Licausi v Suffolk County

[*1] Licausi v Suffolk County 2023 NY Slip Op 51010(U) Decided on September 22, 2023 Supreme Court, Suffolk County Hyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 22, 2023
Supreme Court, Suffolk County

John Licausi, Plaintiff,

against

Suffolk County, SUFFOLK COUNTY POLICE DEPARTMENT, MICHAEL BUGLIOLE, THOMAS SPOTA, and JAMES HUDSON, Defendants.



Index No. 002798/2020

James L. Hyer, J.

The following papers, numbered 1 to 29, were considered in connection with the following motions seeking to dismiss Plaintiff's Complaint.

PAPERS/NUMBERED
Seq. No. 2
Notice of Motion (Hudson)/Affirmation in Support/Exhs. A-E 1-7
Plaintiff's Response 8
Affirmation in Further Support of Defendant Hudson's Motion to Dismiss/Exh. F 9-10

Seq. #3-4 [FN1]
Notice of Motion/Affirmation in Support/Exhs. A-G 11-19
Plaintiff's Reply to Defendants' Motion 20
Affirmation in Reply in Support of Motion to Dismiss 21

Seq. #5
Notice of Motion (Spota)/Affirmation in Support/Exhs. A-D 22-27
Plaintiff's Response to Spota's Motion 28
Reply Affirmation in Further Support of Spota's Motion to Dismiss 29

On May 7, 2008, at approximately 4:48 p.m., Plaintiff John Licausi checked into the Econo Lodge motel in Ronkonkoma, New York.[FN2] Licausi had used one gram of cocaine that evening between 6:00 p.m. and 8:00 p.m. Licausi checked out of the motel the next day.

On May 8, 2008, at approximately 11:30 a.m. near the intersection of Granny Road and Mount McKinley Avenue in Farmingdale, New York, Licausi, driving a green four-by-four vehicle, approached Keith Corr, a landscaper, attempting to sell Corr landscaping equipment. Corr, who suspected Licausi to be the individual who had stolen equipment from him two days before, told Licausi that he had to call his wife for cash to buy the equipment, but called the police instead.

At about 11:45 a.m., Defendant Police Officer Michael Bogliole responded to the radio call. Prior to arriving, Officer Bogliole learned Licausi's license plate number, conducted a computer check, and found out that Licausi had an active warrant for petit larceny. Officer Bogiole arrived on the scene at about 11:50 a.m.

Upon Officer Bogliole's arrival, Licausi was inside his vehicle and Corr identified Licausi to Officer Bogliole. Officer Bogliole approached Licausi, asked him to step out of his vehicle, and produce his driver's license. Officer Bogliole noticed that Licausi's eyes were glassy, and he was shaking. Officer Bogliole asked Licausi to stand in front of the police car, and he began to verify that the warrant was active.

Licausi and Corr began arguing, and Licausi appeared to begin to flee, so Officer Bogliole told Licausi to stop and not move. Licausi disregarded Officer Bogliole's command and ran to his car. Officer Bogliole tried to intervene, and he and Licausi struggled near the driver's seat of Licausi's vehicle. Licausi managed to break free and flee in his car.

According to Officer Bugliole, Licausi drove erratically with the door open. He drove through four stop signs and a steady red light, crossed the double yellow line, traveled southbound in the northbound lane, and overtook the other cars on the road. At trial, Licausi admitted that he had disobeyed Officer Bogliole's direct order when he drove off. Licausi also admitted to speeding and not stopping at a few of the stop signs but denied driving through the red light. Licausi did admit to crossing the double yellow line and driving southbound in the northbound lane.

When Licausi's car reached the intersection of Old Medford Avenue and Horseblock Road, his vehicle went through the red light and struck a gray vehicle. Licausi's vehicle was traveling at least 57 miles per hour at the time of the collision, and there was no evidence that there was any braking prior to the collision of the vehicles. Licausi stated he braked and skidded through the intersection, but there was a lack of tire marks preceding the point of impact. After the collision, Officer Bogliole approached Licausi, who had exited his vehicle, and arrested him. Other officers transported Licausi to the precinct.

Scott Foster had been driving the gray vehicle. When Officer Bogliole approached Foster's car, he saw Foster's body hanging out of the vehicle. Foster was transported to the hospital where he was pronounced dead. At the precinct, it was determined that Licausi was driving while impaired by a certain stimulant based on certain observations made by police personnel. When Officer Bogliole spoke to him, Licausi declined to make a statement or take a blood test. Pursuant to a court-ordered blood test of Licausi, forensic scientists found the presence of a metabolite of cocaine and 129 micrograms per liter of cocaine in Licausi's blood.

Licausi testified that Officer Bogliole repeatedly told him to "shut the F up" during Licausi's dispute with Corr, causing Licausi to get heated leading to the car chase. The chase caused Licausi to panic, and according to Licausi, Officer Bogliole is to blame for forcing Licausi into a hazardous situation.

The jury convicted Licausi of the felonies of aggravated vehicular homicide, manslaughter in the second degree, and unlawful fleeing a police officer in a motor vehicle in the first degree, as well as various misdemeanors and traffic infractions. The court sentenced Licausi to concurrent sentences of imprisonment of 25 years to life for each of his convictions of aggravated vehicular homicide, manslaughter in the second degree, and unlawful fleeing a police officer in a motor vehicle in the first degree, and lesser sentences on the other convictions (Licausi v. Griffin, 460 F Supp 3d at 253).Defendant James Hudson presided over Licausi's trial.

On appeal, the Second Department affirmed the conviction, but reduced Licausi's sentence imposed upon the convictions of aggravated vehicular homicide, manslaughter in the second degree, and unlawful fleeing a police officer in a motor vehicle in the first degree from 25 years to life incarceration to 18 years to life imprisonment as a matter of discretion in the interest of justice (People v Licausi, 122 AD3d 771, 772 [2d Dept 2014]). The Court of Appeals denied Licausi leave to appeal on June 8, 2015 (People v Licausi, 25 NY3d 1166 [2015]).

"On April 4, 2013, while [his] direct appeal was pending, [Licausi], filing pro se, moved to vacate his conviction under [CPL] § 440.10" (Licausi v Griffin, 460 F Supp 3d at 254). "On June 20, 2013, the Suffolk County Supreme Court denied the motion" (Licausi v Griffin, 460 F Supp 3d at 254). On September 18, 2013, the Second Department denied a certificate for leave to appeal, and on December 16, 2013, the Second Department denied Licausi's motion to reargue (Licausi v. Griffin, 460 F Supp 3d at 254).

Then, on December 10, 2015, Licausi filed a pro se motion to vacate his judgment a second time pursuant to CPL § 440.10, arguing ineffective assistance of trial counsel and newly discovered evidence, and on June 30, 2016, the court denied the motion (Licausi v Griffin, 460 F Supp 3d at 254). On July 21, 2016, Licausi moved for leave to renew his second motion to vacate judgment, which was denied on December 6, 2016 (Licausi v Griffin, 460 F Supp 3d at 254).

On August 8, 2016, Licausi moved for leave to appeal the June 30, 2016 Order to the Second Department, which was denied on January 18, 2017 (Licausi v Griffin, 460 F Supp 3d at 254). Then, on January 15, 2020, the Second Department denied Licausi's writ of error coram nobis, arguing ineffective assistance of appellate counsel (People v Licausi, 179 AD3d 841 [2d Dept 2020]).

In addition, on April 12, 2017, Licausi filed a writ of habeas corpus in the Eastern District of New York, which was denied on May 19, 2020 (Licausi v Griffin, 460 F Supp 3d 242). On May 19, 2020, the EDNY denied the petition, and declined to issue a certificate of [*2]appealability (Licausi v Griffin, 460 F Supp 3d 242). The Second Circuit affirmed (Licausi v Griffin, 20-1920, 2020 WL 7488607 [2d Cir 2020]).

On May 20, 2020, Licausi filed a civil rights action under 42 USC § 1983 in the Southern District of New York. The action was transferred to the Eastern District and then voluntarily withdrawn two months later (NYSCEF Doc. No. 5 at ¶11, Exh. A).

Then, on February 15, 2022, the Second Circuit denied Licausi's successive habeas corpus petition (NYSCEF Doc. No. 5 at ¶12, Exh. B). The Second Circuit stated, inter alia, Licausi "has not made a showing that the trial judge's alleged bias affected the jury's verdict. He also has not made a showing, based on the original videotape, that the officer followed too closely and forced him into the intersection. [He] has not provided this Court with a copy of the original videotape, the videotape used during the related civil action trial, or the allegedly altered videotape used at his own trial. Even if we assume that the officer did follow too closely, [Licausi] also has not made a showing that this would make the officer primarily responsible for the victim's death or otherwise relieve Petitioner of criminal liability" (NYSCEF Doc. No. 7 at 2).

While Licausi was pursuing review in the federal courts, he commenced this action on November 5, 2020 by filing the present complaint in the Supreme Court, Suffolk County (NYSCEF Doc. No. 5 at ¶13). The matter was administratively assigned to the undersigned after being handled previously by the Hon. James Hubert, J.S.C., who retired at the end of 2022.

A Preliminary Conference was held before the Hon. James L. Hyer, J.S.C., on April 4, 2023. The Court reviewed the file and noted that there were no Affidavits of Service filed for any Defendants. During the April 4, 2023 appearance, the New York State Attorney General's Office appeared in a limited manner for James Hudson and agreed to accept service. The Court set a virtual appearance for May 9, 2023 and directed Plaintiff to file Affidavits of Service for all Defendants, with the exception of James Hudson, by that time. The Court noted that all parties were not required to appear at future conferences, only attorneys and self-represented litigants.

The Court provided Licausi with information for the Office of the Self-Represented in the Ninth Judicial District. The Court also provided Licausi's advocate, Regina Lewis from Mothers Against Institutional Negligence with a copy of the Self-Represented Litigant Information Sheet. The Court also granted permission to Ms. Lewis to appear at all future conferences. Licausi was also granted poor person relief.

A Status Conference was held on May 9, 2023, virtually via Microsoft Teams. The NYS Attorney General's Office acknowledged service on behalf of James Hudson; and while the AG's Office asserted that they served Licausi with a copy of the Motion to Dismiss, Licausi claimed not to have received it. The Court directed that the Motion be served again to Licausi via e-mail to Licausi's counselor at Wallkill Correctional Facility, who provided her name and telephone number and agreed to print it upon receipt and provide it to Licausi in hard copy. The Court directed the AG's Office to complete that task by 5:00 p.m. on May 10, 2023. The AG's office was also told to call the counselor to confirm receipt and that she printed it and file an Affidavit of Service. The Court again provided Licausi with contact information for the Ninth Judicial District's Office of Self-Represented and Westchester County Bar Association Lawyer Referral Service. The Court set a virtual appearance for June 9, 2023 and directed Licausi to file Affidavits of Service for all Defendants prior that date. All counsel and self-represented parties were directed to appear virtually, and the Court sent out Teams links prior to the conference.

On June 9, 2023, the Court held the virtual Status Conference, wherein it was confirmed [*3]that Defendant James Hudson had appeared and admitted service by the NYS Attorney General's Office, with the filing of a Motion to Dismiss. Licausi failed to file proof of service upon the other four Defendants as directed at the May 9, 2023 court appearance. As to Defendants Suffolk County, Suffolk County Police and Michael Bugliole, the Court had been advised by the Suffolk County Sheriff's Department that Affidavits of Service from that department had been prepared and sent to Licausi. The Court directed Licausi to file the same with the Court by June 28, 2023. As to the final Defendant Thomas J. Spota, the Court instructed Licausi that proof of service must further be effectuated upon him with proof filed by the next court date.

As to the Motion to Dismiss by James Hudson, Licausi confirmed receipt of the motion, the Attorney General confirmed receipt of Licausi's opposition, and the Attorney General served and filed its reply. The Court set a virtual appearance for June 28, 2023.

On June 28, 2023, the Court held another virtual status conference, wherein it was confirmed that the New York State Attorney General's Office appeared for Defendant James Hudson. Kyle Wood, Esq., appeared for Thomas Spota, and agreed to file a Notice of Appearance and Acknowledgement of Service of Pleading by July 7, 2023. Susan Flynn, Esq., of the Suffolk County Attorney's Office appeared for Suffolk County and Michael Boglioli. Flynn noted that the Suffolk County Police Department is not a separate entity and accordingly, the County Attorney's Office was not appearing for the Police Department, but that this was noted in the motion.

The Court noted that there were two pending motions seeking dismissal filed by the Attorney General and Ms. Flynn. The Court directed a briefing schedule, including service on the newly appearing parties, and noted that the return date would be July 28, 2023. Mr. Wood received approval to file a motion to dismiss and was provided a briefing schedule with a return date of August 25, 2023. The Court noted that all motions would be decided on submission and there would be no oral argument. The Court directed that all the parties shall file any document in this case via NYSCEF and mail/deliver a hard copy to Chambers, and that any service upon the self-represented Plaintiff be effectuated by certified mail and via e-mail to his advocate, Ms. Regina Lewis. Lastly, the Court indicated that any future court dates would be scheduled in the decisions rendered on the motions as necessary.

The motions are deemed fully submitted and decided herein as follows:

Defendant James Hudson

Licausi asserts a cause of action pursuant to 42 USC § 1983, seeking monetary damages for alleged violations of his Sixth Amendment and Eighth Amendment rights during his criminal trial by several of Judge Hudson's evidentiary and sentencing determinations (NYSCEF Doc. No. 5 at ¶13, Exh. C). Specifically, Licausi alleges his rights were violated by: (1) Judge Hudson's decision to not admit the Internal Affairs Report during his criminal trial; (2) the jury's alleged absence during Licausi's cross examination of Officer Christopher Hattan; (3) Licausi's inability to cross-examine Officer Bogliole; (4) Judge Hudson's decision not to recuse himself from the matter; and (5) the length of Licausi's sentence (NYSCEF Doc. No. 5 at ¶13, Exh. C).

Judge Hudson moves to dismiss the Complaint against him pursuant to CPLR §§ 3211(a)(2), (a)(5), and (a)(7). Judge Hudson argues that "despite his previous failures to persuade the courts to grant him relief from his criminal conviction", Licausi "once again, over ten years after his conviction, presents the same arguments in the guise of an action for damages" (NYSCEF Doc. No. 5 at ¶3). "Besides being barred by collateral estoppel, Licausi's [*4]suit against Judge Hudson is barred by judicial immunity and the State's sovereign immunity — requiring it be dismissed in its entirety against Judge Hudson" (NYSCEF Doc. No. 5 at ¶3).

In opposition, Licausi argues, inter alia, Judge Hudson deprived him of his constitutional rights to a fair trial and due process, thereby waiving his immunity and injuring Plaintiff. Licausi further argues that whether the evidence is sufficient for Judge Hudson to be held liable is to be determined by a jury and that discovery is essential for the determination of these issues.

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 NY2d 83, 87 [1994], citing CPLR § 3026). In considering a motion to dismiss pursuant to CPLR 3211(a)(7), 'the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail'" (Juerss v Millbrook Cent. Sch. Dist., 161 AD3d 967, 968 [2d Dept], lv to appeal denied 32 NY3d 903 [2018], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). "'[T]he pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference'" (Juerss, 161 AD3d at 968, quoting Michaan v Gazebo Hort., Inc., 117 AD3d 692 [2d Dept 2014]; see also Leon v Martinez, 84 NY2d at 87-88). "In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d at 88, citing Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]). And "'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one'" (Leon v Martinez, 84 NY2d at 88, quoting Guggenheimer v Ginzburg, 43 NY2d at 275). "Although the facts pleaded are presumed to be true and are to be accorded every favorable inference * * *, bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration * * * nor are legal conclusions or factual claims which are inherently incredible entitled to any such consideration" (Everett v Eastchester Police Dept., 127 AD3d 1131, 1132 [2d Dept 2015] [internal citations and quotations omitted]). "The allegations of the pleading cannot be vague and conclusory * * * but must contain sufficiently particularized allegations from which a cognizable cause of action reasonably could be found" (V. Groppa Pools, Inc. v Massello, 106 AD3d 722, 723 [2d Dept 2013] [internal citations omitted]).

"'In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims'" (Christ the Rock World Restoration Church Intl., Inc. v Evangelical Christian Credit Union, 153 AD3d 1226, 1229 [2d Dept 2017], quoting Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998] [internal quotation marks omitted]). "While a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), it must be kept in mind that a motion pursuant to CPLR 3211(a)(7) is not a motion for summary judgment unless the court elects to so treat it under CPLR 3211(c), after giving adequate notice to the parties" (Christ the Rock World Restoration Church Intl., Inc. v Evangelical Christian Credit Union, 153 AD3d at 1229 [internal citations omitted]). "'Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate'" (Christ the Rock [*5]World Restoration Church Intl., Inc. v Evangelical Christian Credit Union, 153 AD3d at 1229, quoting Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849, 851-852 [2d Dept 2013]).

"A section 1983 claim alleges that an individual acting under color of State law deprived the claimant of a Federal right" (Alvarez v Snyder, 264 AD2d 27, 34 [1st Dept 2000]). However, there are various judicially created exceptions that may bar a claimant's statutory right to relief (id.). "'Courts have recognized that it is imperative to the nature of the judicial function that Judges be free to make decisions without the fear of retribution through accusations of malicious wrongdoing'" (Mosher-Simons v County of Allegany, 99 NY2d 214, 219 [2002], quoting Tarter v State of New York, 68 NY2d 511, 518 [1986]). "Judicial immunity discourages inappropriate collateral attacks on court rulings and fosters judicial independence by protecting courts and judges from vexatious litigation. Indeed, '[m]ost judicial mistakes and wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability'" (Mosher-Simons v County of Allegany, 99 NY2d at 219, quoting Forrester v White, 484 US 219, 227 [1988]). "Allowing member of the judiciary to exercise independent judgment, without the threat of legal reprisal, is 'critical to our judicial system'" (Mosher-Simons v County of Allegany, 99 NY2d at 219, quoting Tarter v State of New York, 68 NY2d at 518). "There are only two recognized exceptions to the broad cloak of judicial immunity, namely 'when a [j]udge does not act as a [j]udge, or when a [j]udge, though acting under color of judicial authority, lacks any jurisdiction supporting judicial authority for the action taken'" (Best v State of New York, 116 AD3d 1198, 1199 [3d Dept 2014], quoting Alvarez v Snyder, 264 AD2d at 34). "The factors determining whether an act by a judge is a judicial one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity" (Bliven v Hunt, 579 F3d 204, 210 [2d Cir 2009] [internal quotation marks, brackets, and citations omitted]).

Here, Licausi's allegations against Judge Hudson are simply issues he has with trial and sentencing decisions made by Judge Hudson — claims that he has repeatedly raised through multiple appeals and actions in both state and federal court. The acts complained of fall squarely within the definition of a judicial act, as they involved decisions made by Judge Hudson as the judge presiding over Licausi's criminal trial (see Libertarian Party of Erie County v Cuomo, 970 F3d 106, 124 [2d Cir 2020] ["Judicial acts principally involve adjudication of particularized, existing issues"], cert denied 141 S Ct 2797 [2021]). Licausi's conclusory allegations that Judge Hudson acted beyond his judicial authority does not make it so, and he does not allege that Judge Hudson engaged in nonjudicial actions. Thus, the complaint as to Defendant James Hudson is dismissed.

Defendants Suffolk County, Suffolk County Police Department and Michael Bugliole

Defendants Suffolk County (hereinafter "Suffolk"), Suffolk County Police Department (hereinafter "Police Department"), and Michael Bogliole (hereinafter "Bogliole") moved to dismiss the complaint pursuant to CPLR § 3211(a)(5) and (a)(7). In addition, Suffolk County argues that Plaintiff failed to obtain jurisdiction over the Police Department because it is not a legal entity subject to suit.

According to the complaint, Plaintiff alleged the following causes of action — malicious prosecution, negligence, contempt, and obstruction. Specifically, as it pertains to Suffolk and Officer Bogliole, according to Suffolk/Bugliole, Plaintiff alleges, inter alia, that

a. the cause of the accident with Foster was due to the manner in which Bogliole pursued him;b. Bogliole never had probable cause to arrest;c. Bogliole was reckless and his conduct was unjustified excessive force and deadly use of force in violation of the Fourth Amendment;d. Spota, Suffolk and Bogliole obstructed justice by destroying evidence; ande. generalized claims of violations of the Hobbs Act.

(NYSCEF Doc. No. 25 at ¶19). Suffolk/Bugliole argue that Licausi's negligence, contempt, and obstruction claims are barred by the statute of limitations. Furthermore, Suffolk/Bugliole state that Plaintiff has failed to establish the elements of a malicious prosecution claim, as he has not obtained a favorable termination of the charges against him. Suffolk/Bugliole assert that there is no private right of action under the Hobbs Act and therefore, Plaintiff has failed to state a cause of action as to that allegation. In addition, Plaintiff failed to obtain jurisdiction over Officer Bogliole, as he was no longer employed by Suffolk County Police Department at the time of service. He had ended his employment there on February 28, 2011, and therefore, serving him at that place of employment did not confer jurisdiction upon him pursuant to CPLR § 308(2). Finally, Suffolk County Police Department is not a legal entity subject to suit.

In opposition, Licausi did not directly address the arguments raised in the motion. He argued that the statutory period to deny bodily injury coverage has "long since passed" and he was "well within [his] rights to file a separate claim against the insurance company" (NYSCEF Doc. No. 59 at ¶1). Licausi stated that he served the Suffolk County Police Department on May 12, 2023 and they failed to appear or answer, so he is "informal[ly] moving for a default judgment against the Police Department (NYSCEF Doc. No. 59 at ¶¶3-4). Licausi also is requesting the correct contact information of Officer Bogliole (NYSCEF Doc. No. 59 at ¶4) and asserts that there are triable issues of fact concerning recklessness, and he would like to preserve "the motion for summary judgment and immunity defenses filed by" Suffolk/Bogliole (NYSCEF Doc. No. 59 at ¶¶5, 8).

As a threshold matter, no cause of action can be maintained against the Suffolk County Police Department as it is not a legal entity separate and apart from Suffolk County (Murray v County of Suffolk, 66 Misc 3d 1216[A], n 2 [Sup Ct, Suffolk County 2020] [Suffolk County Police Department is an administrative arm of the County of Suffolk and thus lacks capacity to be sued as a separate entity]; see also Brown v City of New York, 192 AD3d 963, 965 [2d Dept 2021]). Accordingly, the complaint is dismissed as it pertains to the Suffolk County Police Department.

In addition, the complaint as it pertains to Officer Bogliole is dismissed as he was not properly served. "'As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden on this issue'" (Doe v McCormack, 100 AD3d 685 [2d Dept 2012], quoting Marist Coll. v Brady, 84 AD3d 1322, 1322-1323 [2d Dept 2011]). According to CPLR § 308(2), "[p]ersonal service upon a natural person shall be made * * * by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business * * *."

Here, it is undisputed that on May 9, 2023, Regina Lewis mailed Officer Bogliole the [*6]summons and complaint by mailing those documents to him at the Suffolk County Police Department in Yaphank, New York. In addition, on May 12, 2023, Deputy Sheriff John Hornick of the Suffolk County Sheriff's Office delivered a copy of the Summons and Jury Trial Demand upon Officer Bogliole by delivering it to service designee Davitrie Dixon at Suffolk County Police Department, 100 Veterans Memorial Highway, Hauppauge, New York 11788. However, there is no proof of the statutory-required follow-up mailing to Officer Bogliole. In fact, Deputy Sheriff Hornick's affidavit, as well as Licausi's opposition, is completely silent as to this mailing (see generally Steele v Hempstead Pub Taxi, 305 AD2d 401 [2d Dept 2003] [trial court did not have personal jurisdiction over defendant, a sole proprietorship, in personal injury action, where copy of summons and complaint was served upon person of suitable age and discretion at actual place of business, but plaintiff failed to mail copy to defendant's actual place of business]; Goodwin v Hoppenfeld, 88 AD2d 925 [2d Dept 1982] [credible evidence established that mailing of process to defendant in compliance with statute not made, as required, to his last known address; complaint properly dismissed]; see also Cruz v Ecolab Pest Elimination Div., Ecolab, Inc., 817 F Supp 388 [SD NY 1993] [follow up mailing required under New York law where copies of summons and complaint were left with corporate employee who stated that he was authorized to accept documents for intended individual defendants]; In re Chaus Securities Litigation, 801 F Supp 1257 [SD NY 1992]). And the Court does not recognize Ms. Lewis' mailing prior to delivery as following the statute.

But more importantly, it is undisputed that Officer Bogliole was no longer employed by the Suffolk County Police Department in 2023, having left his employment with the Police Department on February 28, 2011 (NYSCEF Doc. No. 48). As such, Licausi failed to show that personal jurisdiction had been acquired upon Officer Bogliole as he no longer worked for the Suffolk County Police Department (Doe v McCormack, 100 AD3d 685; see also Kelsey v Catena, 217 AD3d 1233, 1235 [3d Dept 2023] [service by mail to courthouse where court reporter no longer worked due to her retirement was insufficient to confer jurisdiction as it was no longer her actual place of business]). Having failed to meet the initial threshold, the Court dismisses the action as to Officer Bogliole on the ground that service upon him was defective.

Licausi's negligence claims stem from Officer Bogliole's actions, as a Suffolk County police officer, on May 8, 2008. However, the negligence claims are barred by the statute of limitations, as this action was commenced 12 years after the one-year and 90-day period of limitation expired (see generally Byrne v Grant, 217 AD2d 891, 892 [3d Dept 1995] [service of process against town police officer in action arising out of automobile accident was timely where it occurred on last day of one year and 90-day limitations period]). Furthermore, Licausi did not comply with a condition precedent as there is no evidence that a Notice of Claim was ever served upon Suffolk County (see General Municipal Law § 50-i; see CPLR § 271-a). Thus, any negligence claim against Suffolk/Bugliole is barred by the statute of limitations.

To the extent Licausi alleges contempt as a cause of action against Defendants, he fails to state a cause of action. There are no facts alleged that particularize and detail any contemptuous acts committed by Defendants. "In order to adjudicate a party in civil contempt, a court must find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct" (Dalton v Dalton, 164 AD3d 1300, 1301-1302 [2d Dept 2018], citing El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). Here, within the four corners of the complaint, [*7]there are no facts alleged to establish a properly plead cause of action for contempt. As such, the contempt claim must be dismissed.

Licausi has also failed to state a cause of action of obstruction of justice against Defendants. New York does not recognize a cause of action for obstruction of justice (Lau v Berman, 6 Misc 3d 934, 936 [Civ Ct, NY County 2004], affd 6 Misc 3d 128[A] [App Term, 1st Dept 2005]).As such, this claim must be dismissed.

"'To sustain a cause of action alleging malicious prosecution, a plaintiff must establish the following: (1) a criminal proceeding commenced or continued by the defendant against him or her; (2) termination of the proceeding in favor of the accused plaintiff; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice'" (Chetrick v Cohen, 52 AD3d 449, 450 [2d Dept 2008], quoting O'Donnell v County of Nassau, 7 AD3d 590, 591 [2d Dept 2004]; see also Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Smith-Hunter v Harvey, 95 NY2d 191 [2000]). "A criminal defendant has not obtained a favorable termination of a criminal proceeding where the outcome is inconsistent with the innocence of the accused. While a plaintiff need not prove actual innocence in order to satisfy the favorable termination prong of a malicious prosecution action * * *, the absence of a conviction is not itself a favorable termination" (Martinez v City of Schenectady, 97 NY2d at 84). Stated another way, "a criminal action is terminated in the accused's favor for purposes of a malicious prosecution claim where a judicial determination of the accused's innocence on the merits of the action has been made" (Ward v Silverberg, 85 NY2d 993, 994 [1995] [internal quotation marks omitted]). And, "[t]o show a termination in [its] favor, the plaintiff must prove that the court passed on the merits of the charge or claim against [it] under such circumstances as to show [its] innocence or nonliability, or show that the proceedings were terminated or abandoned at the instance of the defendant under circumstances which fairly imply the plaintiff's innocence'" (Furgang & Adwar, LLP v Fiber-Shield Indus., Inc., 55 AD3d 665, 666 [2d Dept 2008], quoting Pagliarulo v Pagliarulo, 30 AD2d 840 [2d Dept 1968]).

Here, the criminal action did not terminate in Licausi's favor. His conviction was affirmed on appeal and his collateral attacks on his conviction were denied. In fact, he is still serving his term of imprisonment. As such, Licausi failed to state a cause of action for malicious prosecution.

Finally, to the extent Licausi claims a cause of action under the Hobbs Act, his complaint is unclear and rambling as to how this is applicable in this case. The Hobbs Act is a federal criminal statute that prohibits interstate commerce by threats and violence (see 18 USC § 1951). There is nothing within the language of the statute that permits a private right of action (see Wisdom v First Midwest Bank, of Poplar Bluff, 167 F3d 402, 409 [8th Cir 1999] [neither the statutory language of 18 USC § 1951 nor its legislative history reflect an intent by Congress to create a private right of action]). Thus, any claim of violation of the Hobbs Act must be dismissed as Licausi has failed to state a cause of action on this ground.

Defendant Thomas Spota

As to Spota, Licausi alleges in his complaint that:

a. Defendant Spota, defendant Suffolk County Police Department and defendant Bogliole, obstructed justice by destroying evidence to alter the speed that defendant Bogliole was driving in proximity to my vehicle. b. On December 17, 2019, former Suffolk County prosecutor Thomas Spota was [*8]convicted on charges of witness tampering and obstruction of justice. c. The Federal indictment and conviction of defendant Spota, and the liability imposed on defendant Bogliole and defendant Suffolk County this is evidence that defendant Bogliole violated my Fourth Amendment Right.

(NYSCEF Doc. No. 67 at 4-5). Spota argues, inter alia, that the complaint must be dismissed because the issues raised in the complaint are ones that have been previously decided in other actions and barred by collateral estoppel. Spota asserts that the factual and legal issues in Plaintiff's complaint regarding alleged violations of his constitutional rights in this action under § 1983 are the same that were asserted in his appeal of his conviction previously before the Second Department and his habeas corpus petition in Federal Court, all of which were decided against him (NYSCEF Doc. No. 66 at ¶¶14-21). Spota states that certain claims are barred by the statute of limitations, and there are no allegations that Spota was personally involved in any of the claims of constitutional deprivation, only references to his unrelated federal prosecution.; thus, he cannot be found liable pursuant to § 1983. Finally, Spota asserts he is protected from liability based on sovereign and prosecutorial immunity, and he is entitled to qualified immunity.In opposition, Licausi argues, inter alia, that Spota has been stripped of his immunity based on his federal criminal conviction for which he is serving a five-year sentence of imprisonment, and that this is "all the evidence I need to prove that the defendant is not immune" (Plaintiff's Response to Spota at 1). Licausi asserts that Spota appeared daily at his prosecution, "had side bars with the defendant Hudson and instructed the Assistant District Attorney in bad faith to prejudice me and he destroyed the GPS hard drive in his administrative capacity which is evidence hence his Modus Operandi satisfying Quid Pro Quo (Plaintiff's Response to Spota at 1-2). Licausi argues that there are issues of fact as to Spota's modus operandi and continuing quid pro quo conduct for which he is currently incarcerated (Plaintiff's Response to Spota at 2). Finally, Licausi states that collateral estoppel is inapplicable because he never filed a civil rights complaint against Spota (Plaintiff's Response to Spota at 2).

As stated above, there is no cause of action under the Hobbs Act and these allegations must be dismissed as they pertain to Spota, and all Defendants (see supra at 17-18).Furthermore, for the same reasons stated above, Spota is being sued in his capacity as Suffolk County District Attorney, his claims of negligence are barred by the Statute of Limitations for the reasons stated previously (see supra at 15-16). And finally, for the reasons stated above the causes of action of obstruction, contempt, and malicious prosecution are dismissed (see supra at 16).

Further, Spota is immune from civil liability. "District Attorneys are immune from civil liability for activities 'intimately associated with the judicial phase of the criminal process,' meaning 'initiating a prosecution and presenting the State's case'" (Johnson v Kings County Dist. Attorney's Off., 308 AD2d 278, 285 [2d Dept 2003], quoting Imbler v Pachtman, 424 US 409, 430-431 [1976]). "This immunity is derived from the common-law rule of immunity conferred upon prosecutors" (Johnson v Kings County District Attorney's Office, 308 AD2d at 285, citing Imbler v Pachtman, 424 US at 424). "However, prosecutors enjoy only qualified immunity when acting in an 'investigative capacity'" (Johnson v Kings County Dist. Attorney's Off., 308 AD2d at 285, quoting Rodrigues v City of New York, 193 AD2d 79, 85 [1st Dept 1993]).

Here, Spota enjoys absolute immunity, as the claims made are directly related to the judicial phase of the criminal process. And even if he does not have absolute immunity, the [*9]complaint fails to state a cause action against Spota because there are no allegations that Spota was directly involved in the actions alleged in the Complaint other than Licausi's conclusory and unsubstantiated allegations, and the suggestion Spota's federal conviction is proof that he tampered with Licausi's evidence. Moreover, Licausi's assertion that his constitutional rights were violated under 42 USC § 1983 are the same allegations addressed and rejected in multiple appeals and collateral attacks (Licausi v Griffin, 460 F3d at 264), and the Court will not reach the merits here on the ground of collateral estoppel, as Licausi has had a full and fair opportunity to litigate this issue in the prior actions (see People v Evans, 94 NY2d 499, 502 [2000] [collateral estoppel precludes relitigating an issue in a prior action]; Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 649 [1993] [In addition to identity of issues, the party seeking the benefit of collateral estoppel must show that the party to be estopped had a full and fair opportunity to contest the dispositive decision or was in privity to the one who did.]).

Accordingly, it is hereby

ORDERED that for the reasons stated herein, Defendants' motions (seq. #2-5) are granted, and the Complaint is dismissed.

ORDERED that any issue not directly addressed herein is denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: White Plains, New York
September 22, 2023
ENTER:
Hon. James L. Hyer, J.S.C.

Footnotes

Footnote 1:Although submitted as two separate motions, Defendants County of Suffolk, Suffolk County Police Department, and Michael Bugliole jointly filed their motions to dismiss (NYSCEF Doc. Nos. 4-23, 40-64). Upon comparison, the two motions are identical.

Footnote 2: The Court has adopted the factual recitation from the Decision and Order of the Hon. Gary R. Brown, District Judge of the Eastern District of New York (Licausi v Griffin, 460 F Supp 3d 242, 250-253 [ED NY 2020]).