II Equal Protection
The Equal Protection Clause of the Fourteenth Amendment
directs, in essence, that similarly situated persons should be
treated alike. Cleburne v. Cleburne Living Center,
473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To establish an
equal protection violation, plaintiffs must prove purposeful
discrimination, McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct.
1756, 95 L.Ed.2d 262 (1987), directed at an identifiable or
suspect class. Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.
1995). Further, "it is axiomatic that plaintiff must allege that
similarly situated persons were treated differently." Gagliardi
v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). Also, to
impose liability against a municipal defendant under § 1983, a
plaintiff must show that the alleged violation resulted from an
official policy, custom or practice. Monell, 436 U.S. at
690-691, 98 S.Ct. 2018.
In cross-claims four and eight, the third-party plaintiffs
appear to claim that, because of their status as white males,
they were subject to adverse and disparate treatment by the City.
They have failed, however, to adduce any admissible evidence of
disparate treatment or point to any similarly situated persons
that were treated differently. See Chimurenga v. City of New
York, 45 F. Supp.2d 337, 339-40 (S.D.N.Y. 1999) (granting summary
judgment on equal protection claim when plaintiff failed to
submit any admissible evidence of disparate treatment).
Conclusory allegations of discrimination do not satisfy Rule
56(e)'s requirements. Meiri v. Dacon, 759 F.2d 989, 998 (1985)
(upholding grant of summary judgment against Title VII claim).
Therefore, the City is granted summary judgment on third-party
plaintiffs' equal protection claims.
III State Law Claims
The third-party plaintiffs' sixth cross-claim against the City
alleges that the City arbitrarily and capriciously denied their
request for their attorneys' fees and for indemnification under
New York State Public Officers Law § 18. Under this law, a public
entity "shall provide for the defense of the employee in any
civil action or proceeding, state or federal, arising out of any
alleged act or omission which occurred or allegedly occurred
while the employee was acting within the scope of his public
employment or duties." N.Y.PUB.OFF.LAW § 18(3)(a).
The third-party plaintiffs' papers in opposition to summary
judgment fail to address this particular part of the City's
motion for summary judgment. In any event, the third-party
plaintiffs' cross-claim complaint seems to contend that because
Fernandez alleges that Lucchese and DeLeno, "acting individually
and through their employers" inflicted the alleged sexual
assault, the City cannot decline to pay for their defense and
indemnify them in case of a plaintiff's verdict with damages.
An employer is vicariously liable for acts committed by an
employee acting within the scope of his employment. Moreover, an
employee acts within the scope of his employment so long as he is
discharging his duties to the employer, "no matter how
irregularly, or with what disregard of instructions." Riviello
v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 302,
391 N.E.2d 1278, (1979). However, an employer is not liable for torts
committed by the employee for personal motives unrelated to the
furtherance of the employer's business. See Heindel v. Bowery
Savings Bank, 138 A.D.2d 787, 525 N.Y.S.2d 428, 428-29 (3d Dep't
1988) (mall held not liable for mall security guard's rape of a
female customer because acts were committed for personal motives
and a complete departure from normal duties as a security guard).
Lucchese and DeLeno are alleged to have raped and sodomized
Fernandez. The third-party plaintiffs' amended complaint states
that they were off-duty when the consensual sexual activity
"It is well established that as a matter of law, an employer is
not vicariously liable for an employee's sexual assault of
another." Wahlstrom v. Metro-North Commuter R.R., 1998 WL
196236, at * 2 (S.D.N.Y. April 23, 1998) (citing Tomka v. Seiler
Corp., 66 F.3d 1295 (2d Cir. 1995) (As a matter of law, employer
could not be held liable under New York law for male employees'
sexual assaults upon female employee and ensuing emotional
distress, as alleged assaults were not in furtherance of
employer's business and were a complete departure from the normal
duties of company employees)). Because the alleged sexual assault
was outside the scope of employment the City's denial of
attorneys' fees and indemnification will not be disturbed. See
Wahlstrom, 1998 WL 196236, at * 2 (denying railroad employee's
request under § 18 for defense funds because employee's alleged
sexual assault on the train of another railroad employee was not
within the scope of employment under New York law). Since it is
well established that under New York law, the sexual misconduct
alleged is outside the scope of employment for purposes of § 18,
summary judgment on this claim is granted. See Wahlstrom, 1998
WL 196236, at * 2 (citing cases).
The remaining state law claim (cross-claim nine) alleges a
violation of Article 6-A of the New York State Public Officers
Law, known as the Personal Privacy Protection Law (the "PPPL").
The purpose of this law includes establishing standards regarding
information that state agencies can collect and maintain on
individuals, providing individuals the right to access and
correct their records, and prohibiting disclosure of personal
information except under specified circumstances. See
N YPUB.OFF.LAW §§ 94-97. Lucchese and DeLeno claim that the PPPL
was violated because of an alleged dissemination of their home
residences via a press release. The City claims that the PPPL was
not violated because § 96(1)(l) exempts from protection
material which is released "for inclusion in a public safety
agency record" and Lucchese and DeLeno's home addresses were only
released as part of the official record of their arrest. Since
this showing has not been controverted, summary judgment is
For the reasons stated above, the motion for summary judgment
pursuant to Fed.R.Civ.P. Rule 56 is granted. The Clerk of the
Clerk is directed to enter judgment for the individual defendants
on the first claim in the First Amended Third-Party Complaint.
The Clerk of the Clerk is directed to enter judgment for the
cross-claim defendant City of New Rochelle on cross-claims three,
four, six, eight and nine. Consistent with the representations
made in the third-party plaintiffs' Memorandum of Law of February
4, 1999, that cross-claims one, two, five, seven have been
withdrawn against the City, they are dismissed. All parties shall
file trial materials in accordance with this Court's rules by
June 11, 1999, and appear for a final pre-trial conference on
June 22, 1999, at 9:00 a.m. Counsel shall appear for jury
selection on July 6, 1999, at 9:30 a.m. before the Honorable
George A. Yanthis, U.S.M.J.