Kellner v. City of New York
| Decision Date | 16 September 2021 |
| Docket Number | 17-CV-1268 (MKB) |
| Parties | SAMUEL KELLNER, Plaintiff, v. THE CITY OF NEW YORK and CHARLES J. HYNES, [1] Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Samuel Kellner commenced the above-captioned action on March 6, 2017, against Defendants the City of New York (the "City") and Charles J. Hynes. (Compl., Docket Entry No. 1.) Plaintiff filed an Amended Complaint on October 2 2017, asserting claims of malicious prosecution, conspiracy [2] and municipal liability under 42 U.S.C. §§ 1983 and 1988. (Am. Compl., Docket Entry No. 14.) Plaintiff alleges that after he reported to the District Attorney's office that his son and others were sexually abused by Baruch Lebovits, a man "connected to powerful and wealthy interests" in "Brooklyn's ultra-Orthodox community," Hynes conspired with others to prosecute Plaintiff for allegedly telling Lebovits and his supporters that Plaintiff would convince the complaining witnesses to recant their testimony in exchange for money. (Am. Compl ¶¶ 1, 42.)
Defendants move to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court denies Defendants' motion to dismiss.
Sometime in 2008, Plaintiffs son told him that he was molested by a man named Baruch Lebovits.[3] (Am. Compl. ¶ 8.) With the permission of a "highly respected rabbi who presides over a rabbinical court," Plaintiff reported the incident to the police. (Id.) Shortly thereafter, Plaintiff and his son met with a prosecutor at the Brooklyn District Attorney's Office (the "DA's Office"), who informed Plaintiff that the DA's Office would not prosecute Lebovits "primarily because the alleged offense was a misdemeanor and [because] there were no other known victims." (Id. ¶ 9.) Plaintiff then spoke with an individual in his community who put him in contact with Detective Steve Litwin, a sexual abuse investigator. (Id.) Detective Litwin told Plaintiff that "a case against [Lebovits] would be viable if other victims could be found and encouraged to report their abuse." (Id.) Soon thereafter, Plaintiff learned that two individuals, MT and YR, had been repeatedly raped and/or sexually abused by Lebovits. (Id. ¶¶ 10-12.) Plaintiff encouraged MT and YR to report the abuse to Detective Litwin and both did so. (Id. ¶ 10.) In September of 2008, under Detective Litwin's supervision, YR "recorded a conversation with Lebovits, in which he told Lebovits he had been contacted by a member of Assemblyman Dov Hikind's office ... who had found out he was a victim" and "told Lebovits that he believed a witness to the abuse may have spoken about it." (Id. ¶ 11.) Lebovits responded: "deny it"; tell them the witness "didn't see anything." (Id.)
In March of 2008, after hearing testimony from Plaintiffs son and MT, a grand jury indicted Lebovits, (id. ¶ 10), and in November of 2008, after hearing testimony from MT and YR, a grand jury returned a superseding indictment against Lebovits, (id ¶ 12).
Plaintiff contends that as a result of his communication with Lebovits' victims and Detective Litwin, he was the subject of "severe harassment and intimidation in his community." (Id. ¶ 13.) For example, Plaintiff alleges that "it was demanded that [Plaintiff] submit to adjudication in a... rabbinical court." (Id.) Plaintiff agreed to adjudicate his son's case in rabbinical court on the condition that (1) both the rabbi who had given him permission to report his son's abuse and Michael Dowd, a lawyer, attend the adjudication; and (2) Plaintiff would not be responsible for any expenses or legal fees arising out of the adjudication. (Id.) Plaintiff alleges that "[a]n associate of Lebovits, Wolf Wertzberger, became involved and promised to pay [Plaintiffs] share of the expenses and fees," but when Plaintiff requested that Wertzberger honor that promise, Wertzberger responded that "he was merely a front for Baruch Lebovits' [] son, Meyer, whom [Plaintiff] would need to ask directly." (Id.) In addition, Plaintiff alleges that several individuals made "[s]ubstantial monetary offers" to Plaintiff to induce him "to drop his son's case," but Plaintiff rejected each offer. (Id. ¶¶ 13, 14.) For example, Moshe Friedman, a first cousin of Lebovits through marriage, made a "payoff offer" to Plaintiff. (Id. ¶ 14.) Friedman also offered Plaintiff a job, which Plaintiff accepted. (Id.) However, after Plaintiff rejected Friedman's "demand[] that [Plaintiff] drop his son's case against Baruch Lebovits" and ignored Friedman when he told Plaintiff that Lebovits was willing to pay Plaintiff $250, 000 to drop his son's case, Friedman fired Plaintiff. (Id.) Plaintiff reported these events to Detective Litwin and two prosecutors in the Sex Crimes Bureau. (Id. ¶ 15.)
In May of 2009, Plaintiff met with Meyer Lebovits, one of Lebovits' sons, to discuss the bill from the rabbinical court adjudication. (Id. ¶ 16.) Meyer Lebovits secretly recorded the conversation, and later provided a copy of the recording to Hynes. (Id.) During their meeting, Meyer Lebovits insisted that Plaintiff was "wrong to report [Lebovits' abuse of Plaintiffs son] to the police" and that had Plaintiff approached the Lebovits family instead, "the problem would have been taken care of." (Id.) Also during that meeting, Plaintiff "expressed his objection[s] to the threats he was receiving to force him into dropping his son's case." (Id. ¶ 18.)
By November of 2009, the prosecution against Lebovits relating to his abuse of YR had been severed from the case related to Lebovits' abuse of MT. (Id. ¶ 20.) In December of 2009, an attorney named John Lonuzzi called the Assistant District Attorney ("ADA") prosecuting the case against Lebovits and told the ADA that MT "was no longer cooperating with the prosecution" because the case was causing MT "severe stress" and MT "was suffering from a variety of psychological issues." (Id.) Lonuzzi also told the ADA that if MT was called to testify, he would "plead the Fifth Amendment privilege against self-incrimination ... because parts of his grand jury testimony might have been embellished." (Id. (quotation marks omitted).) The ADA then arranged several meetings with MT and Lonuzzi, but Lonuzzi canceled each meeting. (Id.) Lonuzzi also contacted Detective Litwin, instructing him to have no further contact with MT. (Id. ¶ 21.) However, MT himself subsequently contacted Detective Litwin and revealed that he had not retained Lonuzzi, that his family "could not know [that] [Lonuzzi] contacted Detective Litwin," and that he "had been pressured and was afraid to say what had happened." (Id.) Plaintiff alleges that it was "later revealed" that an associate of the Lebovits family, Zalmen Ashkenazi, had retained Lonuzzi, and that MT's father received a substantial payoff in exchange for pressuring his son not to cooperate with the prosecution. (Id.) When the ADA prosecuting the case against Lebovits for his abuse of MT raised her concerns about witness tampering and intimidation with Hynes' Chief Assistant, she was told that Hynes "was unwilling to do anything about it." (Id. ¶ 22.)
Plaintiff alleges that, although Lebovits and his supporters were successful in intimidating MT, they were unable to stop YR from testifying against Lebovits. (Id. ¶ 23.) In March of 2010, Lebovits was convicted of abusing YR. (Id.) During the trial, Lebovits' counsel argued that YR had fabricated his allegations as "part of an extortion plot." (Id.) The jury heard testimony that the sole defense witness, Berel Ashkenazi (the brother of Zalmen Ashkenazi, who allegedly paid Lonuzzi to "represent" MT), attempted to "pay off YR" in order to "stop his testimony." (Id. ¶24.) Plaintiff alleges that Detective Litwin's contemporaneous records detail Berel Ashkenazi's efforts, along with Plaintiffs "counter-efforts" to assure YR "that he would receive support and compensation without having [to]. .. drop the case." (Id. (quotation marks omitted).) When Berel Ashkenazi took the stand, he was "confronted with a rabbinical court ruling ... that forbade YR from reporting [Berel] Ashkenazi's attempts to bribe him and stop him from testifying," but the witness "had no answer." (Id.) The jury convened for "only a few hours" and found Lebovits guilty on the charges arising out of his abuse of YR. (Id. ¶ 23.) Lebovits was subsequently sentenced to a term of between ten and two-thirds years to thirty-two years in prison. (Id.)
Plaintiff alleges that after the jury convicted Lebovits for his abuse of YR, Lebovits and his supporters "began an intensive campaign to overturn [the conviction] by any means possible" and "found that Hynes was willing to take a leading role in their criminal conspiracy to pervert the course of justice." (Id. ¶ 25.) Plaintiff alleges that "Hynes had long cultivated [Plaintiffs] community and harvested their votes," and that "[i]n return, he pursued a policy, custom and practice of granting undue access and influence to community leaders and other powerful and wealthy interests within the community" and "provided a special, preferential system of 'justice' for pedophiles within the community." (Id.) Plaintiff alleges that Lebovits' sentence threatened that arrangement, and, on April 14, 2010, two days after Lebovits' sentence was imposed, Moshe Friedman (Lebovits' cousin) visited the DA's Office and "demanded action," and, in addition, a substantial payment by the Lebovits family was "made to ensure [Plaintiffs] prosecution." (Id. ¶39.)
On April 23, 2010, Simon Taub, a "prominent member" of Plainti...
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