Pitt v. City of New York

• Decision Date: 12 November 1981
• Citation: 444 N.Y.S.2d 522,111 Misc.2d 569
• Parties: Thomas PITT, Plaintiff, v. The CITY OF NEW YORK, Richard Nagle, James Mugan, Neil Cronin, William Lyons and "John Doe" and "Richard Roe", being fictitious names, and true names of these police officers of the City of New York being unknown, Defendants.
• Court: New York Supreme Court

Page 522

444 N.Y.S.2d 522

111 Misc.2d 569

Thomas PITT, Plaintiff, v. The CITY OF NEW YORK, Richard Nagle, James Mugan, Neil Cronin, William Lyons and "John Doe" and "Richard Roe" being fictitious names, and true names of these police officers of the City of New York being unknown, Defendants.

Supreme Court, Special Term,

New York County, Part I.

Nov. 12, 1981.

Danzig, Bunks & Silk, P. C., New York City, for plaintiff.

John J. Kearns, New York City, for defendant Mugan.

Allen G. Schwartz, Corporation Counsel, New York City, for defendant City of New York.

EDWARD J. GREENFIELD, Justice.

This case raises a question of first impression in this state--is an action brought for a traditional tort which it is claimed resulted in a deprivation of constitutional rights under the elastic concepts of 42 U.S.Code, § 1983 a new substantive cause of action for which there is no previously prescribed state statute of limitations, or is it a new procedural remedy as to which the applicable statute of limitations for the traditional tort applies?

Plaintiff Thomas Pitt, alleges that in the early morning hours on June 2, 1979, he was in a tavern in this county when defendant James Mugan, together with five other New York police officers, burst through the tavern's entrance yelling that everyone was under arrest. Immediately thereafter and without provocation, it is alleged, Mugan and one or more of the other officers knocked plaintiff to the floor and repeatedly beat him with riot sticks. Additionally, it is asserted that Mugan smashed the butt end of his service revolver into plaintiff's head. The defendants then exited without arresting plaintiff, who was taken to the Columbia Presbyterian Hospital emergency room for initial treatment including suturing of his scalp.

Defendant James Mugan moves pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the Statute of Limitations. Defendant New York City's cross-motion to amend its answer is permitted to be withdrawn.

While plaintiff initially alleged that defendant, Mugan, was a police officer, apodictic proof submitted by Mugan shows that he was, in fact, permanently retired from the New York City Police Department two years before the alleged attack. Nevertheless, it is alleged that he acted in concert with police officers on duty who raided the tavern.

Plaintiff commenced this action for the deprivation of his civil rights pursuant to 42 U.S.C. § 1983 on August 4, 1980--one year and two months from the date of its accrual. State courts have concurrent jurisdiction over 42 U.S.C. § 1983 claims (Carothers v. Follette, 314 F.Supp. 1014 Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168, 399 N.E.2d 1188; Clark v. Bond Stores, Inc., 41 A.D.2d 620, 340 N.Y.S.2d 847).

Initially, inquiry is appropriate into whether plaintiff has a cognizable claim under 42 U.S.C. § 1983, which reads as follows:

" § 1983. Civil Action for Deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

For the purpose of this motion, the pleadings, liberally construed, are deemed proven. Therefore, all that need be alleged is that some person has deprived plaintiff of a right secured by the Constitution or laws of the United States (Johnson v. Glick, 481 F.2d 1028 cert. den. 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 Duverney v. State, 96 Misc.2d 898, 410 N.Y.S.2d 237; Nieves v. New York City Transit Authority, 91 Misc.2d 214, 397 N.Y.S.2d 531) and that such person in so doing acted under color of state law. (Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 Singleton v. City of New York, 632 F.2d 185 cert. den. 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347).

Assuming plaintiff's allegations to be true, Mugan, as a private citizen acting in concert with City police officers, acted under color of state law. (United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Fine v. City of New York, 529 F.2d 70 This is so whether the officers acted in accordance with their authority or misused it. (Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 [1961]).

While not every application of force, even if in retrospect unnecessary, is violative of civil rights, an unprovoked and unjustified attack by police officers and those acting with them as alleged by plaintiff may transform a private grievance into a constitutional deprivation. Johnson v. Glick, 481 F.2d 1028 (2nd Cir.); Taylor v. Mayone, 626 F.2d 247 (2nd Cir. 1980); Bellows v. Dainack, 555 F.2d 1105 (2nd Cir. 1977); cf. Turpin v. Mailet, 619 F.2d 196 Brudney v. Ematrudo, 414 F.Supp. 1187 (where defendant police officer's accidental grazing of plaintiff's head did not state claim for excessive physical force).

The viability of plaintiff's action thus turns upon the question of its timeliness. This court, in being presented for the first time with the issue of what statute of limitations applies to a section 1983 (42 U.S.C. § 1983) suit against a private citizen for his use of excessive physical force, holds this action against defendant Mugan barred by the one year period prescribed by CPLR 215(3).

No federal statute fixes the period for bringing suit under § 1983. Rather, federal courts apply the forum state statute of limitations most analagous to the plaintiff's constitutional claims. (42 U.S.C. § 1988; Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295).

It is abundantly clear that plaintiff's cause of action sounds in assault and battery. By the operation of CPLR 215(3), an individual aggrieved by an assault and battery has one year to commence suit. The legislature deems one year appropriate, as the perpetration of the tort is known to the person injured (Second Prelim. Rep. of Adv. Comm. N.Y. Leg. Doc. No. 16 p. 72-73; Weinstein-Korn-Miller N.Y. Civ. Practice par. 215.02).

Plaintiff contends, however, that his § 1983 action for excessive force is a "liability created or imposed by statute" within the meaning of CPLR 214(2), and therefore its three-year period applies. In the alternative, plaintiff argues that his 42 U.S.C. § 1983 claim is an action for which no limitation is specifically prescribed by law and, accordingly, the six year period set forth in CPLR 213(1) would apply. Each of these claims are considered seriatim.

CPLR 214(2) is a consolidation of former Civil Practice Act (CPA) provisions (§§ 48(2), 49(3) and 50(2)). CPA § 48(2) provided for a six year period of limitations for a "liability created by statute". (Second Prelim Report of Adv. Comm. N.Y. Leg. Doc No. (1958), p. 69-70; Weinstein-Korn-Miller, N.Y. Civil Practice, p 214.02). CPA § 48(2) applied when the liability did not exist at common law, or would not have existed but for a statute. (Shepard Co. v. Zachary Taylor Publishing Co., 234 N.Y. 465, 138 N.E. 409; Brady v. Rudin Management Co., Inc., 11 N.Y.2d 681, 225 N.Y.S.2d 757, 180 N.E.2d 910; Rickard v. Farmer's Museum, 284 A.D. 140, 130 N.Y.S.2d 641). As long as the statute called for damages not otherwise obtainable--the incorporation by reference of other laws or standards of conduct against which liability was determined did not preclude application of CPA § 48(2). (Sicolo v. Prudential Savings Bank of Brooklyn, 5 N.Y.2d 254, 184 N.Y.S.2d 100, 157 N.E.2d 284; but see, Bevelander v. Town of Islip, 10 A.D.2d 170, 199 N.Y.S.2d 561).

In these respects, the law is not different today under CPLR 214(2), except that a period of three years, not six, attaches (See e. g., State v. Cortelle Corp., 38 N.Y.2d 83, 378 N.Y.S.2d 654, 341 N.E.2d 223; State v. City of Binghamton, 72 A.D.2d 870, 421 N.Y.S.2d 950; Klimczak v. Connrex, 49 A.D.2d 1031, 374 N.Y.S.2d 497; Bader v. Fleschner, 463 F.Supp. 976 "Statutory provisions which provide only additional remedies or standing do not create or impose new obligations." (State v. Cortelle Corp., 38 N.Y.2d at 86, 378 N.Y.S.2d 654, 341 N.E.2d 223).

But whether § 1983 creates or imposes a new obligation or merely affords a supplemental (albeit independent) remedy depends on the nature of the particular constitutional claim. That claims under § 1983 are not intended to be accorded unitary treatment is manifest from the statute's broad sweep in addressing a multiplicity of sins bound together by constitutional glue.

Section 1983 has become a vehicle for redressing rapidly expanding classes of constitutional wrongs for which remedy traditionally could not be had. For example, an action for damages may arise from the threatened eviction from publicly subsidized housing as a consequence of an individual's activities in a tenant association (Davis v. Village Park II Realty, Co., 578 F.2d 461 or from the stigma attaching to one not afforded a proper hearing in the context of an employment dismissal. (Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 These suits are fairly within the contemplation of CPLR 214(2).

There are, however, grievances for which § 1983 was intended to provide a remedy not new but supplemental. § 1983 is derived from the Civil Rights Act of 1871 (commonly known as the Klu Klux Klan Act) and "it is abundantly clear that one reason the legislation was passed was to afford a federal right in a federal court because, by reason of prejudice, passion, neglect, intolerance or otherwise, the state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges and immunities guaranteed by the 14th Amendment might be denied by the state agencies." (Monroe v. Pape, 365 U.S....