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GENDALIA v. GIOFFRE

April 1, 1985

FRANK GENDALIA, FELIX N. FIDELIBUS and STELLA RATHGEB, Plaintiffs,
v.
DONALD GIOFFRE, FRED GIOFFRE, JOHN COLANGELO and ANTHONY J. ZACCAGNINO, individually and as Members of the Town Counsel of the Town of Rye, New York, ANTHONY J. POSILLIPO, individually and as Supervisor of the Town of Rye, ALDO VITAGLIANO, individually and as Town Attorney of the Town of Rye, and the TOWN OF RYE, as Municipal Subdivision of the State of New York, Defendants DOMENICK J. PATAFIO, Plaintiff, vs. DONALD GIOFFRE, FRED GIOFFRE, JOHN COLANGELO and ANTHONY J. POSILLIPO, individually and as Members of the Town Counsel of the Town of Rye, New York, ANTHONY J. POSILLIPO, individually and as Supervisor of the Town of Rye, ALDO VITAGLIANO, individually and as Town Attorney of the Town of Rye, and the TOWN OF RYE, a Municipal Subdivision of the State of New York, Defendants



The opinion of the court was delivered by: SWEET

SWEET, D.J.

Defendants Donald Gioffre, Fred Gioffre, John Colangelo and Anthony J. Zaccagnino, individually and as members of the Town Counsel of the Town of Rye, New York, Anthony J. Posillipo, individually and as Supervisor of the Town of Rye, Aldo Vitagliano, individually and as Town Attorney of the Town of Rye, and the Town of Rye, a Municipal subdivision of the State of New York (collectively the "Town defendants") have moved to to dismiss the complaint of plaintiffs Frank Gendalia, Felix N. Fidelibus and Stella Rathgeb in one action (83 Civ. 4069) and Domenick J. Patafio in a related action (83 Civ. 4239) (collectively the "Employees"). In the alternative, the Town defendants have moved for summary judgment, only to be met by a cross-motion for summary judgment by the Employees. For the reasons stated below the motion to dismiss will be granted with leave to replead, and both motions for summary judgment will be denied.

 Prior Proceedings

 These actions were filed on May 26, 1983 and June 3, 1983. A scheduling order was entered on September 13, 1984 calling for completion of discovery and motions by December 5, 1983. By agreement of the parties, this period was extended to June 11, 1984. On June 11, 1984 the Town defendants moved to dismiss, presumably under Rule 12(b), Fed.R.Civ.P. and for summary judgment under Rule 56, Fed.R.Civ.P. The Employees cross-moved on September 11, 1984, and the parties adjourned the submission date of the motion to January 10, 1985, at which time it was fully submitted. During this process discovery has been had, depositions taken, and interrogatories answered.

 The Complaint

 The complaint alleges jurisdiction under 42 U.S.C. §§ 1983, 1985, 1986 and 42 U.S.C. § 1343. The complaint claims a deprivation of property without due process by the Town defendants arising out of their failure to pay the Employees for vacation and sick days accrued during their employment by the Town of Rye. The complaint is far from a model pleading of constitutional claims, although it might be construed to allege:

 
1) A failure to follow state law and thereby deny the Employees due process,
 
2) unequal and discriminatory enforcement of state law, and
 
3) deprivation of property for purely political purposes.

 In 1982 and previously the Employees were employed by the Town of Rye as Police Chief, Town Engineer, Account Clerk and Comptroller. By referendum the Village of Rye Brook (the "Village") came into existence as a municipality effective June 1, 1983. The Village assumed the functions previously performed by the Town of Rye (the "Town") and offered the Town employees an opportunity to transfer their employment to the Village at their existing salary but without credit for sick leave or unused vacation. The plaintiff Domenick J. Patafio retired. The other plaintiffs chose employment by the Village upon being advised that their positions would be filled in the event that they chose not to transfer.

 The Employees then claimed sick and vacation pay in a total amount of $242,227.96 accruing over the course of 25 years according to the Town defendants. Defendants Donald Gioffre, Fred Gioffre, John Colangelo and Anthony J. Zaccagnino, (the "Council defendants") constituted a majority of the Town Council and at the request of Anthony J. Posillipo, the Town Supervisor (the "Supervisor") and upon the opinion of Aldo Vitagliano (the "Attorney") the Council defendants voted to deny the claims of the Employees.

 The Employees have asserted that similarly situated former employees of the Town have received compensation for claims based on previously unclaimed sick leave and vacation days, and that the Employees involved in this action have been denied such benefits because the Employees are Democrats and the individual defendants are all Republicans. The Employees allege that the difference in party affiliation has produced the different and discriminatory treatment of the Employees here suing. No factual issue appears to exist with respect to either the party affiliation or the different resolution of the claims of other similarly situated employees. The Town defendants note, however, that the Employees had retained counsel and that this action was anticipated at the time informal resolution of the claims was requested.

 Conclusion ...


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