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MARTIN v. CITY OF NEW YORK

August 21, 1985

DURVAN MARTIN, Plaintiff, v THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, and their agents, among them Police Officer "JOHN KRUEGER," the first name being unknown at the present time, Defendants


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND

ORDER

 GLASSER, United States District Judge:

 Defendant Edward Krueger has moved for summary judgment dismissing the complaint against him. For the reasons set forth below, his motion is granted. *fn1"

 Background

 The facts underlying this action are not in dispute.

 Plaintiff was arrested by defendant Krueger on July 6, 1981 for the rape and sodomy of Linda Krueger, the daughter of the defendant. He was released on bail on the following day. Plaintiff was acquitted after a jury trial by verdict rendered December 9, 1981.

 This action, brought pursuant to 42 U.S.C. § 1983 and state law, was commenced on March 4, 1983 by the filing of a complaint. Although the municipal defendant was served on March 4, 1983, the individual defendants were not served at that time. The numerous discovery disputes regarding the whereabouts of the individual defendants, as well as several other matters, are documented in the record and will not be discussed further. In any event, this Court was first informed of plaintiff's desire to receive the individual defendants' addresses from the City by letter dated October 28, 1983. *fn2" By letter dated April 26, 1984, the City informed plaintiff's counsel that Krueger and Gounaris could be served care of Mr. Tim Vance of the Legal Department of the New York City Police Department. *fn3" Less than three weeks later, by letter dated May 15, 1984, the City informed plaintiff's counsel that it could not accept service on behalf of Krueger. *fn4" The text of that letter reads:

 By letter dated April 26, 1984, I informed you that the New York City Police Department was willing to accept service of papers for Krueger and Gounaris, who have retired from the police force. At that time I mistakenly believed that Krueger still resided in New York City.

 I have recently learned that Krueger does not reside in New York City, but rather in Florida and for that reason, we cannot [sic] accept service on his behalf. Please let me know if you have any questions concerning this matter.

 Following receipt of the above letter, plaintiff's counsel did not seek to compel disclosure of Krueger's address by formal motion. However, after discussions before Magistrate Chrein, the Magistrate issued a combination order on April 29, 1985 directing the City to provide the full name and current full address of Krueger to plaintiff's counsel within two weeks of the date of that order, and issuing an order of protection as to the disclosure of that address. It is undisputed that plaintiff's counsel did receive that address. Notwithstanding the Corporation Counsel's letter of May 15, 1984 - - nearly one year earlier - - plaintiff's counsel attempted to serve Krueger by forwarding a copy of the summons and complaint, by regular mail, to Mr. Vance of the Police Department. To date Krueger has not returned any acknowledgment of service and service upon him in Florida has not been made. *fn5" The substantive parts of plaintiff's claims are detailed in my Memorandum and Order of June 20, 1985, supra note 1, and will not be again reviewed.

 The instant motion to dismiss is predicated upon plaintiff's failure to serve Krueger properly, the applicable statutes of limitations and notice of claim requirements, and the merits of plaintiff's claims. In response to defendant's motion, plaintiff has indicated that the only claims which he seeks to press against defendant Krueger at this time are for conspiracy to conceal information from the Grand Jury and/or the District Attorney, allegedly in violation of 42 U.S.C. § 1985, and making racist remarks in the conduct of official police business - - allegedly in violation of 42 U.S.C. § 1985, and for malicious prosecution.

 Discussion

 1. Improper ...


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