The opinion of the court was delivered by: Brieant, District Judge.
By motion filed November 8, 2000, heard and fully submitted
December 15, 2000, Defendants in this § 1983 civil rights action
move for summary judgment dismissing the Complaint in its
entirety. In the alternative, Defendants move for summary
judgment as to Defendants George P. Bucci, Jr., Nancy Wassi
LaColla, Robert Petrillo and Salvatore DeCrosta (since deceased),
sued individually, on the ground that they enjoy qualified
immunity from Plaintiff's claim. Plaintiffs filed Opposition on
December 1, 2000. Defendants filed a Reply on December 12, 2000.
On January 19, 2000, Plaintiff filed his Complaint seeking to
recover damages for lost income, emotional distress, punitive
damages and reinstatement to his position as Superintendent of
Highways of the Town of Newburgh, from which he claims he was
removed wrongfully, in violation of his Constitutional rights, as
well as in violation of state law.
On February 29, 2000, Defendants moved to dismiss the Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim, or, alternatively, to dismiss the
Complaint against the individual Defendants, on the ground of
qualified immunity. On April 11, 2000, this Court filed a
Memorandum and Order denying Defendants' motion to dismiss, with
leave to apply for an interlocutory appeal, which Defendants
declined to do. Familiarity of the reader with that decision,
Benedict v. Town of Newburgh, 95 F. Supp.2d 136 (S.D.N.Y. 2000)
Plaintiff Mr. Benedict is a former town official
(Superintendent of Highways) of the Town of Newburgh, and is a
current resident of the Town.
Defendant Town of Newburgh ("the Town") is a municipality of
the State of New York and is governed by Defendant Town Board.
Defendant George Bucci, Jr., sued individually, is the elected
Supervisor of the Town and as such a member and the presiding
officer of the Town Board. Defendants Nancy Wassi LaColla, Robert
Petrillo and Salvatore DeCrosta, since deceased,*fn1 sued
individually, are Town Councilmen and members of the Town Board.
The fourth Town Councilman, Robert A. Kunkel, who did not join in
the conduct complained of, was not sued.
For purposes of this motion, the following facts are assumed to
be true. For more than twenty-two years Plaintiff Benedict worked
for the Highway Department of the Town of Newburgh. Between 1992
and December 31, 1999, Mr. Benedict was appointed four times by
the Town Board for two year terms to serve as the Superintendent
of Highways, a town office. His last appointed term would have
expired December 31, 1999.
In June, 1999, Mr. Benedict was subpoenaed to testify as a
non-party witness in a civil rights lawsuit in this Court
initiated by Gerald Williams, one of Mr. Benedict's subordinates
at the Highway Department. Williams v. Town of Newburgh, 97
Civ. 4893(CLB)(GAY). In that lawsuit, Mr.
Williams claimed that he was denied an expected promotion within
the Highway Department because his wife's First Amendment
protected speech had offended the Town Supervisor, Defendant
Bucci. On June 3, 1999, Mr. Benedict testified to various
relevant matters as a non-party witness, including the fact that
Mr. Bucci directed that a person other than Mr. Williams be
promoted. Following this testimony, the case was settled by
payment to Mr. Williams. Thereafter, Mr. Benedict says he learned
that members of the Town Board were "furious at him" for having
testified against the Town, and were "embarrassed." Complaint at
On December 2, 1999, Mr. Benedict, while on duty, saw a large
deer standing on an embankment at the Town Highway Department
property. Mr. Benedict took out a rifle from his town-owned truck
and with a single shot killed "Bambi." Mr. Benedict's
subordinates cleaned the deer within the next ten minutes and
placed it in the town-owned truck. On December 3, 1999, the day
after Bambi's adverse encounter with Mr. Benedict, Mr. Bucci
informed Mr. Benedict that Mr. Benedict would be suspended
without pay. Mr. Benedict's suspension without pay was not
authorized by the Town Board at a properly called meeting. No
written charges were filed on the occasion of the suspension.
Mr. Benedict retained an attorney and protested his suspension
without pay. By letter dated December 17, 1999, the Town Board
for the first time set forth written charges against Mr. Benedict
and provided him with an opportunity to respond in writing to
those charges. By letter dated December 27, 1999, Mr. Benedict
responded to the Board's charges through counsel, claiming that
the charges were pretextual, and that the proposed termination of
his employment was excessive in light of the offense charged and
the punishments meted out to others by the Town for more serious
delicts. On December 29, 1999, the Town Board terminated ...