Wood v. Incorporated Village of Patchogue of Ny

• Decision Date: 31 March 2004
• Docket Number: No. 01-CV-0229(ADS)(ARL).,01-CV-0229(ADS)(ARL).
• Citation: 311 F.Supp.2d 344
• Parties: Donald R. WOOD, Jr., individually and on behalf of all other similarly situated, Plaintiff, v. INCORPORATED VILLAGE OF PATCHOGUE OF NEW YORK, F. Taldone, individually and in his capacity as constable, Mary Pontieri, individually and in her capacity as former Village of Patchogue clerk, Todd C. Johnson individually and in his capacity as former Village of Patchogue treasurer, Rose Marie Berger, individually and in her capacity as former Village of Patchogue clerk, Deidre O'Brien, individually and in her capacity as constable, Stephen Keegan, individually and in his capacity as former mayor of Patchogue, Jeffrey Kracht, individually and in his capacity as former chief constable, Nancy Auer, individually and in her capacity as Village of Patchogue Justice Court clerk, Louis Tomeo, individually and in his capacity as chief constable, Vincent Yannacone, Jr., individually and in his capacity as Judge of the Village of Patchogue Justice Court, Gail Reilly, individually and in her capacity as Village of Patchogue Justice Court clerk, Richard Collocola, individually and in his capacity as Village of Patchogue clerk, Patrick O'Connell, individually and in his capacity as Justice of the Village of Patchogue Court, Deborah Gustam, individually and in her capacity as Clerk of the Village of Patchogue Justice Court, Edward Ihne, individually and in his capacity as Mayor of Patchogue and in his capacity as former village trustee, Jerry Avellino, individually and in his capacity as constable, Salvatore Barbara, individually and in his capacity as constable, Nicholas Chirillo, individually and in his capacity as constable, Alexander Costello, individually and in his capacity as constable, Frances Cuozzo, individually and in his capacity as constable, Richard Debetta, individually and in his capacity as constable, Barry Donadio, individually and in his capacity as constable, Michael Donovich, individually and in his capacity as constable, Daniel Durinick, individually and in his capacity as constable, Scott Eckert, individually and in his capacity as constable, Erick Evrly, individually and in his capacity as constable, Richard Fiorucci, individually and in his capacity as constable, Casto Gonzalez, individually and in his capacity as constable, William B. Hart, individually and in his capacity as constable, Donald Henderson, individually and in his capacity as constable, Ranald Holcombe, individually and in his capacity as constable, Gerald Lenox, individually and in his capacity as constable, William Logan, individually and in his capacity as constable, Karl Makinen, individually and in his capacity as constable, Peter Marks, individually and in his capacity as constable, Erick McFarlan, individually and in his capacity as constable, James Nudo, individually and in his capacity as constable, Brian Panuccio, individually and in his capacity as constable, Kevin Petterson, individually and in his capacity as constable, Susan Ralph, individually and in his capacity as constable, Stephen E. Ramsland, individually and in his capacity as constable, Ferdinando Sabellichi, individually and in his capacity as constable, Cosmo Stoia, individually and in his capacity as constable, Luis Velez, individually and in his capacity as constable, Basil Wattley, individually and in his capacity as constable, Joseph Wood, individually and in his capacity as constable, Nicholas Zambelli, individually and in his capacity as constable, Defendants.
• Court: U.S. District Court — Eastern District of New York

311 F.Supp.2d 344

Donald R. WOOD, Jr., individually and on behalf of all other similarly situated, Plaintiff, v. INCORPORATED VILLAGE OF PATCHOGUE OF NEW YORK, F. Taldone, individually and in his capacity as constable, Mary Pontieri, individually and in her capacity as former Village of Patchogue clerk, Todd C. Johnson individually and in his capacity as former Village of Patchogue treasurer, Rose Marie Berger, individually and in her capacity as former Village of Patchogue clerk, Deidre O'Brien, individually and in her capacity as constable, Stephen Keegan, individually and in his capacity as former mayor of Patchogue, Jeffrey Kracht, individually and in his capacity as former chief constable, Nancy Auer, individually and in her capacity as Village of Patchogue Justice Court clerk, Louis Tomeo, individually and in his capacity as chief constable, Vincent Yannacone, Jr., individually and in his capacity as Judge of the Village of Patchogue Justice Court, Gail Reilly, individually and in her capacity as Village of Patchogue Justice Court clerk, Richard Collocola, individually and in his capacity as Village of Patchogue clerk, Patrick O'Connell, individually and in his capacity as Justice of the Village of Patchogue Court, Deborah Gustam, individually and in her capacity as Clerk of the Village of Patchogue Justice Court, Edward Ihne, individually and in his capacity as Mayor of Patchogue and in his capacity as former village trustee, Jerry Avellino, individually and in his capacity as constable, Salvatore Barbara, individually and in his capacity as constable, Nicholas Chirillo, individually and in his capacity as constable, Alexander Costello, individually and in his capacity as constable, Frances Cuozzo, individually and in his capacity as constable, Richard Debetta, individually and in his capacity as constable, Barry Donadio, individually and in his capacity as constable, Michael Donovich, individually and in his capacity as constable, Daniel Durinick, individually and in his capacity as constable, Scott Eckert, individually and in his capacity as constable, Erick Evrly, individually and in his capacity as constable, Richard Fiorucci, individually and in his capacity as constable, Casto Gonzalez, individually and in his capacity as constable, William B. Hart, individually and in his capacity as constable, Donald Henderson, individually and in his capacity as constable, Ranald Holcombe, individually and in his capacity as constable, Gerald Lenox, individually and in his capacity as constable, William Logan, individually and in his capacity as constable, Karl Makinen, individually and in his capacity as constable, Peter Marks, individually and in his capacity as constable, Erick McFarlan, individually and in his capacity as constable, James Nudo, individually and in his capacity as constable, Brian Panuccio, individually and in his capacity as constable, Kevin Petterson, individually and in his capacity as constable, Susan Ralph, individually and in his capacity as constable, Stephen E. Ramsland, individually and in his capacity as constable, Ferdinando Sabellichi, individually and in his capacity as constable, Cosmo Stoia, individually and in his capacity as constable, Luis Velez, individually and in his capacity as constable, Basil Wattley, individually and in his capacity as constable, Joseph Wood, individually and in his capacity as constable, Nicholas Zambelli, individually and in his capacity as constable, Defendants.

No. 01-CV-0229(ADS)(ARL).

United States District Court, E.D. New York.

March 31, 2004.

COPYRIGHT MATERIAL OMITTED

Scott & Scott, L.L.P. by Jonathan C. Scott, Esq. and Robert J. Scott, Esq., Melville, NY, for Plaintiff.

L'Abbate, Balkan, Colavita & Contini, L.L.P. by Vincent R. Fontana, Esq., Garden City, NY, for Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This case arises out of claims by the plaintiff Donald R. Wood, Jr. ("Wood" or the "plaintiff"), on behalf of himself and a class of similarly situated persons, that the defendants the Village of Patchogue ("Patchogue" or the "Village") and forty eight of its present and former officials and employees (collectively, the "defendants") created a scheme under which they, under color of law, purported to enforce traffic and other laws and collect purported fines for alleged violations of those laws through a distinct enterprise in violation of, among other things the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., ("RICO") and 42 U.S.C. § 1983 ("Section 1983"). Presently before the Court is the defendants' motion to dismiss the first amended complaint pursuant to Federal Rules of Civil Procedure ("Fed. R. Civ.P.") 12(b)(6) and 9(b).

I. BACKGROUND

At the outset, the Court notes that the amended complaint contains more than 75 pages and is in excess of 175 paragraphs. This complaint is very similar, except for the names, dates, and several facts, to two other class action complaints filed by plaintiff's counsel in this Court. See Brewer v. Village of Old Field, et al., No. 00 Civ. 6072 and Robert M. Coco, Jr. v. Incorporated Village of Belle Terre, No. 01 Civ. 5061.

The facts are taken from the amended complaint and are taken as true for purposes of this motion.

The plaintiff commenced this action on January 16, 2001, alleging that at some point prior to 1991, the Village transferred, or was legally bound to transfer by approval of the majority of its voters, its police functions to Suffolk County (the "County").

Despite having allegedly transferred all of its police authority to the County, the plaintiff claims that in or about 1991, the Village, led by then Mayor Franklin Leavandosky ("Leavandosky"), "hatched the Scheme" to create a private police force known as the constabulary. Am. Compl. ¶ 86. At that time, the Village submitted proposed statements outlining the duties of its constables (the "Duties Statements") to the Suffolk County Civil Services Department (the "Civil Services Department"). These Duties Statements indicated that holding a gun permit was a qualification of employment as a constable.

In a March 23, 1994 letter to Leavandosky, the Commissioner of the New York State Division of Criminal Justice Services ("Division of Criminal Justice Services"), denied the Village's request to register their constables in the County's Peace Officer Registry. The plaintiff alleges that this letter placed Leavandosky on notice that "a Village constabulary would be in violation of New York Criminal Procedure Law ("CPL") § 2.10(1) as being contrary to local law and controlling court decisions." Am. Compl. ¶ 31.

By letter dated November 14, 1996, Edward Ihne ("Ihne"), acting as the "Commissioner of the Village" made another request to the Division of Criminal Justice Services to allow the Village's constables to be registered in the County's Peace Officer Registry. This request was also denied. The plaintiff alleges that this letter also served to remind Ihen that the Village was not a "`duly authorized law enforcement agency.'" Am. Compl. ¶ 89.

By letter dated June 23, 1998, the Civil Services Department advised then Mayor Stephan Keegan ("Keegan") that, among other things, the Village must cease the practice of allowing employees to carry guns while enforcing the Village Code. This letter also demanded that the Village respond with a confirmation that this practice had ceased. It is alleged that Keegan never responded to this letter and that the Village constables continued to carry guns in the course of their duties.

By letter dated July 9, 1998, Keegan advised the Civil Services Department that the constables only wrote tickets for Village Code violations. In a letter dated March 2, 1999, the Civil Services Department again stated that because constables are not police officers, it was inappropriate for them to carry guns during the course of their employment. This letter also indicated that its prior approval of the Duties Statements allowing constables to carry guns was erroneous. The Civil Services Department requested that the Village submit new Duties Statements affirming that constables do not carry guns. The plaintiff alleges that as of 1999, the Village had not submitted the Duties Statements requested by the Department.

It is further alleged that in a December 2, 1999 grant application, the Village of Patchogue Justice Court (the "Justice Court") indicated that it had adjudicated more than 6600 vehicle and traffic law citations.

The plaintiff also alleges that "two widely publicized involving similar schemes lawsuits [one in 1967 involving the Village of Port Jefferson and one in 1997 involving the Village of Old Field] were adjudicated." Am. Compl. ¶ 93. These lawsuits provided the defendants with knowledge that "the establishment of a private police force by a village who had previously conceded law enforcement jurisdiction to the county was illegal." Id. The plaintiff also alleges that a 1984 New York Court of Appeals decision also held that actions by an unauthorized Village constabulary were void.

The plaintiff further claims that the defendants made misrepresentations to the County by submitting certified annual payroll statements to the Civil Service Department, certifying that the employees performed solely the duties as approved in the Duties Statements. However, the plaintiff alleges that the Chief Constables Kracht and Tomeo, and Mayors Ihne and Keegan allowed and directed the constables to perform duties outside their authority with respect to the enforcement of vehicle and traffic laws.

A. As to the Plaintiff Donald R. Wood, Jr.

On November 25, 2000, Wood was driving in Patchogue when he was detained by Constable F. Taldone ("Taldone") for making an illegal right turn. At that time, Taldone was driving a vehicle with a flashing red emergency light, wearing a police uniform with a badge and carrying a gun. Wood claims that Taldone held...