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February 13, 2004.

KENNETH KING, Plaintiff, -against- TOWN OF WALLKILL, ROBERT HENNEMAN, Former Acting Police Chief, Town of Wallkill, THOMAS NOSWORTHY, Former Supervisor, Town of Wallkill, JOHN BEAIRSTO, Former Acting Police Chief, Town of Wallkill, ROBERT HERTMAN, Police Chief, Town of Wallkill, and JOHN F. WARD, Supervisor, Town of Wallkill, sued in their individual capacities, Defendants

The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge

Plaintiff Kenneth King brings this action against defendants the Town of Wallkill (the "Town"), an incorporated municipality and: (1) Robert Henneman, the Town's former acting police chief; (2) Thomas Nosworthy, the Town's former supervisor; (3) John Beairsto, another former acting Town police chief; (4) Robert Hertman, the Town's present police chief; and (5) John Ward, present supervisor of the Town. (Complt. ¶¶ 1-7.) Henneman, Nosworthy, Beairsto, Hertman and Ward are named in their individual capacities (collectively the "individual defendants"). (Id.) Plaintiff, a former Town police officer, seeks compensatory and punitive damages and attorneys' fees, claiming that defendants: (1) violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and the New York State Human Rights Law ("NYHRL"), N.Y. EXEC. LAW §§ 293-96, by failing reasonably to accommodate his disability by providing him with light-duty assignments and terminating his N.Y. GEN. MUN. LAW § 207-c benefits; (2) violated the ADA and the NYHRL by retaliating against him because of his complaints; and (3) violated the Fifth and Fourteenth Amendments to the United States Constitution by taking his property without just compensation, a claim brought pursuant to 42 U.S.C. § 1983.*fn1 (Id. ¶¶ 55-60.) Defendants counterclaim for $100,000 because they allege that plaintiff received from the Town disability benefits to which he was not entitled. (Answer ¶¶ 67-74.)

Defendants now move for summary judgment pursuant to FED. R. CIV. P. 56 dismissing counts one and two of plaintiff's Complaint and granting recovery on their counterclaim. Defendants also move for summary judgment dismissing plaintiff's claims against the individual defendants, contending that individuals are not subject to liability under the ADA and the NYHRL. For the Page 2 reasons set forth herein, we grant defendants' motion for summary judgment in part and dismiss count one of plaintiff's Complaint. We deny defendants' motion for summary judgment as to count two of the Complaint. We grant individual defendants' motion for summary judgment dismissing plaintiff's claims pursuant to the ADA, but deny it with respect to plaintiff's NYHRL retaliation claim. With respect to the Town's counterclaim, we grant defendants' motion for summary judgment as to liability, but deny that motion as to damages.


  The Town hired plaintiff as a police officer in December 1989. (PL Rule 56.1 Stmt. ¶ 1.) On June 19, 1995, plaintiff was injured in a line-of-duty automobile accident when the patrol car that he was driving first struck a deer that had run into the road and then collided with a tree.*fn2 (Id.; Defs. Rule 56.1 Stmt., Ex. D.) Plaintiff initially was diagnosed with an acute cervical strain; he subsequently developed lower back pain as a result of a lumbar strain and herniated disc that were diagnosed shortly thereafter on June 29, 1995. (Defs. Rule 56.1 Stmt.¶ 11 & Ex. E.)

  Plaintiff's pain did not relent and he continued to seek medical treatment from a variety of chiropractors and physicians through 1997. These doctors stated that he was disabled from regular police duties, but that he could perform light desk duties that did not require bending or lifting. (Id. Page 3 ¶¶ 17-20.) In March 1997, Dr. Mary Godesky, an orthopedic surgeon, completed a questionnaire based on her December 1996 examination of plaintiff and set forth the duties that plaintiff could and could not perform. (Id. ¶¶ 23-24, Ex. M.) Based on his review of this questionnaire and plaintiff's medical records, then-police chief Jon Hansen directed plaintiff to report on April 28, 1997 for a light-duty assignment. (Id. ¶ 26.) Plaintiff did not, however, begin this light-duty assignment, and in June 1997 filed an application for disability retirement that was denied in February 1998. (Id. ¶¶ 26, 28.)

  Plaintiff continued to undergo diagnostic and treatment procedures including MRI scans. He ultimately was referred to Dr. John Mitamura, an orthopedic surgeon, in November 1997. (Id. ¶ 33.) Dr. Mitamura diagnosed plaintiff with spinal instability in December 1997 and attempted to treat this condition with braces because plaintiff did not want surgery or injections. (Id. ¶ 34.) Subsequently, Dr. Michael Miller, an orthopedic surgeon, performed an independent medical examination of plaintiff, diagnosed him with L-5/S-1 degenerative disc disease in September 1998 and stated plaintiff was a candidate for spinal fusion surgery. (Id. ¶ 41.) Thereafter, in September 1999, Dr. Mitamura performed back surgery on plaintiff, specifically a laminectomy and fusion at L-5/S-1. (Pl. Rule 56.1 Stmt. ¶ 2; Defs. Rule 56.1 Stmt., Exs. AA, DD.) At that time, Dr. Mitamura instructed plaintiff not to return to work for eighteen to twenty-four months after the surgery. (PL Rule 56.1 Stmt. ¶ 2.)

  While he was out of work, plaintiff was examined by Dr. Miller several times at the request of the Triad Group, the Town's third-party workers' compensation administrator. (Id. ¶ 3.) On April 18, 2000, Dr. Miller concluded that plaintiff had a "temporary total disability `that was "permanent." (Id.; Defs. Rule 56.1 Stmt., Ex. DD.) Dr. Miller clarified this inconsistency in a supplemental report Page 4 dated May 3, 2000,*fn3 in which he noted that plaintiff was not capable of working on April 18, 2000 because of his back injury, which rendered him totally disabled at that time.*fn4 (Defs. Rule 56.1 Stmt., Ex. FF.) Dr. Miller explained that plaintiff would always be disabled, but not permanently totally disabled. (Id.) Subsequently, on August 24, 2000, Dr. Miller issued a report (the "August 2000 report") that concluded that plaintiff's disability had improved to "marked, partial disability" with a "fair" prognosis and that plaintiff could return to work. (PL Rule 56.1 Stmt. ¶; Defs. Rule 56.1 Stmt., Ex. KK.) However, the report specified that the work should be limited to "sedentary work with standing and walking as needed with lifting up to five pounds." (Defs. Rule 56.1 Stmt., Ex. KK.)

  Thereafter, Henneman sent plaintiff a letter dated October 10, 2000 referencing the August 2000 report and directing plaintiff to report to work on October 30, 2000. (PL Rule 56.1 Stmt. ¶ 4; Defs. Rule 56.1 Stmt., Ex. LL.) That letter informed plaintiff that he would "be assigned light duty consistent with Dr. Miller's report" and that his refusal to appear would be grounds for the Page 5 termination or discontinuance of the full salary and benefits that he had been collecting pursuant to N.Y. GEN. MUN. LAW § 207-c(1).*fn5 (Defs. Rule 56.1 Stmt. ¶ 9 & Ex. LL.)

  Prior to returning to work, plaintiff was examined by Dr. Mitamura, his personal physician. (PL Rule 56.1 Stmt. ¶ 6.) Dr. Mitamura drafted a note to the Town describing the physical restrictions caused by plaintiff's disability, which included restrictions on foot patrol, motor vehicle operation, apprehension of suspects, participation in criminal investigations and sitting for more than fifteen minutes at a time. (Id. ¶ 6; Defs. Rule 56.1 Stmt., Ex. NN.) Dr. Mitamura's letter also stated that plaintiff could perform only light duties for at most two to four hours per day. (Id.) Plaintiff's counsel then drafted a letter to Nosworthy dated October 26, 2000, apprising him of Dr. Mitamura's findings and requesting an administrative appeal, pursuant to the police collective bargaining agreement (the "CBA"), of Henneman's decision ordering plaintiff back to work pursuant to N.Y. GEN. MUN. LAW § 207-c(3).*fn6 (Defs. Rule 56.1 Stmt., Ex. MM.) Page 6

  Plaintiff reported to work at 4:00 p.m. on October 30, 2000 and asked Henneman to inform him of his specific duties.*fn7 (PL Rule 56.1 Stmt. ¶ 8.) Henneman informed plaintiff that he did not know what specific duties would be assigned. (Id.) Plaintiff, following the advice of his attorney, then asked for a specific assignment in writing, which Henneman declined to provide. (Id. ¶¶ 9-10.) Henneman then told plaintiff that he would be disciplined if he did not perform work assignments as given. (Id. ¶ 9.) At this time, plaintiff informed Henneman that he required a place to lie down in order to perform light duties, an accommodation that Henneman told plaintiff was not mentioned in Dr. Miller's August 2000 report. (Defs. Rule 56.1 Stmt. ¶ 58.) Plaintiff also informed Henneman that he might need to take pain medication while on duty. (Complt. ¶ 24.) According to plaintiff, Henneman did not, however, give plaintiff any work assignment on October 30, and sent him home with instructions to call daily about the availability of light-duty work. (PL Rule 56.1 Stmt ¶ 11.) Plaintiff returned to work on October 31 and November 1, 2000, and Henneman again directed him to go home because he had no further information about plaintiff's duties. (Id. ¶¶ 9, 11.) Page 7

  Thereafter, plaintiff's counsel sent to the Town's attorneys a letter dated November 10, 2000 objecting to Henneman's failure to respond to plaintiff's inquiries about his duties, the significance of plaintiff s continued medication use and the number of hours that he was required to work. (Id. ¶ 13 & Ex. 17.) In response, Henneman sent to plaintiff a letter dated November 17, 2000 stating the Town's intention to terminate plaintiff's § 207-c benefits retroactive to October 30, 2000 for failure to perform light duty as directed and advising plaintiff of his right to appeal pursuant to the CBA. (PL Rule 56.1 Stmt. ¶ 13; Defs. Rule 56.1 Stmt., Ex. QQ.) Subsequently, hearings were held on the matter and on October 17, 2001 hearing officer Earle Warren Zaidins issued a decision concluding that plaintiff had refused to perform light duty as required by § 207-c and recommending that the Town terminate plaintiff's benefits in accordance with that statute and the CBA. (Pl. Rule 56.1 Stmt. ¶ 13; Defs. Rule 56.1 Stmt., Ex. PP.) On October 29, 2001, Nosworthy adopted hearing officer Zaidins's recommendations and concluded that plaintiff had forfeited his § 207-c benefits by failing to perform light police duty, such as desk work, that remained within his physical abilities.*fn8 (Defs. Rule 56.1 Stmt., Ex. YY.) In the intervening time between the hearings and hearing officer Zaidins's decision, plaintiff had met with Beairsto in May, June and October 2001 and had asked to return to light-duty work. (Pl. Rule 56.1 Stmt. ¶ 17.) Plaintiff's October 2001 request referred specifically to a "light duty assignment afforded to Officer K. Scheming [that] is now available." (Id., Ex. 6.) Page 8

  Shortly after hearing officer Zaidins issued his decision and recommendation, Dr. Miller conducted an independent medical examination at the request of the Triad Group in November 2001 and concluded that plaintiff had a "permanent partial disability" from his injuries.*fn9 (Pl. Rule 56.1 Stint. ¶ 15.) Plaintiff subsequently had his state workers' compensation case reopened and obtained an order directing the Town to resume his compensation payments in February 2002. (Id. ¶ 16.)

  In February 2002, plaintiff's counsel sent a letter to Hertman, the newly installed police chief, and requested permission for plaintiff to return to light duty. (Id. ¶ 18.) The Town rejected this request in March 2002, stating in a letter by counsel that "Hertman carefully reviewed the Department's personnel needs and determined that the Department does not have an available light-duty assignment for [plaintiff]. In fact, the Department does not currently have any police officers assigned to light-duty police work." (Id. ¶ 19; Defs. Rule 56.1 Stmt., Ex. BBB.) Plaintiff filed a complaint with the Equal Employment Opportunity Commission (the "EEOC") shortly thereafter, and received a right to sue letter from that agency in August 2002. (PL Rule 56.1 Stmt. ¶ 20.)

  In October 2002, Ward informed plaintiff that he had been out of work for one year and the Town intended to terminate his employment in accordance with N.Y. CIV. SERV. LAW § 71*fn10 Page 9 following a hearing on the matter. (Id. ¶ 21.) A hearing was subsequently held before Ward, who then terminated plaintiff's employment on December 9, 2002 because "there is no duty assignment for a police officer in the Police Department that satisfies the limitations on your abilities articulated by you." (Id. ¶ 22; Defs. Rule 56.1 Start., Ex. DDD.) Plaintiff had asked for a permanent light-duty position. (Id. ¶ 80.) He thought that they existed, and identified two other officers, Dennis Lohr and Joe Perone, who had been assigned light-duty positions. (Id.) Perone had worked on light-duty assignment in the evidence room for approximately two years, although plaintiff has acknowledged that Perone's benefits and employment also did not continue indefinitely and he no longer works for the Town. Plaintiff also has admitted that he is not aware of any police officer who ever received a permanent light-duty assignment. (Defs. Rule 5 6.1 Stmt., Ex. EEE at 179-80.) Plaintiff continues to seek a permanent light-duty position.*fn11 (Id.) Ex. EEE at 179.)

  We also note that plaintiff has filed multiple applications for disability retirement benefits. His first application, for performance of duty disability retirement benefits in June 1997, was denied because plaintiff did not prove that he was permanently incapacitated. (Id. ¶ 33; Defs. Rule 56.1 Stmt., Ex. P.) His second application, for accidental disability benefits, was withdrawn in September 2000. (PL Rule 56.1 Stmt. ¶ 34.) Both applications were submitted prior to the filing of the EEOC complaint and the present action. (Id. ¶ 35.) Plaintiff filed his third application in February 2003, seeking disability retirement benefits because, as stated on the application form, "I am unable to Page 10 perform my full duties as a police officer and my employer has refused to allow me to return to duty on a `light-duty' basis or reasonably accommodate my disability." (Id. ¶ 37.)

  An amendment to the CBA, effective April 2002, resulted in a pay increase for the police officers that was retroactive to January 1, 1999. (Id. ¶ 23.) Plaintiff was affiliated with the Town during the time period covered by the pay increase and he learned of the raise through his police union representative. (Id.) Plaintiff then contacted April Shuback, the Town employee responsible for payroll and employee benefits, and confirmed that a check for the retroactive amounts due had been issued to him by the Town. (Id.) Shuback did not, however, give plaintiff his check; instead, she gave it to Ward at Ward's direction. (Id. ¶ 24.) Ward then refused to give the check to plaintiff. ...

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