Smith v. Cnty. of Nassau
| Decision Date | 31 March 2015 |
| Docket Number | 10-CV-4874 (MKB) |
| Parties | MICHAEL SMITH, Plaintiff, v. COUNTY OF NASSAU, POLICE OFFICER TIMOTHY SLEVIN, in his official and individual capacities, POLICE OFFICER MARTIN HELMKE, in his official and individual capacities, POLICE OFFICERS JOHN and JANE DOES 1-10, in their official and individual capacities, ZURICH ASSOCIATES, LTD., ANNA GAETANO, in her official and individual capacities, and HARRY G.TEREZAKIS in his official and individual capacities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
Plaintiff Michael Smith commenced the above-captioned action against Defendants County of Nassau, Police Officers Timothy Slevin, James Healey, Martin Helmke, Nicole LoDuca, and John and Jane Does 1-10, in their official and individual capacities, Zurich Associates, Ltd. ("Zurich Associates"), Anna Gaetano, in her official and individual capacity, and Harry G. Terezakis, in his official and individual capacity, asserting due process, false arrest, malicious prosecution, abuse of process, and municipal liability, pursuant to 42 U.S.C. § 1983, and state law claims for gross negligence, forcible eviction, and assault and battery. (Compl., Docket Entry No. 1.) On February 12, 2014, the Court dismissed the claims against Healy and LoDuca, as withdrawn by Plaintiff. (Order dated February 12, 2014.) On April 20, 2014, the County of Nassau, Slevin and Helmke, (collectively, the "County Defendants"), moved forsummary judgment seeking to dismiss Plaintiff's claims.1 (Mem. of Law in Support of Cnty. Defs. Mot. for Summary Judgment ("Def. Mem."), Docket Entry No. 83.) On April 22, 2014, Gaetano submitted an affidavit in support of an order dismissing this action. (Aff. of Def. Anna Gaetano in Resp. & Opp'n to Pl. Mem. of Law ("Gaetano Aff."), Docket Entry No. 86.) The Court referred the County Defendants' motion for summary judgment to Magistrate Judge Steven I. Locke for a report and recommendation. (Order dated October 10, 2014.)
By report and recommendation dated January 6, 2015 ("R&R"), Judge Locke recommended that the Court (1) grant the County Defendants' motion for summary judgment in its entirety and (2) sua sponte dismiss the claims asserted against Zurich Associates, Gaetano and Terezakis, (collectively, the "Owner Defendants"). (R&R, Docket Entry No. 92.) On January 20, 2015, Plaintiff filed objections to Judge Locke's R&R. .) Gaetano and the County Defendants filed responses to Plaintiff's objections. (Docket Entry Nos. 95, 96.) For the reasons set forth below, the Court adopts in part, and declines to adopt in part, Judge Locke's R&R. The Court adopts Judge Locke's conclusions as to Plaintiff's due process, malicious prosecution, and municipal liability claims for the reasons set forth herein, and declines to adopt the R&R's conclusions with respect to Plaintiff's false arrest and abuse of process. The Court grants the County Defendants' motion for summary judgment as toPlaintiff's due process, malicious prosecution, and Monell claims. The Court denies the County Defendants' summary judgment motion as to the false arrest and abuse of process claims. The Court denies the County Defendants' summary judgment motion on the basis of qualified immunity. To the extent Gaetano's affidavit was intended to serve as a motion for summary judgment, the Court grants it in part, and dismisses the Section 1983 claims against Gaetano.
On or about late September 2009, Plaintiff asked a family friend if he knew of any properties available for rent. (Transcript of the examination of Michael Smith pursuant to Section 50-h of the New York General Municipal Law ("Pl. 50-h Tr.") 12:2-10, annexed to the Calliste Decl. as Ex. B.) While he was speaking to his family friend, a man named Russell Gutner approached him and said that he had several properties available for rent. (Id. at 18:2-11.) Gutner told Plaintiff that he had one property in Roosevelt, New York, that was in the process of being repaired to be rented. (Id. at 18:12-22.) The rental property was located at 79 William Street in Roosevelt, New York (the "Property").
Within the next two or three days, Plaintiff called Gutner to see when the Property would be available for viewing. (Id. at 19:5-9, 20:8-17.) During this conversation, Plaintiff told Gutner that he does contracting work, and that he would be willing to finish the repairs to the Property if it would result in Plaintiff moving into the Property sooner. (Id. at 20:8-17.) Gutneridentified himself to Plaintiff as an agent of the owners of the Property, (id. at 24:21-25), but did not tell Plaintiff who owned the Property.3 (Id. at 25:2-3.) Approximately a week and a half after this conversation, Plaintiff viewed the Property with Gunther, and negotiated the terms of the rental. (Id. at 25:4-14.)
Plaintiff and Gutner agreed that Plaintiff would complete the repairs on the Property and pay approximately $2400 in advance of his occupancy to lease the Property for three months.4 (Id. at 25:17-26:18.) Plaintiff signed a lease agreement, paid $2400 to Gutner, and Gutner gave Plaintiff a receipt for the $2400. (Id. at 30:13-15; see Pl. 56.1 ¶ 10; Def. 56.1 ¶ 10.) Plaintiff began to occupy the Property the following day. (Pl. 50-h Tr. 34:22-36:21.)
On October 12, 2009, Nassau County police officers Andrew Huksloot and Nicole LoDuca responded to a 9-1-1 call from the Property. (Pl. 56.1 ¶ 5; Def. 56.1 ¶ 5.) Plaintiff testified, at a hearing conducted pursuant to Section 50-h of the General Municipal Law, that he had called the police after a woman, later identified as Gaetano, came to the Property, andclaimed to be the owner of the Property.5 (Pl. 50-h Tr. 45:17-48:9.) Plaintiff told Gaetano that he was leasing the Property and provided her with a copy of the lease agreement and the receipt he received from Gutner. (Id. at 48:5-8.) Later that day, Terezakis also came to the Property and identified himself as the owner. (Id. at 51:2-4.)
Plaintiff called the police and Huksloot and LoDuca responded to the call. (See id. 48:8-9.) Upon reviewing Plaintiff's lease and rental receipt, Huksloot and LoDuca informed Terezakis and Gaetano that this was a "civil matter" and encouraged the parties to resolve it amongst themselves. (Id. at 51:7-13.) Terezakis offered Plaintiff money to leave the Property, which Plaintiff refused because it was less money than he had paid to Gutner. (Id. at 51:17-21.) At that point, Terezakis told Plaintiff that he could continue to occupy the Property until they could "come up with something." (Id. at 51:22-24.) According to Plaintiff, Terezakis indicated, in the presence of Huksloot and LoDuca, that Plaintiff could remain at the Property temporarily while Terezakis spoke with his business partners, and that they would either give Plaintiff his money back, or find Plaintiff another place to live.6 (Id. at 52:7-13.) Plaintiff believed that Gutner and Terezakis worked for the same company. (Id. at 51:17-21.)
i. Plaintiff's complaint
On October 12, 2009, Plaintiff signed a "Supporting Deposition" against Gutner, which was witnessed by Huksloot.7 (Police Department, County of Nassau, N.Y., Supporting Deposition of Michael Smith ("Pl. Supp. Dep."), annexed to the Decl. of Liora M. Ben-Sorek in support of Defs. Mot. for Summary Judgment ("Ben-Sorek Decl.") as Ex. C.) In the Supporting Deposition, Plaintiff explains that he signed a lease for the Property and that Gutner had represented to him that the Property was his aunt's home. (Id. at 1-2.) Plaintiff further describes the events of October 12, 2009, stating that he learned that Terezakis was the true owner of the Property, at which point, Plaintiff states he "realized [he] was the victim of a scam." (Id. at 2.)
ii. Terezakis' complaints
Also on October 12, 2009, Terezakis prepared and signed a "Supporting Deposition," witnessed by LoDuca. (Police Department, County of Nassau, N.Y., Supporting Deposition of Harry G. Terezakis ("Terezakis Supp. Dep."), annexed to Ben-Sorek Decl. as Ex. D.) In his Supporting Deposition, Terezakis explained the events of October 12, 2009, stating that he learned from his "property manager," Gaetano, that Plaintiff was living in the Property, which was according to the statement, Terezakis' home. (Id. at 1.) According to Terezakis, the Property "ha[d] been vacant for the [seven] months that [he had] owned it. (Id.) Terezakis did not know Gutner, Gutner had "no rights" to the Property, and he did not give anyone permission to move into the Property. (Id.)
A few days later, Terezakis prepared a "Complainant Interview Sheet" against Plaintiff,dated October 16, 2009 ("Trespass Complaint"). (Complainant Interview Sheet, annexed to the Ben-Sorek Decl. as Ex. E.) The Trespass Complaint identifies Terezakis and Zurich Associates as complainants, provides Terezakis or Zurich Associates' contact information, and identifies Plaintiff as the "defendant" and Gaetano as a witness. (Id. at 1.) The Trespass Complaint states that on October 12, 2009, Terezakis learned that the locks were changed at his Property and that Plaintiff was "renting" the Property. (Id. at 2.) Plaintiff showed him his lease for the Property and the rental receipts, at which point, Terezakis called the police and "filed a report." (Id.) On October 13, 2009, Plaintiff called Gaetano to ask about the return of the money he paid Gutner and stated that he would leave the Property after he received the money. (Id.)
By letter dated October 16, 2009, the Office of the District Attorney for Nassau County notified Terezakis that his complaint had been reviewed and it had been "determined that it would best be dealt...
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