APPEAL by the plaintiff, as limited by his brief, in an action, inter alia, to recover damages pursuant to 42 USC § 1983 for a violation of his right to procedural due process under the law, from so much of an order of the Supreme Court (William K. Nelson, J.), dated March 3, 2008, and entered in Rockland County, as granted the defendants' cross motion for summary judgment dismissing the complaint and denied that branch of his motion which was, in effect, for summary judgment on the issue of liability for the destruction of his three rifles, shotgun, and shooting accessories. Justice Covello has been substituted for former Justice Spolzino (see 22 NYCRR 670.1)
The opinion of the court was delivered by: Dickerson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
MARK C. DILLON, J.P., JOSEPH COVELLO, HOWARD MILLER and THOMAS A. DICKERSON, JJ.
Pursuant to a temporary order of protection, the plaintiff surrendered three handguns, three rifles, a shotgun, and shooting accessories that he owned to the Rockland County Sheriff's Department (hereinafter the Sheriff's Department). When he subsequently returned to the Sheriff's Department to reclaim his property, he learned that it had been destroyed, purportedly in accordance with the applicable statutory scheme. The plaintiff commenced this action, inter alia, to recover damages for negligence and pursuant to 42 USC § 1983.
Here, we consider whether the Supreme Court properly denied the plaintiff's motion, in effect, for summary judgment on the issue of liability, and granted the cross motion of the defendants James F. Kralik, as Sheriff of the County of Rockland and the Rockland County Sheriff's Department (hereinafter together the defendants) for summary judgment dismissing the complaint. We find that the Supreme Court erred in denying that branch of the plaintiff's motion which was, in effect, for summary judgment on the issue of liability for the destruction of the plaintiff's three rifles, shotgun, and shooting accessories, and in granting the cross motion. While the defendants' destruction of the plaintiff's handguns was permissible and in compliance with the applicable statutes as they existed at the time, the destruction of the plaintiff's rifles, shotgun, and shooting accessories was not authorized under the applicable statutory scheme.
On or about December 28, 2001, the plaintiff, Louis Maio, commenced an action for the dissolution of his marriage. On or about January 2, 2002, the plaintiff's spouse filed a family offense petition in the Family Court, Rockland County, alleging that the plaintiff committed harassment in the second degree.
The plaintiff was an ardent hunter. It is undisputed that he lawfully possessed handguns, rifles, a shotgun, and various shooting accessories. In the family offense petition, the plaintiff's spouse stated that the plaintiff possessed hunting rifles and one shotgun. Apparently as a result, the plaintiff was served with a temporary order of protection dated January 3, 2002. The temporary order of protection stated, in part, that the plaintiff "shall surrender any and all firearms owned or possessed, to the Sheriff forthwith. The firearms are best described as: A Shotgun and a Rifle. The Sheriff is directed to report back to the court to advise the court of status of surrender."
According to the plaintiff, on January 3, 2002, he surrendered the handguns, rifles, shotgun, and shooting accessories to the Sheriff's Department. The plaintiff signed a receipt dated January 3, 2002, for the weapons surrendered. The receipt stated, in part, "Note: the following Penal Law section will be adhered to unless weapons are received with a valid court order directing otherwise.Notice: pursuant to section 400.05 N.Y.S. Penal Law:Paragraph: #6 - A firearm which is surrendered or voluntarily delivered pursuant to section 265.20 of this chapter and which has not been declared a nuisance pursuant to subdivision one of this section shall be retained by the official to whom it was delivered for a period not to exceed one year. Prior to the expiration of such time period, the person who surrendered such firearm or firearms, shall have the right to arrange for the sale, or transfer, of such weapons to a dealer in firearms licensed in accordance with this chapter or for the transfer of such weapons to himself provided that a license therefor has been issued in accordance with this chapter. If no such disposition is made within the time provided, the weapon or weapons concerned shall be declared a nuisance and shall be disposed of in accordance with the provisions of this section.The above statement has been read and understood by me as owner of the firearms."
The plaintiff claimed that, at the time he surrendered his weapons and shooting accessories, he was advised that they "would be kept in good custody" by the Sheriff until the matrimonial action was concluded. However, according to Lieutenant Gary Bowers of the Sheriff's Department, the plaintiff was not advised by anyone that his weapons and accessories would remain in "good custody" until the plaintiff's matrimonial proceedings concluded. Bowers claimed that the plaintiff's ongoing matrimonial action was "irrelevant to the status of [the plaintiff's] weapons."
According to the plaintiff, on or about April 5, 2006, as his matrimonial action was nearing conclusion, he contacted the Sheriff's Department and was informed that his weapons and accessories were still being safely kept, and would be returned to him. However, Detective Lieutenant Louis Falco stated that the only time he spoke with the plaintiff was when he was off-duty and at Falco's mother's house. Falco claimed that the plaintiff approached him there and asked him about reacquiring his weapons. According to Falco, the plaintiff did not offer any information concerning how the weapons came to be in the Sheriff Department's custody. Falco claimed that, in response, he informed the plaintiff that, if the Sheriff's Department indeed had the weapons, they would be stored in a safe place. Falco claimed that his representation to the plaintiff "was general and had nothing to do with [the plaintiff's] situation."
The matrimonial action was concluded in April 2006. In August 2006, the plaintiff went to the Sheriff's Department to reclaim his weapons and accessories. The plaintiff learned that his weapons had been destroyed on May 12, 2006. He claims that, prior to the destruction of his weapons, he was not provided with any notice of this possibility. A list of weapons destroyed by the Sheriff's Department on May 12, 2006, indicates that, on that date, the Sheriff's Department destroyed three handguns, three rifles, and one shotgun owned by the plaintiff. According to the plaintiff, certain shooting accessories were also destroyed by the Sheriff's Department. However, the list of items only sets forth the weapons which were destroyed.
The plaintiff commenced this action by summons and verified complaint dated December 4, 2006. In the first cause of action, the plaintiff asserted that the defendants, under color of law, had deprived him of his rights, privileges, and immunities guaranteed by the United States Constitution in violation of 42 USC § 1983. Specifically, he claimed that his property had been unlawfully taken from him in violation of the Fourteenth Amendment without due process of law and adequate notice. The ...