Dejana Industries, Inc. v. The Village of Manorhaven et al
Filing
25
MEMORANDUM & ORDER denying 20 Motion for Summary Judgment; For the foregoing reasons, Dejana's motion for summary judgment (Docket Entry 20) is DENIED. So Ordered by Judge Joanna Seybert on 3/18/2015. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
DEJANA INDUSTRIES, INC.,
Plaintiff,
-againstTHE VILLAGE OF MANORHAVEN and GIOVANNA
GIUNTA, individually and in her
official capacity as Mayor of the
Village of Manorhaven,
MEMORANDUM & ORDER
12-CV-5140(JS)(SIL)
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
John E. Ryan, Esq.
Ryan Brennan & Donnelly LLP
131 Tulip Avenue
Floral Park, NY 11001
For Defendants:
Jeffrey B. Siler, Esq.
Siler & Ingber, LLP
1399 Franklin Avenue, Suite 103
Garden City, NY 11530
SEYBERT, District Judge:
Plaintiff
Dejana
Industries,
Inc.
(“Dejana”
or
“Plaintiff”) commenced this action on October 12, 2012 against
defendants the Village of Manorhaven (the “Village”) and the
Village’s mayor, Giovanna Giunta (“Mayor Giunta,” and together
with the Village, “Defendants”) pursuant to 42 U.S.C. § 1983,
asserting a First Amendment retaliation claim and a breach of
contract claim under New York state law.
Dejana contends that
Defendants terminated its publicly awarded contract to clean the
Village’s sewer system in retaliation for its support of candidates
that ran against Mayor Giunta and her political party in the
Village’s 2012 elections.
Dejana now moves for partial summary
judgment as to liability.
(Docket Entry 20.)
For the following
reasons, Dejana’s motion for summary judgment is DENIED.
BACKGROUND
I.
Procedural Defects
Before discussing the record in this case, the Court
must address several procedural defects in Defendants’ Local Civil
Rule 56.1 Statement and other opposition papers.
The Local Civil
Rules regarding summary judgment should be well known to attorneys
litigating in this Court.
Under Local Civil Rule 56.1, a party
moving for summary judgment must file “a separate, short and
concise statement, in numbered paragraphs, of the material facts
as to which the moving party contends there is no genuine issue to
be tried.”
LOCAL CIV. R. 56.1(a).
The party opposing summary
judgment, in turn, must file “a correspondingly numbered paragraph
responding to each numbered paragraph in the statement of the
moving party, and if necessary, additional paragraphs containing
a separate, short and concise statement of additional material
facts as to which it is contended that there exists a genuine issue
to be tried.”
LOCAL CIV. R. 56.1(b).
If the party opposing summary judgment denies any of the
facts in the movant’s 56.1 statement, the opposing party must
“support its position by citing to admissible evidence in the
2
record.”
Baity v. Kralik, --- F. Supp.3d ----, 2014 WL 5010513,
at *1 (S.D.N.Y. Sept. 30, 2014) (internal quotation marks and
citation omitted); see LOCAL CIV. R. 56.1(d) (“Each statement by the
movant or opponent pursuant to Rule 56.1(a) and (b), including
each statement controverting any statement of material fact, must
be followed by citation to evidence which would be admissible, set
forth as required by Fed. R. Civ. P. 56(c).” (emphasis added)).
Responses that “do not point to any evidence in the record that
may create a genuine issue of material fact[ ] do not function as
denials, and will be deemed admissions of the stated fact.”
Risco
v. McHugh, 868 F. Supp. 2d 75, 86 n.2 (S.D.N.Y. 2012) (internal
quotation marks and citation omitted); see LOCAL CIV. R. 56.1(c)
(“Each numbered paragraph in the statement of material facts set
forth in the statement required to be served by the moving party
will be deemed to be admitted for purposes of the motion unless
specifically controverted by a correspondingly numbered paragraph
in the statement required to be served by the opposing party.”).
“The purpose of Local Rule 56.1 is to streamline the consideration
of summary judgment motions by freeing district courts from the
need to hunt through voluminous records without guidance from the
parties.”
Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir.
2001).
Defendants’ submissions do not comply with the purpose
or the letter of the Local Rules.
3
Defendants are opposing summary
judgment.
However, for reasons unknown to the Court, Defendants’
counsel filed a Rule 56.1 statement of undisputed material facts
that a movant would file in support of a motion summary judgment.
(See Defs.’ First 56.1 Stmt., Docket Entry 20-7, at 12-151.)
Likewise, Dejana is the movant, but its counsel filed a Rule 56.1
statement responding to Defendants’ Rule 56.1 statement.
Pl.’s 56.1 Stmt., Docket Entry 20-7, 17-23.)
(See
The undersigned’s
Individual Motion Practices require litigants to exchange Rule
56.1 statements prior to moving for summary judgment.
The Court
can only surmise that Defendants intended to move for summary
judgment, served an initial 56.1 statement, and then decided not
to move.
Whatever the reason is for the improper order of 56.1
submissions, counsel either should have corrected the submissions,
or at least brought the issue to the Court’s attention.
Nevertheless, in addition to responding to Defendants’
56.1 Statement, Dejana’s 56.1 Statement also contains a section of
numbered
paragraphs
of
undisputed
material
facts
that
would
ordinarily constitute a movant’s initial 56.1 statement in support
of
summary
judgment,
(see
Pl.’s
56.1
Stmt.
¶¶
22-36),
and
Defendants filed a second 56.1 statement responding to the facts
asserted in Dejana’s 56.1 statement, (see Defs.’ Second 56.1 Stmt.
The page numbers of the parties’ 56.1 Statements and exhibits
refer to those page numbers provided by the Electronic Case
Filing system.
1
4
Docket Entry 20-7, at 25-26).
Accordingly, the Court will refer
to all three 56.1 statements in deciding Dejana’s motion.
Unfortunately,
the
improper
order
of
submissions is not the only procedural defect here.
the
56.1
Defendants’
second 56.1 Statement also fails to comply with Local Civil Rule
56.1
because
the
responses
contained
therein
do
not
include
citations to admissible evidence in the record. (See Defs.’ Second
56.1 Stmt.)
Defendants’ other opposition papers fare no better,
as their Memorandum of Law in Opposition to Dejana’s Motion for
Summary Judgment barely contains citations to the record, despite
making numerous fact-intensive arguments.
Docket Entry 22-14.)
(See Defs.’ Opp. Br.,
Additionally, Jeffery Siler is the only
attorney who has entered an electronic notice of appearance on
behalf of Defendants.
Yet, Maria Massucci, an associate at Mr.
Siler’s law firm submitted her own affirmation in opposition to
Plaintiff’s motion for summary judgment.
Docket Entry 22.)
(See Massucci Affirm.,
Because counsel has not filed a notice of
appearance, the Court will not consider her affirmation.
But
even
if
counsel
had
affirmation is wholly inadmissible.
properly
appeared,
her
Unlike the typical attorney
affirmation, which simply attaches and identifies exhibits for the
Court,
counsel’s
affirmation
consists
entirely
of
factual
assertions and legal arguments regarding Defendants’ evidence.
This type of affirmation is improper and inadmissible for two
5
reasons.
First, Federal Rule of Civil Procedure 56(d) states that
“[a]n affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”
56(c)(4).
FED. R. CIV. P.
Counsel’s affirmation could not possibly be based on
personal knowledge because it is based entirely on counsel’s own
interpretation of the evidence in the record.
See Risco, 868 F.
Supp. 2d at 86 n.2 (stating that the attorney affiant “could not
possibly have personal knowledge of the matters discussed, as
evidenced by the fact that the affirmation--unlike counsel’s other
submissions--actually contains citations to the record”); see also
Little v. City of N.Y., 487 F. Supp. 2d 426, 433 n.2 (S.D.N.Y.
2007) (“The law is clear that an attorney’s affirmation that is
not based on personal knowledge of the relevant facts is to be
accorded no weight on a motion for summary judgment.”).
Second, under Local Civil Rule 7.1, legal argument must
be
set
forth
affirmation.
in
a
memorandum
of
law,
not
in
an
attorney
See LOCAL CIV. R. 7.1(a) (stating that all motions
“shall include . . . [a] memorandum of law, setting forth the cases
and other authorities relied upon in support of the motion” and
“[s]upporting affidavits and exhibits . . . containing any factual
information and portions of the record necessary for the decision
of the motion”); Baity, 2014 WL 5010513, at *2 (rejecting attorney
6
affirmation
based
upon,
inter
alia,
that
the
affirmation
improperly contained legal argument); Dell’s Maraschino Cherries
Co. v. Shoreline Fruit Growers, Inc., 887 F. Supp. 2d 459, 465 n.3
(E.D.N.Y. 2012) (“Placing legal argument in an affidavit is plainly
improper, and the Court will only consider the facts in the
affidavit that are based on . . . personal knowledge and admissible
in evidence.”).
Based on all of these deficiencies, particularly with
respect to Defendants’ 56.1 Statement, the Court would be well
within
its
authority
to
simply
disregard
Defendants’
56.1
Statement and accept Dejana’s stated facts as admissions to the
extent that those facts are supported by admissible evidence. See,
e.g., Topalian v. Hartford Life Ins. Co., 945 F. Supp. 2d 294, 299
n.2 (E.D.N.Y. 2013) (“To the extent that the parties have failed
to cite to admissible evidence in support of factual assertions in
their respective Rule 56.1 Statements and Responses, the court has
disregarded such unsupported factual assertions.”); Costello v.
N.Y. State Nurses Ass’n, 783 F. Supp. 2d 656, 661-62 n.5 (S.D.N.Y.
2011)
(disregarding
responses
in
a
litigant’s
56.1
counterstatement that “fail[ed] to refer to any evidence in the
record to support [the litigant’s] contention that certain facts
are disputed”).
However, “[a] district court has broad discretion
to determine whether to overlook a party’s failure to comply with
local court rules . . . .
[and] may in its discretion opt to
7
conduct an assiduous review of the record even where one of the
parties has failed to file such a statement.”
Holtz, 258 F.3d at
73 (internal quotation marks and citations omitted).
Here, the
Court will overlook counsel’s noncompliance because the Court
prefers to resolve cases on the merits and because the record in
this case is relatively small.
See Lopez v. Echebia, 693 F. Supp.
2d 381, 386 (S.D.N.Y. 2010) (excusing the defendant’s failure to
file a Rule 56.1 statement because “its absence [did not] create[
] difficulty for the court”).
Nonetheless, counsel should be
cognizant that these deficiencies have required the Court to parse
through the record to ensure that the arguments set forth in
Defendants’ memorandum of law receive adequate consideration.
In
the future, a failure to adhere to the applicable procedural rules
may not be treated with the same leniency.
The Court will now
turn to the evidence before it.
II.
Factual Background
Dejana is a company located in Port Washington, New York
that provides a variety of outdoor services to municipalities and
other commercial customers.
Starting in 2009, Dejana worked for
the Village as an independent contractor pursuant to two written
contracts--one for garbage collection and the other for cleaning
and maintaining the Village’s sewer system.
On January 28, 2010, following a public bidding process,
the Village’s Board of Trustees adopted a resolution awarding the
8
sewer cleaning contract to Dejana.2
20-4, Ex. B at 22-24.)
(Donnelly Decl., Docket Entry
The resolution stated that Dejana was “the
lowest responsible bidder” and that the term of the contract was
June 1, 2010 to May 31, 2015.
(Donnelly Decl. Ex. B at 22.)
Dejana and the Village formally executed the contract on April 1,
2010.
(Donnelly Decl. Ex. A, (the “Sewer Cleaning Contract”), at
2-20.)
The
contract
called
for
periodic
cleanings
and
inspections of the Village’s sewer system, specifically: (1) an
annual cleaning and inspection of all sewer lines, manholes, and
connectors; (2) periodic cleanings of certain manholes specified
in the contract; and (3) monthly chemical treatments of certain
sewer lines specified in the contract.
§ 6.)
(Sewer Cleaning Contract
The contract also called for emergency services and repair
work if necessary.
(Sewer Cleaning Contract § 12.)
Pursuant to
section 22 of the contract, the Village could terminate the
contract “by notice upon the occurrence” of any of the following
events:
a)
any breach of the agreements, warranties,
representations or covenants made by
[Dejana];
Under Section 103(1) of the New York General Municipal Law,
municipalities must use a competitive bidding process for the
award of “all contracts for public work involving an expenditure
of more than thirty-five thousand dollars.” N.Y. GEN. MUN. LAW
§ 103(1).
2
9
b)
[Dejana’s] failure to obtain or maintain
any
insurance
required
[under
the
contract] or the failure or refusal to
post [a] performance bond . . . ; [and]
c)
[Dejana’s]
continuing,
repeated
or
willful failure or refusal to perform the
services contracted for in a proper
manner in accordance with the terms and
provisions of [the contract] provided,
however, that [Dejana] shall have first
received written notice from the Village
advising [Dejana] of the specific act or
omissions alleged to constitute a failure
to perform the services contracted for in
a proper manner and such failure or
refusal continues after [Dejana] shall
have had five (5) days to correct the
acts or omissions giving rise to the
complaint of such failure or refusal or,
having corrected such acts or omissions,
identical or substantially similar acts
or omissions are committed by [Dejana].
(Sewer Cleaning Contract § 22.)
Plaintiff cleaned and inspected the Village’s sewer
system until July 27, 2012 when the Village terminated the contract
in writing.
Earlier that year, Giovanna Giunta was elected as the
Village’s new mayor, and Mark Lazorovic and Noelle Smith, two
members of Mayor Giunta’s political party, were elected as new
trustees to the Board of Trustees.
Entry 20-2, ¶ 13.)
(Peter Dejana Aff., Docket
According to Dejana’s President, Peter Dejana,
Dejana provided financial support and campaigned on behalf of
candidates that ran against Mayor Giunta and Trustees Lazorovic
10
and Smith in the 2012 elections.3
(Peter Dejana Aff. ¶ 12; Peter
Dejana’s 50-h Tr., Docket Entry 22-2, 27-28:24.)
The Village’s brief termination notice, dated July 27,
2012, came one day after the new administration’s first meeting of
the Board of Trustees.
(See Donnelly Decl. Exs. C, E.)
The notice
indicated that the Board of Trustees decided to discontinue using
an outside contractor to service the sewer system:
Pursuant to our e-mail correspondence on
Friday, July 27, 2012 and by this letter,
Dejana Industries, Inc. and Affiliates is to
immediately cease all chemical treatments and
jetting of the lines to the Village’s sewers.
The Village Board of Trustees has decided to
terminate
that
service
using
outside
contractors. Dejana Industries, or any other
outside third party vendor, will no longer
provide that service to the Village.
(Donnelly Decl. Ex. E.)
The notice did not invoke any of the
triggering events listed in paragraph 22 of the contract that would
permit the Village to terminate the contract, nor is there any
evidence in the record that the Village ever complained to Dejana
about its performance.
Later that summer, the Village’s summer
newsletter included a message from Mayor Giunta to the Village’s
residents
claiming
that
the
new
administration
created
“substantial savings” for the Village by, among other things,
“[e]liminat[ing] bacterial sewer treatment by Dejana Industries”
The candidates that ran against Mayor Giunta were John DiLeo,
who ran for mayor, and James Avena and Julian Patricio Aquilla,
who both ran for trustee positions. (Peter Dejana Aff. ¶ 12.)
3
11
and bringing that service “in house.”
(Donnelly Decl. Ex. G at
2.)
Dejana commenced this action on October 12, 2012 against
Mayor Giunta and the Village pursuant to 42 U.S.C. § 1983, alleging
that they terminated Dejana’s contract in retaliation for Dejana’s
support of the opponents of Mayor Giunta and Trustees Lazorovic
and Smith.
Thereafter, on April 18, 2013, the Village’s Board of
Trustees adopted a resolution proposed by Mayor Giunta to retain
an outside contractor, Port Plumbing, Inc., to clean the Village’s
sewer lines.
(Donnelly Decl. Ex. I at 16-17.)
According to Mayor
Guinta’s Board of Elections Disclosure Statement, Steven Blasucci
(“Blasucci”),
the
owner
of
Port
Plumbing,
contribution to Mayor Giunta’s campaign.
made
a
financial
(Donnelly Decl. Ex. J at
23.)
On April 26, 2013, eight days after retaining Port
Plumbing, the Village sent Dejana a letter advising that the
Village would “not renew” Dejana’s other contract for garbage
collection.
(Donnelly Decl. Ex. L.)
According to the Village’s
letter, that contract was set to expire on May 31, 2013. (Donnelly
Decl. Ex. L.)
However, section 2 of that contract clearly states
that the contract term was “for the period commencing June 1, 2009
and ending May 31, 2014 (as per the option approved by the Board
of Trustees).”
(Donnelly Decl. Ex. K § 2.)
By letter dated April
30, 2013, Dejana alerted the Village that the contract was actually
12
set to expire a year later, on May 31, 2014.
M.)
(Donnelly Decl. Ex.
According to Peter Dejana, “this oversight has not been
acknowledged by the Village” and Dejana has not performed any
garbage collection services for the Village since May 31, 2013.
(Peter Dejana Aff. ¶ 19 (capitalization omitted).)
This action then continued with discovery, and Dejana
filed its motion for partial summary judgment as to liability on
April 30, 2014.
(Docket Entry 20.)
In opposition, Defendants
filed affidavits from Mayor Giunta and Blasucci. In her affidavit,
Mayor Giunta claims that the Village decided to terminate Dejana’s
sewer cleaning contract not because of Dejana’s support of Mayor
Giunta’s
political
dissatisfied
with
opponents,
Dejana’s
but
services
because
and
the
because
Village
Mayor
was
Giunta
witnessed a Dejana truck dumping raw sewage into Manhasset Bay.
(See generally Giunta Aff., Docket Entry 22-4.)
Mayor Giunta also
claims that the Village intended to have its own employees maintain
the sewer system in place of Dejana but that this eventually proved
to be “not practical or feasible both financially and in staffing.”
(Giunta Aff. ¶¶ 12-13.)
In his affidavit, Blasucci claims that
after the Village retained Port Plumbing to clean the sewers, he
inspected “numerous sewer lines” and, based on their conditions,
concluded that “many of the manholes and lines had been neglected
for many years.”
(Blasucci Aff., Docket Entry 22-5 ¶ 5.)
13
DISCUSSION
The Court will first set forth the applicable legal
standards before turning to Dejana’s motion more specifically.
I.
Legal Standard
Summary judgment is appropriate where “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
FED. R. CIV.
P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986).
“In assessing the record to determine whether there is a
genuine issue to be tried as to any material fact, the court is
required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought.”
McLee v. Chrysler Corp., 109 F.3d 130, 134
(2d Cir. 1997).
“The burden of showing the absence of any genuine dispute
as to a material fact rests on the party seeking summary judgment.”
Id.; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90
S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
A genuine factual issue
exists if “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”
To
defeat
summary
judgment,
“the
Anderson, 477 U.S. at 248.
non-movant
must
‘set
forth
specific facts showing that there is a genuine issue for trial.’”
14
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)
(quoting Anderson, 477 U.S. at 256).
“[M]ere speculation or
conjecture as to the true nature of the facts” will not overcome
a motion for summary judgment.
Knight v. U.S. Fire Ins. Co., 804
F.2d 9, 12 (2d Cir. 1986); see also Williams v. Smith, 781 F.2d
319, 323 (2d Cir. 1986) (“Mere conclusory allegations or denials
will not suffice.” (citation omitted)); Weinstock, 224 F.3d at 41
(“[U]nsupported allegations do not create a material issue of
fact.”).
II.
First Amendment Retaliation
As noted, Dejana alleges that Mayor Giunta and the
Village terminated its sewer cleaning contract in retaliation for
Dejana
exercising
its
First
Amendment
rights
to
affiliate with Mayor Giunta’s political opponents.4
support
and
Dejana argues
that summary judgment in its favor is warranted on this claim
largely
based
on
circumstantial
evidence
tending
to
retaliatory motive behind the termination of the contract.
show
(Pl.’s
In Peter Dejana’s affidavit in support of Dejana’s motion,
Dejana clearly claims that Defendants also prematurely
terminated Dejana’s garbage disposal contract. (Peter Dejana
Aff. ¶ 19.) This appears to be a valid claim. The Village
informed Dejana that it would “not renew” the garbage disposal
contract after May 31, 2013, notwithstanding the fact the
contract clearly states that the term of the contract lasted an
additional year--until May 31, 2014. Nonetheless, Dejana’s
memorandum of law makes no mention of the garbage disposal
contract, nor has Dejana ever moved to amend its complaint to
assert a claim based on the termination of the garbage disposal
contract. The Court will therefore not consider any such claim.
4
15
a
Br., Docket Entry 20-9, at 6-11.) As discussed below, while Dejana
presents a compelling case, there are disputed issues of material
fact regarding Defendants’ motive that preclude summary judgment
in Dejana’s favor.
A.
Applicable Law
It is well settled that “[a] State may not condition
public employment on an employee’s exercise of his or her First
Amendment rights.”
O’Hare Truck Serv., Inc. v. City of Northlake,
518 U.S. 712, 717, 116 S. Ct. 2353, 2356, 135 L. Ed. 2d 874 (1996).
Government
employees
are
constitutionally
protected
from
termination based on their support or association with a particular
political
party,
unless
“party
affiliation
is
an
appropriate
requirement for the effective performance of the public office
involved.”
Branti v. Finkel, 445 U.S. 507, 518, 100 S. Ct. 1287,
1295, 63 L. Ed. 2d 574 (1980); accord Elrod v. Burns, 427 U.S.
347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976).
also
“protects
a
public
employee’s
The First Amendment
right,
in
certain
circumstances, to speak as a citizen addressing matters of public
concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct.
1951, 1957, 164 L. Ed. 2d 689 (2006) (citing Pickering v. Bd. of
Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)).
Dejana is not a government employee.
independent
government
contractor,
it
enjoys
However, as an
the
same
First
Amendment protections as a government employee. In Board of County
16
Commissioners v. Umbehr, 518 U.S. 668, 673-74, 116 S. Ct. 2342,
2346, 135 L. Ed. 2d 843 (1996), the Supreme Court “considered
whether, and to what extent, the First Amendment restricts the
freedom of federal, state, or local governments to terminate their
relationships
contractors’
government
with
independent
speech.”
There,
contractor,
contractors
the
alleged
because
plaintiff,
that
the
an
of
the
independent
board
of
county
commissioners terminated his trash hauling contract in retaliation
for his public criticism of the county and the board.
The Court
held that there was no “difference of constitutional magnitude
between independent contractors and employees in this context,”
id. at 684, 116 S. Ct. at 2352 (internal quotation marks and
citation
omitted),
government
employee
and
“extended
retaliation
the
to
existing
independent
framework
for
contractors,
thereby blotting out any meaningful distinction between the two
for First Amendment retaliation purposes,” Golodner v. Berliner,
770 F.3d 196, 207 (2d Cir. 2014) (citing Umbehr, 514 U.S. at 67785, 116 S. Ct. at 2348-52). That framework, known as the Pickering
balancing approach, calls for a “balance between the interests of
the [employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its
employees.”
Pickering, 391 U.S. at 568, 88 S. Ct. at 1734-35.
17
In a companion case issued that same day, O’Hare Truck
Serv., Inc. v. City of Northlake, 518 U.S. 712, 714, 116 S. Ct.
2353, 2355, 135 L. Ed. 2d 874 (1996), the Supreme Court also
decided
whether
termination
independent
based
on
contractors
their
“political
expression of political allegiance.”
are
protected
association
or
from
the
There, the plaintiff, a
towing company, was removed from the city’s rotation list of
available towing companies, allegedly for refusing to contribute
to the mayor’s reelection campaign and instead supporting the
campaign
of
the
mayor’s
opponent.
The
Court
held
that
the
protections of its prior political affiliation cases, Elrod and
Branti, extended to cases “where government retaliates against a
contractor
.
.
.
for
the
exercises
of
rights
of
political
association or the expression of political allegiance.”
Id. at
714-15, 116 S. Ct. at 2355.
However, the O’Hare Court did not answer whether the
plaintiff’s claim should be governed by the Pickering balancing
approach, which applies to speech, or the less detailed inquiry
required by the Elrod/Branti line of cases, which simply asks
whether
“political
affiliation
is
a
requirement for the job in question.”
2355.
reasonably
appropriate
Id. at 714, 116 S. Ct. at
Instead, the Court observed that the Pickering balancing
approach
might
contractors
be
because
preferred
it
in
“allow[s]
18
cases
the
brought
courts
by
to
independent
consider
the
necessity of according to the government the discretion it requires
in the administration and awarding of contracts over the whole
range of public works and the delivery of governmental services.”
Id. at 719-20, 116 S. Ct. at 2358.
The Court also observed that
the Pickering approach would accommodate cases “where specific
instances of . . . speech or expression . . . are intermixed with
a political affiliation requirement.”
Id. at 719, 116 S. Ct. at
2358.
Here, based on its memorandum of law, Dejana appears to
contend that this is an affiliation case.
(See Pl.’s Br. at 7
(“Unquestionably, ‘political affiliation or support’ constitutes
conduct that is constitutionally protected.”)
However, there is
evidence in the record that Dejana campaigned on behalf of Mayor
Giunta’s opponents, which could be reasonably construed as speech.
(See Peter Dejana 50-h Tr. at 27-28:24.)
Accordingly, the Court
finds that the Pickering balancing approach is appropriate here
because
this
case
involves
speech
intermixed
with
political
affiliation and “because of the interests involved in governmental
contracting.”
Savoy of Newburgh, Inc. v. City of Newburgh, 657 F.
Supp. 2d 437, 444-45 (S.D.N.Y. 2009) (applying the Pickering
balancing approach because there was “evidence suggest[ing] that
any retaliation . . . was a product both of [political] affiliation
and . . . support for specific candidates”).
19
Before
the
balancing
test
is
reached,
however,
an
independent contractor asserting a First Amendment retaliation
claim under Section 1983 must “show that the termination of his
contract was motivated by his speech on a matter of public concern,
an initial showing that requires him to prove more than the mere
fact that he criticized the [defendants] before they terminated
him.”
Umbehr, 518 U.S. at 685, 116 S. Ct. at 2352; see also
Safepath Sys. LLC v. N.Y. City Dep’t of Educ., 563 F. App’x 851,
856 (2d Cir. 2014) (summary order) (“To make out a First Amendment
retaliation claim, [an independent contractor] must demonstrate
that (1) his speech addressed a matter of public concern, (2) he
suffered an adverse employment action, and (3) a causal connection
existed between the speech and the adverse employment action, so
that it can be said that his speech was a motivating factor in the
determination.” (internal quotation marks and citation omitted)).
If the plaintiff makes out a prima facie case, the defendant “will
have a valid defense if it can show, by a preponderance of the
evidence, that, in light of [its] knowledge, perceptions, and
policies at the time of the termination, [it] would have terminated
the contract regardless of [the independent contractor’s] speech.”
Umbehr, 518 U.S. at 685, 116 S. Ct. at 2352; accord Savoy, 657 F.
Supp. 2d at 445 (“If a plaintiff establishes [a prima facie case],
the defendant has the opportunity to show by a preponderance of
the evidence that it would have taken the same adverse action even
20
in the absence of the protected conduct.” (internal quotation marks
and citation omitted)).
B.
Application
Here, Defendants do not dispute that the conduct at
issue--i.e., Dejana’s right to affiliate with or campaign on behalf
of Mayor Giunta’s opponents--is protected by the First Amendment.
However, as a threshold matter, Defendants argue that Dejana’s
claim fails as a matter of law because “[b]reach of contract alone
is not a protected property interest that would give rise to a
constitutional claim.”
easily
dismissed.
(Defs.’ Opp. Br. at 1.)
Under
the
This argument is
“unconstitutional
conditions”
doctrine, the government “‘may not deny a benefit to a person on
a basis that infringes his constitutionally protected . . . freedom
of speech’ even if he has no entitlement to that benefit.” Umbehr,
518 U.S. at 674, 116 S. Ct. at 2347 (ellipsis in original) (quoting
Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 2697, 33
L. Ed. 2d 570 (1972)); accord Safepath, 563 F. App’x 851 at 85657
(applying
“unconstitutional
conditions”
doctrine
to
First
Amendment retaliation claim brought by independent contractor).
Thus, Dejana may assert a First Amendment retaliation claim based
on the termination of its contract.
Nonetheless, Dejana’s motion for summary judgment must
be denied because Defendants have raised triable issues of fact
with
respect
to
Defendants’
motive
21
for
terminating
Dejana’s
contract.
Specifically, Mayor Giunta claims in her affidavit that
the Village terminated Dejana’s contract not because of its support
for her political opponents, but because Dejana dumped raw sewage
into Manhasset Bay and because the Village was not satisfied with
Dejana’s performance under the contract.
Aff.)
(See generally Giunta
To be sure, Dejana has presented a significant amount of
circumstantial evidence in its favor, and it is peculiar that the
Village’s July 27, 2012 termination notice did not cite Dejana’s
allegedly inadequate performance or dumping of raw sewage as
grounds for termination.5
Even more suspicious is that the Village
In their opposition brief, Defendants appear to request summary
judgment on Dejana’s First Amendment claim. (See, e.g., Defs.’
Opp. Br. at 3 (“Plaintiff’s claims for violation of its freedom
of association should be dismissed.”) Defendants have not filed
a formal motion for summary judgment. However, the failure to
file a formal motion does not, in and of itself, prevent the
Court from rendering summary judgment in Defendants’ favor:
5
Moving for summary judgment is not without its
risks to the moving party. A motion for
summary judgment searches the record, and it
is well settled that if such a search reveals
that there are no genuine issues of material
fact, but that the law is on the side of the
non-moving party, then summary judgment may be
rendered in favor of the opposing party even
though he has made no formal cross-motion
under Rule 56.
Montgomery v. Scott, 802 F. Supp. 930, 935 (W.D.N.Y. 1992)
(internal quotation marks and citations omitted) (emphasis in
original). The Court has considered whether summary judgment
against Dejana is appropriate. It is not. Dejana has produced
more than enough evidence to support a jury verdict in its
favor.
22
advised Dejana that it was terminating the contract so that it
could bring the sewer cleaning service in house, but less than a
year later, it retained Port Plumbing, an independent contractor
whose president contributed to Mayor Giunta’s campaign.
These
facts, as well as Dejana’s other evidence, renders Mayor Giunta’s
testimony somewhat unbelievable.
However, on a motion for summary
judgment, the Court “is not to weigh the evidence but is instead
required to view the evidence in the light most favorable to the
party opposing summary judgment, to draw all reasonable inferences
in favor of that party, and to eschew credibility assessments.”
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.
2004) (internal quotation marks and citation omitted).
Based on
Mayor Giunta’s testimony, a reasonable juror could find that the
termination of Dejana’s contract was not based on its support of
Mayor
Giunta’s
opponents.
Accordingly,
Dejana’s
motion
for
summary judgment on its First Amendment retaliation claim is
DENIED.
III. Breach of Contract
Dejana also asserts a breach of contract claim against
the Village for terminating the sewer cleaning contract.
Dejana
argues that summary judgment on this claim is warranted because it
did not violate the contract, and therefore, did not trigger the
contract’s termination provision.
(Pl.’s Br. at 14-15.)
Dejana
alternatively argues that, even if it did violate the contract,
23
the Village failed to provide Dejana with proper notice and an
opportunity to cure, thus rendering the Village’s termination
notice invalid.
(Pl.’s Br. at 14-15.)
As discussed below, Dejana
has not demonstrated an absence of disputed issues of fact with
respect to whether it violated the contract.
Moreover, the Court
also finds that the contract is ambiguous regarding whether the
Village was obliged to provide Dejana with an opportunity to cure
its
alleged
violations,
thus
precluding
summary
judgment
in
Dejana’s favor.
A.
Legal Standard
“The primary objective in contract interpretation is to
give effect to the intent of the contracting parties ‘as revealed
by the language they chose to use.’”
Sayers v. Rochester Tel.
Corp. Supplemental Mgmt. Pension Plan, 7 F.3d 1091, 1094 (2d Cir.
1993) (quoting Seiden Assocs. v. ANC Holdings, Inc., 959 F.2d 425,
428 (2d Cir. 1992)).
“The proper interpretation of an unambiguous
contract is a question of law for the court, and a dispute on such
an issue may properly be resolved by summary judgment.”
Omni
Quartz, Ltd. v. CVS Corp., 287 F.3d 61, 64 (2d Cir. 2002).
“However, when the meaning of the contract is ambiguous and the
intent of the parties becomes a matter of inquiry, a question of
fact is presented which cannot be resolved on a motion for summary
judgment.”
LaSalle Bank Nat. Ass’n v. Nomura Asset Capital Corp.,
24
424 F.3d 195, 205 (2d Cir. 2005) (internal quotation marks and
citation omitted).
“Contract language is ambiguous if it is capable of more
than
one
meaning
when
viewed
objectively
by
a
reasonably
intelligent person who has examined the context of the entire
integrated
agreement
and
who
is
cognizant
of
the
customs,
practices, usages and terminology as generally understood in the
particular trade or business.”
Sayers, 7 F.3d at 1095 (internal
quotation marks and citation omitted).
On the other hand, “[n]o
ambiguity exists when contract language has a definite and precise
meaning, unattended by danger of misconception in the purport of
the [contract] itself, and concerning which there is no reasonable
basis for a difference of opinion.”
original)
(internal
quotation
Id. (second alteration in
marks
and
citation
omitted).
“Whether a contractual provision is ambiguous is a threshold
question
of
law
to
be
determined
by
the
court.
If
a
court
determines that a contractual provision is ambiguous, the court
may accept any available extrinsic evidence to ascertain the
meaning intended by the parties during the formation of the
contract.”
Sea Tow Servs. Int’l, Inc. v. Pontin, 607 F. Supp. 2d
378, 386 (E.D.N.Y. 2009) (internal quotation marks and citation
omitted).
25
B.
Application
Section 22 of the contract sets forth the circumstances
under which the Village may terminate the contract.
It states, in
relevant part:
The Village shall have the right, at its sole
option, . . . to terminate this Agreement by
notice upon the occurrence of any of the
following events without any further or other
obligation on the part of the Village.
a)
any breach of the agreements, warranties,
representations or covenants made by
[Dejana];
. . .
c)
[Dejana’s]
continuing,
repeated
or
willful failure or refusal to perform the
services contracted for in a proper
manner in accordance with the terms and
provisions of [the contract] provided,
however, that [Dejana] shall have first
received written notice from the Village
advising [Dejana] of the specific acts or
omissions alleged to constitute a failure
to perform the services contracted for in
a proper manner and such failure or
refusal continues after [Dejana] shall
have had five (5) days to correct the
acts or omissions giving rise to the
complaint of such failure or refusal or,
having corrected such acts or omissions,
identical or substantially similar acts
or omissions are committed by [Dejana].
(Sewer Cleaning Contract § 22.)
As an initial matter, Dejana first argues that summary
judgment in its favor is warranted because “the record is devoid
of any suggestion, let alone evidence, that Dejana failed ‘to
26
perform services contracted for in a proper manner.’”
(Pl.’s Br.
at 15 (capitalization omitted) (quoting Sewer Cleaning Contract
§ 22).)
In other words, because it did not violate the contract,
Dejana contends, the Village had no right to terminate the contract
pursuant to the termination provision.
However, there is evidence
in the record to support a reasonable juror’s conclusion that
Dejana breached and/or failed “to perform the services contracted
for in a proper manner,” as required under section 22(c) of the
contract.
As noted, Mayor Giunta claims that Dejana dumped raw
sewage into Manhasset Bay6 and failed to “properly maintain[ ]”
the sewer lines, “as evidenced by an unacceptable number of
emergency responses for grease buildup in the sewer lines in a 0.6
mile radius.”7
(Giunta Aff. ¶¶ 5, 7.)
Moreover, Port Plumbing
president claims in his affidavit that his inspection of the
Village’s sewer lines led him to believe that certain portions of
Section 14 of the contract requires Dejana to comply with the
Clean Water Act and section 15 states that Dejana “shall conform
to all applicable governmental laws and regulations . . . .”
(Sewer Cleaning Contract §§ 14-15.) Dejana does not dispute
Defendants’ contention that dumping raw sewage into Manhasset
Bay is illegal; it simply disputes that it ever dumped raw
sewage.
6
Mayor Giunta also alleges that Dejana violated the contract
because it “was not performing proper maintenance services to
the Manorhaven pump station.” (Giunta Aff. ¶ 9.) However, the
contract lists the specific locations Dejana was required to
service and/or clean and the Manorhaven pump station is not one
of them. Thus, this allegation may not serve as a basis for the
Village’s contention that Dejana breached the contract.
7
27
the sewer system “had been neglected” or “had not been serviced or
cleaned” for many years.
(Blasucci Aff. ¶¶ 5, 7.)
Having concluded that there are issues of fact as to
whether Dejana violated the contract, the Court must decide whether
the Village complied with the contract’s termination provision.
There is no dispute that the Village failed to give Dejana notice
and opportunity to cure its alleged violations of the contract.
However, the termination provision is ambiguous as to whether the
Village
was
Subsection
obligated
(c)
of
to
the
provide
termination
an
opportunity
provision
to
states
cure.
that
a
termination of the contract is effective only if the Village first
provides a five-day opportunity to cure the “acts or omissions
giving rise to [a] complaint of [a] failure or refusal” “to perform
the services contracted for in a proper manner in accordance with
the terms and provision of [the contract].”
Contract
§
22(c).)
However,
subsection
(Sewer Cleaning
(a)
of
termination
provision states that the Village may terminate the contract by
simply giving “notice upon the occurrence of . . . any breach of
the agreements, warranties, representations or covenants made by
[Dejana].”
(Sewer Cleaning Contract § 22(a).)
In contrast to
subsection (c), subsection (a) does not require an opportunity to
cure.
Dejana’s
reasonably
alleged
construed
as
violations
“breach[es]”
of
the
under
contract
can
be
subsection
(a)
or
“failure[s] to perform the services contracted for in a proper
28
manner
in
accordance
contract].”
with
the
terms
and
provision
of
[the
Thus, the termination provision is ambiguous as
applied to the facts of this case, and neither side has presented
extrinsic evidence to resolve this issue.
Accordingly, Dejana’s
motion for summary judgment on its breach of contract claim is
DENIED.
CONCLUSION
For the foregoing reasons, Dejana’s motion for summary
judgment (Docket Entry 20) is DENIED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
March
18 , 2015
Central Islip, New York
29
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