showing her birth date to be November 7, 1925.
In response, O'Connor sent Ortiz another letter, dated
December 8, 1989, in which she rejected the Certificate of
Baptism because "the original date of birth on the certificate
was September 10, 1932." In fact, the date of birth on the
certificate is November 7, 1925. This was acknowledged in a
third letter from O'Connor dated January 5, 1990. However,
O'Connor then claimed that the Certificate of Baptism was
being rejected because the records of the Church that had
issued the Certificate had been changed to reflect a court
authorized change of name in 1988.
In O'Connor's December 8, 1989 letter, Ortiz was also
presented, apparently for the first time, with a list of eight
kinds of documentation that would be acceptable for proving
the date of birth.
On February 9, 1990, Ortiz finally received her third
advance retirement benefit check.
On February 10, 1990, Ortiz received from O'Connor a new
retirement application along with a letter dated February 7,
1990, which, without referring at all to any prior
correspondence, notified her that "[d]ocumentary evidence to
verify your date of birth is required. . . ." The letter
appears to be a form letter sent to new retirement applicants
and was not even signed by O'Connor.
Thus, the correspondence between NYSLRS and Ortiz discloses
that NYSLRS asked Ortiz at various times to provide the
following to verify her birth date: one document, "any
additional information," two original documents of which
school or census records are acceptable, two original
documents from a list of eight items, and finally "documentary
On or about February 15, 1990, Ortiz received the final
calculation form letter, mentioned above, along with her first
regular retirement check.
Ortiz is currently receiving a monthly benefit check of
$294.99, which according to defendants' brief, is based on a
September 10, 1932 date of birth. Ortiz filed this action on
March 9, 1990.
The complaint alleges that the defendants' actions deprived
plaintiff of property without due process of law. To state a
claim under § 1983, a complaint must allege that the defendants
have deprived plaintiff of a right secured by the Constitution
or laws of the United States and that such deprivation was
committed by persons acting under color of state law. Costello
v. Town of Fairfield, 811 F.2d 782, 784 (2d Cir. 1987).
There is little question that plaintiff's right to continued
pension payments is a property right protected by the due
process clause of the Fourteenth Amendment. See, e.g., Russell
v. Dunston, 896 F.2d 664, 669 (2d Cir. 1990) (holding that
state disability retirement benefits are a constitutionally
protected property interest); Winston v. City of New York,
759 F.2d 242, 247-49 (2d Cir. 1985) (holding that municipal
employee retirement benefits are protected); Weaver v. New York
City Employees' Retirement System, 717 F. Supp. 1039, 1043
(S.D.N.Y. 1989) (same). This conclusion is fully supported by
state law. Article 5, section 7 of the New York State
Constitution provides that:
"[M]embership in any pension or retirement system
of the state or of a civil division thereof shall
be a contractual relationship, the benefits of
which shall not be impaired."
See also Weaver, 717 F. Supp. at 1043 and cases cited therein.