Vetro v Suffolk County Dist. Attorney's Off.

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Vetro v Suffolk County Dist. Attorney's Off. 2018 NY Slip Op 30221(U) January 10, 2018 Supreme Court, Suffolk County Docket Number: 09-40360 Judge: Denise F. Molia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDEX No. CAL. No. COPY 09-40360 17-003130T SUPREME COURT - STATE OF NEW YORK I.A.S. PART 39 - SUFFOLK COUNTY PRESENT: MOTION DATE 5-26-17 ADJ. DATE 6-16-17 Mot. Seq. #004 - MotD; CASEDISP Hon. DENISE F. MOLIA Acting Justice of the Supreme Court ---------------------------------------------------------------X FRANKJ.VETRO Plaintiff Pro Se 27 White Birch Circle Miller Place, New York 11764 FRANKJ. VETRO, Plaintiff, - against l THE SUFFOLK COUNTY DISTRICT ATTORNEY'S OFFICE, CHIEF PROSECUTOR THOMAS SPOTA, PROSECUTOR/SUPERVISOR CATHERAN LOEFFLER, ASSISTANT DISTRICT ATTORNEY ADINA WEIDENBAUM, ASSISTANT DISTRICT ATTORNEY KATHLEEN KEARON, ASSISTANT DISTRICT ATIORNEY MICHAEL MANNING, DISTRICT ATTORNEY SPOKESMAN ROBERT CLIFFORD, EACH RESPONDENT NAMES HEREIN IN THEIR [ OFFICIAL AND INDIVIDUAL CAPACITIES, " l JOHN DOES" and "JANE DOES" being those l persons unknown to Claimant each in their ! official and individual capacities, DENNIS M. BROWN, ESQ. Suffolk County Attorney · H. Lee Dennison Building 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, New York 11788-0099 I Defendants. ---------------------------------------------------------------X Upon the following papers numbered 1 to _1L read on this motion for summary judgment ; Notice of Motion and supporting papers 1 - 19 ; Answering Affidavits and supporting papers 20 - 35 ; (and aftei bea1 i11g eo1111sel in support and opposed re the motion) it is, · · ORDERED that the motion by defendants for summary judgment dismissing the complaint against them is granted as set forth herein, and is otherwise denied . This action was commenced by pro se plaintiff Frank J. Vetro to recover damages for the alleged acts of defendants attendant to plaintiffs arrest on February 8, 2006, for multiple counts of aggravated [* 2] Vetro v Suffolk County DJ\ Index No. 09-40360 Page2 harassmet1t in the second degree. Plaintiff asserts various causes of action as against the instant defendants, including negligence, breach of duty, fraud, malicious prosecution, and defamation. The various al legations can be distilled down to tlu·ee primary grievances: (1) that the Suffolk County District J\ttomey and the named individual assistant district attorneys prosecuted him for criminal charges without having performed a thorough investigation; (2) that defendants unjustifiably declined to prosecute one or more of plaintiff's accusers for obtaining his telephone records without permission; and (3) that employees of the Suffolk County District J\ttorney's Office made defamatory remarks to news media regarding his criminal case, which grossly exaggerated the magnitude of the charges against him. Specifically, plaintiff alleges defendants Cathleen Loeffler and Robert Clifford each defamed him by stating, to the media, that one of plaintiffs "victims was one of his former students," which has severely curtailed plaintifrs ability to obtain employment in the education field. Initially, pursuant to County Law§ 54, the action against Suffolk County District Attorney Thomas Spota, individually, will be deemed to be an action against Suffolk County. Further, the Suffolk County Attorney's instant motion mistakenly addresses the Suffolk County Police Department defendants named in a related action filed by plaintiff under index No. 09-40361. As the two actions were joined for the purposes of discovery and trial only, the Court will address only the claims asserted in the instant action. Accordingly, the County Attorney's application for summary judgment in favor of defendants in the related action is denied without prejudice to renewal in such action within the 120-day statutory period following the filing of the note of issue in that action. Defendants now move for summary judgment in their favor, arguing that plaintiff's claims should be limited to those asserted in his notices of claim; that the Suffolk County District Attorney's Office has absolute immunity arising from prosecution of criminal defendants; that defendants possess a qualified privilege; that probable cause existed at the time of plaintiff's arrest; that plaintiff has failed to plead his claims for official misconduct; and that conspiracy is not a recognized cause of action. In support of their motion, defendants submit, among other things, copies of the pleadings, a transcript of plaintiff's General Municipal Law§ 50-h hearing testimony, a transcript of Detective Wayne Ilcter's deposition testimony, copies of plaintiffs arrest paperwork, a transcript of plaintiff's plea al locution, and multiple suppo11ing depositions of complainants in plaintiffs criminal proceeding. It is undisputed that following plaintiffs arrest on February 8, 2006, he was held at the Suffolk County Police Department's Seventh Precinct overnight, and arraigned the next day. Each of the criminal complaints filed alleged plaintiff placed harassing phone calls to various complainants. The complainants each obtained temporary orders of protection in his or her favor. Plaintiff was arrested a second time, on June 1, 2006, and charged with criminal contempt in the second degree, for allegedly vio1ating one of those orders of protectjon. On March 26, 2008, plaintiff pleaded guilty lo two counts of aggravated harassment in the second degree, and was placed on interim probation for a period of one year. Upon his successful completion of interim probation on March 26, 2009, plaintiff was permitted to withdraw his previouslyentered pleas of guilty and enter pleas of guilty to two counts of the violation of harassment in the second degree, in their stead. Plaintiff was fined and, as a part of the plea agreement, he wajved the sealing of the record of each conviction. Pleas to violation-level offences ordinarily are sealed by the court pursuant to Criminal Procedure Law § I 60.55. [* 3] Yetro v Suffolk County DA Index No. 09-40360 Page 3 A party moving for summary judgment must make a primn facie shov.ring ofentitlement to judgment as a matter or law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Nomura Asset Capital Corp. v Cndwalader, Wickers/tam & Taft LLP, 26 NY3d 40, I 9 NYS3d 488 [2015] ; A lvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 11986]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Nomura, supra; see also Vega v Resta11i Co11str. Corp., 18 NY3d 499, 942 NYS2d 13 [2012]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (Dalie11do v Joh11so11, 147 AD2d 312, 543 NYS2d 987 12d Dept 19891). In deciding the motion, lhe Court must view all evidence in the light most favorab le to the nonmoving party (Nomura, supra; see also Ortiz v Varsity Holdings, LLC, l 8 NY3d 335, 339. 937 NYS2d 157 r20l 1]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Wi11egrad v New York Univ. M ed. Ctr., 64 NY2d 851, 487 NYS2d 316 r1985 J). The existence of probable cause constitutes a complete defense to causes of action alleging false arrest, false imprisonment, and malicious prosecution (see S inclair v City ofNew York , 153 AD3d 877, 878. 60 NYS3d 348 I2d Dept 20171). Probable cause "does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to s upport a reasonable belief that an offense has been committed or is being committed by the suspected individual, and probable cause must be judged under the totality of the circumstances'' (Shaw v City ofNew York. 139 AD3d 698, 699, 31NYS3d155 [2d Dept 20 I 6J(internal quotations and citations ornittcdJ). further, a plaintifPs plea of guilty in a criminal prosecution •·forecloses him from asserting any cause of action based either on the common-law tort of malicious prosecution or on the corresponding constitutional tort pursuant to 42 USC § 1983" (Barlo11e v County of Nassau . 286 AD2d 354, 356, 729 NYS2d 171 [2d Dept 20011). Generally, a statement may be defamatory " if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community" (Golub v E11q11irer/Star Group, 89 NY2d l 074, I 076, 659 NYS2d 836 L 1997], quoting Mem:ller v Chesley, 297NY 94, 100, 75 NE2d 257 [1947]). Damages will be presumed for statements "that charge a person with committing a serious crime or that would tend to cause injury to a person's profession or business" (Geraci v Probst, 15 NY3d 336, 344, 912 NYS2d 484 f20 I OJ). Whether particular statements arc considered defamatory per sc js a question of law (id). To state a cause of action to recover damages for defamation. a plaintiff"must allege that the defendant published a false statement. without privilege or authorization. lo a third party, constituting fault as judged by, at a minimum, a negligence standard. and it must either cause speciaJ harm or constitute defamation per se" (R odriguez v Daily News, L. P., 142 AD3d 1062. I 063 12d Dept 2016]). In an action for libel or slander, ·'the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally'. (CPLR 3016 Iau. Expressions of an opinion, false or not, libelous or not. arc constitut ionally protected and may not be the subject private damage actions (Sassower v Ne w York Times Co. , 48 AD3d 440, 442, 852 NYS2d 180 [2d Dept 2008 If internal quotations and citations omitted]). ·'The issue ofdistinguishing between actionable fact and non-actionable opinion is a question of law for the eourr·• (Galrm ova v S aflr, l 38 AD3d 686, 687, 29 NYS3d 459 [2d Dept 2016) , quoting Gjolllekaj v S ot, 308 AD2d 4 71, 474, 764 NYS2d 278 [2d Dept 2003]). Such issue is .. lo be dccjded based on what the average person hearing or reading the communication would take it to mean" (Davis v R oelteim. 24 NY3d 262, 269, 998 NYS2d 131 [2014Jrinlcrnal quotation omitted]). or [* 4] Vetro v Suffolk County 0/\ Index No. 09-40360 Pagc4 I fere. defendants have established a prima facie case of ent itlement to summary judgment in the instant action (see generally A lvarez v Prospect Hosp. , supra). Through plaintiff's admissions in his General Municipal Law§ 50-h hearing transcript. defendants adduced evidence that plaintiff plead guilty to two charges stemming from the actions alleged in the criminal complaints filed against him. Therefore, plaintiff's cause of action alleging malicious prosecution cannot be sustained (see B arto11e v Cou11ty of Nassau , supra). Regardi ng plaintifrs claim that defendants breached their duties, it is well settled that New York courts do not recognize claims fo r negligent or mal icious investigation (Johnson v Kings Co1111ty Dist. A ttom ey's Off. , 308 /\02d 278, 284, 763 NYS2d 635 l2d Dept 2003 J; see A 11to11io11s v Mu hammad, 250 /\D2d 559, 673 NYS2d 158 [2d Dept 19981; see also Paire/la v Ccunty of S uffolk, 154 AD3d 772, 61 NYS3d 507 12d Dept 2017]). Further, a municipality cannot be held li able for negligence in the performance of a governmental function, including police and fire protection, unless a special relationsl1ip existed between the municipality and the injured party (De L ong v CoimtyofErie, 60 NY2d 296, 304, 469 NYS2d 6 11 [ 1983 1 see Graham v City ofNew York, 136 AD3d 747, 24 NYS3d 754 (2d Dept 2016]). ; De fondants have established that plaintiffs remaining claims, save defamation, "allege activities in processing criminal charges afler [plaintifPs] arrest by police based upon evidence assembled by police, [andl [t lhcreforc, the District Attorney defendants arc entitled to absolute immunity." (Blake v City of New York, 148 /\0 3d 11 01, 1104, 51 NYS3d 540 [2d Dept 2017J). There is no independent tort or civil conspiracy under state Jaw (see S uburban L eague fo r Cerebral Palsy v Ricltmond H ill Hall Corp., 158 AD2d 453, 550 NYS2d 910 [2d Dept 1990]; Gould v Comm1111ity H ealth Plan ofS uffolk , 99 AD2d 479. 470 NYS2d 4 I 5 l2d Dept 1984J). Plaintiff's civil conspiracy claims contain general allegations which arc conclusory and vague and thus are insufficient (see Diedericlt v Nyack Hosp., 49 AD3d 491, 854 NYS2d 41 1 [2d Dept 2008J). Turning to the defamation claim against defendants, the Cou1 finds that Assistant District Attorneys 1 Cathleen Loeffler and Robert Clifford were acting as advocates for the State when they spoke to the media, inasmuch as they communicated certain infom1ation about plain ti ff to the public following his arrest and allcr a criminal proceeding was commenced against him. Therefore, the they arc entitled to a qualified privilege with respect to the statements made. The Court finds that plaintifrs complaint does not allege fac ts to support a claim of actual malice sufficient to overcome the District /\ltomey's privilege. further, .. truth is an abso lute defense to a cause of action based on defamation'' (Du11-zlte11g Ya11 v Potter, 2 /\D3d 842, 843, 769 NYS2d 379 (2d Dept 2003]). Defendants, with their submission of the sworn affidavit of crirninaJ complainant Stephanie Veraldi, established a good faith basis upon which to make the statements attributed to them regarding her status as a student at a school where plaintiff was previously employed. Defendants also possessed the ..common interest privilege, 'which arises when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral, or social duty to speak, and the C()mmunication is made to a person having a corresponding duty or interesr·· (Wyllie v District A ttorney ofCo1111ty ofKings, 2 AD3d 7 I 4, 7 I 9, 770 NYS2d 110, 115 f2d Dept 2003], quoting Paskiewicz v N atio11al Ass11. f or A d11a11cem e11t of Colored People, 216 /\D2d 550. 55 1, 628 NYS2d 405 p 9951). [* 5] Vctro v Suffolk County DA Index No. 09-40360 Page 5 The Court. cognizant of pJaintifrs prose status, construes his allegations liberally and affords him a wide berth in analyzing his evidcntiary submissions. However, plainti IT fails to adduce any non- speculativc evidence of the claims he asserts and, therefore, fails to raise a triable issue (see generally Vega v Resta11i Cons tr. Corp., supra). ln opposition to defendants' motion. plaintiffsubmits, among other things, a transcript of nonparty Allison Engstrom's deposition testimony, a transcript of nonparty Christina Tmpastato 's deposition testimony, a transcript of nonparty Rocco Vera Idi' s deposition testimony, copies of various newspaper articles reporting his arrests, copies of numerous documents from a related action involving his former employer, copies of e-mail messages exchanged with his criminal attorney, excerpts ortranscripts ofappcarances during the pendency of his criminal matter, voluminous telephone records, nonparty affidavits from prior actions, and numerous onlinc social media posts. Here, plaintiff attempts, both in his initial complaints and in his opposition to defendants· instant motion, lo re-litigate the closed criminal action against him, often conflating the matters. Plaintiffs opportunity to litigate issues of witness veracity, di sclosure violations. identification, official misconduct, investigative rigor, and sufficiency of the accusatory instruments has long passed. Thus, plaintiff's arguments regarding the motives of the complaining witnesses in his criminal action are irrelevant to the matter at hand. Plaintiff's numerous allegations, some presented for the first time in his opposition to defendants· motion. appear to be based solely upon his own suppositions, theories. and a desire to be free of the consequences of his admitted actions. "Mere conclusory allegations, expressions of hope, or unsubstantiated assertions may not defeat a motion for summary judgmenC (Carleton Studio, Ltd. v MONY Life Ins. Co .. 18 J\D3d 491, 492, 793 NYS2d 919 f2d Dept 2005J). Plaintiff elected to plead guilty. at first. to two counts of misdemeanor aggravated harassment. Following his successful completion of interim probation, plaintiff was permitted to withdraw his misdemeanor pleas of f:,ruilty and plead guilty to two violation-level offenses. Plainti fPs remaining charges were dismissed in satisfaction of his guilty picas. There is nothing in the record to suggest that plaintiff appealed his convictions. Plaintiff's picas of guilty to the non-criminal offenses foreclose his ability to contest the validity of his arrests (see Bartone v Co1111ty of Nassau, supra). Plaintiff was represented by counsel for the entirety of his criminal proceedings. His reasons for accepting such pica agreements arc his own, and a transcript of his plea colloquy reveals no inkling of hesitation on his part. Any negative consequences of those pleas are beyond the reach of this Cou1i. Further, plaintiff submits no evidence that detendants' statements were ..made in bad faith and ... motivated solely by malice" (Paskiewicz, supra at 551 ). Plaintiff's remaining claims arc without merit. Accordingly, the application by defendants for summary judgment dismissing the complaint is granted. - --/ ... \ 0-\~ Dated: /\.J.S.C. X FINAL DISPOS ITION NON-FINAL DISPOSITION

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