Zarro v. Spitzer , 408 F. App'x 391 ( 2010 )

09-4349-cv
Zarro v. Spitzer
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 19th day of October, two thousand ten.
PRESENT:
JOSEPH M. McLAUGHLIN,
PETER W. HALL,
Circuit Judges
RICHARD M. BERMAN*
District Judge
__________________________________________
Francis A. Zarro Jr.,
Plaintiff-Appellant,
v. 09-4349-cv
Eliot Spitzer, Eric Dinallo, Town of Colonie Police Department, Scott Anderson, Rebecca Mullane,
Rhonda Lustman, Richard Friedman, John Segalla, Malcolm Taub, Keeler Motor Cars, Inc., Sandy
Keeler, Tom Tureen, Think About It Maine, Cornerstone Private Capital, Country Club Funding, A
Detective in the Police Department in the Town,
Defendants-Appellees,
*
Richard M. Berman of United States District Court for the Southern District of New
York, sitting by designation.
1
Lester Dier, Reese Lasher, Keith Vinson, Joel Portnoy, Ian Gazes, John Doe, A Detective in the
Police Department in the Town of Colonie, New York,
Defendants.
__________________________________________
Norman J. Voog; Law Offices of Norman J. Voog, L.L.C.;
Ridgefield, Connecticut, for Plaintiff-Appellant Francis A.
Zarro, Jr.
SUDARSANA SRINVASAN (Barbara D. Underwood, Solicitor
General, Nancy A. Spiegel, Senior Assistant Solicitor
General, and Frank Brady, Assistant Solicitor General of
Counsel on the brief) for Andrew M. Cuomo, Attorney
General of the State of New York, Albany, New York, for
Defendants-Appellees Eliot Spitzer, Eric Dinallo, Scott
Anderson, Rebecca Mullane, Rhonda Lustman, and Richard
Friedman.
DANA M. BONIEWSKI (Edwin J. Tobin, Jr. on the brief),
Maynard, O’Connor, Smith & Catalinotto, LLP, Albany, New
York, for Defendants-Appellees Town of Colonie Police
Department and John Doe, a Detective in the Police
Department in the Town of Colonie, New York.
MALCOLM S. TAUB (J. Scott Greer, Lewis & Greer, P.C.,
Poughkeepsie, New York on the brief), Malcolm S. Taub,
LLP, New York, New York, for Defendants-Appellees
Malcolm Taub and John Segalla.
MELISSA J. SMALLACOMBE (Thomas J. Mortati on the brief),
Burke, Scolamiero, Mortati & Hurd, LLP, Albany, New York,
for Defendants-Appellees Keeler Motor Car, Inc. and Sandy
Keeler.
WILLIAM A. HURST, Greenberg Traurig, LLP, Albany, New
York, for Defendants-Appellees Think About It Maine and
Thomas N. Tureen.
SHAWN T. NASH, Napierski, Vandenburgh & Napierski, LLP,
Albany, New York, for Defendants-Appellees Cornerstone
Private Capital, LLC and Country Club Funding, LLC.
Appeal from a judgment of the United States District Court for the Northern District of New
York (Sharpe, J.). UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED,
2
AND DECREED that the judgment of the district court be AFFIRMED.
Plaintiff-Appellant raises numerous arguments on appeal from the district court’s September
25, 2009 order dismissing his claims under Fed. R. Civ. P. 12(b)(6) against, inter alia, the former
New York state attorney general, several current and former assistant attorneys general, the Town
of Colonie, New York Police Department, Think About It Maine, and Country Club Funding. We
assume the parties’ familiarity with the facts, procedural history, and specific issues on appeal.1
After reviewing the issues on appeal and the record of proceedings below, we affirm for
substantially the same reasons articulated by the district court in its thoughtful and well-reasoned
order and opinion.2
1
Following briefing, Zarro filed a motion with this Court seeking to certify a number of
issues to the New York Court of Appeals. Given our dispostion of his appeal, set out below, his
motion is denied as moot.
2
We pause, however, to slightly expand upon the district court’s holding that many of
Zarro’s claims against the state attorney general defendants are barred by prosecutorial
immunity. The district court correctly stated that Zarro’s allegations that the defendants lacked
jurisdiction to prosecute him under New York law are conclusory and “do not establish that his
state prosecution was ‘without any colorable claim of authority.’” Zarro v. Spitzer, 2009 WL
3165761, at *7 (N.D.N.Y. Sept. 25, 2009) (quoting Shmueli v. City of N.Y., 424 F.3d 231, 237
(2d Cir. 2005)). We note, in addition, that these allegations are not merely conclusory; they also
have been definitively rejected no less than four times by the New York state courts. People v.
Zarro, 66 A.D.3d 1050, 1051 (N.Y. App. Div. 2009), mot. for leave to appeal denied, 929
N.Y.3d 1018 (N.Y. 2010); People v. Zarro, Indictment No. 0023/2003, App. to Appellee’s Br.
75-83 (N.Y. Sup. Ct. Oct. 27, 2009), mot. for leave to appeal denied, Mot. No. 2009-11533,
App. to Appellee’s Br. 88 (N.Y. App. Div. Apr. 12, 2010); People v. Zarro, Indictment No.
0023/2003, App. to Appellee’s Br. 43-50 (N.Y. Sup. Ct. Dec. 31, 2006), mot. for leave to appeal
denied, 2007 N.Y. Slip Op. 71448(U), App. to Appellee’s Br. 68 (N.Y. App. Div. June 12,
2007); People v. Zarro, Indictment No. 0023/2003, App. to Appellee’s Br. 7-8 (N.Y. Sup. Ct.
Jan. 27, 2003). Given this backdrop, it is incredible that Zarro would continue to insist that he
was prosecuted in the clear absence of jurisdiction, as he must under this Court’s precedent if his
claim is to succeed. See Shmueli, 424 F.3d at 237 (quoting Barr v. Abrams, 810 F.2d 358, 361
(2d Cir. 1987)).
3
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4