Liu v. New York City Police Dept.

• Decision Date: 13 June 1995
• Citation: 627 N.Y.S.2d 683,216 A.D.2d 67
• Parties: Herbert LIU, Plaintiff-Respondent v. NEW YORK CITY POLICE DEPARTMENT, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 683

627 N.Y.S.2d 683

216 A.D.2d 67

Herbert LIU, Plaintiff-Respondent v. NEW YORK CITY POLICE DEPARTMENT, et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

June 13, 1995.

A.E. Wolin, for plaintiff-respondent.

M. Newman, for defendants-appellants.

Before MURPHY, P.J., and SULLIVAN, RUBIN, ASCH and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about March 28, 1994, which denied defendants' motion to dismiss the complaint, unanimously reversed, on the law, the motion granted and the complaint dismissed, without costs.

Contrary to defendants' claim, actions against the municipality to recover for Federal and State civil rights violations are not subject to the notice of claim requirements in General Municipal Law § 50-i (Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123; Alaimo v. New York City Dept. of Sanitation, 203 A.D.2d 501, 611 N.Y.S.2d 245).

However, plaintiff's failure to specifically plead the existence of an official policy or custom which deprived him of a constitutional right in violation of 42 U.S.C. § 1983 is fatal to his claim against the municipality (Jackson v. Police Dept., 192 A.D.2d 641, 642, 596 N.Y.S.2d 457, lv. denied 82 N.Y.2d 658, 604 N.Y.S.2d 557, 624 N.E.2d 695, cert. denied --- U.S. ----, 114 S.Ct. 1370, 128 L.Ed.2d 46). A municipality can be found liable under 42 U.S.C. § 1983 for deprivation of constitutional rights only where the municipality itself causes the constitutional violation at issue (id.). It cannot be held liable pursuant to 42 U.S.C. § 1983 based solely upon the doctrine of respondeat superior or vicarious liability (id.).

Res judicata does not bar plaintiff from litigating his State and Federal civil rights claims in which he alleges that the revocation of his pistol licenses was discriminatorily based upon his Chinese national origin and deprived him of his constitutional rights. Although these claims were not raised in the prior CPLR article 78 proceeding challenging the revocations (Matter of Liu v. New York City Police Dept., 188 A.D.2d 284, 591 N.Y.S.2d 5, lv. denied 81 N.Y.2d 708, 597 N.Y.S.2d 938, 613 N.E.2d 970), damages for civil rights violations are not "incidental to the primary relief sought" (CPLR 7806; Davidson v. Capuano, 792 F.2d 275 [2d Cir.1986], and thus, the article 78 court "did not have the power to award the full measure of [the] relief sought" (id., at 278; see also, Fay v. South Colonie Cent. School Dist., 802 F.2d 21, 29 [2d Cir.1986]; Matter of Rosario v. Blum, 80 A.D.2d 511, 512-513, 435 N.Y.S.2d 596). Nor is plaintiff collaterally estopped since the civil rights claims in the present action were not raised or necessarily decided in the prior action (see, D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634).

However, we find that the individual defendants should be granted qualified immunity from plaintiff's civil rights claims. A government official performing a discretionary function is entitled to qualified immunity provided his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known (Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523). Determination as to whether the doctrine of qualified immunity may be invoked requires a three-part analysis (Ying Jing Gan v. City of New York, 996 F.2d 522, 532 [2d Cir.1993]; Jermosen v. Smith, 945 F.2d 547, 550, cert. denied 503 U.S. 962, 112 S.Ct. 1565, 118 L.Ed.2d 211 [2d Cir.1991]; Francis v. Coughlin, 891 F.2d 43, 46 [2d Cir.1989] [citing Anderson v. Crighton, supra ] The court must determine: 1) the identification of the specific right allegedly violated; 2) whether that right was so "clearly established" as to alert a reasonable official to its constitutional parameters; and 3) whether a reasonable official could have believed that the particular conduct at issue was lawful.

Once the defense is raised by defendant, plaintiff has the burden to show that the constitutional right at issue was clearly established at the time of defendant's actions (Connor v. Foster, 833 F.Supp. 727, 730). A defendant-government official will prevail if the right asserted by plaintiff was not "clearly established" or if the official reasonably believed that his particular conduct was lawful. Qualified immunity is an affirmative defense and an issue of law which the court should decide at the earliest possible stage of the litigation, and it may be raised and decided on a motion to dismiss prior to discovery (Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396; Castro v. United States, 34 F.3d 106, 112-13 [2d Cir.1994].

Where the objective reasonableness of an official's conduct rests on establishing whether defendant acted with an impermissible motive or intent, plaintiff must plead such intent with specific evidence (Lewis v. City of Ft. Collins, 903 F.2d 752, 758 [10th Cir.1990], citing Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 649 [10th Cir.1988]; Hobson v. Wilson, 737 F.2d 1, 29-31, cert. denied 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 [DC Cir.1984]; Gooden v....