Murray v. Town of N. Hempstead

• Decision Date: 06 January 2012
• Docket Number: No. 09–cv–4120 (ADS)(ARL).,09–cv–4120 (ADS)(ARL).
• Parties: Kevin MURRAY, Plaintiff, v. TOWN OF NORTH HEMPSTEAD, Town of North Hempstead Department of Buildings, Town of North Hempstead Department of Finance, Town of North Hempstead Town Attorney Office, Town of North Hempstead Town Board, Jo–Anne Taormina, Robert Troiano, Thomas K. Dwyer, Angelo P. Ferrara, Maria Christina Poons, Lee R. Seaman, Fred L. Pollack, Jon Kaiman, and Richard Finkel, Esq., Defendants.
• Court: U.S. District Court — Eastern District of New York

853 F.Supp.2d 247

Kevin MURRAY, Plaintiff,

v.TOWN OF NORTH HEMPSTEAD, Town of North Hempstead Department of Buildings, Town of North Hempstead Department of Finance, Town of North Hempstead Town Attorney Office, Town of North Hempstead Town Board, Jo–Anne Taormina, Robert Troiano, Thomas K. Dwyer, Angelo P. Ferrara, Maria Christina Poons, Lee R. Seaman, Fred L. Pollack, Jon Kaiman, and Richard Finkel, Esq., Defendants.

No. 09–cv–4120 (ADS)(ARL).

United States District Court, E.D. New York.

Jan. 6, 2012.

The Scher Law Firm, LLP, by: Austin R. Graff, Esq., of Counsel, Carle Place, NY, for the Plaintiff.

Cuomo LLC, by: Oscar Michelen, Esq., Sherri Anne Jayson, Esq., of Counsel, Mineola, NY, for the Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

The Plaintiff in this case, Kevin Murray (“Murray” or the “Plaintiff”) commenced this action on September 24, 2009, against the Defendants the Town of North Hempstead (the “Town”), the Town of North Hempstead Department of Buildings (the “Department”), the Town of North Hempstead Department of Finance (the “Department of Finance”), the Town of North Hempstead Town Attorney Office (the “Attorney Office”), and the Town of North Hempstead Town Board (the “Board”) (collectively the “municipal Defendants”), as well as against the individually named Defendants Joanne Taormina (the Commissioner of the Department of Finance), Jon Kaiman (the Defendant Town Supervisor), Richard Finkel, Esq. (the Town Attorney), and six Councilmen and Councilwomen on the Defendant Board: Robert Troiano, Thomas K. Dwyer, Angelo P. Ferrera, Maria Christina Poons, Lee R. Seaman, and Fred L. Pollack (collectively the “individual Defendants”). Murray asserts causes of action pursuant to 42 U.S.C. § 1983, based upon allegations that the Defendants retaliated against him for the assertion of his First Amendment right to freedom of speech.

The Plaintiff and the Defendants have now cross-moved for summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 56(c). In addition, the Defendants have filed a motion for sanctions pursuant to Fed.R.Civ.P. (“Rule 11”) against the Plaintiff's attorney, Austin R. Graff, Esq. For the reasons set forth below, the Court denies the Plaintiff's motion for summary judgment but grants the Defendants' motion for summary judgment in its entirety. In addition, the Court denies the Defendants' motion for Rule 11 sanctions against the Plaintiff's counsel, Austin R. Graff, Esq.

I. BACKGROUND

A. Factual Background

1. Employment History

a. Observations of Alleged Corruption

The Plaintiff commenced his employment with the Defendant Town on August 22, 2001 as a plumbing inspector with the Department. (Plaintiff's Local Rule 56.1(a) Statement (“Pl. 56. 1”) at ¶ 25.) In the Complaint, the Plaintiff alleges that over the course of his eight years of employment working for the Department, he observed several instances of alleged “corruption” that were disregarded by the Defendants.

First, the Complaint states that in 2003, the Plaintiff observed that the work of a plumbing contractor named Daniel Weintraub did not conform to the Defendant Town's regulatory standards that were enforced by the Department. Murray claims he raised Weintraub's non-conforming work with the Department, but that his complaint was ignored. (Complaint (“Compl.”) at ¶ 25.) According to the Plaintiff, when Weintraub learned of the Plaintiff's complaints, he falsely accused the Plaintiff of soliciting bribes from him. (Compl. at ¶ 27.) A formal investigation was never conducted, although the Plaintiff requested the Department's Commissioner, David Wasserman, to do so. Moreover, the Plaintiff alleges that Wasserman told him that if he went to the Town attorney about Weintraub's work he was going to get fired because “Nothing goes across the street [to the Defendant Attorney Office]. We handle the stuff over here.” (Compl. at ¶ 31–32.) Weintraub was never disciplined regarding his non-compliance with applicable regulations. (Compl. at ¶ 33–36.)

Second, Murray alleges that in or about 2005, he was accused by Ron Dean, a general contractor, for charging $50.00 to perform a plumbing inspection, which is not permitted by law. (Compl. at ¶ 40–41.) Once again, the Plaintiff alleges that a formal investigation was never conducted, even though the Plaintiff requested Wasserman to do so. (Compl. at ¶ 46.) As a result of Dean's allegation, the Plaintiff contends that he was transferred to a different department and the stress of the ordeal caused him to develop shingles. However, after an outside company admitted to charging the fee and not Murray, he was returned to his usual position as a plumbing inspector. (Compl. at ¶ 51.)

Third, Murray alleges that in or about 2003 or 2004, the Plaintiff and four other inspectors examined the Maharaji Supermarket for the Town and discovered numerous violations of the Defendant Town's Building Code. Murray claims that during the inspection, his supervisors at the Department of Buildings told the Plaintiff “not to issue any notice of violations of the Defendant Town's Building Code to the Majaraji Supermarket.” (Compl. at ¶ 55.) The Plaintiff complied with this directive, apparently because of the past threats if he attempted to communicate his concerns to the Defendant Attorney regarding the operations of the Department. (Compl. at ¶ 56.)

b. Testimony at Corruption Trial

In or about June 2008, the Plaintiff testified on behalf of the Nassau County District Attorney at David Wasserman's corruption trial. In particular, Murray testified that a builder was denied a Certificate of Occupancy by the Department until the builder purchased a table at a political fundraiser for the election of the Town's Supervisor, the Defendant Jon Kaiman. (Compl. at ¶ 60.) After this testimony, the builder called the Plaintiff and offered him money to “gratuitize” him for his testimony, which Murray then reported. (Compl. at ¶ 61.) Ultimately, the jury rendered a not guilty verdict and the Plaintiff's co-employees criticized him for reporting the builder's offer. As a result of this experience, the Plaintiff claims he suffered a mental breakdown. (Compl. at ¶ 63–64.)

c. Drug Addiction and Rehabilitation

Beginning in or about 2005, the Plaintiff was prescribed Xanax to address certain stress and mental health conditions, allegedly caused by the prior instances of observed misconduct and threats. The Plaintiff became addicted to the drug. In approximately December 2008, the Plaintiff sought treatment for his addiction in an in-patient rehabilitation facility in Florida. (Compl. at ¶ 65–68.) During this time, the Plaintiff took a Family and Medical Leave Act (“FMLA”) absence. (Compl. at 169.)

It is not entirely clear as to when the Plaintiff actually returned to work for the Department. In the Plaintiff's Local Rule 56.1 Statement, he states that he returned from in-patient drug treatment rehabilitation on or about February 3, 2009, and the Defendants do not dispute this date. (Pl. 56.1 at ¶ 37.) In addition, in the Complaint, the Plaintiff states that he was working on February 13, 2009. However, in the Plaintiff's motion for summary judgment, he claims that he did not officially return from FMLA leave until March 16, 2009.

2. Protected Speech

The Plaintiff alleges that he engaged in protected First Amendment Activity on three separate occasions. The exercise of his free speech was allegedly motivated by the instances of alleged corruption in the Department discussed above that the Plaintiff claims he observed during his employment.

a. The Notice of Claim

First, on February 9, 2009, the Plaintiff filed a Notice of Claim pursuant to New York Municipal Law § 50, which stated

The Town of North Hempstead has not taken the necessary steps to ensure that the Town of North Hempstead Department of Buildings and the other Town agencies are free from corruption. The Town of North Hempstead and its officers are aware of the misconduct of its employees and, despite numerous conversations with the Claimant, the Town of North Hempstead has refused to take action against, to halt and where appropriate, remove the corrupt elements.

(Pl. 56.1 at ¶ 28.) Murray cited claims of intentional infliction of emotional distress, negligent infliction of emotional distress, as well as violations of New York Civil Service Law § 75–b and New York Labor Law § 740. A number of the Defendants had actual knowledge of the Notice of Claim within days of its filing, including the Defendants Finkel, Kaiman, Taormina, and the Department. (Pl. 56.1 at ¶ 29.) The Plaintiff does not allege that any other Defendant had actual knowledge of this filing.

b. The Newsday article

Second, on March 19, 2009, after the Plaintiff was interviewed by a reporter, the Long Island newspaper Newsday published a news story in connection with the Plaintiff's filing the Notice of Claim. The article specifically identified Murray and discussed his allegations of corruption. In particular, the article stated:

Kevin Murray, a plumbing inspector since 2001, alleges in the notice of claim that “retaliatory action” was taken against him and that the town has not taken steps to ensure that the building department and other town agencies “are free from corruption.”

(Pl. 56.1 at ¶ 30–31.) Several of the Defendants read or discussed this article when it was published, including the Defendants Finkel, Kaiman, and the Department. The Plaintiff does not allege that any other Defendant read or discussed this article.

c. New York Municipal Law § 50–h Hearing

Third, on two separate occasions, April 14, 2009 and April 21, 2009, the Plaintiff testified at a New York Municipal Law § 50–a hearing. The Plaintiff spoke on a number of topics regarding the claimed corruption of the Defendants, including (1) the alleged cover-up of safety and health violations at the Mahaji Supermarket (Pl. Ex. K at 85:22–86:3); (2) the selective enforcement of...