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SILETTI v. NEW YORK CITY EMPLES. RETIREMENT SYS.

September 30, 1975;

Ronald SILETTI, Plaintiff,
v.
NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, Defendant



The opinion of the court was delivered by: LASKER

MEMORANDUM

 LASKER, District Judge.

 This is a civil rights action brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 (3)(4). Jurisdiction is predicated not only on § 1343(3)(4) and the Fourteenth Amendment but on 28 U.S.C. § 1331.

 Siletti, a former patrolman in the New York City Transit Authority, was injured in 1969 when he fell down a subway station stairway. In 1970, he was retired on ordinary (non-service connected) disability benefits. Subsequently, his application for service connected disability retirement was denied by the defendant-New York City Employees' Retirement System (Retirement System). The defendant's determination was made pursuant to § B3-40.0 of the Administrative Code of the City of New York, which provides that an application for service connected disability can only be granted if a "medical examination and investigation" finds that the applicant was

 
"physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service while a member, and that such disability was not the result of willful negligence on the part of such member and that such member should be retired . . . ."

 The plaintiff contends that had he been given an evidentiary hearing on his application for service connected retirement, he would have been able to show that his disability was connected to his city-service, thus entitling him to a larger pension. The complaint seeks declaratory relief that, as applied, § B3-40.0 of the Administrative Code deprived the plaintiff of property without due process of law; monetary damages; and the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284.

 In a motion to dismiss pursuant to Rule 12, Federal Rules of Civil Procedure, the defendant argues that the district court lacks jurisdiction; that the district court should abstain; that the complaint states facts insufficient to state a claim of deprivation of property without due process of law; and that a three-judge court should be convened.

 In a cross-motion pursuant to Rule 19, Federal Rules of Civil Procedure, Siletti seeks to add Melvin Goldstein, Executive Director of the Retirement System, as a defendant.

 Jurisdiction

 The defendant first argues that federal district courts lack jurisdiction to review determination of state administrative agencies. Plainly the defendant has misconstrued the thrust of Siletti's complaint. Except as to his claim for money damages, Siletti does not seek a substantive review of the disability finding, but rather, challenges the procedures employed to reach that determination. Cf. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Such a claim properly falls within the subject matter jurisdiction of the court. See, e. g., McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972). The case relied on by the defendant to support its argument, Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 74 S. Ct. 290, 98 L. Ed. 317 (1954), is inapposite. There, in a diversity action, the petitioner was seeking a substantive review of an assessment of land pursuant to state condemnation proceedings; unlike the present case, no constitutional questions were raised.

 However, to the extent that the complaint demands money damages, the plaintiff necessarily asks this court to review the substantive determination made by the Retirement System. To grant such relief would be premature, since even if Siletti were entitled to a new hearing with full rights of appearance and cross examination, we cannot assume that the Retirement System Tribunal will necessarily find his disability to be service connected. Accordingly, the motion to dismiss as to the prayer for monetary relief is granted without prejudice to the plaintiff.

 The defendant's reference to the existence of an "adequate state remedy" is apparently to be taken to mean that the court lacks jurisdiction because Siletti has failed to exhaust an available state judicial or administrative remedy. The argument is without merit. Claims premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) need not be predicated on exhaustion of state judicial or administrative remedies. Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974). Although the Second Circuit continues to draw a distinction between state judicial remedies and adequate administrative remedies, see Plano v. Baker, 504 F.2d 595 (2d Cir. 1974); see also Blanton v. State University of New York, 489 F.2d 377 (2d Cir. 1973); Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S. Ct. 82, 27 L. Ed. 2d 75 (1970), the distinction is of no assistance to the defendant in the absence of allegations that the plaintiff failed to exhaust an adequate administrative remedy. See also Powell v. Workmen's Compensation Board of the State of New York, 327 F.2d 131 (2d Cir. 1964).

 Finally, as to Siletti's cross-motion to add a party defendant, the defendant Retirement System makes no objection. Accordingly, the plaintiff's cross-motion is granted. By naming Melvin Goldstein, individually and as Executive Director of the Retirement System, as a party defendant to this action, the plaintiff obviates the objection that the complaint fails to name as a defendant a "person" within the meaning of 42 U.S.C. § 1983. Cf. Surowitz v. New York City Employees' Retirement System, 376 F. Supp. 369 (S.D.N.Y.1974); Eisen v. Eastman, supra.

 Accordingly, the defendant's motion to dismiss for lack of jurisdiction, with the exception of the plaintiff's claim ...


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