Tancredi v. Malfitano, 07 Civ. 9617 (WCC).

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: Conner
• Citation: 567 F.Supp.2d 506
• Parties: Ralph TANCREDI, Edward Arce, William C. Duffelmeyer, Arthur Marinelli, Steven Heisler, Jeff Nardi, Stephen Carpiniello, Peter DeVittorio, Michael Marinelli and Michael Walther, Plaintiffs, v. Stephen MALFITANO, individually, Joseph Cannella, individually, Thomas Scappaticci, individually, Dominick Pascale, individually, David Hall, individually, and the Town/Village of Harrison, New York, Defendants.
• Docket Number: No. 07 Civ. 9617 (WCC).,07 Civ. 9617 (WCC).
• Decision Date: 25 June 2008

567 F.Supp.2d 506 Ralph TANCREDI, Edward Arce, William C. Duffelmeyer, Arthur Marinelli, Steven Heisler, Jeff Nardi, Stephen Carpiniello, Peter DeVittorio, Michael Marinelli and Michael Walther, Plaintiffs,
v.
Stephen MALFITANO, individually, Joseph Cannella, individually, Thomas Scappaticci, individually, Dominick Pascale, individually, David Hall, individually, and the Town/Village of Harrison, New York, Defendants. No. 07 Civ. 9617 (WCC). United States District Court, S.D. New York. June 25, 2008.

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Jonathan Lovett, Esq., of Counsel, Lovett & Gould, LLP, White Plains, NY, for Plaintiffs.

Mark N. Reinharz, Esq., of Counsel, Bond Schoeneck & King PLLC, Garden City, NY, for Defendants.

OPINION AND ORDER

WILLIAM C: CONNER, Senior District Judge:

Plaintiffs, Ralph Tancredi ("Tancredi"), Edward Arce ("Arce"), William C. Duffelmeyer ("Duffelmeyer"), Arthur Marinelli ("A. Marinelli"), Steven Heisler("Heisler"), Jeff Nardi ("Nardi"), Stephen Carpiniello ("Carpiniello"), Peter DeVittorio ("DeVittorio"), Michael Marinelli ("M. Marinelli") and Michael Walther ("Warmer"), bring this action under 42 U.S.C. § 1983 alleging violations of their rights under the Fourth Amendment of the United States Constitution and violations of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2520. Defendants, Stephen Malfitano ("Malfitano"), Joseph Cannella ("Cannella"), Thomas Scappaticci ("Scappaticci"), Dominick Pascale ("Pascale"), David Hall ("Hall") and the Town and Village of Harrison, New York (the "Town" or "Harrison") moved to dismiss plaintiffs' claims pursuant to FED.R.CIV.P. 12(b)(6) or for summary judgment pursuant to FED. R.CIV.P. 56. For the reasons stated below, defendants' motion for summary judgment is granted.

BACKGROUND

Plaintiffs are employed by the Town Police Department (the "Department"). (Complt. ¶ 3.) Defendants Malfitano, Cannella and Scappaticci at all relevant times were duly elected members of the Town Board and the Town Board of Police Commissioners. (Id. ¶ 4.) Defendant Pascale at all relevant times was employed by the Department as a Sergeant and was in charge of the Department's communications system and all recording devices. (Id. ¶ 5.) Defendant Hall at all relevant times was the Chief of Police. (Id. ¶ 6.)

Plaintiffs allege that, prior to October 19, 2007, Pascale and Hall surreptitiously altered the Department's 911 communications system so as to automatically audio record the conversations of any person at the front desk area in Department Headquarters ("Headquarters"). (Id. ¶ 12.) Plaintiffs allege that they did this without the knowledge, permission or consent of plaintiffs or others. (Id.) Plaintiffs allege that, by this means, Hall and Pascale, among others, recorded and listened to the conversations of plaintiffs and others. (Id. ¶ 13.)

Plaintiffs allege that Malfitano, Cannella and Scappaticci have, over the past two years, been repeatedly advised that Hall and other high-ranking members of the Department have engaged in criminal wrongdoing. (Id. ¶ 14.) Plaintiffs allege that, despite this knowledge, Malfitano, Cannella and Scappaticci have refused to

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take any remedial action to prosecute or remove Hall and others. (Id. ¶ 15.) Plaintiffs claim that through this inaction they have knowingly authorized, ratified or adopted as municipal practice the commission of those crimes, including the recording of conversations at the front desk. (Id. ¶ 16.)

Plaintiffs bring this action on their own behalf and as a putative class action pursuant to FED.R.CIV.P. 23 on behalf of all persons who, without their knowledge or consent, have had their conversations at the front desk of Headquarters recorded.¹ (Id. ¶¶ 8-11.)

DISCUSSION

I. Legal Standard

A motion brought under FED.R.CIV.P. 12(b)(6) posits that the plaintiff has failed "to state a claim upon which relief can be granted." FED.R.CIV.P. 12(b)(6). On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well-pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005); In re AES Corp. Sec. Litig., 825 F.Supp. 578, 583 (S.D.N.Y.1993) (Conner, J.). In assessing the legal sufficiency of a claim, the Court may consider only the facts alleged in the complaint, and any document attached as an exhibit to the complaint or incorporated in it by reference. See FED.R.CIV.P. 10(c); Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir.1999); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir.1996).

On a motion to dismiss pursuant to FED. R.CIV.P. 12(b)(6), the issue is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir.2004) (internal quotation marks and citation omitted). The fact pleading standard is "a flexible `plausibility standard' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (emphasis in original); see Ello v. Singh, 531 F.Supp.2d 552, 562 (S.D.N.Y.2007). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which plaintiff complains are insufficient as a matter of law. See Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978).

Summary judgment is appropriate when there is no genuine issue of material fact and one party is entitled to judgment as a matter of law. See FED. R. CIV. P 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden is on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91

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L.Ed.2d 265 (1986). In deciding whether to grant summary judgment, the Court resolves all ambiguities and draws all permissible factual inferences in favor of the non-moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

II. Local Rule 56.1

Plaintiffs argue that defendants' motion for summary judgment should be summarily denied, because defendants did not serve or file a separate, short and concise statement, in numbered paragraphs, of the undisputed material facts pursuant to S.D.N.Y. Local Civil Rule 56.1. (Pls. Mem. Opp. Mot. Dismiss at 1.) According to the relevant part of the Rule, which is applicable in the United States District Courts for the Eastern and Southern Districts of New York: "[u]pon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion." S.D.N.Y. LOCAL CIV. R. 56.1(a) (emphasis in original). "A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) (citations omitted).

In its exercise of this broad discretion, the Court will overlook defendants' failure to adhere to Local Civil Rule 56.1 because: defendants submitted evidence in the form of affidavits to which plaintiffs responded; the facts about the front desk area upon which we rely to determine this motion are not in dispute and plaintiffs have not alleged that they suffered any prejudice from the failure, nor could they because the relevant facts were readily apparent from the "Facts" section of the memorandum of law and the supporting affidavits. See Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 156 n. 2 (2d Cir.2003) (noting that failure to comply with Local Civil Rule 56.1 was excused since the relevant facts were apparent from the parties' submissions and there was no evidence of prejudice from the defect); Gilani v. GNOC Corp., 2006 WL 1120602, at *2 (E.D.N.Y. Apr. 26, 2006) (exercising court's discretion to overlook the parties' failure to submit statements pursuant to Local Civil Rule 56.1 where defendant provided depositions of several individuals with personal knowledge and the parties both had...