You are here: / / OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON...
, ,

OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF’S DECEDENT, 42 USC 1983 CAUSE OF ACTION AGAINST MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined that the 42 USC 1983 cause of action against the municipality was properly dismissed. Plaintiff's decedent was killed when a handgun handled by an off-duty police officer (Pileggi) went off. The off-duty officer was convicted of manslaughter. The cause of action against the municipality was dismissed because there was no evidence the off-duty officer was acting under color of law and there was no policy which encouraged the reckless actions of the off-duty officer:

Where the conduct complained of was committed by an off-duty police officer, a constitutional violation may be found if, for instance, the officer, albeit off-duty, nonetheless is engaged in some activity arguably invoking the real or apparent power of the police department, or is engaged in the performance of duties prescribed generally for police officers… .. Here, the amended complaint alleged only, in the most conclusory fashion, that Pileggi was “acting under the color of law” when the shooting occurred. Since nothing in the amended complaint suggested that Pileggi identified himself or was recognizable as a police officer, or was otherwise engaged in any activity arguably invoking the real or apparent power of the police department, the seventh cause of action was fatally defective. In turn, because the plaintiffs failed sufficiently to allege that Pileggi was acting under color of state law, it follows that there was no factual basis upon which to hold the defendants liable under [Monell v New York City Dept. of Social Servs., 436 US 658] … .

In any event, even if the amended complaint had properly pleaded that Pileggi was acting under color of state law and not engaged in purely personal pursuits at the time of the shooting, the seventh cause of action was also fatally defective in that it failed to allege specific facts supporting the plaintiffs' contention that the defendants had a policy or custom of encouraging or sanctioning the type of reckless behavior that led to the shooting … . Everett v Eastchester Police Dept., 2018 NY Slip Op 00129, Second Dept 1-10-18

MUNICIPAL LAW (POLICE OFFICERS, WRONGFUL DEATH, OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, POLICE OFFICERS, NEGLIGENCE,  OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))/42 USC 1983 (MUNICIPAL LAW, POLICE OFFICERS, NEGLIGENCE, OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, POLICE OFFICERS, OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION AGAINST MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/POLICE OFFICERS (OFF DUTY POLICE OFFICER WAS NOT ACTING UNDER COLOR OF LAW WHEN HIS WEAPON DISCHARGED AND KILLED PLAINTIFF'S DECEDENT, 42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT))

You might also like
PLAINTIFF SUBMITTED INSUFFICIENT PROOF THAT THE NOTICE REQUIRED BY RPAPL 1304 AND THE MORTGAGE WAS PROVIDED TO DEFENDANTS; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Evidence of Physical Injury (re Assault) Insufficient
PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).
DEFENDANT RADIOLOGIST WAS ASKED TO EVALUATE A MAMMOGRAM AS A ROUTINE-SCREENING PROCEDURE AND, ACCORDING TO HIS EXPERT, DID SO IN ACCORDANCE WITH ACCEPTED PRACTICES; PLAINTIFF WAS DIAGNOSED WITH BREAST CANCER A YEAR LATER; THE RADIOLOGIST’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT).
THE JURY NOTES SHOULD HAVE BEEN READ VERBATIM TO COUNSEL, NOT PARAPHRASED BY THE JUDGE; THIS MODE OF PROCEEDINGS ERROR REQUIRES REVERSAL (SECOND DEPT).
MAILING THE NOTICE OF FORECLOSURE TO BOTH BORROWERS IN THE SAME ENVELOPE IS A VIOLATION OF RPAPL 1304 REQUIRING DENIAL OF THE BANK’S SUMMARY JUDGMENT MOTION (SECOND DEPT).
THE CLIMATOLOGICAL RECORDS WERE NOT CERTIFIED AS BUSINESS RECORDS AND THEREFORE COULD NOT BE RELIED UPON TO SHOW A STORM IN PROGRESS AT THE TIME OF THE SLIP AND FALL; PROOF OF A GENERAL INSPECTION ROUTINE COULD NOT BE RELIED UPON TO SHOW THE ABSENCE OF CONSTRUCTIVE NOTICE OF THE BLACK ICE (SECOND DEPT).
DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

AFFIDAVIT BY INSURER’S ATTORNEY INSUFFICIENT TO JUSTIFY A STAY OF ARBITRATION... DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE WHEN THE STAIRS...