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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 ...

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