15-3455-cv
Bertuglia v. Schaffler
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 ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 6th day of December, two thousand sixteen.
PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges,
BRIAN M. COGAN,
District Judge.*
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ROBERT BERTUGLIA, JR., Individually and as
President of Laro Maintenance Corporation,
Plaintiff‐Appellant,
LARO MAINTENANCE CORPORATION,
Plaintiff‐Counter‐Defendant‐Appellant,
LARO SERVICE SYSTEMS, INC.,
Plaintiff‐Counter‐Defendant
v. 15‐3455‐cv
* Judge Brian M. Cogan of the United States District Court for the Eastern District
of New York, sitting by designation.
JEFFREY SCHAFFLER, Port Authority Supervising
Investigator,
Defendant‐Counter‐Claimant‐Appellee,
CITY OF NEW YORK, ADA ELYSE RUZOW, ADA
MICHAEL SCOTTO, BERNARD DʹALEO, Port
Authority Contract Administrator, PORT
AUTHORITY INVESTIGATORS JOHN DOES, #1‐5
names and shield numbers whom are unknown at
present, and other unidentified members of the Port
Authority, PORT AUTHORITY INVESTIGATORS
JANE DOES, # 1‐5 names and shield numbers whom
are unknown at present, and other unidentified
members of the Port Authority,
Defendants,
ROBERT E. VAN ETTEN, Port Authority Inspector
General, MICHAEL NESTOR, Port Authority
Director of Investigations, EDWARD KENNEDY,
Port Authority Investigative Manager, PORT
AUTHORITY OF NEW YORK AND NEW JERSEY,
FRED FERRONE, Port Authority Forensic Auditor,
Defendants‐Counter‐Claimants.*
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FOR PLAINTIFFS‐APPELLANTS: JON L. NORINSBERG, Law Offices of Jon L.
Norinsberg PLLC, New York, New York, and
Scott A. Korenbaum, New York, New York, on
the brief.
FOR DEFENDANT‐APPELLEE: KATHLEEN GILL MILLER (Sajaa Ahmed, on
the brief), The Port Authority of New York and
New Jersey, New York, New York.
Appeal from the United States District Court for the Southern District of
New York (Koeltl, J.).
* The Clerk of Court is directed to amend the official caption as shown above.
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs‐appellants Laro Maintenance Corporation (ʺLaroʺ) and its
president, Robert Bertuglia, Jr.,1 appeal from a judgment of the district court entered
September 30, 2015, to the extent it granted summary judgment in favor of defendant‐
counter‐claimant‐appellee Jeffrey Schaffler2 on their malicious prosecution, fair trial,
and conspiracy claims. The district court explained its reasoning in an opinion and
order filed September 29, 2015. We assume the partiesʹ familiarity with the underlying
facts, procedural history, and issues on appeal.
In December 2004, Laro entered into a $24 million contract to provide
cleaning services at the Port Authority Bus Terminal from January 1, 2005 to December
31, 2007. The contract required that certain cleaning equipment be in ʺnew and unused
conditionʺ at the start of the contract term. J. App. at 166. The cost of the new
equipment was to be offset by a charge built into Laroʹs hourly rate over the course of
the contract. Laro failed to purchase two pieces of cleaning equipment that were
required at the start of the contract term; nevertheless, Laro billed the full hourly rate
1 The district court action was filed by Bertuglia, Laro, and Laro Service Systems;
plaintiffsʹ opening brief, however, references only Bertuglia and Laro.
2 Plaintiffsʹ opening brief does not specify whether they appeal the grant of
summary judgment in favor of all or only certain defendants. Defendantsʹ opposition brief
suggests that plaintiffs ʺappeal only as to the Port Authority and Jeffrey Schaffler.ʺ Appelleeʹs
Br. at 1. Plaintiffsʹ reply brief names Schaffler as the sole appellee. Accordingly, we construe
plaintiffsʹ appeal as pursuing claims against only Schaffler.
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each month. By the time the contract ended, the Port Authority had paid Laro at least
$153,000 for use of the two pieces of cleaning equipment that had not been purchased.
In March 2007, Schaffler, an investigator with the Port Authority,
informed Assistant District Attorney (ʺADAʺ) Michael Scotto that the Port Authority
was investigating Bertuglia and Laro for overbilling. In May 2007, the New York
County District Attorneyʹs Office (the ʺDAʹs Officeʺ) opened a criminal investigation
into Bertuglia and Laro, led by ADA Elyse Ruzow.
In August 2008, a grand jury indicted Bertuglia and Laro on charges of
grand larceny in the second degree, offering false instruments for filing, and falsifying
business records. The Supreme Court, New York County (Zweibel, J.), dismissed the
indictment as to Bertuglia after finding that the evidence against him was legally
insufficient, and the DAʹs Office thereafter dropped the charges against Laro. In April
2009, the grand jury again indicted Bertuglia and Laro for grand larceny in the second
degree, but the second indictment was also dismissed as to both Bertuglia and Laro for,
inter alia, legally insufficient evidence.
On March 29, 2011, Bertuglia and Laro filed a complaint in the district
court against numerous defendants, including Schaffler, alleging claims of, inter alia,
false arrest, malicious prosecution, denial of the constitutional right to a fair trial, and
conspiracy to violate civil rights under 42 U.S.C. § 1983. Plaintiffs filed an amended
complaint on July 1, 2011. On March 19, 2012, the district court granted in part motions
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to dismiss by the defendants; certain of plaintiffsʹ claims against Schaffler, including
malicious prosecution, deprivation of the right to a fair trial, and conspiracy, survived.
On October 17, 2014, plaintiffs moved for partial summary judgment on
their malicious prosecution claim against Schaffler, and on November 21, 2014, Schaffler
cross‐moved for summary judgment dismissing plaintiffsʹ remaining claims.3 In a
detailed memorandum and order entered September 29, 2015, the district court denied
plaintiffsʹ motion for partial summary judgment and granted summary judgment to
Schaffler and all other defendants on plaintiffsʹ remaining claims. Plaintiffs filed this
timely appeal.4
We review a district courtʹs grant of summary judgment de novo,
ʺresolv[ing] all ambiguities and draw[ing] all inferences against the moving party.ʺ
Garcia v. Hartford Police Depʹt, 706 F.3d 120, 126‐27 (2d Cir. 2013) (per curiam).
ʺSummary judgment is proper only when, construing the evidence in the light most
favorable to the non‐movant, ʹthere is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.ʹʺ Doninger v. Niehoff, 642 F.3d 334,
344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
3 The other remaining defendants also moved for summary judgment as to all of
plaintiffsʹ claims.
4 On appeal, Bertuglia and Laro contend that the district court erred in granting
summary judgment in favor of Schaffler on plaintiffsʹ malicious prosecution, fair trial, and
conspiracy claims. Because plaintiffs do not challenge the grant of summary judgment in favor
of the other Port Authority employee defendants, ADA defendants, or the City of New York,
they have abandoned those claims. See Norton v. Samʹs Club, 145 F.3d 114, 117 (2d Cir. 1998).
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1. Malicious Prosecution
Under New York law, to succeed on their malicious prosecution claim,
Bertuglia and Laro had to establish: ʺ(1) the initiation or continuation of a criminal
proceeding against plaintiff[s]; (2) termination of the proceeding in plaintiff[sʹ] favor; (3)
lack of probable cause for commencing the proceeding; and (4) actual malice as a
motivation for defendantʹs actions.ʺ Manganiello v. City of New York, 612 F.3d 149, 161
(2d Cir. 2010) (internal quotation marks omitted).
The grand jury indictments returned against Bertuglia and Laro create a
presumption of probable cause that is fatal to their malicious prosecution claims. ʺ[T]he
existence of probable cause is a complete defense to a claim of malicious prosecution in
New York . . . .ʺ Id. at 161‐62. Under New York law, a grand jury indictment ʺcreates a
presumption of probable cause that can only be overcome by evidence that the
indictment was the product of fraud, perjury, the suppression of evidence by the police
or other police conduct undertaken in bad faith.ʺ Bermudez v. City of New York, 790 F.3d
368, 377 (2d Cir. 2015) (internal quotation marks omitted).
Plaintiffs have proffered no facts from which a reasonable jury could infer
that the indictment was the product of fraud, perjury, the suppression of evidence, or
other bad faith conduct on the part of Schaffler. In the voluminous record in this case,
plaintiffs point to three statements made by Schaffler to ADA Ruzow that they contend
are false and evidence bad faith that rebuts the presumption of probable cause:
Schaffler purportedly told Ruzow that (1) plaintiffs knowingly overbilled the Port
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Authority, (2) Bertuglia was a ʺthiefʺ and a ʺcrookʺ who ʺstole a lot of money,ʺ J. App. at
646‐47, 1631‐33, and (3) Robert Kolakowski, Laroʹs onsite manager at the Port Authority,
complained to Bertuglia about the lack of new cleaning equipment.
As an initial matter, Laro in fact billed the Port Authority for equipment it
never purchased, and so Schafflerʹs statements were undisputedly true as to that fact.
While Schaffler allegedly went further in his statements to the DAʹs Office, accusing
plaintiffs of stealing and knowingly overbilling, plaintiffs point to no record evidence
that those statements reached the grand jury. See Rothstein v. Carriere, 373 F.3d 275, 283‐
85, 290 (2d Cir. 2004) (rejecting view that ʺa person who falsely tells the police that
someone has committed a felony may be liable for malicious prosecution no ʹmatter
what goes on before the grand juryʹʺ and adopting view that ʺunless the plaintiff can
demonstrate that the proceedings before the grand jury were tainted, an indictment
extinguishes the claimʺ). Moreover, the statements that Bertuglia was a thief and a
crook who stole money clearly were statements of opinion that lacked evidentiary
value. Without more, the district court correctly concluded that a jury could not find
that ʺthe grand jury was defrauded or that its integrity was underminedʺ by Schafflerʹs
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conduct such that the presumption of probable cause was overcome.5 Special App. at
32.
Furthermore, the dismissals of the indictments due to legally insufficient
evidence did not vitiate the presumption of probable cause created by the indictments.
The New York Court of Appeals has observed that
[t]he rule in New York differs . . . from that in some jurisdictions which
permit the presumption to be overcome by any evidence tending to show
the absence of probable cause. In this State, the trial court may not weigh
the evidence upon which the police acted or which was before the Grand
Jury after the indictment has issued.
Colon v. City of New York, 60 N.Y.2d 78, 83 (1983). The Colon court held, inter alia, that
even the District Attorneyʹs dismissal of an indictment did not overcome the
presumption because it ʺconstituted no more than an admission that the People lacked
evidence to establish a prima facie case of guilt.ʺ Id. at 84. Accordingly, we decline to
assess whether the prosecution lacked evidence to establish a prima facie case of grand
larceny in the second degree and conclude that plaintiffs have failed to rebut the
presumption of probable cause.
5 The state court judge who dismissed the indictments expressed serious concerns
about misconduct engaged in by the prosecution when presenting the case to the grand jury.
We do not take those concerns lightly. Nonetheless, although prosecutorial misconduct during
grand jury proceedings can provide a basis for rebutting the presumption of probable cause
created by an indictment, we agree with the district court that the misconduct at issue in this
case does not meet the standard set forth by the New York Court of Appeals in Colon v. City of
New York: ʺThe presumption may be overcome only by evidence establishing that the police
witnesses have not made a complete and full statement of facts either to the Grand Jury or to
the District Attorney, that they have misrepresented or falsified evidence, that they have
withheld evidence or otherwise acted in bad faith.ʺ 60 N.Y.2d 78, 82‐83 (1983) (emphasis
added).
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Plaintiffs contend that the Court of Appealsʹ recent decision in De Lourdes
Torres v. Jones, 26 N.Y.3d 742 (2016), changes the result. We are not persuaded. The De
Lourdes Torres court held that summary judgment in favor of the defendants was
inappropriate where there was evidence that the defendants falsified a confession from
the plaintiff and forwarded it to the District Attorneyʹs office to prosecute the plaintiff.
De Lourdes Torres, 26 N.Y.3d at 767. The court held that such evidence of bad faith
conduct, if credited, could ʺrebut the presumption of probable cause . . . by
demonstrating that the evidence of guilt relied upon by the defendant was so scant that
the prosecution was entirely baseless and maliciously instituted.ʺ Id. at 761. To the
extent there was misconduct in the present case, it did not rise to the level of fabricating
a confession.
Thus, because we agree with the district courtʹs conclusion that a
reasonable jury could not find that the prosecution here lacked probable cause, we
affirm the dismissal of the malicious prosecution claim.
2. Fair Trial
We next turn to plaintiffsʹ § 1983 claim for denial of the constitutional
right to a fair trial due to fabrication of evidence. A law enforcement officer denies a
defendant a fair trial when he creates ʺfalse information likely to influence a juryʹs
decision and forwards that information to prosecutors.ʺ Ricciuti v. N.Y.C. Transit Auth.,
124 F.3d 123, 130 (2d Cir. 1997). In Garnett v. Undercover Officer C0039, 838 F.3d 265, 275
(2d Cir. 2016), we clarified that Ricciuti applies just ʺas much to a situation where, as
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here, the falsified information was the officerʹs account, conveyed to prosecutors, of
what he heard the defendant say or do during the alleged offense.ʺ We also cautioned
that the same limiting principles encompassed by the Ricciuti standard apply ‐‐ namely,
that the evidence must be likely to influence a juryʹs decision. Id. at 279‐80.
As discussed above, Schafflerʹs opinions about Bertuglia and Laroʹs
potential wrongdoing did not constitute evidence. Furthermore, Schafflerʹs accusation
that Bertuglia was a thief who had knowingly overbilled could not have been
introduced into evidence without some foundation, and the only foundation provided
by Schaffler was his statement that Kolakowski complained to Bertuglia about the lack
of new cleaning equipment. Even if somehow admissible, Schafflerʹs hearsay account of
Kolakowskiʹs conversation with Bertuglia would not have been material at trial because
a jury would have been able to hear directly from Kolakowski himself. Thus, drawing
all inferences in their favor, plaintiffs fail to raise a triable fact issue as to whether
Schaffler created false information that was likely to influence a juryʹs decision.
3. Conspiracy
Finally, we agree with the district courtʹs grant of summary judgment on
plaintiffsʹ conspiracy claim. To the extent plaintiffs argue that Schaffler and Ruzow
agreed to deprive plaintiffs of their liberty by maliciously prosecuting them and
denying them the right to a fair trial, we have already determined that a jury could not
decide in favor of plaintiffs on either claim. See Singer v. Fulton Cty. Sheriff, 63 F.3d 110,
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119 (2d Cir. 1995) (ʺ[A § 1983 conspiracy claim] will stand only insofar as the plaintiff
can prove the sine qua non of a § 1983 action: the violation of a federal right.ʺ).
We have considered all of plaintiffsʹ remaining arguments and find them
to be without merit. Accordingly, for the reasons stated above, we AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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