).) The third is filed on behalf of Levy, Gil, and Abissi ("Putnam County Prosecutors") and Gonzalez and Lopez ("Putnam County Investigators," and together with the Putnam County Prosecutors, "Putnam County Individual Defendants.") (Cty. Individual Notice of Mot. (Dkt. No. 147); Cty. Individual Mem. of Law in Supp. of Mot. To Dismiss ("Cty. Individual Mem.") (Dkt. No. 149); Decl. of Michael A. Miranda, Esq. in Support of Cty. Individual Mot. To Dismiss ("Miranda Decl.") (Dkt. No. 148).) For the reasons that follow, the Motions are granted in part and denied in part.

I. Background

The following facts are taken from the Amended Complaint and are accepted as true for the purposes of this Motion. (Am. Compl.)¹

A. Factual Background

Plaintiff is a criminal defense attorney based in Westchester County, New York. (Id. ¶ 32.) Galgano's law firm, Galgano & Associates, employed three full time attorneys, including Eric Sharp ("Sharp"), a senior associate at the firm, and Stefanie Capolongo ("Capolongo"), the assistant and office manager. (Id. ¶ 35.)

Plaintiff alleges this action originated as a personal feud between Levy and Putnam Sheriff Donald Smith ("Smith"). (Id. ¶¶ 36-42.) On March 20, 2013, Smith charged Alex Hossu ("Hossu"), Levy's live-in trainer, with a sex offense. (Id. ¶ 36.) The resulting public clashes over the prosecution and media coverage was the subject of extensive civil litigation between Levy and Sheriff Smith. (Id. ¶ 37.) "[I]n retaliation against Sheriff Smith," Levy charged Lani Zaimi ("Zaimi")—a local restaurant owner, vocal Smith political supporter, and member of Sheriff Smith's Advisory Board—with sexually assaulting a waitress named M.A. (Id. ¶ 38-39.) According to Plaintiff, the Zaimi prosecution served not only to vindicate Levy, but also was designed to distract from the Hossu prosecution controversy and to discredit Smith. (Id. ¶ 41.)

Galgano and Sharp represented Zaimi, and through that representation, Galgano found himself in the middle of the feud between Levy and Smith. (Id. ¶¶ 40, 42.) Galgano "vigorously defended his client." (Id. ¶ 43.) As part of the defense, Galgano chose to investigate whetherM.A. was coerced into changing her initial account given to Nagle—that she engaged in consensual sex with Zaimi in exchange for $200—to implicate Zaimi as the behest of the PCDAO and Carmel Police Department. (Id.) In February 2014, the jury trial began, and Galgano's defense of Zaimi included arguments that Nagle and Levy coerced M.A. to change her story. (Id. ¶ 47.) During this trial, Galgano cross-examined M.A. for several days and caused her to become visibly upset. (Id. ¶ 63.) Galgano also spent three days vigorously cross-examining Nagle. (Id.) In addition to numerous court filings regarding police and prosecutorial misconduct, Galgano publically challenged Levy and the Carmel Police Department for alleged misconduct. (Id. ¶¶ 44, 46, 48.) After six days of deliberations, the jury was unable to reach a verdict and the trial ended in a partial acquittal and a mistrial as to the remaining counts. (Id. ¶ 64.) Vindicated, Galgano told the media that M.A. "wasn't a victim at the hands of Mr. Zaimi" but rather "was victimized by law enforcement in this case." (Id. ¶ 49.) Galgano further explained that that M.A. was coerced to lie and to inculpate Zaimi for a crime he did not commit by the Carmel Police Department and PCDAO because of Zaimi's association with Smith. (Id.) In response, the Town of Carmel Police Chief Michael Cazzari ("Cazzari") made a public statement that Carmel "detectives did an unbiased investigation and followed the evidence and made the appropriate charges." (Id. ¶ 50.)

Galgano's successful defense of Zaimi and public criticism of the prosecution and police "agitated and embarrassed" the Carmel Police Department, PCDAO, Levy, and Nagle, and created a motive to discredit both Zaimi and Galgano. (Id. ¶ 53.) Plaintiff alleges Levy conspired with the other Defendants "to create publicity prejudicial to Zaimi by fabricating an allegation that he sexually assaulted a different waitress named Kimberly Lorusso [("Lorusso")] in November of 2012." (Id. ¶ 54.) Initially, both Galgano and Zaimi readily cooperated with theinvestigation. (Id. ¶ 55.) However, "[a]fter a limited investigation that failed to follow any of their own internal case enhancement protocols . . . Defendants arrested Zaimi and immediately launched a media campaign to disseminate the fabricated allegation," allegedly to contaminate the jury pool (Id. ¶ 56.)

Galgano tried to determine if Lorusso, like M.A., had been "coerced or improperly incentivized to falsely implicate Zaimi." (Id. ¶ 58.) He hired defense investigator Andrew Kuchta ("Kuchta") to identify and obtain statements from potential witnesses. (Id. ¶ 57.) Quincy McQuaid ("McQuaid"), the boyfriend of Lorusso's sister, Lia Lorusso ("Lia"), was one such witness identified by Kuchta. (Id. ¶ 59.) Galgano spoke with McQuaid to attempt to ascertain Lorusso's intentions and why she had falsely accused Zaimi of assaulting her. (Id. ¶ 60.) "Galgano's suspicion that the Lorusso charges were fabricated was based upon (a) the timing of the new complaint; (b) the similarity of the new complaint with one of the proffered bad acts in the M.A. case that was ruled inadmissible; (c) the fact that Kimberly Lorusso waited 18 months to come forward; (d) the fact that months after the purported sexual assault in November 2012, Kimberly Lorusso inexplicably applied for and accepted a job with Zaimi; (e) the fact that Kimberly Lorusso made the new complaint only hours...