The opinion of the court was delivered by: Sweet, District Judge.
Defendants Metropolitan Transportation Authority ("MTA"),
Metro-North Commuter Railroad Company ("MetroNorth"), Peter
Stangl ("Stangl"), Thomas Constantine ("Constantine"), Raymond
Burney ("Burney"), and New York State (the "State") move for
dismissal of plaintiff Richard DeClara's ("DeClara")
complaint, under either Rule 12(b)(1) or 12(b)(6),
Fed.R.Civ.P. For the reasons set forth below, the motion is
DeClara is a former MetroNorth police officer, employed by
MetroNorth from 1967 to 1989.
Defendant MTA is the administrative agency dealing with mass
transit within New York City.
Defendant MetroNorth is a commuter railroad that runs
between Westchester County and New York City.
Defendant Constantine is sued individually and in his
capacity as Superintendent of Police of the State.
Defendant Stangl is sued individually and as General Manager
Defendant Burney is sued as the Assistant Director of Labor
Relations for Metro-North.
In March or April 1983, while Metro-North workers were on
strike, DeClara and other MetroNorth officers were assigned to
patrol the Grand Central Station Terminal ("Grand Central").
DeClara and those officers brought a VHS video camera with
them on patrol, where they shot the tape entitled "Buba on
Patrol." The tape depicts the officers, including DeClara, in
various situations. In particular, the tape shows DeClara
patrolling Grand Central completely nude, except for his hat,
necktie, gun holster, socks, and shoes. Elsewhere, DeClara is
seen interviewing two homeless women,*fn1 and a black
According to DeClara, Captain Dean Evans learned of the tape
in 1985. However, the tape went undiscovered by the
Metro-North administration until August 2, 1988, when Stangl
learned of the tape. Stangl wrote to Constantine to inform him
of the tape, and he also enclosed a copy so Constantine could
view it before taking action. Stangl referred to the officers'
actions as "unprofessional and unacceptable," and stated that
their conduct demonstrated "a lack of good moral character and
fitness to hold a police commission."