At this stage, the court finds that the present record does not justify summary judgment for either side. The Magistrate Judge may permit such reasonable additional discovery to both parties as is consistent with this memorandum.
Plaintiffs' motion for sanctions is denied.
B. The Transit Authority defendants
In addition to joining the other motions, the Authority defendants seek summary judgment as to the § 1983 claim, saying that plaintiffs have not alleged and can not prove that it had a policy, custom or usage sufficient to establish a civil rights violation. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
Plaintiffs say that the promotion exam itself "reflects [a] per se municipal policy", and seek Rule 11 sanctions against the Authority for maintaining otherwise.
The Authority says that it did not prepare, administer, or score the Examination but merely promoted candidates from an eligible list compiled by the City, and that its reliance on the eligible list is not a policy or practice sufficient to support municipal liability.
But the Authority is responsible for promotion decisions. It decided how many lieutenants to promote and when those promotions would be made. Similarly, the decision to promote 60, through December 31, 1991, and then to go to another eligible list based on another test may or may not be evidence of racially discriminatory policy.
Neither side has addressed any of these issues. The Authority defendants' motion is denied. Plaintiffs' motion for sanctions is denied.
C. State Law Claims
The defendants also seek summary judgment on the pendent state claims of breach of contract, fraud, and misrepresentation. The defendants say that plaintiffs have not met the New York General Municipal Law § 50e and New York City Administrative Code, § 7-201 requirements for filing a notice of claim against the City and that they have not provided any evidence supporting the claims.
1. Notice of Claims
Despite characterizing all three claims as a tort in their complaint, the plaintiffs now say that the claims arise in contract and that they are therefore not required to file a notice of their claim. Although fraud and misrepresentation are traditionally considered torts, New York courts have held that a notice of claim under § 50e is not necessary when alleging fraud and breach of contract against a municipal corporation. Hoydal v. City of New York, 154 A.D.2d 345, 346, 545 N.Y.S.2d 823, 824 (App.Div.2d 1989) ("a cause of action will be found to sound in tort rather than in contract only when the legal relations binding the parties are created by the utterance of a falsehood, with fraudulent intent and reliance thereon, and the cause of action is entirely independent of contractual relations between the parties"); Everston v. State of New York Mortgage Agency, 1992 U.S. Dist. LEXIS 14, 1992 WL 6190 (S.D.N.Y. Jan. 3, 1992) (same as applied to race and age employment discrimination suit against municipal corporation). This court must adopt a state court's interpretation of its own laws and regulations.
Plaintiffs in their complaint allege that the defendants breached an implied contract between them and the plaintiff-employees when the city notified the test takers that the Examination would be evaluated one way but then actually scored it another. As evidence of this contract, plaintiffs rely upon Guinyard's deposition in which he alleges that the scoring method used on the exam differed from what the notice of examination informed him it would be.
Even affording the most generous interpretation to Guinyard's state of mind regarding the Examination notice, this court finds that his testimony does not support the contention that he entered into a contract with defendants at the time they provided notice of the captain's exam. Nor does anything else in the record provide such support, since plaintiffs have failed to submit a copy of the notice or a verified description of the scoring method used. Cf. Patterson v. McLean, 109 S. Ct. 2363, 2377, 491 U.S. 164, 185, 105 L. Ed. 2d 132 (1989) (promotion claim may be actionable under § 1981 governing the making and enforcing of contracts if "the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer").
Defendants' motion for summary judgment as to the claims under state law is granted.
Dated: Brooklyn, New York
August 25, 1992
Eugene H. Nickerson, U.S.D.J.
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