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United States District Court Eastern District of New York Case 2:06-cv-04746-JFB-GRB Document 624 Filed 07/26/13 Page 1 of 35 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _____________________ No 06-CV-4746 (JFB)(ETB) _____________________ ANTHONY CONTE, Plaintiff, VERSUS COUNTY OF NASSAU, ET AL., Defendants. ___________________ MEMORANDUM AND ORDER July 26, 2013 ___________________ Joseph F. Bianco, District Judge: review of the record and submissions of the parties, the Court issued a Memorandum and Pro se plaintiff Anthony Conte Order dated September 30, 2010, granting in (“plaintiff” or “Conte”) filed the instant part and denying in part defendants’ motions action against the County of Nassau (“the for summary judgment and denying County”), Robert Emmons (“Emmons”), plaintiff’s motion for summary judgment in Philip Wasilausky (“Wasilausky”), William its entirety. Pursuant to that Order, the Wallace (“Wallace”), Christina Sardo following claims survived summary (“Sardo”), Michael Falzarano (“Falzarano”) judgment: (1) plaintiff’s false arrest claim (collectively, the “County defendants”), against Wasilausky; (2) plaintiff’s abuse of Tefta Shaska (“Shaska”), and Larry Guerra process claim against all of the County (“Guerra”) (collectively, “defendants”), defendants except Sardo; (3) plaintiff’s alleging federal claims under 42 U.S.C. Monell claim against the County; and (4) § 1983 for false arrest, malicious plaintiff’s tortious interference with contract prosecution, abuse of process, violation of claim against all of the County defendants the First Amendment, conspiracy, and except Sardo and Shaska. Monell liability against the County. Plaintiff also asserted various state-law claims. The matter was then tried before a jury, which found that (1) Wasilausky subjected Following discovery, both plaintiff and plaintiff to an unlawful arrest; (2) none of defendants filed motions for summary the County defendants maliciously abused judgment with the Court. After a detailed process in connection with plaintiff’s arrest 1 Case 2:06-cv-04746-JFB-GRB Document 624 Filed 07/26/13 Page 2 of 35 PageID #: <pageID> on a bad check charge or in connection with precludes plaintiff’s cause of action entirely. the issuance of Grand Jury subpoenas; and As to the tortious interference claim, (3) Emmons, Wallace, and Falzarano Emmons, Falzarano, and Wallace argue that tortiously interfered with plaintiff’s they are entitled to judgment as a matter of contractual relationships.1 With respect to law because there is no evidence of conduct damages, the jury awarded $500.00 in amounting to tortious interference with compensatory damages and $26,000.00 in contract that occurred within the applicable punitive damages against Wasilausky in limitations period. Specifically, Wallace connection with plaintiff’s false arrest claim. argues that the only alleged tortious conduct As to plaintiff’s tortious interference with that occurred within the limitations period contract claim, the jury awarded plaintiff are his communications with Joseph Giaimo $3,500.00 in compensatory damages for (“Giaimo”) in the summer/early fall of 2005, tortious acts which took place before June 1, but that those conversations are not the basis 2005, and $700,000.00 in compensatory of a tortious interference with contract claim damages for tortious acts which took place because, inter alia, (1) there is no evidence on or after June 1, 2005. The jury also that, in speaking to Giaimo, Wallace awarded punitive damages in connection intentionally induced route distributors to with plaintiff’s tortious interference with breach their contracts with plaintiff, and (2) contract claim: $60,000.00 against Emmons; the damage plaintiff testified to at trial is $443,000.00 against Wallace; and generalized reputational injury that sounds $175,000.00 against Falzarano. in defamation, rather than in tortious interference with contract. Moreover, Presently before the Court are post-trial Emmons and Falzarano argue that there is motions brought by defendants Wasilausky, no evidence of any actions by them or any Wallace, Emmons, and Falzarano. These injury sustained prior to the expiration of the defendants move for judgment as a matter of statute of limitations. law pursuant to Federal Rule of Civil Procedure 50(b) on the basis that plaintiff The County defendants also move for a has failed to establish the required elements new trial under Federal Rule of Civil of the false arrest and tortious interference Procedure 59 on the grounds that (1) the with contract causes of action asserted jury’s verdict finding tortious interference against them. As to the false arrest, with contract is against the weight of the Wasilausky claims that he is entitled to evidence; (2) the jury’s verdict, to the extent judgment as a matter of law on the following it is based upon defamation against grounds: (1) he had no personal involvement representatives of a District Attorney’s with plaintiff’s arrest; (2) his actions are office during their investigation of plaintiff, immune from suit (he is entitled to absolute is erroneous and a miscarriage of justice; (3) immunity for his actions surrounding the the jury’s verdict is inconsistent because the preparation and initiation of the prosecution, jury found for the defendants on plaintiff’s and he is entitled to qualified immunity for malicious abuse of process claim (the only his role in the investigation phase); and (3) cause of action that required a showing of the presumption of probable cause created malice), yet awarded punitive damages by the existence of a valid arrest warrant against the defendants in connection with plaintiff’s other claims; and (4) the damages 1 Plaintiff’s Monell claim was dismissed as a matter awarded by the jury finds no basis in the of law at trial. (See Tr. 913-16.) record. 2 Case 2:06-cv-04746-JFB-GRB Document 624 Filed 07/26/13 Page 3 of 35 PageID #: <pageID> Also before the Court is plaintiff’s also featured on the cover of the publication. motion for a new damages trial, made (Id. at 59.) Conte anticipated that, over time, pursuant to Rule 59 of the Federal Rules of his business would profit from advertising Civil Procedure. Plaintiff argues that, revenues. (Id. at 57.) because he was improperly denied the opportunity to present certain evidence of 1. Developing I Media and Attracting general damages to the jury, he is entitled to Advertisers a new trial on the issue of damages. To fund I Media initially, Conte took out For the reasons that follow, the County a second mortgage on his home and received defendants’ Rule 50(b) motion is granted in loans from his wife and her family. (Id. at its entirety – Wasilausky is entitled to 71.) Developing I Media required (1) judgment as a matter of law on plaintiff’s signing route distributors (who would false arrest claim and Emmons, Falzarano, purchase specific routes along which to and Wallace are entitled to judgment as a deliver I Media’s publication), and (2) matter of law on plaintiff’s tortious finding a printer to print the publication. (Id. interference with contract claim. at 69.) In May of 2003, Conte accepted a Accordingly, the County defendants’ Rule quote from Walden Printing in Walden, 59 motion for a new trial is denied as moot, New York. (Id. at 69-70.) Over the next two as is plaintiff’s motion for a new trial. months, Conte signed between 20 and 30 route distributors and collected content for I. BACKGROUND his publication. (Id. at 70.) When he called Walden Printing in the middle of June to A. Facts inform them of these developments, he learned that the company “had stopped Conte founded and created I Media, a printing and [that] they were going out of publishing and distribution company that business.” (Id.) Conte was forced to begin a circulated a free, colored, glossy-covered new search for a printer, which was time TV guide publication to households in given consuming. (Id. at 71.) Conte also engaged zip codes. (Tr. 55-57.) The first TV guide in discussions with Transcontinental publication that I Media released was called Printing, a company based out of Montreal, “TV Time Magazine.” (Id. at 58.) The first Canada. (Id. at 626-28.) The company never edition of TV Time Magazine was released entered into a contract with I Media (it for the period of November 12-27, 2004. merely supplied various quotations to (See Pl.’s Ex. 130.) During the course of Conte) (id. at 632-33, 650), nor did it print 2004 and 2005, I Media released any editions of TV Time Magazine (id. at approximately 15 or 16 different editions of the magazine. (Tr. 77.) advertising affiliates did not pay money to have ads for their products or services placed in TV Time Magazine. Instead, they paid I Media based on sales Each publication contained a centerfold of their products or services that were generated from shopper’s guide, which featured products ads that ran in the publication. (Id. at 244.) sold by I Media’s advertising affiliates. (Id. Specifically, an ad in the publication would direct a at 57-58.)2 At times, certain products were consumer to Conte’s website, where he or she could click on a link to a product or service of interest. The link would direct that consumer to the particular 2 Conte testified that the affiliates were ones I Media affiliate’s website, where he or she could purchase had contracted with in 2004. (Tr. 58.) These the product or service desired. (Id. at 250.) 3 Case 2:06-cv-04746-JFB-GRB Document 624 Filed 07/26/13 Page 4 of 35 PageID #: <pageID> 631).3 Conte eventually signed a contract contained a disclaimer indicating that with Quebecor World, a printing company because the business was new, its success located in Canada, on January 9, 2004.
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