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CONRAD v. COUNTY OF ONONDAGA EXAM. BD.

March 8, 1991

DAVID CONRAD, PLAINTIFF,
v.
THE COUNTY OF ONONDAGA EXAMINING BOARD FOR PLUMBERS; JULIAN M. CHARLES, FRANK R. FICCARA, JR., KARL A. ENGELBRECHT, PETER GUALA, P.E., ARTHUR F. RUSSELL, JR., PATRICK A. LEONE, DENE C. ZOGRAFOS, FRANCIS ONOFRI, CLAYTON ANDREWS, ESQ., PETER L. CAPPUCCILLI, SR., BRUCE C. DEWEY, RICHARD T. LAFFERTY, VIRGIL H. FRASER, P.E., JOHN C. ORR, JR., JOHN M. KRANIK AND JOSEPH FRASER, INDIVIDUALLY AND AS MEMBERS OF THE COUNTY OF ONONDAGA EXAMINING BOARD OF PLUMBERS, DEFENDANTS.



The opinion of the court was delivered by: McCURN, Chief Judge.

MEMORANDUM-DECISION AND ORDER

I. Introduction

The plaintiff has commenced an action under 42 U.S.C. § 1983, alleging that the defendants deprived him of property and liberty without due process of law, in violation of the Fourteenth Amendment, by failing to administer a fair, uniformly graded examination for receipt of a Master Plumber's certificate. The certificate is necessary to receive a license as a Master Plumber in Onondaga County. The plaintiff also asserts a cause of action pursuant to Article 78 of the New York Civil Practice Law and Rules, alleging that the defendants' denial of plaintiff's certificate by failing him on the examination was arbitrary and capricious and an abuse of discretion.

The defendants have moved, pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings dismissing the complaint. The plaintiff has cross-moved for an amendment of the Rule 16 scheduling order, which closed discovery on June 1, 1990, so that plaintiff may conduct additional discovery related to allegedly unfair testing on the 1987, 1989 and 1990 plumbing examinations. Plaintiff also requests a discovery conference to settle disputes about that discovery.

II. Background*fn1

Plaintiff was informed by the Examining Board, by letter dated July 21, 1988, that he had failed the written part of the exam. Plaintiff then reviewed the written portion of the exam with defendants Patrick Leone, Francis Onofri, and Julian Charles, members of the Examining Board. After the review, defendant Onofri informed plaintiff's attorney that plaintiff's failing mark would stand.

Plaintiff claims that some questions on the exam were vague, confusing, or irrelevant. He also asserts that the Examining Board's procedure of having a single board member grade an exam allows for unfairly subjective grading, and that a review course conducted before the exam by defendant Onofri did not cover items that were on the exam. Plaintiff also avers that the plaintiff and other applicants were not provided with up-to-date plumbing code books, although there were several questions related to the code on the exam. Plaintiff further alleges that "a very small percentage" of applicants pass the Master Plumber's exam each year. In his first cause of action, the plaintiff asserts that the failure of the defendants to provide a fair examination, to provide adequate review of the exam, to provide uniform grading of the exam, and defendant Onofri's "misrepresentations" in conducting the review course, have deprived him of his property right "to become self-employed in the business of plumbing in Onondaga County," and to the earnings and benefits associated with such employment, without due process of law, in derogation of the Fourteenth Amendment. In his second cause of action, the plaintiff claims that the defendants' actions have likewise deprived him of his liberty interest protected by the Fourteenth Amendment "to pursue the calling of his choice." Plaintiff also asserts in a third claim for relief, brought under Article 78 of the New York Civil Practice Law and Rules, that the decision by the Examining Board to refuse plaintiff a certificate of competency was arbitrary and capricious and an abuse of discretion.*fn2

The defendants have brought a motion for judgment on the pleadings, on the grounds that (1) plaintiff does not have a protected property interest in becoming a Master Plumber; (2) plaintiff does not have a protected liberty interest in engaging in the business of a Master Plumber; and (3) if the court dismisses the federal constitutional claims, the court lacks pendent jurisdiction over plaintiff's Article 78 cause of action. The plaintiff contends that the defendants have waived their defense to plaintiff's second cause of action, since the defendants have admitted in their verified answer paragraph "33" of the complaint, which states:

  Plaintiff has a liberty interest protected by the
  14th Amendment of the United States Constitution
  to purs[u]e the calling of his choice and in the
  profits or emoluments deriving therefrom.

Plaintiff also argues that, notwithstanding defendants' waiver of their defense to his liberty interest, he has a protected liberty interest in the pursuit of his profession, and a protected property interest in becoming a Master Plumber.

Plaintiff has also cross-moved for an amendment of the existing Rule 16 scheduling order, which set the deadline for discovery on June 1, 1990, and has requested a discovery conference. Plaintiff claims that, although his complaint contains allegations which refer only to the 1988 Master Plumber's exam, he wishes to assert that a scheme of unfair testing has permeated the exam process since his first attempt at the test, in 1987, through the most recent exam, in 1990, which he also failed. Plaintiff states that defendants have refused his requests for discovery pertaining to the other examinations.

III. Discussion

A. Plaintiff's Property ...


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