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MILOSLAVSKY v. AES ENGG. SOCY.

December 10, 1992

YURY MILOSLAVSKY, TATYANA MILOSLAVSKY, Plaintiffs,
v.
AES ENGINEERING SOCIETY, INC. and THE CITY OF NEW YORK, Defendants.



The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 Defendant the City of New York ("The City") has moved under Rule 56, Fed.R.Civ.P., for summary judgment to dismiss the § 1983 complaint of plaintiffs Yury and Tatyana Miloslavsky (the "Miloslavskys"). Upon the facts and conclusions set forth below, the motion is granted, and the complaint is dismissed.

 Prior Proceedings

 The complaint was filed September 9, 1991 by the Miloslavskys pro se against the City and the Audio Engineering Society ("AES") following the dismissal by the Honorable Robert P. Patterson, on August 27, 1991, of an earlier action against AES for lack of jurisdiction. A similar result was obtained by an order of this court on December 23, 1991.

 Discovery was concluded on May 4, 1992. The instant motion was filed on July 14, 1992 and considered fully submitted on July 21, 1992.

 The Facts

 The Miloslavskys were members of the AES, a New York Not-For-Profit corporation, until their expulsion from AES on June 28, 1990. On January 21, 1991, John Jacob Rieck, Jr., Esq. ("Rieck"), counsel retained by AES, and Charles Scott ("Scott"), a security consultant retained by AES, observed the Miloslavskys enter the lobby of 311 West 34th Street, the site of AES's annual meeting. Rieck informed Yury Miloslavsky that, due to his expulsion, he could not attend the meeting, and he would be arrested for trespass if he did not leave. He refused to leave and became loud and disruptive. Scott telephoned for the police, who arrived shortly thereafter. Upon being apprised of the situation by Rieck and Scott, Officer Charles Edmond ("Edmond") of the New York City Police Department approached Miloslavsky and asked him to leave. Miloslavsky again refused to leave. Edmond asked Scott if he wished to press charges. Upon receiving an answer in the affirmative, Edmond arrested Miloslavsky for trespassing. Miloslavsky was then taken to the station house where he was issued a summons.

 Miloslavsky was prosecuted on the charge of trespassing at the Criminal Court of the State of New York, and an order of protection was entered against him on February 20, 1991. The order, part of an agreement consented to by the State and Miloslavsky to adjourn his criminal case in contemplation of dismissal, required Miloslavsky to stay away from all officers, officials, and employees of AES and from all meetings of AES.

 Discussion

 In determining whether a genuine issue exists on a Rule 56 motion, the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54 (2d Cir. 1987). However, the mere existence of some "metaphysical doubt" concerning the facts will not suffice to defeat a summary judgment motion, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), nor will speculation or conjecture as to the true nature of the facts, see Quarles v. General Motors Corp. (Motors Holding Div.), 758 F.2d 839, 840 (2d Cir. 1985).

 Here the Miloslavskys do not meet the criteria set forth in the Federal Rules and Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), because they do not name or allege any incidents of substantive fact outside of the arrest of Yury Miloslavsky to demonstrate a municipal policy which caused plaintiffs' alleged constitutional violations.

 I. No Municipal Policy Or Custom Caused The Alleged Deprivation Of Constitutional Rights

 In Monell, the Supreme Court reviewed the legislative history of 42 U.S.C. § 1983 and concluded that Congress did not intend to impose broad liability on municipalities. See 436 U.S. at 690; see also Oklahoma City v. Tuttle, 471 U.S. 808, 818, 822-24, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985). It is only when the municipality, through the execution of its policies, actually deprives an individual of his constitutional rights that it is liable for the injury. See Monell, 436 U.S. at 692; Tuttle, 471 U.S. at 821. It follows that, under § 1983, a municipality may not be held liable for the acts of its employees based solely on a theory of respondeat superior. See Monell, 436 U.S. at 690-91.

 A municipality will be held liable only for constitutional violations caused by its official policies and customs, and it is necessary that the policy or custom be made by one "whose edicts or acts may be said to fairly represent official policy." Id., 436 U.S. at 694. It is only when municipal officers who have "final policy making authority" make decisions in a single incident that these actions subject city government to § 1983 liability. Pembaur v. Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986). Furthermore, to establish municipal liability, the policy must actually cause the violation of constitutional rights; it must be the moving force behind the violation. Monell, 436 U.S. at 692. The Miloslavskys have not alleged that any municipal officer or ...


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