Gail M. Everett, etc., et al., appellants,
Eastchester Police Department, et al., respondents, et al., defendants.
Richard L. Sullivan, Buffalo, NY (Ameer Benno of counsel),
Cerussi & Spring, P.C., White Plains, NY (Christa
D'Angelica of counsel), for respondents.
E. CHAMBERS, J.P., JEFFREY A. COHEN, BETSY BARROS, LINDA
DECISION & ORDER
action, inter alia, to recover damages for wrongful death,
the plaintiffs appeal, as limited by their brief, from (1) so
much of an order of the Supreme Court, Westchester County
(Lefkowitz, J.), dated August 22, 2013, as granted that
branch of the cross motion of the defendants Eastchester
Police Department and Town of Eastchester which was pursuant
to CPLR 3211(a)(7) to dismiss the seventh cause of action
insofar as asserted against them, and (2) so much of a
judgment of the same court dated May 13, 2015, as, upon the
order, dismissed the seventh cause of action insofar as
asserted against them.
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is affirmed insofar as
appealed from; and it is further, ORDERED that one bill of
costs is awarded to the respondents.
appeal from the order dated August 22, 2013, must be
dismissed because the right of direct appeal therefrom
terminated with the entry of the judgment (see Matter of
Aho, 39 N.Y.2d 241). The issues raised on the appeal
from the order are brought up for review and have been
considered on the appeal from the judgment (see CPLR
defendant James Pileggi, Jr., was a police officer employed
by the defendants Eastchester Police Department and Town of
Eastchester (hereinafter together the defendants). On
November 3, 2009, while off duty, Pileggi was handling his
off-duty weapon when it went off and Andre LaSalle was killed
(see Everett v Eastchester Police Department, 127
A.D.3d 1131). Pileggi subsequently was convicted of
manslaughter in the second degree. This action was commenced
by LaSalle's mother, (individually and as administrator
of his estate), grandmother, and sister. The plaintiffs'
seventh cause of action against the defendants alleged civil
rights violations pursuant to 42 USC § 1983.
order to maintain an action under 42 USC § 1983, two
essential elements must be present: (1) the conduct
complained of must have been committed by a person acting
under color of state law; and (2) the conduct complained of
must have deprived a person of rights, privileges, or
immunities secured by the Constitution or laws of the United
States (see Pitchell v Callan, 13 F.3d 545, 547 [2d
Cir]). Moreover, a municipality may only be held liable
pursuant to 42 USC § 1983 for constitutional violations
committed by its employees where the municipality's
failure to train, and/or the policies or customs that it has
sanctioned, were "the moving force of the constitutional
violation" (Monell v New York City Dept. of Social
Servs., 436 U.S. 658, 694; see Los Angeles v
Heller, 475 U.S. 796, 799; Hudson Valley Mar., Inc.
v Town of Cortlandt, 79 A.D.3d 700, 703).
the conduct complained of was committed by an off-duty police
officer, a constitutional violation may be found if, for
instance, the officer, albeit off-duty, nonetheless is
engaged in some activity arguably invoking the real or
apparent power of the police department, or is engaged in the
performance of duties prescribed generally for police
officers (see Pitchell v Callan, 13 F.3d at 548).
Here, the amended complaint alleged only, in the most
conclusory fashion, that Pileggi was "acting under the
color of law" when the shooting occurred. Since nothing
in the amended complaint suggested that Pileggi identified
himself or was recognizable as a police officer, or was
otherwise engaged in any activity arguably invoking the real
or apparent power of the police department, the seventh cause
of action was fatally defective. In turn, because the
plaintiffs failed sufficiently to allege that Pileggi was
acting under color of state law, it follows that there was no
factual basis upon which to hold the defendants liable under
Monell (see Claudio v Sawyer, 409 Fed.Appx
464, 466 [2d Cir]).
event, even if the amended complaint had properly pleaded
that Pileggi was acting under color of state law and not
engaged in purely personal pursuits at the time of the
shooting, the seventh cause of action was also fatally
defective in that it failed to allege specific facts
supporting the plaintiffs' contention that the defendants
had a policy or custom of encouraging or sanctioning the type
of reckless behavior that led to the shooting (see Martin
v City of New York, 153 A.D.3d 693; Cozzani v County
of Suffolk, 84 A.D.3d 1147; Pang Hung Leung v City
of New York, 216 A.D.2d 10).
light of our determination, we need not reach the
defendants' remaining contention.
the Supreme Court properly dismissed the ...