Everett v. Eastchester Police Dept., 2018 NY Slip Op 129

On November 3, 2009, off-duty Eastchester police officer James Pileggi, Jr. discharged his off-duty firearm, killing Andre LaSalle. Pileggi was later convicted of second-degree manslaughter.
LaSalle's mother (individually and as administrator), grandmother, and sister sued, asserting among other claims a § 1983 civil-rights cause of action (seventh cause) against the Eastchester Police Department and Town of Eastchester.
The amended complaint alleged only conclusorily that Pileggi was "acting under the color of law" when the shooting occurred; it did not allege he identified himself, was recognizable as an officer, or engaged in police duties.
Plaintiffs also alleged a Monell theory that the municipality had policies or customs that caused the constitutional violation.
The Supreme Court (Westchester County) granted the defendants’ CPLR 3211(a)(7) motion to dismiss the seventh cause of action as to the municipal defendants; judgment entered dismissing that claim.
On appeal the Second Department affirmed, dismissing the § 1983 claim for failure to plead that the officer acted under color of state law and for failure to plead a municipal policy or custom supporting Monell liability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Pileggi acted under color of state law when off duty and handling his weapon	Everett: Pileggi was acting under color of law at the time of the shooting	Defs: Complaint lacks any factual allegation showing Pileggi identified as or was acting as an officer; conduct was purely personal	Court: Dismissed — complaint only pleaded conclusory "acting under color of law" and alleged no facts showing invocation of police authority
Whether municipal defendants can be held liable under Monell for Pileggi’s conduct	Everett: Municipality’s training/policies/customs caused or sanctioned the conduct	Defs: No factual allegations showing any policy, custom, or failure to train that was the moving force of a constitutional violation	Court: Dismissed — without allegations that officer acted under color of law, and without specific facts alleging an unconstitutional policy/custom, Monell claim fails

Pitchell v. Callan, 13 F.3d 545 (2d Cir.) (elements for § 1983: action under color of state law and deprivation of federal right)
Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (municipal liability requires policy/custom or failure to train as moving force)
Los Angeles v. Heller, 475 U.S. 796 (municipal liability principles)
Matter of Aho, 39 N.Y.2d 241 (limitations on right of direct appeal after judgment entry)
Claudio v. Sawyer, [citation="409 F. App'x 464"] (2d Cir.) (Monell claim requires showing officer acted under color of state law)
Martin v. City of New York, 153 A.D.3d 693 (failure to plead municipal policy/custom defeats Monell claim)
Cozzani v. County of Suffolk, 84 A.D.3d 1147 (Monell pleading requirements)
Pang Hung Leung v. City of New York, 216 A.D.2d 10 (pleading standards for municipal liability)