Rattner v. Netburn, No. 88 Civ. 2080 (GLG).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation733 F. Supp. 162
Decision Date27 March 1989
PartiesMarshall RATTNER, Marshall Rattner, Inc. and National Limousine Service, Inc., and Professional Indemnity Agency, Inc., Plaintiffs, v. Malcolm NETBURN, John B. Farrington and the Incorporated Village of Pleasantville, Defendants.
Docket NumberNo. 88 Civ. 2080 (GLG).

733 F. Supp. 162

Marshall RATTNER, Marshall Rattner, Inc. and National Limousine Service, Inc., and Professional Indemnity Agency, Inc., Plaintiffs,
v.
Malcolm NETBURN, John B. Farrington and the Incorporated Village of Pleasantville, Defendants.

No. 88 Civ. 2080 (GLG).

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

March 27, 1989.


733 F. Supp. 163

Lidell, Sapp, Zivley, Hill & LaBoon and Cadwalader, Wickersham & Taft, New York City (David R. Kittay, David L. Noonan and John J. Walsh, of counsel), for plaintiffs.

Teitelbaum & Hiller, P.C., New York City (Herbert Teitelbaum, Richard J. Hiller, Roger Juan Maldonado, of counsel), for defendant Malcom Netburn.

Golenbock and Barell, New York City (Arthur M. Handler, Robert S. Goodman, Stanley A. Chinitz, of counsel), for defendants John B. Farrington and The Incorporated Village of Pleasantville.

OPINION

GOETTEL, District Judge:

This action is yet another offshoot of the litigious relationship between the plaintiff, Marshall Rattner, and the various persons that serve as officers of The Incorporated Village of Pleasantville. Because an attempt to recapitulate the torturous procedural history of the multitudinous disputes between these parties could carry both author and reader well into the next century, we will confine our analysis to the matters at hand.1

I. FACTS

The briefly stated facts are as follows. On February 11, 1988, the plaintiff ran a paid advertisement in the Pleasantville Gazette, a Chamber of Commerce publication, entitled "Where Are Your Tax Dollars Going? For Litigation?". The advertisement assailed the Village of Pleasantville for what Mr. Rattner believed was a pattern of harassment against him and focused on the extensive legal fees incurred by the Village by virtue of its participation in the "Rattner litigation." The advertisement appeared in conjunction with an article on the front page of the Gazette that displayed the results of a poll conducted by the Chamber of Commerce.2

The advertisement and article were published in the midst of a local election in which Mayor Farrington and Trustee Netburn were running for reelection against the candidates of an opposing political party.3 The Village Board of Trustees and Mayor Farrington learned of the advertisement prior to publication and discussed it in an executive session of the Board of Trustees on February 8, 1988. The Village later consulted with legal counsel on how to respond to the Rattner advertisement and counsel prepared an official response at the Board's request. At a meeting of the executive board on February 16, 1988, the Board decided not to issue the prepared response. On the morning of February 16, 1988, defendant Netburn dictated a letter to his secretary over the telephone from Logan Airport in Boston, Massachusetts

733 F. Supp. 164
and had her sign and mail the letter to the Chamber of Commerce. The letter was written on his personal stationery and signed "Malcom Netburn." The letter expressed disapproval of the Chamber of Commerce for embroiling itself in a political controversy.4 On March 2, 1988, at a televised public debate among the candidates for office, in response to a pointed question about the Netburn letter by a member of the audience, Netburn read the contents of the letter aloud

The plaintiff contends that the Netburn letter was written and sent to the Chamber of Commerce at the Village's behest in lieu of an official response. The plaintiff further contends that the defendants' acts deprived the plaintiff of various constitutional rights and constituted tortious interference with contractual relations, intentional infliction of emotional distress and prima facie tort. All parties have moved for summary judgment.

II. SUMMARY JUDGMENT STANDARD

Fed.R.Civ.P. 56(c) provides that summary judgment is appropriate if "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The burden is on the moving party to demonstrate the absence of a material, factual dispute. Fed.R.Civ.P. 56(e); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). If that burden is met, the non-moving party cannot simply rest on its complaint setting forth a valid cause of action. Fed.R.Civ.P. 56(e); First Nat'l Bank v. Cities Services Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). It "must set forth specific facts showing that there is a genuine need for trial," Fed.R.Civ.P. 56(e), and there must be more than merely "some metaphysical doubt as to those material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). In determining whether that burden is met, however, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). Discovery in this action has been completed and, judging from the volume of papers submitted on this motion, the court has before it most of the fruits of that discovery.

III. DEFENDANTS FARRINGTON AND THE VILLAGE OF PLEASANTVILLE'S MOTION FOR SUMMARY JUDGMENT

Defendants Farrington and The Village of Pleasantville move for summary judgment on the grounds that the Village and Farrington did not direct Netburn to send the letter or otherwise participate in the alleged misconduct and that the plaintiff's state law claims are barred for failure to file a timely notice of claim.

A. State Action

Principally, the defendants contend that Netburn acted alone in sending the letter to certain members of the Chamber of Commerce. Multiple citations to deposition testimony support the proposition that no one knew the terms or content of the Netburn letter prior to its being sent. Indeed, the only Pleasantville official who had advance knowledge that Netburn intended to write a letter was Mayor Farrington. On February 14, 1988, Netburn mentioned to Farrington in a conversation in a driveway that he was considering sending a letter to the Chamber of Commerce in response to the February 11th issue of the Gazette. Farrington denies knowing the proposed contents of the letter and contends that he merely responded that any decision by Netburn to write such a letter was a personal one. Finally, the defendants contend that on February 16, 1988, the Board of Trustees met in an executive session and decided not to respond to the Rattner advertisement. Thus, defendants Farrington and the Village argue that the undisputed facts demonstrate that they bear no responsibility

733 F. Supp. 165
for the Netburn letter and must be granted summary judgment

In response, the plaintiff argues that the testimony adduced on various depositions permits an inference that the Village sanctioned and encouraged the sending of the Netburn letter. The voluminous papers offered by the plaintiff in opposition to the defendants' summary judgment motions and in support of its cross-motion for summary judgment often obfuscate rather than highlight the undisputed facts. For this reason, at oral argument we directed plaintiff's counsel to submit a brief letter specifically delineating the evidence supporting its claim of Village involvement in the Netburn letter.5 Although the resulting letter was far from brief, we will enumerate the plaintiff's contentions contained therein in opposition to defendants' motion for summary judgment.

* On learning of the Rattner advertisement, the Village Board convened to discuss what to do in response.
* On or about February 4, 1988, the Board requested Village counsel to prepare a response to the Rattner advertisement.
* The Village Board never made an official or unofficial determination not to respond to the Rattner advertisement but never issued the response prepared by Village counsel.
* Village Administrator John St. Leger discussed the Rattner advertisement with Village counsel.
* At a meeting of the New Pleasantville Party election campaign group, attended by Mayor Farrington and Malcom Netburn, it was decided that certain party members, including Bernie Gordon who was the chairman of the Village Planning Commission, would either compose a letter or ask to speak to the Chamber of Commerce concerning the political nature of the poll and the Rattner advertisement, would contact Chamber members and ask them to disavow their association with the Gazette, and would approach local shop-keepers who were distributing the Gazette to express their discontent.
* Village Administrator St. Leger spoke with various members of the Chamber of Commerce to express displeasure with the Rattner advertisement.
* Allegedly as a result of Planning Commissioner Chairman Gordon's discussions with Chamber members, certain members sent letters to Mayor Farrington apologizing for the Gazette and disassociating themselves from it.
* On February 14, 1988, Mayor Farrington and Malcom Netburn discussed whether Netburn would send a personal letter to the Chamber of Commerce.
* Immediately after dictating the letter to his secretary, Netburn placed a call to Village Hall at 10:54 A.M. At 11:12 A.M. a call was made by St. Leger, from Village Hall, to Village counsel Golenbock & Barell. At 11:15 A.M. St. Leger placed a call to Mayor Farrington.
* The content of the Netburn letter—specifically the use of the terms "the Village as a whole"—indicates that it was sent on behalf of the Village.
* After the letters were sent, Farrington stated in public that the letters were "mild and reasonable."
* Members of the Chamber of Commerce and a Village Trustee assumed the letter was actually written by Mayor Farrington.
* Facts discussed in the Netburn letter— namely that the Rattner advertisement "involves the Chamber in a difficult, ongoing legal situation"—were based on knowledge he gained as a trustee.
733 F. Supp. 166
* The phraseology of the Netburn letter
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3 practice notes
  • Mroz v. City of Tonawanda, No. 96-CV-403C(F).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 31 Marzo 1998
    ...N.Y.Gen. Mun. Law §§ 50-e(5), 50-i(3), and the request must therefore also be filed within the statutory period. Rattner v. Netburn, 733 F.Supp. 162, 166 (S.D.N.Y.1989), rev'd on other grounds, 930 F.2d 204 (2d Cir.1991); Cohen v. Pearl River Union Free School Dist., 51 N.Y.2d 256, 434 N.Y.......
  • Rattner v. Netburn, No. 178
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 9 Abril 1991
    ...complaint, ruling principally that Rattner had failed to make an adequate showing that his constitutional rights had been infringed. See 733 F.Supp. 162 (1990). The court also dismissed plaintiffs' state-law claims against the Village and the Mayor for failure to file timely notice of claim......
  • Steiner v. City of New York, No. 90-CV-1593 (JG).
    • United States
    • U.S. District Court — Eastern District of New York
    • 14 Marzo 1996
    ...a municipality or municipal officer or employee is a prerequisite to commencing an action based on state law. Rattner v. Netburn, 733 F.Supp. 162, 166 (S.D.N.Y.1989) (citing N.Y.Gen.Mun.Law § 50-e (1986)). Failure to comply with this provision requires dismissal. Id. (citing Davidson v. Bro......
3 cases
  • Mroz v. City of Tonawanda, No. 96-CV-403C(F).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 31 Marzo 1998
    ...N.Y.Gen. Mun. Law §§ 50-e(5), 50-i(3), and the request must therefore also be filed within the statutory period. Rattner v. Netburn, 733 F.Supp. 162, 166 (S.D.N.Y.1989), rev'd on other grounds, 930 F.2d 204 (2d Cir.1991); Cohen v. Pearl River Union Free School Dist., 51 N.Y.2d 256, 434 N.Y.......
  • Rattner v. Netburn, No. 178
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 9 Abril 1991
    ...complaint, ruling principally that Rattner had failed to make an adequate showing that his constitutional rights had been infringed. See 733 F.Supp. 162 (1990). The court also dismissed plaintiffs' state-law claims against the Village and the Mayor for failure to file timely notice of claim......
  • Steiner v. City of New York, No. 90-CV-1593 (JG).
    • United States
    • U.S. District Court — Eastern District of New York
    • 14 Marzo 1996
    ...a municipality or municipal officer or employee is a prerequisite to commencing an action based on state law. Rattner v. Netburn, 733 F.Supp. 162, 166 (S.D.N.Y.1989) (citing N.Y.Gen.Mun.Law § 50-e (1986)). Failure to comply with this provision requires dismissal. Id. (citing Davidson v. Bro......

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