# Robert J. Fine v. The City of New York, Anthony Saladino

> Court of Appeals for the Second Circuit · December 31, 1975 · 529 F.2d 70

URL: https://www.frixlaw.com/law-library/cases/9462404

## Case

- **Full name:** Robert J. FINE, Plaintiff-Appellant, v. the CITY OF NEW YORK Et Al., Defendants-Appellees, Anthony Saladino Et Al., Defendants
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** December 31, 1975
- **Citations:** 529 F.2d 70
- **Precedential status:** Published
- **Opinion:** Concurring in part by Smith
- **Judges:** Kaufman, Smith, Meskill
- **Cited by:** 466 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9462404

## How later opinions describe it (automated extraction)

- holding that a “cause of action . . . against [a private] lawyer, whether sounding in professional malpractice, tort, or otherwise, is one of state law insufficient to vest a federal court with jurisdiction over the subject matter”
- holding that “[defendant]’s status as an attorney . . . does [not] satisfy the test of state action that must be met before liability may be imposed pursuant to § 1983”
- finding that private attorney appointed by the court to represent a criminal defendant was not a state actor
- declining to decide the "difficult and troublesome constitutional questions" in a Bivens-like claim against a municipality "founded directly upon the Fourteenth Amendment"

## Opinion text

J. JOSEPH SMITH, Circuit Judge
(concurring and dissenting):
I concur in the opinion of Chief Judge Kaufman and in the disposition of the appeal in all respects except one. I would hold the statute of limitations no defense at least as to the allegations of continuing deprivation of property illegally seized and not returned.
I would therefore find it necessary to reach the merits of the claim against the City and would hold that a claim against the City based on the Fourteenth Amendment is stated, see panel opinion in Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975), and Oakes, J., dissenting in Brault v. Town of Milton, 527 F.2d 744 (2d Cir. 1975) (en banc.) I would also hold that a state law tort claim against the City is stated, as the City appears to concede, (see City’s brief p. 7) and should be entertained by the court under the theories of pendent jurisdiction, United Mine Workers of America v. Gibbs, 383 U.S. 715 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966); Ryan v. J. Walter Thompson Co., 453 F.2d 444 (2d Cir. 1971); see also Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 3567 at 451 — 52 particularly n. 35; and pendent parties, Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 809-11 (2d Cir. 1971); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627, 629-30 (2d Cir. 1971).
As to the City, therefore, I would reverse and remand for trial as to all issues.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462404. Public record. Not legal advice.