Opinion
June 10, 1996
Appeal from the Supreme Court, Westchester County (Nicolai, J.).
Ordered that the appeal of Jon N. Willcox is dismissed, for failure to perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [a], [e]); and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that the respondent and the appellant-respondent are awarded one bill of costs.
This action arises out of the alleged improper execution of a search warrant by the defendant Jon N. Willcox. Contrary to the plaintiffs contentions, the Supreme Court properly dismissed the complaint against the defendant Carl A. Vergari, who was sued only in his official capacity as the former Westchester County District Attorney and properly dismissed those causes of action asserted against Willcox based on acts committed in his official capacity. In an order entered April 28, 1988, the Supreme Court dismissed those causes of action to recover damages for violation of civil rights which were asserted against the defendant Westchester County because the plaintiffs failed to allege an affirmative wrongdoing on its part. This determination was not disturbed on appeal (see, Rosen Bardunias v. County of Westchester, 158 A.D.2d 679). Municipalities may be held liable under 42 U.S.C. § 1983 only where the injury resulted from the "government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy" (Monell v New York City Dept. of Social Servs., 436 U.S. 658, 694). An action against a government official in his official capacity is functionally equivalent to an action against the municipality (see, Kentucky v. Graham, 473 U.S. 159, 166; Monell v. New York City Dept. of Social Servs., supra; Brandon v. Holt, 469 U.S. 464, 472-473). Thus, the plaintiffs were required to plead and prove that Vergari and Willcox were acting pursuant to a Westchester County policy in order to maintain those causes of action based on acts committed in their official capacity (see, Jackson v Police Dept., 192 A.D.2d 641, 642). However, the plaintiffs' complaint fails to allege such acts and the plaintiffs failed to offer proof of any such acts. Miller, J.P., Hart, Krausman and McGinity, JJ., concur.