US v. Private Sanitation Industry Ass'n
| Decision Date | 13 October 1994 |
| Docket Number | No. CV-89-1848.,CV-89-1848. |
| Citation | 899 F. Supp. 974 |
| Parties | UNITED STATES of America, Plaintiff, v. PRIVATE SANITATION INDUSTRY ASSOCIATION OF NASSAU/SUFFOLK, INC., et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
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Paul A. Batista, New York City, for Vincent Maggio, Unique Sanitation Corp., Maggio's M & P Carting, U-Need-A-Roll-Off Corp., Joseph Ferrante, Nicholas Ferrante, Bonsera, Inc., d/b/a Star, Joseph Bonsera, Michael Bonsera.
Fred P. Bennett, Melville, New York, for David Pamlanye, Steven Pamlanye.
Warren M. Berger, Commack, New York, for Ciano & Sons, Richard Ciano.
Judd Burstein, New York City, for Frank Notarantonio, Joseph Petrizzo, Robert Renna, Ace Garbage & Rubbish, Mets Roll-Off Service, Inc., Prudential Waste Disposal, TWA Sanitation, John Pagano.
Cohen, Weiss & Simon, Richard M. Seltzer, Joseph J. Vitale, New York City, for Local 813.
Paul F. Corcoran, Davis & Gilbert, New York City, for Detail Carting, Thomas Ronga.
Richard H. Cunningham, Kevin Fitzgerald, Smithtown, New York, for Ever Ready Sanitation, Sun Carting, James Winters, Glen Vilchek.
Brian D. Linder, Gallop Dawson & Clayman, New York City, for SSC Corporation, Salem Sanitary Carting, Salvatore Avellino, Michael Malena.
Peter J. Driscoll, Driscoll & Redlich, New York City, for Private Sanitation, C & C Refuse Carting, Glenn Thweatte, Hickey's Carting, Inc., Dennis Hickey, Allen Vesting.
James Druker, Garden City, New York, for V & J Rubbish Removal, James Allesandria.
James T. Gucciardo, Huntington, New York, for Harbor Carting, Raniero Colotosti.
Richard A. Miller, Miller & Skubik, Islandia, New York, for Enviro Carting, MCM Sanitation, Charles Cannizzaro, Anthony Miello.
Leonard Halpern, Halpern & Zuckerman, Bay Shore, New York, for Comet Carting, John Maratea.
Hoffman & Pollok, New York City, for A.A. & M. Carting Service, Michael Acquafredda.
George Lasch, Moriches, New York, for Michael Walstrum.
Peter H. Mayer, Clayton & Mayer, Hauppauge, New York, for Richard Carey.
Richard A. Miller, Islandia, New York, for A-1 Carting, Joseph Pezza, Pasquale Pezza, Hillside Carting, Peter Reali.
Steven B. Nacht, Setauket, New York, for John Senia.
Gilbert T. Perlman, Pasternack & Perlman, Great Neck, New York, for Long Island Rubbish.
John G. Poli, III, Raskin, Haas & Poli, Huntington, New York, for Pat Sesti.
Ronald G. Russo, Fischetti & Russo, New York City, for Associated Waste Disposal, Dependable Sanitation, Vito Aniello, John Haynes, Anthony Natale, Metro Waste, Inc., Monbro Sanitation Service, Anthony Montesano, Jr., Peter Marcello, Standard Commercial, Robert Schuman.
Joseph W. Ryan, Jr., Uniondale, New York, for Vigliotti Carting, Arnold Vigliotti.
Laura Sapienza, Farrell, Fritz, Caemmerer, & Cleary, Uniondale, New York, for B & D Carting, South Side Carting, Robert Husak, Orlando Velocci.
Stephen P. Scaring, P.C., Garden City, New York, for Daniel Finley Allen Co., Jamaica Ash, John Allen, Sara Allen, Emedio Fazzine.
Melvyn K. Roth, Garden City, New York, for II Cousins Carting, John Guglielmo.
Richard A. Miller, Islandia, New York, for Sail Carting, Edward DeMatteo, Ernest DeMatteo.
Lark J. Shlimbaum, Shlimbaum & Shlimbaum, Islip, New York, for Budget Roll-Off, Sunset Sanitation, Superior Waste, Frank Palopoli, Salvatore Palopoli.
Karen Silverman, LaRossa, Mitchell & Ross, New York City, for Anthony Vespucci.
Barry Slotnick, Slotnick & Baker, New York City, for Bernard Adelstein.
David Sutton, Garden City, New York, for Delta Carting, Ralph Pantony.
Jeffrey Waller, Huntington, New York, for Craig Comerford.
A. Jeffrey Weiss, New York City, for James J. Corrigan, Arthur Romersa, Vincent Montesano, Vinnie Monte's Waste Systems, Wayside Carting, Inc., Frank Rotundo.
Christopher G. Lehmann, Jody Kasten, Claire S. Kedeshian, Assistant U.S. Attorneys, Brooklyn, New York, for Plaintiff.
Plaintiff, the United States of America, moves for summary judgment pursuant to Federal Rule of Civil Procedure 56, providing for broad injective relief against defendant Nicholas Ferrante ("Ferrante") under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"). Defendant Ferrante requests a continuance to conduct discovery pursuant to Federal Rule of Civil Procedure 56(f) and seeks to strike from the Government's papers in support of its summary judgment motion references to the February 1994 guilty plea of Salvatore Avellino ("Avellino") in United States v. Avellino, 90-CR-446.
The United States brought this civil RICO action against 112 defendants, alleging that they engaged in a pattern of racketeering activity by committing illegal acts and by using force and threatening to use force against other individuals engaged in the collection of solid waste on Long Island. The underlying facts and the identities of the various defendants are set out in United States v. Private Sanitation Indus. Ass'n, 793 F.Supp. 1114, 1121-23 (E.D.N.Y.1992) ("PSIA"), familiarity with which is assumed.
For purposes of this motion, the relevant facts are as follows. Ferrante has been involved in the carting industry on Long Island through his companies Unique Sanitation ("Unique") and U-Need-A-Roll-Off ("U-Need"). Declaration of Joseph R. Vittorio ("Vittorio Decl.") ¶ 43; Declaration of Jerome J. Kowalski ("Kowalski Decl.") ¶ 32; Declaration of Peter Stramiello ("Stramiello Decl.") ¶ 39. In addition, Ferrante is reputed to be associated with the Luchese crime family. Plaintiff's Statement Pursuant to Local Rule 3(g) ("Plaintiff's 3(g) Statement") ¶ 2. In that capacity, Ferrante is reputed to have worked closely with Avellino, a reputed caporegime in the Luchese family, in controlling trade waste collection on Long Island. Plaintiff's 3(g) Statement ¶ 8; Declaration of Donald W. McCormick in Support of Plaintiff's Motion for Summary Judgment ("McCormick Decl."), ¶¶ 19-22. It is alleged that Ferrante was a principal "bagman" for Avellino and the Lucheses and, in that capacity, assisted Avellino on a regular basis in collecting extortion payments from carters for the Luchese crime family. Plaintiff's 3(g) Statement ¶ 13.
On October 17, 1986, Ferrante pleaded guilty to coercion in the first degree in violation of New York Penal Law § 135.65(1), a class D felony.1 Transcript of October 17, 1986 Plea Allocution in New York State County Court, Suffolk County ("Plea Transc."), p. 9 (Exh. 28 to McCormick Decl.). In pleading guilty, Ferrante stated:
Your Honor between on or about December 1981 and October 1983, in the County of Suffolk, I Nicholas Ferrante, intentionally and knowingly violated the law by inducing Robert Kubecka and Jerome Kubecka to refrain from bidding for and soliciting certain carting customers by instilling in the Kubeckas a fear that I would damage the Kubecka property.
McCormick Decl. ¶ 44; Plea Transc. at 10.2
It is alleged that from January 1982 through February 1985, Ferrante, U-Need and Unique Sanitation "knowingly, willfully and intentionally committed acts chargeable under state law at the time of their commission as grand larceny ... involving bribery, attempted grand larceny ... involving bribery, Bribery in the Second Degree, Attempted Bribery in the Second Degree, Rewarding Official Misconduct in the Second Degree, Bribe Receiving in the Second Degree, Attempted Bribe Receiving in the Second Degree, and Receiving Reward for Official Misconduct in the Second Degree." Complaint ¶ 160. It is also alleged that Ferrante and others attempted to and did take property from the Town of Oyster Bay "by unlawfully placing garbage in the Oyster Bay town dump, thereby taking garbage disposal space, without paying the required fees." Complaint ¶ 161. Ferrante is also alleged to have aided and abetted certain defendants in "soliciting and accepting bribes and rewards." Complaint ¶¶ 163, 164.
Summary judgment "shall be rendered forthwith if ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In order for the moving party to be successful, it must "point out to the district court ... that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1985). In opposing a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of its pleading, but its response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). The non-movant, however, "must do more that simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). "The mere existence of factual issues pertaining to immaterial facts will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985).
"The moving party is `entitled to a judgment as a matter of law' if the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1985). In deciding a summary judgment motion, the court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473 (2d Cir.1988). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d...
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