Kolko v. City of Rochester

• Decision Date: 01 April 1983
• Citation: 93 A.D.2d 977,461 N.Y.S.2d 650
• Parties: Mordecai KOLKO and Bradleigh Kolko, Individually and as Husband and Wife, and as Parents and Natural Guardians of Ada Amy Kolko, an Infant, and Hanan Kolko, Appellants, v. CITY OF ROCHESTER, New York, City of Rochester Police Department, David Monk, Robert Gill and E.J. Lergner, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 650

461 N.Y.S.2d 650

93 A.D.2d 977

Mordecai KOLKO and Bradleigh Kolko, Individually and as Husband and Wife, and as Parents and Natural Guardians of Ada Amy Kolko, an Infant, and Hanan Kolko, Appellants, v. CITY OF ROCHESTER, New York, City of Rochester Police

Department, David Monk, Robert Gill and E.J.

Lergner, Respondents.

Supreme Court, Appellate Division,

Fourth Department.

April 1, 1983.

Mayberry, Kurlander, Licht & Lunn by Jerry Goldman, Rochester, for appellants.

Louis N. Kash, Corp. Counsel by Michael Looby, Rochester, for respondents.

Before HANCOCK, J.P., and CALLAHAN, DOERR, DENMAN and MOULE, JJ.

MEMORANDUM:

Plaintiffs appeal from an order dismissing their complaint which contained causes of action based upon alleged deprivation of their constitutional rights (US Const., 1st and 14th Amdt.), violation of their civil rights (42 U.S.C. § 1983), negligence, defamation and derivative claims. The factual circumstances are not in dispute. Defendants concede that an eavesdropping warrant had been obtained by defendant City of Rochester Police Department and that based upon information received from the wiretap, a search warrant was issued. The transcript of the taped conversation concerning a purchase of marijuana revealed that the subject of the wiretap called telephone number 244-9871 and spoke to an unknown male. Although the number listed in the transcript was 244-9871, a transposition error in the telephone company record check incorrectly led the police to obtain a warrant for plaintiffs' address which contained a phone listed as 244-9817. On the evening of September 25, 1981, while plaintiffs were observing the Jewish Sabbath, defendants went to plaintiffs' residence, where they were granted entry upon service of the search warrant. It is alleged "the defendants then and there informed plaintiff Mordecai Kolko that his son the plaintiff Hanan Kolko was under suspicion of selling marijuana and that a phone conversation had taken place between his son and another person in which his son had offered to sell two pounds of marijuana ...." After a search of plaintiffs' premises failed to uncover any controlled substance, defendants telephoned the District Attorney's office while still at plaintiffs' residence and ascertained that they had executed the warrant upon the wrong premises. Plaintiffs thereafter instituted this action.

Plaintiffs' cause of action against the municipality under section 1983 of Title 42 of the United States Code was properly dismissed; there are no allegations that an official municipal policy was responsible for the alleged deprivation of plaintiffs' rights. A municipality may only be held liable under section 1983 if the action complained of was taken pursuant to official policy, and it cannot be held liable under that section on the theory of respondeat superior (see Monnell v. Department of Social Services of New York City, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611; Smith v. County of Livingston, 69 A.D.2d 993, 995, 416 N.Y.S.2d 130). Nor may the cause of action under section 1983 stand against the individual officers. The complaint, which attributes no more than negligence to the officers who acted pursuant to a warrant valid on its face, does not contain the necessary allegations of bad faith or unreasonable conduct in obtaining or executing the warrant (see Madison v. Manter, 441 F.2d 537 (1st Cir.1971); cf. Pritz v. Hackett, 440 F.Supp. 592; 1 Ringel, Searches and...