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DeMasi v. Benefico

June 13, 2008


The opinion of the court was delivered by: Conner, Senior D.J.



Plaintiff, Joseph DeMasi, brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his due process rights under the Fourteenth Amendment of the United States Constitution when they terminated his benefits under N.Y. GEN. MUN. LAW § 207-c. Defendants, Joseph Benefico ("Benefico"), Richard Slingerland ("Slingerland") and the Village of Pelham, New York, (collectively "defendants"), move to dismiss plaintiff's claim pursuant to FED. R. CIV. P. 12(b)(6) on the grounds that plaintiff's benefits were lawfully terminated and his due process rights not violated.*fn1 For the reasons stated below, defendants' motion is granted.


Plaintiff, a member of the Village of Pelham Police Department, suffered an on-the-job injury on April 22, 2002 and as a result received benefits pursuant to section 207-c.*fn2 (Complt. ¶ 3, 7.) In a February 2, 2005 letter, defendants ordered that plaintiff report for light transitional duty on February 9, 2005, stating: "Neither you or your doctor have provided medical evidence that you are unable to work a full eight-hour tour of light transitional duty. If you leave before the end of your tour, you will not be paid for time not worked." (Id. ¶ 9.) Plaintiff alleges that his physician did provide "medical evidence which in words or substance made it clear . . . that due to his on-the-job injuries [p]laintiff from time to time would be unable to work a full eight-hour tour of light transitional duty and/or work certain of such tours." (Id. ¶ 10.)

Pursuant to N.Y. GEN. MUN. LAW§ 207-c(3), if a police officer is unable to perform regular duties but is able to perform light duty in the opinion of health authorities or physicians, "payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued . . . if he shall refuse to perform such light police duty if the same is available and offered to him . . . ." Plaintiff reported for light transitional duty but was unable to work an entire eight-hour shift or report for certain shifts from time to time because of pain. (Id. ¶ 11.) Starting in early March 2005, plaintiff was not paid for time when he was either physically unable to complete a shift or work a particular shift due to his on-the-job injuries. (Id. ¶ 12.) Plaintiff alleges that prior to that discontinuance of pay he was not accorded a due process hearing or an opportunity to be heard. (Id. ¶ 13.)

Plaintiff brought a proceeding pursuant to N.Y. C.P.L.R. § 7801 (an "Article 78 proceeding") in the Supreme Court, Westchester County, on April 18, 2005, seeking a judgment annulling defendants' termination of his section 207-c benefits. (Defs. Mem. Supp. Mot. Dismiss at 2; Stern Decl., Ex. B.) By decision dated August 30, 2005, that court determined that section 207-c benefits are a property right protected by constitutional guarantees of due process which may not be discontinued without a prior evidentiary hearing with notice and an opportunity to be heard. (Stern Decl., Ex. B at 7.) The court ordered that defendants resume payment of plaintiff's full salary retroactive to February 21, 2005 and that the issue of whether future payments may be terminated or reduced should be determined after an evidentiary hearing. (Id. at 8.) The order was affirmed by the Appellate Division, Second Department in a decision dated November 8, 2006. (Stern Decl., Ex. C.) Plaintiff commenced this action on September 14, 2007.


I. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well-pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005); In re AES Corp. Sec. Litig., 825 F. Supp. 578, 583 (S.D.N.Y. 1993) (Conner, J.). Furthermore, in assessing the legal sufficiency of a claim, the court may consider only the facts alleged in the complaint, and any document attached as an exhibit to the complaint or incorporated in it by reference. See FED. R. CIV. P. 10(c); Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996). On a motion to dismiss, a court may also consider matters "of which judicial notice may be taken under FED. R. EVID. 201." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). Included among such matters are decisions in prior lawsuits. See Jasper v. Sony Music Entm't, Inc., 378 F. Supp. 2d 334 (S.D.N.Y. 2005). To incorporate a document by reference, "the Complaint must make a clear, definite and substantial reference to the document[]." Thomas v. Westchester County Health Care Corp., 232 F. Supp. 2d 273, 275-76 (S.D.N.Y. 2002). "Mere discussion or limited quotation of a document in a complaint" is insufficient. R.H. Damon & Co. v. Softkey Software Prods., Inc., 811 F. Supp. 986, 989 & n.1 (S.D.N.Y. 1993).

However, the Court may base its decision on a document that is not properly incorporated by reference if the document is "integral" to the Complaint and has been heavily relied on by the plaintiff in bringing suit. See Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) ("Although the amended complaint in this case does not incorporate the Agreement, it relies heavily upon its terms and effect; therefore, the Agreement is 'integral' to the complaint, and we consider its terms in deciding whether [plaintiff] can prove any set of facts that would entitle it to relief.") The Second Circuit has instructed that "a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis in original). The plaintiff's notice or possession of the document is not enough. Id.

On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the issue is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004) (internal quotation marks and citation omitted). "The Supreme Court has recently held that [w]hile a Complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Ello v. Singh, 531 F. Supp. 2d 552, 562 (S.D.N.Y. 2007) (internal quotation marks omitted; alterations in original) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d. Cir. 2007) (determining that the Court in Twombly "is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible 'plausibility standard' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.") (emphasis in original). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[1][b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which plaintiff complains, are insufficient as a matter of law. See Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).

II. Plaintiff Was Accorded Due Process Under the Fourteenth Amendment

"An essential principle of due process is that a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). When a person has a property interest that is terminated, "procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards." Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001) (citing Loudermill, 470 U.S. at 545-46). ...

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