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June 30, 1994

LEE BROWN, as Police Commissioner of the City of New York, RAE DOWNES KOSHETZ, as Deputy Comissioner-Trials of the New York City Police Department, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK and THE CITY OF NEW YORK, Defendants.


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

Sweet, D. J.

 Defendants former Police Commissioner Lee Brown ("Brown"), Rae Downes Koshetz ("Commissioner Koshetz"), the New York City Police Department ("NYPD") and the City of New York (the "City") (collectively, the "Defendants") have moved for an order of summary judgment, pursuant to Rule 56, Fed. R. Civ. P., against the Plaintiff Steven Schwartz ("Schwartz"). In turn, Schwartz has cross-moved for an order of summary judgment.

 The motions were argued before this Court on April 27, 1994, and were deemed fully submitted at that time. For the reasons set forth below, Defendants' motion for summary judgment is granted.

 The Parties

 Schwartz was a Police Officer in the NYPD until his discharge on October 23, 1991.

 Brown was the Police Commissioner of the City. Commissioner Koshetz is the Deputy Commissioner of Trials in the NYPD and is responsible for disciplinary hearings involving departmental employees. Commissioner Koshetz was the hearing officer in Schwartz's disciplinary trial.

 NYPD is an agency of the City. The City is a municipal corporation organized and existing under the laws of the State of New York.

 Facts and Prior Proceedings

 Schwartz was appointed a New York City police officer on January 21, 1985. He was at first assigned to the 77th Precinct in Brooklyn from December 10, 1986 to December 17, 1987, whereupon he was assigned to the 84th Precinct, also in Brooklyn, for the remainder of his service. On October 23, 1991, Police Commissioner Brown directed that Schwartz be terminated as a police officer as a result of his reckless driving history.

 During Schwartz's tenure as a police officer he received numerous command disciplines concerning his driving. On January 30, 1987, Schwartz received his first command discipline for driving his radio motor patrol car with lights and sirens on for in order to evade traffic congestion -- and not in response to an official police assignment -- in violation of department regulations. Several months later, on March 20, 1987, Schwartz received another command discipline for running a "steady" red light and driving in the oncoming lane of traffic while driving a radio motor patrol car with its lights and sirens activated. Again, Schwartz was not responding to any police assignment.

 On August 2, 1987, Schwartz struck and killed a pedestrian, who was in a cross walk, when he ran a "steady" red light at a speed of more than 45 miles per hour in a radio motor patrol car while en route to a police "radio run" call. The Department Inspector who reviewed the incident concluded that Schwartz was traveling at an excessive rate of speed, had not exercised due caution, and recommended disciplinary charges. None were brought at that time.

 On September 20, 1988, Schwartz was issued a summons in Virginia for reckless driving after he was stopped by the Kent County Police for weaving in and out of traffic at a speed over 100 miles per hour. Schwartz requested "professional courtesy" from the Virginian officers who nonetheless issued him a summons. Schwartz was convicted and fined $ 500 for reckless driving and passing on the right shoulder.

 Nine days later, Schwartz struck and killed another pedestrian while driving to work his Pontiac automobile, bearing the vanity license plate "MY T QUICK." Witnesses stated that Schwartz was traveling at a high rate of speed in the safety lane for at least six blocks. They further alleged that after he struck the pedestrian, Schwartz got out of the car, showed his badge to bystanders and told them "you didn't see anything."

 The next month, in October of 1988, one of Schwartz's neighbors filed a complaint with the Patrol Borough Staten Island ("PBSI") about Schwartz's dangerous driving in his housing complex. In response to this complaint, the Field Affairs Unit ("FIAU") of the PBSI instigated an investigation of Schwartz's driving habits. In the FIAU investigation, undercover officers followed Schwartz to and from work during January and February of 1989. The officers observed Schwartz commit six moving violations on January 5, 1989, four moving violations (including running three red lights) on February 16, 1989, and three moving violations (including running two red lights) on February 23, 1989.

 On March 29, 1989, Lieutenant Economou of the Internal Affairs Division interviewed Schwartz and advised him of the FIAU investigation which issued Schwartz 13 summonses for the moving violations observed by the undercover officers. At the end of that interview, Schwartz became so distraught and emotional that his firearm had to be removed, and he was taken to the NYPD's psychological services office for an exam. Thereafter, Schwartz was placed on restricted duty.

 On April 14, 1989, formal departmental charges and specifications were brought against Schwartz regarding his driving history. Schwartz pleaded guilty and agreed to a negotiated settlement -- consisting of the deferred forfeiture of ten vacation days -- prior to the hearing.

 On September 10, 1990, Police Officer Thomas Farina ("Farina") stopped Schwartz on the Staten Island Expressway for speeding in excess of 100 miles per hour. Two days later, on September 12, 1990, Police Officer Sean Flood ("Flood") stopped Schwartz for driving at 124 miles per hour. Based upon these incidents, departmental charges were again lodged against Schwartz.

 Although the possibility of a negotiated settlement with Schwartz was discussed with NYPD, First Deputy Commissioner Raymond Kelly, based upon the recommendations of Deputy Inspector Jeremiah Quinlan and other high ranking officials, determined that the charges against Schwartz should be adjudicated at a departmental hearing.

 The Hearing

 The hearing was held before Commissioner Koshetz on September 10 and 12, 1990. Schwartz was represented by counsel and testified in his own behalf. Officers Farina and Flood both testified at the hearing. Officer Farina testified that was unable to either identify Schwartz as the "Schwartz" he had pulled over on the night of September 10, 1990, nor was he able to recall how fast the "Schwartz" he had pulled over had been driving. *fn1" Officer Flood, by contrast, positively identified Schwartz and stated that he had clocked Schwartz with his radar gun at 124 miles per hour. (Decision at 3; Hearing Trans. at 20-24.)

 In her decision, Commissioner Koshetz found herself "constrained" to find Schwartz not guilty of the first Specification concerning incident of September 10, 1990. (Decision at 5.) She further noted that although "the witness' [Farina's] inability to recall the salient facts [is] extremely suspicious, especially in light of the fact that he was initially questioned about the incident only four days later, the evidence is simply insufficient to merit a finding of Guilty absent a confession by the Respondent." (Decision at 6.)

 Commissioner Koshetz then proceeded to find Schwartz guilty as charged of the second Specification concerning his driving on the night of September 12, 1990. In forming Schwartz's penalty, Commissioner Koshetz reviewed his entire service record, including a memorandum in his personnel folder from Deputy Inspector Philip W. Lee (the "Lee Memorandum") of the Employee Management Division. The Lee Memorandum was dated June 5, 1991, and assigned Schwartz to the division's Special Monitoring Program because of "a pattern of extremely ...

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