Capogrosso v. Gelbstein

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MARIO H. CAPOGROSSO, Plaintiff, v. ALAN GELBSTEIN, in his individual capacity, IDA TRASCHEN, in her individual capacity, DANIELLE CALVO, in her individual capacity, SADIQ TAHIR, PEC GROUP OF NY, INC., DAVID SMART, and MARK SCHROEDER, in his official capacity as Commissioner of the New York State Department of Motor Vehicles,^[1]Defendants.

No. 18 CV 2710 (EK)(LB)

United States District Court, E.D. New York

February 1, 2022

REPORT & RECOMMENDATION

LOIS BLOOM UNITED STATES MAGISTRATE JUDGE

Attorney Mario H. Capogrosso, proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. §§ 1983 and 1988, alleging that defendants retaliated against him for exercising his First Amendment rights by permanently barring him from the Traffic Violations Bureau (“TVB”) in May of 2015. Defendant David Smart^[2] and defendants Alan Gelbstein, Ida Transchen, Danielle Calvo, and New York State Department of Motor Vehicles Commissioner Mark Schroeder (collectively, “the State Defendants”) move for summary judgment on plaintiff's claims against them pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF Nos. 178, 179. Plaintiff opposes the motions. ECF Nos 246, 258. The Honorable Eric R. Komitee referred defendants' motions to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b).^[3] For the reasons set forth below it is respectfully recommended that defendants' motions for summary judgment should be granted.

FACTS^[4]

The following facts are taken from plaintiff's complaint, ECF No. 1 (“Compl.”), defendants' Local Civil Rule 56.1 Statements of Facts,^[5] and the exhibits filed by defendants with their summary judgment briefing.^[6] Even though plaintiff is an attorney, defendants provided plaintiff with requisite notice to a pro se litigant opposing summary judgment under Local Rule 56.2. See ECF Nos. 178-8, 182.

The instant action arises out of plaintiff's bar from the Traffic Violations Bureau (“TVB”) in May 2015. Compl. ¶¶ 5, 11. Plaintiff began representing motorists at the TVB in 2005. Compl. ¶ 3; ECF No. 221, Plaintiff's Deposition Transcript, (“Pl. Dep.”), 18:13-18, 21:15-23.^[7] The TVB is a division within the Department of Motor Vehicles (“DMV”), an agency of New York State, and proceedings within the TVB are overseen by Administrative Law Judges (“ALJs”). See generally, N.Y. Traffic Law §§ 225 et seq.

In 2009, the DMV began to receive complaints about plaintiff's behavior at the TVB. State Defs' 56.1 Stmt. ¶ 9; Gelbstein Dec. ¶ 7 (“I received more complaints about Plaintiff than I received about any other attorney in my entire time at DMV”); Calvo Dec. at ¶¶ 2-6 (describing plaintiff yelling obscenities at clerks and other attorneys); Traschen Dec. ¶ 7.^[8]

On January 6, 2011, eighteen Brooklyn South TVB employees signed a petition stating that “the confrontations [with plaintiff] have been escalating,” and that they felt plaintiff's presence at the TVB “constitutes a threat to [their] physical safety.” ECF No. 195 (“the Petition”); see State Defs' 56.1 Stmt. ¶ 13; Gelbstein Dec. ¶ 13, Calvo Dec. ¶ 6. After receiving the petition, then- Administrative Law Judge (“ALJ”) Alan Gelbstein^[9] and Supervising ALJ Vahdatlamas advised plaintiff that if he “did not conduct himself appropriately,” he would not be allowed to appear on behalf of motorists at the TVB. Gelbstein Dec. ¶ 14.

On December 21, 2011, plaintiff was involved in another incident in which he used anti-Semitic language towards one attorney and then “punched the air” near another attorney's face. Id. at ¶ 9; see ECF No. 196 (email from ALJ Vahdatlamas, memorializing the investigation following the event); ECF Nos. 197-200 (statements from four attorneys who witnessed the incident). Plaintiff admits to using threatening language and “[throwing] the punch at the wall.” Pl. Dep. 260:18-21, 272:18-22, 306:22-307:06. After obtaining plaintiff's version of events, Gelbstein, Vahdatlamas, and Neil Schoen, the Deputy Commissioner for Legal Affairs, determined that plaintiff would be suspended from practicing at any TVB location for three months, and from practicing at the Brooklyn South location indefinitely. Gelbstein Dec. ¶ 19.

On April 12, 2012, plaintiff commenced an Article 78 proceeding challenging his suspension. See Capogrosso v. N.Y. State Dep't of Motor Vehicles, Index No. 7738/2012 (Sup. Ct. Kings Cty.). The parties eventually reached a settlement, and the DMV agreed to lift plaintiff's suspension upon his completion of an anger management course. Pl. Dep. 321:12-322:20. Plaintiff was allowed to resume practice at the TVB on the condition that he “strictly adhere to the standards of conduct required of attorneys appearing before State courts.” ECF 219. Further, the DMV warned plaintiff that “in the event that Mr. Capogrosso commits an act of physical violence, he shall be immediately and permanently barred from appearing on behalf of DMV licensees at TVB offices.” Id. at 2; see Pl. Dep. at 414:4-6.

Plaintiff returned to the Brooklyn South TVB mid-2012 and soon after, he and David Smart, a security guard at TVB, employed by the private security firm PEC Group of NY, Inc. (“PEC”), made complaints against one another. See Pl. Dep. at 344:5-345:2 (plaintiff recounts complaining about Smart to Gelbstein), id. at 412:19-21 (same); ECF No. 202 (Workplace Violence Report stating that plaintiff accused Smart of “looking at him” and that a police officer had to intervene); ECF No. 204 (Smart complains that plaintiff deliberately walked into him).^[10]Others also filed complaints about plaintiff's aggressive behavior at the TVB. Gelbstein Dec. ¶ 27-34; see, ECF No. 203, 205-07, 209.^[11]

On March 20, 2015, plaintiff sent a letter (hereinafter, “the AG Letter”) to Assistant Attorney General (“AAG”) Elizabeth Prickett-Morgan of the New York State Office of the Attorney General,^[12] complaining that, inter alia, Smart was tampering with plaintiff's files, that Smart had “gotten in [his] face, stared and glared,” and that Smart had gestured in plaintiff's direction. ECF No 227. Plaintiff's letter further complained that Gelbstein failed to respond to his complaints about Smart. Id. Gelbstein and Traschen became aware of the letter but did not respond to it or take any action because, in their view, the letter contained “stale claims” that plaintiff had previously raised to Gelbstein. State Defs' 56.1 Stmt ¶ 32; Gelbstein Dec. ¶¶ 36-37; Traschen Dec. ¶ 10.

On May 5, 2015, plaintiff was involved in another incident at the TVB. Reports of the incident state that plaintiff began yelling when Sadiq Tahir, another lawyer who practiced at the TVB, touched his bag. ECF Nos. 210-13 (witness statements and Workplace Violence Report).^[13]Less than a week later, on May 11, 2015, plaintiff and Smart got into an argument and plaintiff shoved Smart; Smart left the scene and filed a report with the police. See ECF Nos. 214-16 (witness statements and Workplace Violence Report); Calvo Dec. ¶ 15. Plaintiff does not deny that an incident took place, but states that “Smart approached [plaintiff] for no reason” and that plaintiff “tried to avoid an altercation.” Pl. Opp'n Smart's 56.1 Stmt. ¶ 17. Gelbstein was not at the TVB when the incident happened, but Danielle Calvo, a Supervising Motor Vehicle Representative, called Gelbstein to inform him of the incident. Calvo Dec. ¶ 14.^[14] Gelbstein directed Calvo to call Traschen and Traschen advised Calvo to escort plaintiff out of the TVB. Gelbstein Dec. ¶ 46. In the presence of police, Calvo asked plaintiff to leave the premises. Calvo Dec. ¶ 14. Smart left the TVB with the police to file a report regarding the incident. Id. ¶ 15.

Later that day, Gelbstein and Traschen discussed the incident and concluded that plaintiff should be permanently barred from the TVB considering his history of aggressive behavior, the fact that his suspension and anger management classes had not tempered his outbursts, and that plaintiff had already been explicitly warned that any incident of physical violence would lead to his permanent bar from the TVB. Gelbstein Dec. ¶¶ 46-47; Traschen Dec. ¶¶ 12-13. Plaintiff claims defendants barred him from the TVB in retaliation for his exercise of his “First Amendment Rights [to] criticize the way [Gelbstein] administered his official office.” Compl. ¶ 42. Gelbstein and Trachen state that plaintiff's letter to the AG “played no role in this decision to bar the Plaintiff from [TVB] practice.” State Defs' 56.1 Stmt. ¶ 42.

PROCEDURAL HISTORY

Plaintiff filed the instant complaint against defendants on May 8 2018. ECF No. 1. Proof of service was filed for Calvo, Gelbstein, Morgan, and Smart on June 8, 2018 and for Traschen, Vahdatlamas, and PEC Group of NY, Inc. (“PEC”), on July 27, 2018. ECF Nos. 10, 24.^[15] Pro se defendants Smart and Tahir answered plaintiff's complaint and raised a counterclaim against plaintiff. ECF Nos. 6-7. Smart and Tahir's counterclaims were dismissed on October 17, 2018. ECF No. 50.^[16]

The State Defendants^[17] moved to dismiss plaintiff's complaint, ECF No. 42, and Judge Brodie referred the motion to me for a Report and Recommendation. See Nov. 5, 2018 Order. I recommended that the State Defendants' motion should be granted in part and denied in part^[18] and the Court adopted the Report and Recommendation. ECF No. 71.^[19]

Plaintiff filed an amended complaint, ECF No. 74, but voluntarily withdrew the amended complaint and the Court set a deadline for the parties to complete discovery. ECF No 82.^[20]Plaintiff requested that the Court order defendant Commissioner Schroeder be produced for a deposition and that defendant Smart be ordered to respond to his interrogatories. ECF No. 147. The Court granted defendant Schroeder's request for a protective order...