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January 18, 1995

MICHAEL LONGIN, an infant, by his parents, MILAN LONGIN and SODINA LONGIN, individually and in their own capacity, Plaintiffs,
KEVIN KELLY and the CITY OF NEW YORK, Defendants.

The opinion of the court was delivered by: ALLEN G. SCHWARTZ


 This action arises from an altercation on May 22, 1989 in which defendant Kevin Kelly, a New York City Correction Officer, shot plaintiff Michael Longin. Plaintiffs assert federal and state claims against defendant Kelly individually and the City of New York (the "City"). The City moves for summary judgment dismissing plaintiffs' federal claim, brought pursuant to 42 U.S.C. ┬ž 1983, and plaintiffs' state claims asserted under theories of negligence and repondeat superior. For the reasons set forth below, we grant the City's motion for summary judgment.


 The incident underlying this action occurred sometime after midnight on May 22, 1989 at a park located at Shore Road and Pacific Boulevard in Long Beach, New York. Deposition of Michael Longin ("Longin Dep.") at 42. The park is located approximately one half block from the residence of plaintiff Michael Longin. Id. at 43. The park is also located approximately 300 feet from the apartment building where defendant Kelly resides. Deposition of Kevin Kelly ("Kelly Dep.") at 90. Kelly was off-duty from his position as a Correction Officer at the time of the incident. Kelly Dep. at 19, 21, 91.

 Prior to the incident, plaintiff and three friends were in the park-- drinking beer and making noise. Longin Dep. at 62, 68, 70; Kelly Dep. at 97. Defendant Kelly called the Long Beach police and notified them that people were trespassing in the park and making noise while there. Kelly Dep. at 101-103. Kelly averred further that he possessed a communal interest in the park, and it was this interest that motivated him to call the police. Id. at 103-104.

 Shortly thereafter, Kelly entered the park and told plaintiff and his friends that they were making too much noise, that they should leave the park, and that the police would be arriving soon. *fn1" Longin Dep. at 71; Kelly Dep. at 98. Plaintiff Michael Longin asked Kelly if he was a police officer. Longin Dep. at 74. Longin testified that Kelly responded that he was and showed the youths his badge. Id. *fn2"

 Plaintiff Michael Longin and defendant Kelly differ in their versions of subsequent events. At his deposition, Longin testified that when he picked up the remaining beers, defendant Kelly asked him if he was over twenty one years old and refused to allow plaintiff and his friends to take the beers because they were underage. Longin Dep. at 74, 77. Longin further testified that he and his friends waited ten minutes for the police and then tried to leave the park, at which point Kelly tried to take the beers from plaintiff. Longin Dep. 78-79. This action, according to plaintiff, instigated a fight during the course of which defendant Kelly grabbed plaintiff around the neck and shot him in the left shoulder. Longin Dep. 83-85.

 By contrast, defendant Kelly stated that after he confronted plaintiff Michael Longin and his friends in the park, a second confrontation took place in the street outside the park. Kelly Dep. at 92. Kelly testified that he left the park and walked toward his car when he was hit in the back of the head with a beer can. Kelly Dep. at 136. He turned around and discovered that plaintiff and his friends had surrounded him on three sides. Kelly Dep. at 137. He averred that he displayed his badge a second time, but was nevertheless attacked by plaintiff and his friends, which attack was still going on when the police arrived. Kelly Dep. at 106, 137. According to defendant Kelly, it was during this attack, in the street outside the park, that the shooting took place. Kelly Dep. at 92.

 Pre-Employment Screening of Correction Officers

 The City administers a civil service examination for the position of correction officer. From those who take that test, the City compiles a list of eligible candidates. Each candidate on the list is subject to pre-employment screening, which includes medical and psychological evaluations, a check of past employment, investigation of any parking violations, a review of the candidate's motor vehicle abstract, and an examination of the candidate's educational background. Deposition of Alan Vengersky, ("Vengersky Dep."), Director of Personnel, New York City Department of Correction ("DOC"), at 8. In all instances, Mr. Vengersky makes the final decision with respect to the hiring of an eligible candidate. Vengersky Dep. at 5-6.

 With respect to the psychological screening of eligible candidates, Mr. Vengersky relies upon the recommendations of the psychologist retained by the DOC to conduct the testing, Robin Inwald, Ph.D. Vengersky Dep. 9-11. Dr. Inwald is a nationally recognized expert in the field of psychological testing for law enforcement positions, whose DOC testing regimen (designed by Dr. Inwald in 1978) has become a national model. Deposition of Robin Inwald, Ph.D. ("Inwald Dep.") at 9, 11, 78.

 Dr. Inwald rates eligible candidates on a scale of "1" to "5" based on the psychological screening process, which includes a personal interview as well as administration of the Inwald Personality Inventory, the Minnesota Multiphasic Personality Inventory, a personal history questionnaire, a skill scale inventory, and other tests. Dr. Inwald stated at her deposition that no testing or interviewing system can reliably predict the likelihood that an eligible candidate will use deadly force inappropriately while on or off duty. Id. at 14-16, 119. Dr. Inwald recommends that DOC decline to hire candidates who receive a "4" or "5" on this scale, id. at 34, and Mr. Vengersky adheres to this recommendation in nearly all instances. Vengersky Dep. at 53. Where an eligible candidate receives a rating of "3," Mr. Vengersky testified that he gives increased attention to the candidate's background check. *fn3" Id. at 51. No candidates are automatically hired on the basis of the rating on the psychological screening alone. Id. at 53-54.

 Defendant Kelly underwent the foregoing psychological screening process and received a rating of "3." Based on the results of defendant Kelly's psychological tests, which revealed an elevated level of defensiveness, along with his history of motor vehicle violations, Dr. Inwald's office recommended that the DOC exercise ...

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