93 A.D.2d 977 | N.Y. App. Div. | 1983
— Order unanimously modified and, as modified, affirmed, with costs to appellants, in accordance with the following memorandum: Plaintiffs appeal from an order dismissing their complaint which contained causes of action based upon alleged deprivation of their constitutional rights (US Const, 1st, 14th Arndts), violation of their civil rights (US Code, tit 42, § 1983), negligence, defamation and derivative claims. The factual circumstances are not in dispute. Defendants concede that an eavesdropping warrant had been obtained by defendant City of Rochester Police Department and that based upon information received from the wiretap, a search warrant was issued. The transcript of the taped conversation concerning a purchase of marihuana revealed that the subject of the wiretap called telephone No. 244-9871 and spoke to an unknown male. Although the number listed in the transcript was 244-9871, a transposition error in the telephone company record check incorrectly led the police to obtain a warrant for plaintiffs’ address which contained a phone listed as 244-9817. On the evening of September 25, 1981, while plaintiffs were observing the Jewish Sabbath, defendants went to plaintiffs’ residence, where they were granted entry upon service of the search warrant. It is alleged “the Defendants then and there informed Plaintiff mordecai kolko that his son the Plaintiff hanan kolko was under suspicion of selling marijuana and that a phone conversation had taken place between his son and another person in which his son had offered to sell two pounds of marijuana”. After a search of plaintiffs’ premises failed to uncover any controlled substance, defendants telephoned the District Attorney’s office while still at plaintiffs’ residence and ascertained that they had executed the warrant upon the wrong premises. Plaintiffs thereafter instituted this action. Plaintiffs’ cause of action against the municipality under section 1983 of title 42 of the United States Code was properly dismissed; there are no allegations that an official municipal policy was responsible for the alleged deprivation of plaintiffs’ rights. A municipality may only be held liable under section 1983 if the action complained of was taken pursuant to official policy, and it cannot be