Opinion
Index No. 000609/2022
08-26-2024
Shawn Broton, Plaintiff v. County of Onondaga, WILLIAM J. FITZPATRICK individually and in his Capacity as Onondaga County District Attorney, ROBERT DURR individually and in his capacity as Onondaga County Attorney, DUANE OWENS individually and in his capacity as Onondaga County Commissioner of Personnel, STEVEN WILLIAMS individually and in his capacity as investigative consultant to the Onondaga County Board of Ethics, Defendants.
Gary J. Lavine, Esq., Bousquet Holstein PLLC Attorneys for Plaintiff Kevin E. Hulslander, Esq., Smith, Sovik, Kendrick & Sugnet, P.C., Attorneys for Defendant Williams William B. Hunt, Esq., Mackenzie Hughes LLP, Attorneys for Defendant Owens John E. Heisler, Jr., Esq., Onondaga County Dept. of Law, Attorneys for Defendants County/ Durr Donald S. DiBenedetto, Esq., Costello, Cooney & Fearon, PLLC, Attorneys for Defendant Fitzpatrick
Unpublished Opinion
Gary J. Lavine, Esq., Bousquet Holstein PLLC Attorneys for Plaintiff
Kevin E. Hulslander, Esq., Smith, Sovik, Kendrick & Sugnet, P.C., Attorneys for Defendant Williams
William B. Hunt, Esq., Mackenzie Hughes LLP, Attorneys for Defendant Owens
John E. Heisler, Jr., Esq., Onondaga County Dept. of Law, Attorneys for Defendants County/ Durr
Donald S. DiBenedetto, Esq., Costello, Cooney & Fearon, PLLC, Attorneys for Defendant Fitzpatrick
Gregory R. Gilbert, J.
BACKGROUND
This action was commenced January 27, 2022 by plaintiff, Shawn Broton ("Broton"). Discontinuance was filed as to the Onondaga County Board of Ethics ("Board of Ethics"), John Cucinotta, Mary Beth Primo, and Fr. Robert Scully, S.J. on June 17, 2022. The action has continued against the County of Onondaga ("County"), Duane Owens ("Owens"), William Fitzpatrick ("DA Fitzpatrick"), Robert Durr ("Durr"), and Steven Williams ("Williams").
Plaintiff previously filed a motion to compel production of all investigator notes made by Williams during inquiry into a complaint made to the Board of Ethics in 2019. This was granted and was followed by a trial note of issue filed November 29, 2023 as directed by the Court.
A consent to change attorney was filed for Williams on December 19, 2023 and a motion to strike the trial note of issue was brought. This was denied. Plaintiff filed a cross motion to disqualify counsel representing Williams and other relief. This was denied. A further motion was filed by Williams to disqualify plaintiff's counsel and this was also denied.
Motions for summary judgment are now filed by DA Fitzpatrick, Williams, and Owens. As an initial matter, the motions are not timely if one is strictly applying the Scheduling Order [DKT # 22]. Dispositive motions were due within 60 days from the date the trial note of issue was filed. A strict application of the Scheduling Order is not appropriate given the fact that there have been multiple changes of counsel and multiple motions to disqualify counsel as well as a motion to strike the trial note of issue. Lateness of the motions under the Scheduling Order is not raised by Broton in any event. In the exercise of discretion, there being sufficient cause, the Court will apply the 120 days under CPLR 3212(a) running from the Decision and Order filed February 8, 2024 which resolved the last motion for disqualification of counsel.
The motion by DA Fitzpatrick asserts that plaintiff's claims are without merit and time barred. Fitzpatrick also asserts that he is entitled to absolute immunity, that plaintiff failed to comply with the requisite notice of claim requirements and also failed to exhaust his administrative remedies. Lastly, Fitzpatrick asserts that the intra-corporate conspiracy doctrine bars any allegations of a conspiracy.
Williams seeks summary judgment asserting that plaintiff does not assert a controversy capable of being adjudicated by this Court and that the complaint should be dismissed for lack of standing and subject matter jurisdiction. He also asserts that the material and undisputed facts of the case require a dismissal of this matter as to him as a matter of law.
The Owens motion asserts that any claims against him in his official capacity should be dismissed because they duplicate the claims against Onondaga County which is already a party. He also argues that the individual claims against him should be dismissed because Broton had no right to reinstatement as a Captain as a matter of law and under Onondaga County's civil service rules. Owens further raises the issue of qualified immunity and asserts that the material and undisputed facts of the case require a dismissal of this matter as to him as a matter of law.
The County and Durr indicate that they will not answer, brief, or orally argue any of these motions.
STANDARD
Summary judgment may be granted only where there are no triable issues of fact, and the moving party is entitled to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The motion needs to be supported by sufficient evidence in admissible form to show the material and undisputed facts based on which judgment as a matter of law must be granted. Bazdaric v. Almah Partners, LLC, 41 N.Y.3d 310 (2024); Viviane Etienne Medical Care v. Country-Wide Insurance Company, 25 N.Y.3d 498 (2015). This is an affirmative obligation for the moving party. Voss v. Netherlands Insurance Co., 22 N.Y.3d 728 (2014); Yun Tung Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29 (2011). In the absence of such an affirmative showing by the moving party, the motion must be denied regardless of the sufficiency of the responding papers. Vega v. Restani Construction Corp., 18 N.Y.3d 499 (2012); Smalls v. AJI Industries, Inc., 10 N.Y.3d 733 (2008).
Assuming that the burden on the motion has passed to the responding party, it is incumbent on that party to demonstrate by admissible evidence the questions of fact which may preclude summary judgment. Alvarez, 68 N.Y.2d at 324; Zuckerman, 49 N.Y.2d at 562. A responding burden is not met by conclusory or unsubstantiated allegations. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124 (2000); Zuckerman, 49 N.Y.2d at 562.
The Court is charged to view the evidence and inferences arising therefrom in a light most favorable to the responding party. Haymon v. Pettit, 9 N.Y.3d 324 (2007); Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., LP, 7 N.Y.3d 96 (2006). The motion should be granted unless a material triable issue of fact has been identified. Panepinto v. New York Life Insurance Co., 90 N.Y.2d 717 (1997); Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978). The function of the Court on the motion is the determination of whether a triable issue of fact exists and not one determining material fact or credibility issues. US Bank National Association v. DLJ Mortgage Capital, Inc., 38 N.Y.3d 169 (2022); Vega, 18 N.Y.3d at 505.
UNDISPUTED FACTS
Certain basic facts are not in dispute between the parties. This action arises out of the denial of Broton's request to be reinstated as a police captain. Broton was pending removal from his position as Deputy Chief of the Syracuse City Police Department by incoming Mayor Ben Walsh in December 2017. Frank Fowler, then the Chief of the Syracuse Police Department, submitted a formal request to reinstate Broton to the civil service rank of Captain on December 5, 2017 [DKT # 137].
Owens as Onondaga County Commissioner of Personnel denied the application for Broton's reinstatement as police captain on December 18, 2017 [DKT # 138]. In July 2019, Broton complained to the Board of Ethics alleging that DA Fitzpatrick had improperly intervened in Owens' decision-making process related to the reinstatement request [DKT # 125].
The Ethics Board directed an investigation of Broton's complaint, which was conducted by Williams, an attorney and member of the law firm Smith Sovik Kendrick & Sugnet, P.C. As part of his investigation, Williams questioned DA Fitzpatrick and Owens [DKT # 126 and 127]. Williams concluded his investigation and submitted a report to the Board of Ethics on October 31, 2019 [DKT # 128]. Williams concluded, in part, that there was "no evidence whatsoever" that DA Fitzpatrick was involved in the Owens decision-making process.
Williams sought to question Broton and an October 30, 2019 date was set with counsel but then cancelled on a claim of a "serious family emergency" [DKT # 133 ¶ 23-26]. Williams unsuccessfully and repeatedly attempted to reschedule his questioning of Broton and, while this is admitted, Broton takes the position that his consent to questioning by Williams was preconditioned on his receipt of his personnel file from the County [DKT # 133 ¶ 27-30] and that Williams was made aware of this.
The report by Williams refers to a demand by Broton for records of an investigation by the Cayuga County DA Budelmann into Broton's access and use of certain sealed arrest records as a potential violation of CPL §160.50. Regardless of which version (or both) are correct, Williams had no access to either the Broton personnel records or the investigative records of DA Budelmann and concluded that he would not be able to conduct Broton's questioning given the precondition. He then closed his investigation and issued his report.
Williams concluded that no criminal charges were ever brought against Broton and this is admitted by Broton [DKT # 134 ¶ 7]. Broton also acknowledges that he never commenced an Article 78 proceeding as to the Owens determination that he would not be reinstated as a police captain [DKT # 134 ¶ 13].
PLEADINGS
The action proceeds based on a Second Amended Complaint [DKT # 23] (the complaint). The caption reflected above deletes reference to Doe defendants given that the trial note of issue has been filed indicating that the matter is trial ready and Doe defendants are not identified. The complaint attempts to state seventeen causes of action as follows:
1. Violation of free speech rights - Article I, Section 8, State Constitution.
2. Conspiracy violation free speech rights - Article I, Section 8, State Constitution.
3. Violation of due process - Article I, Section 6, State Constitution.
4. Conspiracy violation of due process - Article I, Section 6, State Constitution.
5. Violation of equal protection - Article I, Section 11, State Constitution.
6. Conspiracy violation of equal protection - Article I, Section 11, State Constitution.
7. Violation plaintiff's rights - Civil Service Law 75-b.
8. Conspiracy violation plaintiff's rights - Civil Service Law 75-b.
9. Negligent infliction of emotional distress.
10. Committing one or more prima facie torts against plaintiff.
11. Conspiracy to commit prima facie torts against plaintiff.
12. Violation of rights - First Amendment U.S. Constitution.
13. Conspiracy violation of rights - First Amendment U.S. Constitution.
14. Violation of due process - Fifth Amendment U.S. Constitution.
15. Conspiracy violation of due process - Fifth Amendment U.S. Constitution.
16. Violation of rights - Fourteenth Amendment U.S. Constitution.
17. Conspiracy to violate rights - Fourteenth Amendment U.S. Constitution.
The complaint asserts in a general and conclusory manner solely upon information and belief that the Owens determination that Broton not be reinstated as a police captain "was tainted by improper political interference which subverted the integrity of the determination" [DKT # 23 ¶ 37].
The complaint acknowledges that DA Fitzpatrick recused himself from the Board of Ethics matter as to the Broton ethics complaint to review his claim of interference with the Owens determination and that Williams was engaged to conduct the investigation and report to the Board. Broton's complaint, again on information and belief, asserts in conclusory fashion that "Williams maliciously and intentionally concluded the investigation prior to Plaintiff receiving his own personnel records and without Plaintiff being interviewed" and "in his report, Defendant Williams disingenuously claimed Plaintiff would not accede to an interview" [DKT # 23 ¶ 42]. Broton further alleges "upon information and belief" and in conclusory fashion that "Defendant Williams rushed his investigation to conclusion and precluded Plaintiff Broton's interview for the purpose of personally and professionally discrediting the Plaintiff and bolstering Defendant Fitzpatrick's reelection campaign" [DKT # 23 ¶ 43].
No facts are stated by the complaint to provide the basis for Broton's information and belief for his core allegations against DA Fitzpatrick, Owens, or Williams. There has been no deposition, bill of particulars or disclosure from Broton beyond his responses to the notices to admit served by DA Fitzpatrick, Owens, and Williams. Defendants sought no disclosure from Broton beyond the notices to admit. Also, as previously noted, there was no deposition of Broton by Williams as a function of the Board of Ethics investigation.
The complaint was answered with affirmative defenses including duplicative causes of action given the obligation of the County to indemnify each of the defendants, absolute and qualified immunity, non-compliance with notice of claim provisions, statutes of limitations, failure to state causes of action as to any of the claims asserted and the unavailability of punitive damages. These affirmative defenses are raised by motion for summary judgment timely filed.
DISCUSSION
A. Questions of Fact
The motions are supported by the documentary evidence referenced earlier, including the notices to admit and responses by Broton. Additionally, the transcripts of questioning by Williams of DA Fitzpatrick and Owens together with the deposition transcripts of Durr, Owens, Duval, and Williams are presented. Based on these documents and the affidavits and other exhibits, defendants assert there are no material substantial questions of fact and as a matter of law they are entitled to summary judgment.
Defendants show that there was no contact between DA Fitzpatrick and Owens during the time that Broton's reinstatement to police captain was considered or between DA Fitzpatrick and Williams beyond the testimony that was arranged and provided during the Board of Ethics investigation. DA Fitzpatrick properly recused himself from the Broton Board of Ethics matter altogether. He also properly sought and obtained a judicial Order for a special prosecutor to investigate Broton's use of sealed criminal records.
There is no fact in the record to remotely suggest that Williams rushed his investigation to a conclusion and precluded Broton's interview for the purpose of personally and professionally discrediting Broton. Broton set the precondition for his testimony, not Williams. Williams could not meet the precondition that Broton set. Further, Broton's demand for personnel records, giving credit to the complaint, had no relation to the Ethics complaint Broton filed with the Board of Ethics claiming that DA Fitzpatrick had interfered with the Owens civil service determination.
The issue of objective reasonability raised by Williams as basis to dismiss Broton's claim based on qualified immunity being fact based is resolved by determination of whether a question of fact is presented. What can be said is that absent facts showing improper motivation and/or conspiracy, the Williams report and, for that matter, the Owens determination involved the exercise of judgment and discretion making them immune from liability. Mon v. City of New York, 78 N.Y.2d 309 (1991); Maldovan v. County of Erie, 188 A.D.3d 1597 (4th Dept 2020); Kirchner v. County of Niagara, 107 A.D.3d 1620 (4th Dept 2013); and Davies v. County of Nassau, 260 A.D.2d 531 (2nd Dept 1999).
The defendants each meet the burden on their motions for summary judgment and the motion burden passes to Broton to establish that there is any question of fact presented to show that DA Fitzpatrick interfered with the Owens civil service decision or the Williams Board of Ethics investigation or that Williams acted with malice and intent in issuing his investigation report to discredit Broton personally and professionally.
In opposition to the motion Broton submits no memorandum of law but argues the facts and the law by affirmation contrary to 22 NYCRR §202.8(c). This is a practice long criticized as improper and disapproved. In re Foreclosure of Tax Liens by he County of Essex, 195 A.D.3d 1187 (3rd Dept 2021) leave to appeal denied 38 N.Y.3d 904; In re Taylor, 265 AD 858 (2nd Dept 1942).
Broton argues that defendants fail to meet their motion burden as their arguments are based solely on the absence of proof submitted by Broton. Broton's general recitation of the practice commentaries to the statute as authority for this proposition is not particularly helpful. The point being made by Broton seems to be that defendants should not be granted summary judgment dismissing the action by simply pointing to weaknesses to plaintiff's case. Parslow v. Leake, 117 A.D.3d 55 (4th Dept 2014); River Ridge Living Center, LLC v. ADL Data Systems, Inc., 98 A.D.3d 724 (2nd Dept 2012). Defendants quite properly point out gaps in and the general lack of proof by Broton as to his core allegations. They also affirmatively state and show that there was no contact between DA Fitzpatrick and Owens as to the civil service determination or between DA Fitzpatrick and Williams to subvert the ethics investigation. Broton's argument has no merit.
Broton next argues that there are triable issues of fact to be inferred based on circumstantial evidence because his action is asserted as a "retaliation" claim under Herskowitz v. State of New York, No, 2023-00700 (1st Dept 2023). The actual case citation is Herskowitz v. State of New York, 222 A.D.3d 587 (1st Dept 2023) in which the First Department rejected in part the very argument being made by Broton. Moreover, the Herskowitz matter did not involve motions for summary judgment but was a review of a CPLR §3211 motion in which the dismissal of the complaint was affirmed in part. The First Department noted as follows:
" '[T]he causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action'" (Summa v Hofstra Univ., 708 F.3d 115, 127-128 [2d Cir 2013], quoting Cifra v General Elec. Co., 252 F.3d 205, 217 [2d Cir 2001]). * Courts have" 'not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action. This has allowed [the Second Circuit] to exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases'" (Summa, 708 F.3d at 128, quoting Espinal v Goord, 558 F.3d 119, 129 [2d Cir 2009]). Here, the four-month period between plaintiff's interview and termination easily falls within the acceptable temporal range to establish a causal connection (see Rasmy v Marriott Intl., Inc., 952 F.3d 379, 391-392 [2d Cir 2020] [five months]; Summa, 708 F.3d at 128 [four months and seven months for separate retaliatory actions]; Espinal, 558 F.3d at 129 [six months]; Collins, 59 Misc.3d at 1054 [four months]).
However, despite the lenient pleading standard governing employment discrimination cases, the complaint fails to state a cause of action for sex discrimination under the New York State Human Rights Law because it contains no factual allegations giving rise to an inference of discrimination (see Brown v City of New York, 188 A.D.3d 518, 519, 135 N.Y.S.3d 103 [1st Dept 2020]).
Digging deeper into Herskowitz, the circumstantial connection alleged was a "protected activity" of plaintiff's cooperation in an April 1, 2021 interview by the Attorney General corroborating an instance of sexually harassing behavior by then Governor Cuomo said to have led to plaintiff's discharge on August 12, 2021. The temporal proximity of the events in Herskowitz was seen as possibly supporting a claim of retaliation for that protected activity allowing the surviving portions of the complaint to proceed.
Here there is no such protected activity or temporal proximity measured by months nor has plaintiff demonstrated any good faith reasonable belief that the underlying challenged actions of DA Fitzpatrick violated the law. Rasmy v. Marriott International, Inc., 952 F.3d 379 (2nd Cir 2020). Broton has put forward no actual proof to show any retaliatory motive on the part of any defendant, DA Fitzpatrick included. Hollander v. American Cyanamid Co, 895 F.2d 80 (2nd Cir 1990) certiorari denied 528 U.S. 965.
The circumstantial evidence claimed by Broton to provide the causal connection needed for proof of his retaliation claims for the Owens determination issued on December 18, 2017 are limited to a December 15, 2011 incident at Dinosaur BBQ [DKT # 23 ¶ 13] and a 2015 criminal investigation of Broton relating to his access to and use of a sealed criminal arrest record [DKT # 23 ¶ 29]. The Court rejects the notion that the 2011 incident has anything to do with the Owens determination on December 18, 2017 six (6) years later. Likewise, the 2015 criminal investigation provides no circumstantial basis for this litigation. This is for numerous reasons:
First, there is no temporal proximity given that two (2) years elapsed between the triggering of a criminal investigation by DA Fitzpatrick and the Owens determination. The cases finding temporal proximity are measured by months, not years.
Second, the claim of retaliation must be based on some protected activity. Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295 (2004); Wallace v. SUNY Upstate, 162 A.D.3d 1719 (4th Dept 2018); Harrington v. City of New York, 157 A.D.3d 582 (1st Dept 2018); Keceli v. Yonkers Racing Corporation, 155 A.D.3d 1014 (2nd Dept 2017); Graham v. New York State Office of Mental Health, 154 A.D.3d 1214 (3rd Dept 2017). Broton's access and use of a sealed criminal arrest record cannot be considered protected activity. This is for three reasons:
(a) Broton broadly alleges that his access and use of a sealed criminal arrest record occurred in the course of his official duties [DKT # 106 ¶ 29]. This would not be protected free speech in the first instance. Garcetti v. Ceballos, 547 U.S. 410 (2006); Matter of Watt (East Greenbush Central School District), 85 A.D.3d 1357 (3rd Dept 2011).
(b) Broton's use of sealed criminal records is not an activity opposing or complaining of unlawful discrimination and this is a necessary element of the retaliation claim. Borawski v. Abulafia, 140 A.D.3d 817 (2nd Dept 2016); Clarson v. City of Long Beach, 132 A.D.3d 799 (2nd Dept 2015).
(c) While Broton's use of sealed criminal records may not, at least arguably, expose him to criminal or civil liability it cannot be considered privileged or protected activity. Freihofer v. Hearst Corp., 65 N.Y.2d 135 (1985). No Court should be placed in a position of having to condone a violation of the law as protected activity to support Broton's claim of retaliation.
Third, DA Fitzpatrick had qualified immunity for initiating a criminal investigation as to the access and use of a sealed criminal arrest record meaning that Broton can have no possible good faith reasonable belief that such an investigation violated the law. Kirchner v. County of Niagara, 107 A.D.3d 1620 (4th Dept 2013); Cunningham v. State, 71 A.D.2d 181 (3rd Dept 1979). The Court does not reach the issue of absolute immunity raised by the parties.
Fourth, the request for the investigation was subject to judicial review for appointment of a special prosecutor by Hon. James C. Tormey, III, as Chief Administrative Judge, 5th Judicial District, [DKT # 97 Exhibit B] admitted by Broton [DKT # 98]. Broton can have no possible good faith reasonable belief that the investigation violated the law when it received judicial approval.
Fifth, no special duty by DA Fitzpatrick to Broton has been shown or even alleged that would trigger any possible exception to DA Fitzpatrick's qualified immunity. Spring v. County of Monroe, 151 A.D.3d 1694 (4th Dept 2017).
Sixth, there was probable cause to believe that Broton might have committed a crime when he accessed and used sealed criminal arrest records. Smithers v. County of Oneida, 138 A.D.3d 1504 (4th Dept 2016). There is no factual dispute that Broton accessed and used sealed criminal records. Broton has not referenced a single case to show that the investigation was without probable cause or in violation of statute.
Seventh, Broton has the obligation to show retaliatory motivation on the part of defendants, including DA Fitzpatrick. Kline v. Town of Guilderland, 289 A.D.2d 741 (3rd Dept 2001); Kelly v. New York State Executive Dept., 203 A.D.2d 836 (3rd Dept 1994); Matter of Buric v. Safir, 285 A.D.2d 255 (1st Dept 2002); Rigle v. Onondaga County, 267 A.D.2d 1088 (4th Dept 1999) leave to appeal denied 94 N.Y.2d 764; McManus v. Grippen, 244 A.D.2d 632 (3rd Dept 1997). Broton offers nothing to show retaliatory motivation by either Owens or Williams. The Court is provided with surmise and speculation parading as circumstantial evidence falling short of the standard needed for consideration as to DA Fitzpatrick.
Broton has raised no question of fact in opposition to the motion for summary judgment. Defendants are entitled to summary judgment dismissing the Broton action in all respects.
B. Questions of Credibility
Broton argues that none of the defendants have provided credible testimony. The factual issues raised to defeat a motion for summary judgment must be genuine, not speculative. Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439 (1968); Mitsel v. New York City Board of Education, 278 A.D.2d 291 (2nd Dept 2000): Craven v. State of New York, 29 A.D.2d 820 (3rd Dept 1968). The credibility claim against DA Fitzpatrick is rife with speculation. The credibility claims as to Owens and Williams are belied by the documentary evidence.
Broton also has this issue in reverse and would have the Court make findings that the testimony and affidavits of the defendants are not credible particularly as to Owens and Williams. The Court may not weigh the credibility of affiants on the motion absent a finding that the proof presented is feigned or unsupported. Calabrese v. Childs, 149 A.D.2d 557 (2nd Dept 1989); Chase v. Skoy, 146 A.D.2d 563 (2nd Dept 1989) appeal dismissed 73 N.Y.2d 995; Krupp v. Aetna Life & Casualty Co., 103 A.D.2d 252 (2nd Dept 1984); Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439 (1968).
Owens states by affidavit that his determination was based on Rule 17 of the of the County Civil Service Rules as to reinstatements and that reinstatement could not be approved given that there was an established preferred eligibility list. Both the rule and the list are shown and Broton raises no fact issue as to either document. Owens also states that a retreat and reinstatement from Deputy Chief to police captain had never been previously approved for the Syracuse police Department. Broton does not argue to the contrary.
Likewise, the record created and produced on the motion by Williams speaks for itself. There are no feigned or unsupported issues presented by either Williams or Owens just as no feigned or unsupported issue is shown as to DA Fitzpatrick.
The attempted credibility issue raised by Broton has no merit. Defendants are entitled as a matter of law to judgment dismissing each of the causes of action of action asserted by Broton.
C. Statute of Limitations
Defendants assert that each of Broton's causes of action are barred by reason of applicable statutes of limitation. The act complained of as causing Broton's damage was the Owens determination on December 18, 2017 and this is when his causes of action accrued. The action was not commenced until January 27, 2022. Broton's claims of interference by DA Fitzpatrick with the ethics review by Williams have no impact on the statute of limitations analysis.
The statute of limitations for a constitutional tort or claim under 42 USCS §1983 is three years. BL Doe 3 v. Female Academy of the Sacred Heart, 199 A.D.3d 1419 (4th Dept 2021); Brown v. State, 250 A.D.2d 314 (3rd Dept 1998). The constitutional tort and §1983 claims should have been commenced on or before December 18, 2020. Broton's first, second, third, fourth, fifth, sixth, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth causes of action are barred by the three-year statute of limitations requiring them to be dismissed as a matter of law.
The statute of limitations for a violation of Civil Service Law §75-b is two years from the alleged retaliatory action causing the adverse employment determination pursuant to Labor Law 740(4)(a) as amended and effective January 26, 2022. The Civil Service retaliation claims should have been brought on or before December 18, 2019. Broton's seventh and eighth causes of action are barred by the two-year statute of limitations requiring them to be dismissed as a matter of law.
The statute of limitations for the negligent infliction of emotional distress is three years having accrued with the Owens determination. Augeri v. Roman Catholic Diocese of Brooklyn, 225 A.D.2d 1105 (4th Dept 1996). This claim should have been brought on or before December 18, 2020. Broton's ninth cause of action is dismissed as a matter of law.
The statute of limitations for prima facie tort is three years. Barrett v. Huff, 6 A.D.3d 1164 (4th Dept 2004). The claims for prima facie tort should have been commenced on or before December 18, 2020. Broton's tenth and eleventh causes of action are barred by the three-year statute of limitations and must be dismissed as a matter of law.
Broton does not adequately address this issue. Those arguments that are made are without merit. No part of the complaint being timely commenced the entire action must be dismissed.
D. Notice of Claim Issues
Defendants point out that Broton never filed a notice of claim concerning his allegations and this is undeniably true. Broton takes the position that a notice of claim was not required because he is attempting to vindicate a public right under Picciano v. Nassau County Civil Service Commission, 290 A.D.2d 164 (2nd Dept 2001) and Margerum v. City of Buffalo, 24 N.Y.3d 721 (2015) dealing with General Municipal Law §50-e.
Broton's position as to General Municipal Law §50-e is correct but does not hold true, for example, as to Town Law §67. Arnold v. Town of Camillus, 222 A.D.3d 1372 (4th Dept 2023). As explained in Arnold, the Court must look at the particular notice of claim statute involved and the nature of those claims and causes of action stated to require a notice of claim.
Broton is incorrect in his application of Arnold v. Town of Camillus, 222 A.D.3d 1372 (4th Dept 2023) in that the Appellate Division specifically held that a notice of claim was required for the action based on the Human Rights Law under Town Law §67. The Appellate Division Fourth Department simply exercised its discretion under all of the facts presented to grant plaintiff leave to file a late notice of claim as had been discussed in the federal action between the parties as shown by Arnold v. Town of Camillus, 2021 USDist LEXIS 18327 reargued 2021 USDist LEXIS 132601 (NDNY 2021).
County Law §52 provides for notice of claim against the County as follows:
1. Any claim or notice of claim against a county for damage, injury or death, or for invasion of personal or property rights, of every name and nature, and whether casual or continuing trespass or nuisance and any other claim for damages arising at law or in equity, alleged to have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county, its officers, agents, servants or employees, must be made and served in compliance with section fifty-e of the general municipal law. Every action upon such claim shall be commenced pursuant to the provisions of section fifty-i of the general municipal law. The place of trial shall be in the county against which the action is brought.
2. This section shall not apply to claims for compensation for property taken for a public purpose, nor to claims under the workmen's compensation law.
County Law §52 is much broader than General Municipal Law §52-e and equivalent to the Town Law "any claims" provision. The holding in Arnold v. Town of Camillus, 222 A.D.3d 1372 (4th Dept 2023) directly applies. There is no application for leave to file late notice. The possibility of a late notice of claim is not even mentioned as it was in Arnold. Under the circumstances presented, the Court declines to exercise discretion to permit late notice for this matter originating December 18, 2017. The general argument as to notice of claim asserted by Broton has no merit.
The more specific argument by Broton on the notice of claim issue is that County Law §52 has no application to Williams. This is stated because Williams was an independent contractor or consultant rather than a County employee under resolution # 000168 of the Onondaga County Legislature from May 7, 1990. Broton argues that the County is not required to indemnify Williams meaning that there is no notice of claim requirement under Villar v. Howard, 28 N.Y.3d 74 (2016); Arnold v. Town of Camillus, 5:20-CV-1364 (NDNY, 2023); Swecker v. Church, 279 A.D.2d 572 (2nd Dept, 2001); Int'l Shared Serv. Inc. v. County of Nassau, 227 A.D.2d 407 (2nd Dept, 1995).
The correct citations for the Arnold federal cases are as stated above and were decided in 2021 not 2023 as indicated by Broton. The correct citation in the Swecker matter is Zwecker v. Clinch, 279 A.D.2d 572 (2nd Dept 2001). The correct citation in International Shared Services v. County of Nassau is 222 A.D.2d 407 (2nd Dept 1995). The common trait in these cases is that they are all decided under General Municipal Law §52-e(1)(b) which states as follows:
If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law.
In this case, the County is a named party in the action and this required service of a notice of claim. While the interplay of GML §52-e and County Law §52 as to Williams is of theoretical interest, the same is not decisive for the reasons already stated.
Broton continues with his notice of claim argument concerning asserting that a claim was not required as to DA Fitzpatrick, Owens, and Williams because each of them acted in bad faith and not in furtherance of their employment duties. As previously stated, there is not a shred of evidence provided in the record presented to the Court for this proposition. Plaintiff has had full disclosure over many months and still the only support for this argument is identified as circumstantial and has been determined not to be applicable.
Broton's initial basis in law for the argument is Onondaga County Resolution # 000168 of May 7, 1990 which he does attached to counsel's affirmation. What Broton neglects to mention is that the initial determination of good faith is made by the County Attorney as stated by that same Resolution. That determination is evidenced by the answer to amended complaint [DKT # 5 Eighth Affirmative Defense] and answer to second amended complaint [DKT # 24 Fifth Affirmative Defense] both filed by the County Attorney. There was no need for the County to pursue summary judgment on the issue, the matter being raised by the defendants now separately represented.
Broton not only ignores the initial determination of the issue by the County Attorney but asserts that the issue of bad faith is a factual determination to be left to the jury citing Lore v. City of Syracuse, supra. The case is not previously mentioned by counsel's affirmation but there are several possible citations for the same: Lore v. City of Syracuse, 232 FRD 155 (NDNY 2005); Lore v. City of Syracuse, 460 Fed.Appx. 73 (2nd Cir 2012); Lore v. City of Syracuse, 583 F.Supp.2d 345 (NDNY 2008); Lore v. City of Syracuse, 670 F.3d 127 (2nd Cir 2012); and Lore v. City of Syracuse, 2001 U.S. Dist LEXIS 26942 (NDNY 2001).
Lore v. City of Syracuse, 2001 U.S. Dist LEXIS 26942 (NDNY 2001) is a determination on a motion for preliminary injunction and makes no reference to notice of claim issues. Lore v. City of Syracuse, 460 Fed.Appx. 73 (2nd Cir 2012) concerns the withdrawal of part of plaintiff's post judgment appeal and has no application. Lore v. City of Syracuse, 583 F.Supp.2d 345 (NDNY 2008) is a ruling on motions for summary judgment involving no considerations of claim notice or bad faith exclusion. Lore v. City of Syracuse, 232 FRD 155 (NDNY 2005) was a ruling on a disclosure motion and has no application herein.
Most likely, Broton was intending reference to Lore v. City of Syracuse, 670 F.3d 127 (2nd Cir 2012) which considered post-judgment appeals by the parties and included concepts involving qualified immunity and issues of objective reasonability as mixed questions of fact and law to be left to trial but this involved neither the right to indemnification nor notice of claim provisions. The case has no application to the point being made by Broton nor has Broton shown a question of fact as to his core allegations that DA Fitzpatrick intervened in either the Owens determination or the Williams investigation.
Broton invites the Court to determine that there is a question of bad faith presented (there isn't) based on Carroll v. Trump, 498 F.Supp.3d 422 (2020). The completed reference would be to the Southern District of New York along with a notation that the decision was reversed in Carroll v. Trump, 49 F4th 759 (2nd Cir 2022) which Broton does not cite at all. Broton goes on to reference Carroll v. Trump, 66 F4th 91 (2023) as citing Trump v. Carroll, 292 A.3d 220 (DC Cir 2023) without indicating that the former arises out of the Second Circuit. These cases all interpret and apply the Westfall Act, 28 USCS §2679 et. seq., and not the provisions of GML §50-e, County Law §52 or Onondaga County Resolution # 000168 of May 7, 1990. The Westfall Act and the cases reference by Broton have no application to this matter.
Broton continues to argue that notice of claim was not required as to DA Fitzpatrick, Owens, and Williams because they acted in bad faith and the County would have no obligation to indemnify any of them even if their actions were within the scope of their respective employments. Any argument that either Owens or Williams acted outside the scope of the employment has no facial validity. Owens as Commissioner of Personnel for the County issued a determination in response to the personnel request by then Chief of Police Frank L. Fowler [DKT # 137, 138]. Williams, as an appointee of the County Board of Ethics to investigate and report on the ethics complaint filed by Broton, investigated, wrote, and filed his report [DKT # 110]. Both plainly acted within the scope of their employments.
The case involving DA Fitzpatrick might differ from that involving Owens and Williams except there is not a shred of evidence presented by Broton that DA Fitzpatrick overstepped his authority as District Attorney in any fashion. In fact, and as acknowledged by Broton, DA Fitzpatrick recused himself from the Board of Ethics consideration of the ethics complaint and requested a special prosecutor to investigate Broton's access to and use of sealed criminal arrest records.
Defendants have shown that a notice of claim was required for this matter to proceed and that it was never filed. Broton's arguments on the notice of claim issue lack merit and the motion must be granted dismissing the action on this basis as a matter of law.
E. Causes of Action Claiming Conspiracy
As noted by the defendants, Broton uses the term "conspiracy" liberally sprinkled throughout his second amended complaint. Defendants assert that there is no independent cause of action for conspiracy in New York and this is true. Alexander & Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968 (1986); Carlson v. American International Group, Inc., 30 N.Y.3d 288 (2017); Emergency Enclosures, Inc. v. National Fore Adjustment Co., Inc., 68 A.D.3d 1658 (4th Dept 2009); Mamoon v. Dot Net Inc., 135 A.D.3d 656 (1st Dept 2016). Plaintiff may assert factual allegations of civil conspiracy plead as part of a recognized and properly stated cause of action but may not maintain a separate action for conspiracy.
As noted by defendants and Broton, the second amended complaint attempts to join the allegation of conspiracy to a number of recognized causes of action. This is allowed as stated by DA Fitzpatrick under Swartz v. Swartz, 145 A.D.3d 818 (2nd Dept 2016). As noted by Swartz:
With respect to the thirteenth cause of action, which alleged conspiracy, "[a]lthough New York does not recognize civil conspiracy to commit a tort... as an independent cause of action, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme" (JP Morgan Chase Bank, N.A. v Hall, 122 A.D.3d 576, 580, 996 N.Y.S.2d 309 [2014] [internal quotation marks omitted]). Moreover," 'under New York Law, [i]n order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement'" (Blanco v Polanco, 116 A.D.3d 892, 896, 986 N.Y.S.2d 151 [2014], quoting Faulkner v City of Yonkers, 105 A.D.3d 899, 900, 963 N.Y.S.2d 340 [2013]). The amended complaint failed to allege that the King defendants, the Swartz daughters, or the corporate defendants had an agreement with Jerome Swartz or each other to commit a tort, or that the Swartz daughters committed an overt act in furtherance of any such agreement (see Matter of Nocro, Ltd. v Russell, 94 A.D.3d 894, 895, 943 N.Y.S.2d 116 [2012]). Accordingly, the Supreme Court properly granted those branches of the motions of the King defendants and the Swartz defendants which were pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging conspiracy insofar as asserted against the King defendants, the Swartz daughters, and the corporate defendants.
Broton recognizes the need to join the allegation of conspiracy to an actionable underlying tort under Smukler v. 12 Lofts Realty, Inc., 156 A.D.2d 161 (1st Dept 1989) [leave to appeal denied 76 N.Y.2d 701 noted by the Court]. However, in each and every instance Broton has attempted such a joinder, his allegations are merely conclusory, without the submission of facts to support the claim of conspiracy and this is insufficient as a matter of law. B&H Flooring, LLC v. Folger, 2024 NYAppDiv LEXIS 3478 (2nd Dept 2024); Cohen & Lombardo, PC v. Connors, 169 A.D.3d 1399 (4th Dept 2019). This leaves the second, fourth, sixth, eighth, eleventh, thirteenth, fifteenth and seventeenth causes of action to be dismissed as a matter of law.
Defendants, all employed by Onondaga County, have also alleged that the intra-corporate conspiracy doctrine should apply to prohibit such claims under cases including Murphy v. City of Stamford, 634 FedAppx 804 (2nd Cir 2015); Little v. City of New York, 487 F.Supp.2d 426 (SDNY 2007); and Peck v. County of Onondaga, 2021 WL 3710546 (NDNY 2021). Broton asserts that because he has alleged a "personal conspiratorial purpose" the intra-corporate conspiracy doctrine does not apply under Lilley v. Greene Central School District, 187 AD3 1384 (3rd Dept 2020) and Everson v. New York City Transit Authority, 216 F.Supp.2d 71 (2002), which the Court notes arises in the U.S. Eastern District Court.
Broton's reliance on Lilley and Everson is grossly misplaced as both cases point out that each defendant must be shown to possess an independent conspiratorial purpose. Even assuming that DA Fitzpatrick had been shown to possess an independent conspiratorial purpose (which is not the case), there are no facts stated as to Owens and Williams that would show any independent and personal conspiratorial purpose on their part.
Moreover, both Lilley and Everson are cases considering motions to dismiss pleadings and leave to amend pleadings rather than the motions for summary judgment presented here where plaintiff is required to lay out his proof to show a question of fact. All that Broton has to say on the subject is that "The bogus criminal investigation initiated by defendant Fitzpatrick against plaintiff Broton is evidence of retaliatory motive. The other defendants were complicit in Mr. Fitzpatrick's unlawful acts and in advancing Mr. Fitzpatrick's retaliatory objectives."
The bare allegation of conspiracy by Owens and Williams is all that is presented to the Court and this is insufficient to raise a question of fact to rebut the defense presented by the intra-corporate conspiracy doctrine. Even further, the criminal investigation was hardly "bogus" or "unlawful" nor evidence of "retaliatory motive" on the part of DA Fitzpatrick.
Broton's opposition to this part of the motion has no merit. The second, fourth, sixth, eighth, eleventh, thirteenth, fifteenth and seventeenth causes of action are dismissed as a matter of law under the intra-corporate conspiracy doctrine.
Williams further seeks dismissal of the claim of conspiracy to violate Broton's rights under Civil Service Law §75-B for a number of reasons including that Williams cannot be considered a public employer or employer of Broton in the first instance. The Court does not reach this issue.
F. Equal Protection
Williams asserts that the Broton's equal protection claims must be dismissed arguing, with obvious merit, that any action that he took to investigate Broton's ethics complaint and issue a report took place well after Broton was denied reinstatement as a police captain. Broton does not dispute this and offers no opposition to the motion on this basis. Broton has no equal protection claim against Williams as a consequence.
Owens argues that Broton had no protected status and as a class of one would need to show that he was treated differently as compared to other persons with "prima facie identical" cases under Hu v. City of New York, 927 F.3d 81 (2nd Cir 2019). Broton agrees and asserts that his case should be compared to that of Yonkers Police Department Deputy Chief, Frank C. Carrillo, who was reverted to the rank of captain only months earlier. Broton places nothing before the Court to show that the Carrillo matter is a prima facie identical case to his and his argument has no merit. Owens shows that Broton's reinstatement would have violated Rule XVII [DKT # 139] and that such reinstatement had never been previously allowed. Broton makes no claim to the contrary. There is no basis shown for Broton's equal protection claim against Owens.
DA Fitzpatrick asserts that the class of one theory has no application to matters of public employment under Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008) and as also seen in Van Cleef v. Seneca County, 2009 WL 1150407 (WDNY 2009). This is an accurate statement of law.
Broton seems to recognize this but argues that Enquist should not be applied based on Matthew M. Morrison, Class Dismissed: Equal Protection, the "Class-of-One" and Employment Discriminations After Enquist v. Oregon Department of Agriculture, 80 Colorado L. Rev. 839 (2009). Morrison argues in this law review article that Engquist has "no conceivable rational basis" and that the Roberts Court "neglected several of this country's basic principles". The full-throated protest to the Enquist decision voiced by Morrison has not resulted in that decision being overturned or modified so as to allow Broton's class of one claim to proceed. Burough of Duryea v. Guarnieri, 564 U.S. 379 (2011); Kennedy v. Bremerton School District, 597 U.S. 507 (2022); Bein v. County of Nassau, 118 A.D.3d 650 (2nd Dept 2014). There is no basis for the class of one claims being advanced by Broton and this requires the fifth, sixth, sixteenth and seventeenth causes of action to be dismissed.
Broton also attempts to distinguish the City of Syracuse from Onondaga County as a matter of fact to circumvent Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008). The attempted distinction between the City and the County that Broton asserts makes no sense. The personnel decision concerning Broton for the City was made by the County Personnel Department. The distinctions attempted by Broton make no difference when applying Engquist.
The equal protection class of one claims being asserted by Broton's fifth, sixth, sixteenth and seventeenth causes of action have to be dismissed under Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008).
G. Subject Matter Jurisdiction
Williams asserts that Broton raises no case or controversy affecting any of his rights or causing him any injury in fact and there being no justiciable controversy, the Court lacks subject matter jurisdiction under The Society of the Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991). In essence, Williams argues that the Board of Ethics had no right to direct the reinstatement of Broton to the position that he sought as a police captain just as it had no power to hear and determine any employment grievance. The Court agrees with this proposition as a factual matter and Broton does not argue to the contrary.
An Onondaga County Code of Ethics review is limited to potential financial conflicts of interest [DKT # 113]. The investigation was limited to consideration of whether DA Fitzpatrick overstepped his authority to interfere with the Owens determination. Although a stretch, this could arguably touch on some issue of potential financial conflict at least in theory. Further, the Board had an interest in looking into the matter given that DA Fitzpatrick was a Board member. The fact that Broton did not get the answer from the investigation that he wanted and maneuvered himself out of providing testimony to Williams affected none of his non-existent claimed rights to reinstatement.
Broton argues that the Williams report was "rushed" so it could be released to aid in the re-election of DA Fitzpatrick. There is simply no evidence presented that this was the case. Further, the re-election of DA Fitzpatrick had nothing to do with Broton's reinstatement as a police captain or his various claims of retaliation and discrimination. It merely shows that Broton was using the complaint to the Board of Ethics as a political weapon against DA Fitzpatrick. Broton offers no other explanation for waiting as long as he did to file the ethics complaint.
Broton argues that the Board of Ethics has the implied necessary power to conduct investigations under Anderson v. Taconic State Park Commission, 26 AD 892 (2d Dept 1941) affirmed 287 NY 668. The correct citation is actually Anderson v. Taconic State Park Commission, 262 AD 892 (2d Dept 1941) affirmed 287 NY 668. Andersen was an action to restrain the use of state funds to construct a gasoline station and has nothing whatsoever to do with the power of a Board of Ethics or any other quasi-judicial body. Williams is not asserting that the Board of Ethics lacked the power to investigate and, in this case, it directed such an investigation.
Broton does not otherwise address the argument being made by Williams. The injury sustained by Broton is said to be the failure of Owens to issue a determination that he should be reinstated as a police captain. The Board of Ethics had no authority to overrule the Owens determination nor did it sit as an appellate review of determinations by the County Personnel Department. Any application to set aside the Owens determination would rest with the Courts via CPLR Article 78 which Broton never pursued and the four-month limitations period has long since expired. The only outcome of the investigation was directed to the allegation that DA Fitzpatrick had overstepped his authority which Broton did not and still has not shown.
Williams asserts a lack of subject matter jurisdiction in this Court as to matters pertaining to his report. The problem with this part of the Williams motion is that Society of the Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991) is all about standing and does not directly consider subject matter jurisdiction. Broton's counsel is personally and fully familiar with the standing issue from Lavine v. State of New York, 2024 NYAppDiv LEXIS 4026 (4th Dept 2024).
In the broadest sense possible, Broton would have a direct interest in the report issued by Williams. The issue as stated in Lavine is whether Broton can be considered to possess a "sufficient stake in the litigation" to necessitate adjudication. To state the matter as simply as possible, Broton had an interest in not having DA Fitzpatrick interfere with the Williams report but has not shown that his case has any factual basis. Otherwise, the Court finds it unnecessary to reach the standing issue implicitly raised by Williams. The issue of subject matter jurisdiction in this limited context is also not reached.
H. Due Process Claims
Defendants seek dismissal of Broton's constitutional and §1983 claims based on due process raising the issue of his failure to pursue any remedy available to him via CPLR Article 78 to review the Owens determination. DA Fitzpatrick relies on cases including Perfetto v. Erie County Water Authority, 2006 WL 1888556 (WDNY 2006); Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877 (2nd Cir 1996) certiorari denied 521 U.S. 1140; and Chaffer v. Board of Education of the City School District of the City of Long Beach, 75 FedAppx 12 (2nd Cir 2003).
The Court finds the Chaffer case particularly applicable to the circumstances of this matter. Other cases on point include Susser v. New York City Department of Education, 2023 USDist LEXIS 95802 (EDNY 2023); Peters v. Stamps, 2024 USDist LEXIS 44730 (WDNY 2024); Grillo v. New York City Transit Authority, 291 F.3d 231 (2nd Cir 2022); Krukenkamp v. State University of New York, 395 FedAppx 747 (2nd Cir 2010); Craig v. City of New York, 2024 USDist LEXIS 57629 (EDNY 2024); Orange Lake Associates, Inc. v. Kirkpatrick, 825 F.Supp. 1169 (SDNY 1993) affirmed 21 F.3d 1214.
DA Fitzpatrick also moves against the Broton due process claims on the basis that Broton has no property interest in continued employment and reinstatement to the position of police captain as indicated by Caidor v. Onondaga County, 2006 USDist LEXIS 64664 (NDNY 2006) affirmed 266 FedAppx 33 (2nd Cir 2008). The issue is fairly raised under Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). Moreover, the fact that a deputy chief of police in Yonkers may have been allowed reinstatement as a police captain creates no constitutionally protected right particularly when such reinstatement would contradict the relevant rules as has been shown herein. Schwartz v. Mayor's Committee on Judiciary, 816 F.2d 54 (2nd Cir 1987).
Broton provides no opposition to these parts of the motion.
I. Negligent Infliction of Emotional Distress
Defendants seek dismissal of Broton's cause of action for negligent infliction of emotional distress on the basis that he has not asserted that the conduct alleged unreasonably endangered his safety or cause him to fear for his physical safety under Davies v. County of Nassau, 260 A.D.2d 531 (2nd Dept 1999). The amended complaint makes no such allegations and Broton's opposition on the motion raises no question of fact on the point either. Broton dos not specifically address this issue and the ninth cause of action is subject to dismissal on this basis. Shepherd v. Whitestar Development Corp., 113 A.D.3d 1078 (4th Dept 2014); Passucci v. Home Depot, Inc., 67 A.D.3d 1470 (4th Dept 2009); Padilla v. Verczky-Porter, 66 A.D.3d 1481 (4th Dept 2009).
Moreover, what Broton alleges is a property interest in continuing public employment (which cannot be the case at law) that was compromised by the actions of the defendants (with no factual basis stated) and recovery may not be had for emotional distress caused by damage to one's property. General Accident Insurance Co. v. Black & Decker (U.S.) Inc., 266 A.D.2d 918 (4th Dept 1999); Dabb v. NYNEX Corp., 262 A.D.2d 1079 (4th Dept 1999); Jensen v. LC Whitford Co., 167 A.D.2d 826 (4th Dept 1990).
Broton provides no opposition to this part of the motion.
J. Prima Facie Tort
The purpose of prima facie tort is to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It does not provide a "catch all alternative" for every cause of action that is not independently viable. Freihofer v. Hearst Corp., 65 N.Y.2d 135 (1985); Epifani v Johnson, 65 A.D.3d 224 (2nd Dept 2009). The prima facie tort claim is required to allege special damages with specificity and also that defendants acted with the sole motivation of disinterested malevolence and the sole objective to cause injury to plaintiff. Mancuso v. Allergy Associates of Rochester, 70 A.D.3d 1499 (4th Dept 2010); Maak v. Medina Professional Firefighters Association, IAFF Local 2161, 186 A.D.3d 1016 (4th Dept 2020).
Plaintiff may not recast a non-actionable claim as prima facie tort. Murphy v. American Home Products Corp., 58 N.Y.2d 293 (1983); Hall v. McDonald's Corporation, 159 A.D.3d 1591 (4th Dept 2018); Lerwick v. Kelsey, 24 A.D.3d 931 (3rd Dept 2005) lave to appeal denied 6 N.Y.3d 710; Rich v. Coopervision, Inc., 198 A.D.2d 860 (4th Dept 1993); Brooks v. Blue Cross of Northeastern New York, Inc., 190 A.D.2d 894 (3rd Dept 1993); D'Avino v. Trachtenburg, 149 A.D.2d 401 (2nd Dept 1989) leave to appeal denied 74 N.Y.2d 611; Wolcott v. Broughton, 57 A.D.2d 1022 (3rd Dept 1977). Insofar as Broton's claims are non-actionable, his tenth and eleventh causes of action must be dismissed.
The burden is on plaintiff to show that each of the defendants possessed the sole motive of disinterested malevolence against him. Reinforce, Inc. v. Birney, 308 NY 164 (1954); Lynch v. McQueen, 309 A.D.2d 790 (2nd Dept 2003); Landor-St. Gelais v. Albany International Corp., 307 A.D.2d 671 (3rd Dept 2003); Murphy v American Home Products Corp., 58 N.Y.2d 293 (1983). The complaint must allege facts sufficient to support the claim of malice or ill will. Smith v. Livingston, 69 A.D.2d 993 (4th Dept 1979). The conclusory allegations left unsupported by any allegation of fact by the amended complaint do not meet even a pleading burden as to Owens and Williams. As to DA Fitzpatrick, the allegations are insufficient to sustain the cause of action as attempted or create an issue of fact on the motion. Broton's claims asserted by the tenth and eleventh causes of action must be dismissed on this basis as well.
As noted by defendants, a critical element of the cause of action is that plaintiff suffered specific and measurable loss, which requires an allegation of special damages. Walden Bailey Chiropractic, P.C. v. GEICO Casualty Co., 173 A.D.3d 1806 (4th Dept 2019). Even if the Court were to read into the case facts to support a claim of disinterested malevolence (which is not the case), plaintiff is still required to state the specific and measurable loss that he alleges he sustained with sufficient particularity to identify actual losses causally related to the alleged tortious acts even with a most liberal reading of the amended complaint. Medical Care of Western New York v. Allstate Insurance Co., 175 A.D.3d 878 (4th Dept 2019).
The requirement that a plaintiff state with sufficient particularity those damages that arise proximately and directly from the malicious actions of a defendant when alleging prima facie tort has been long and consistently held and is notoriously stringent. Freihofer v. Hearst Corp., 65 N.Y.2d 135 (1985); ATI, Inc. v. Ruder & Finn, Inc., 42 N.Y.2d 454 (1977); Morrison v. National Broadcasting Company, 19 N.Y.2d 453 (1967); Rager v. McCloskey, 305 NY 75 (1953); Varela v. Investors Insurance Holding Corp., 185 A.D.2d 309 (2nd Dept 1992), affirmed 81 N.Y.2d 958 (1993); Wehringer v. Helmsley-Spear, Inc., 91 A.D.2d 585 (1st Dept 1982), affirmed 59 N.Y.2d 688 (1983); Lewis v. Pierce Bainbridge Beck Price Hecht LLP, 195 A.D.3d 518 (1st Dept 2021); Mable Assets, LLC v. Rachmanov, 192 A.D.3d 998 (2nd Dept 2021); Goldman v. Citicore I, LLC, 149 A.D.3d 1042 (2nd Dept 2017); Mancuso v. Allergy Associates of Rochester, 70 A.D.3d 1499 (4th Dept 2010); Bassim v. Howlett, 191 A.D.2d 760 (3rd Dept 1993). Here plaintiff has not particularized any special damages by the amended complaint. The tenth and eleventh causes of action may not be maintained on this basis.
Broton has not presented any opposition to this part of the motions.
The Court reaches no other issues except that for the reasons stated herein there is also no basis for any claims by Broton against Onondaga County or Robert Durr and the action will be dismissed as to them as well pursuant to CPLR §3212(b). Lee v. City of Rochester, 254 A.D.2d 790 (4th Dept 1998). There can be no claim by Broton as stated by the amended complaint against either the County or Durr absent some basis of liability against DA Fitzpatrick, Owens, or Williams.
Similarly, the issues as decided herein bar any claim by Broton against either the County or Durr. Adams v. Margulis, 191 A.D.3d 1478 (4th Dept 2021); Matter of Weikel v. Town of West Turin, 162 A.D.3d 1706 (4th Dept 2018); Gaffney v. Norampac Industries, Inc., 109 A.D.3d 1210 (4th Dept 2013); Gaffney v. Norampac Industries, Inc., 109 A.D.3d 1210 (4th Dept 2013); Harris v. Miranda, 219 A.D.3d 1498 (2nd Dept 2023); Wilk v. Lewis & Lewis, PC, 75 A.D.3d 1063, (4th Dept 2010); Pope v. Safety & Quality Plus, Inc., 74 A.D.3d 1040 (2nd Dept 2010); JCS Controls, Inc. v. Stacey, 57 A.D.3d 1372 (4th Dept 2008); Simet v. Coleman Company, Inc., 42 A.D.3d 925 (4th Dept 2007); Estate of Giffune v. Kavanagh, 302 A.D.2d 878 (4th Dept 2003); Housing Opportunities Made Equal, Inc. v. Pataki, 277 A.D.2d 888 (4th Dept 2000) leave to appeal denied 96 N.Y.2d 712; Stark v. Eastman Kodak Co., 256 A.D.2d 1134 (4th Dept 1998); Czaska v. Lenn Lease Ltd., 251 A.D.2d 965 (4th Dept 1998); Czenszak v. Iasello, 227 A.D.3d 772 (2nd Dept 2024); Chiamulera v. New Windsor Mall, 212 A.D.3d 770 (2nd Dept 2023); Schwartz v. Town of Ramapo, 197 A.D.3d 753 (2nd Dept 2021); Bsi, LLC v. Raimo, 195 A.D.3d 590 (2nd Dept 2021); Fair Chase Holdings II, LLC v. County of Dutchess, 165 A.D.3d 1237 (2nd Dept 2018); Matter of Davidovich v. Hoppenstein, 162 A.D.3d 512 (1st Dept 2018); Shea v. New York City Economic Development Corp., 161 A.D.3d 803 (2nd Dept 2018); Edgerton v. City of New York, 160 A.D.3d 809 (2nd Dept 2018); Greene v. Rachlin, 154 A.D.3d 814 (2nd Dept 2017); Estate of Mirjani v. DeVito, 135 A.D.3d 616 (1st Dept 2016); Matter of Mercer, 113 A.D.3d 772 (2nd Dept 2014); Meadowbrook Farms Homeowners Association, Inc. v. JZG Resources, Inc., 105 A.D.3d 820 (2nd Dept 2013) leave to appeal dismissed 21 N.Y.3d 1024.
Accordingly, it is
ORDERED that the motions of the defendants, William J. Fitzpatrick, Duane Owens and Steven Williams, for summary judgment dismissing all causes of action of the plaintiff, Shawn Broton, shall be and the same hereby is GRANTED and the action is dismissed on the merits and the law with prejudice; and it is
ORDERED that pursuant to CPLR §3212(b) summary judgment dismissing all causes of action of the plaintiff, Shawn Broton, shall be and the same hereby is GRANTED and the action is dismissed on the merits and the law with prejudice as to defendants County of Onondaga and Robert Durr.
IT IS SO ORDERED.