Zarro v. Spitzer

408 F. App'x 391

• Court: Court of Appeals for the Second Circuit
• Decided: October 19, 2010
• Docket: 09-4349-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

Plaintiff-Appellant raises numerous arguments on appeal from the district court’s September 25, 2009 order dismissing his claims under Fed.R.Civ.P. 12(b)(6) against, inter alia, the former New York state attorney general, several current and former assistant attorneys general, the Town of Colonie, New York Police Department, Think About It Maine, and Country Club Funding. We assume the parties’ familiarity with the facts, procedural history, and specific issues on appeal. 1

After reviewing the issues on appeal and the record of proceedings below, we affirm for substantially the same reasons articulated by the district court in its thoughtful and well-reasoned order and opinion. 2

Accordingly, the judgment of the district court is AFFIRMED.

1 . Following briefing, Zarro filed a motion with this Court seeking to certify a number of issues to the New York Court of Appeals. Given our disposition of his appeal, set out below, his motion is denied as moot.

2 . We pause, however, to slightly expand upon the district court’s holding that many of Zarro’s claims against the state attorney general defendants are barred by prosecutorial immunity. The district court correctly stated that Zarro’s allegations that the defendants lacked jurisdiction to prosecute him under New York law are conclusory and "do not establish that his state prosecution was ‘without any color-able claim of authority.’ " Zarro v. Spitzer, 2009 WL 3165761, at *7 (N.D.N.Y. Sept.25, 2009) (quoting Shmueli v. City of N.Y., 424 F.3d 231, 237 (2d Cir.2005)). We note, in addition, that these allegations are not merely conclusoty; they also have been definitively rejected no less than four times by the New York state courts. People v. Zarro, 66 A.D.3d 1050, 1051, 887 N.Y.S.2d 663 (N.Y.App.Div.2009), mot. for leave to appeal denied, 14 N.Y.3d 894, 903 N.Y.S.2d 783, 929 N.E.2d 1018 (N.Y.2010); People v. Zarro, Indictment No. 0023/2003, App. to Appellee's Br. 75-83 (N.Y.Sup.Ct. Oct. 27, 2009), mot. for leave to appeal denied, Mot. No.2009-11533, App. to Appellee's Br. 88 (N.Y.App.Div. Apr. 12, 2010); People v. Zarro, Indictment No. 0023/2003, App. to Appellee’s Br. 43-50 (N.Y.Sup.Ct. Dec. 31, 2006), mot. for leave to appeal denied, 2007 N.Y. Slip Op. 71448(U), App. to Appellee's Br. 68 (N.Y.App. Div. June 12, 2007); People v. Zarro, Indictment No. 0023/2003, App. to Appellee’s Br. 7-8 (N.Y.Sup.Ct. Jan. 27, 2003). Given this backdrop, it is incredible that Zarro would continue to insist that he was prosecuted in the clear absence of jurisdiction, as he must under this Court’s precedent if his claim is to succeed. See Shmueli, 424 F.3d at 237 (quoting Barr v. Abrams, 810 F.2d 358, 361 (2d Cir.1987)).