McKinney v. City of New York

Decision Date17 November 1980
Citation78 A.D.2d 884,433 N.Y.S.2d 193
PartiesAnna McKINNEY, as the administratrix, etc., Respondent, v. The CITY OF NEW YORK, et al., Defendants; The New York City Transit Authority, Appellant.
CourtNew York Supreme Court — Appellate Division

Helen R. Cassidy, Brooklyn (Lawrence Heisler and John A. Murray, Brooklyn, of counsel), for appellant.

Before MOLLEN, P. J., and MANGANO, MARGETT and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action inter alia to recover damages for the deprivation of the civil rights of plaintiff's decedent, defendant New York City Transit Authority appeals from so much of an order of the Supreme Court, Kings County, dated December 20, 1979, as denied the branch of its motion which sought to dismiss the first three causes of action asserted against it in the complaint.

Order reversed insofar as appealed from, on the law, without costs or disbursements, and first three causes of action dismissed.

The complaint asserted five causes of action. Special Term dismissed the punitive damages claim, the fifth cause of action, asserted against all defendants, and defendant New York City Transit Authority (the authority) does not appeal from that portion of the order. Special Term refused to dismiss the other causes of action asserted against the authority. The fourth cause of action, asserted only against defendant Davis, is not before us on this appeal. It asserts a common-law wrongful death claim, based on assault.

The first three causes of action state claims for damages arising out of defendant Davis' shooting of plaintiff's decedent while Davis was employed as a bus driver for the defendant authority.

The first claim asserts that Davis, by shooting plaintiff's decedent, deprived him of his constitutional rights and attempts to hold the defendants New York City and the authority liable on a theory of respondeat superior. The second cause of action alleges that defendant Davis, at the time of the shooting, was acting under the authority of his status as a peace officer 1 when he shot plaintiff's decedent, thereby depriving him of his constitutional rights. The third cause of action, against all defendants, alleges that the acts were perpetrated upon plaintiff's decedent because he was a member of the black race, not because of any misconduct on his part, and that such acts therefore violated plaintiff's decedent's constitutional rights.

The authority moved inter alia to dismiss the complaint on the ground that a similar action had been brought in the Federal District Court and had been dismissed for failure to state a claim upon which relief could be granted. The authority asserted that such determination was res judicata in the present action.

The Federal complaint was virtually identical to the State court complaint, asserting the same five causes of action. In its decision and order, the Federal court treated the defendant authority's motion for summary judgment dismissing the complaint (Fed.Rules Civ.Pro. 56) as one to dismiss the complaint for failure to state a claim upon which relief can be granted (Fed.Rules Civ.Pro. 12(b)(6)). In its memorandum decision and order (McKinney v. City of New York, U.S.Dist.Ct., E.D.N.Y., May 21, 1979, MISHLER, CH. J.), the Federal court held that the complaint asserted "five claims based on 42 U.S.C. §§ 1981 and 1983, and 'such rights (as) are delineated within the Fifth and Fourteenth Amendments of the Constitution of the United States of America to be secure in ... life and liberty with due process of law.' " The court held that the complaint failed to assert a valid cause of action because there were "no allegations which 'link' Davis' misconduct to 'the adoption of any plan or policy (by the moving defendants) showing their authorization or approval of such misconduct' ", under the doctrine enunciated in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 and Monell v. Department of Soc. Servs. of City of N. Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611.

Special Term denied the authority's motion to dismiss as to the first three causes of action in the complaint at bar, finding that "the decision of Judge Mishler was that federal jurisdiction did not exist under 42 U.S.C. 1983 * * * The prerequisites of res judicata, which would bar the action from being heard in a state court where jurisdiction clearly exists, were never met." The court also held that the requirements for a finding of res judicata, mainly an opportunity to contest the factual issues in the case, were missing.

It is clear that the three causes of action at issue on this appeal involve only claims under Federal law (U.S.Code, tit. 42, § 1983), and not under any State law. State courts, however, have concurrent jurisdiction with the Federal District Courts over actions brought under section 1983 of title 42 of the United States Code (see Brody v. Leamy, 90 Misc.2d 1, 393 N.Y.S.2d 243).

We disagree with Special Term's reading of the Federal court's dismissal order as being based on jurisdictional grounds. The Federal court explicitly found that the "allegations (of the complaint) are insufficient to sustain a claim under section 1983." Moreover, it is clear that the Federal court did have subject matter jurisdiction over the action. The "jurisdictional counterpart" of section 1983, under which the Federal action was brought, is section 1343 of title 28 of the United States Code (see Monell v. Department of Soc. Servs. of City of N. Y., 436 U.S. 658, 663, 98 S.Ct. 2018, 2021, 56 L.Ed.2d 611, supra ). Paragraph (3) of subdivision (a) of section 1343 confers original jurisdiction on the Federal District Court over any action properly brought under section 1983. Although the Federal court's determination that the plaintiff failed to assert an actionable claim under section 1983 arguably meant that subject matter jurisdiction under section 1343 could not have been invoked, alternate jurisdictional bases were provided by section 1331 of title 28 of the United...

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