The opinion of the court was delivered by: COSTANTINO
COSTANTINO, District Judge.
This is a case in which plaintiffs allege seven causes of action. The first and fourth causes of action, the only ones which present federal claims, allege that defendants are liable to plaintiffs for damages for violation of the federal civil rights law, 42 U.S.C. § 1983. The remaining causes of action allege various claims under state law including wrongful death, slander, and assault.
Plaintiffs move for an order pursuant to Rule 56, Fed.R.Civ.P. granting summary judgment on their first, second, third, fifth and sixth causes of action. Plaintiffs also move for an order pursuant to Rule 12(b) dismissing the fourth affirmative defense of the defendant City of New York ("the City"). The City cross-moves for an order severing and dismissing the actions against it. The City contends that it has immunity from the § 1983 claims. The City also contends that the state law claims asserted against it should be dismissed for lack of federal jurisdiction. Defendant Thomas Shea, a police officer at the time of the alleged incident which underlies this action, cross-moves for an order severing and dismissing the actions against him on the ground that no action lies against him under 42 U.S.C. § 1983 and that all state law causes of action should be dismissed for lack of federal jurisdiction. Defendants Shea and Walter Scott contend that the complaint should be dismissed as to them because plaintiffs failed to comply with General Municipal Law 50-i and related statutes in that the summons and complaint were not served upon them within one year and ninety days from the date of the incident on which plaintiffs' complaint is based.
This case arises out of an incident in which defendants Shea and Scott, police officers at the time, allegedly shot and killed one Cleophas Glover, the ten year old son of plaintiff Eloise Glover. The latter is the Administratrix of the decedent's estate. Plaintiff Add Armstead, step-father of the decedent, was with the latter at the time of the incident.
Plaintiffs contend that their motion for summary judgment should be granted because a decision by Phillip P. Michael, Deputy Commissioner of the City of New York in Charge of Trials, is res judicata with respect to the first, second, third, fifth and sixth causes of action. Plaintiffs also contend that in view of Deputy Commissioner Michael's decision, summary judgment should be granted under the doctrine of collateral estoppel.
The basic distinction between the doctrines of res judicata and collateral estoppel was noted by Chief Justice Warren in Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S. Ct. 865, 867, 99 L. Ed. 1122 (1955):
Under the doctrine of res judicata, a judgment "on the merits" in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Under the doctrine of collateral estoppel, . . . such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit.
The issue which the Deputy Commissioner determined was clearly stated by him in his written opinion: "these proceedings [are] to determine whether either respondent is fit for police duty. . . ." The Deputy Commissioner found that Shea and Scott did not have the maturity and judgment required of police officers. The issues raised by the motion for summary judgment are different from that determined by the Deputy Commissioner. Here, the issues involved are whether the actions of defendants Shea and Scott render them and their former employer, the City, liable for alleged violation of 42 U.S.C. § 1983, wrongful death, slander and other wrongs. Neither the causes of action alleged by the plaintiffs nor the issues raised by these causes of action were determined by the Deputy Commissioner. Accordingly, plaintiffs' motion for summary judgment based on the doctrines of res judicata and collateral estoppel must be denied.
Plaintiffs also move for dismissal of one of defendant City's affirmative defenses which alleges in substance that plaintiffs fail to state a cause of action against the City under 42 U.S.C. § 1983. The City cross-moves with respect to this same issue, contending that plaintiffs' causes of action pursuant to § 1983 should be dismissed. Plaintiffs' arguments notwithstanding, it is clear that a municipality may not be held liable under 42 U.S.C. § 1983, Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Accordingly, the City's cross-motion to dismiss the § 1983 action brought against it (causes of action one and four) must be granted and plaintiffs' motion to dismiss the City's affirmative defense to the § 1983 actions must be denied.
Defendants Shea and Scott contend that the complaint should be dismissed as to them because they were not served until more than one year and ninety days after the alleged shooting. This service is purportedly defective under General Municipal Law § 50-i which provides that "the action . . . shall be commenced within one year and ninety days after the happening of the event upon which the claim is based." The shooting incident is alleged to have taken place on April 28, 1973. The summons and complaint naming as defendants the City and Shea were filed on April 9, 1974. The United States Marshal attempted to serve defendant Shea on April 15, 1974. The Marshal's report states that he received no answer at Shea's home. He was advised by a neighbor that Shea no longer lived in his house, which was being sold, and that Shea was staying with relatives. This court issued an order dated July 15, 1974 granting plaintiffs leave to serve an amended complaint adding Walter Scott as a defendant. Shea and Scott were served with the amended complaint on August 22, 1974.
It is fairly well settled that the notice of claim requirement is inapplicable to § 1983 actions. Carrasco v. Klein, 381 F. Supp. 782, 787, n. 12 (E.D.N.Y. 1974); Laverne v. Corning, 316 F. Supp. 629, 637 (S.D.N.Y.1970). Therefore, noncompliance with the notice of claim statute, General Municipal Law § 50-i, is not a defense to the § 1983 actions brought against Shea and Scott.
The next question is whether noncompliance with the notice of claim statute is a good defense to the other actions brought against Shea and Scott. The critical date under General Municipal Law § 50-i is not the date of service but the date of commencement of the action. Rule 3, Fed.R.Civ.P. provides that a civil action is commenced by filing a complaint with the court. Here, the complaint was filed well within the year and ninety day period. The proper rule to be applied here appears to be that the date of filing the complaint is the critical date for purposes of the statute of limitations so long as plaintiffs exercised reasonable diligence in serving process. Messenger v. United States, 231 F.2d 328, 331 (2d Cir. 1956); see also Bomar v. Keyes, 162 F.2d 136, 140 (2d Cir. 1947); cert. denied, 332 U.S. 825, 68 S. Ct. 166, 92 L. Ed. 400 (1947). In Messenger, the court noted that in the case of excusable or moderate neglect, the absence of prejudice to the defendant is a factor which may be taken into account in determining whether service was reasonably diligent. If there was any neglect in serving defendant Shea, it must be termed "excusable" because the only reason which appears in the record for his not being promptly served was that he no longer lived in his house at the time the Marshal attempted to serve him. Any neglect in serving Scott must be viewed as "moderate" since he was served with process only about one month after plaintiffs' motion to add him as a defendant was granted (the decision granting the motion was within the year and ninety day period provided by the statute). After weighing the factor of the absence of prejudice and reviewing the entire record as well as relevant case law, it is included that General Municipal Law 50-i is no defense to plaintiffs' actions against defendants Shea and Scott.
Defendant Shea contends that the complaint fails to state a claim under § 1983 because he was a police officer at the time of the incident. The rule is that "misconduct on the part of public police officers, to the extent that it infringes constitutionally-protected rights, gives rise to an action under § 1983." Huggins v. White, 321 F. Supp. 732, 734 (S.D.N.Y.1970). The wrongful slaying of a citizen by a police officer is an infringement of a constitutionally protected right which gives rise to a § 1983 damage action. Mack v. Lewis, 298 F. Supp. 1351 (S.D.Ga.1969). Here, the complaint charges defendants Shea and Scott with a needless and unprovoked slaying of the decedent. The facts alleged are sufficient to withstand the cross-motions of defendants Shea and Scott to dismiss the causes of action brought pursuant to 42 U.S.C. § 1983. Accordingly, these ...