Ruotolo v Mussman & Northey
2012 NY Slip Op 30860(U)
April 3, 2012
Sup Ct, NY County
Docket Number: 109449/2008
Judge: Saliann Scarpulla
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Index Number : 109449/2008
MUSSMAN & NORTHEY
Sequence Number : 002
MOTION SEP. NO.
The followlng papem, numbered I to
Notlar of MotlonlOrder to Show Cause
,were read on thlr motlon tolfor
-Affldavlta - Exhlblts
IW s ) .
IN O W .
Upon the foregoing paperq, It 1 ordered that thls motion I
decided per the memorandum decision dated
which disposes of motion sequence(s) no.
COUNTY CLERK'S OFFICE
I ' 3
CHECK AS APPROPRIATE: ...........................
-1 SALIANN SICARVULLA
1. CHECK ONE:
3. CHECK IF APPROPRIATE: ................................................
DO NOT POST
0 NON-FINAL DISPOSITION
GRANTED IN PART
Index No.: 109449/2008
Submission Date: 12/15/201 I
- againstMUSSMAN & NORTHEY, BONNIE MUSSMAN,
and REBECCA NORTHEY,
Catafago Law Firm, P.C.
The Empire State Building
350 Fifth Ave., Suite 4810
Traub Lieberman Straus & Shrewsberry LLP
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthorn, NY I OS32
Papers considered in review of this motion for summary judgment:
Notice of Motion . . . . . . . . . . . . . 1
Mem of Law in Support. . . . . . . , 2
Aff of Angel Ruotolo . . . . . . . . . 3
Aff of Boyd Lemon . . . . . . . . . .. 4
Aff of Edward Mamet . . . . . . . . . .5
Reply Mem of Law . . . . . . . . . . . .6
APR 05 2012
COUNTY CLERKS OFFICE
HON. SALIANN SCARPIXLA, J.1
In this legal malpractice action, defendants Mussrnan & Northey (“M&N”),
Bonnie Mussman (“Mussman”) and Rebecca Northey (“Northey”) (collectively
“defendants”) move for summary judgment dismissing the complaint.
Plaintiff Angelo Ruotolo (“Ruotolo”) is a former New York City Police
Department (“NYPD”) officer. In June 2003, while still employed with the NYPD,
Ruotolo commenced a civil rights action in the IJnited States District Court for the
Southern District of New York (“the civil rights action”) against the City of New York
and several NYPD supervisors (collectively “the City defendants”). Non-party William
Rold (“Rold”) initially represented Ruotolo in the civil rights action.
In the civil rights action Ruotolo alleged that the City defendants retaliated against
him for writing a report (“the Report”) about the possible health effects of environmental
contamination in the 50thprecinct, where Ruotolo served as a Command Safety Officer.
Ruotolo alleged that after writing the Report, the City defendants arbitrarily denied hiin
time off and overtime, reassigned him repeatedly, and disciplined him for trivial reasons.
Ruotolo asserted claims that these retaliatory actions violated the First Amendment and
Due Process clauses of the U.S. Constitution, and various state whistleblower laws.
In November 2003, the City defendants moved to dismiss Ruotolo’s complaint,
arguing that the Report was not protected by the First Amendment because Ruotolo
prepared it in his capacity as a public employee, not as a private citizen. On August 25,
2004, Judge Stein denied the City’s motion with respect to the First Amendment and Due
Process claims but granted the motion with respect to the state whistleblower claims.
Then, in February 2004, the NYPD charged Euotolo with visiting an out of
borough location while on duty, subsequently placed him on modified duty and
confiscated his firearms. Ruotolo eventually retired from the NYPD without a permit to
carry a firearm as a civilian. Also, by mid-2004 conflicts had arisen between Ruotolo and
Rold, his attorney in the civil rights action, and, in May, 2004, Rold withdrew as counsel
for Ruotolo. Thereafter, M&N began representing Ruotolo in the civil rights action.
On October 13, 2004, M&N moved to amend and supplement Ruotolo’s initial
complaint in the civil rights action to add allegations concerning the City defendants’
placing Kuotolo on modified duty and confiscating his fireamis. Ruotolo’s motion to
amend was granted on August 2,2005.
According to defendants, Kuotolo also wanted to assert a separate Due Process
claim based on the NYPD’s confiscation of his firearins and suspension of his firearm
privileges. Defendants purportedly told Ruotolo that this claim was not viable and that he
should retain separate counsel to pursue available state law remedies. Ruotolo denies that
defendants ever advised him to retain separate counscl for this claim.
Ruotolo was deposed in March, 2005, while Ruotolo’s motion to amend was
pending. At the deposition, Ruotolo testified about a conversation he had about the
Report with a Police Benevolent Association (“PPRA”) attorney in April 2000. The PBA
attorney came to the 50thprecinct while Ruotolo was on duty. The PBA attorney asked
Ruotolo about the Report and purportedly told Ruotolo that he was at the precinct
specifically to speak with him about the Report. Ruotolo’s supervisor was also at the
meeting. Defendants were unaware of the conversation between Ruotolo and the PBA
attorney prior to Ruotolo’s deposition.
In November, 2005, the City defendants moved for summary judgment dismissing
the civil rights action, arguing that no reasonable juror could believe that the City
defendants retaliated against Ruotolo for writing the Report. The City also argued that
Ruotolo was time-barred from recovering for any alleged retaliation which occurred
before July 8,2000. On February 3, 2006, Judge Stein dismissed the claims that were
violative of the statute of limitations, but otherwise denied the summary judgrnenl motion.
Before the action could proceed to trial, the United States Supreme Court issued its
decision in Garcetti v. Ceballus, 547 U.S. 410 (2006). In Garcetti, the Supreme Court
held that the First Amendment does not “protect a government employee €rom discipline
based on speech made pursuant to the employee’s official duties.” 547 [J.S. at 41 3.
Thereafter, the City defendants renewed their motion for summary judgment
dismissing Ruotolo’s complaint on the grounds that the Report arose from Ruotolo’s
official duties as a police officer, and thus was not protected by the First Amendment. In
opposition, M&N argued that the amended complaint should in fairness be read to include
Ruotolo’s conversation with the PBA attorney, which M&N contended were not pursuant
to Ruotolo’s official job duties.
On July 19,2006, Judge Stein granted the City defendants’ motion for summary
judgment, holding that Ruotolo prepared the Report pursuant to his ofilcial job duties and
therefore had no First Amendment claim with respect to the Report. Ruotolo v. Ct of
New York, 2006 U.S. Dist. LEXIS 49903, *lo-] 1 (S.D.N.Y. July 19,2006).’ Because
Ruotolo had not pled any claim based upon the conversation with the PBA attorney in
either the initial or amended complaints, Judge Stein based his dismissal of the civil rights
action solcly on claims arising from the Report itself. However, Judge Stein noted that
even if he had considered Ruotolo’s discussion with the PBA attorney, Ruotolo’s First
Amendment claim would fail because that discussion was held pursuant to Ruotolo’s
official job duties, which included ‘‘answcriiig questions about safety issues at the
precinct.” Ruotolo v. City ofNew Yo& 2006 U.S. Dist. LEXIS 49903, “12-13 (S.D.N.Y.
July 19, 2006)’
Thereafter, M&N moved to vacate the dismissal of the civil- rights action and to
again amend the complaint to add specific allegations relating to Ruotolo’s conversation
with the PBA attorney. Judge Stein denied the motion on August 15, 2006. See Ruotolo
v. City ofNew York, 2006 U.S. Dist. LEXIS 57346 (S.D.N.Y. August 15,2006). The
‘IJnited States Court ofAppeals for the Second Circuit affirmed Judge Stein’s decision on
February 6,2008. See Ruotolo v. City ofNew York, 5 14 F.3d 184 (2d Cir. 2008).
M&N ceased representing Ruotolo in 2006. M&N did not represent Ruotolo on
his appeal to the Second Circuit,
’ Judge Stein also held that because Ruotolo’s Due Process claims related solely to
the alleged violation of his First Amendment right of free speech, the Due Process claims
would likewise be dismissed.
* The official job description for the Command Safety Officer states that he or she
is responsible for “act[ing] as a liaison for command and safety issues.”
Ruotolo commenced this action in July 2008, alleging that defendants coininitted
legal malpractice by f d i n g to amend the complaint in the civil rights action a second timc
before dismissal, to include Ruotulo’s claim for violation of his constitutional property
rights, and by failing to “specify facts establishing the requisite retaliation and retaliatory
motive of [the City defendants].” Ruotolo also alleges that defendants failed to plead
violations of whistleblower statutes and labor codes, including the Clean Air Act of 1972,
the Surface Transportation Act of 1982, the Sarbanes Oxley Act of 2002, OSHA
regulations, and the False Claims Act of 1986. Finally, Ruotolo alleges that Mussman
accepted a position as a New York City administrative judge while she represented him,
in breach of defendants’ duty of loyalty to Ruotolo.
Defendants now move for summary judgment dismissing the complaint, arguing
that the malpractice allegations fail as a matter of law because Ruotolo would not have
prevailed in the underlying suit notwithstanding defendants’ alleged negligence.
Specifically, defendants argue that Ruotolo’s conversation with the PBA attorneys was
not protected speech because it was pursuant to Ruotolo’s official job duties and did not
relate to a matter of public concern.
Defendants hrther contend that any potential First Amendment claim for
retaliation based on Ruotolo’s conversation with the PRA attorney was barred by the
statute of limitations, and that Ruotolo would have been unable to show that the
retaliation resulted froin the conversation.
Defendants also argue that Ruotolo’s claimed Due Process claim would have
failed because Ruotolo did not have a protected property interest in a post-retirement
pistol permit, and because Ruotolo had adequate remedies under state law to remedy the
alleged deprivation of his gun license. Defendants maintain that they did in fact plead
state whistleblower claims. Moreover, defendants argue that Ruotolo does not allege any
factual or legal bases for arguing that he had a viable claim under the Clean Air Act of
1972, the Surface Transportation Act of 1982, the Sarbanes Oxley Act of 2002, OSHA
regulations, or the False Claims Act of 1986. Lastly, defendants argue that Ruotolo may
not maintain a legal malpractice claim based solely on Mussman’s purported conflict of
In opposition, Ruotolo argues that his conversation with the PBA attorney was not
pursuant to his official job duties and that the speech was concerning a matter public
health and safety, thus his communication was protected by the First Amendment and
should have been pled in the civil rights action. Ruotolo maintains that it would have
been futile to pursue the state law remedies for his Due Process claim, and that
defendants never advised him to pursue these remedies. Ruotolo further contends that the
First Amendment claims based on the PBA conversation were not time-barred because
these allegations related back to the original claims.
A movant seeking suinrnaiy judgment must make aprimafacie showing of
entitlcrnent to judgment as a matter of law, offering sufficient evidence to eliminate any
inaterial issues of fidct. Winegradv. New York Univ.
Med. Ctr., 64 N.Y.2d 851, 853
(1985). Once a showing has been made, the burden shifts to the opposing party, who
must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp.,
68 N.Y.2d 320,324 (1986); Zuckerman v. City ofNew York, 49 N.Y.2d 557 (1980).
To prevail in a legal malpractice action, a plaintiff must demonstrate that he or she
would have succeeded on the merits of the underlying action “but for” the attorney’s
negligence. Aquino v. Kuczinski, Vila & Assoc., P.C., 39 A.D.3d 216, 218-19 (lhtDept.
2007). A defendant is entitled to summary judgment where the defendant shows that the
plaintiff would not have prevailed in the underlying action notwithstanding the alleged
malpractice. See Snolis v. Clare, 81 A.D.3d 923,925-26 (2d Dept. 201 1).
Here, defendants have made a prima face showing that Ruotolo would not have
prevailed on his First Amendment claim even if defendants had amended the complaint to
include Ruotolo’s conversations with the PBA attorney in April, 2000. The First
Amendment does not protect public employees from adverse employment decisions based
on communications they make pursuant to their offkial duties, see Weintraub v. Bd, o
Educ., 593 F.3d 196, 200-01 (2d Cir. 2010), and defendants have submitted sufficient
evidence to show that Ruotolo’s conversation with the PRA attorney was made pursuant
to his official duties.
Ruotolo testified that the PBA attorney asked him about the Report, which Ruotolo
wrote in his official capacity. This meeting occurred while Ruotolo was on duty and
while his supervisor was present. Further, the communication fit within Ruotolo’s job
description, which states that he was responsible for “act[ing] as a liaison for command
on safety and health issue^."^ Thus, Ruotolo would not have had a viable First
Amendment claim based upon his discussion with the PBA attorney. See Platt v. The Inc.
Vill.OfSouthampton, 391 Fed. Appx. 62, 64 (2d Cir. 2010) (“We cannot say that a police
officer speaking to a public official about his concerns over public safety issues is
speaking in his capacity as a citizen, as opposed to his capacity as a police officer.”).
In his July 19, 2006 decision, Judge Stein addressed, albeit in dicta, Ruotolo’s
claim that his conversation with the PBA attorney about the Report was protected by the
First Amendment. While Judge Stein did not consider the conversation between the PBA
Ruotolo argues that hc was acting as a private citizen when he spoke to the PBA
because the communication was in violation of NYPD Patrol Guide 2 12-76, which states
that officers may not release information to other New York City agcncies concerning
employees of those agencies if the City may become a party to an action. Even assuming
Ruotolo’s conversation with the PBA violated this rule, failing to coinply with this
regulation does not transform Ruotolo’s specch to that of a private citizen for purposes of
the First Amendment. See Anemone v. Metropolitan Tramp. Auth., 629 F.3d 97, 116 (2d
Cir. 201 1) (“When a government employee concededly engages in speech pursuant to his
official duties, the fact that he persists in such speech after a supervisor has told him to
stop does not, without more, transform his speech into protected speech made as a private
attorney and Ruotolo in reaching his decision because it had not, at that time, been pled,
Judge Stein’s observation that this conversation with the PBA’s attorney was a part of
Ruotolo’s official duties coinports with my holding here. See Ruotolo, 2006 U.S. Dist.
LEXIS 49903 at * 12-13.
Defendants have also shown that Ruotolo would not have succeeded on a Due
Process claim bascd on the City defendants’ deprivation of Kuotolo’s firearms. Where a
govermnent agency randomly and arbitrarily deprives a citizen of a protected property
interest, due process is satisfied if the state provides an adequate post-deprivation remedy.
Hellenic Am. Neighborhood Action Comm. v. New York City, 101 F.3d 877, 880 (2d Cir.
1996). Here, Ruotolo had the option of challenging the City defendants’ determination
through an Article 78 proceeding, which federal courts have repeatedly recognized as a
meaningful post-deprivation remedy that satisfies procedural due process. See Hellenic,
101 F.3d at 881. Accordingly, Ruotolo’s alleged Due Process claim would have failed as
a matter of lawn4
Ruotolo also claims ihat M&N failed to assert various whistleblower and labor law
claims in the civil rights action. First, M&N did include whistleblower claims in the civil
rights action, which claims Judge Stein dismissed on August 25,2004. Further, Ruotolo
Ruotolo contends in opposition to the summary judgment motion that defendants
were negligent in failing to advise hiin to pursue an Article 78 proceeding. T-lowever,
RuotoIo did not plead this allegation in his complaint, thus the Court will not consider it
in opposition to this suimiary j udgment motion.
fails to allege any factual or legal basis to suggest he would have a viable claim as to the
Clean Air Act uf 1972, the Surface Transportation Act of 1982, the Sarbanes Oxley Act
of 2002, OSHA regulations, or the False Claims Act of 1986. Thus, M&N is entitled to
sumnary judgment dismissing any legal malpractice claims based upon defendants failure
to plead violations of these statutes.
Lastly, the Court dismisses Ruotolo’s claim that defendants breached their duty of
loyalty when Mussman became an administrative judge with the City. In support of this
summary judgment motion, Mussman affirms that she became an administrative law
judge with the New York City Housing Authority (not the City of New York) in 2008,
long after she ceased representing Ruotolo. Ruotolo submits nothing except his own
conjecture to dispute Mussman’s affirmation that she did not work for the City of New
York while she represented hirnn5
In accordance with the foregoing, it is
’ In any event, a conflict of interest is insufficient on its own to support a
malpractice cause of action. See Sumo Container Sta. v, Evans, Ow, Pacelli, Norton &
Luffan,P.C., 278 A.D.2d 169, 170-71 (lSt
ORDERED that the motion by defendants Mussman & Northey, Bonnie Mussman
and Rebecca Northey for summary judgment dismissing the complaint of plaintiff Angelo
Ruotolo is granted; and is hurther
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the decision and order of the Court
New York, New York
April 3, 2012
A 05 2012