Firefighters Dismissed From Malicious Prosecution Suit

The United States District Court for the Eastern District of New York has dismissed two firefighters and a fire department from a lawsuit arising out of the arrest of a man who was accused of brandishing a firearm at one of the firefighters. Judge Sandra J. Feuerstein dismissed the Franklin Square and Munson Fire Department, Daniel Maloney, and Robert Fineo from a suit filed by Carl T. Semencic.

As explained in the ruling:

  • On the evening of July 19, 2016 at approximately 8:00 p.m., Maloney and Fineo were conducting a door-to-door soliciting campaign in Semencic’s neighborhood on behalf of the FSMFD.
  • Semencic has posted a sign on his front storm door that reads “DO NOT KNOCK. NO PEDDLERS.”
  • Maloney approached Semencic’s house, “intentionally and purposefully” ignored the sign, and “loudly and repeatedly banged” on Semencic’s front door.
  • At the time Maloney knocked, Semencic had just finished working in his office and was heading towards his bedroom carrying an unloaded Glock pistol that he intended to secure in his nightstand for the night.
  • He opened his front door and saw Maloney wearing his firefighter’s uniform and standing behind the storm door.
  • When he opened the front door, Semencic, who is right-handed and shoots exclusively with his right hand, was holding the pistol in his left hand “with the barrel pointed down.”
  • Semencic then “pointed at the sign on his front storm door with his left hand and, in a clearly annoyed voice, told Maloney ‘go away.’
  • He then abruptly and forcefully closed his front door.”
  • Semencic claims he never pointed the firearm at Maloney and did not step outside the house.
  • After shutting the door, Semencic secured the firearm in his bedroom nightstand and proceeded to the den at the rear of the house to watch television with his wife.

According to Maloney, Semencic pointed the gun at him twice during the encounter. Maloney left the property as quickly as possible, reporting what occurred to his fire chief who in turn notified the police. Semencic was arrested on charges of menacing and criminal possession of a weapon, which led to his firearms being seized. The charges were ultimately dismissed and Semencic filed suit against the Nassau County Police Department, Commissioner Patrick J. Ryder, Police Officer Robert B. McGrory, Police Officer Kenneth J. Magnuson, the Franklin Square and Munson Fire Department, Maloney, and Fineo.

The fire department, Maloney and Fineo filed a motion to dismiss the suit against them, claiming the suit failed to state a claim upon which relief may be granted. In granting the motion to dismiss, Judge Feuerstein explained:

  • Semencic filed his complaint … alleging fifteen causes of action under federal and state law.
  • [H]e has asserted four (4) claims against the Fire Department Defendants, all under state law, for: (1) malicious prosecution; (2) abuse of process; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress.
  • He further claims the prosecution was needlessly prolonged by the “intentional refusal” by… Maloney and Fineo to “co-operate with the Nassau County District Attorney’s Office.”
  • Maloney and Fineo, (1) refused to notify the District Attorney’s Office that Plaintiff was “actually innocent of the spurious charges,” (2) “refused to withdraw the charges,” and (3) “maliciously and intentionally” caused the prosecution to be prolonged by failing to co-operate with the prosecution and failing to appear in court.
  • In addition to the allegations regarding his arrest and criminal prosecution, Semencic also alleges that various defendants, including Maloney and Fineo, “caused” a report to be filed with the Handgun Licensing Division of the Nassau County Police Department relating the “false narrative,” with the “express and malicious intention” of having Semencic’s handgun license revoked.
  • There is no information currently before the Court regarding how the FSMFD is organized. FSMFD’s dismissal from this action is warranted since the complaint fails to include any factual allegations concerning this defendant.
  • Semencic has failed to adequately plead the first element of a malicious prosecution claim [commencement of a criminal proceeding] as to the Defendants and thus the claim fails.
  • [As to abuse of process, the] complaint fails to plausibly allege that the Defendants initiated the prosecution against Plaintiff. As such, their motion to dismiss this claim is granted without need for discussion of the remaining elements.
  • Claims for intentional infliction of emotional distress are subject to a one-year statute of limitations under New York law. Plaintiff’s arrest occurred on July 19, 2016, and this action was commenced on September 18, 2018. There are no factual allegations concerning conduct by any of the Defendants occurring during the one-year period prior to commencement of this action. Accordingly, Plaintiff’s intentional infliction of emotional distress claim is time barred.
  • [As to the negligent infliction of emotional distress] Semencic makes no factual allegations that support a negligence theory.
  • Plaintiff, who has been represented by counsel throughout this litigation, has made no request, formal or informal, to further amend [his complaint].
  • As Plaintiff has not evidenced a desire to replead much less provided any indication that repleading would cure the deficiencies discussed above, dismissal of the claims against the Fire Department Defendants is with prejudice.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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