Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

AVELLO v. HAMMONS

April 29, 1997

PHILIP AVELLO, Plaintiff, against MARVA LIVINGSTON HAMMONS, ADMINISTRATOR/COMMISSIONER, NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, MICHAEL INFRANCO, DEPUTY COMMISSIONER OF NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, MARVIN BETTIS, SPECIAL ASSISTANT, NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION AND THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 Plaintiff filed an action alleging violations of his constitutional Due Process, Equal Protection, and privacy rights. Plaintiff also alleges a pendant state claim for defamation. Defendants move to dismiss the Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. For the reasons stated below, Defendants' Motion to Dismiss is granted.

 I. BACKGROUND

 On August 20, 1993, Plaintiff entered into a stipulation with his ex-wife, Elba Rodriquez Avello, in which he agreed to pay child support of $ 125 per week, directly to his ex-wife, for the support of their child, Genevieve Eileen Avello. (Compl. Ex. 3.) On the same day, the New York State Family Court, New York County, entered an Order based upon the stipulation, directing Plaintiff to make child support payments directly to his ex-wife. (Compl. Exs. 1, 2.) The Family Court's Order also directed the New York City Human Resources Administration's Child Support Collection Unit ("SCU") to "halt all collection efforts immediately." (Compl. Ex. 1.)

 On December 31, 1993, more than four months after the Family Court directed SCU to halt all collection efforts, the Human Resource Administration's Office of Child Support Enforcement ("OCSE"), issued an Income Execution for Support Enforcement pursuant to the New York Civil Practice Law and Rules § 5421 (Compl. Ex. 4.) ("Income Execution") Defendant maintains that copies of the Income Execution were sent to Plaintiff and to Plaintiff's employer (Compl. Ex. 11.), but Plaintiff alleges that he never received a copy of the execution until sometime in March 1994. (Compl. P 9, Ex. 9) As a result of the Income Execution, on or about March 8, 1994, Plaintiff's salary was garnished for alleged failure to make child support payments. (Compl. P 8, Exs. 7, 10.) On March 10, 1994, Plaintiff's attorney notified OCSE that, pursuant to the Family Court's Order dated August 20, 1993, child support payments were to be made directly to Plaintiff's ex-wife and not to OCSE. (Compl. Ex. 6.)

 On April 11, 1994, Plaintiff wrote a letter to Michael Infranco, Deputy Commissioner of OSCE, complaining that his salary had been wrongly garnished in the amount of $ 375.00 and requesting that the money be returned. (Compl. Ex. 9.) By letter dated May 10, 1994, Deputy Commissioner Infranco notified Plaintiff that on April 20, 1994, a refund check for $ 375.00 was sent to Plaintiff. (Compl. Ex. 11.) Deputy Commissioner Infranco also stated in his letter that OSCE never received a copy of the Family Court's August 20, 1993 Order until March 10, 1994, when Plaintiff's attorney provided OSCE with a copy, and that a copy of the Income Execution was mailed to Plaintiff's home on December 31, 1993. (Compl. Ex. 11.)

 On or about June 10, 1994, approximately one month after receiving Deputy Commissioner Infranco's letter, Plaintiff received notices from OSCE which indicated that Plaintiff still had an active child support account with OSCE. (Compl. Ex. 12, 13.) On August 1, 1995, Plaintiff wrote New York City Mayor Rudolph Giuliani, complaining that OSCE was harassing him and was refusing to remove his name from their child support collection computer database. (Compl. P 16, Ex. 16.) By letter dated August 17, 1995, Marvin Bettis, Special Assistant, OCSE ("Bettis"), responded on behalf of Mayor Giuliani and informed Plaintiff that his OSCE account had been closed since April 1994, when all enforcement activity effectively ceased. (Compl. Ex. 17.) Bettis also stated in his letter that the OSCE notices were sent to Plaintiff in error, and that Plaintiff's account was scheduled to be purged from OSCE's system in the immediate future. (Compl. Ex. 17.)

 On or about October 13, 1995, Plaintiff was notified by the General Electric Capital Corporation ("General Electric") that his request to increase his credit line on his WIZ account was denied because of "Insufficient satisfactory credit obligations [and] Previous delinquency." (Compl. Ex. 20.) General Electric indicated that their denial was based on information they received from Equifax Credit Service. (Compl. Ex. 20.) After receiving the denial letter from General Electric, Plaintiff obtained a copy of his credit report from Equifax. (Compl. Ex. 21.) The Equifax credit report indicated that Plaintiff was in arrears for over ninety (90) days for child support payments. (Compl. Ex. 21.)

 Plaintiff now seeks compensatory and punitive damages for alleged violations of his constitutional Due Process, Equal Protection, and privacy rights. Defendants move to dismiss for failure to state a claim.

 II. DISCUSSION

 "On a motion to dismiss under 12(b)(6), the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995) (citations omitted). The District Court should grant such a motion only if after viewing Plaintiff's allegations in this favorable light, "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507 U.S. 961, 113 S. Ct. 1387, 122 L. Ed. 2d 762 (1993) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, (2d Cir. 1991)). In deciding a 12(b)(6) motion, the Court must not "assay the weight of the evidence which might be offered in support thereof," but rather must limit its consideration to the facts that appear on the face of the Complaint. Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984).

 A. Failure To State a Claim under 42 U.S.C. § 1983

 1. Plaintiff's Due Process Claim

 Plaintiff alleges that Defendants, in garnishing his wages without prior notice, recording information on his paystubs, and maintaining his name in their child support collection computer database, damaged his reputation and violated his liberty interests under the Due Process Clause of the Fourteenth Amendment. (Compl. PP 8-10, 12, 14-15, 17.) Plaintiff claims that because he was denied Due Process and the Defendants were acting under color of state law, he has sufficiently stated a claim under 42 U.S.C. § 1983. *fn1"

 Examination of a Fourteenth Amendment Due Process claim under 42 U.S.C. § 1983 involves two steps. First, the Court should determine whether there exists a liberty or property interest which has been interfered with by the state. Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (citing Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908, 104 L. Ed. 2d 506 (1989). Second, after finding that the Plaintiff has a protected liberty or property interest that has been interfered with, the Court should examine whether the procedures used in conjunction with any deprivation of those interests were constitutionally sufficient. Valmonte, 18 F.3d at 998. In performing the initial step of its examination of Plaintiff's Due Process ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.