Rattner v. Netburn
| Decision Date | 27 March 1989 |
| Docket Number | No. 88 Civ. 2080 (GLG).,88 Civ. 2080 (GLG). |
| Citation | 733 F. Supp. 162 |
| Parties | 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. |
| Court | U.S. District Court — Southern District of New York |
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.
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
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 . 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 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.
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.
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.
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 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.
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