Bertuglia v. City of N.Y.

133 F.Supp.3d 608

Robert BERTUGLIA, Jr. Individually, and as President of Laro Maintenance Corporation, Laro Maintenance, and Laro Service Systems, Plaintiffs,

v.The CITY OF NEW YORK, Ada Elyse Ruzow, Ada Michael Scotto, Port Authority Inspect General Robert E. Van Etten, Port Authority Director of Investigations Michael Nestor, Port Authority Investigative Manager Edward Kennedy, Port Authority Forensic Auditor Fred Ferrone, Port Authority Supervising Investigator Jeffrey Schaffler, Port Authority ContractAdministrator Bernard D'Aleo And Port Authority Investigators John and Jane Doe # 1–5 (names and shield numbers whom are unknown at present and other unidentified members of the Port Authority ), Defendants.

No. 11 Cv. 2141(JGK).

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

Signed Sept. 28, 2015.

Jon Louis Norinsberg, Law Offices of Jon L. Norinsberg, New York, NY, for Plaintiffs.

Elizabeth Norris Krasnow, New York City District Attorney's Office, Melanie Mary Speight, New York City Law Department, Kathleen Gill Miller, Law Office of James M. Begly, Susan C. Roque, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

Robert Bertuglia, Jr. ("Bertuglia"), and Laro Maintenance Corporation, Laro Maintenance, and Laro Service Systems (together "Laro") bring this action against the following defendants: (1) three Port Authority of New York and New Jersey employees—Jeffrey Schaffler, Fred Ferrone, and Bernard D'Aleo; (2) New York Assistant District Attorneys ("ADAs") Elyse Ruzow and Michael Scotto; and (3) the City of New York for alleged violations of 42 U.S.C. § 1983 and New York State tort law.¹ Bertuglia and Laro allege that the defendants violated their constitutional rights by, among other things, prosecuting them for grand larceny in the second degree and other crimes in connection with a services contract between Laro and the Port Authority. The charges were ultimately dismissed. This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a). The plaintiffs move for partial summary judgment against Schaffler on the claim of malicious prosecution. Schaffler cross moves for summary judgment dismissing all of the plaintiffs' claims against him. The other Port Authority defendants, Ferrone and D'Aleo, move for summary judgment dismissing all the claims against them. ADAs Ruzow and Scotto move for summary judgment dismissing all the claims against them. And the City moves for summary judgment dismissing a Monell claim for failure to train and failure to discipline prosecutors.

For the reasons explained below, the defendants' motions for summary judgment are granted and the plaintiffs' motion for partial summary judgment is denied.

I.

The standard for granting summary judgment is well established. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994). The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify the material facts and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see also Chepilko v. Cigna Grp. Ins., No. 08cv4033 (JGK), 2012 WL 2421536, at *1 (S.D.N.Y. June 27, 2012).

In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994) ; see also Perez v. Duran,

962 F.Supp.2d 533, 535–36 (S.D.N.Y.2013) ; Pelayo v. Port Auth., 893 F.Supp.2d 632, 634–35 (S.D.N.Y.2012).

"When faced with cross-motions for summary judgment, a district court is not required to grant judgment as a matter of law for one side or the other." Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993). "Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Id.

Under this Court's local rules, parties moving for summary judgment must submit a "separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civ. R. 56.1(a). If an opposing party fails to respond to the moving party's Rule 56.1 statement, then the facts therein may be deemed admitted. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003) ; Local Civ. R. 56.1(c). But " ‘[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.’ " Giannullo, 322 F.3d at 140 (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir.2001) ).

Here, Schaffler initially did not file a response to the plaintiffs' Rule 56.1 statement.² The plaintiffs argue that Schaffler's cross motion for summary judgment falls short of refuting their statements of undisputed facts, and that the Court must enter summary judgment for the plaintiffs. The plaintiffs are clearly wrong. See Vt. Teddy Bear Co., Inc. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (a non-movant is not required to rebut an insufficient showing in support of summary judgment and the district court "may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement [because i]t must be satisfied that the citation to evidence in the record supports the assertion"); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996) (per curiam) ("The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically. Such a motion may properly be granted only if the facts as to which there is no genuine dispute ‘show that the moving party is entitled to a judgment as a matter of law.’ " (quoting then-current version of Fed.R.Civ.P. 56(c) )).

Similarly, the ADA defendants contend that the plaintiffs' response to the ADA defendants' Rule 56.1 Statement was defective because the response did not cite to the record or set forth disputed facts. ADA Defs.' Reply at 1–2. To the extent the plaintiffs admitted facts in response to the ADA defendants' Rule 56.1 Statement, those facts, if supported by the record, are deemed admitted. But even if the plaintiffs' responses to disputed facts are deficient, this Court will not simply deem admitted the ADA defendants' Rule 56.1 Statement of Facts. Rather, this Court must still ascertain that the record supports all the facts in that Statement. See Giannullo, 322 F.3d at 140.³

II.

The parties do not dispute the following facts unless otherwise noted.

A.

Laro began working for the Port Authority in 1996 when Laro began providing janitorial maintenance for the Port Authority bus terminal on Eighth Avenue in Manhattan. In response to the Port Authority's Request for Proposals in 2005, Laro submitted a bid for the 2005–2007 contract. Krasnow Decl., Ex. D, at 238–39. The Port Authority stipulated that the bidders had to provide new equipment; this requirement would level the playing field for new bidders and ensure that the winner of the bid used quality equipment. Id. at 239. Robert J. Bertuglia, as President of Laro, attended meetings with the Port Authority representatives when Laro was preparing its bid. Id. at 239–40. During these meetings, Laro and the Port authority discussed price adjustments. Id. at 240.

Bertuglia signed a Letter of Acceptance for a contract with the Port Authority, agreeing to provide janitorial maintenance and cleaning services in the Port Authority bus terminal on Eighth Avenue. Schaffler's R. 56.1 Stmt. ¶ 2; Pls.' Resp. to Schaffler's R. 56.1 Stmt. ¶ 2; Krasnow Decl., Ex. E, at 2. The contract provided that "all equipment shall be in new and unused condition at the start of the Initial Term[.]" Miller Decl. in Supp. of Schaffler's Mot. for Summ. J. ("Miller Decl. 1"), Ex. D, at 41. The contract ran from January 1, 2005 to December 31, 2007. ADA Defs.' R. 56.1 Stmt. ¶ 5; Pls.' Resp. to ADA Defs.' R. 56.1 Stmt. ¶ 5.

Pursuant to Laro's bid and the subsequent contract, Laro billed the Port Authority an annual lump sum charge of $6,708,600 for station cleaning, in addition to other charges. Krasnow Decl., Ex. E, at 13. The total contract price for the initial three year period was $24,583,065. Id. Laro billed the Port Authority on a monthly basis. See, e.g., Krasnow Decl., Ex. N. The lump sum charge was calculated by estimating the number of work hours at the station....