work. The availability of an Article 78 proceeding after the fact does not excuse the failure to follow procedures before the deprivation took place. See Patterson, 761 F.2d at 891, 892.
Defendants contend that Plaintiff's reliance on Zinermon and Patterson is "misplaced" and that Marino, which they assert is "indistinguishable" from the instant case, governs. Def. Reply Mem. at 7. In Marino, the plaintiff, a traffic enforcement agent, alleged that he was deprived of a property interest in his job without procedural due process when an Administrative Law Judge (ALJ) failed to strike the testimony of a witness at an administrative hearing. 837 F.2d at 47. Defendants argue that Marino is directly analogous to the instant case because in both cases a loss of employment was at stake, procedural mechanisms existed and were not themselves under scrutiny, and the postdeprivation remedy of an Article 78 proceeding was available. Def. Mem. in Supp. of Mot. to Dismiss at 14-16.
In Marino, however, the court found that the plaintiff was "entitled to, and had, a predismissal hearing." Id. at 47 (emphasis added). The ALJ had committed an "evidentiary error," id. at 46, 47, which the court assumed for purposes of the motion was of constitutional magnitude. It was this evidentiary error that was alleged to have caused the loss of plaintiff's employment without due process; the ALJ had not failed to follow the process prescribed by law. The court found that the evidentiary error was too random to permit the State to provide predeprivation process. Moreover, the court stated, the plaintiff did not show that postdeprivation remedies were inadequate. Thus, the court held that the plaintiff had failed to state a valid procedural due process claim. See id. at 47.
2. Plaintiff's Motion for Summary Judgment
Defendants assert that Plaintiff's summary judgment motion should be dismissed for her failure to comply with Rule 3(g) of the Civil Rules of the Southern District of New York, which requires a statement of the material facts as to which the moving party contends there is no genuine issue to be tried. However, since Plaintiff is proceeding pro se, this Court declines to dismiss her motion on this purely technical ground. Cf. Haines, 404 U.S. at 520-21 (pro se pleadings to be accorded greater leniency than those drafted by attorneys).
Plaintiff has failed, however, to set forth in her supporting affidavit the damages to which she claims she is entitled. Accordingly, in the event she were successful in her motion, full summary judgment could not be entered. Accordingly, if Plaintiff is moving for full summary judgment she should separately state the loss of salary claimed and the period for which she should be compensated and should itemize any other damages. Plaintiff upon becoming aware of her rights was under a duty to mitigate her damages. It appears that the deprivation, if any occurred, might have affected Plaintiff only for a short period of time, and thus her damages may not be extensive. Accordingly, decision on Plaintiff's cross-motion for full summary judgment is held in abeyance until February 7, 1992, to give Plaintiff time to file a statement separately stating and itemizing her damages and setting forth the facts, including relevant time periods, on which her assessment is based.
Defendants' 3(g) statement is also inadequate in that it merely raises questions and does not support its opposition with citations to an affidavit showing that there is a true issue of fact herein. Although Plaintiff failed to file a 3(g) statement, she did submit an affidavit alleging the facts upon which her claim is based. Defendant Rosen should refer to Plaintiff's affidavit in place of a 3(g) statement. Defendant Rosen is ordered to file a proper 3(g) statement and an affidavit or affidavits by a person or persons having knowledge of the facts and demonstrating that Plaintiff's allegations of fact are truly in contest. Defendant's papers must be filed by February 14, 1992.
For the foregoing reasons, Defendants' motion to dismiss is granted with respect to the City of New York and the HRA and denied with respect to Defendant Rosen. Plaintiff's cross-motion for summary judgment is held in abeyance pending the filing of the papers specified above.
IT IS SO ORDERED.
Dated: New York, New York
January 24, 1992
Robert P. Patterson, Jr.