Berry v. Marchinkowski

137 F.Supp.3d 495

Robert D. BERRY, Plaintiff,

v.Investigator Stanley MARCHINKOWSKI, Detective Charles Locke, and John and/or Jane Doe, Defendants.

Case No. 09–CV–4234 (KMK).

United States District Court, S.D. New York.

Signed Sept. 30, 2015.

Robert D. Berry, pro se.

Eva Lenore Dietz, Esq., Rebecca Durie Katherine Culley, Esq., Office of the New York State Attorney General, New York, NY, for Defendant Investigator Stanley Marchinkowski.

David Lewis Posner, Esq., McCabe & Mack LLP, Poughkeepsie, NY, for Defendants Detective Charles Locke and John and/or Jane Doe.

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Pro se Plaintiff Robert D. Berry ("Plaintiff" or "Berry") brings this Action against Defendants Investigator Stanley Marchinkowski ("Marchinkowski") and Detective Charles Locke ("Locke") under 42 U.S.C. § 1983, alleging that Defendants falsely arrested and maliciously prosecuted him. Before the Court are Marchinkowski's and Locke's Motions for Summary Judgment. (Dkt. Nos. 126, 135.) For the reasons explained herein, Defendants' Motions for Summary Judgment are granted.

I. Background

A. Factual Background

1. Plaintiff's Contracting Business

Plaintiff was the owner and president of Independent Construction Services ("ICS"), a construction company. (Def. Locke's Rule 56.1 Statement ("Locke's 56.1") ¶ 1 (Dkt. No. 127); Aff. of David L. Posner ("Posner Aff.") Ex. X (Robert Berry Deposition Transcript) ("Berry Tr.") 23–24, 40–41 (Dkt. No. 129).)¹ ICS would occasionally hire contract workers, including Plaintiff's brother, Joseph Berry, and Gerrit Dodge. (Locke's 56.1 ¶ 2; Berry Tr. 140–41.)

Plaintiff obtained workers' compensation insurance for ICS through the New York State Insurance Fund ("NYSIF"). (Locke's 56.1 ¶ 3; Def. Stanley Marchinkowski's Statement Pursuant to Local Civ. R. 56.1(a) ( "Marchinkowski's 56.1") ¶¶ 1–4 (Dkt. No. 137); Berry Tr. 63–68.) Plaintiff was unable to pay the premiums for the insurance, went into arrears, and coverage was canceled on November 22, 2004. (Locke's 56.1 ¶ 4; Marchinkowski's 56.1 ¶ 4; Berry Tr. 63–69.) Approximately three weeks before coverage was canceled, Plaintiff was sent a notice informing him that the insurance policy would be canceled as of November 22, 2004 unless he paid the amount in arrears, and that he would be ineligible to receive further policies from NYSIF until he paid the amount in arrears. (Marchinkowski's 56.1 ¶ 5; Posner Aff. Ex. B (Notice of Cancellation) (informing Berry that "[t]o prevent [his] policy from being cancelled, [he] must pay the amount due before 12:01 a.m. on the effective date of the cancellation" and that "[a]n employer, whose policy of insurance has been cancelled by the State Insurance Fund for non-payment of premium, is ineligible to contract a subsequent policy of insurance with the State Insurance Fund while the billed premium on the cancelled policy remains uncollected." (internal quotation marks omitted)); Berry Tr. 67–69 (confirming he received this notice).) Plaintiff claims he did not pay any of the money he owed because he could not afford to do so. (Berry Tr. 67–69.)²

In July 2005, Plaintiff "prepared an estimate for a large renovation project" at the home of his friend Lisa Alexander ("Alexander"), which would cost $83,400. (See Locke's 56.1 ¶ 5; Marchinkowski's 56.1 ¶¶ 6, 26; Berry Tr. 83–85; Posner Aff. Ex. C (July 5, 2005 Berry Estimate for Alexander).) The estimate was on Plaintiff's letterhead, and provided the following contact information: "Washington Hollow Plaza Suite 11–126, Salt Point, New York 12578;" "OFFICE/FAX (845) 677–8768;" "CELL (845) 527–6759." (Posner Aff. Ex. C (July 5, 2005 Berry Estimate for Alexander).) At the time he prepared the estimate, Plaintiff did not have workers' compensation insurance, but he claims that he did not believe it would be necessary since he thought that Alexander could get the insurance policy for the project. (Berry Tr. 84–87.) However, Alexander's home was in the City of Beacon, which required that "proof of compensation insurance be submitted in order to obtain a building permit." (Locke's 56.1 ¶ 6; Berry Tr. 88.)

2. Transfer of ICS Ownership to Janet Berry

In August 2005, Plaintiff transferred his shares in ICS to his mother, Janet Berry. (Locke's 56.1 ¶ 7; Marchinkowski's 56.1 ¶ 7; Posner Aff. Ex. Y (Deposition of Janet Berry) ("Janet Berry Tr.") 5, 28–29.) Janet Berry worked primarily doing administrative office work at a retirement community, did not have prior business or construction experience, and did not give any consideration for the transfer of stock. (See Locke's 56.1 ¶¶ 8–9; Marchinkowski's 56.1 ¶ 8; Janet Berry Tr. 20–22, 31–36, 77–79.) She accepted the transfer because she did not want her "boys to be out of work and because Robert was not able to at that time get his own insurance." (Locke's 56.1 ¶ 10 (internal quotation marks omitted); Janet Berry Tr. 36 ("Q: So why did Mr. Berry transfer the[ ] [stock] to you? A: Because the business—I did not want to see either one of my boys out of work and because he was not able to, at that point, get the insurance I asked him if it would be possible for me to take over the company and pay the insurance.").) Plaintiff "acknowledges that the transfer of the stock to his mother was so that ICS could get workers' compensation insurance for the Alexander renovation project." (Locke's 56.1 ¶ 11; see also Berry Tr. 89 ("Q: So that transfer happened so that ICS could get Worker's Compensation insurance for the Alexander Project, correct? A: Yes."); Janet Berry Tr. 70–71 ("Q: ... And, you chose to do it because you needed proof of ownership? A: That's correct. Q: And, you needed proof of ownership to be able to submit the application to NYSIF in your name as the owner; correct? A: That's correct. Q: And the application had to be in your name because Mr. Berry had an outstanding balance with NYSIF; right? A: He couldn't get insurance obviously because of the outstanding balance.").)

Plaintiff "remained the President of ICS after the transfer of stock ownership to his mother and his duties remained the same." (Locke's 56.1 ¶ 12; see also Berry Tr. 94–95.) Indeed, Plaintiff and his mother did not discuss Janet Berry's responsibilities with the company, and Janet's responsibilities before and after the transfer were the same: writing contracts and estimates based on information provided to her by Plaintiff. (Janet Berry Tr. 39, 85–86; see also Locke's 56.1 ¶¶ 13–14; Janet Berry Tr. 98 ("Q: You weren't going to work at this company? A: No. Q: You weren't going to make any money at this company; correct? A: That's correct. Q: This was a vessel so your sons could work, it was their business, correct, or Robert's business and he employed your other son; correct? A: Yes.").)

Approximately two weeks after being transferred ownership of ICS, on September 1, 2005, Janet Berry went with Plaintiff to the Whalen Insurance Agency to apply for workers' compensation insurance for ICS. (Locke's 56.1 ¶ 15; Berry Tr. 95–100.) They met with insurance agent Leslie Brussel–Smith ("Brussel–Smith"), (Locke's 56.1 ¶ 17; Posner Aff. Ex. F (Statement of Leslie Brussel–Smith); see also Berry Tr. 95–96), who advised them that there might be problems with the application because of Plaintiff's involvement in ICS and his outstanding financial obligations to NYSIF, (Locke's 56.1 ¶ 19; Berry Tr. 101–02; Posner Aff. Ex. F (Statement of Leslie Brussel–Smith)). There is some dispute about who said and did what. In December 2006, Brussel–Smith provided a sworn statement to the Dutchess County Sheriff's Office, which stated:

I told them that there would be potential problems with the application due to Robert's financial obligation to the New York State Insurance Fund and the fact that his mother is now applying for Insurance. I told him that due to these issues I believed that the application would be declined, but he insisted that it be submitted.

(Posner Aff. Ex. F (Statement of Leslie Brussel–Smith).) Plaintiff, however, testified that he did not ask Brussel–Smith to submit the application despite the potential problem, that he did not insist that the application be submitted, that Brussel–Smith just submitted the application, and that while Brussel–Smith stated that there might be a problem with it, she did not tell him that she thought it would be denied. (Berry Tr. 102–04.) Similarly, Janet Berry testified that she recalled Brussel–Smith saying "something like, ‘this might not go through,’ " not that she believed it would be denied, and that she "[did] not recall [Plaintiff] insisting on anything." (Janet Berry Tr. 54–55.) More generally, Plaintiff testified that, while he was present during the meeting between his mother and Brussel–Smith, he was not paying attention to what was said and the information for the application was provided by his mother, not him. (Berry Tr. 107–11.)

The application ultimately submitted on behalf of Janet Berry (and Plaintiff) contained several misstatements. First, the application listed the date of incorporation of ICS as August 8, 2005, and stated that ICS had been in existence for one month, (Marchinkowski's 56.1 ¶ 10; Posner Aff. Ex. E (Janet Berry's Application for New York Workers' Compensation and Employers' Liability Insurance), at 4); however, ICS was incorporated in May 1997, (Marchinkowski's 56.1 ¶ 10; Berry Tr. 37, 108 (testifying that he incorporated ICS in May 1997)). Additionally, the application asked, "HAVE YOU EVER BEEN INSURED IN THE NEW YORK STATE INSURANCE FUND?" and instructed that

You must answer "YES" if you or any person who directly or indirectly owns or controls or is the president, vice president, secretary or treasurer of [ICS] either directly or indirectly owns or controls or is president, vice president, secretary or treasurer of an employer that has had a workers' compensation policy with the State Insurance Fund that was cancelled, or directly or indirectly owned or controlled or was president, vice

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