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September 17, 1986


The opinion of the court was delivered by: WEXLER


WEXLER, District Judge

 Plaintiff Michael Leonardi brings this action alleging that his termination as a member of the Mastic Beach Fire Department ("Department") without the benefit of a pre-termination hearing violates his rights under the United States Constitution, New York State law, and the Department's own by-laws. Plaintiff now moves for summary judgment on the issue of liability with respect to his federal claims. Defendants oppose plaintiff's motion, but apparently do not dispute the facts material to the motion. Accordingly, this case is ripe for summary judgment. Fed. R. Civ. P. 56.


 Leonardi became a member of the Department on July 21, 1963. The Department is a volunteer fire company organized under the laws of the State of New York and maintained under the jurisdiction of the Mastic Beach Fire District ("District"). The Town of Brookhaven, New York established the District in 1941, pursuant to N.Y. Town Law § 170 et seq., to provide for protection of the Mastic Beach community. Defendant Board of Fire Commissioners of the Mastic Beach Fire District and the Mastic Beach Fire Department, Inc. ("Board") is the governing body of the District.

 On December 30, 1968, Leonardi received a Volunteer Firemen's Exemption Certificate pursuant to Gen. Mun. Law § 200 et seq. *fn1" Honored as Fireman of the Year in 1970, plaintiff fully performed his duties as a volunteer fireman in accordance with the Department's by-laws until 1976, when the onset of cervical radiculitis prevented him from attending to fires. *fn2"

 Although Leonardi's physical disability prevented him from attending to fires after 1976, he satisfied his attendance requirements under the by-laws by attending to those duties which his disability did not preclude, such as drills, parades, funerals, meetings, and ambulance calls. In 1980 or 1981, plaintiff received a special award in recognition of the large number of ambulance calls which he serviced. Plaintiff also served as the District's Secretary from 1976 to 1982.

 In September 1982, the Assistant Chief of the Fire Department informed Leonardi that he was not meeting his attendance requirements. Thereafter, plaintiff furnished Chief Gary Messinetti with a doctor's note dated September 13, 1982, which contained a checkmark next to a printed statement noting that the patient was totally incapacitated. On May 24, 1983, Messinetti wrote to plaintiff stating, inter alia, that "[u]nless I receive a doctor's report indicating that you are once again fit for all firemanic duties, I will ask the board of fire commissioners to remove you from the active roles [sic] as of June 1, 1983...." Plaintiff, by letter dated May 28, 1983, responded that "a report from my d]octor will be forthcoming as you requested."

 However, by letter dated June 29, 1983, Board Chairman James A. Davis, Jr. notified Leonardi that the Board had met on June 28, 1983 and decided that "[b]ecause of total incapacitation for the past nine months, as stated by your doctor, and in accordance with the by-laws of the Mastic Beach Fire Department, your membership in the department is terminated effective immediately." The individual defendants, Board Commissioners Davis, Robert E. Mills, Thomas M. Kenneally, and Deward Houck, voted to terminate Leonardi's membership during that June 28 meeting. As a result, plaintiff was terminated three days short of the twenty years needed to become a lifetime member of the Fire Department, and certain life insurance policies, available to Leonardi as an active volunteer fireman, were cancelled.

 In contrast to the reasons for termination put forth by Chairman Davis, Commissioner Kenneally testified at his deposition that plaintiff "wasn't dismissed because of incapacitation" but rather "because of his lack of attendance", and that he "was told several different versions of why [plaintiff] wasn't in attendance". Kenneally could not recall seeing a doctor's letter and had doubts that Leonardi's inadequate attendance record was disability related. He believed that Leonardi was capable of performing his duties, but stated that his judgment as to plaintiff's capabilities might be different if Leonardi had a bona fide illness.

 Subsequent to his termination, Leonardi commenced a special proceeding under Article 78 of the New York Civil Practice Law and Rules, N.Y. Civ. Prac. Law §§ 7801-06, seeking a judicial determination restoring him as a member of the Department. Leonardi maintained that, although his disability prevented him from attending fires, it did not prevent him from performing other duties and functions of a fireman and that he had always satisfied his attendance requirements. Chief Messinetti noted in his affidavit in opposition to Leonardi's petition in that action that Leonardi's attendance for the period of September 1982 until his termination in June 1983 was only 1.08% of the total number of fires, meetings, and other duties and functions.

 By order dated March 2, 1984, Leonardi's petition was denied without prejudice to renew "upon presentation of further proof regarding petitioner's prior status with respondents." Rather than renew his motion in state court, Leonardi commenced this action.

 Leonardi was not given any opportunity to appear before the Board to be heard on the issue of his membership termination. Leonardi asserts that his status as a volunteer fireman constitutes a property interest and therefore his termination without benefit of a hearing violated his Fourteenth Amendment right to due process. Defendants contest plaintiff's assertion of such a property interest and further contend that plaintiff's termination was the legitimate result of his unjustified failure to comply with the Department's ...

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