A federal lawsuit filed in by then-Hoboken Police Chief Anthony Falco alleging that Mayor Dawn Zimmer undermined his authority within the department for personal and political reasons has been dismissed, though has the ability to be refiled.
By John Heinis/Hudson County View
The lawsuit, filed against the City of Hoboken and Zimmer back in March 2013 has been dismissed in its entirety by Federal Court Judge Madeline Cox Arleo, the city announced minutes ago.
Many of the claims were dismissed “with prejudice” meaning that the claims cannot be re-filed.
However, several claims were dismissed “without prejudice” meaning that Falco can attempt to refile the lawsuit with respect to those items by alleging different facts than he has so far to substantiate his causes of action, or by filing the claims in state court.
The city acknowledged that while the legal battle may not be over, they still called the decision “an important legal victory for the city,” crediting their attorney in the matter, Victor Afanador of Newark’s Lite Depalma Greenberg, LLC for a job well done.
In his lawsuit, Chief Falco claimed that his constitutional rights were violated because he believed that the city, under Mayor Zimmer, had interfered in the running of the Police Department and had not paid him benefits (both before and after his retirement in 2014), to which he believed he was entitled.
Falco further alleged he was discriminated against because he was “Old Hoboken,” but the Court ruled that “Old Hoboken” was not “a cognizable political association” since “Indeed, it does not refer to any political class or association at all.”
The Court also noted that Falco had tried to make a new argument in his brief that he was retaliated against because he is a member of a particular Hoboken church, apparently attempting for the first time to invoke a “protected class” claim based on religion, the city said in a news release.
This was a claim he had never made in his lawsuit. Since this new claim had not even been referred to in the complaint, the court declined to consider it at all, according to Hoboken officials.
Falco also claimed in his complaint that he had not received any payment at all upon retirement as retaliation for his having sued the city and having testified against the city in another lawsuit.
Despite that claim, the court ruled that Falco had failed to allege any actual legal right to such a payment, only that he had “a unilateral expectation that he would receive it because other HPD officers did when they retired.”
Contrary to Falco’s claim in his pleadings that he received no payment whatsoever upon retirement (a claim the judge accepted as true for the purpose of deciding the motion), he was mailed a retirement check from the city on September 10, 2014.
According to payroll records from the city (including a photocopy of the paycheck), Falco was provided with a $153,551.19 retirement benefit, which after deduction of federal and state taxes resulted in a net payment of $104,414.81.
However, Falco apparently chose not to deposit that check and returned it to the city. He then claimed in his court filings that he had received no payment at all.
The lawsuit also contained a number of contentious allegations, such as that Falco was being held personally responsible for not being able to bring anyone to justice for the hit-and-run death of Henry Grossbard, Zimmer’s father-in-law, in 2005.
“I’m gratified that Judge Arleo saw through the smoke blown at the expense of the Hoboken taxpayer and dismissed this frivolous case in full,” Zimmer said in a statement.
“I hope that Chief Falco will now accept the fair retirement payment offered by the city rather than attempt to revive a lawsuit that has already cost Hoboken’s taxpayers a substantial amount in legal fees.”
“The judge has given us the opportunity to refile amended complaint so we’re weighing our options right now to continue pursuing this matter on behalf of the chief,” said one of Falco’s attorneys in the matter, Jason F. Orlando of Jersey City’s Murphy Orlando LLC, declining to comment further.