Kosmider v. Garcia

• Decision Date: 13 July 2012
• Docket Number: No. 924–10.,924–10.
• Citation: 36 Misc.3d 1221,2012 N.Y. Slip Op. 51415,959 N.Y.S.2d 89
• Parties: Edward KOSMIDER and Bethany Kosmider, Plaintiffs, v. Julie A. GARCIA, Individually and as District Attorney of Essex County; Michael P. Langey, Individually and as Assistant District Attorney of Essex County; Kristy Sprague, Individually and as District Attorney of Essex County; Timothy Blatchley, Individually and as a Special District Attorney for Essex County; Cynthia Bennett and Richard Bennett; and John Does 1–5., Defendants.
• Court: New York Supreme Court

36 Misc.3d 1221
959 N.Y.S.2d 89
2012 N.Y. Slip Op. 51415

Edward KOSMIDER and Bethany Kosmider, Plaintiffs,
v.
Julie A. GARCIA, Individually and as District Attorney of Essex County; Michael P. Langey, Individually and as Assistant District Attorney of Essex County; Kristy Sprague, Individually and as District Attorney of Essex County; Timothy Blatchley, Individually and as a Special District Attorney for Essex County; Cynthia Bennett and Richard Bennett; and John Does 1–5., Defendants.

No. 924–10.

Supreme Court, Essex County, New York.

July 13, 2012.

Viscardi, Howe & Rudgers LLP (Dominick J. Viscardi. Esq., of counsel), Ticonderoga, for plaintiffs.

Towne, Ryan & Partners, P.C. (John F. Moore, Esq., of counsel), Albany, New York, for defendants Julie A. Garcia, Individually and as District Attorney of Essex County; Michael P. Langey, Individually and as Assistant District Attorney of Essex County; Kristy Sprague, Individually and as District Attorney of Essex County; and Timothy Blatchley, Individually and as Special District Attorney.

Niles Piller & Bracy PLLC (John Crotty, Esq., of counsel), Plattsburgh, for defendants Richard Bennett and Cynthia Bennett.

RICHARD B. MEYER, J.

This action arises out of the issuance subpoenas duces tecum to obtain the financial records of plaintiffs Edward Kosmider and Bethany Kosmider (Kosmiders) from two separate financial institutions. The first subpoena was issued on or about December 24, 2009 to the Champlain National Bank of Willsboro, New York, and signed by the defendant Michael P. Langey (Langey) in his capacity as an assistant district attorney for Essex County. At that time, the elected district attorney for Essex County was the defendant Julie A. Garcia (Garcia). This subpoena directed the production of “ CERTIFIED copies of any and all bank records and account information for Edward and Bethany Kosmider ... to include type and number of accounts and all account activity from May 1, 2009 to November 30, 2009”. The records were required to be “turn [ed] over to the officer executing this subpoena, as agent of the Grand Jury of the County of Essex” and directed that the bank “not disclose the existence of this investigation or request and to not disclose the existence of this subpoena”. The subpoena was accompanied by a letter from Langey dated December 24, 2009 asking that the information be provided December 31, 2009, the date that the then impaneled grand jury was to expire, and to reply to Garcia's office to the attention of “DEBBIE”.

The second subpoena, seeking Kosmiders' financial records from the Wright Patman Congressional Federal Credit Union in Oakton, Virginia, was issued on March 1, 2010 in the commonwealth of Virginia on motion of an assistant commonwealth attorney and signed by a judge in the Fairfax County General District Court. The Essex County district attorney at that time was the defendant Kristy Sprague (Sprague). The defendant Timothy Blatchley (Blatchley) is an assistant district attorney in Clinton County now serving as special prosecutor pursuant to an order of this Court dated June 30, 2010.

On November 17, 2010, the Kosmiders commenced this action. The verified complaint filed that date asserted a single cause of action for violation of civil rights under 42 USC § 1983 and § 1988. Simultaneously with that filing, The Kosmiders applied for a preliminary injunction prohibiting Blatchley from using any and all records secured from Kosmiders' financial institutions before any grand jury and suppressing the same¹. Pending determination of that application, a temporary restraining order was granted based upon the Right to Financial Privacy Act ( 12 USC § 3401 et seq. [RFPA]), CPL § 610.20 and § 610.25, and People v. Natal, 75 N.Y.2d 379, 385, 553 N.Y.S.2d 650, 653, 553 N.E.2d 239, 242,cert. denied498 U.S. 862, 111 S.Ct. 169, 112 L.Ed.2d 134. Over the course of the next fifteen months, numerous adjournments were granted while an amended summons and complaint, and motions to dismiss both the original and amended complaints, were filed. In the amended complaint, the Kosmiders seek money damages and injunctive relief against the district attorney defendants, alleging causes of action for violations of civil rights under 42 USC § 1983 and § 1988, including punitive damages, and for abuse of process and failure to train subordinates. A third cause of action seeks relief only against the remaining defendants, and none of the motions now pending involve those parties or issues. Now pending before the Court are the Kosmiders' application for a preliminary injunction and the following motions and cross-motions by the district attorney defendants' ²: cross-motion to dismiss the original complaint pursuant to CPLR R3211(a)(7) for failing to state a cause of action ³; motion to dismiss the amended complaint pursuant to CPLR R3211 (a)(2), (3) and (7), including failing to serve a notice of claim under County Law § 52⁴; and cross-motion to vacate the temporary restraining order and dismiss any claims for relief sought under CPLR article 78 as untimely ⁵.

A.

The notice of claim requirements of County Law § 52 do not apply to causes of action arising under federal law ( see Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 [1988];Pendleton v. City of New York, 44 A.D.3d 733, 843 N.Y.S.2d 648 [2007] ). In Felder, the United States Supreme Court held that “enforcement of the notice-of-claim statute in § 1983 actions brought in state court so interferes with and frustrates the substantive right Congress created that, under the Supremacy Clause, it must yield to the federal interest” (Felder v. Casey, supra. at 151, 108 S.Ct. at 2313, 101 L.Ed.2d 123 [1988] ). Although “States may establish the rules of procedure governing litigation in their own courts[,] ... where state courts entertain a federally created cause of action, the federal right cannot be defeated by the forms of local practice.' Brown v. Western R. Co. of Alabama, 338 U.S. 294, 296, 70 S.Ct. 105, 106, 94 L.Ed. 100 (1949)” ( id., at 138, 487 U.S. 131, 108 S.Ct. at 2306, 101 L.Ed.2d 123). Similarly without merit is that branch of the district attorney defendants' motion seeking dismissal for lack of subject matter jurisdiction (CPLR R 3211[a][2] ). Federal and state courts have concurrent jurisdiction of claims under § 1983 ( Felder v. Casey, supra; Haywood v. Drown, 556 U.S. 729, 129 S.Ct. 2108, 173 L.Ed.2d 920 [2009] ), and those claims are properly brought in state supreme court ( Haywood v. Drown, supra; see also, Welch v. State, 286 A.D.2d 496, 729 N.Y.S.2d 527;Cavanaugh v. Doherty, 243 A.D.2d 92, 675 N.Y.S.2d 143). The motion to dismiss the Kosmiders' § 1983 causes of action on the grounds that no notice of claim was filed and for lack of subject matter jurisdiction are thus denied.

The cross-motion to vacate the temporary restraining order and dismiss any claims for relief sought under CPLR article 78 as untimely is also denied since “no more than one [R 3211] motion shall be permitted” (CPLR R 3211 [e] ), and a party may not serve a cross-motion in response to their own motion ( seeCPLR R 2215).

B.

On a motion to dismiss a cause of action under CPLR § 3211, the Court must “accept the facts alleged as true ... and determine simply whether the facts alleged fit within any cognizable legal theory ( see Rovello v. Orofino Realty, 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970)” (Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 593, 413 N.E.2d 1154, 1155),”. In performing this analysis, “the pleading is to be afforded a liberal construction ( see,CPLR 3026)” (Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 974, 638 N.E.2d 511, 513) and the Court is required to “accord plaintiffs the benefit of every possible favorable inference” ( id.) no matter what “an ultimate trial may disclose as to the truth of [those] allegations” (Sanders v. Winship, 57 N.Y.2d 391, 394, 456 N.Y.S.2d 720, 722, 442 N.E.2d 1231, 1233) and “without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of the facts” (219 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 509, 414 N.Y.S.2d 889, 890, 387 N.E.2d 1205, 1206). “[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail ( see Foley v. D'Agostino, 21 A.D.2d 60, 64–65, 248 N.Y.S.2d 121, 125–127; Siegel, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, CPLR 3211:24, p. 31; 4 Weinstein–Korn–Miller, N.Y. CivPrac, par. 3211.36)” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 185, 372 N.E.2d 17, 20).

“By the plain terms of § 1983, two—and only two—allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. See Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d 492 (1961)” (Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 [1980] ). “A complaint will survive dismissal unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his (§ 1983) claim which would entitle him to relief' (Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 101–102, 2 L.Ed.2d 80, cited in Batista v. Rodriguez, supra at 397)” (Manti v. New York City Transit Authority, 165 A.D.2d 373, 379, 568 N.Y.S.2d 16, 20 [1991] ). Here, the district attorney defendants' December 2010 cross-motion and October 2011 motion to dismiss for failure to state a cause of action (CPLR R 3211 [a][7] ) is premised primarily on the assertions that no federal constitutional right of Kosmiders was violated, that the subpoenas in question were...