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Joseph Clark v. Thoman Dinapoli As State Comptroller of the State of New York


January 4, 2011


The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge


Plaintiff Joseph Clark commenced the instant action pursuant to 42 U.S.C. § 1983 asserting claims for violations of his right to due process, equal protection, free speech, and to petition government for the redress of grievances, and additional claims for violations of N.Y. Gen. Mun. Law § 207-c and the Americans with Disabilities Act. Presently before the Court is Defendant Town of Clarkstown, Town Board of the Town of Clarkstown, William Collins, and Kevin Kilduff (collectively the "Town Defendants") motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).


Plaintiff filed a seventy-eight page, two-hundred and five paragraph Complaint that can be distilled as follows. *fn1 Plaintiff was employed as a police officer by the Town of Clarkstown (the "Town") in Rockland County, New York. Beginning in 1989, Plaintiff began receiving benefits pursuant to N.Y. Gen. Mun. Law § 207-c. *fn2 In 1995, the Town, through Defendant then Chief of Police William Collins, applied for retirement disability benefits pursuant to N.Y. Retire. & Soc. Sec. Law § 363-c on Plaintiff's behalf. *fn3 On or about February 4, 1999, Defendant State Comptroller issued a determination granting the Town's application for the retirement of Plaintiff for disability incurred in the performance of duty. *fn4 As a result of the Comptroller's determination, the Town removed Plaintiff from its payroll.

Plaintiff requested a hearing concerning this determination. Because of the request for a hearing, Defendant Retirement System refused to pay Plaintiff a retirement allowance.

In September 1999, the Retirement System began paying a retirement allowance to Plaintiff. A hearing was held in September 1999 concerning whether the employer's application should be granted. Pursuant to the Retirement System's recommendation, Plaintiff filed an proceeding pursuant to N.Y.C.P.L.R. Art. 78 challenging the determination. The Retirement System then advised Plaintiff that it would schedule further proceedings on the merits. As a result, in 2000, the Article 78 proceeding was dismissed. To date, no further hearings have been held. *fn5 In 2001, Plaintiff applied for accidental disability retirement. He was granted such benefits in April 2001.

Plaintiff contends that the hearing was unfair, no evidence on the merits was submitted, and the Retirement System's determination was without a proper factual basis. Plaintiff argues that the Town Defendants "took no steps whatsoever to ensure that the Plaintiff received his Constitutional rights to due process."

Plaintiff commenced the instant lawsuit asserting claims for: (1) violations of his right to due process of law; (2) violation of his right to equal protection of the law; (3) violation of his right to free speech; (4) violation of his right to petition the government for the redress of grievances; (5) violation of N.Y. Gen. Mun. Law § 207-c; and (6) a violation of the Americans with Disabilities Act. Presently before the Court is a motion by the Town Defendants to dismiss the claims against them pursuant to Fed. R. Civ. P. 12(c) on the grounds that: (1) Plaintiff's claims are time-barred; (2) Plaintiff's claims are barred by res judicata; (3) Plaintiff is ineligible for reinstatement as a police officer; (4) Plaintiff's claims are moot; (5) the individual defendants are entitled to qualified immunity; (6) Plaintiff has failed to identify and serve the John Doe Defendants; and (7) the Complaint fails to state a claim upon which relief can be granted.

On September 27, 2010, Plaintiff filed papers in opposition to the motion. While, ordinarily, these papers would have been timely, under the facts and circumstances of this case, they are not. Defendants' motion was initially made returnable on the Court's December 13, 2010 motion calendar. On November 22, 2010, the parties submitted a stipulation seeking an adjournment of the motion to the Court's January 10, 2011 motion calendar. Under the stipulation, the parties agreed that "[p]apers in opposition to the motion will be filed on or before December 23, 2010." *fn6 The Court granted the parties' stipulation. In addition to the stipulation that the parties signed indicating that opposition papers were due on December 23, 2010, an entry was made on the docket specifically indicating that "Response to Motion due by 12/23/10."

Plaintiff did not file opposition papers until December 27, 2010, after the December 23 deadline to which he agreed. Plaintiff does not offer any reason establishing excusable neglect for the delay. In light of the agreed upon deadlines reflected in the stipulation and on the docket, Plaintiff's papers are untimely and, thus, pursuant to N.D.N.Y.L.R. 7.1(b)(3) "shall not [be] consider[ed]."


The standard pursuant to Fed. R. Civ. P. 12(c) is identical to that under Rule 12(b)(6). Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99 (1957)). "While 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." Id. at 1964-65. "Factual allegations must be enough to raise a right to relief above the speculative level. . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. "'[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'" Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement." Ashcroft, 129 S. Ct. at 1949. Legal conclusions must be supported by factual allegations. Iqbal, at 1950. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. 557) (internal quotations omitted).

With this standard in the mind, the Court will address the pending motion to dismiss.


The Town Defendants move to dismiss on the ground that the claims against them are time-barred. In support, the Town Defendants contend that all acts attributable to them occurred no later than 1999 or 2000. *fn7 It is well-settled that, in New York, claims pursuant to 42 U.S.C. § 1983 are subject to a three year statute of limitations. Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009). A § 1983 claim ordinarily accrues when the Plaintiff knows or has reason to know of the harm. Id. The proper focus is on the time of the unlawful act and when Plaintiff knows or has reason to know of the injury that is the basis of the action; not when the consequences become painful. Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994).

Here, the actions alleged to be attributable to the Town include applying for § 363-c benefits, removing Plaintiff from its payroll, and the failure to take steps to ensure that the Plaintiff received his Constitutional rights to due process (including a hearing on the termination of § 207-c benefits). All of these actions (or inactions) pertain to matters that incurred more than three years prior to the filing of the Complaint in September 2009.

Significantly, Plaintiff was well aware of the application for § 363-c benefits, his removal from payroll, and his failure to get a hearing by 2001 at the very latest. See Compl. at ¶ 51. Accordingly, the § 1983 claims are time-barred.

To the extent Plaintiff asserts a claim under Municipal Law § 207-c, his benefits under that section were terminated in 1999 as a result of the Retirement System's decision to grant § 363-c benefits and his application for those benefits in 2001. Thus, Plaintiff was aware of the termination of his § 207-c benefits by 2001 at the latest. That occurred long before the filing of the instant Complaint and beyond any applicable statute of limitations. See N.Y.C.P.L.R. §§ 217 (four month statute of limitations for Article 78 proceedings) *fn8 ; Heaton v. Monroe County, 78 A.D.3d 1501 (4 th Dep't 2010) (applying four month statute of limitations to action challenging denial of benefits under § 207-c); Raymond v. Walsh, 63 A.D.3d 1715 (4 th Dep't 2009); DeGiacomo v. Kissinger, 62 A.D.2d 1048 (2d Dep't 1978) (applying the three year statute of limitations in C.P.L.R. § 214(2) to an action for declaratory relief under Gen. Mun. Law § 207-c).

Turning to Plaintiff's claims under the ADA and the HRL, Defendant contends that Plaintiff was issued a right-to-sue letter in June 2000. Plaintiff does not refute this. The instant complaint was filed more than 90 days after June 2000 (for purposes of the ADA claim) and three years after June 2000 (for purposes of the HRL claim). *fn9 Accordingly, these claims also are untimely.


For the foregoing reasons, the Town Defendant's motion to dismiss is GRANTED and the Complaint is DISMISSED as to the Town Board of the Town of Clarkstown, the Town of Clarkstown, William Collins, and Kevin Kilduff. *fn10


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