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EMAILS DID NOT EXPLICITLY WAIVE THE INITIAL AGREEMENT THAT THE PARTIES WOULD NOT BE BOUND UNTIL A FORMAL AGREEMENT WAS EXECUTED, NO CONTRACT WAS CREATED (FIRST DEPT).

The First Department determined the complaint in this employment contract action was properly dismissed. The term sheet relied upon by plaintiff included a clause indicating neither party would be bound until a more formal agreement was executed. Subsequent emails including the phrase “firm and binding” did not waive the formal agreement required by the term sheet:

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Plaintiff’s allegations that his agent requested that any offer be “firm and binding,” that defendant’s agent acknowledged this request, that internal communications between defendant and its agents reveal an intention to make a firm offer, that the cover email transmitting the term sheet labeled the offer “firm and binding,” and that defendant later offered a fee to “kill” the contract are not sufficient to negate or demonstrate a waiver of the provision that the parties would not be bound until they executed a formal written agreement … .Morever, waiver of a contractual provision “should not be lightly presumed,” “must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act” … . Plaintiff’s agent’s demand for a firm offer and defendant’s agent’s acknowledgment of this request, before consulting with her client, prove nothing about what was ultimately agreed. Nor do defendant and its agents’ internal communications preceding the offer, to which plaintiff was not privy, prove what was ultimately agreed. Keitel v E*TRADE Fin. Corp., 2017 NY Slip Op 06624, First Dept 9-26-17

CONTRACT LAW (EMAILS DID NOT EXPLICITLY WAIVE THE INITIAL AGREEMENT THAT THE PARTIES WOULD NOT BE BOUND UNTIL A FORMAL AGREEMENT WAS EXECUTED, NO CONTRACT WAS CREATED (FIRST DEPT))/EMPLOYMENT LAW (CONTRACT LAW, EMAILS DID NOT EXPLICITLY WAIVE THE INITIAL AGREEMENT THAT THE PARTIES WOULD NOT BE BOUND UNTIL A FORMAL AGREEMENT WAS EXECUTED, NO CONTRACT WAS CREATED (FIRST DEPT))

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DEFENDANT DID NOT UNDERSTAND HE HAD A RIGHT TO AN ATTORNEY AT THE TIME HIS STATEMENTS WERE MADE EVEN IF HE COULD NOT AFFORD ONE, BOTH STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined that the People did not demonstrate defendant understood he had a right to an attorney at the time he made statement, even if he could not afford one. Both of his statements should have been suppressed:

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… [T]he People failed to establish that defendant made a knowing and intelligent waiver of his Miranda rights before giving oral and written statements to a detective at the precinct. In a videotaped statement to the prosecutor, made several hours after the statements to the detective, defendant said, “I cannot pay for a lawyer, why do I write yes or no.” The prosecutor then said, “[D]o you understand if you can’t, the Court will give you one?,” to which defendant responded, “[S]o I put no.” After the prosecutor reread the warnings defendant stated, “[Y]es, I need to have a lawyer . . . I cannot pay a lawyer.” The prosecutor next asked, “[B]ut do you understand that one will be provided if you cannot pay,” and defendant again stated “yes, but I can’t pay for a lawyer.” Finally, the prosecutor told defendant, “[O]kay, so you can write yes’ if you understand, and no’ if you don’t understand,” and defendant said, “[Y]es, I do understand.” Based on this exchange, the court correctly suppressed defendant’s videotaped statement. Given defendant’s failure to comprehend that he had the right to an attorney at the time of his statements if he could not afford one, it is evident that defendant’s previous statement to the detective should also be suppressed … .

We find that the error was not harmless, because there is a reasonable possibility that it contributed to defendant’s guilty plea … . People v Flores, 2017 NY Slip Op 06629, First Dept 9-26-17

 

CRIMINAL LAW (DEFENDANT DID NOT UNDERSTAND HE HAD A RIGHT TO AN ATTORNEY AT THE TIME HIS STATEMENTS WERE MADE EVEN IF HE COULD NOT AFFORD ONE, BOTH STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT DID NOT UNDERSTAND HE HAD A RIGHT TO AN ATTORNEY AT THE TIME HIS STATEMENTS WERE MADE EVEN IF HE COULD NOT AFFORD ONE, BOTH STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT DID NOT UNDERSTAND HE HAD A RIGHT TO AN ATTORNEY AT THE TIME HIS STATEMENTS WERE MADE EVEN IF HE COULD NOT AFFORD ONE, BOTH STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT))/SUPPRESSION (STATEMENTS, CRIMINAL LAW, DEFENDANT DID NOT UNDERSTAND HE HAD A RIGHT TO AN ATTORNEY AT THE TIME HIS STATEMENTS WERE MADE EVEN IF HE COULD NOT AFFORD ONE, BOTH STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT))/MIRANDA WARNINGS DEFENDANT DID NOT UNDERSTAND HE HAD A RIGHT TO AN ATTORNEY AT THE TIME HIS STATEMENTS WERE MADE EVEN IF HE COULD NOT AFFORD ONE, BOTH STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT))

 

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HEARING OFFICER DID NOT PROVIDE PETITIONER WITH WRITTEN NOTICE OF HER DENIAL OF PETITIONER’S REQUEST THAT A WITNESS TESTIFY, PETITIONER ENTITLED TO A NEW HEARING (THIRD DEPT).

Third Department determined petitioner was entitled to a new hearing because the hearing officer failed to provide him with written notice of her denial of the inmate’s request that a witness testify:

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At the start of the hearing, petitioner indicated three times that he wanted to call inmate X as a witness, and also informed the Hearing Officer that he wished to call six inmates who were housed in his dorm. The Hearing Officer adjourned the hearing to interview the inmates requested and, when the hearing resumed, she informed petitioner that the six inmates housed in his dorm had refused to testify, briefly mentioning the various reasons given and that they had signed refusal forms. The Hearing Officer, however, did not mention whether she had also spoken to inmate X and, if so, what he had said regarding his prior agreement to testify. No other reference was made to inmate X at the hearing and the hearing thereafter concluded without inmate X’s testimony.

Despite the fact that the hearing transcript is devoid of any indication of the Hearing Officer’s efforts to obtain inmate X’s testimony, the record contains a refusal form completed by the Hearing Officer indicating that she personally interviewed inmate X during the pendency of the hearing and that he refused to testify because he did not “want to be involved.” This record evidence establishes the Hearing Officer’s personal efforts to secure inmate X’s testimony and ascertain a sufficient reason for his refusal … . It is equally apparent that the Hearing Officer effectively made a determination to deny petitioner’s request to call this witness for this reason. However, we find that her failure to provide any written notice to petitioner concerning her effective denial of his request amounts to a regulatory violation requiring the matter to be remitted for a new hearing … . Matter of Blades v Annucci, 2017 NY Slip Op 06581, Third Dept 9-21-17

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT PROVIDE PETITIONER WITH WRITTEN NOTICE OF HER DENIAL OF PETITIONER’S REQUEST THAT A WITNESS TESTIFY, PETITIONER ENTITLED TO A NEW HEARING (THIRD DEPT))

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HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT).

The Third Department noted that habeas corpus is not a vehicle for relief for issues which could have been raised on appeal and is not available until the maximum sentence has been served (must be entitled to immediate release):

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Supreme Court properly dismissed the petition, as “habeas corpus relief is not an appropriate remedy for resolving claims that could have been or that were raised on direct appeal or in a postconviction motion” … . Petitioner’s contentions regarding his sentence were or could have been raised on his direct appeal and in his CPL article 440 motions to vacate the judgment and sentence … . In addition, even if petitioner’s claims were determined to have merit and his sentences were to run concurrently, he would not be entitled to immediate release from prison and, consequently, habeas relief is not appropriate … . To that end, it is the expiration of the maximum sentence, and not the conditional release date, that is required to establish entitlement to release in a habeas corpus proceeding, and petitioner has not yet reached the maximum expiration of his sentences even if they were concurrent … . People v D’Amico, 2017 NY Slip Op 06574, Third Dept 9-21-17

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Similar issue and result in People v Kirkpatrick, 2017 NY Slip Op 06578, Third Dept 9-21-17

 

CRIMINAL LAW (HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT))/HABEAS CORPUS (HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT))

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COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT).

The Second Department determined the defendant manufacturer was not entitled to amend its answer with counterclaims for indemnification and contribution based upon negligent supervision by the injured child’s mother in this products liability action. The child was injured by blender blades. The blender was on the kitchen counter but was not running at the time:

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… [P]laintiff’s … four-year-old daughter allegedly was injured when her hand came into contact with the blades of a hand-held stick blender that was left on the kitchen counter, plugged in but not running, while the plaintiff went to retrieve something from the freezer. The plaintiff commenced this action … to recover damages for strict products liability and breach of warranty against the defendants, which allegedly manufactured and sold the blender. The defendants moved for leave to amend their answer to assert a counterclaim against the plaintiff for contribution and indemnification. …

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In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications for leave to amend a pleading are to be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit”… . Here, the acts complained of in the proposed counterclaim did not implicate a duty owed to the public at large, but rather, only gave rise to an allegation that the plaintiff negligently supervised her child, which cannot serve as the basis for cognizable claims for contribution or indemnification … . The proposed amendment was, therefore, palpably insufficient, and the Supreme Court properly denied the defendants’ motion. Siragusa v Conair Corp., 2017 NY Slip Op 06564, Second Dept 9-20-17

 

PRODUCTS LIABILITY (COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT))/CIVIL PROCEDURE (PRODUCTS LIABILITY, COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT))/INDEMNIFICATION (PRODUCTS LIABILITY, COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT))/CONTRIBUTION (PRODUCTS LIABILITY, COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT))

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RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA OF THE SLIP AND FALL HAD LAST BEEN CLEANED OR INSPECTED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant restaurant (Carrabba’s) was not entitled to summary judgment in this slip and fall case. The restaurant did not demonstrate when the area had last been cleaned or inspected:

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To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell … . In this case, Carrabba’s failed to satisfy its initial burden on this issue. The deposition testimony of Carrabba’s manager and cleaning employee referred to Carrabba’s general daily cleaning practices. Both deponents testified that they did not remember any specific cleaning or inspection of the area of the plaintiff’s fall on the date of the accident, thereby failing to make out a prima facie showing of lack of constructive notice. Lombardo v Kimco Cent. Islip Venture, LLC, 2017 NY Slip Op 06531, 2nd Dept 9-20-17

NEGLIGENCE (SLIP AND FALL, RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA OF THE SLIP AND FALL HAD LAST BEEN CLEANED OR INSPECTED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA OF THE SLIP AND FALL HAD LAST BEEN CLEANED OR INSPECTED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT).

The Second Department determined defendant landlord’s motion for summary judgment was properly denied. Plaintiff alleged a portion of the ceiling of her apartment fell down, injuring her. She alleged a standard negligence theory (failure to keep the premises safe) and a cause of action under the res ipsa loquitur doctrine. The court noted that the res ipsa loquitur doctrine was not available because plaintiff had been in the apartment for more than a year and therefore defendant did not have exclusive control over it. However there was evidence defendant had notice of a problem with the ceiling:

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… [T]he defendant failed to establish, prima facie, that she maintained the premises in a reasonably safe condition. In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that she or he neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence … .

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Here, in support of her motion, the defendant submitted, inter alia, the deposition testimony of the plaintiff, who testified that she had previously complained to the building superintendent, Jose Martinez, that the ceiling was damaged and water-stained, and that she feared it might fall on her. The plaintiff also testified that the defendant had advised her to inform Martinez of any complaints about her apartment. Under the circumstances, the defendant failed to establish, prima facie, that she had no notice of the alleged hazardous condition … . Correa v Matsias, 2017 NY Slip Op 06520, 2nd Dept 9-20-17

 

NEGLIGENCE (RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT))/RES IPSA LOQUITUR (LANDLORD-TENANT, RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT))

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PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Brathwaite Nelson, determined petitioner’s rent subsidy benefits under the Section 8 Housing Choice Voucher Program should not have been terminated. The termination was based upon the presence of petitioner’s former intimate partner, McGill, in the home. Petitioner demonstrated that McGill, who was abusive and whose presence was unwanted, was staying in the home without her permission. Termination of the rent subsidy benefits was deemed to violate the Violence Against Women Act (VAWA):

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After an administrative hearing, the determination to terminate [petitioner’s] benefits was confirmed based upon the finding that she was obligated, but failed, to request permission to add … McGill as an occupant to her subsidized apartment. … [T]he petitioner was entitled to the housing protections of the Violence Against Women Act … based upon uncontested hearing evidence establishing that she was subjected to an escalating pattern of stalking and abusive behavior and domestic violence by McGill, … whose course of abusive and violent conduct against her included his unwanted presence in her apartment. … [W]e conclude that [petitioner] was entitled to the housing protections of the VAWA, which prohibited her termination from the program on this ground … . Matter of Johnson v Palumbo, 2017 NY Slip Op 06534, 2nd Dept 9-20-17

LANDLORD-TENANT (PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, RENT SUBSIDY, PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))/RENT SUBSIDY (PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))/SECTION 8  (PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))

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WIFE NOT ENTITLED TO INTEREST ON A LATE LUMP SUM PAYMENT, HUSBAND NOT ENTITLED TO RECOUP OVERPAYMENT OF MAINTENANCE (SECOND DEPT).

The Second Department, under the particular facts, determined the wife was not entitled to post or pre-judgment interest on a late $1,000,000 lump sum payment which was part of a stipulation of settlement in this divorce action. The court noted that the husband was not entitled to recoup an overpayment of maintenance/child support as a matter of public policy:

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… [T]he award to the defendant of $19,241.31, representing an alleged overpayment of maintenance, was improper. The recoupment of overpayments of maintenance and/or child support is generally against public policy, since those payments are deemed to have been spent for that purpose… . Further, voluntary payments are generally not credited against amounts currently due … . The voluntary payments were made, at least in part, because the plaintiff was unable to satisfy certain mortgage liens on the real property transferred to her because the defendant did not transfer the $1,000,000 distributive award to her in a timely manner. O’Donnell v O’Donnell, 2017 NY Slip Op 06540, Second Dept 9-20-17

FAMILY LAW (WIFE NOT ENTITLED TO INTEREST ON A LATE LUMP SUM PAYMENT, HUSBAND NOT ENTITLED TO RECOUP OVERPAYMENT OF MAINTENANCE (SECOND DEPT))/DIVORCE (WIFE NOT ENTITLED TO INTEREST ON A LATE LUMP SUM PAYMENT, HUSBAND NOT ENTITLED TO RECOUP OVERPAYMENT OF MAINTENANCE (SECOND DEPT))/MAINTENANCE (WIFE NOT ENTITLED TO INTEREST ON A LATE LUMP SUM PAYMENT, HUSBAND NOT ENTITLED TO RECOUP OVERPAYMENT OF MAINTENANCE (SECOND DEPT))/CHILD SUPPORT (WIFE NOT ENTITLED TO INTEREST ON A LATE LUMP SUM PAYMENT, HUSBAND NOT ENTITLED TO RECOUP OVERPAYMENT OF MAINTENANCE (SECOND DEPT))

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EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined plaintiffs’ 42 USC 1983 causes of action against the police and the municipality were properly dismissed. Placing handcuffs on the plaintiffs during the execution of a search warrant did not constitute excessive force. Plaintiffs did not demonstrate the municipality was implementing an unconstitutional policy:

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… [T]he officers’ use of force while executing the search warrant was reasonable. Handcuffing the plaintiff and her two teenaged sons for the duration of the search was reasonable under the circumstances, given that the officers did not know who they might encounter or whether any occupants of the house might have weapons … . The fact that the plaintiff was not named as a subject of the warrant did not render the conduct of the police objectively unreasonable … . In opposition, the plaintiff failed to raise a triable issue of fact regarding the propriety of the level of force used by the police in executing the search warrant. Additionally, “a plaintiff must have sustained some injury to maintain a claim of excessive force, although that injury need not be severe” … . Here, the plaintiff failed to raise a triable issue of fact as to whether she or any of her children sustained an injury as a result of being handcuffed or detained during the search … . …

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” [A] 42 USC § 1983 action may lie against a municipality if the plaintiff shows that the action that is alleged to be unconstitutional either implement[s] or execute[s] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers or has occurred pursuant to a practice so permanent and well settled as to constitute a custom or usage with the force of law'” … . However, a municipality “cannot be held liable pursuant to 42 USC § 1983 based solely upon the doctrine of respondeat superior or vicarious liability”… . Here, in opposition to the defendants’ prima facie showing, the plaintiff’s conclusory assertions failed to raise a triable issue of fact as to whether the alleged unconstitutional actions resulted from a policy, regulation, or custom of the City … . Harris v City of New York, 2017 NY Slip Op 06527, 2nd Dept 9-20-17

 

CIVIL RIGHTS LAW (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/MUNICIPAL LAW (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/POLICE (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))/EXCESSIVE FORCE (42 USC 1983, EXCESSIVE FORCE ALLEGATIONS AGAINST POLICE AND 42 USC 1983 CAUSE OF ACTION AGAINST THE MUNICIPALITY PROPERLY DISMISSED (SECOND DEPT))

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