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SAFFIOTI v. WILSON

March 24, 1975

DOMINICK SAFFIOTI, Plaintiff,
v.
MALCOLM WILSON, Governor of New York State, LOUIS J. LEFKOWITZ, Attorney General, New York State, ARTHUR LEVITT, New York State Comptroller, LEVINE, New York State Labor Department, Defendants



The opinion of the court was delivered by: CANNELLA

OPINION AND ORDER

 CANNELLA, D.J.:

 Article IV, Section 7 of the Constitution of the State of New York provides that,

 
[every] bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated . . . .

 In this novel case, Dominick Saffioti asks us to review former Governor Wilson's exercise of the broad based veto power accorded him by the State Constitution and, in effect, to set it aside as being an arbitrary and capricious deprivation of due process. While we find that the review of a governor's exercise of the veto power may properly be had in a civil rights action of the instant nature (42 U.S.C. § 1983), we conclude that Governor Wilson acted neither arbitrarily nor capriciously in vetoing the private bill which had been passed for Mr. Saffioti's benefit. Accordingly, we hereby dismiss the complaint as to all defendants pursuant to Fed.R.Civ.P. 56(b). *fn1"

 THE FACTS

 Dominick Saffioti, a carpenter by trade, is no stranger to the state and federal courts. See Saffioti v. Catherwood, 305 F. Supp. 989 (S.D.N.Y.), aff'd, 417 F.2d 971 (2 Cir. 1969) (per curiam), cert. denied, 397 U.S. 956, 25 L. Ed. 2d 140, 90 S. Ct. 988 (1970); Saffioti v. Catherwood, 28 App. Div.2d 1013, 283 N.Y.S.2d 738 (3rd Dept.), leave to appeal denied, 21 N.Y.2d 641, 287 N.Y.S.2d 1025 (1967), denied on reconsideration, 21 N.Y.2d 643, 288 N.Y.S.2d 1026 (1968). In view of these earlier opinions, the events which give rise to Mr. Saffioti's litigious course are briefly stated. See, Saffioti v. Catherwood, 305 F. Supp. at 990 (Bonsal, J.).

 In 1962, at a time when the plaintiff was receiving unemployment insurance benefits from the State of New York, an investigator for the New York Department of Labor discovered that Saffioti was placing advertisements in Newburg, New York newspapers which solicited offers on various parcels of real estate. Further investigation revealed that plaintiff held a real estate salesman's license and was working for one Joseph Parisi, a licensed real estate broker.

 As the result of this investigation, an administrative proceeding was instituted. After a hearing, the Referee determined that plaintiff had made false statements in connection with his application for unemployment insurance benefits, and that he was not totally unemployed as required by New York Labor Law § 522. Accordingly, the Referee ordered that Saffioti's unemployment insurance benefits be reduced and that he be required to make restitution of some $1,025 to the state. Thereafter, on three separate occasions, the Unemployment Insurance Appeals Board affirmed the decision of the Referee without modification. These administrative decisions were subsequently affirmed by the state appellate courts. Saffioti v. Catherwood, 28 App. Div.2d 1013, 283 N.Y.S.2d 738 (3rd Dept.), leave to appeal denied, 21 N.Y.2d 641, 287 N.Y.S.2d 1025 (1967), denied on reconsideration, 21 N.Y.2d 643, 288 N.Y.S.2d 1026 (1968).

 Upon the conclusion of the state court proceedings, Saffioti commenced a civil rights action in this court. Plaintiff alleged "that he had been found guilty of fraud and misrepresentation, without due process of law and in violation of his constitutional rights." 305 F. Supp. at 990. After hearing argument on the matter, Judge Bonsal concluded that plaintiff had not been found guilty of any crime, but only that he was found not to be totally unemployed; that he had not been deprived of due process in the state forums and that "he [had] alleged no violation of his Federal constitutional rights." Id. at 991. Accordingly, Judge Bonsal granted summary judgment dismissing the complaint. The district court's decision was unanimously affirmed by the Court of Appeals for the Second Circuit, which stated that "we find that [Saffioti] received due process in compliance with the requirements of state law, and that there is no merit to his claims that he has suffered the loss of any federal constitutional protection." 417 F.2d at 971. The Supreme Court of the United States denied certiorari. 397 U.S. 956, 90 S. Ct. 988, 25 L. Ed. 2d 140 (1970).

 Having thus failed to secure the reversal of the unemployment insurance referee's determination in either the state or federal courts, Saffioti commenced an action in the New York Court of Claims (Motion No. 12571) in which he alleged that the administrative proceedings against him had been negligently instituted by the unemployment insurance investigator. A recovery of $100,000 was sought from the State. After hearing the matter, Judge Milton Alpert of the Court of Claims issued an order (March 31, 1970) dismissing the complaint upon the ground that it was time-barred under the statute of limitations contained in New York Court of Claims Act § 10. Rather than enter an appeal from this determination, Mr. Saffioti sought the assistance of the New York Legislature in the form of a private bill.

 In each of the last three New York legislative sessions (1972, 1973 and 1974), Mr. Saffioti succeeded in securing the approval of both houses of the New York Legislature for a private bill which, in effect, waived the applicable statute of limitations and conferred jurisdiction upon the New York Court of Claims to hear his case. In its most recent version ((1974) Assembly Int. No. 10600 (Mr. Herbst)) the legislation provided that:

 
Jurisdiction is hereby conferred upon the court of claims to hear, audit and determine the claim or claims of Dominick Saffiati [sic] against the state alleging negligence in behalf of the state and for the return of monies allegedly wrongfully withheld from him by the state. *fn2"

 On each occasion of its passage, however, this legislation was vetoed by the Governor: twice by then Governor Rockefeller and once by then Governor Wilson. It is to the latter veto cast by Governor Wilson that this action is addressed.

 In exercising his veto against the enactment of "Mr. Saffioti's bill," Governor Wilson stated:

 
The bill would confer jurisdiction on the Court of Claims to hear and determine the claims of Dominick Saffiati [sic] against the State for negligence and the return of monies allegedly wrongfully withheld from him by the State.
 
The bill, which is identical to one disapproved by my predecessor (1973 Assembly Bill 4524, Disapproval Memorandum No. 140) does not describe the nature of the claim alleged nor specify the date on which it is alleged to have accrued. As noted last year, however, it appears from extrinsic evidence that the claim relates to a ruling by the Department of Labor in an unemployment insurance matter, which ruling was adverse to the claimant. That ruling has been fully litigated ...

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