OPINION OF THE COURT
In October 1987, defendant Melvin Eckhaus, an employee of United Brotherhood of Carpenters and Joiners of America, Local 135 (Local 135), and a delegate of the Local to the District Council, was arrested for accepting a bribe from a
Meanwhile, beginning on or about November 30, 1989, in connection with a separate investigation into plaintiffs’ financial affairs, including the nonpayment and nonfiling of corporate income tax returns, fraud with respect to union benefit funds, and conspiracy to avoid payment and collection of City, State and Federal income taxes, the District Attorney’s office issued numerous Grand Jury subpoenas to Inner City’s customers, suppliers and business contacts. Although the subpoenas were made returnable before the Grand Jury at 100 Centre Street, at the time of thеir issuance and until the commencement of this action no Grand Jury had been convened to hear evidence against plaintiffs, and when the witnesses responded to the subpoenas they were directed to the District Attorney’s office where they allegedly gave deposition-type statements. On June 19, 1990, two of these subpoenas became the subject of a motion to quash in the Supreme Court, New York County. That motion was denied (John A.K. Bradley, J.).
On or about June 23, 1990, plaintiffs commenced this action against, inter alia, District Attorney Morgenthau and Assistant District Attorneys Mechmann and Mass (the prosecutor defendants), District Council of New York City and vicinity United Brotherhood of Carpenters and Joinеrs of America (District Council), Local 135 and Eckhaus. The complaint alleged causes of action for false arrest, malicious prosecution, abuse of process, dissemination of false information, civil rights violations, negligence and negligent supervision on the part of the District Attorney, and breach of and conspiracy to
Finding that plaintiffs were entitled to amend the complaint without leave of the court, the IAS Court deemed the dismissal motions directed to the amended complaint and dismissed numerous causes of action, but found, with respect to the prosecutor defendants and Eckhaus, that the fifth cause of action stated a claim for civil rights violations in three respects, to which plaintiffs’ civil rights claim was limited: the prosecutor defendants’ alleged abuse of process based on the issuance of Grand Jury subpoenas; their alleged press leaks of false information; and their "investigative activities”, including the extortion and entrapment of plaintiffs committed through Eckhaus, not taken in pursuit of the bribery indictment itself; that, in the absence of allegations of actual or special damages, the third cause of action against the prosecutor defendants for abuse of process must be dismissed, with leave to replead, and that the thirteenth cause of action states a claim for intentional interference with Inner City’s collective bargaining agreement with the uniоns. The court held that since it was alleged that Eckhaus was a "paid informer” of the District Attorney’s office he could be classified as an agent of that office. Even as a private individual, the court held, Eckhaus could be subject to liability under 42 USC § 1983, if, as alleged, he willfully participated in the prosecutor defendants’ actions. The prоsecutor defendants and Eckhaus appeal, arguing that the entire complaint should have been dismissed as against them. We affirm.
At the outset, we note, with respect to the IAS Court’s limitation of the civil rights cause of action to the three aforementioned aspects of the prosecutor defendants’ actions "not taken in рursuit of the bribery indictment itself’, that the amended verified complaint alleges that "[beginning on or about October 7, 1987 and continuously continuing thereafter for approximately 18 months,” the prosecutor defendants "participated in and directed defendant * * * Eckhaus * * *
The prosecutor defendants argue, initiаlly, that the civil rights cause of action is insufficient since it is set in broad, conclusory terms and, with the exception of the issuance of Grand Jury subpoenas by Mechmann, fails to point to any individual conduct on their part. In our view, however, these allegations sufficiently specify both the conduct on which the cause of action is based аnd defendants’ personal involvement. (See, McKinnon v Patterson, 568 F2d 930, 934 [2d Cir 1977], cert denied
While a claim of entrapment is not sufficient to state a civil rights cause of action under 42 USC § 1983 since entrapment does not violate a cоnstitutional right (see, Johnston v National Broadcasting Co.,
Similarly, thе allegations of press leaks, arguably insufficient in themselves to serve as the basis for a section 1983 claim, are significant when viewed as part of this alleged pattern. Thus, in alleging the prosecutor defendants’ attempts at extortion and entrapment, the issuance of numerous Grand Jury subpoenas without any legal basis therefor, and thе leaks
Thе prosecutor defendants argue that they are entitled to absolute immunity with respect to the claim for abuse of process as a section 1983 violation. We disagree. "The entitlement of a prosecutor to absolute immunity from a claim for damages against him in his individual capacity on account of his official actiоns depends principally on the nature of the function performed, not on the office itself.” (Ying Jing Gan v City of New York, 996 F2d 522, 530 [2d Cir 1993].) Where the prosecutorial activities are " 'intimately associated with the judicial phase of the criminal process’,” e.g., the " 'initiation of] a prosecution’,” the prosecutor is entitled to absolute immunity from liability under section 1983. (Supra, at 530, quoting Imbler v Pachtman,
Defendants argue that prosecutorial activities which relate to Grand Jury proceedings are quasi-judicial acts absolutely immune from liability. This argument overlooks the fact that no Grand Jury had been convened and that defendants are alleged to have used the subpoenas for the purpose of conducting their own investigation into plaintiffs’ affairs. In any
Moreover, although a prosecutor is entitled to absolute immunity for those acts " 'within the scope of his duties’ ” (Rudow v City of New York, 822 F2d 324, 327, quoting Imbler v Pachtman, 424 US, supra, at 410), where the prosecutor acts " 'in the clear absence of all jurisdiction’ ” and " 'without any colorable claim of authority, he loses the absolute immunity he would otherwise enjoy.’ ” (Supra, at 328, quoting Barr v Abrams, 810 F2d, supra, at 361.)
Such a situation exists here. The law does not confer upon a prosecutor the power to employ a subpoena solely to conduct an investigation or to subpoena witnesses to attend his office or any other place where a Grand Jury or court is not convened. (People v Boulet, 88 Misc 2d 353, 354; see also, People v Natal,
Nor are the prosecutor defendants entitled to absolute immunity with respect to the State law claim for abuse of process based on the issuance of Grand Jury subpoenas. Under New York law, a District Attorney, in prosecuting crime, is performing a quasi-judicial function and as such is entitled to absolute immunity. (Arteaga v State of New York,
Not even a broadened scope of absolute immunity, however, would afford defendants protection for plaintiffs’ State law claims. Since, as noted, the law confers no power upon the District Attorney to employ a subpoena for the purpose of conducting his own investigation (People v Boulet, 88 Misc 2d, supra, at 354; CPL 610.20; see also, People v Natal, 75 NY2d, supra, at 385), a prosecutor may not claim that he was engaged in a quasi-judicial act when he issues Grand Jury subpoenas under such circumstances. (Drake v City of Rochester,
Nor is the abuse of process claim barred by collateral estoppel based on Justice Bradley’s denial of plaintiffs’ motion to quash two Grand Jury subpoenas issued against the State
With respect to the cause of action for tortious interference with contractual relations, contrary to defendants’ contention, the pleadings were not silent as tо the prosecutor defendants’ claimed interference with the collective bargaining agreement between plaintiff Inner City and the union defendants, District Council and Local 135. The amended complaint expressly alleges that Eckhaus, under the direction of Mechmann, Mass and O’Hara and with the knowledge and consent of Morgenthau, attempted to extort money from plaintiffs; that to accomplish the extortion Eckhaus threatened to destroy Inner City’s business by causing and instigating work stoppages, slowdowns or sabotage if Inner City did not make illegal payments to him; that Eckhaus did in fact cause such work stoppages, slowdowns and sabotage to occur and that plаintiffs were seriously injured thereby. We think that these allegations, as the IAS Court found, can fairly be construed to aver that the "prosecutor defendants * * * incit[ed] and encourage[ed Eckhaus] to 'sabotage’ Inner City by providing workers who engaged in work stoppages and slow downs, in order to extort bribes from plaintiffs” and therefore "the intentional pursuit by defendants of a breach of plaintiffs’ contract with the union.”
Finally, the prosecutor defendants and Eckhaus argued that the action should be stayed pending arbitration of the dispute between plaintiffs and the union defendants. Unlike the union defendants, however, these defendants never moved for such a stay before the IAS Court, which stayed several causes of action as to the former and directed the parties to proceed to arbitration. Having failed to seek such relief before the IAS Court, the prosecutor defendants and Eckhaus may not do so for the first time on appeal. (See, Mullany v Eiseman,
Accordingly, the order of the Supreme Court, New York County (Ira Gammerman, J.), entered on or about August 30, 1991, which, inter alia, denied the motions of defendants Morgenthau, Mechmann, Mass and Eckhaus, pursuant to CPLR 3211 (a) (7), to dismiss the fifth and thirteenth causes of
Order, Supreme Court, New York County, entered August 30, 1991, affirmed, withоut costs.
Notes
Defendants argue that the doctrine of absolute immunity also protects Eckhaus since New York’s rule protects not only prosecutors but persons acting under their direction and control as well. (See, Schanbarger v Kellogg, supra,