Simpson v. New York City Transit Authority

• Decision Date: 18 July 1985
• Citation: 491 N.Y.S.2d 645,112 A.D.2d 89
• Parties: Ernest SIMPSON et al., Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY et al., Defendants. Wilson LOWERY, Third-Party Plaintiff-Appellant-Respondent, v. James P. McMAHON, Esq., et al., Third-Party Defendants-Respondents and Cross-Appellants. Wilson LOWERY, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY et al., Defendants-Respondents and Cross-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 645

491 N.Y.S.2d 645

112 A.D.2d 89

Ernest SIMPSON et al., Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY et al., Defendants.

Wilson LOWERY, Third-Party Plaintiff-Appellant-Respondent, v. James P. McMAHON, Esq., et al., Third-Party

Defendants-Respondents and Cross-Appellants.

Wilson LOWERY, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY et al.,

Defendants-Respondents and Cross-Appellants.

Supreme Court, Appellate Division,

First Department.

July 18, 1985.

E.A. Purcell, Jr., New York City, for third-party plaintiff-appellant-respondent and for plaintiff-appellant.

L. Heisler, S.S. Efron, Brooklyn, for third-party defendants-respondents and cross-appellants, and for defendant-respondents and cross-appellants.

Before MURPHY, P.J., and FEIN, MILONAS and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered April 5, 1984, denying third party plaintiff Wilson Lowery's motion for partial summary judgment and denying third party defendants' cross-motions for summary judgment, unanimously modified, on the law, defendants' motions granted, and all claims brought by Lowery based upon alleged violations of § 50-a of the Civil Rights Law or 42 U.S.C. § 1983, asserted as either cross claims, third party claims, or by way of separate action against defendants, are dismissed, and otherwise affirmed without costs.

Action No. 1 was commenced by Ernest and Brenda Simpson against Wilson Lowery, a former transit officer, and the New York City Transit Authority (NYCTA), among others. It was alleged that Lowery, while a member of the transit police force, shot and wounded Ernest Simpson with his service revolver. The incident occurred in an antique store partly owned by Lowery. During discovery, plaintiff sought production of certain documents relating to the shooting from the NYCTA. Lowery's counsel objected, maintaining that the documents were protected by Civil Rights Law § 50-a, which makes police personnel records confidential and requires either the written consent of the officer involved or a court order before any such records may be released to a third party. After Lowery's objections had been made known to the NYCTA during the course of pre-trial proceedings, and while plaintiffs were in the process of making a formal motion to compel disclosure, the NYCTA produced the documents. Lowery subsequently asserted cross-claims in Action No. 1 and instituted a third party action against certain NYCTA's attorneys. Action No. 2 asserted claims identical to those contained in the cross-claims in Action No. 1 and the third party action. These claims alleged violations of Civil Rights Law § 50-a and sought damages for invasion of Lowery's privacy. Violations of 42 U.S.C. § 1983, commonly known as the "Civil Rights Act" were also alleged.

Plaintiff moved for partial summary judgment on the issue of liability with respect to his state and federal causes of action, and defendants cross moved for dismissal of all claims. Special Term denied the motions, noting that the motion to compel disclosure had been submitted to a referee to determine whether the materials sought, and subsequently released, were "personnel records" within the purview of Civil Rights Law § 50-a, and that the factual issues raised thereby precluded summary disposition. We disagree.

New York does not recognize any common law right to privacy. (Arrington v. N.Y. Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941, 434 N.E.2d 1319; Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 403 N.Y.S.2d 218, 374 N.E.2d 129). Whatever protection is afforded a person's privacy comes solely by virtue of statute, specifically Civil Rights Law §§ 50 and 51. (Delan v. C.B.S., Inc., 91 A.D.2d 255, 458 N.Y.S.2d 608). These provisions prohibit the unauthorized use of a person's name, portrait or picture for advertising or trade purposes; circumstances which are clearly inapplicable here.

The legislative history of Civil Rights Law § 50-a indicates that it was enacted to curb abusive use of a police officer's personnel record in connection with such officer's appearance as a witness. Had the legislature intended to create a private right of action for violations of § 50-a, it could have done so. However, no such remedy was provided and the failure of a legislative body to include a matter within the scope of an act may be construed as an indication that its exclusion was intended. (Pajak v. Pajak, 56 N.Y.2d 394, 452 N.Y.S.2d 381, 437 N.E.2d 1138). Another argument favoring such a restrictive interpretation of § 50-a is the fact that the legislature has consistently refused to enlarge the scope of relief available under §§ 50 and 51. (See, Arrington v. N.Y. Times Co., supra ). Under similar circumstances, the Appellate Division, Third Department held that "... [the] legislature did not intend to create a private right of action for violations of section...