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MONTAGNA v. O'HAGAN

October 23, 1975

CONSTANTINE MONTAGNA, Plaintiff,
v.
JOHN T. O'HAGAN, as FIRE COMMISSIONER OF THE CITY OF NEW YORK and as CHAIRMAN and TREASURER OF THE FIRE DEPARTMENT PENSION FUND (ARTICLE I) and the BOARD OF TRUSTEES OF THE FIRE DEPARTMENT PENSION FUND, Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, D. J.

 Both parties have moved for summary judgment pursuant to FRCP 56; the plaintiff on the ground that there is no genuine issue of any material fact and that he is entitled to judgment as a matter of law, and the defendants on the ground that plaintiff's complaint is barred by the Statute of Limitations and by res judicata and/or collateral estoppel.

 Jurisdiction is allegedly obtained under Title 28 United States Code § 1343, and plaintiff alleges in his complaint that his "claim is predicated upon provisions of Title 42 United States Code § 1983, in that he was wrongfully retired from his employment as Lieutenant in the Uniformed Fire Forces of the Fire Department of the City of New York in violation of his rights as a citizen of the United States under the Constitution of the United States, specifically, but not limited to, his rights to equal protection of the laws pursuant to the Fourteenth Amendment thereto and the Constitution of the State of New York, Article I, Section 11."

 After alleging that the matter in controversy exceeds, exclusive of the interest and costs, the sum of $10,000, the complaint seeks a judgment declaring void plaintiff's alleged wrongful retirement, mandating his reassignment to light duty until he reaches the retirement age of 65 years and granting him appropriate salary and wage differential adjustments.

 Plaintiff became a fireman and a member of Article I of the Fire Department Pension Fund on January 1, 1938, and over the years after passing civil service promotion examinations he attained the rank of Lieutenant and aggregated a total service of 31 years.

 In 1962 the Medical Board of the Fire Department found plaintiff to be suffering from a partial permanent disability not caused in the performance of his duties and recommended that he be assigned to the Light Service Squad pursuant to Section B19-4.0, subdivision a, paragraph 4 of the Administrative Code of the City of New York.

 Periodically thereafter plaintiff's condition was re-evaluated by the Board and after his last examination in November of 1968 the Board rendered its opinion that his condition was unchanged and that he should be continued in limited service.

 Thereafter, on the application of the Fire Commissioner, plaintiff was retired on ordinary disability on October 2, 1969.

 On or about November 16, 1970, the plaintiff, together with certain other firemen, commenced an action in the Supreme Court, New York County, entitled Sarrosick v. Lowery, et al. (not officially reported, index number 6376/1971, aff'd without opinion, 43 App. Div. 2d 911, 352 N.Y.S.2d 418, leave to appeal denied, 34 N.Y.2d 514 (1974)). In that action plaintiffs sought (i) to enforce certain claimed constitutional rights and contract rights under the pertinent Administrative Code provisions allegedly applicable to their membership, (ii) to obtain a declaration that their retirement was null and void, (iii) to obtain reassignment to light duty until they reached the retirement age of 65 and (iv) to receive appropriate adjustments in their wages and salaries.

 In an unreported memorandum decision dated March 30, 1973, rendered after trial, Mr. Justice Arnold Fein granted defendants judgment dismissing the complaint. Plaintiff appealed to the Appellate Division, First Department, and, after an affirmance without opinion, sought leave to appeal from the Court of Appeals which application was denied. (34 N.Y.2d 514 (1974)).

 On or about April 22, 1975, plaintiff filed his summons and complaint in this action.

 At the outset it may be observed that neither party raised, briefed or argued the question of whether this action may be maintained against the defendants since they are all sued in their official rather than individual capacities. See: Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973), Accord: Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973) but cf. cases involving injunction against public officials from invading constitutional rights. Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908); Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 12 L. Ed. 2d 256, 84 S. Ct. 1226 (1964).

 In view of this Court's disposition of this case on other grounds, however, it is not necessary ...


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