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BRESCIA v. MCGUIRE

March 12, 1981

John BRESCIA, Plaintiff,
v.
Robert J. McGUIRE, as Police Commissioner of the City of New York, Defendant



The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION AND ORDER

Plaintiff instituted this action under 42 U.S.C. § 1983 alleging that the suspension and revocation of his pistol licenses by the defendant *fn1" constituted a denial of due process and equal protection of the law in violation of the Fourteenth Amendment of the United States Constitution, and for a declaration of unconstitutionality of New York Penal Law ("N.Y.P.L.") § 400.00(11), *fn2" the statute invoked in the revocation proceeding. Plaintiff also seeks restoration of his licenses, damages and attorneys' fees.

 Defendant has moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."), to dismiss the complaint for failure to state a claim upon which relief can be granted. The Court has before it matters outside the pleadings; therefore, this motion will be considered as a motion for summary judgment pursuant to Fed.R.Civ.P. 12 and 56. Plaintiff has cross-moved for summary judgment. The Court heard oral argument on the motions on March 5, 1981.

 I. Facts

 Plaintiff is a full time employee of the New York City Transit Authority and president of the Brescia Rifle and Pistol Club. Plaintiff also works part-time for a private investigator; this job allegedly requires him to carry a pistol.

 In February 1976, plaintiff applied to defendant for a target pistol license to be used for target shooting with his pistol club; defendant issued said license to plaintiff in May, 1976. The license was subsequently renewed. In February 1978, plaintiff applied to defendant for a license to carry a concealed pistol for use in his part-time employment; defendant issued said license in March, 1978.

 In June 1978, plaintiff alleges his home was burglarized and his two licensed pistols were stolen. The local police precinct notified the Pistol Licensing Division of the New York City Police Department of the burglary report and plaintiff's licenses were suspended in November, 1978.

 Plaintiff was notified of his right to a hearing, which he requested. At the hearing on March 27, 1979, plaintiff appeared, pro se, waived his right to counsel and was the only witness. He testified that he had secured the licensed pistols in a locked box in a cabinet in his bedroom. Upon his return from work, he discovered his home had been burglarized and the pistols stolen.

 On April 27, 1979 defendant notified plaintiff that his pistol licenses were revoked "for failure to safeguard weapons." *fn3" Plaintiff pursued an administrative appeal which affirmed the hearing officer. Plaintiff did not appeal to the Supreme Court of the State of New York, *fn4" but instituted the instant action.

 II. Court's Findings

 Defendant alleges that plaintiff's action is time-barred by the state statute of limitations and that the complaint fails to allege a 42 U.S.C. § 1983 claim.

 In a § 1983 action, the federal court applies the analogous New York statute of limitations to plaintiff's federal claims. Board of Regents v. Tomanio, 446 U.S. 478, 483, 100 S. Ct. 1790, 1794, 64 L. Ed. 2d 440 (1980). Plaintiff seeks restoration of his pistol licenses forfeited pursuant to N.Y.P.L. § 400.00(11). This Circuit's Court of Appeals has held that suits brought in the federal district courts in New York under § 1983 are governed by the three year period of limitations provided in New York Civil Practice Law and Rules § 214(2) for actions to recover upon a liability, penalty or forfeiture created or imposed by statute. Singleton v. New York, 632 F.2d 185, 189 (2d Cir. 1980); Taylor v. Mayone, 626 F.2d 247, 251 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974); Ortiz v. LaVallee, 442 F.2d 912, 914 (2d Cir. 1971); Romer v. Leary, 425 F.2d 186, 187 (2d Cir. 1970). Under this standard, plaintiff's action is not time-barred.

 The first inquiry in a § 1983 suit is whether plaintiff has been deprived of a right "secured by the Constitution and laws"; if there has not been such a deprivation, plaintiff has failed to satisfy the threshold requirement for maintaining a § 1983 action. Baker v. ...


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