Salis v. The City of New York
| Docket Number | Index No. 510572/2017 |
| Decision Date | 14 November 2023 |
| Parties | Owolabi Salis, Plaintiff, v. The City Of New York, THE NEW YORK CITY POLICE DEPARTMENT, AND POLICE OFFICER "JOHN DOE," FIRST AND LAST NAMES BEING FICTITIOUS, Defendants. |
| Court | New York Supreme Court |
HON GINA ABADI J.S.C.
Recitation as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers/NYSCEF Numbered
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 107 - 133
Reply Affidavits (Affirmations)
Upon the foregoing cited papers and after oral argument in this action brought by Owolabi Salis ("Salis") against the City of New York, individually and sued herein as the New York City Police Department ("NYPD" and collectively with the NYPD, the "City"), the Decision/Order/ Judgment on this motion is as follows:
The City moves, motion sequence five, for an order, pursuant to CPLR § 3211(a)(7), CPLR § 3212(b), and, in effect (and where applicable), CPLR § 3211(a)(5), dismissing Salis's: (1) state-law claims as untimely and for failure to allege such claims in his notice of claim; (2) federal-law civil-rights claims as improperly plead (3) complaint in its entirety for failure to allege any act or omission on the part of the City; (4) malicious prosecution claim on the grounds that: (a) his indictment has created a presumption of probable cause for his arrest, which presumption has not been rebutted; and (b) the involved prosecutors are immune from suit in initiating and pursuing the state's criminal case against him; (5) defamation claim, inasmuch as the underlying press release was truthful; (6) emotional distress claim on the grounds that: (a) to the extent such claim refers to the intentional infliction of emotional distress, such claim may not be maintained against the City and (b) to the extent, such claim refers to the negligent infliction of emotional distress, such claim fails for lack of breach of duty of care and lack of physical injury; (7) official misconduct claim, inasmuch as all the NYPD police officers were acting within the scope of their employment when lawfully effectuating his arrest; (8) claim of "acting beyond authority to damage [so in the original]" as duplicative of his defamation and malicious prosecution claims, and further as not being a recognizable claim; and (9) claim of "abuse of process to damage [so in the original]" on the grounds of: (a) the justification for Salis's criminal prosecution; and (b) his failure to allege any improper collateral objective therein.
In 2014, Salis, a since-disbarred attorney, was indicted by a New York County Grand Jury, charging him with a scheme to defraud, grand larceny, attempted grand larceny, and falsifying business records under Indictment No. 2624/14 (the "indictment"). The indictment alleged that Salis falsely told his clients that they were eligible for immigration status and benefits when they were not, charged them extra fees, and filed fraudulent immigration petitions on their behalf. Because Salis allegedly used the mail system to execute his alleged scheme to defraud, his conduct also allegedly constituted the federal crime of mail fraud.
Thereafter, on July 24, 2014, a team of the Department of Homeland Security ("DHS") Special Agents and the NYPD officers, acting in accordance with a warrant, arrested Salis at one of his homes in Brooklyn, New York, and, pursuant to a warrant, seized various electronics and files from his home office. In connection with Salis's arrest and the unsealing of the indictment, New York County District Attorney's Office (the "DA's Office") issued a press release, entitled "Indictment #2624/2014[;] Statement of Facts" (the "press release"). NYSCEF Doc No. 137. [1] On the same day, July 24, 2014, Salis was arraigned and remanded to custody. He remained in custody until August 4, 2014 when he was released on $250,000 bail. On March 24, 2016, Salis was acquitted of all charges following a three-week jury trial in New York County Supreme Court.
On September 10, 2019, Salis commenced an action in the federal district court against Kevin McAleenan, in his official capacity as the then-Acting Secretary of the DHS (the "federal court action"). Therein, Salis alleged that McAleenan violated: (1) his Fifth Amendment double-jeopardy protections; (2) his civil rights under 42 USC § 1983; and (3) the Paperwork Reduction Act by requiring him to file Form G-28 ("Notice of Entry of Appearance as Attorney or Accredited Representative") with his clients' immigration petitions. On motion of defendant as McAleenan's successor in title, the federal action was dismissed in 2021 for lack of subject-matter jurisdiction. See Salis v Mayorkas, 2021 WL 972319 (EDNY 2021), affd 2021 WL 6425204 (2d Cir 2021), cert denied 142 S.Ct. 1231 (2022).
Meanwhile, in December 2016, the New York field office of the U.S. Citizenship and Immigration Services (the "USCIS") requested that the DHS seek disciplinary sanctions against Salis, on the grounds that he had engaged in unethical and unprofessional conduct, such as filing frivolous immigration petitions and charging clients unnecessary fees. In January 2017, the DHS referred the USCIS concerns to the Attorney Grievance Committee (the "AGC") of the Appellate Division, First Department (the "Appellate Division"), for investigation and, if appropriate, discipline. Thereafter, the AGC prepared and filed a petition charging Salis with violations of multiple rules of the New York Rules of Professional Conduct. In 2019, the Appellate Division appointed a Referee to hold a hearing on the charges. After motion practice and extensive delays caused by the intervening COVID-19 pandemic, the Referee sustained all charges and recommended that Salis be disbarred. Thereafter, AGC moved to confirm the Referee's liability findings, together with his recommendation to disbar Salis. By per curiam opinion, dated November 29, 2022, the Appellate Division confirmed the Referee's findings, noting (as relevant herein) that Salis "over an eight-year period, submitted 1,185 fraudulent and frivolous I-360 petitions, only one of which was granted." Matter of Salis, 212 A.D.3d 7, 9 (1st Dept 2022). As the sanction for his professional misconduct, the Appellate Division disbarred Salis from the practice of law (the "disbarment order"). By motion decision, dated January 26, 2023, the Appellate Division denied Salis's motion for an order vacating or amending the disbarment order. See Matter of Salis, 2023 NY Slip Op 61024(U) (1st Dept 2023). By motion decision, dated September 14, 2023, the Court of Appeals denied Salis's leave to appeal from the disbarment order. See Matter of Salis, 40 N.Y.3d 965 (2023). [2]
In defiance of the disbarment order, Salis allegedly continued practicing law. According to the press release by the Kings County District Attorney's Office, dated August 21, 2023: (1) "[Salis] violated the [disbarment] order and continued to operate a law office [in Brooklyn, New York,] while advertising 'Salis Law P.C.' online"; (2) "[Salis] also allegedly continued to represent previous clients, the vast majority of whom spoke Spanish, and took money from them for various legal services pertaining to their immigration status without ever telling them that he had been disbarred and without advising them to get a new lawyer"; (3) "[f]ollowing a search of [Salis's] office on March 7, 2023, nine of his clients, all of whom were from the Dominican Republic, alleged that the defendant stole from them money in amounts ranging from $8,000 to $800"; and (4) "[Salis] was arraigned [August 21, 2023] before [a] Brooklyn Supreme Court Justice... on an indictment [IND-74471-23/001] in which he is charged with third-degree and fourth-degree grand larceny, second-degree criminal contempt, first-degree scheme to defraud, first-degree immigrant assistance services fraud and the unlawful practice of the law," and "was released without bail." [3] As of the date of this decision/order/ judgment, the criminal case against Salis under IND-74471-23/001 is pending.
On June 13, 2016, Salis served the City's Comptroller's Office with a notice of claim stemming from his state-law prosecution under the indictment. His claim, which he asserted arose on March 24, 2016 (which was the day of his acquittal), was predicated on:
NYSCEF Doc No. 110.
On September 2, 2016, Salis was examined in accordance with General Municipal Law § 50-h. NYSCEF Doc No. 111.
On May 27, 2017, Salis commenced the instant action against the City. [4] His prolix, 127-paragraph complaint asserts eight claims (as quoted verbatim from his complaint): (1) "Malicious Prosecution"; (2) "Civil and Bill of Rights Violations"; (3) "Unlawful Arrest and Search"; (4) "Defamation of Character"; (5) "Emotional Distress"; (6) "Official Misconduct Design[ed] to Damage"; (7) "Acting Beyond Authority to Damage"; and (8) "Abuse of Process to Damage." NYSCEF Doc Nos. 3 and 112. By amended answer, dated July 14, 2017, the City joined issue. NYSCEF Doc No. 7.
On August 23, 2023, the City served the instant motion to dismiss and for summary judgment. On October 5 and again on October 10, 2023, Salis opposed by way of his affidavits with...
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