November 13, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Arthur D. Spatt granted in part, and denied in part, defendants' motion for summary judgment in a §1983 action challenging the propriety of plaintiff's arrest. Judge Raymond J. Dearie, dismissing a complaint against Mount Sinai Hospital, held that the Church Amendment gave no private right of action to a nurse who refused to participate in abortion procedures. Judge Denis R. Hurley held that New York State, but not the City, was entitled to mandatory victim restitution in connection with defendant's conviction for selling unstamped cigarettes for resale outside the reservation. And Judge Joseph F. Bianco declined to dismiss a complaint alleging gender discrimination, hostile work environment and retaliation.

Section 1983

In Pace v. Town of Southampton, 08 CV 3719 (EDNY, Jan. 13, 2010), a §1983 action, Judge Spatt granted defendants' motion for summary judgment in several respects, but declined to dismiss plaintiff's false arrest claim.

Plaintiff's §1983 claims arose from her arrest in 2007 for criminal contempt in the second degree and harassment in the second degree. Her complaint asserts that Southampton Police Officer Vecchio arrested her without probable cause and with excessive force. She also assigns §1983 liability to the Town of Southampton, its Police Department and Police Chief.

On Aug. 6, 2007, amidst their divorce proceedings, plaintiff's husband obtained an order of protection prohibiting plaintiff from stalking and harassing the couple's two young children.

On Aug. 19, plaintiff was driving with her mother over a bridge spanning the Peconic Bay when she observed a man with a young child riding a jet ski in the water. Believing that the man and child were her husband and three-year-old daughter, plaintiff pulled over to the roadside for less than a minute to get a closer look. She then drove to the Indian Island Golf Course to get a clearer view. From there, according to plaintiff, she watched her children for two to three minutes.

Later that day plaintiff's husband called the police to complain that plaintiff had violated the order of protection. In his sworn statement he said that he had seen plaintiff on the bridge taking pictures of him and the two children, and that plaintiff then went to the golf course, where she watched them for 45 minutes or more.

Based on this statement, Officer Vecchio traveled to plaintiff's home and arrested her. He handcuffed her behind her back and touched her head as he placed her in the police car. Plaintiff told the officer that she had stopped at the roadside 'to see if [her] kids were safe' and drove to the golf course to see them from there.

Dealing with a range of issues presented by defendants' summary judgment motion, Judge Spatt ruled as follows:

  • The minimal force used by Officer Vecchio in arresting plaintiff was clearly not excessive. The officer was therefore entitled to summary judgment on that claim.
  • Defendants were not entitled to summary judgment on the false arrest claim. The husband's sworn statement referred to two spots- the bridge and the golf course- where plaintiff viewed her children. 'Both of these vantage points were apparently hundreds of yards away from the children, who were either in the water on the jet ski or on a dock of the Peconic Bay.' Slip op. 9. These facts present a 'triable issue' as to whether the husband's statement was enough to convince 'an officer of reasonable caution' that plaintiff had violated the order of protection.
  • Similarly, given the distance from which plaintiff observed her children, there was a factual issue as to whether Officer Vecchio reasonably concluded that plaintiff had acted with the requisite intent to be guilty of harassment in the second degree.
  • Officer Vecchio had no 'qualified immunity' on the false arrest claim because, though it is a close question, a trier of fact could find that reasonably competent officers would agree that there was no probable cause to arrest plaintiff.
  • As to the claim of municipal liability, summary judgment was warranted in favor of the Town, the Police Department and its Chief. There was no evidence that the municipal defendants or the Police Chief even had notice of allegations that their officers were violating constitutional rights. Plaintiff thus has 'not even approached the standard of proof required' to sustain a claim based on an 'inadequate training' theory. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Slip op. 15-16.

Church Amendment

In Cenzon-DeCarlo v. The Mount Sinai Hospital, 09 CV 3120 (EDNY, Jan. 15, 2010), Judge Dearie held that no private right of action is created by the Church Amendment.

Broadly, the Church Amendment, 42 USC §300a-7(c), makes it unlawful for recipients of federal funding to discriminate based on an employee's religiously based or morally based participation in, or refusal to participate in, abortion or sterilization procedures.

Plaintiff, an operating room nurse at defendant Mount Sinai Hospital, alleged that she had duly registered her religious objection to participating in abortion procedures when hired, but was nonetheless required to participate in one such procedure and later denied overtime unless she would agree, prospectively, to assist in abortions designated as emergencies by the hospital. She sought a declaratory judgment and injunctive relief.

The court dismissed the complaint because 'the Church Amendment lacks the classic individual rights-creating language of Title VI and Title IX ('No subjected to discrimination') under which implied rights of action have been found.' Slip op. 6-7. In the absence of such language, the Church Amendment merely establishes 'a ban on discriminatory conduct by recipients of federal funds,' without 'evincing an unmistakable focus on the benefitted class' as necessary to establish a private right of action. Slip op. 7, quoting Cannon v. University of Chicago, 441 U.S. 677, 690-693 (1979).

Mandatory Victim Restitution

In United States v. Morrison, 04 CR 699 (EDNY, Feb. 12, 2010), Judge Hurley granted New York State's application for restitution following defendant's conviction under RICO of a conspiracy to sell and distribute contraband cigarettes in violation of the Contraband Cigarette Trafficking Act.

Defendant was a 'cigarette on-reservation retailer,' charged with knowingly and intentionally selling and distributing contraband cigarettes that were destined for resale outside the reservation and lacked valid New York State tax stamps. Both New York City and the State sought restitution. Judge Hurley found that the Mandatory Victims Restitution Act (MVRA) applied because defendant was convicted of an offense against property. The state was a victim under the MVRA. Having been deprived of tax revenue by the sale of unstamped cigarettes, the state had been 'directly and proximately harmed' as a result of the offense. Slip op. 13-19


The city, however, was not a direct victim of the fraud and not entitled to restitution. The conspiracy described was a narrow 'conspiracy to sell and distribute cigarettes on-reservation lacking applicable state tax stamps' with a goal of defrauding the state. The city may have been harmed, but it was not a direct victim of the defendant's criminal conduct and thus did not meet the civil RICO proximate cause requirement. As Judge Hurley observed, any harm to the city resulting from the diversion of city purchasers of cigarettes would be entirely speculative.

Employment Claims

In Morris v. David Lerner Associates, 09 CV 2479 (EDNY, Jan. 26, 2010), Judge Bianco denied defendants' motion to dismiss claims of hostile work environment, gender discrimination and retaliation after plaintiff complained that she was being paid less than similarly situated men.

Plaintiff began working at defendant David Lerner Associates (DLA) in December 1994 as 'Assistant to the President,' defendant David Lerner, and as a licensed securities broker. She earned commissions as a broker, but they were less on a percentage basis than commissions earned by her male counterparts.

While plaintiff was employed, Mr. Lerner made numerous comments of a sexual nature. In November 2007, Mr. Lerner told plaintiff she would have to share 15 percent of her broker commissions with the other personal assistant. When she complained that male brokers had to share a maximum of 1 percent of their commissions, Mr. Lerner fired her.

Judge Bianco found that plaintiff had exhausted her administrative remedies by filing a claim with the EEOC that was reasonably related to her claims in federal court. In connection with her EEOC proceeding, plaintiff described unwelcome personal comments made by Mr. Lerner that created a hostile work environment reasonably related to her sex discrimination claims. The EEOC charge also put the agency on notice of her retaliation claim, because it contained the factual basis for that claim, even though she did not check the box marked 'retaliation' on the EEOC charge form. Slip op. 7-8.

Judge Bianco also held that plaintiff had adequately pled her claims. Plaintiff's complaint, which set forth a number of sex-based comments by Mr. Lerner targeting plaintiff, sufficiently alleged a plausible hostile work environment claim. Allegations describing the close temporal proximity between plaintiff's complaint that she was being treated differently from male brokers and her termination, raised 'a plausible inference that retaliation for the protected activity was the cause of her termination.' Accordingly, the complaint gave 'defendants notice of the bases for plaintiff's retaliation claim and state[d] a plausible claim for retaliation.' Slip op. 11.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the March, 2010, issue of the New York Law Journal. Copyright © 2010 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]