Chrebet v. County of Nassau

24 F. Supp. 3d 236, 2014 WL 2527225, 2014 U.S. Dist. LEXIS 77427
CourtDistrict Court, E.D. New York
DecidedJune 5, 2014
DocketNo. 09 CV 4249 (DRH)(AKT)
StatusPublished
Cited by8 cases

This text of 24 F. Supp. 3d 236 (Chrebet v. County of Nassau) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chrebet v. County of Nassau, 24 F. Supp. 3d 236, 2014 WL 2527225, 2014 U.S. Dist. LEXIS 77427 (E.D.N.Y. 2014).

Opinion

ORDER

HURLEY, Senior District Judge:

Plaintiff Wayne Chrebet (“Chrebet”) commenced this action against Nassau County (“the County”), Nassau County Police Officers Richard Herman (“Herman”), Brian Fitzgerald (“Fitzgerald”), Arnold Rothenberg (“Rothenberg”), Richard Soto (“Soto”), Kevin Lowry (“Lowry”), and Nassau County Fire Marshals Paul Szy-manski (“Szymanski”), Bohdan Pilczak (“Pilczak”), Scott Tusa (“Tusa”), and Michael Krummenacker (“Krummenacker”) in Nassau County Supreme Court. On October 2, 2009, defendants removed the action to federal court in the Eastern District of New York.

Plaintiff sets.forth ten causes of action in the original Complaint. Count I alleges a due process claim brought under 42 U.S.C. § 1983 against the police officer defendants for depriving Plaintiff of his property interest in violation of the Fifth and Fourteenth Amendments. .(Compl. ¶¶ 119-126.) Count II alleges a similar due process claim in violation of Article I, § 6 of the New York State Constitution. (Id. ¶¶ 127-135.) Count III asserts a due process claim under Section 1983 against the police officer defendants for deprivation of Plaintiffs liberty interest in violation of his Fifth and Fourteenth Amendment rights. (Id. ¶¶ 136-145.) Count IV sets forth a similar due process claim under Article I, § 6 of the New York State Constitution. (Id. ¶¶ 146-156.) Plaintiffs due process claims are premised on the theory that defendants “use[d] bogus raids and similar means to deliberately drive [plaintiffs] business into the ground.” (PL’s Mem. in Opp’n at 9.) It is implied in plaintiffs submission that defendants be[240]*240haved in this way in retaliation against plaintiff because»of his business relationship with Matthew Prince (“Prince”), who had previously given grand jury testimony against- other Nassau County police officers. (Id. at 17-18.)

In addition, Counts V and VI assert Section 1983 claims against the Nassau County Police Department, supervisory defendants and the Nassau County fire marshal supervisory defendants under a theory of supervisory liability. (Id. ¶¶ 157-169; 170-193.) Moreover, Count VII contains a claim of municipal liability against the County. (Id. 183-193.)

Finally, plaintiff asserts several state tort claims. Count VIII consists of a tor-tious interference with business relations claim against the police officer defendants and defendant Nassau County. (Id. ¶¶ 194-201.) Count IX seeks recovery for intentional infliction of emotional distress against the police officer defendants and Nassau County. (Id. ¶¶ 202-207.) Finally, in Count X, plaintiff alleges negligent supervision and/or negligent retention of employment services against Defendant Nassau County.1 (Id. ¶¶ 208-215.)

Presently before the Court is defendants’ motion for summary judgment on all of plaintiffs claims. For the reasons set forth below, defendants’' motion is granted.

BACKGROUND

The facts are taken from the parties’ Local Rule 56.1 Statements and other evi-dentiary submissions.

At all times relative to the Complaint, defendants Szymanski, Pilczak, Tusa, and Krummenacker all were employed by the Nassau County Office of the Fire Marshall. Tusa was a Division Supervisor from 1997 to 2010, Pilczak served as a Fire Investigator from 2006 until 2010, Krummenacker became a Fire Marshal in 1994, and Szymanski became a Fire Marshal in 1996. In addition, at all relevant times, defendants Herman, Fitzgerald, Rothenberg, Soto, and Lowry were all employed by the Nassau County Police Department and worked in the First Precinct. Fitzgerald was a Lieutenant Desk Officer from December 2006 until July 2009, Soto became a Sergeant in December 2005, Rothenberg became a Sergeant in 2006, Herman became a Sergeant in 2006, and Lowry retired in October of 2010 as an Assistant Chief.

Plaintiff, before opening an upscale restaurant called Chrebet’s, incorporated the entity Chrebet’s Inc., which transacted business as Chrebet’s. Plaintiff was the registered agent and President of Chre-bet’s Inc. Plaintiff, personally and as President of Chrebet’s Inc., entered into a business consulting agreement with Prince. Under the agreement, Prince was to serve as a General Manager of Chrebet’s and retained full control over the management and operation of Chrebet’s. The agreement stated that it was to remain in full force and effect for such period of time until Prince became a shareholder in Chre-bet’s Inc. or until Prince voluntarily withdrew from his position.

Chrebet’s opened in March of 2007. On April 28, 2007 Soto and two other police officers conducted what Soto referred to as a “routine” inspection of Chrebet’s. They observed no violations, but told a manager on site that the liqpor and occupancy licenses should be conspicuously posted on [241]*241the wall. Plaintiff maintains that the liquor license was properly posted.

June U-15, 2007 Events

Chrebet’s opened a lounge area on or around June 14, 2007. According to defendant, on the evening of' June 14, 2007, someone notified Fire Marshal Szymanski of an overcrowding situation at Chrebet’s, and Szymanski then notified Tusa and Pilczak of the complaint, after which each arrived on the scene. At 12:30 a.m. on June 15, 2007, Police Officer Soto responded to a call to assist the Fire Marshals at Chrebet’s and also came to the scene. While waiting to speak with someone in charge, Szymanski and Pilczak performed a walk-through of the premises to check exits and visually observe the number of people in the establishment. Although Szymanski and Pilczak testified that Chre-bet’s was overcrowded, Prince testified that he did not believe that the restaurant was filled beyond capacity that night.

Plaintiff states that he was already at the door when Nassau County law enforcement officers arrived and that he immediately identified himself as the owner, however, defendants claim that plaintiff appeared only after Tusa asked for an agent in charge. According to plaintiff, the officers present repeatedly asked him “where is Matt Prince?” Tusa and Szy-manski told plaintiff that they believed the premises were overcrowded and that there would have to be a “count out” of patrons. The Police Department present assisted during the “count out” by sealing all of the exits. According to defendants, Tusa performed the “clicker count,” while Szyman-ski performed the stick figure count on a tally sheet as patrons exited through the front door. Tusa and Szymanski found that 573 persons were at Chrebet’s, even though the establishment’s maximum occupancy was 330 people. Plaintiff was not allowed to make his own count or observe the count and disputes the accuracy of the count. Chrebet also testified that the security employees usually kept a count of how many persons came through the entrance, but he did not know if they kept a count that night. Szymanski issued appearance tickets to Chrebet’s Inc. d/b/a Chrebet’s for an overcrowding violation and a purported issue with the patio gate exit; plaintiff signed the tickets to acknowledge receipt. Chrebet’s Inc. d/b/a Chrebet’s was prosecuted in connection with the tickets.

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Bluebook (online)
24 F. Supp. 3d 236, 2014 WL 2527225, 2014 U.S. Dist. LEXIS 77427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chrebet-v-county-of-nassau-nyed-2014.