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CIFARELLI v. VILLAGE OF BABYLON

August 10, 1995

RALPH CIFARELLI, Plaintiff, against THE VILLAGE OF BABYLON, et al., Defendants.


The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Plaintiff Ralph Cifarelli ("plaintiff" or "Cifarelli") brought the above-referenced civil rights action, pursuant to 42 U.S.C. § 1983, alleging that the Village of Babylon (the "Village"), the Village's Board of Trustees (the "Board"), and the individual members of the Board *fn1" (collectively, "defendants") *fn2" deprived him of a property interest in a tenured position without due process of law and in violation of his right to equal protection of the law. Presently before the Court is defendants' motion, pursuant to Fed. R. Civ. P. 56(c), for summary judgment and dismissal of the claims.

 I. FACTS AND BACKGROUND

 Plaintiff was employed in March 1989 by the Village in the full-time civil service position of Building Inspector (the "full-time position"). See Statement of Facts in Supp. of Summ. J. Mot. ("Defs.' 3(g) Statement"), P 2; see also Local Rule 3(g) ("All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party."); see generally Affirmation of Perry S. Reich [in Opp'n to the Summ. J. Mot.] ("Pl.'s 3(g) Statement"). That employment ended on August 10, 1993 after the Board resolved to abolish the full-time position and terminate plaintiff's employment. Defs.' 3(g) Statement, P 3. At the time of his termination, plaintiff's annual salary was $ 30,100. Notice of Motion ("NOM"), Exh. C.

 Plaintiff alleges that he was first informed of the impending termination by Mayor E. Donald Conroy ("Conroy") of the Village when he was summoned to Conroy's office a "few hours" prior to the Board meeting on August 10, 1993. Pl.'s 3(g) Statement, P 1. Defendants' agree that Conroy notified Cifarelli of the looming employment action, see Affidavit of E. Donald Conroy ("Conroy Aff."), P 3, but do not specify at what point in time that notification took place. There is no allegation from plaintiff, in his pleading or elsewhere, that he requested a hearing at any time before or after his termination.

 Defendants assert that the full-time position was abolished for "fiscal reasons." Conroy Aff., P 3.

 In addition to abolishing the full-time position at the August 10, 1993 meeting, the Board also resolved to create a part-time position of Building Inspector (the "part-time position") and to appoint Steven Fellman ("Fellman") thereto. NOM, Exh. A (minutes of the August 10, 1993 meeting of the Board). Fellman, employed by the Village as a Site Plan Reviewer at the time of the meeting, was appointed to the part-time position by the Board, to be held in conjunction with his existing position, "at an increase of $ 5,000." NOM, Exh. A.

 On August 20, 1993, ten days after his termination, Cifarelli brought this action against defendants by filing a summons and complaint (the "Complaint").

 Defendants contend that, prior to adopting the resolution, the Board was informed by the Suffolk County Department of Civil Service (the "Department") that it was "free to hire whomever it wished to the part time position." See NOM, Exh. B (affidavit of Mary Beth Wright, secretary to Conroy during the time in question, recounting her telephone conversation with Gino DeStefano of the Department). Indeed, the Department approved the resolutions.

 Nonetheless, by letter dated September 27, 1993, the Department advised the Village that it had "inadvertently approved the employment of Steven Fellman" and that the part-time position "must be offered" to Cifarelli. The Village complied, retracting the offer made to Fellman, placing Cifarelli's name on a one-name preferred list for the part-time position, and offering the part-time position to Cifarelli, by letter dated September 30, 1993 (the "September 30 letter"). In the Department's view, however, the September 30 letter was unacceptable; by letter dated October 22, 1993, the Department advised the Village that the September 30 letter "did not contain sufficient information for Mr. Cifarelli to make an informed decision regarding the job offer." Specifically, the Department instructed that the offer must include, inter alia, a statement informing Cifarelli that he "must respond in writing to the Village within ten (10) business days of the date of the certified letter" extending the offer.

 The Village complied, sending plaintiff a second letter, dated October 25, 1993 (the "October 25 letter"), which renewed the offer and contained notice of the ten-day deadline for acceptance. By letter dated November 9, 1993, the Village advised plaintiff that his failure to respond to the offer was deemed a declination of his right to the part-time position.

 Subsequently, plaintiff disputed the ten-day deadline as unduly harsh and, by letter dated November 16, 1993 (the "November 16 letter"), purported to accept the part-time position. In response, the Village advised plaintiff, by letter dated November 18, 1993, that it would abide by the decision of the Department regarding whether plaintiff's acceptance was timely. The Department advised Cifarelli, by letter dated November 23, 1993, that he "had more than a sufficient amount of time . . . to accept the part-time position."

 The Complaint advances two sets of claims: (1) that plaintiff was deprived of property interests in the full-time position and the part-time position without due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 6 of the New York State Constitution; and (2) that plaintiff was deprived of his right to equal protection of the laws as guaranteed by the Fourteenth Amendment and Article 1, Section 11 of the New York State Constitution. As a ground for the equal protection claims, plaintiff asserts that defendants' failure to provide sufficient notice of termination and an impartial pre-termination hearing was arbitrary, unreasonable and capricious.

 Defendants contend that summary judgment should be granted and that the Complaint should be dismissed. They argue that plaintiff does not have a constitutionally protected interest in continued employment in the full-time position because the full-time position was abolished in accordance with state law. In addition, although defendants concede that plaintiff had a property interest in the part-time position, they argue that they did not violate plaintiff's rights therein. In the alternative, defendants contend that summary judgment should be granted in favor of the individual members of the Board under the doctrine of qualified immunity.

 In opposition to defendants' motion, plaintiff contends that the Board abolished the full-time position in order to rid the Village of Cifarelli and replace him with Fellman, and that defendants' stated reason -- economy -- was but a sham and pretext. Plaintiff asserts that the questions of whether the Board's stated reason was pretextual and whether the Village ...


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