    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.

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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)).

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Accordingly, the judgment of the district court is AFFIRMED.



                                   FOR THE COURT:

                                   Catherine O’Hagan Wolfe, Clerk




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