Opinion
Argued February 18, 1982
Decided March 25, 1982
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOSEPH MODUGNO, J.
Charles A. Schiano and Charles O. Baisch for appellant.
Robert Abrams, Attorney-General ( Henderson G. Riggs and Shirley Adelson Siegel of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
According to claimant's theory of liability as stated in his verified bill of particulars, the acts of prosecutorial misconduct complained of were undertaken by the various employees of the State for the purpose of advancing their own personal interests. That being so, the doctrine of prosecutorial immunity and the legal principle that vicarious liability cannot be imposed upon the State as employer under the doctrine of respondeat superior in such circumstances preclude recovery against the State. ( Imbler v Pachtman, 424 U.S. 409; Sauter v New York Tribune, 305 N.Y. 442, 444-445; accord Restatement, Agency 2d, § 235; see, also, Cornell v State of New York, 46 N.Y.2d 1032; Johnson v Daily News, 34 N.Y.2d 33; see, generally, Prosser, Law of Torts [4th ed], § 70, pp 464-466; 2 Harper and James, Law of Torts, § 26.9, pp 1391-1392.) Therefore, claimant's action properly was dismissed.
Aside from the pleaded acts of prosecutorial misconduct to which the majority confines itself, claimant's allegations of aggrievement, not without support in the record, may also be said to spell out a charge that the accusations which were made against him not only were baseless but hardly free from political motivation. But, assuming these conflicted with the Code of Professional Responsibility (DR7-103; EC7-14; see, also, EC7-13) or could be thought to justify action to vindicate the victim's reputation (cf. United States v Modica, 663 F.2d 1173, 1185), it seems settled that these too could not support an action against the sovereign in this State (see Rao v State of New York, 74 A.D.2d 964, mot for lv to app den 50 N.Y.2d 803, cert den 449 U.S. 982; Cunningham v State, 71 A.D.2d 181).
Judges JASEN, GABRIELLI, JONES and WACHTLER concur; Judge FUCHSBERG concurs in a separate memorandum; Chief Judge COOKE and Judge MEYER taking no part.
Order affirmed, with costs, in a memorandum.