Kanciper v. Lato

• Decision Date: 07 November 2013
• Docket Number: No. 13–CV–00871 (ADS)(WDW).,13–CV–00871 (ADS)(WDW).
• Citation: 989 F.Supp.2d 216
• Parties: Mona KANCIPER, Plaintiff, v. Leonard LATO, individually, and Thomas J. Spota, III., individually and in his official capacity as District Attorney of Suffolk County, Defendants.
• Court: U.S. District Court — Eastern District of New York

989 F.Supp.2d 216

Mona KANCIPER, Plaintiff,

v.Leonard LATO, individually, and Thomas J. Spota, III., individually and in his official capacity as District Attorney of Suffolk County, Defendants.

No. 13–CV–00871 (ADS)(WDW).

United States District Court,

E.D. New York.

Nov. 7, 2013.

McLaughlin & Stern, LLP, by: Alan E. Sash, Esq., Steven J. Hyman, Esq, Of Counsel, New York, NY, for the Plaintiff.

Suffolk County Attorney's Office, by: Brian C. Mitchell, Assistant County Attorney, Hauppauge, NY, for the Defendants.

LaRusso & Conway, Attorneys at Law, by: Joseph R. Conway, Esq, Of Counsel, Mineola, NY, for the Defendant Leonard.

Garrett W. Swenson, Jr., Esq., by: Garrett W. Swenson, Jr., Esq., Of Counsel, Brookhaven, NY, for the Defendant Thomas J. Spota, III.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

The Plaintiff Mona T. Kanciper (the “Plaintiff”) commenced this civil rights action on February 15, 2013 pursuant to 42 U.S.C. § 1983 et seq. (“Section 1983”) and New York State law, stemming from the execution of a search warrant on her property by agents of the Suffolk County Society for the Prevention of Cruelty to Animals Inc. (the “SPCA”) and the Defendant Leonard Lato (“Lato”), as well as her subsequent arrest and prosecution.

On July 18, 2013, the Plaintiff filed a second amended complaint. Presently pending before the Court are separate motions by Lato and his co-defendant, Thomas J. Spota, the District Attorney of Suffolk County (“Spota”), pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6) dismissing the second amended complaint for failure to state a cause of action. For the following reasons, the motions are granted in part and denied in part.

I. BACKGROUND

The following facts are drawn from the second amended complaint and construed in a light most favorable to the Plaintiff.

The Plaintiff owns and resides on a 50–acre horse farm in Manorville, New York, which is located in Suffolk County. This horse farm is the location of a corporation called The New York Horse Rescue Corporation, which rescues discarded and unwanted horses. According to the Plaintiff, since 1998, her horse farm has rescued more than 1,500 horses, many of whom were bound for auction kill buyers. These horses were then either adopted by families or lived the remainder of their lives on the horse farm, sometimes being used to provide horseback riding lessons. The Plaintiff's husband, who is now deceased, was the farm's resident veterinarian. The Plaintiff's two children also live on the property.

Lato is a former Suffolk County Assistant District Attorney and Bureau chief of the Insurance Crimes Bureau and the Defendant Spota is and was at all relevant times in this case the District Attorney of Suffolk County.

The non-party SPCA is a not-for-profit corporation organized and existing under the laws of the State of New York. Relevant here, the SPCA is empowered under Criminal Procedure Law § 2.10(7) to grant its employees or agents “peace officer status,” which in turn, empowers these individuals to search and arrest, carry a weapon, and act to enforce the laws of the State of New York in the same manner as governmental employees.

On or about August 5, 2009, a woman called the SPCA to make a complaint regarding “equine abuse” at the Plaintiff's horse farm. The Plaintiff claims that this complaint was made only because the complainant had a personal vendetta against her. Regardless, the SPCA referred the case to Shawn Dunn, a part-time volunteer, for investigation. Dunn eventually closed the case file against the Plaintiff in December 2009, finding no probable cause that the Plaintiff or her husband was abusing horses or other animals.

On December 23, 2009, another woman with a supposed personal vendetta against the Plaintiff called the SPCA to allege that the Plaintiff was abusing horses. The SPCA assigned the case to Michael Norkelun. On Christmas Day, December 25, 2009, Norkelun made an unannounced visit to the horse farm to question the Plaintiff. In his official report, Norkelun indicated that the Plaintiff “did show this officer several horses inside a large barn that appeared healthy.” (Second Am. Compl. at ¶ 18.)

Nevertheless, Norkelun continued his investigation and had one of the complainants collect written statements from the other complainants. Neither Lato nor Norkelun ever interviewed these other complainants in person.

The SPCA subsequently sought a draft warrant from the Suffolk County District Attorney's Office (“DA's office”) to search the Plaintiff's property for evidence of animal abuse. The SPCA approached the Case Assignment Bureau (“CAB”) in the DA's Office. CAB is a non-trial bureau within the DA's Office which drafts search warrants and investigates borderline felony cases.

Al Croce (“Croce”), an assistant district attorney in the CAB, first reviewed the SPCA's investigative file on the Plaintiff and declined to draft a search warrant because the evidence compiled against the Plaintiff apparently did not suggest that she committed any crime. Dissatisfied with Croce's response, the SPCA approached Edward Jablonski (“Jablonski”), and requested that he draft a search warrant for the SPCA. According to the Plaintiff, Jablonski determined that the evidence against the Plaintiff was “stale, insufficient and ridd[led] with hearsay.” ( Id. ¶ 24.) Jablonski, on behalf of the DA's Office, opted not to apply for or draft a search warrant. At this time, the Plaintiff asserts, the investigation should have ended.

However, the Plaintiff alleges that the SCPA was fearful of potential negative publicity from the complainants who had threatened to contact the County Executive, as well as rescue groups, and who would complain about the inadequacy of the SCPA. Thus, the SPCA was allegedly frustrated and disgruntled when the DA's Office declined to further investigate the Plaintiff. Indeed, the SPCA Chief of Detectives Gerald Lauber referred to the CAB, Jablonski, and Croce as a “roadblock” which he wanted to remove.

Accordingly, in or about mid-February 2010, Lauber reached out to his “facebook friend” Lato and requested that Lato investigate the Plaintiff using the resources of the DA's Office, including the drafting of a search warrant. The Plaintiff emphasizes that, at this time, Lato knew that CAB, Croce, and Jablonski had previously declined to further investigate the Plaintiff or to seek a search warrant against her. ( Id. ¶ 26–27.) Lato also allegedly knew that it was the DA's Office policy against “DA-shopping” that once one bureau chief like Jablonski decides not to further investigate a case, another bureau chief like Lato may not override that decision. Nonetheless, without CAB's knowledge or consent and knowing that the DA's Office had already determined that probable cause did not exist, Lato “surreptitiously” decided to investigate whether the Plaintiff committed any crimes. ( Id. ¶ 26–36.)

Upon discovering that Lato had violated the DA's Office policy governing case assignments, Spota and Emily Constant, the Chief Assistant District Attorney, spoke with Jablonski and Lato. According to Lato, Spota contacted him “and wanted to know why insurance crimes w[ere] doing an animal abuse case” and Lato responded that “Insurance Crimes, the unit, wasn't doing it, I was doing it with Michelle Pitman.” Lato further stated that “I had done it and [Spota] didn't direct me to stop. The implication is that he was okay with my continuing, but there was nothing expressed.” The Plaintiff insists that Spota had a pattern and practice of allowing Lato to work on “special projects” which resulted in civil rights violations.

Lato subsequently drafted a warrant for the SPCA to search the Plaintiff's horse farm for evidence of animal cruelty and endangering the welfare of a child. Penal Law § 260.10(1). According to John Thompson, a Lieutenant with the SPCA who was one of the people who executed the search warrant against the Plaintiff, the SPCA does not investigate child endangerment cases and if the SPCA should ever see evidence of child abuse, it would refer the matter to Child Protective Services (the “CPS”), a New York State agency. However, Lato never contacted the CPS or the Suffolk County Police.

Lato also drafted an affidavit in support of a search warrant for Norkelun to sign to be presented to a local magistrate. Lato finalized the warrant on March 18, 2010 and informed Norkelun on how to get it signed by a local magistrate because Norkelun had never applied for a warrant on his own before.

The Plaintiff alleges that, in addition to drafting the warrant on matters beyond the legal scope of the SPCA's jurisdiction, Lato knowingly misrepresented the status of Norkelun. In particular, Lato represented that Norkelun was a public officer/police officer by referring to him as “Detective Michael Norkelun, Shield No. 139.” The Plaintiff also asserts that Lato knowingly misrepresented the size of the horse farm in the warrant, indicating that it was approximately 4 acres in size when it was actually 50 acres in size. According to the Plaintiff, Lato intentionally misrepresented the size of the horse farm so that the local court would approve the warrant as-is and not require any further specificity in connection with the areas of the farm to be searched. Lato also allegedly misrepresented that Norkelun had “personal knowledge” of the Plaintiff's animal cruelty and endangering the welfare of a child and that Norkelun “personally knew” the five witnesses that gave written statements to him.

On March 20, 2010, Lato, Norkelun, Lauber and more than a dozen members of the SPCA arrived unannounced at the horse farm to execute the search warrant. No member of the Suffolk County Police Department, CPS, or the DA's Office, other than Lato, took part in the search. During the course of the search, Lato determined that the SPCA had probable cause to search the Plaintiff's home and personal...