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Chernoff v. City of New York

March 25, 2009

SCOTT CHERNOFF, PLAINTIFF,
v.
THE CITY OF NEW YORK; NEW YORK CITY POLICE PENSION FUND; MICHAEL D. WELSOME, DIRECTOR NEW YORK CITY POLICE PENSION FUND; RAYMOND KELLY, POLICE COMMISSIONER; JULIUS MENDEL, M.D., MEDICAL BOARD, NEW YORK CITY POLICE PENSION FUND; RICHARD GASALBERTI, M.D., MEDICAL BOARD, NEW YORK CITY POLICE PENSION FUND; ARSEN PANKOVICH, M.D. MEDICAL BOARD, NEW YORK CITY POLICE PENSION FUND, EACH BEING SUED INDIVIDUAL AND IN THEIR OFFICIAL CAPACITIES AS EMPLOYEES OF THE NYPD AND/OR THE NYCPFF, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Scott Chernoff commenced this action on June 9, 2006 against defendants the City of New York ("City"); the New York City Police Pension Fund (the "Police Pension Fund"); Michael D. Welsome, Director of the New York City Police Pension Fund; Raymond W. Kelly, Police Commissioner; Julius Mendel, M.D., Richard Gasalberti, M.D., and Arsen Pankovich, M.D., of the New York City Police Pension Fund Medical Board; Julie L. Schwartz, Kathleen M. Kearns, Louis W. Luciani, Carl Princi, Walter Cacaj, and John Doe Police Officers # 1-4, of the New York Police Department ("NYPD") Advocate's Office, each sued in their individual and official capacities. On September 11, 2008, I granted summary judgment in defendants' favor on plaintiff's disability discrimination claims, substantive due process claim under 42 U.S.C. § 1983, and procedural and substantive due process claims under the Fifth Amendment.*fn1 Chernoff v. City of New York, No. 06-CV-2897, 2008 WL 4239161 (E.D.N.Y. Sept. 11, 2008). The following claims remain to be determined: (1) plaintiff's procedural due process claim under § 1983, to the extent that plaintiff claims his procedural due process rights were violated on account of established state procedures*fn2; and (2) plaintiff's claim for deprivation of his constitutional rights under § 1983.*fn3 Presently before this Court is defendants' renewed motion for summary judgment with respect to these claims. For the reasons set forth below, defendants' motion is granted.

BACKGROUND

Familiarity with the underlying facts and circumstances of this case is presumed based on the factual background recited in my memorandum opinion addressing defendants' first motion for summary judgment. See Chernoff, 2008 WL 4239161, at *1-5. What follows is a recent procedural history of this case.

On November 3, 2008, I granted defendants leave to renew their motion for summary judgment to address plaintiff's remaining claims. During a December 11, 2008 telephone conference with Magistrate Judge Pollack, plaintiff was directed to and agreed to identify his remaining claims under § 1983, aside from his procedural due process claim. Plaintiff's Rule 56.1 Statement dated February 13, 2009 ("Pl.'s Stmt.") ¶ 7. By letter dated December 11, 2008, plaintiff stated that his remaining § 1983 claims other than his procedural due process claim were for "disability discrimination (Count IV), retaliation (Count V) and hostile work environment (Count IV) [sic]." Id. Defendants' renewed motion for summary judgment followed on January 5, 2009. During the briefing of this motion, plaintiff withdrew his hostile work environment claim under § 1983.

DISCUSSION

I. Summary Judgment Standard

A court must grant a motion for summary judgment if the movant shows that "there is no genuine issue as to any material fact" and that "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Elec. Inspectors, Inc. v. Vill. of E. Hills, 320 F.3d 110, 117 (2d Cir. 2003). A fact is material when it "might affect the outcome of the suit under the governing law." Id.

The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). In order to defeat such a motion, the non-moving party must raise a genuine issue of material fact. Although all facts and inferences therefrom are to be construed in the light most favorable to the non-moving party, the non-moving party must raise more than a "metaphysical doubt" as to the material facts. See Matsushita, 475 U.S. at 586; Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir. 2001). The non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). Rather, the non-moving party must produce more than a scintilla of admissible evidence that supports the pleadings. First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968); Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003). In deciding such a motion, the trial court must determine whether "after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

II. Section 1983 Claims

"Section 1983 provides an instrument by which an individual deprived of a federal right by a person acting under color of state law may be compensated." Eagleston v. Guido, 41 F.3d 865, 875 (2d Cir. 1994) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)).*fn4 Section 1983 itself creates no substantive rights; it provides "only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993), cert. denied, 512 U.S. 1240 (1994). "It is well established that in order to state a claim under § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived theplaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States." Id. at 875-76 (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)).

There is no dispute that defendants were, at all relevant times, acting under color of state law. In his various § 1982 claims, plaintiff contends that defendants deprived him of his rights under the Fourteenth Amendment to the Constitution: in particular, his property interests in his employment and his retirement benefits.

A. Procedural Due Process Claim

The remaining portion of plaintiff's § 1983 procedural due process claim asserts that plaintiff was denied procedural due process when defendants, according to established state procedures,*fn5 took disciplinary measures against him and determined that he was ineligible for service-related accidental disability retirement benefits. In order to determine whether defendants deprived plaintiff of his right to procedural due process, I must consider "two threshold questions . . . whether the plaintiff possessed a liberty or property interest protected by the United States Constitution or federal statutes, and, if so, what ...


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