DiPalma v. Phelan

About a month later, after the Town Board had learned that plaintiff’s father had pleaded guilty to attempted sexual abuse in the first degree, it requested defendant Phelan, the Police Chief, to produce the supporting deposition for the Board’s review. At the time, the Town Board was considering whether to take disciplinary action against plaintiff’s father, who was the Town’s grant administrator. Phelan delivered the supporting deposition to the Town Attorney, and the deposition was reviewed by the Town Board. The complaint asserts three causes of action: one for violation of the US Constitution, a Federal civil rights action (see, 42 USC § 1983); the second for violation of section 50-b of the New York Civil Rights Law; and the third for negligence. Defendants made a pre-answer motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]) or, in the alternative, for summary judgment. Plaintiff cross-moved for partial summary judgment on liability. Supreme Court granted defendants’ motion for summary judgment dismissing the negligence and Federal civil rights actions, but granted partial summary judgment in plaintiff’s favor on the section 50-b cause of action. We modify that order to grant summary judgment dismissing the section 50-b claim. It is clear from legislative history that, in enacting section 50-b of the Civil Rights Law, the Legislature did not intend to create a private cause of action for a violation of that statute (cf., Simpson v New York City Tr. Auth., 112 AD2d 89, affd 66 NY2d 1010; Carpenter v City of Plattsburgh, 105 AD2d 295, affd 66 NY2d 791 [no private cause of action for violation of [1010] section 50-a of Civil Rights Law]). The principal purpose of the legislation was to protect the privacy of sex crime victims who are minors by giving public officers authority to refuse to disclose the identity of victims; "[t]he bill also does not impose any penalty for violation of its provisions” (letter to Governor’s Counsel from Senator Stafford, Bill Jacket, L 1979, ch 656). The private cause of action for violation of section 50-b was created by the enactment of Civil Rights Law § 50-c in 1991 (L 1991, ch 251), which became effective on July 31, 1991, more than a year after commencement of the instant action. Because there is no clear expression that the Legislature intended section 50-c to have retroactive application, we conclude that the statute is to be applied prospectively (see, Gleason v Gleason, 26 NY2d 28, 36; Guadagno v Baltimore & Ohio R. R. Co., 155 AD2d 981), and that plaintiff’s section 50-b cause of action should have been dismissed. Supreme Court properly dismissed plaintiff’s section 1983 cause of action against defendants Phelan and the Town of Greece. Because neither case law nor statute clearly establishes that a sex crime victim’s constitutional right to privacy is violated by the disclosure of her identity, defendant Phelan’s discretionary determination to provide plaintiff’s deposition to the Town Board, which was considering disciplinary action against plaintiff’s father, was entitled to qualified immunity (see, Davis v Scherer, 468 US 183, 194; Shabazz v Coughlin, 852 F2d 697, 700-702). Further, because the record failed to establish the existence of a municipal policy by the Town Board that police reports would be turned over to it by the police department, plaintiff’s section 1983 cause of action must fail (see generally, Monell v New York City Dept. of Social Servs., 436 US 658, 691; see also, Pembaur v Cincinnati, 475 US 469). Indeed, by resolution dated April 5, 1988, the Town Board established that whether the Town police would release to the Board, upon request, investigatory information was a determination to be made by the Chief of Police. All concur, except Doerr and Balio, JJ., who dissent in part, in the following Memorandum.