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COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined the complaint stated causes of action against the city and a city police officer (DeBellis) in connection with, inter alia, warrantless home visits by the officer purportedly concerning the well-being of plaintiff’s child and allegedly false complaints by the officer to the Administration for Children’s Services (ACS):

… [A]lthough not expressly pleaded, the factual allegations in the complaint fit within a cause of action against DeBellis for intentional infliction of emotional distress based on her alleged malicious or reckless false reporting to ACS and malicious campaign of harassment. …

…[W]e cannot say, as a matter of law, that DeBellis’s actions did not rise to the requisite level of outrageous conduct. The facts alleged by plaintiff describe both (1) a deliberate and malicious campaign of harassment and intimidation and (2) an abuse of power. …

Plaintiff has also stated a claim against defendants under 42 USC § 1983 for deprivation of plaintiff’s constitutional rights, specifically, her right under the Fourth Amendment to be free from warrantless and unlawful entries into the home … . …

Despite … allegations of repeated notice to DeBellis’s superiors of her actions, there is no indication … any action was taken to restrain her. Accordingly … plaintiff has stated a claim for holding the City liable under § 1983 on account of its gross negligence or deliberate indifference to DeBellis’s unconstitutional actions … . …

…[Plaintiff] states a claim against the City for negligent supervision and retention of DeBellis … . Under this theory, an employer may be liable for the acts of an employee outside the scope of his or her employment … . Contrary to the City’s argument, the facts permit an inference that DeBellis was acting outside of the scope of her employment, and, as plaintiff argues, “had some personal axe to grind.” Scollar v City of New York, 2018 NY Slip Op 02032, First Dept 3-22-18

MUNICIPAL LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/CIVIL RIGHTS LAW (42 USC 1983)  (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENCE (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL TORTS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/EMPLOYMENT LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENT SUPERVISION AND RETENTION COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))

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ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENTS MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that defendants demonstrated the suit against them was a strategic lawsuit against public participation (SLAPP). Therefore plaintiff’s motion to dismiss the defendants’ anti-SLAPP counterclaim was properly denied. Plaintiff operated a yard-waste-related business. Defendants lived on neighboring properties and had made statements about odors and contamination related to the yard waste. Because the court determined this was a SLAPP suit, the complaint against a defendant based upon statements made by the defendant about plaintiff’s yard waste business (alleging defamation, interference with a a business relationship, inter alia) should have been dismissed:

It is undisputed that, in 2007, plaintiffs registered with the Department of Environmental Conservation (hereinafter DEC) as a yard waste composting facility that accepts between 3,000 to 10,000 cubic yards of waste per year … . Lawful operation of plaintiffs’ composting facility requires DEC permission and ongoing compliance with all applicable regulations and is subject to oversight by DEC … . …  In light of the fact that operations pursuant to a registration require DEC permission and are subject to continuing DEC oversight, Supreme Court properly concluded that plaintiffs are public permittees, as defined by Civil Rights Law § 76-a (1) (b) … .

We also conclude that the relevant conduct challenged in this action — defendants’ statements about plaintiffs and the operations conducted at their property — establishes that the action is materially related to plaintiffs’ registered yard composting facility. …

Inasmuch as we have determined that this action involves public petition and participation, to avoid dismissal of the complaint against [defendant] Merced, plaintiffs must demonstrate that any statement they allege she made “was made with knowledge of its falsity or with reckless disregard of whether it was false” (Civil Rights Law § 76-a [2]…) . Plaintiffs failed to meet this burden. Edwards v Martin, 2018 NY Slip Op 01238, Third Dept 2-22-18

CIVIL RIGHTS LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/ENVIRONMENTAL LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/DEFAMATION (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/SLAPP SUITS (ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))

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PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Mazzarelli, determined that the state’s use of claimant’s image in a public service ad informing HIV positive people of their rights constituted defamation per se, but not standard defamation. The First Department further determined the Civil Rights Law (privacy violation) causes of action did not apply to the state, which did not use the image for commercial purposes. Claimant alleged she suffered “mental anguish” as a result of the publication of her image and argued HIV constitutes a “loathsome disease” because of the way the condition is perceived by portions of the public:

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… [P]laintiff must prove damage to (his, her) reputation or standing in the community, or damages such as personal humiliation, mental anguish and suffering” (PJI 3:29B). The use of the word “or” clearly indicates that the state of the law in New York is such that mental anguish is an alternative to reputational injury in establishing damages in a defamation case. * * *

… [B]ecause claimant alleges that she was the victim of defamation per se, we must decide whether she is indeed entitled to recover under that theory. A defamation plaintiff must plead special damages unless the defamation falls into any one of four per se categories: (1) statements charging the plaintiff with a serious crime; (2) statements that tend to injure the plaintiff in her trade, business or profession; (3) statements that impute to the plaintiff a “loathsome disease”; and (4) statements that impute unchastity to a woman… . Claimant purports to qualify under the “loathsome disease” category. …  Claimant, … while taking issue with the archaic term “loathsome,” argues that it is legally operative and historically applicable in the case of medical conditions such as HIV that are communicable and can still, in claimant’s opinion, result in societal ostracism. Nolan v State of New York, 2018 NY Slip Op 00269, First Dept 1-16-18

DEFAMATION (PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/HIV (DEFAMATION, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/IMAGES (DEFAMATION, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE (FIRST DEPT))/CIVIL RIGHTS LAW (PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))/PRIVACY RIGHTS (CIVIL RIGHTS LAW, PHOTOGRAPHS, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))/PHOTOGRAPHS (CIVIL RIGHTS LAW, PHOTOGRAPHS, PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT))

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CORRECTIONS OFFICER’S OFFICIAL MISCONDUCT PLEA ALLOCUTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE INMATE’S CIVIL COMPLAINT AGAINST THE OFFICER, THEREFORE THE STATE WAS OBLIGATED TO DEFEND THE OFFICER IN THE CIVIL PROCEEDING (THIRD DEPT).

The Third Department determined the state was obligated to defendant the petitioner, a corrections officer, in a civil action brought by an inmate against the petitioner. The state argued its obligation to defend the petitioner ended when petitioner pled guilty to official misconduct. The court found that the sparse plea allocution did not indicate the acts alleged in the civil complaint were outside the scope of petitioner’s employment, the allegations in the bill of particulars could not be used to supplement the plea allocution, and the plea did not address at all some of the allegations in the civil complaint:

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As is the case in the private insurance realm, the state’s determination to disclaim financial responsibility for an employee’s defense is rational only if it can be determined, as a matter of law, “that there is no possible factual or legal basis on which the [s]tate may be obligated to indemnify the employee” … . Pursuant to Public Officers Law § 17 (3) (a), the state has an obligation to indemnify its employees for any judgment or settlement obtained against them in state or federal court, so long as “the act or omission from which [the] judgment or settlement arose occurred while the employee was acting within the scope of his [or her] public employment or duties” and “the injury or damage [did not] result[] from intentional wrongdoing on the part of the employee.” Stated differently, the state will not have a duty to indemnify an employee if the act or omission giving rise to the civil judgment or settlement occurred outside the scope of his or her employment or was the product of intentional wrongdoing … .

Generally, “a particular issue expressly or necessarily decided in a criminal proceeding may be given preclusive effect in a subsequent affected civil action” if “the issue is identical in both actions, necessarily decided in the prior criminal action[,] . . . decisive in the civil action [and the defendant in the criminal action] had a full and fair opportunity . . . to litigate the now-foreclosed issue” … . Contrary to respondent’s contentions, neither petitioner’s plea allocution nor the elements of official misconduct preclusively established that the acts alleged in the civil complaint occurred while petitioner was acting outside the scope of his employment or that the injuries or damages allegedly sustained by [the inmate] were the result of petitioner’s intentional wrongdoing … . Matter of Rademacher v Schneiderman, 2017 NY Slip Op 08416, Third Dept 11-30-17

 

EMPLOYMENT LAW (PUBLIC OFFICERS LAW, CORRECTIONS OFFICER’S OFFICIAL MISCONDUCT PLEA ALLOCUTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE INMATE’S CIVIL COMPLAINT AGAINST THE OFFICER, THEREFORE THE STATE WAS OBLIGATION TO DEFEND THE OFFICER IN THE CIVIL PROCEEDING (THIRD DEPT))/PUBLIC OFFICERS LAW (EMPLOYMENT LAW, CORRECTIONS OFFICER’S OFFICIAL MISCONDUCT PLEA ALLOCUTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE INMATE’S CIVIL COMPLAINT AGAINST THE OFFICER, THEREFORE THE STATE WAS OBLIGATION TO DEFEND THE OFFICER IN THE CIVIL PROCEEDING (THIRD DEPT))/CRIMINAL LAW (EMPLOYMENT LAW, PUBLIC OFFICERS LAW, CORRECTIONS OFFICER’S OFFICIAL MISCONDUCT PLEA ALLOCUTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE INMATE’S CIVIL COMPLAINT AGAINST THE OFFICER, THEREFORE THE STATE WAS OBLIGATION TO DEFEND THE OFFICER IN THE CIVIL PROCEEDING (THIRD DEPT))/OFFICIAL MISCONDUCT (CORRECTIONS OFFICERS, EMPLOYMENT LAW, PUBLIC OFFICERS LAW,  CORRECTIONS OFFICER’S OFFICIAL MISCONDUCT PLEA ALLOCUTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE INMATE’S CIVIL COMPLAINT AGAINST THE OFFICER, THEREFORE THE STATE WAS OBLIGATION TO DEFEND THE OFFICER IN THE CIVIL PROCEEDING (THIRD DEPT))/CORRECTIONS OFFICERS (EMPLOYMENT LAW, PUBLIC OFFICERS LAW, OFFICIAL MISCONDUCT, OFFICER’S OFFICIAL MISCONDUCT PLEA ALLOCUTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE INMATE’S CIVIL COMPLAINT AGAINST THE OFFICER, THEREFORE THE STATE WAS OBLIGATION TO DEFEND THE OFFICER IN THE CIVIL PROCEEDING (THIRD 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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42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s 42 USC 1983 cause of action, as well as the malicious prosecution cause of action, should not have been dismissed. The court noted that the notice of claim need not name any individual police officers who are subsequently sued (acknowledging a split of authority on the issue). The court also explained the statutes of limitations as they apply to false arrest, false imprisonment, malicious prosecution and 42 USC 1983 causes of action:

The complaint alleged that the defendants arrested, detained, and prosecuted the plaintiff without probable cause and that they knew that the criminal complaint contained falsehoods. The eyewitness’s affidavit … supported these allegations by asserting that police and an ADA coerced the eyewitness to make a false identification of the plaintiff. …

Further, … the eyewitness’s affidavit did not present feigned issues of fact. The eyewitness did not give any prior testimony in this action … . … [H]is affidavit did not contradict the plaintiff’s prior testimony, including the plaintiff’s deposition testimony that the eyewitness was “scared” when the police talked to him about the shooting. …

[T]he plaintiff raised a triable issue of fact as to whether Detective Failla’s evaluation of probable cause was objectively reasonable, thus precluding an award of summary judgment in Detective Failla’s favor on the ground of qualified immunity … .

… [W]e have held that the plain language of General Municipal Law § 50-e(2) does not require a notice of claim to “[list] the names of the individuals who allegedly committed the wrongdoing” … . Williams v City of New York, 2017 NY Slip Op 06477, Second Dept 9-13-17

CIVIL RIGHTS LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/42 USC 1983 (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MUNICIPAL LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/INTENTIONAL TORTS (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, 42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, INDIVIDUAL POLICE OFFICERS NEED NOT BE NAMED IN THE NOTICE OF CLAIM (SECOND DEPT))/FALSE ARREST (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/FALSE IMPRISONMENT (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MALICIOUS PROSECUTION (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))

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42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ADEQUATELY ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT).

The Second Department determined the 42 USC 1983 cause of action was properly dismissed. The action stemmed from an arrest. Plaintiff did not adequately allege the police officers acted pursuant to an unconstitutional policy or custom:

To hold a municipality liable under section 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy … . Here, “[a]lthough the complaint alleged as a legal conclusion that the defendant[ ] engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced” … . Martin v City of New York, 2017 NY Slip Op 06172, Second Dept 8-16-17

MUNICIPAL LAW (42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT))/42 USC 1983  (42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT))/CIVIL RIGHTS LAW (42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT))/POLICE OFFICERS (42 USC 1983 CAUSE OF ACTION PROPERLY DISMISSED, PLAINTIFF DID NOT ALLEGE THE ARRESTING OFFICERS ACTED PURSUANT TO AN UNCONSTITUTIONAL POLICY OR CUSTOM (SECOND DEPT))

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SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT. 

The First Department, reversing Supreme Court, determined the petition seeking pre-action disclosure by respondent of the identities of persons who allegedly violated a confidentiality agreement should not have been granted. Respondent provides information about debt-distressed companies to a small audience at high prices. The First Department concluded that respondent operated a news service and the pre-action disclosure was precluded by the Civil Rights Law (Shield Law) which protects sources of news stories:

… [R]espondent established that its editorial staff is solely responsible for deciding what to report on and that it does not accept compensation for writing about specific topics or permit its subscribers to dictate the content of its reporting. Other courts have found the extent of a publication’s independence and editorial control to be important in determining whether to apply the Shield Law … . We concur.

Extending protection to respondent under the Shield Law is consistent with New York’s “long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press” – protection that has been recognized as “the strongest in the nation” … . To condition coverage on a fact-intensive inquiry analyzing a publication’s number of subscribers, subscription fees, and the extent to which it allows further dissemination of information is unworkable and would create substantial prospective uncertainty, leading to a potential “chilling” effect. Matter of Murray Energy Corp. v Reorg Research, Inc., 2017 NY Slip Op 05688, 1st Dept 7-13-17

CIVIL RIGHTS LAW (SHIELD LAW) (SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/CONSTITUTIONAL LAW (FREEDOM OF THE PRESS, SHIELD LAW, (SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/SHIELD LAW (CIVIL RIGHTS LAW, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/FREEDOM OF THE PRESS (CIVIL RIGHTS LAW, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/CIVIL PROCEDURE (PRE-ACTION DISCLOSURE, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)

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HEARING NECESSARY ON MOTHER’S PETITION TO CHANGE THE SURNAME OF ONE OF THE CHILDREN, MATTER REMITTED.

The Fourth Department, reversing Supreme Court, determined a hearing should have been held on mother’s petition to change the surname of one of their children. The petition was opposed by father:

“Civil Rights Law § 63 authorizes an infant’s name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change” … . With respect to infants, the statute provides in relevant part, that, if the court is “satisfied . . . that the petition is true, . . . that there is no reasonable objection to the change of name proposed, and . . . that the interests of the infant will be substantially promoted by the change,” the court may grant the petition (§ 63). With respect to the interests of the infant, “the issue is not whether it is in the infant’s best interests to have the surname of the mother or father, but whether the interests of the infant will be promoted substantially by changing his [or her] surname” … . Such a determination “requires a court to consider the totality of the circumstances” … .

Contrary to petitioner’s contention, respondent raised reasonable objections to the petition … . Petitioner is seeking to change the sons’ names to a surname that is not used by either parent or the sons’ half-sibling … . While “neither parent has a superior right to determine the surname of the child,” we have stated that “a father has a recognized interest in having his child bear his surname” … . Respondent also contends that an order granting the petition will have a deleterious effect on his relationship with his sons … . Although petitioner contends that the sons desire the name change, that contention is based on hearsay, and respondent challenges that contention. Inasmuch as the court did not conduct an in camera interview with them, we cannot resolve that disputed issue on this record. In any event, the sons are now of sufficient age and maturity to express their preference for a particular surname, and they have a right to be heard … . Matter of Niethe (McCarthy–DePerno), 2017 NY Slip Op 05371, 4th Dept 6-30-17

 

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GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER.

The Fourth Department, reversing Supreme Court, determined the grand jury minutes surrounding a fatal shooting by a police officer should not be released. Decedent’s wife sought the grand jury minutes in a federal civil rights action:

We agree with the County that plaintiff failed to “demonstrat[e] a compelling and particularized need for access’ ” to the grand jury materials… . Such a showing must be made in order to overcome the “presumption of confidentiality [that] attaches to the record of [g]rand [j]ury proceedings” … , and is a prerequisite to the court’s exercise of its discretion in “balanc[ing] the public interest for disclosure against the public interest favoring secrecy” … . Here, plaintiff failed to establish that the discovery proceedings in federal court would not be sufficient to ascertain the facts and circumstances surrounding the shooting … . Williams v City of Rochester, 2017 NY Slip Op 04646, 4th Dept 6-9-17

FREEDOM OF INFORMATION LAW (FOIL) (GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER)/GRAND JURY MINUTES (FREEDOM OF INFORMATION LAW, GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER)

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