UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-------------------------------------------------------------x 

ANTHONY CRIVELLO RUSSO, 

 Plaintiff, 

 -againstJAN B. GOLDING, POLICE OFFICER, 

JOHN DIMILIA, SEARGEANT, DARREL 

ALGAREN, POLICE OFFICER, 

MICHAEL GUEDES, POLICE OFFICER, 

JOSEPH VOUSDEN, TROOPER, and 

KEVEN M. CHORZEMPA, POLICE 

OFFICER, 

 Defendants. 

-------------------------------------------------------------x 

 

Docket No. 

07 Civ. 5795 

(KMK) (MDF) 

MEMORANDUM OF LAW IN SUPPORT OF 

DEFENDANTS’ MOTION TO DISMISS

MIRANDA SOKOLOFF SAMBURSKY 

SLONE VERVENIOTIS LLP 

 Attorneys for Defendants 

JOHN DIMILIA, DARREL ALGAREN, and 

MICHAEL GUEDES 

 240 Mineola Boulevard 

 Mineola, NY 11501 

 (516) 741-7676 

 Our File No. 05-233 

OF COUNSEL 

 Steven C. Stern (SS 2573) 

 Jennifer E. Sherven (JS 4195) 

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TABLE OF CONTENTS

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

PROCEDURAL HISTORY............................................................................................................ 2

STATEMENT OF FACTS ............................................................................................................. 3 

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

POINT I 

 PLAINTIFF’S CLAIM FOR FALSE ARREST, MALICIOUS PROSECUTION AND 

 OTHER CLAIMS THAT ATTACK THE VALIDITY OF HIS CONVICTION 

 MUST BE DISMISSED. .......................................................................................................... 5 

POINT II 

 PLAINTIFF’S STATE LAW CLAIMS MUST BE DISMISSED 

 BASED UPON THE EXPIRATION OF THE STATUTE OF LIMITATIONS 

 AND PLAINTIFF’S FAILURE TO FILE A NOTICE OF CLAIM ......................................... 8 

CONCLUSION............................................................................................................................. 10 

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TABLE OF AUTHORITIES

Cases

Abbatiello v. Monsanto Co., --- F.Supp.2d ----, 2007 WL 3274771 (S.D.N.Y., November 5, 

2007) ........................................................................................................................................... 9 

Baker v. Dorfman, 239 F.3d 415 (2d Cir. 2000)............................................................................. 8 

Channer v. Mitchell, 43 F.3d 786 (2d Cir. 1994) ........................................................................... 6 

Duamutef v. Morris, 956 F. Supp. 1112 (S.D.N.Y. 1997).......................................................... 6, 7 

Hardy v. NYC Health & Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir. 1999)................................. 8 

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)...................................................................... 6, 7 

Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003) .................................................................... 6 

Labensky v. County of Nassau, 6 F.Supp.2d 161, 175 (E.D.N.Y. 1998), aff’d 173 F.3d 845 (2d 

Cir. 1999) .................................................................................................................................... 5 

Mozzochi v. Borden, 959 F.2d 1174, 1179-80 (2d Cir. 1992) ....................................................... 7 

Weyant v. Okst, 101 F.3d 845, 855 (2d Cir. 1996) ........................................................................ 6 

Statutes 

42 U.S.C. § 1983................................................................................................................. 1, 6, 7, 8 

Fed. R. Civ. P. 8.............................................................................................................................. 2 

Fed. R. Civ. P. 12(b)(6)............................................................................................................... 1, 6 

Gen. M. Law §50-e .................................................................................................................... 8, 9 

Gen. M. Law §50-i.......................................................................................................................... 8 

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PRELIMINARY STATEMENT

Defendants John Dimilia, Darrel Algaren and Michael Guedes (hereinafter the “Wallkill 

Defendants”) move herein to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), all of plaintiff’s 

claims against them save plaintiff’s claim sounding in excessive force pursuant to 42 U.S.C. § 

1983. All of plaintiff’s claims arising out of his December 24, 2004 arrest and prosecution are 

barred as a matter of law by his criminal conviction and therefore, fail to state a cause of action 

against the Wallkill Defendants. Plaintiff’s claims under state law are barred by the statute of 

limitations and his failure to file a notice of claim. The balance of plaintiff’s claims are 

incomprehensible and fail to set forth any cognizable claim at law. 

Plaintiff’s amended complaint is an unwieldy convoluted and rambling hodgepodge of 

allegations seemingly purporting to allege civil rights violations and state law claims arising 

from his December 24, 2004 arrest. (Exh. A). The most liberal construction of the amended 

complaint reveals allegations sounding in excessive force, false arrest/false imprisonment, 

malicious prosecution, Equal Protection, Due Process, First Amendment, illegal 

searches/seizures, concealment of potentially exculpatory evidence, trespass, gross negligence, 

excessive bail, assault, intentional infliction of emotional distress, fraud by concealment, and 

habeas corpus. (Exh. A). 

Based on the governing Second Circuit law, plaintiff’s claims for false arrest and 

malicious prosecution should be dismissed in their entirety. Plaintiff was tried after a grand jury 

indictment, was convicted at trial, and is now serving time relating to the incident at issue in this 

case. Likewise, plaintiff cannot sustain claims relating to his arrest, the seizure of evidence and 

search of his home where, as here, he was convicted and the conviction has not been invalidated. 

Plaintiff challenges the validity of his conviction and therefore, claims sounding in Equal 

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Protection, Due Process, and the First Amendment fail to state a claim. As do his allegations 

regarding “involuntary servitude” and “trespass” and habeas corpus in the context of this case. 

The Wallkill Defendants are entitled to dismissal of all of these claims because plaintiff’s 

conviction establishes probable cause for his arrest and prosecution and thus precludes him from 

asserting them, in addition to the fact that plaintiff’s state law claims are barred by the applicable 

statute of limitations and his failure to file a notice of claim. 

For these reasons, as set forth more fully below, the Wallkill Defendants request that this 

Court dismiss all of plaintiff’s claims except for his claim asserting excessive force under federal 

law. 

PROCEDURAL HISTORY

Plaintiff commenced the within action on or about June 19, 2007. The complaint was so 

convoluted, rambling and indecipherable that defendants moved on July 17, 2007 for a more 

definite statement pursuant to Fed. R. Civ. P. 8. On August 24, 2007, the Court directed plaintiff 

to amend the complaint and, on or about September 27, 2007, plaintiff served the amended 

complaint that is the subject of this motion. (Exh. A). While the Wallkill Defendants move 

herein to dismiss the substantive allegations, they nevertheless contend that the amended 

complaint – like the original complaint – is not a short and plain statement of the claim as 

required by Fed. R. Civ. P. 8. 

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STATEMENT OF FACTS1

Plaintiff was arrested on December 24, 2004. (Exh. A, ¶1). Among other charges, 

plaintiff was charged with threatening to shoot a store clerk. (Exh. A, ¶41 (“The alleged 

accusation that began this whole event says, Anthony Crivello Russo is drunk and threatening to 

shoot a store clerk.”)). At the time of plaintiff’s arrest in front of his home, plaintiff was in 

possession of a rifle. (Exh. A, ¶28 (“It is not a crime to have a rifle in a car.”)). 

On January 12, 2005, plaintiff was indicted by the grand jury on charges stemming from 

his December 24, 2004 arrest. (Exh. A, ¶1). He was later convicted at trial for charges arising 

out of his December 24, 2004 arrest. (Exh. A, Relief Request ¶10). On October 6, 2005, plaintiff 

was sentenced and currently is serving his sentence at the Mid-State Correctional Facility in 

Marcy, New York. (Exh. A, ¶¶ 1, 12). 

In this action, plaintiff asserts, “This court must exercise supervisory authority over lower 

court and require dismissal [sic] the action in lower court for lack of a cause of action” and 

dismiss the “charging instrument” or criminal “complaint.” (Exh. A, ¶19). Plaintiff further 

asserts that the defendants executed “a warrantless and false arrest” and “had no probable cause” 

to arrest him because “the hearsay testimony of the store owner and circumstantial evidence of 

the store clerk at the time is not sufficient” to establish probable cause. (Exh. A, ¶¶ 22, 26, 31). 

Plaintiff additionally asserts, “This court must dismiss this matter on the grounds [sic] the arrest 

search and seizure and false imprisonment are unlawful due to no probable cause or exigent 

circumstances.” (Exh. A, ¶32). Plaintiff requests that this Court review the jury’s conviction of 

plaintiff, and essentially the entire criminal proceeding, including plaintiff’s claim that the 

 

1

 These are the salient facts related to this motion that can be gleaned from the allegations of the amended complaint 

itself. 

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defendants’ search was illegal because, it was “vindictive prosecution and must be dismissed.” 

(Exh. A, ¶26, 41). 

Plaintiff alleges that the “charging instrument” or criminal “complaint” was improper 

because it was brought by “The People (of New York)” and he is “one of the people of New 

York” and “One may not do an act to himself.” (Exh. A, ¶19). He further alleges that the basis 

for the criminal complaint was “a police officer’s perjury” and denies that the statements in the 

complaint were his voluntary statements because he did not waive his Miranda rights at any time. 

(Exh. A, ¶¶22, 23, 24). He argues this “is at best gross negligence and equivalent to intentional 

false statements, perjury, and therefore the [criminal] complaint fails to state a cause of action ... 

the indictment is taint by false statements.” (Exh. A, ¶23). 

Plaintiff further claims, “All evidence found in Anthony Crivello Russo’s automobile and 

house are fruit of illegal search and seizure and the court must suppress this evidence” because 

the defendants entered his “property without a warrant” and there were “no exigent 

circumstances.” (Exh. A, ¶¶26, 27, 28). Plaintiff alleges that evidence, such as medical records, 

the police report and police car videotapes, were either withheld at trial or altered, claiming that 

this evidence was likely to have been exculpatory. (Exh. A, ¶¶50, 72). Plaintiff asserts that the 

“Prosecutor’s suppression of evidence which would tend to exculpate defendant or reduce 

sentence violates due process.” (Exh. A, ¶50). 

Plaintiff alleges that the discovery that was apparently exchanged in the criminal matter 

under “Voluntary Disclosure Form Indictment #2005-055” constituted “deception” in so far as 

the proceeding was “under false pretenses” because plaintiff did not give consent to the 

defendants to follow him to his home, enter his property, arrest him, search his property, trespass 

or to test his blood. (Exh. A, ¶37). 

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Plaintiff appears to allege a First Amendment claim arising either from the alleged 

targeting of certain documents in the search warrants which “shows the ulterior motive behind 

this prosecution being to silence this speech,” or from plaintiff’s cursing at the police and 

warning them that they were trespassing. (Exh. A, ¶¶43, 44). Plaintiff appears to allege Equal 

Protection and/or Due Process claims in that plaintiff “is not receiving treatment in a 

constitutional manner as others do in a similar situation involving police” because it was “a false 

arrest” followed by “false charges” and items were taken from his home “without a warrant.” 

(Exh. A, ¶74). 

 Plaintiff also alleges that the “excessive bail” that was set in the criminal matter was done 

so “under coercion” and “is in violation of constitutional common law principles against 

involuntary servitude.” (Exh. A, ¶¶46, 81). Plaintiff also alleges a claim for “inflicting mental 

and emotional distress.” (Exh. A, ¶79). 

Plaintiff was represented by an attorney at trial and was involved in his own criminal 

defense. (Exh. A, ¶1). Notably, plaintiff does not allege that his conviction was overturned or 

otherwise invalidated, nor does plaintiff allege that he timely filed a Notice of Claim concerning 

any of the state law claims. 

ARGUMENT

POINT I

PLAINTIFF’S CLAIM FOR FALSE ARREST, MALICIOUS 

PROSECUTION AND OTHER CLAIMS THAT ATTACK THE 

VALIDITY OF HIS CONVICTION MUST BE DISMISSED.

In order to state a claim either for false arrest or malicious prosecution, a plaintiff must 

demonstrate, inter alia, that there was a confinement that was not privileged. See Labensky v. 

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County of Nassau, 6 F.Supp.2d 161, 175 (E.D.N.Y. 1998), aff’d 173 F.3d 845 (2d Cir. 1999). A 

confinement is privileged when there is probable cause for an arrest. See Jocks v. Tavernier, 316 

F.3d 128, 135 (2d Cir. 2003). A conviction establishes the existence of probable cause as a 

matter of law. See Weyant v. Okst, 101 F.3d 845, 855 (2d Cir. 1996) (conviction on underlying 

charges is normally conclusive evidence of probable cause, which bars a claim for false arrest). 

Thus, 

 in order to recover damages for an allegedly unconstitutional 

conviction or imprisonment, or for other harm caused by actions 

whose unlawfulness would render a conviction or sentence invalid, 

a § 1983 plaintiff must prove that the conviction or sentence has 

been reversed on direct appeal, expunged by executive order, 

declared invalid by a state tribunal authorized to make such 

determination, or called into question by a federal court’s issuance 

of a writ of habeas corpus. 

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see also Channer v. Mitchell, 43 F.3d 786 (2d 

Cir. 1994) (affirming Heck-based dismissal, pursuant to Fed. R. Civ. P. 12(b)(6), of pro se

plaintiff’s § 1983 claims because plaintiff failed to establish that his conviction had been 

reversed); Duamutef v. Morris, 956 F. Supp. 1112 (S.D.N.Y. 1997) (dismissing pro se plaintiff’s 

§1983 claims of malicious prosecution, false arrest, perjury, retaliation against First Amendment 

rights, and denial of Equal Protection under Heck because underlying criminal conviction was 

not invalidated). 

 The Supreme Court in Heck affirmed the dismissal of the § 1983 case because plaintiff’s 

underlying criminal conviction had not been invalidated. See Heck, 512 U.S at 489. Moreover, 

“[e]ven a prisoner who has fully exhausted available state remedies has no cause of action under 

§ 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or 

impugned by the grant of a writ of habeas corpus.” Id at 489. At bar, the plaintiff’s conviction 

has not been so reversed, invalidated, expunged or impugned in any way. 

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 Although plaintiff attempts to frame his complaint against the defendants as a § 1983 

action, the essence of the lawsuit challenges the legality of his conviction. Plaintiff was 

convicted following a grand jury indictment. He goes so far as to ask this Court to overturn his 

conviction and issue a writ habeas corpus releasing him from prison. There is certainly no 

jurisdiction to do so in this civil proceeding. 

 Plaintiff’s failure to demonstrate that his conviction has been reversed or otherwise 

invalidated bars all claims arising out of his arrest and prosecution. Therefore, he cannot in this 

forum pursue claims for false arrest and malicious prosecution, as well as his claims sounding in 

equal protection, due process, and those relating to the search, seizure and alleged concealment 

of allegedly “exculpatory” evidence. 

 Plaintiff asserts a due process claim, ostensibly based upon the police “execut[ing] a false 

arrest, “bring[ing] false charges,” taking items from his home without a warrant, and falsely 

imprisoning him. These allegations all sound in false arrest, and attack the validity of his 

conviction. (Exh. A, ¶74j, et seq.). Likewise, his Equal Protection allegations assert that, on the 

date of his arrest he was “not receiving treatment in a constitutional manner as others do in a 

similar situation involving police,” and asserts that they arrested him without probable cause. 

(Exh. A, ¶74a, et seq.). Even plaintiff’s claim sounding in retaliation for exercise of his First 

Amendment rights must also be dismissed because the criminal prosecution resulted in plaintiff’s 

conviction. See Duamutef v. Morris, 956 F. Supp. at 1116 (Heck based dismissal of First 

Amendment claim); see also Mozzochi v. Borden, 959 F.2d 1174, 1179-80 (2d Cir. 1992). 

Plaintiff asserts that the police officers had an “ulterior motive behind this prosecution being to 

silence this speech.” (Exh. A, ¶43). Because plaintiff’s First Amendment claim challenges the 

validity of his conviction, it must be dismissed. 

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 Accordingly, plaintiff cannot successfully prosecute these claims without undermining 

the validity of his conviction. Under these circumstances, a finding by this Court that plaintiff 

has a viable claim for false arrest or malicious prosecution under § 1983 would amount to an 

impermissible collateral attack on plaintiff’s criminal conviction. Thus, all of plaintiff’s claims 

that attack the validity of his conviction in the underlying criminal case should be dismissed as a 

matter of law. Each of plaintiff’s allegations, except his claim of excessive force on the date of 

his arrest, attack the validity of his conviction and should be dismissed. 

POINT II 

PLAINTIFF’S STATE LAW CLAIMS MUST BE DISMISSED 

BASED UPON THE EXPIRATION OF THE STATUTE OF LIMITATIONS 

AND PLAINTIFF’S FAILURE TO FILE A NOTICE OF CLAIM

In addition to plaintiff’s federal claims set forth above, plaintiff asserts claims sounding 

in state law for trespass, gross negligence, assault, intentional infliction of emotional distress, 

and “fraud by concealment.” These claims are all barred by the statute of limitations and 

plaintiff’s failure to file a notice of claim. 

A plaintiff asserting state law tort claims against a municipal entity or its employees 

acting in the scope of employment must (i) file a notice of claim within ninety days after the 

incident giving rise to the claim, and (ii) commence the action within one year and ninety days 

from the date on which the cause of action accrues. See Gen. M. Law §§50-e and 50-i; see also 

Baker v. Dorfman, 239 F.3d 415 (2d Cir. 2000). These statutory provisions are strictly construed 

by the courts. See Hardy v. NYC Health & Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir. 1999). 

Plaintiff never filed a notice of claim relating to his allegations in this case. As such, all of his 

state law claims must be dismissed on this ground alone. 

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More significantly, he failed to file this case within the one year and ninety day statute of 

limitations set forth in Gen. Mun. Law § 50-e. Plaintiff asserts in the complaint that his claims 

all arose from his arrest on December 24, 2004. (Exh. A, ¶1). Even the most recent date 

referenced in the complaint is October 6, 2005, the date of his criminal sentencing. (Exh. A, ¶1). 

The plaintiff’s allegations all arise from his arrest on December 24, 2004. The statute of 

limitations on the state claims arising from this incident therefore expired on March 24, 2006. 

Since this action was filed on June 19, 2007, the statute of limitations has long since expired. 

Even assuming the most recent date referenced in the amended complaint, plaintiff’s October 6, 

2005 sentencing, the statute of limitations would have expired on January 4, 2007. Thus, any 

claim even arising from his sentencing date would have already expired before he filed the 

complaint in this case. Because plaintiff did not commence this action until June 19, 2007, his 

state law claims are time-barred. 

Nor are plaintiff’s state law claims viable on the merits. Significantly, plaintiff’s state 

claims for false arrest and malicious prosecution are barred by the same principles set forth in 

Point I, infra. Additionally, plaintiff alleges claims for intentional infliction of emotional 

distress, which is subject to the high standard of proof that defendants’ actions amounted to 

“extreme and outrageous conduct,” Abbatiello v. Monsanto Co., --- F.Supp.2d ----, 2007 WL 

3274771 (S.D.N.Y., November 5, 2007), and “gross” negligence, which plaintiff cannot show in 

this instance. 

As plaintiff’s state law claims are time-barred, and he failed to serve a notice of claim, his 

claims sounding in state law causes of action should be dismissed in their entirety. 

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CONCLUSION

 For the reasons set forth herein, defendants John Dimilia, Darrel Algaren, And Michael 

Guedes respectfully submit that all of plaintiff’s claims, except for his claim for excessive force 

under federal law, should be dismissed in their entirety, together with such other and different 

relief as this Court deems proper and just. 

Dated: Mineola, New York 

 November 15, 2007 

 

 

 

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