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SUROWITZ v. NEW YORK CITY EMPLES. RETIREMENT SYS.

May 9, 1974

Anthony B. SUROWITZ, Plaintiff,
v.
The NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, and Arthur Van Houten, Executive Director, the New York City Employees' Retirement System, Defendants


Pollack, District Judge.


The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

Speaking of judicial review of administrative action, Mr. Justice Brandeis once said: "The supremacy of law demands that there shall be an opportunity to have some court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were adjudicated was conducted regularly." St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 56 S. Ct. 720, 740, 80 L. Ed. 1033 (1936) (concurring opinion) (emphasis added). In this case, plaintiff seeks to compel this court to undertake such a review of state administrative actions rather than resort to the state courts of New York for relief. He hopes to accomplish this by a ritualistic invocation of 42 U.S.C. § 1983. This he may not do, for the reasons which follow.

 I.

 Plaintiff, a retired municipal correction officer, sues for "a writ of mandamus; preliminary injunction; permanent injunction, and for a declaratory judgment" against the defendants, the New York City Employees' Retirement System (NYCERS) and its Executive Director. Jurisdiction is alleged to exist by virtue of 28 U.S.C. §§ 1331, 1343(3), (4), 2201, 2202; 42 U.S.C. §§ 1981, 1983; Rule 57, Fed. R. Civ. P.; and the Fifth and Fourteenth Amendments to the Constitution. Although no money damages in a sum certain are expressly demanded by the complaint, that pleading does request the Court to "issue a writ of mandamus directing defendants to retire plaintiff on a service-connected disability pension retroactive to December 12, 1969, and to pay plaintiff back pension on the basis of a service-connected retirement with interest from December 12, 1969." Moreover, plaintiff's counsel has indicated, on a civil designation form filed in this Court, that $50,000.00 is the amount sought to be recovered herein, presumably from the members of the NYCERS and its executive director (upon whom no service of process has been effected or attempted) in their official and not individual capacities.

 Although plaintiff patently attempts to clothe his monetary claim in the guise of an equitable action for declaratory and injunctive relief, cf. Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974) (42 U.S.L.W. 4419); compare Scheuer v. Rhodes, 416 U.S. 232, [*], 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974) (42 U.S.L.W. 4543), this Court need not reach the effect of that problem since in no event does plaintiff state a claim upon which relief could be granted, as appears hereafter.

 II.

 Plaintiff names the NYCERS as a defendant herein. Under local law, the NYCERS has the powers and privileges of a corporation and transacts all its business in its name. New York, N.Y. Admin. Code § B3-10.0 (1971). Assuming that to be sufficient to render the NYCERS sui juris as such (cf. Balash v. New York City Employees' Retirement System, 34 N.Y. 2d 654, 355 N.Y.S. 2d 577, 311 N.E. 2d 649 (1974) (mem.) (by implication); Hessel v. New York City Employees' Retirement System, 33 N.Y. 2d 381, 353 N.Y.S. 2d 169, 308 N.E. 2d 688 (1974) (by implication), it does not serve to constitute that body a "person" within the meaning of § 1983. Blanton v. State University of New York, 489 F.2d 377, 382 (2d Cir. 1973) (State University not a "person"); Davis v. United States, 439 F.2d 1118, 1119 (8th Cir. 1971) (St. Louis Dep't of Public Welfare not a "person"); Sellers v. Regents of University of California, 432 F.2d 493, 500 (9th Cir. 1970), cert. denied, 401 U.S. 981, 91 S. Ct. 1194, 28 L. Ed. 2d 333 (1971) (Regents of State University [a corporate body] not a "person"); Olson v. California Adult Authority, 423 F.2d 1326 (9th Cir.) (per curiam), cert. denied, 398 U.S. 914, 90 S. Ct. 1717, 26 L. Ed. 2d 78 (1970) (California Adult Authority not a "person"); Zuckerman v. Appellate Dvision, Second Department, Supreme Court of the State of New York, 421 F.2d 625, 626 (2d Cir. 1970) (State Court not a "person"); *fn1" Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (State Bar Association not a "person"); Sams v. New York State Board of Parole, 352 F. Supp. 296, 299 (S.D.N.Y. 1972) (Parole Board not a "person"); Webb v. Lake Mills Community School Dist., 344 F. Supp. 791, 807 (N.D. Iowa 1972) (School District not a "person"); Wood v. Mt. Lebanon Township School Dist., 342 F. Supp. 1293, 1294 (W.D. Pa. 1972) (same); Paige v. Pennsylvania Board of Parole, 311 F. Supp. 940, 941 (E.D. Pa. 1970) (State Parole Board not a "person"); O'Reilly v. Wyman, 305 F. Supp. 228, 229 (S.D.N.Y. 1969) (Department of Social Services not a "person"); Simmons v. Maslysnky, 45 F.R.D. 127, 130 (E.D. Pa. 1968) (Parole Board not a "person"); Burmeister v. New York City Police Department, 275 F. Supp. 690, 695 (S.D.N.Y. 1967) (New York Police Department not a "person"); Hirych v. State, 376 Mich. 384, 136 N.W. 2d 910, 914 (1965) (State Fair Authority not a "person"). See generally City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973) (A city is not a "person" under 42 U.S.C. § 1983 where equitable relief is sought); accord, Monroe v. Pape, 365 U.S. 167, 187, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961) (same, where damages are sought).

 Accordingly, as the NYCERS is not a "person" within the meaning of § 1983, its presence as a defendant herein does not suffice to create federal jurisdiction. City of Kenosha v. Bruno, supra, at 513. The existence of federal jurisdiction predicated on § 1983 must depend on the presence of some defendant who is a "person." Id. Plaintiff in his complaint has named the executive director of NYCERS, one VanHouten, as a co-defendant herein. Overlooking for the moment the fact that he is not named in his individual capacity, his presence in the title of the suit does not avail the plaintiff since no service upon him has been either effected or attempted. Thus, he is not as yet before the Court in any legal manner. Fed. R. Civ. P. 4; see Jaynes v. Jaynes, 496 F.2d 9, 10 (2d Cir. 1974) (per curiam).

 III.

 The jurisdiction point on which plaintiff must fail in this suit is apparent on the face of his complaint. Plaintiff seeks to state a claim for relief in these terms:

 
Plaintiff was denied a speedy disposition of his claim and cause of action. The ruthless delay in adjudicating his claim was invidious, intentional and discriminatory. The defendants and their representatives intentionally and purposefully discriminated against plaintiff and have successfully deprived him of a substantial property right without due process of law. Defendants by their actions have denied plaintiff . . . equal protection of the law and due process. (Complaint, para. 18).
 
The effect of the Appellate Division in granting defendants thirty (30) additional days after a "do-nothing" for approximately three (3) years, was to grant defendants preferential treatment. Defendants were not entitled under the law to special consideration. The firm principle of "equal justice under law" was violated. (Id. para. 19).
 
The denial of plaintiff's claims by defendants on August 24, 1973, would now require plaintiff to initiate new proceedings to review said determination. This violates every concept of due process and fair play. Such a burden is intolerable, unduly oppressive and denies plaintiff the fundamental basics of due process and a speedy trial. (Id. para. 20).

 To better understand the significance of this vituperative statement, a brief recital of the facts alleged on the subject matter is required.

 Plaintiff, as previously mentioned, is a former Correction Officer, having been employed by the Department of Corrections of the City of New York. After plaintiff was discovered to have active pulmonary tuberculosis, the defendant retired him at one-half pay following numerous examinations and administrative proceedings at which he was represented by counsel. The defendant made a finding that plaintiff's disability was not service connected -- a finding that plaintiff vigorously disputes. Were his disability to be found to be service connected, his retirement pay would be at a higher level.

 Plaintiff thereupon instituted state judicial proceedings pursuant to Article 78, N.Y.C.P.L.R. to review and annul the defendant's finding or to afford a variety of alternative relief. The petition was granted to the extent that the matter was remanded to the defendant for further proceedings not inconsistent with the state court's determination. Apparently, the further proceedings were not timely held and defendant was held in contempt of the state court. However, the contempt order was in time reversed by the Appellate Division, which again remanded the matter to the defendant for further proceedings. On rehearing, defendant once again retired plaintiff for ordinary disability at the rate provided therefor by law.

 At this point plaintiff again had available to him his Article 78 remedy -- a procedural device which he had already utilized successfully. In fact, at every stage of the state judicial proceedings, plaintiff had prevailed on the merits. His displeasure with the state courts is apparently occasioned by the procedure employed by them to remand the matter to the agency ...


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