78 A.D.2d 884 | N.Y. App. Div. | 1980
In an action, inter alia, to recover damages for the deprivation of the civil rights of plaintiff’s decedent, defendant New York City Transit Authority appeals from so much of an order of the Supreme Court, Kings County, dated December 20,1979, as denied the branch of its motion which sought to dismiss the first three causes of action asserted against it in the complaint. Order reversed insofar as appealed from, on the law, without costs or disbursements, and first three causes of action dismissed. The complaint asserted five causes of action. Special Term dismisséd the punitive damages claim, the fifth cause of action, asserted against all defendants, and defendant New York City Transit Authority (the authority) does not appeal from that portion of the order. Special Term refused to dismiss the other causes of action asserted against the authority. The fourth cause of action, asserted only against defendant Davis, is not before us on this appeal. It asserts a common-law wrongful death claim, based on assault. The first three causes of action state claims for damages arising out of defendant Davis shooting of
Davis was authorized to carry his gun as a peace officer, a status conferred on him because he also held the position of uniformed court officer (see CPL 1.20, former subd 33, now CPL 2.10, subd 21 [L 1980, ch 8431).
We ignore for the purposes of this discussion, the presumption under Federal practice that a dismissal for failure to state a claim under rule 12 (subd [b], par [61) of the Federal Rules of Civil Procedure is on the merits and therefore final (see Fed Rules Civ Pro, rule 41, subd [bI; Papilsky v Berndt, 466 F2d 251, 254-255, cert den 409 US 1077).