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.

CUSHMAN v. VILLAGE OF ILION

January 14, 2004.

MARK CUSHMAN, Plaintiff, -vs- VILLAGE OF ILION, NEW YORK; THE BOARD OF TRUSTEES OF THE VILLAGE OF ILION, NEW YORK; JOHN GILMARTIN, individually and/or in his capacity as Mayor; jointly and severally, Defendants


The opinion of the court was delivered by: DAVID HURD, District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Mark Cushman ("plaintiff") brought suit against defendants Village of llion, New York ("village"), the village board of trustees ("board"), and John Gilmartin ("Gilmartin"), individually and/or in his capacity as village Mayor (collectively, "defendants"), alleging two Page 2 groups of federal claims*fn1: (1) deprivation of a property interest without due process of law by failing to afford plaintiff notice and opportunity to be heard prior to his termination, in violation of his Fourteenth Amendment procedural due process rights; and (2) termination on the basis of and in retaliation for the exercise of his constitutional right to political party affiliation, in violation of his Fourteenth Amendment equal protection and substantive due process rights.*fn2

  Defendants have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12, and/or for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff opposed. Oral argument was heard on October 10, 2003, in Utica, New York. Decision was reserved.

 II. FACTUAL BACKGROUND

  The facts relevant to plaintiff's federal claims are as follows.

  By board resolution dated September 15, 1976, the position of Village Administrator was created to coordinate the village's governmental departments and agencies, and to make recommendations to the board on certain issues. At a January 12, 2000, board meeting, a motion was unanimously passed appointing plaintiff Village Administrator. On February 9, 2000, plaintiff signed the required oath of office, and it was filed. Though several officials allegedly witnessed his taking the oath, neither the village Clerk nor any other village official signed the document attesting thereto.

  The village held elections every two years. After the June 2000 elections, defendants claim that plaintiff was reappointed Village Administrator. It does not appear as Page 3 though plaintiff specifically contests this alleged fact. Plaintiff did not file a new oath of office upon his reappointment, but faithfully discharged his duties until June 5, 2002.

  On June 4, 2002, after contentious campaigning, Gilmartin, a Democrat, won the mayoral election. That night, he and newly elected board members were sworn into their offices. At a board meeting the next day, June 5, 2002, plaintiff was terminated as Village Administrator after first being offered a chance to resign voluntarily. The minutes of the meeting note that "due to the current makeup of the board the services of an administrator are not needed." (Docket No. 9, Ex. C.) Defendants claim that this was because Gilmartin, who as Mayor was on the board, planned to be a full-time mayor, and the position of Village Administrator had been created at a time when the then-mayor assumed only part-time duties, making it difficult for him to complete all the tasks eventually delegated to the administrator. Plaintiff claims that his termination was due solely to his political affiliation as a Republican.

 III. DISCUSSION

  Defendants have moved to dismiss the complaint and/or for summary judgment pursuant to Federal Rules of Civil Procedure 12 and 56.

  A. Federal Rules of Civil Procedure 12 and 56 Standards

  In deciding a Rule 12(b)(6) motion, a court "must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint `unless it appears beyond a reasonable doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Kaluczky. v. City of White Plains, 57 F.3d 202, 206 (2d Page 4 Cir. 1995). However, conclusory allegations that merely state the general legal conclusions necessary to prevail on the merits and are unsupported by factual averments will not be accepted as true. See, e.g., Clapp v. Greene, 743 F. Supp. 273, 276 (S.D.N.Y. 1990); Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988).

  Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986); Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Richardson, 180 F.3d at 436; Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56; Liberty Lobby. Inc., 477 U.S. at 250; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Matsushita Elec. Indus. Co., 475 U.S. at 587. At that point the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the ...


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.