See id. at 7 [unnumbered]. In accordance with mandatory retirement law, Rosenthal retired from the N.Y.P.D. in August of 1993 and began to collect ODR benefits. See Compl. P 19.
Issue of Law
Rosenthal does not dispute the findings of the Medical Board nor its procedures employed in reaching its decision. Rather, Rosenthal argues that it is the procedures employed in the second step of the application review process, when the Board of Trustees determines whether or not the incident that caused a member's disability meets the legal definition of an "accident," that violate due process. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and in Support of Summary Judgment for Plaintiff dated March 15, 1995 ("Pl.'s Mem."), at 14; see also Defs.' Mem. at 13. Thus, Rosenthal argues that he is entitled to an evidentiary hearing on factual issues relating to the cause of his disability as a matter of law. See Pl.'s Mem. at 14, 19-20.
To demonstrate a violation of Section 1983, Rosenthal must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States. See 42 U.S.C. § 1983; see also Rendell-Baker v. Kohn, 457 U.S. 830, 835, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982); Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). The Fourteenth Amendment provides that a local or state government employer may not take Rosenthal's property interest in receiving a higher pension without due process of law. See Board of Regents v. Roth, 408 U.S. 564, 569, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); McDarby v. Dinkins, 907 F.2d 1334, 1336 (2d Cir. 1990) (citations omitted); Basciano v. Herkimer, 605 F.2d 605, 609 (2d Cir. 1978). Due process requires notice and an opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319, 348, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).
According to the Supreme Court, this Court must weigh three factors in defining what process was due Rosenthal during the Board of Trustees' deliberations: (1) the importance of the individual interest affected by the official action, (2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards, and (3) the government's interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail. See Matthews, 424 U.S. at 336.
Rosenthal claims that defendants' procedures violated due process, in that: (1) he was not afforded the opportunity to explain how he incurred his injury, see Compl. P 15; (2) he was denied notice and access to the evidentiary basis upon which the Board of Trustee's rendered its decision denying him ADR benefits, see id. PP 16, 66; (3) he was not afforded a fair and reasonable proceeding at which the issue of accidental causation could be adjudicated, id.; (4) he was not afforded the opportunity to have a medical doctor or other representative appear with him before the Board of Trustees, id. at P 66; (5) defendants' procedures fail to provide for pre-deprivation and post-deprivation hearings, id. P 17-18; and (6) defendants' failure to keep a verbatim record of the proceedings deprived him of due process.
Id. at P 66. Finally, Rosenthal also argues that an Article 78 proceeding in state court is not an adequate post-deprivation remedy. See Pl.'s Mem. at 21-22.
Applying the first prong of Matthews, although Rosenthal has a property interest in receiving a higher monetary pension,
this interest is far "less compelling than that of an individual denied by government action 'the very means by which to live.'" Basciano, 605 F.2d at 609-10 (quoting Goldberg v. Kelly, 397 U.S. 254, 264, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970)). Moreover, in cases where a tenured employee that wished to continue working was forced into retirement, so as to involve protected liberty interests as well as property interests, the Supreme Court stated that due process was satisfied when the employee was given pre-termination notice of the reason why he was being terminated and an opportunity to respond. See Cleveland Board of Ed. v. Loudermill, 470 U.S. 532, 543, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). A formal pre-termination hearing is not necessary to conform with due process. See id. at 546; see also Matter of Hurwitz v. Perales, 81 N.Y.2d 182, 187, 597 N.Y.S.2d 288, 613 N.E.2d 163 (1993) (opportunity to be heard need not be formal or elaborate).
Under the second prong of Matthews, the adequacy of defendants' present procedures and the potential value of additional or alternate procedures "depends largely on the purpose of the inquiry." Basciano, 605 F.2d at 610. Here, to establish that a member was entitled to ADR benefits, the Board of Trustees must inquire and determine whether a member's disability resulted from an "accident" as defined by New York law. Clearly, notice is not at issue here since it was Rosenthal who applied for ADR benefits. Therefore, the Court will focus upon Rosenthal's opportunity to be heard.
During the pre-deprivation stage of the proceeding, Rosenthal was entitled to review his N.Y.P.D. medical records prior to being physically examined by the Medical Board and given the opportunity to submit, personally or by counsel, medical records, reports and other favorable documents for the Medical Board's consideration, as well as written arguments in favor of a finding of disability. Furthermore, Rosenthal was thrice given the opportunity to submit written responses, either personally or through counsel, to the Board of Trustees during their deliberations on the causal connection of his fall to his disability, as recorded in the verbatim minutes of their meetings. See supra at 8-10. Moreover, the record makes clear that the Board of Trustees carefully considered the issue of whether his injury resulted from an accident.
See Defs.' Exhs. 12-14. Because Rosenthal could only respond to these deliberations in writing does not mean that he was denied due process. As noted by Judge Duffy in an identical case involving the denial of ADR benefits, "due process does not guarantee an opportunity to be heard in person." Calzerano v. Board of Trustees of the Police Pension Fund, 877 F. Supp. 161, 164 (S.D.N.Y. 1995) (citing Basciano, 605 F.2d at 610).
Likewise, Rosenthal's recommended alternative procedural safeguards argument must be rejected. While the Second Circuit has noted that "questions of credibility and veracity often are best resolved in a trial-type hearing," Basciano, 605 F.2d at 610-11, Rosenthal's disagreement is with defendants' legal conclusion that his fall did not fit within the definition of an "accident." Rosenthal has provided no support for his assertion that oral testimony and/or advocacy before the Board of Trustees will assure a more reliable determination than the written responses currently allowed. See Basciano, 605 F.2d at 611; Calzerano, 877 F. Supp. at 164. Moreover, under the last prong of Matthews, New York City has a very substantial interest in avoiding the administrative costs of establishing trial-type hearings when determining the type of pension to which a member is entitled. Accord Basciano, 605 F.2d at 611. This is especially true in light of the fact that the Board of Trustees considered an average of 92 pension benefits cases at each of its twelve monthly meetings, totaling 1104 cases in all for the 1994 calendar year. See Defs.' Mem. at 8.
Finally, the Court finds that an Article 78 proceeding does provide Rosenthal with a meaningful review. Since Rosenthal disagrees with the Board of Trustees' legal conclusion that the facts surrounding his fall do not fit within the definition of an "accident," the state court has the power to set aside the Board of Trustees' decision if it finds the decision to be arbitrary and capricious, and that Rosenthal is entitled to ADR benefits as a matter of law. See Canfora v. Board of Trustees, 60 N.Y.2d 347, 351-52, 469 N.Y.S.2d 635, 457 N.E.2d 740 (1983); see e.g., McCambridge v. McGuire, 62 N.Y.2d 563, 479 N.Y.S.2d 171, 468 N.E.2d 9 (1984) (reversing Board of Trustees and awarding ADR benefits); Knight v. McGuire, 62 N.Y.2d 563, 468 N.E.2d 9, 479 N.Y.S.2d 171 (1984) (same); Carr v. Ward, 119 A.D.2d 163, 506 N.Y.S.2d 338 (1st Dep't 1986) (same); Matter of Mescall v. Board of Trustees, 204 A.D.2d 643, 612 N.Y.S.2d 624 (2d Dep't 1994) (same); Matter of Bridgwood v. Board of Trustees, 204 A.D.2d 629, 612 N.Y.S.2d 621 (2d Dep't 1994) (same).
For the reasons set forth above, defendants' motion for summary judgment is granted and plaintiff's cross-motion for summary judgment is denied. The Clerk of Court shall enter judgment for defendants and dismiss the action accordingly.
It is SO ORDERED.
Dated: New York, New York
March 20, 1998
John E. Sprizzo
United States District Judge