The opinion of the court was delivered by: BRIEANT
Before this Court for decision is the motion of the defendants, the Hurleyville Fire Company No. 1 ("the Fire Company" or "the Company") and the Hurleyville Fire District ("the District"), for summary judgment pursuant to Fed. R. Civ. P. 56(b).
In this action pursuant to 42 U.S.C. § 1983, plaintiff Darlene Gibson, a 34 year old female resident of Liberty, New York who aspires to become a member of the Fire Company, asserts claims against the Fire Company and the District for violations of her rights to equal protection and due process under the Fourteenth Amendment to the United States Constitution. Ms. Gibson also asserts a supplemental claim under N.Y. Exec. Law § 296(9)(a).
She is seeking compensatory damages and injunctive and declaratory relief. The defendants now move to dismiss Ms. Gibson's complaint in its entirety for failure to state a proper claim against a proper defendant.
Hurleyville Fire Company No. 1 is a volunteer fire company within and part of the Hurleyville Fire District. The election and appointment of volunteer members of a fire company are governed by Town Law § 176-b which provides in pertinent part that:
The board of fire commissioners shall appoint residents of the fire district as the volunteer members of any newly organized fire company. Thereafter, the fire company may elect other eligible persons, including fire district officers, as volunteer members. The election shall be pursuant to the by-laws, if any, of the fire company; otherwise, by a three-fourths vote of the members of the fire company present and voting at a regular or special meeting thereof. The membership of any person so elected shall become effective when approved by resolution of the board of fire commissioners...
N.Y. Town Law § 176-b(2). According to the Constitution and Bylaws of Hurleyville Fire Company No. 1 anyone who wishes to become a member of the Company must submit an application to the Company for a vote by the Company's members. If such application receives 2/3 of the votes of the Company members present, such application is then forwarded to the Hurleyville Fire District for the consideration and approval of the District's Board of Commissioners. See Statement of Agreed Facts P 3.
Ms. Gibson, the wife of a member of the Hurleyville Fire Company, applied for active membership in the Fire Company on April 8, 1996.
There was only one other application at the time Ms. Gibson submitted hers, and that application was submitted by a male. On May 5, 1996 Ms. Gibson passed the required physical exam. On May 13, 1996 the Company voted on the two applications.
Voting took place by secret ballot of the membership and Ms. Gibson received 10 votes in favor and 17 against with 2 abstentions. The male candidate received 28 votes in favor and 1 against. Ms. Gibson's application was rejected and the application of the male candidate was accepted. Ms. Gibson subsequently commenced this action claiming, inter alia, that her application was denied based upon her gender and that the denial was pursuant to an ongoing policy to exclude women.
The defendants move to dismiss on the following grounds: (1) the Hurleyville Fire Company is a private, not-for-profit corporation, and as such is not a government actor; (2) plaintiff has failed to allege a proper claim for violation of her procedural due process rights; (3) plaintiff has failed to allege a claim for violation of her substantive due process rights; (4) plaintiff has failed to allege a claim for violation of her rights guaranteed by the Equal Protection clause of the United States constitution; and (5) the method by which the Company votes upon prospective members is not violative of any right. See Defendant's Letter Brief filed March 20, 1998. For the reasons set forth below defendant's motion to dismiss is denied and partial summary judgment is granted in plaintiff's favor.
I. Hurleyville Fire Company No. 1 Is A State Actor
Because the Fire Company is performing a governmental function it is a state actor. Fire protection is a public function which amounts to state action even if the fire protection unit is composed of voluntary or unpaid members. Janusaitis v. Middlebury Volunteer Fire Department, 607 F.2d 17, 24 (2d Cir. 1977) ("In view of the circumstances, and in light of the exclusively governmental nature of the function performed by the MVFD [Middlebury Volunteer Fire Department], we hold that the actions of the Department were 'state action' and that its disciplinary actions may not offend the First Amendment."); Everett v. Riverside Hose Company No. 4. Inc., 261 F. Supp. 463 (S.D.N.Y. 1966) ("it can hardly be denied that a voluntary fire ...