The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiffs James Mullen ("Mullen") and Karl Schmidt ("Schmidt"), disabled and retired Syracuse police officers, bring this action against defendants for violation of their due process rights under the Fourteenth Amendment. Specifically, plaintiffs allege that defendants deprived them of their vested property interest in ongoing medical care without notice or an opportunity to be heard. Plaintiffs seek monetary, injunctive, and declaratory relief.
Defendants have moved for dismissal of the action pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that there was no due process violation because plaintiffs had an adequate post-deprivation remedy in the form of an Article 78 proceeding. Defendants also seek dismissal pursuant to 12(b)(1), asserting that the district court does not have subject matter jurisdiction because the matter must be resolved by an Article 78 proceeding in state court. Plaintiffs oppose the motion to dismiss and have filed a cross-motion seeking leave to amend their complaint pursuant to Federal Rule of Civil Procedure 15. Defendants oppose plaintiffs' cross-motion, asserting that the proposed amendments would be futile.
The following facts, taken from the complaint, are accepted as true for the purposes of this motion to dismiss. See Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964).
Both plaintiffs were injured while on duty as Syracuse police officers. As a result of their injuries, plaintiffs were declared disabled and began receiving medical treatment that was paid for by the City of Syracuse ("the City") pursuant to New York General Municipal Law § 207-c. Section 207-c requires a municipality to pay all medical expenses for police officers who were injured on the job, even after such officers retire.*fn1 However, in September 2009 the City adopted a new policy limiting the medical benefits available to plaintiffs and effectively preventing access to the ongoing medical care they require. Plaintiffs did not receive notice or an opportunity to be heard before this policy took effect. On August 30, 2010, Schmidt was advised that the City would no longer pay for his chiropractic treatment and physical therapy unless he obtained prior authorization from the City.
A. Motion to Dismiss-Legal Standard
To survive a 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Although a complaint need only contain "a short and plain statement of the claim showing the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009).
Dismissal is appropriate only where plaintiffs fail to provide some basis for the allegations that support the elements of their claims. See Twombly, 550 U.S. at 570, 127 S. Ct. at 1974 (requiring "only enough facts to state a claim to relief that is plausible on its face"). When considering a motion to dismiss, the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiffs' favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
In order to survive a motion to dismiss a due process claim under section 1983, a plaintiff "must allege the deprivation of a constitutionally protected interest." Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002); see Bernheim v. Litt, 79 F.3d 318, 322 (2d Cir. 1996) ("To state a cause of action under the due process clause, a plaintiff must show that she has a property interest, created by state law, in the employment or the benefit that was removed.").
Nowhere in the motion to dismiss papers do defendants dispute that plaintiffs, who had been receiving full medical benefits per § 207-c prior to the policy change, had a vested property interest in these benefits. Indeed, it was at oral argument on January 13, 2010, that defendants first suggested plaintiffs did not possess such an interest. Defendants are wrong. It is undisputed that Schmidt and Mullen qualified for and were already receiving benefits through § 207-c. These benefits are clearly created by state law and constitute a protected property interest. See Russell v. Dunston, 896 F.2d 664, 668--69 (2d Cir. 1990) (holding that "[t]he entitlement to disability retirement is a constitutionally protected property interest" and rejecting defendants' assertion that an Article 78 proceeding provides an adequate post-deprivation remedy); DeMasi v. Benefico, 567 F. Supp. 2d 449, 454 (S.D.N.Y. 2008) (noting that "it is well established under New York law" that a person receiving benefits per § 207-c ...