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SCHWARTZ v. UNITED JERSEY BANK

August 26, 1980

Re Robert Bennett SCHWARTZ
v.
UNITED JERSEY BANK et al.



The opinion of the court was delivered by: DEBEVOISE

In his complaint and amended complaint plaintiff Schwartz sued defendants United Jersey Bank and two of its tellers, Mary Ann Robertson and Marie Gallup, charging that they had conspired with certain federal and state officials to deprive plaintiff of his rights in violation of the First and Fifth Amendments of the United States Constitution and, further, that defendants had tortiously violated his rights under New Jersey law. *fn1" Jurisdiction is asserted under 42 U.S.C. §§ 1983 and 1985, 28 U.S.C. § 1343 and pendent jurisdiction.

 In October, 1974 plaintiff and his wife came under investigation by the Drug Enforcement Administration of the United States Department of Justice when information was received that they had been trafficking in cocaine and heroin. John Cipriano (one of the dismissed defendants), a Special Agent of the Drug Enforcement Administration, was assigned to investigate plaintiff and his wife.

 On December 10, 1974 an indictment was returned charging plaintiff and his wife with one count each of trafficking in cocaine and heroin in violation of 21 U.S.C. §§ 173 and 174. Plaintiff emphasized that the charges contained in the indictment involved conduct terminating in 1970 and had nothing to do with subsequent events which were the subject of the investigation giving rise to the instant action. Plaintiff was convicted, and his conviction and sentence to a ten-year term were affirmed on appeal. U. S. v. Schwartz, 535 F.2d 160 (2nd Cir. 1976), cert. den. 430 U.S. 906, 97 S. Ct. 1175, 51 L. Ed. 2d 581 (1977), reh. den., 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977). *fn2"

 In addition to the investigation by the Drug Enforcement Administration, plaintiff and his wife had been investigated by the New York City Police Department. Officers of that department informed Cipriano that plaintiff's wife had been observed on several occasions travelling to United Jersey Bank in Old Bridge where she exchanged small denomination bills of United States currency for a few larger denomination bills, after which she went to the safe deposit box areas of Chemical Bank and/or First National City Bank in New York City.

 On December 18, 1974, eight days after plaintiff was indicted and six days after he was arrested, Cipriano interviewed the bank's employees Walling, Robertson and Gallup. He learned that plaintiff had no account there, that plaintiff's wife did have an account and that the wife had been observed exchanging small bills for large bills.

 On December 26, 1974, Cipriano applied for the issuance of five search warrants before a United States Magistrate in the Southern District of New York. In support of the application Cipriano submitted an affidavit in paragraph five of which he set forth his recollection of his interview with the bank employees. He stated that the interviews revealed that between January, 1973 and June, 1974 plaintiff's wife went to the bank approximately three times a week; that on one of those weekly visits she would exchange $ 4,000 to $ 6,000 in cash for large denomination bills and money orders or cashier's checks and that on two of those weekly visits she would exchange $ 6,000 to $ 10,000 in cash for large denomination bills and money orders or cashier's checks.

 As a result of Cipriano's application, search warrants were issued and were executed against five safe deposit boxes of plaintiff and his wife. The contents were seized and turned over to the United States Attorney's Office.

 A suppression hearing was held at which Walling, Gallup and Robertson testified. Their testimony was to the effect that on a number of occasions plaintiff's wife had come to the bank and exchanged small bills for large bills and purchased money orders and cashier's checks. Their testimony was not consistent with the statements Cipriano's affidavit attributed to them either as to the amounts of money which were exchanged upon each visit or the frequency of the visits of plaintiff's wife to the bank.

 On the basis of this discrepancy plaintiff concludes (and for the purposes of the present motion we assume) that Mary Ann Robertson and Marie Gallup (the two remaining individual defendants) gave erroneous information to Cipriano as to the frequency of plaintiff's wife's visits to the bank and as to the amount of money she exchanged on those visits.

 The causes of action which can be gleaned from the complaint, the amended complaint and in plaintiff's factual statement incorporated in the pretrial order are three-fold: (i) the bank employees conspired with the New York Police Officer John O'Connor (previously dismissed as a defendant) and with federal law enforcement officers to deprive plaintiff of his constitutional rights in violation of 42 U.S.C. §§ 1983 and 1985; (ii) the bank employees conspired among themselves to deprive plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985; and (iii) the bank employees defamed plaintiff by giving false information about his wife, giving rise to an action for slander under New Jersey common law.

 After the remaining defendants moved for summary judgment plaintiff asserted that he is also charging that the bank employees committed the tort of intentional infliction of emotional distress, relying upon Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1975), which applied Pennsylvania law.

 In an oral opinion rendered on April 21, 1980, I granted defendants' motion for summary judgment. My reasons are set forth in that opinion. Plaintiff has moved for reconsideration. The only point which I believe requires further discussion is my rejection of plaintiff's contention that he is entitled to a trial of his claim grounded upon intentional infliction of emotional distress. In my oral opinion I gave two reasons for rejecting plaintiff's contention. First, relying on Hafner v. Hafner, 135 N.J.Super. 328, 343 A.2d 166 (Law Div. 1975), I concluded that the tort of intentional infliction of emotional distress has not yet gained recognition in New Jersey, although a plaintiff may often recover for emotional distress which is suffered as a result of the commission of a recognized tort. Second, even if New Jersey had recognized the tort of ...


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