Curley v. Board of Trustees of Village of Suffern

• Decision Date: 27 March 1995
• Parties: Thomas CURLEY, Appellant, v. BOARD OF TRUSTEES OF the VILLAGE OF SUFFERN, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 265

624 N.Y.S.2d 265

213 A.D.2d 583

Thomas CURLEY, Appellant, v. BOARD OF TRUSTEES OF the VILLAGE OF SUFFERN, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

March 27, 1995.

Dorfman, Lynch & Knoebel, Nyack (Dennis E.A. Lynch, of counsel), for appellant.

Ciovacco & Campanella, East Meadow (Jeannine A. Broomhall, of counsel), for respondents.

Before SULLIVAN, J.P., and COPERTINO, HART and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages pursuant to 42 U.S.C. § 1983, the plaintiff appeals from an order of the Supreme Court, Rockland County (Stolarik, J.), dated October 19, 1993, which granted the defendants' motion for summary judgment dismissing the plaintiff's second cause of action.

ORDERED that the order is affirmed, with costs.

The plaintiff, a police officer, commenced the present action to recover damages, inter alia, for an alleged violation of his constitutional rights due to the interception and taping of a telephone conversation between him and another police officer over police telephone lines. It is uncontroverted that the plaintiff knew that the police telephone lines were monitored.

The Supreme Court dismissed all of the plaintiff's complaint except the second cause of action to recover damages for violation of the plaintiff's constitutional rights. Thereafter, in the order appealed from, the Supreme Court dismissed the remainder of plaintiff's complaint. We now affirm.

If one party to a telephone conversation consents to its being taped, the other party cannot argue that his rights have been violated (see, United States v. Cafaro, 480 F.Supp. 511 (S.D.N.Y.1979)). Further, a caller's consent can be inferred from the facts and circumstances surrounding the recording (see, People v. Tabora, 139 A.D.2d 540, 527 N.Y.S.2d 36; United States v. Amen, 831 F.2d 373 (2nd Cir.1987), cert. denied 485 U.S. 1021, 108 S.Ct. 1573, 99 L.Ed.2d 889 [prison inmates impliedly consented to the interception of telephone calls by using prison telephones when they were on notice of an interception policy]; United States v. Willoughby, 860 F.2d 15 (2nd Cir.1988), cert. denied 488 U.S. 1033, 109 S.Ct. 846, 102 L.Ed.2d 978 [interception of a telephone call by an inmate to a noninmate does not violate the Fourth Amendment rights of either party]. In this case, the plaintiff's consent may be inferred from his knowledge that the police telephone lines were monitored.

Moreover, the routine,...