Opinion
97 Civ. 9029 (MGC)
January 8, 2002
Doniger Engstrand, Attorneys for Plaintiff, One Suffolk Square/Suite 500, Islandia, New York 11749, By: D. Daniel Engstrand, Jr., Esq.
Michael D. Hess, Corporation Counsel of the City of New York, Attorney for Defendants The City of New York, Kyle Sturcken, Michael Gargan, Raymond Dowd, David Bartholomew, John Baner, Sharon Brooks, Jose Perez and Howard Wilson. 350 Jay Street Brooklyn, New York 11201, By: Stuart I. Parker, Esq., Laura Corvo, Esq.
OPINION
Defendants have moved for reconsideration, pursuant to Local Rule 6.3, of my opinion of October 30, 2001, denying in part their motion for summary judgment. Reconsideration is granted only with respect to the significance of Brooks' trial testimony because the parties did not previously have a full opportunity to address that issue. Reconsideration is denied with respect to all other issues addressed in my previous opinion because defendants have not presented controlling decisions or matters that were overlooked.
BACKGROUND
On June 26, 1996, Joseph Savino, a medico-legal investigator in the New York City office of the Chief Medical Examiner, was arrested without a warrant by the New York Department of Investigation ("DOI") for stealing a ring from the scene of a suicide that he had investigated on February 12, 1995. Savino was indicted by a Grand Jury in September 1996 for four crimes arising out of the theft. On January 27, 1997, after approximately 17 minutes of deliberation, a trial jury acquitted Savino of all criminal charges. The details of these and other facts relevant to this case are set out in my original opinion on defendants' motion for summary judgment, Savino v. City of New York, 168 F. Supp.2d 172 (S.D.N.Y. 2001).
Savino sued the City of New York, Commissioner Howard Wilson, Kyle Sturcken, and Jose Perez of the New York DOI, and Officers Michael Gargan, Raymond Dowd, David Bartholomew, John Baner, and Sergeant Sharon Brooks of the New York Police Department. Plaintiff asserts claims against all these defendants for (i) violation of his civil rights under 42 U.S.C. § 1983; (ii) false arrest, malicious prosecution, abuse of process, defamation, and negligence under state law; and (iii) violations of the New York Constitution.
Defendants moved for summary judgment asserting, inter alia, that (i) Savino's federal law claims of false arrest and malicious prosecution against DOI Commissioner Howard Wilson should be dismissed because Wilson did not participate in or direct the outcome of the criminal investigation of plaintiff, did not direct plaintiff's arrest, and did not present evidence to the grand jury that returned an indictment against plaintiff; (ii) the false arrest claims against defendants Gargan, Dowd, Bartholomew, Baner and Brooks should be dismissed because they did not arrest or confine Savino; (iii) the federal and state law claims of false arrest and malicious prosecution should be dismissed because the indictment of Savino created a presumption that there was probable cause to arrest and prosecute him, and no issue of material fact existed to overcome this presumption; (iv) even assuming that probable cause did not exist, the individual defendants were immune from liability for plaintiff's Fourth Amendment claims of false arrest and malicious prosecution under the doctrine of qualified immunity because they were "objectively reasonable" in believing that their actions did not violate plaintiff's constitutional rights; (v) the federal and state law abuse of process claims should be dismissed because Savino could not demonstrate that legal process was used by defendants Wilson, Sturcken, Perez, Gargan and Dowd for some collateral purpose after it was issued; (vi) the federal law claims against the City of New York should be dismissed because Savino could not demonstrate the existence of any municipal policy or custom that caused the alleged violation of his constitutional rights.
Defendants annexed excerpts from the grand jury testimony of all the police defendants except Brooks in support of their motion for summary judgment. In their reply memorandum of law in further support of the summary judgment motion, defendants noted that "Brooks' Grand Jury testimony is consistent with her trial testimony." Def.'s Reply Mem. Summ. J. at 12 n. 4. Thus, the defendants led me to believe that Sergeant Brooks had testified before the grand jury. Because of the exculpatory importance of Brooks' trial testimony, I was puzzled as to why the grand jury had not reacted as the petit jury did. Accordingly, before ruling on the motion, I sought confirmation from the Corporation Counsel of the City of New York that Brooks had not testified before the grand jury, and learned from the response that contrary to the representation in defendants' brief, no testimony of Brooks had been presented to the grand jury. See Ct. Order, Oct. 12, 2001; Decl. of Laura Corvo, Oct. 19, 2001.
Since I did not give the parties an opportunity to address the significance of the failure to call Brooks before the grand jury, I now reconsider that issue even though defendants' papers on the original motion were factually inaccurate.
DISCUSSION
Defendants now present Brooks' trial testimony on redirect examination, and argue that this testimony removed the exculpatory import of Brooks' testimony on cross-examination which I had relied upon in my previous opinion. On cross-examination, Brooks testified that in the five minute period that Savino was alone in the room with the body, she could see the area where the handbag, purse and wallet were, and that she "didn't see him go in the bag." Def. Ex. GG at 507. On redirect examination, Brooks testified that she was not watching Savino for every second of those five minutes. Id. at 508. The redirect examination did not elicit testimony on whether Brooks took her eyes off the handbag, purse and wallet during that five minute period.
For the purpose of determining whether Savino took the ring out of the handbag, it is sufficient that Brooks kept track of the handbag. Brooks' redirect testimony does not, therefore, alter my previous conclusion that genuine issues of material fact remain with respect to probable cause.
In their original motion for summary judgment, defendants argued that they had probable cause to arrest and prosecute Savino because of the presumption of probable cause created by Savino's grand jury indictment. Defendants now argue that plaintiff has not met his burden to rebut the presumption of probable cause because it was the District Attorney, and not the police and DOI defendants, who decided what evidence to present to the grand jury. A genuine issue of material fact remains as to whether any of the defendants can rely on the presumption of probable cause created by the indictment if it can be shown that any municipal employee suppressed evidence. Moreover, as I noted in my previous opinion, the record is unclear as to whether the police defendants disclosed Brooks' information to the Assistant District Attorney or the DOI, as well as whether Sturcken, Perez and Wilson knew about Brooks' evidence. Savino, 168 F. Supp. at 178.
Defendants argue that there is no factual basis for an inference that Wilson was aware of what Brooks witnessed. This argument ignores defendant Wilson's testimony that "it stands to reason that Kyle Sturcken would have talked to me about [Savino's criminal investigation] directly." Dep. of Def. Howard Wilson, Pl. Ex. 47 at 14.
Accordingly, upon reconsideration, I adhere to my previous opinion.
Defendants' Other Arguments for Reconsideration
Defendants also argue that (i) there is no factual basis for a finding that defendant Wilson, as head of DOI, recklessly or intentionally engaged in actions that violated plaintiff's rights under § 1983; and (ii) there was insufficient evidence to support plaintiff's abuse of process claims because defendants did not employ "regularly issued legal process" against plaintiff.
To prevail on a Local Rule 6.3 motion, the movant must show that the court "overlooked matters or controlling decisions which, had they been considered, might reasonably have altered the result." Donahue v. Pendleton Woolen Mills, Inc., 719 F. Supp. 149, 151 (S.D.N.Y. 1988) (citations and internal quotation marks omitted).
In raising these contentions, defendants do not point to any controlling decisions or matters overlooked that might reasonably have altered my decision. Accordingly, the motion for reconsideration is denied with respect to these issues.
Municipal Liability
In my previous opinion, I reserved decision pending further briefing on the issue of whether the Commissioner of the DOI is a final policy-making authority. Defendants argue that all of plaintiff's claims arise from the decision to pursue Savino's criminal prosecution, and that summary judgment should be granted for the City of New York because the District Attorney, not the DOI Commissioner, has final policy-making authority regarding prosecutions for violations of criminal law. Plaintiff quotes New York City Charter § 803(b) in support of the DOI Commissioner's final policy-making authority with respect to the investigation of Savino. Section 803(b) of the New York City Charter provides, in pertinent part, that "[t]he commissioner is authorized and empowered to make any study or investigation which in his opinion may be in the best interests of the city, including but not limited to investigations of the affairs, functions, accounts, methods, personnel or efficiency of any agency." N.Y. City Charter § 803(b). Since neither party has argued that Wilson does not have policy-making authority with respect to investigations of wrongdoing by City employees such that his actions may subject the City to liability under § 1983, a genuine issue of material fact remains as to the application of Monell v. Department of Social Services, 436 U.S. 658 (1978).
CONCLUSION
For the foregoing reasons, defendants' motion for reconsideration is granted in part and denied in part. After reconsideration of Brooks' testimony, I adhere to my previous opinion denying summary judgment on the remaining false arrest, malicious prosecution and abuse of process claims. Finally, summary judgment is denied with respect to plaintiff's § 1983 claims against the City of New York, because a genuine issue of material fact remains as to whether the DOI Commissioner is a final policy-making authority with respect to the investigation of Savino.
SO ORDERED.