November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Peter R. Schlam

In the U.S. District Court for the Eastern District of New York. Judge Nicholas G. Garaufis removed to federal court a Kings County homicide prosecution of a DEA Special Agent. Judge David G. Trager held that a defendant vessel owner was not liable for a longshoreman's injuries in unloading cargo. Judge I. Leo Glasser dealt with the timeliness of claims against two defendants in the same case where the EEOC issued right-to-sue letters on different dates as to each defendant. And Judge Arthur D. Spatt held that a 7-Eleven store's destruction of a surveillance video after authorities responded to a robbery report did not amount to a Brady violation.

Federal Officer Removal Statute

In State of New York v. Tanella, 02 CR 1343 (Jan. 13, 2003), Judge Garaufis, deciding a rarely presented issue, removed to federal court, under 28 USC § 1442(a)(1), a state homicide prosecution against a federal officer.

Defendant Tanella, a special agent with the U.S. Drug Enforcement Administration, was participating in a joint operation with the New York City Police Department. A joint surveillance led to the pursuit of Egbert Dewgard, after he was seen receiving a bag containing narcotics. Trying to escape the authorities, Mr. Dewgard got into his car and struck a pursuing vehicle. Mr. Tanella joined the chase and, at some point, his was the only car to keep up with Mr. Dewgard's. When Mr. Dewgard's car became wedged between a pole and a fence, he got out and began running. Mr. Tanella shouted at Mr. Dewgard to stop and jumped on top of him.

During the ensuing struggle, Mr. Dewgard allegedly "lock[ed] his eyes on [Mr. Tanella's] weapon ... [and] lunged for [it]." According to Mr. Tanella's removal petition, Mr. Tanella "reasonably believed" that Mr. Dewgard posed an imminent threat of death or serious bodily injury and he fired his gun at Mr. Dewgard "to stop the threat."

The Kings County District Attorney presented the case to a grand jury, which returned an indictment charging Mr. Tanella with first-degree manslaughter. The district attorney opposed the removal petition.

As Judge Garaufis observed, § 1442(a)(1) permits a defendant to remove a civil or criminal case if that defendant is (1) a federal officer and (2) was sued for conduct arising under color of office. There was no dispute that these two requirements were met here.

The U.S. Supreme Court has also required defendants seeking removal to allege a "colorable federal defense." Mesa v. California, 489 US 121, 129 (1989). The state argued that Mr. Tanella did not raise a colorable federal defense because his self-defense claim is, at best, identical to a defense available under New York law.

As Judge Garaufis held, "there is nothing in the language of § 1442(a)(1), nor in the decisions interpreting it, that requires the federal defense to be exclusively federal or unavailable under state law." Moreover, "the allegation of self-defense by a federal officer who is performing his duty implicates federal law" - for example, the law regulating Mr. Tanella's conduct and Mr. Dewgard's alleged resistance. Slip op. 10.

Even apart from self-defense, there was an issue of immunity under the Supremacy Clause. Pursuant to that doctrine, Judge Garaufis stated, "were defendant to prove that he reasonably believed that his actions were necessary and proper in the performance of his duties, he would be completely immune from all criminal liability."

Though both self-defense and federal immunity necessitate an inquiry into the reasonableness of Mr. Tanella's conduct, self-defense is an issue to be decided at trial and immunity is an issue to be decided by the court. If proven, immunity would bar the prosecution altogether. For purposes of removal, the court observed, Mr. Tanella need only "raise" either defense.

Longshoreman's Injuries

In Conenna v. Loyal Chartering Corp., 98 CV 7402 (EDNY, Feb. 5, 2003), Judge Trager, granting summary judgment to defendants, dismissed a longshoreman's claim against a vessel owner for injuries sustained while he was unloading cargo.

Plaintiff, an experienced longshoreman, was unloading a shipment of cocoa beans from the M/V TORM AGNETE (the TORM) at Brooklyn's Red Hook Terminal. Plaintiff was employed by a stevedore contracted to unload the cargo and was not a member of the TORM's crew or supervised by them. The cocoa beans were stacked in "Marino slings," each holding 15 to 25 bags of cocoa beans. The slings were secured by nine-inch straps crisscrossing below the bottom and over the top of the bags, holding them together for stowage and transport. The longshoremen attached lifting straps to cranes, which then unloaded the slings from the vessel.

Previously, in Abidjan and San Pedro, Ivory Coast, crew members had halted the loading of the TORM because the lifting straps had not been properly tightened. During the voyage to New York, the TORM encountered bad weather. Upon arrival in New York, the crew members removed kraft paper covering the cargo, but did not participate in or supervise the unloading of the bags. Plaintiff fell from the cargo to the surface of the "tween" [between] deck while hooking the straps to the crane, injuring his head, neck, shoulder, back and left leg. Both plaintiff and the crew members testified that the cargo in the tween deck appeared to be in good condition. However, many of the cargo slings throughout the vessel had fallen apart and bags had slipped out of the straps.

Under the Longshore and Harbor Workers' Compensation Act (LHWCA), injured longshoremen receive medical, disability and survivor benefits for work-related injuries and death, regardless of fault. A longshoreman receiving compensation under the LHWCA cannot sue an employer for negligence, but may bring a negligence action against a third party, such as a vessel.

To show negligence under the LHWCA, a plaintiff must demonstrate that the vessel owner has breached one of the three duties of care established in Scindia Steam Navigation Co. v. De Los Santos, 451 US 156, 172-73 (1981). The turnover duty, Judge Trager noted, requires a vessel owner to exercise ordinary care to have the ship and its equipment in condition so that an "expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operation with reasonable safety." Slip op. 8 (quoting Gravatt v. City of New York, 226 F3d 108, 120 (2d Cir. 2000)). The vessel owner must warn the stevedore of hidden dangers, but can assume that a competent stevedore has the expertise to cope with obvious defects. The active control duty imposes liability on the vessel owner for "unreasonable hazards in areas that remain under the vessel's control during cargo operations." Slip op. 10. Finally, the duty to intervene requires the vessel owner to intervene when the owner is aware of a dangerous condition and the stevedore is not exercising reasonable care to protect its employees.

Judge Trager found that the "active control duty" did not come into play, because the TORM's crew did not participate in unloading the cargo. Nor was there evidence of "obviously improvident" stevedore actions requiring the vessel owner to intervene.

As to the turnover duty, Judge Trager concluded that plaintiff had shown that a defect in the cargo had caused the injury. The defect arose from the load port stevedore's improper tying of slings, which the vessel owner was aware of. But given the evidence, including plaintiff's claim that the cargo was in "obvious disarray," the hazard was obvious, not latent. Thus, the stevedore

had actual or constructive notice of problems in the cargo. As such, there was no duty to warn, and it was the stevedore's [not the vessel owner's] responsibility to assure the safe discharge of the cargo.

Slip op. 13.

ADEA - Failure to File

In Presser v. Key Food Stores Cooperative, Inc., 01 CV 8059 (EDNY, Dec. 3, 2002), Judge Glasser held that where, in a single case against two defendants, the EEOC issued separate right-to-sue letters some 12 days apart as to each defendant, plaintiff's receipt of the second letter did not extend her time to file a claim against the defendant cited in the first letter.

Plaintiff brought this action under the Age Discrimination in Employment Act and related laws against Key Food Cooperative Inc., and Grocery Hauler's Inc., which purchased Key Food's assets. In January 2001, plaintiff had filed a charge naming both defendants with the EEOC. As to Key Food, the EEOC dismissed the charge and issued a right-to-sue letter on Aug. 16, 2001. As to Grocery Haulers, the EEOC dismissed the charge and issued a right-to-sue letter on Aug. 28, 2001. Plaintiff's complaint in the Eastern District was filed against both defendants within 90 days of receipt of the second letter, but not within 90 days of receipt of the first letter. Key Food therefore moved to dismiss the complaint against it as untimely.

According to plaintiff, the EEOC "arbitrarily" and "artificially" assigned different case numbers to her charges against the two defendants, even though those charges were filed jointly. Thus, plaintiff argued, the receipt of the right-to-sue letter as against Grocery Haulers should be the date on which the 90-day period began to run for both defendants.

Disagreeing with this "creative" argument, Judge Glasser stated:

... [I]t was incumbent upon counsel to file the action within 90 days of the receipt of the first (Key Food) right-to-sue letter, rather than ignore it in contemplation of another letter arriving later. In fact, since the right-to-sue letter as to Grocery Haulers was received on Sept. 5, there was ample time (from Sept. 5 to Nov. 17) to file a complaint naming both defendants within the 90 day period from receipt of the first letter.

For this reason, plaintiff was "in no way prejudiced" by the EEOC's decision to assign different case numbers as to each defendant.


In McCargo v. Costello, 99 CV 6069 (EDNY, Dec. 6, 2002), Judge Spatt, denying a § 2254 petition, held that the prosecution's failure to obtain a surveillance video from a 7-Eleven store prior to the store's routine destruction of the video did not justify habeas relief.

Petitioner was convicted, following a jury trial in Nassau County Supreme Court, of robbery in the second degree. After traversing the necessary channels of review, he collaterally challenged his conviction in federal court.

The evidence at trial showed that early one morning petitioner entered a 7- Eleven and tugged at the purse of a customer, Ms. Sullivan, waiting in the cashier's line. She saw petitioner's hand emerging from her purse with her money, and she jerked his arm to prevent him from stuffing the money in his pocket. Petitioner held his hand, still grasping the money, over Ms. Sullivan's head. A security guard, who heard her pleas for help and saw part of the scene, told petitioner to return the money or he would be arrested. Petitioner claimed he had not taken the money and shoved his way toward the exit. He stepped outside the glass door and pushed it into Ms. Sullivan's face, fracturing her tooth.

The police officer who responded to the incident knew that 7-Eleven had videotape surveillance equipment, but did not know that the tapes were erased and reused every 48 hours. The officer told the investigating detective that a tape existed. About a week later, a 7-Eleven representative informed the detective that the store had reused the tape and recorded over the robbery. The detective never possessed or viewed the tape.

The prosecutor mistakenly told defense counsel of the tape's existence, and counsel asked for it to be preserved. By that time, 7-Eleven had already destroyed the tape.

Petitioner's array of § 2241 claims included an asserted Brady violation. As Judge Spatt concluded, however, petitioner could not show a Brady violation, much less meet the high standard for collateral relief. Neither the prosecution nor petitioner, the court noted, knew whether the tape was exculpatory. In any event, petitioner offered no basis to overcome the trial judge's finding that, while the prosecution had a duty to preserve material subject to disclosure, it never possessed the tape. Nor did petitioner demonstrate prejudice. Both Ms. Sullivan and the security guard testified against him, and the circumstances relating to the tape's destruction were brought out to the jury. In Judge Spatt's view, petitioner also failed to meet his "heavy burden" of showing that the trial court's refusal to give a lesser-included offense instruction on third-degree assault violated due process. According to petitioner, the instruction was required because the jury could have found that he injured Ms. Sullivan but did not take her money. But as Judge Spatt determined, there was no view of the evidence to support a finding that petitioner did not commit the "greater" offense.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the February 14, 2003, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]