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VECCHIA v. TOWN OF NORTH HEMPSTEAD

May 21, 1996

GARY DELLA VECCHIA, Plaintiff, against TOWN OF NORTH HEMPSTEAD, Defendant


The opinion of the court was delivered by: MISHLER

 MISHLER, District Judge

 The Town of North Hempstead moves to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

 Gary Della Vecchia ("Vecchia") seeks "to re-open an earlier action commenced in this court under Case No. CV 88-2229" (P 5) and "a further award of attorney's fees in connection with the action under Case No. CV 88-2229" (P 6). "The plaintiff commenced the action under Case No. CV 88-2229 (JM) under 42 U.S.C. § 1983 for deprivation of a property interest without due process of law" (P 7). Vecchia claims the right to attorneys' fees for the "time expended in determining and enforcing state court orders with respect to backpay [as it] is related to the action under Case No. CV 88-2229 (JM)" (P 15).

 Prior Proceedings - CV 88-2229

 Vecchia's claim was that his employment as a laborer in the Highway Department of the Town of North Hempstead was in violation of section 73 of the New York Civil Service Law. *fn1" We found that the right of the Town to terminate Vecchia's employment rested on facts that were in dispute, and therefore directed a hearing by the Town. We decided that Vecchia had a constitutional right to due process under the Fourteenth Amendment not to be deprived of a property interest, as defined by state law. We retained the right to decide motions then pending and review the determination of the state court. We intended that this reservation was limited to the constitutional right to due process and the right to attorney's fees under 42 U.S.C. § 1988. (Memorandum of Decision and Order dated March 21, 1989).

 State Proceedings

 The Town afforded Vecchia a hearing. The Town found that termination under section 73 was properly exercised and denied Vecchia reinstatement, back-pay and other benefits he claims he lost. The Appellate Division of the New York State Supreme Court (Second Department) decision dated June 24, 1991, annulled the Town's determination, pursuant to Article 78 of the C.P.L.R., directing reinstatement including back-pay and benefits.

 Judgment in Case No. CV 88-2229

 On November 19, 1991, we found that Vecchia was the prevailing party and entitled to attorney's fees under 42 U.S.C. § 1988. Judgment was entered in favor of Vecchia in "the sum of one ($ 1.00) dollar and his costs of this action including attorney's fees."

 Attorney's fees and costs were awarded Vecchia in the amount of $ 34,000. The judgment in the amount of $ 34,001 was satisfied and satisfaction filed on August 28, 1992.

 DISCUSSION

 42 U.S.C. § 1988 provides in pertinent part:

 
In any action or proceeding to enforce a provision of sections . . . [ 42 U.S.C. §§ 1981 - 1983 . . . the court, in its discretion, may allow the prevailing party . . . a ...

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