UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------)(

ANGELA STERN,

AMENDED COMPLAINT

Plaintiff,

CIVIL ACTION NO. 05 CV 8574 (SCR)

JURY TRIAL DEMANDED

-against-

THE TOWN OF MOUNT KISCO & THE MOUNT KISCO POLICE DEPARTMENT, Mount Kisco Police Department Lieutenant Patrick M. O'Reilly, and' Detective Raul Fernandez, and other individual employees of The Mount Kisco Police Department AND THE STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL, and State of New York Division of Alcoholic Beverage Control Investigator Frank Englander, and others individual employees of the State of New York Division of Alcoholic Beverage Control,

Defendants. ------------------------------------------------------------)(
The plaintiff, complaining of the defendants, by her attorneys, Watters & Svetkey, LLP.,

respectfully shows to this Court and alleges:

JURISDICTION IS FOUNDED UPON A FEDERAL QUESTION.

1. This action arises under the United States Constitution, particularly under provisions of the

Fourth, Fifth and Fourteenth Amendments ofthe Constitution ofthe United States, and under federal

law, particularly the Civil Rights Act, Title 42 of the United States Code, Section 1983, and the

rights guaranteed by the Constitution and laws of the State of New York.

2. This is an action to redress the deprivation under color of statute, ordinance, regulation,

policy, custom, or usage ofrights, privileges, and immunities secured to plaintiffby the Fourth, Fifth

and Fourteenth Amendments to the Constitution ofthe United States pursuantto (42 U.S.C. § 1983)

and arising under the law and statutes of the State of New York, including protections of due
1

process, equal protection and prohibitions against selective enforcement of State and Federal laws. 3. Jurisdiction is founded upon 28 U.S.C. Sections 1331, 1343(3) and 1343(4), this being an action authorized by law to redress the deprivation under color oflaw, statute, ordinance, regulation, custom, policy and usage of rights, privileges, and immunities secured to plaintiff by the Fourth, Fifth and Fourteenth Amendments to the Constitution ofthe United States, plaintifffurther invokes the supplemental jurisdiction of this Court to adjudicate pendant state law claims pursuant to 28 U.S.C. § 1367. Venue is proper pursuant to 28 U.S.C. § 1391 (b) (1&2). 4. The matter in controversy exceeds, exclusive of interest and costs, the sum or value of ONE HUNDRED THOUSAND ($100,000.00) DOLLARS. 5. That an award of attorney's fees is appropriate pursuant to 42 U.S.C. § 1988. PARTIES 6. That the plaintiff, is a resident of Westchester County andJhe State of New York. 7. Upon information and belief, that at all times hereinafter mentioned, the defendant, TOWN OF MOUNT KISCO, was and still is a municipal corporation duly organized and existing under and by virtue of the laws of the State of New York, and that it is vicariously liable for the violations of New York State tort law by its servants, agents and employees via the principle of respondeat superior as at all times relevant all officers employed by defendant, TOWN OF MOUNT KISCO POLICE DEPARTMENT, were acting for, upon, and in furtherance of the business of their employer and within the scope of their employment. 8. The TOWN OF MOUNT KISCO POLICE DEPARTMENT, is a local governmental agency, duly formed and operating under and by virtue of the Laws and Constitution of the State of New York and the defendant, TOWN OF MOUNT KISCO, is responsible for the policies, practices and
2

customs of the TOWN OF MOUNT KISCO POLICE DEPARTMENT as well as the hiring, screening, training, supervising, controlling and disciplining ofits police officers, civilian employees and is the final decision maker for that agency. 9. That the defendant TOWN OF MOUNT KISCO is vicariously liable for the torts of its employees working for the TOWN OF MOUNT KISCO POLICE DEPARTMENT as police officers. 10. The STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL, is a state governmental agency in charge of enforcing New York State laws governing the sale of alcoholic beverages in New York State. 11. Defendant Mount Kisco Police Department Lieutenant Patrick M. O'Reilly, and Detective Raul Fernandez, are employees of defendant THE MOUNT KISCO POLICE DEPARTMENT. 12. State of New York Division of Alcoholic Beverage Control Investigator Frank Englander, is an employee of the defendant STATE OF NEW YORK STATE DIVISION OF ALCOHOLIC BEVERAGE CONTROL. 13. Each and all of the acts of the defendants alleged herein were done by the defendants, their agents, servants and employees, and each ofthem not as individuals, but under the color and pretense ofthe statutes, ordinances, policies, regulations, customs, and usages ofthe State ofNew York and the TOWN OF MOUNT KISCO, and under the authority of their office as police officers of said Town and State.
3

STATEMENT OF FACTS
BACKGROUND
14. PLAINTIFF ANGELA STERN is a resident of the Town of Mt. Kisco. In 1976 she opened
the "Au Fun Chinese Restaurant" at 31 Main Street in downtown Mount Kisco. The restaurant
initially served Chinese food but then later added Spanish dishes to cater to the local and growing
Hispanic population in the town. She also obtained a liquor license for the restaurant with the
permission of the landlord in 1996.
15. On or about July 31, 1999, the lease expired and PLAINTIFF ANGELA STERN stayed on
as month to month tenant and attempted to negotiate a renewal. The landlord initially agreed to the
renewal but thereafter refused to enter into a new lease. The refusal led to a law suit in 1999
pursuant to 42 USC section 1981 challenging the failure to renew the lease. Judge Colleen McMahon
conducted a hearing September 29, 1999 and found in pertinent part:
[the landlord]' s decision not to renew Mrs.. Stern's lease, made after he had promised to send her a renewal lease in the mail, despite his receipt of, and awareness of, what he referred to as numerous complaints about her clientele from his other tenants, was motivated in significant part by a desire to help the officials of Mount Kisco rid the central business [di]strict of what they viewed as an undesirable element ... local officials, including the Mayor of Mount Kisco, advised ... [the landlord] ... that Ah Fun's irresponsibility was the reason why his other tenants were dissatisfied. [the landlord] had agreed to renew Mrs. Stern's lease with full knowledge that his other tenants had complained of problems ...
[and]
[i]t appears to me that [the landlord] decided to evict Ah Fun because area officials and business people who were hostile to Latinos congregating in downtown Mount Kisco convinced him that Mrs. Stern was an irresponsible tenant, without having any basis in fact to draw that conclusion. I find that their conclusory statements to ... [the landlord] were motivated by racial animus.
Stern v. Resnick, 99 Civ. 10053 (CM)(transcript to proceedings dated September 29, 1999 pages 58
4

& 60). 16. The court directed entry ofa preliminary injunction barring the landlord from refusing to rent to Mrs. Stern. The parties thereafter entered a stipulation settling the action and the lease was renewed and the restaurant operates to this day. 17. Defendant TOWN OF MOUNT KISCO was subject to similar law suits in 1996 and 1999 which challenged police enforcement tactics as discriminatory. These cases eventually were settled. POLICE ENFORCEMENT AT CAFE LA CHINA 18. In or around 2001 PLAINTIFF ANGELA STERN opened Cafe La China at 155 Lexington Avenue in Mt. Kisco. The restaurant caters to a predominantly Hispanic clientele. 19. In or around May 2001, PLAINTIFF ANGELA STERN received a complaint from her landlord at Cafe la China claiming that the restaurant, catering to mostly Hispanic customers, was actually allowing women to prostitute themselves at the location.. PLAINTIFF ANGELA STERN immediately contacted town officials to assure them that that was a blatant falsehood and invited them to the restaurant to make their own observations. The invitation was not accepted. She did· notice thereafter an increased police presence at Cafe La China and after a new mayor took office in 2003 law enforcement policing escalated to the point of harassment of PLAINTIFF ANGELA STERN and Cafe La China's clientele. 20. Defendants THE TOWN OF MOUNT KISCO & THE MOUNT KISCO POLICE DEPARTMENT also have used defendant THE STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL, to interfere with PLAINTIFF ANGELA STERN's business. Generally, defendant MOUNT KISCO POLICE DEPARTMENT would single out Cafe La China for police investigation after which they would issue referrals to defendant STATE OF
5

NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL that resulted in that agency issuing pleadings claiming license violations. 21. In the first nine months of 2005, defendant STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL issued eight separate pleadings involving allegations of violations at Cafe La China on thirteen separate dates. These pleadings alleged various violations including disorderly premise, selling to intoxicated persons and the failure to post the store liquor license or warnings concerning alcohol consumption and pregnancy and selling alcohol to minors, that took place on January 1,2005, February 27,2005, March 3, 2005 [case no 22396]; April 20, 2005, April 24, 2005 [case 24957]; April 30, 2005 [case no 25057] - involving individual defendant Mount Kisco Police Department Lieutenant Patrick M. O'Reilly and Detective Raul Fernandez and defendant State of New York Division of Alcohol and Beverage Control Investigator Frank Englander-; May 1,2005 [case no 25163]; May20,2005 [case no 26565]; June 19, 2005i-;-June 25, . 2005, July 2, 2005 [case no 26282]; July 14,2005 [case no 26706]; and August 15,2005 [case no 27405]. 22. Each of the foregoing investigations and resulting pleadings were conducted by individuals of the defendant MOUNT KISCO POLICE DEPARTMENT and on at least one occasion noted above - April 30, 2005, case number 25057 - was conducted by individual defendant Mount Kisco Police Department Lieutenant Patrick M. O'Reilly and Detective Raul Fernandez and defendant State of New York Division of Alcohol and Beverage Control Investigator Frank Englander. 23. PLAINTIFF ANGELA STERN is contesting all ofthese claims as unfounded. The cases are still pending. 24. PLAINTIFF ANGELA STERN has observed during this time frame an increased police
6

presence in front of Cafe La China. On or about July 15,2005, as well as on June 25,26 & 27, 2005, the police conducted random searches of people leaving the location but did not investigate patrons of the deli adjacent to Cafe La China. 25. On July 2,2005, PLAINTIFF ANGELA STERN observed the police chase someone who had been standing in front of Cafe La China but left alone those people standing in front of the deli located nearby. 26. On September 10,2005 the police stopped persons in a car after they left Cafe La China. The driver produced a Guatemalan license and the officer said this was not Guatemala and they did not belong in the country. 27. PLAINTIFF ANGELA STERN welcomes the police presence and is the first to report unlawful or possibly criminal activity but claims herein that Cafe La China is singled out by defendants for unnecessary police activity and interference because her business has a predominantly if not exclusively an Hispanic clientele. 28. PLAINTIFF ANGELA STERN, through counsel, attempted to arrange meetings with the police and town officials to no avail. 29. Requests for records ofenforcement ofother town establishments f¢lr other restaurants in the area - Mango Cafe, 222 Main Street; Tacos La Cabana, 96 S. Moger Avenue; Kavners Bar & Grill, 30 East Main Street; Marys Bar, 96 South Moger Avenue; Mount Kisco; Coach Diner, 252 Main Street - in an attempt to verify or provide context for policing activity w¢re not answered.
7

AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANTS THE TOWN OF MOUNT KISCO & THE MOUNT
KISCO POLICE DEPARTMENT, Mount Kisco Police Department Lieutenant Patrick M. O'Reilly, and Detective Raul Fernandez, and other individual
employees of The Mount Kisco Police Department 30. Plaintiff, PLAINTIFF ANGELA STERN, repeats, reiterates and realleges each and every allegation set forth in paragraphs "1" through "29" ofthis complaint, with the same force and effect as if more fully set forth herein. 31. As a result of the town and police selective enforcement in violation of constitutional and statutory rights, including those rights protected by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and comprised in the protections against unreasonable search and seizure, the right to due process and equal protection of the laws by both the New York State and United States constitutions, PLAINTIFF ANGELA STERN has suffered business losses and emotional distress. 32. Accordingly, PLAINTIFF ANGELA STERN is entitled to recover compensatory and punitive damages against defendants and to equitable relief enjoining defendants from selective enforcement oflaws; and termination ofall actions as a result ofselective enforcement including but not limited to those aforementioned by defendant STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL as well as those pending in the Mount Kisco Justice Court. 33. That by reason ofthe aforesaid PLAINTIFF ANGELA STERN has been damaged in the sum of ONE MILLION ($1 ,000,000.00) DOLLARS and is entitled to an award ofpunitive damages and an award of attorney's fees is appropriate pursuant to 42 U.S.C. § 1988.
8

JURY TRIAL DEMANDED WHEREFORE, plaintiff demands judgment against the defendants THE TOWN OF MOUNT KISCO & THE MOUNT KISCO POLICE DEPARTMENT, Mount Kisco Police Department Lieutenant Patrick M. O'Reilly, and Detective Raul Fernandez, and other individual employees of The Mount Kisco Police Department, in the sum of ONE MILLION ($1,000,000.00) DOLLARS, punitive damages, and reasonable attorneys' fees pursuant to 42 U.S.C. § 1988; and granting PLAINTIFF ANGELA STERN equitable relief enjoining defendants from selective enforcement of the laws; granting PLAINTIFF ANGELA STERN equitable relief enjoining defendant STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL from pursuing any pleadings or actions involving the enumerated cases above and enjoining defendants THE TOWN OF MOUNT KISCO & THE MOUNT KISCO POLICE DEPARTMENT from pursuing any cases or actions now pending in the Mount Kisco Jnstice Court arising from selective enforcement activities of defendants; and for such other and further relief as this Court deems just and proper; Dated: November 28, 2005 New York, New York
J athan Svetkey(JS 39 atters & Svetkey, LLP
Attorney for Plaintiff 21 East 40th Street - Suite 1800 New York, New York 10016 (212) 679-8999
9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)(

ANGELA STERN,

Case No. 05-CV-8574

Plaintiff( s),

-against-

AFFIDAVIT OF SERVICE

THE TOWN OF MOUNT KISCO, ET AL.,

Defendant( s).
-------------------------------------------------------)(
STATE OF NEW YORK )

COUNTY OF NEW YORK )

JOHN WALKER, being duly sworn, deposes and says that he is an employee of KEATING & WALKER ATTORNEY SERVICES, INC., is over the age of eighteen years and is not a party to the action.
That on the 9th day of December, 2005, deponent served a true copy of the AMENDED COMPLAINT upon attorneys for defendants in this action by placing the same in securely sealed and postage paid wrapper, and mailing same via regular first class mail, by depositing same in an official depository maintained by the government of the United States, City and State of New York, addressed as follows:

Lisa Ghartey, Esq. State of New York Office of the Attorney General 120 Broadway, 24th Floor New York, New York 10271

John Carmody, Esq. Servino & Santanelo 151 Broadway Hawthorne, New York 10532

Sworn to before me this 9th day of Decem ,005

Reg. No. 01-KE-4851 Qualified in Queens County Certificate Filed in New York County Commission expires February 3, 2006

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------------X ANGELA STERN,
Plaintiff,
-against-
THE TOWN OF MOUNT KISCO & THE MOUNT KISCO POLICE DEPARTMENT, LIEUTENANT PATRICK M. O’REILLY, and DETECTIVE RAUL FERNANDEZ, and other individual employees of the MOUNT KISCO POLICE DEPARTMENT, AND THE STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL, and STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL INVESTIGATOR FRANK ENGLANDER, and other individual employees of the STATE OF NEW YORK DIVISION of ALCOHOLIC BEVERAGE CONTROL,
Defendants. --------------------------------------------------------------------X

05 CV 8574 (SCR)

MEMORANDUM OF LAW IN SUPPORT OF STATE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT

LISA GHARTEY Assistant Attorney General of Counsel

ELIOT SPITZER Attorney General of the State of New York Attorney for State Defendants 120 Broadway, 24th Floor New York, New York 10271 (212) 416-8548/8610

Table of Contents

Page

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

POINT I -

THE ELEVENTH AMENDMENT BARS THIS SUIT AGAINST THE STATE DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . . . 5

POINT II -

YOUNGER ABSTENTION BARS PLAINTIFF’S CLAIM FOR RELIEF AS AGAINST THE STATE DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . 7

POINT III -

INVESTIGATOR FRANK ENGLANDER IS ENTITLED TO QUALIFIED IMMUNITY . . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Cases

Table of Authorities

Page

Alabama v. Pugh, 438 U.S. 781 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Allen v. Cuomo, 100 F.3d 253 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Brown v. City of Oneonta, 106 F.3d 1125 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cory v. White, 457 U.S. 85 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6

Employees v. Department of Public Health, 411 U.S. 279 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 5

Gibson v. Berryhill, 411 U.S. 564 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) reh'g denied 421 U.S. 971 (1975) . . . . . . . . . . . . 7

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

In Re State Police Litigation, 88 F.3d 111 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ippolito v. Meisel, 958 F. Supp. 155 (S.D.N.Y. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Jermosen v. Smith, 945 F.2d 547 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Kentucky v. Graham, 473 U.S. 159 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Martinez v. City of Schenectady, 115 F.3d 111 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Missouri v. Fiske, 290 U.S. 18 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Neustein v. Orbach, 732 F. Supp. at 341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., (Dayton Christian Schools), 477 U.S. 619, 627 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Oliveira v. Mayer, 23 F.3d 642 (2d Cir. 1994), cert. denied, 115 S.Ct. 721 (1995) . . . . . . . . . . 10

Cases

Page

Papasan v. Allain, 478 U.S. 265 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Pennhurst State School & Hospital v. Helderman, 465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . 5,6

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9

Railroad Commission v. Pullman Co., 312 U.S. 496 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rodriguez v. Phillips, 66 F.3d 470 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178 (2d Cir.), cert denied, 502 U.S. 866 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Trotman v. Palisades Intersate Park Commission, 557 F.2d 35 (2d Cir. 1977) . . . . . . . . . . . . . . 5

University Club and the Union League Club v. City of New York, 842 F.2d 37,40 (2d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9

Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Will v. Michigan Department Of State Police, 491 U.S. at 71 . . . . . . . . . . . . . . . . . . . . . . . . . 5,6

Williams v. Greifinger, 97 F.3d 699 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Yin Jing Gan v. City of New York, 996 F.2d 522 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Younger v. Harris, 401 U.S. 37 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,7,8

Zavaro v. Coughlin, 970 F.2d 1148 (2d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States Constitution Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4

Federal Statutes 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 5

Federal Rules Rule 12 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------------X ANGELA STERN,
Plaintiff,

05 CV 8574 (SCR)

-against-

THE TOWN OF MOUNT KISCO & THE MOUNT KISCO POLICE DEPARTMENT, LIEUTENANT PATRICK M. O’REILLY, and DETECTIVE RAUL FERNANDEZ, and other individual employees of the MOUNT KISCO POLICE DEPARTMENT, AND THE STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL, and STATE OF NEW YORK DIVISION OF ALCOHOLIC BEVERAGE CONTROL INVESTIGATOR FRANK ENGLANDER, and other individual employees of the STATE OF NEW YORK DIVISION of ALCOHOLIC BEVERAGE CONTROL,

Defendants. --------------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF STATE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT

PRELIMINARY STATEMENT

Plaintiff, Angela Stern, brings this action pursuant to 42 U.S.C. § 1983, alleging inter alia, that defendants, the New York State Liquor Authority (“SLA”), and SLA Investigator Frank Englander (collectively the “State defendants”), on or about April 30, 2005, in conjunction with the defendants, the Mount Kisco Police Department, conducted an investigation of her establishment, Café La China, located in Mount Kisco, New York, and improperly charged Ms. Stern with violations of the State of New York Alcohol and Beverage Control Law (“ABC Law”).
By this action, plaintiff seeks $ 1,000,000 in compensatory and punitive damages

as well as injunctive relief. State defendants, submit this memorandum of law in support of the motion to dismiss
the complaint pursuant to Rule 12 (b) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). State Defendants move to dismiss the complaint on the grounds that plaintiff has failed to state a cause of action under 42 U.S.C. § 1983, and this action is precluded by the Eleventh Amendment of the United States Constitution, the principles of Younger abstention, and Investigator Englander is entitled to Qualified Immunity.
Statement of Facts For the purposes of this motion to dismiss, all of the facts asserted in plaintiff’s complaint are assumed to be true. For the court’s convenience, a copy of the following public records: (1) plaintiff’s Amended Complaint; and (2) the SLA Notice of Pleading, Case No. 25057, served on plaintiff Angela Stern, have been annexed as exhibits to the accompanying declaration of State defendants’ counsel, Assistant Attorney General Lisa Ghartey (“Ghartey Dec.”).
Plaintiff, Angela Stern, is a resident of the Town of Mt. Kisco, located in Westchester County New York. See Complaint ¶14. In or around 2001, plaintiff opened a restaurant, Café La China, located at 155 Lexington Avenue in Mt. Kisco, NY. See Complaint ¶ 18. The restaurant has a predominantly Hispanic clientele. See Complaint ¶18. In or around May 2001 plaintiff received a complaint from her landlord claiming that the restaurant was allowing women to prostitute themselves at Café La China. See Complaint ¶ 19. Plaintiff denied this allegation to “town officials”. See Complaint ¶ 19. Plaintiff invited “[town officials] down to the restaurant to make their own observations. The invitation was not accepted. She did notice thereafter an increased police presence at Café La China. . . .” See Complaint ¶ 19. According to the complaint,
2

in 2003, after a new mayor took office law enforcement policing escalated to the point of harassment of plaintiff Angela Stern and Café La China clientele. Id.
According to the complaint, defendants, the Town of Mt. Kisco and the Mt. Kisco Police Department, have singled out Café La China for police investigation after which they would issue referrals to the SLA which resulted in the SLA issuing pleadings claiming license violations to plaintiff. See Complaint ¶ 20. During the first nine months of 2005 the SLA issued eight separate pleadings involving allegations of violations at Café La China on thirteen separate dates. See Complaint ¶ 21. The violations include disorderly premise, selling to intoxicated persons, selling to minors, and the failure to post the store liquor license or post warnings concerning alcohol consumption and pregnancy. Id.
On April 30, 2005, SLA investigator Frank Englander participated with the Mt. Kisco Police Department in an investigation of Café La China, which resulted in plaintiff being charged with, violations which resulted in the issuance of a Notice of Pleading for case number 25057. See Complaint ¶ 22; see also Ghartey Dec., Exh. B, Notice of Pleading Case No. 25057. Plaintiff is contesting all of the pleadings as unfounded. See Complaint ¶ 23. The cases are still pending. Id.
On or about June 25, 26 & 27, 2005 as well as July 15, 2005, the Mt. Kisco police conducted random searches of people leaving Café La China but did not investigate patrons of the deli adjacent to Café La China. See Complaint ¶ 24. On July 2, 2005 plaintiff observed the police chase someone who had been standing in front of Café La China but left alone those people standing in front of the deli nearby. See Complaint ¶ 25. According to the complaint, Café La China is being singled out by defendants for unnecessary police activity and interference because her business has
3

a predominantly if not exclusively an Hispanic clientele. See Complaint ¶ 27. Federal Complaint
By her Amended Complaint dated October 22, 2004, plaintiff alleges that the State defendants violated her civil rights, and seeks $1,000,000.00 in damages as well as injunctive relief. See Cplt.Wherefore Clause. The Complaint fails to state a claim against the State defendants upon which relief can be granted, is barred by the Eleventh Amendment, and principles of Younger abstention and further, State defendant Frank Englander is entitled to Qualified Immunity.
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ARGUMENT POINT I The Eleventh Amendment Bars This Suit Against The State Defendants The Eleventh Amendment bars suit in a federal court by a citizen of a state against that state unless the State consents to such a suit or the U.S. Congress enacts legislation overriding the Eleventh Amendment immunity. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54-57, (1996); Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst State School & Hospital v. Helderman, 465 U.S. 89, 100-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Employees v. Department of Public Health, 411 U.S. 279, 280 (1973); See Trotman v. Palisades Intersate Park Commission, 557 F.2d 35, 38-40 (2d Cir. 1977)(the State of New York has not consented to suit in federal court). Eleventh Amendment immunity “represents a real limitation on a federal court’s federal-question jurisdiction,” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 270 (1997). The absolute bar of the Eleventh Amendment immunity applies to lawsuits under 42 U.S.C. § 1983 in federal courts seeking monetary relief, as well as declaratory and injunctive relief against a state or state agency. Papason v. Allian, 478 U.S. at 276-77; Missouri v. Fiske, 290 U.S. 18, 27 (1933); Cory v. White, 457 U.S. 85, 91 (1982); Kentucky v. Graham, 473 U.S. 159 (1985). The absolute bar of the Eleventh Amendment applies to lawsuits under § 1983 since states and state agencies are not “persons” subject to suit under the provision. See e.g. Will v. Michigan Dept. Of State Police, 491 U.S. at 71. Therefore, the § 1983 claims against the State Liquor Authority, should be dismissed. This Eleventh Amendment also applies to suits against State officials in their "official capacity", regardless of the nature of the relief sought. Will v. Michigan Dept. Of State Police ,
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supra; Pennhurst State School & Hospital v. Halderman, 465 U.S. at 102; Cory v. White, 457 U.S. at 91 ; Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir. 1996). To the extent that, Investigator Frank Englander, a state official, is sued in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state. Yin Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). Accordingly, the claims against Investigator Englander in his official capacity must be dismissed. Ippolito v. Meisel, 958 F.Supp. 155 (S.D.N.Y. 1997).
Accordingly, the § 1983 claims against the State Liquor Authority and the claims against Investigator Frank Englander in his official capacity are barred by the Eleventh Amendment and must be dismissed.
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POINT II YOUNGER ABSTENTION BARS PLAINTIFF’S CLAIM FOR RELIEF AS AGAINST THE STATE DEFENDANTS
Abstention principles enunciated in Younger v. Harris, 401 U.S. 37, 45 (1971), also require dismissal of plaintiff’s claim for relief against the State defendants. The United States Supreme Court has held Younger abstention is appropriate only if: (1) there are ongoing state judicial proceedings; (2) the state proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions. See Mateo v. Phillips, 361 F.Supp.2d 328, 330 (S.D.N.Y. 2005) quoting, Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); see also Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178, 182 (2d Cir.), cert denied, 502 U.S. 866 (1991).
For Younger abstention purposes a state court action is considered “ongoing” through the completion of the state appeals process, even if the federal plaintiff has failed to exercise state appellate rights. Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975)reh’g denied 421 U.S. 971 (1975)(“a necessary element of Younger is that a party . . . must exhaust his state appellate remedies before seeking relief in the District Court”); see also Neustein v. Orbach, 732 F. Supp. at 341 (“although generally there is no requirement that a plaintiff exhaust state remedies before commencing a § 1983 action, Younger does impose one . . .”).
The first prerequisite for abstention -- an ongoing state court proceeding -- has been satisfied in this case. In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., (Dayton Christian Schools), 477 U.S. 619, 627 (1986), the United States Supreme Court, “applied the [abstention doctrine of Younger v. Harris] to state administrative proceedings in which important
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state interests are vindicated, so long as in the course of those proceedings the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim.” Id.; see also University Club and the Union League Club v. City of New York, 842 F.2d 37,40 (2d Cir. 1988)(quoting Dayton Christian Schools).
For Younger purposes an administrative proceeding is considered ongoing where, “the administrative agency has filed formal charges against an individual and has not yet concluded the adjudication of the charges, when the target of the investigation has brought suit in federal district court to halt the administrative actions because of alleged infringement of constitutional rights.” University Club and the Union League, 842 F.2d at 40. Here, plaintiff, Stern, has commenced this federal action against the State defendants prior to the SLA, “completing the hearings on the charges challenged in this matter, or imposing any sanctions or penalties, on those charges, accordingly, an ongoing state proceeding exists.” Id.
The second prong of Younger -- the substantial state interest -- necessary to implicate the abstention doctrine is also present. Indeed the proper enforcement of laws concerning the sale and distribution of alcoholic beverages to state citizens is a sufficiently important state interest to justify Younger abstention. Indeed states have a compelling interest to enforce their rules and regulations. Indeed, the Supreme Court recognized the significant state interest “in protecting ‘the authority of the [state’s] judicial system, so that its orders and judgments are not rendered nugatory.’” See generally, Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12-13(1987).
Third, plaintiff has, or will have, the opportunity to litigate the alleged federal claims that form the basis of her request for relief in state court. Indeed, the obligation and competence of state courts to decide federal questions is well-settled. “When a litigant has not attempted to present
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federal claims in related state court proceedings, a federal court should assume that state procedures will afford an adequate remedy. . . ." Pennzoil Co. v. Texaco, Inc., 481 U.S. at 1. The Second Circuit has held that, “constitutional issues . . . may be decided in an Article 78 proceeding pursuant to the New York Civil Practice Rules and Law. . . . New York case law abundantly supports the conclusion that constitutional claims arising from the application of a statue be raised in an Article 78 petition.” University Club and the Union League Club 842 F.2d at 40-41. Moreover, a constitutional challenge does not have to be raised before the administrative tribunal, subsequent state court judicial review of the administrative proceeding is sufficient for Younger purposes. Id, quoting, Dayton Christian Schools, 477 U.S. at 629. Accordingly, in this case, it is sufficient that plaintiff’s constitutional claims may be raised in an Article 78 judicial review at the conclusion of the of the administrative -- SLA-- proceedings. See NY ABC Law § 121 .
The abstention doctrine enunciated in “Younger v. Harris contemplates the outright dismissal of [this] federal suit, and the presentation of all claims, both state and federal, to the state courts.” Gibson v. Berryhill, 411 U.S. 564, 577 (1973).
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POINT III INVESTIGATOR FRANK ENGLANDER IS ENTITLED TO QUALIFIED IMMUNITY “The doctrine of qualified immunity attempts to balance the strong policy of encouraging the vindication of federal civil rights by compensating individuals when those rights are violated, with the equally salutary policy of attracting capable public officials and giving them the scope to exercise vigorously the duties with which they are charged by relieving them from the fear of being sued personally and thereby made subject to monetary liability.” Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir. 1995) (citations omitted). Under this doctrine, government officials performing discretionary functions are shielded from suit for civil damages if their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982); Zavaro v. Coughlin, 970 F.2d 1148, 1153 (2d Cir. 1992), or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights. See Anderson v. Creighton, 483 U.S. 635, 638-9, 107 S.Ct. 3034, 3038-39 (1987); Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994), cert. denied, 115 S.Ct. 721 (1995).” Martinez v. City of Schenectady, 115 F.3d 111, 114 (2d Cir. 1997)(quoting Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994)); see also Brown v. City of Oneonta, 106 F.3d 1125, 1130-31 (2d Cir. 1997). Three factors are to be considered in determining whether a right was clearly established at the time a defendant official acted: “(1) whether the right in question was defined with reasonable specificity; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under pre-existing law a reasonable defendant official would have understood that his or her acts were unlawful.” Jermosen
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v. Smith, 945 F.2d 547, 550 (2d Cir. 1991). Even where a defendant’s actions violated clearly established rights, he can still
assert qualified immunity if he can show that his actions were objectively reasonable, i.e., “that ‘reasonable persons in his position would not have understood that their conduct was within the scope of the established prohibition.’” Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir. 1996) (citing In Re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996)).
Investigator Englander did not violate a clearly established right of which a reasonable defendant official would have known. Investigator Englander’s contact with the plaintiff and her establishment, Café La China, was not to discourage her from pursuing a protected activity, but to protect the public from the illegal sale and distribution of alcoholic beverages within the State of New York Investigator Englander did not commit any acts which can be construed, either legally or factually, to show that he intended and did deny plaintiff her constitutional rights. Indeed plaintiff cannot point to any evidence which would establish that Investigator Englander who on April 30, 2005, was conducting an investigation of Café La China pursuant to ABC Law § 106, would have known that in conducting this investigation he was violating plaintiff’s constitutional rights. Clearly, no constitutional deprivation exists here. Accordingly, Investigator Englander is entitled to qualified immunity.
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CONCLUSION
FOR ALL THE FOREGOING REASONS, STATE DEFENDANT’S MOTION TO DISMISS SHOULD BE GRANTED IN ITS ENTIRETY IN ALL RESPECTS
Dated: New York, New York February 16, 2006
Respectfully submitted,
ELIOT SPITZER Attorney General of the State of New York Attorney for State Defendants By:
/S/ ______________________________ LISA GHARTEY (LG-4601) Assistant Attorney General 120 Broadway, 24th Floor New York, New York 10271 (212) 416-8548/8610
LISA GHARTEY Assistant Attorney General of Counsel

 
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CLOSED, ECF
U.S. District Court United States District Court for the Southern District of New York (White Plains)
CIVIL DOCKET FOR CASE #: 7:05-cv-08574-SCR

Stern v. The Town of Mount Kisco et al Assigned to: Stephen C. Robinson Cause: 42:1983 Civil Rights Act
Plaintiff Angela Stern
V. Defendant The Town of Mount Kisco Defendant The Mount Kisco Police Department Defendant The State of New York Division of Alcoholic Beverage Control

Date Filed: 10/06/2005 Date Terminated: 03/29/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jonathan Svetkey Watters & Svetkey, LLP 21 E. 40th St. Suite 1800 New York, NY 10016 679-8999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mbiabah Lisa Ghartey Office of New York State Attorney General 120 Broadway, 24th Floor New York, NY 10271 212 16-8548 Fax: 212 416-6009 Email: Lisa.Ghartey@oag.state.ny.us ATTORNEY TO BE NOTICED

Date Filed 10/06/2005

#

Docket Text

1 COMPLAINT against The Town of Mount Kisco, The Mount Kisco Police Department, The State of New York Division of Alcoholic Beverage Control. (Filing Fee $ 250.00, Receipt Number 557333). Document filed by Angela Stern.(dcr, ) (Entered: 10/07/2005)

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10/06/2005 10/06/2005 10/06/2005 10/07/2005 10/17/2005 10/17/2005 11/04/2005
11/04/2005 11/10/2005
11/23/2005
12/14/2005 12/14/2005

SUMMONS ISSUED as to The Town of Mount Kisco, The Mount Kisco Police Department, The State of New York Division of Alcoholic Beverage Control. (dcr, ) (Entered: 10/07/2005)
CASE REFERRED TO Judge Judge McMahon as possibly Similar to 7:99cv10053. (dcr, ) (Entered: 10/07/2005)
Case Designated ECF. (fk, ) (Entered: 10/19/2005)
2 CASE DECLINED AS NOT SIMILAR. Case referred as similar to 7:99cv10053 and declined by Judge Colleen McMahon and returned to wheel for assignment.... This is not a related case under the related case rule. I am not Mrs. Stern's personal judge. (fk, ) (Entered: 10/19/2005)
3 NOTICE OF CASE ASSIGNMENT to Judge Stephen C. Robinson. Judge Unassigned no longer assigned to the case. (fk, ) (Entered: 10/19/2005)
Magistrate Judge Lisa Margaret Smith is so designated. (fk, ) (Entered: 10/19/2005)
4 ENDORSED LETTER addressed to Judge Stephen C. Robinson from John Carmody dated 11/2/05 re: Granting request that the time for the defendants to appear, answer or to make any motion w/ respect to the S&C in this action shall be extended up to and including 11/30/05 to allow us time to investigate the claims and to provide an appropriate response thereto. (Signed by Judge Stephen C. Robinson on 11/3/05) "The Clerk's Office Has Mailed Copies".(ae, ) (Entered: 11/07/2005)
Set Answer Due Date purs. to 4 Endorsed Letter, as to The Town of Mount Kisco answer due on 11/30/2005; The Mount Kisco Police Department answer due on 11/30/2005. (ae, ) (Entered: 11/07/2005)
5 ENDORSED LETTER addressed to Judge Stephen C. Robinson from Lisa Ghartey dated 11/9/05 re: State Defendant, the New York State Liquor Authority, requests a three week extension to and including 11/30/05, in which to respond to the Complaint., The State of New York Division of Alcoholic Beverage Control answer due 11/30/2005. (Signed by Judge Stephen C. Robinson on 11/10/05) "The Clerk's Office Has Mailed Copies".(ae, ) (Entered: 11/15/2005)
6 ENDORSED LETTER addressed to Judge Stephen C. Robinson from John Carmody dated November 17, 2005 re: request that time to respond to the amended complaint be extended until December 31, 2005... Endorsement: The scheduling order is due January 16, 2006. The 12/30 conference is adjourned. So Ordered. (Signed by Judge Stephen C. Robinson on 11/21/2005) (tb, ) (Entered: 11/28/2005)
7 AMENDED COMPLAINT amending 1 Complaint against The Town of Mount Kisco, The Mount Kisco Police Department, The State of New York Division of Alcoholic Beverage Control.Document filed by Angela Stern. Related document: 1 Complaint filed by Angela Stern,.(ae, ) (Entered: 12/21/2005)
AMENDED SUMMONS ISSUED as to The Town of Mount Kisco, The Mount Kisco Police Department, The State of New York Division of Alcoholic

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01/06/2006 01/31/2006 02/16/2006 02/16/2006 03/08/2006 06/09/2006 09/22/2006
10/02/2006 03/29/2007 08/01/2007

Beverage Control. (ae, ) (Entered: 12/21/2005)
8 ENDORSED LETTER addressed to Judge Stephen C. Robinson from Jonathan Svetkey dated 1/4/06 re: Request for an extension of time to file scheduling order to 2/24/06. Endorsement: So Ordered. (Signed by Judge Stephen C. Robinson on 1/4/06) (fk, ) (Entered: 01/06/2006)
9 ANSWER to Complaint. Document filed by The Mount Kisco Police Department.(Santangelo, Michael) (Entered: 01/31/2006)
10 MOTION to Dismiss Plaintiff's Complaint. Document filed by The State of New York Division of Alcoholic Beverage Control. Responses due by 3/9/2006 (Attachments: # 1 Affidavit Notice of Motion to Dismiss# 2 Affidavit Declaration of Lisa Ghartey# 3 Exhibit Ghartey Dec ExA# 4 Exhibit Ghartey Dec ExB)(Ghartey, Mbiabah) (Entered: 02/16/2006)
11 MEMORANDUM OF LAW in Support re: 10 MOTION to Dismiss Plaintiff's Complaint.. Document filed by The State of New York Division of Alcoholic Beverage Control. (Ghartey, Mbiabah) (Entered: 02/16/2006)
12 MOTION to Withdraw against State Defendants New York Division of Alcoholic Beverage Control, Investigator Frank Englander and "other individual employees of the State of New York Division of Alcoholic Beverage Control. Document filed by The State of New York Division of Alcoholic Beverage Control. (Ghartey, Mbiabah) (Entered: 03/08/2006)
Minute Entry for proceedings held before Judge Stephen C. Robinson : Initial Pretrial Conference held on 6/9/2006. Judge's Decision: Next PTC set for Sine Die. No Court Reporter. Submitted By: Brandon Skolnik, Courtroom Deputy. (dcr, ) (Entered: 06/15/2006)
13 SCHEDULING ORDER: Amended Pleadings due by 10/6/2006. Joinder of Parties due by 10/6/2006. Deposition due by 1/5/2007. Discovery due by 3/3/2007. Interrogatories are to be served by all counsel no later than 10/6/06 and responses to such interrogatories shall be served within thirty days thereafater. Any further interrogatories, including expert interrogatories to be served no later than 2/5/2007, Request to admit, if any to be served no later than 2/5/2007. So Ordered. (Signed by Judge Stephen C. Robinson on 9/22/2006) The Clerk's Office Has Mailed Copies.(cg, ) (Entered: 09/25/2006)
14 ENDORSED LETTER addressed to Judge Stephen C. Robinson from James Randazzo dated 9/28/06 re: Request for an adjournment of conference date to 1/12/07 at 10:00 am. Endorsement: Application Granted. (Signed by Judge Stephen C. Robinson on 9/29/06) (fk, ) (Entered: 10/03/2006)
15 NOTICE of Voluntary Dismissal pursuant to Rule 41(a)(1) of the F.R.C.P....So Ordered. (Signed by Judge Stephen C. Robinson on 3/28/07) (fk) (Entered: 04/02/2007)
16 STIPULATION OF DISCONTINUANCE with prejudice... without costs. (Signed by Judge Stephen C. Robinson on 08/01/2007) (jma) (Entered: 08/03/2007)

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