Dodson v. Board of Education of the Valley Stream Union Free School District et al
Filing
33
MEMORANDUM & ORDER granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim; denying 22 Motion for Extension of Time to File. For the foregoing reasons, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART and Plaintiff's cross-motion to file a late notice of claim is DENIED. Plaintiff's procedural due process and state law claims are DISMISSED WITH PREJUDICE. Plaintiff's substantive due process claim remains. So Ordered by Judge Joanna Seybert on 8/25/2014. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
DANA R. DODSON,
Plaintiff,
-against-
MEMORANDUM & ORDER
14-CV-0116(JS)(AKT)
BOARD OF EDUCATION OF THE VALLEY
STREAM UNION FREE SCHOOL DISTRICT
and THE VALLEY STREAM CENTRAL HIGH
SCHOOL DISTRICT,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Laura M. Dilimetin, Esq.
The Law Office of Steven A. Morelli
1461 Franklin Ave.
Garden City, NY 11530
For Defendants:
Caroline Beth Lineen, Esq.
Rutherford & Christie LLP
369 Lexington Avenue, 8th Floor
New York, NY 10017
SEYBERT, District Judge:
Plaintiff Dana R. Dodson (“Plaintiff”) commenced this
action against defendants the Board of Education of the Valley
Stream Union Free School District (the “Valley Stream School
Board”) and the Valley Stream Central High School District (the
“Valley Stream School District” and together with the Board,
“Defendants”) following his resignation as a gym teacher for the
Valley Stream School District.
Plaintiff principally contends
that Defendants deprived him of his procedural and substantive due
process rights under the Fourteenth Amendment of the United States
Constitution
disciplinary
because
hearing
his
did
resignation
not
precede
was
the
coerced
and
resignation.
a
The
Complaint also asserts New York state law claims for fraudulent
misrepresentation, defamation, and prima facie tort.
Defendants move to dismiss the entire Complaint for
failure
to
state
a
claim
pursuant
to
Federal
Rule
of
Civil
Procedure 12(b)(6) and for improper service of process pursuant to
Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5). Defendants
also move to dismiss the state law claims on the grounds that
Plaintiff failed to serve a timely notice of claim as required by
New York Education Law § 3813(1) and that certain claims are barred
by the applicable statute of limitations.
Plaintiff has filed a
cross-motion for leave to file a late notice of claim.
For the
following reasons, Defendants’ motion is GRANTED IN PART and DENIED
IN PART and Plaintiff’s cross-motion is DENIED.
BACKGROUND1
I.
Factual Background
Plaintiff worked as teacher for the District from 2001
until his resignation on September 21, 2012.
(Compl. ¶¶ 11, 33.)
On June 13, 2012, the District issued thirty-three disciplinary
charges against Plaintiff pursuant to New York Education Law
The following facts are taken from the Complaint and are
presumed to be true for the purposes of this Memorandum and
Order.
1
2
§ 3020-a2 for his alleged improper conduct towards a female high
school student.
(Compl. ¶ 19.)
The District contended that
Plaintiff acted improperly by hiring the student as his family’s
babysitter and by sending her inappropriate text messages. (Compl.
¶ 19.)
Plaintiff denied all wrongdoing and claimed that the
student only complained to the District about his text messages
because he refused to sign a permission slip that would have
excused the student from cutting another teacher’s class.
(Compl.
¶ 20.)
On
September
21,
2012,
Plaintiff
entered
into
a
“Stipulation of Settlement and General Release” resolving the
disciplinary charges against him (the “Agreement”). (Compl. ¶ 33.)
Under the terms of the Agreement, Plaintiff resigned from his
position and waived his right to a disciplinary hearing guaranteed
to tenured teachers under New York Education Law § 3020-a(2)(c).3
(Compl. ¶¶ 23-24.)
general
release
Among other things, the Agreement contains a
clause
and
a
general
agreement
not
to
sue
Section 3020-a sets forth the disciplinary procedures for
tenured teachers in the State of New York.
2
Section 3020-a(2)(c) provides that the teacher “shall notify
the clerk or secretary of the employing board in writing whether
he or she desires a hearing on the charges” within ten days of
receipt of the statement of charges. N.Y. EDUC. LAW § 3020a(2)(c). The Court notes that the Complaint does not actually
allege that Plaintiff was a tenured teacher. However,
Defendants admit that Plaintiff was entitled to a hearing under
§ 3020-a(2)(c). (Defs.’ Br., Docket Entry 12, at 4.) The Court
therefore assumes that Plaintiff was tenured.
3
3
Defendants.4
(See Sealed Silverman Decl., Docket Entry 25, Ex D
¶¶ 5, 7.5)
Plaintiff claims that the Agreement is invalid because
it is the product of fraudulent inducement and coercion. Plaintiff
specifically alleges that “Defendants misled [him] into believing
that: (1) he would be terminated if he did not sign the waiver;
(2) he could go to jail if he did not sign the waiver; (3) he would
be subject to additional disciplinary charges if he did not sign
The Court may consider the terms of the Agreement because it is
incorporated by reference in the Complaint. See TufAmerica,
Inc. v. Orchard Enters., Inc., No. 11-CV-1816, 2011 WL 4946663,
at *4 (S.D.N.Y. Oct. 14, 2011) (“Because the [agreement] is
referenced repeatedly in the Complaint, it is incorporated by
reference and I will consider it in deciding this motion to
dismiss.” (citing Chambers v. Time Warner, Inc., 282 F.3d 147,
153–53 n. 4 (2d Cir. 2002))).
4
The Agreement contains a confidentiality provision. On
February 19, 2014, in connection with the filing of their motion
to dismiss, Defendants also requested to file the Agreement
under seal, as well as the transcript of Plaintiff’s 50-h
testimony, so as not to violate the confidentiality provision of
the Agreement. (Docket Entry 15.) The Court previously granted
the request to file under seal but has now reviewed the
Agreement in rendering its decision herein. It is well-settled
that “[t]he public has a common law presumptive right of access
to judicial documents and likely a constitutional one as well.”
Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 (2d Cir. 2005).
Moreover, the “presumptive right to public observation is at its
apogee when asserted with respect to documents relating to
matters that directly affect an adjudication.” Id. Here, the
Agreement directly relates to the adjudication of this matter
and should not remain under seal absent compelling reasons.
Accordingly, the Court will direct the Clerk of the Court to
unseal the Agreement and the 50-h transcript unless either party
presents compelling reasons for these documents remaining under
seal within seven (7) days of the entry of this Memorandum and
Order.
5
4
the waiver or if he revoked the waiver; and (4) that if he signed
the waiver, he would retain his teaching license.”
(Compl. ¶ 34.)
The
these
Complaint
does
not
explain
how
any
of
alleged
misrepresentations were false, nor does it identify the speaker or
speakers, but it does allege that “Plaintiff has since been served
with license revocation charges and now has a hearing Ordered [sic]
for license revocation.”
(Compl. ¶ 36.)
The Complaint also contains allegations suggesting that
Plaintiff signed the Agreement under duress and that he did not
fully
understand
the
terms
of
the
Agreement.
For
example,
Plaintiff alleges that Defendants made the misrepresentations
listed above “all the while knowing that [Plaintiff] was suffering
from [Diverticulitis] and was taking medication which impaired his
judgment.”
(Compl.
¶
34.)
Plaintiff
further
alleges
that
“Defendants intentionally spread false rumors about him to school
officials in other Districts to put further pressure on him, and
to ensure that he could not obtain other employment.”
¶ 34.)
(Compl.
Additionally, the Superintendent of the Valley Stream
School District “told [Plaintiff] that he ‘needed’ to sign the
waiver and that he did not want this to ‘go public.’”
¶ 25.)
(Compl.
The Superintendent further “made false statements about
Plaintiff” to teachers, staff, and others in and outside of the
Valley Stream School District “in efforts [sic] to put pressure on
Plaintiff to sign the waiver.”
(Compl. ¶ 27.)
5
Defendants also
“expressed to Plaintiff that if he did not sign the waiver, the
District
would
proffer
new,
additional
charges”
against
him.
(Compl. ¶ 29.)
Finally, Plaintiff claims that “an attorney from the
Union advised [him] that he should walk away” and that his teaching
license “would not be affected” if he signed the Release.
¶ 22.)
(Compl.
He alleges that the attorney “did not go over all of the
terms of the agreement” and that he “works with the District on a
continual basis.”
II.
(Compl. ¶¶ 22-23.)
Procedural Background
On June 18, 2013, Plaintiff served Defendants with a
notice of claim pursuant to New York Education Law § 3813(1).
(Silverman Decl. Ex. B.)
On December 9, 2013, Plaintiff commenced
this action by filing a Summons and Complaint in New York State
Supreme Court, Nassau County.
action to this Court.
Defendants subsequently removed the
On February 14, 2014, Defendants moved to
dismiss the Complaint.
(Docket Entry 10.)
On March 20, 2014,
Plaintiff cross-moved for leave to file a late notice of claim.
(Docket Entry 22.)
These motions are currently pending before the
Court.
DISCUSSION
The
Court
will
first
address
the
applicable
legal
standards before turning to the merits of the parties’ motions.
6
I.
Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court
applies a “plausibility standard,” which is guided by “[t]wo
working principles.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007);
accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009).
First,
although the Court must accept all allegations as true, this
“tenet”
is
“inapplicable
to
legal
conclusions;”
thus,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678; accord Harris, 572 F.3d at 72.
Iqbal,
Second, only
complaints that state a “plausible claim for relief” can survive
a Rule 12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679.
Determining whether a complaint does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”
Id.; accord Harris, 572 F.3d at 72.
The Court is confined to “the allegations contained
within the four corners of [the] complaint.”
Pani v. Empire Blue
Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998).
However, this
has been interpreted broadly to include any document attached to
the complaint, any statements or documents incorporated in the
complaint by reference, any document on which the complaint heavily
relies, and anything of which judicial notice may be taken.
7
See
Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002)
(citations omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773
(2d Cir. 1991).
II.
Service of Process
As
an
initial
matter,
Defendants
argue
that
the
Complaint should be dismissed in its entirety for insufficient
service of process.
Defendants specifically claim that Plaintiff
failed to properly serve them because he only forwarded a copy of
the Summons and Complaint to the Valley Stream School District’s
general counsel, who was not authorized to accept service. (Defs.’
Br., Docket Entry 12, at 18-19.)
Plaintiff counters that he
properly served Defendants by leaving the Summons and Complaint
with Thomas Troisi and Mary Colgan, who, according to affidavits
of service, were “willing to accept service for all parties.”
(Pl.’s Br., Docket Entry 21, at 25; Dilimentin Decl., Docket Entry
21-1, Exs. E & F.)
Defendants do not address these affidavits on
reply and they appear to withdraw the improper service defense
because it is no longer as one of the grounds for dismissal in
their reply papers.
¶ 3.)
(See Silverman Supp. Decl., Docket Entry 24,
Accordingly, the Court finds, based on the affidavits of
service produced by Plaintiff and Defendants’ apparent withdrawal
of the defense, that Plaintiff properly served Defendants with the
Summons and Complaint. Defendants’ motion to dismiss the Complaint
based on improper service is therefore DENIED.
8
III. Constitutional Claims
Plaintiff claims that Defendants are liable under 42
U.S.C. § 1983 for violating his constitutional rights to procedural
and substantive due process when they coerced his resignation and
waiver of a disciplinary hearing under New York Education Law
§ 3020-a(2)(c).
(Compl. ¶ 46.)
Defendants argue that dismissal
of these constitutional claims is appropriate because: (1) the
waiver and release clauses in the Agreement bar Plaintiff from
suing Defendants for all claims based on conduct predating the
Agreement; and (2) Plaintiff has failed to adequately allege
municipal liability under § 1983 against the Valley Stream School
District.
As explained below, these are inadequate grounds for
dismissal of Plaintiff’s due process claims.
However, the Court
sua sponte DISMISSES Plaintiff’s procedural due process claim
because it is frivolous.
A.
Waiver
Defendants first argue that the Court should dismiss
Plaintiff’s due process claims because he waived his right to
assert them when he signed the Agreement resolving the disciplinary
charges against him.
(Def.’s Br. at 7-14.)
Plaintiff does not
dispute that his constitutional claims fall within the scope of
the waiver and release clauses of the Agreement. Rather, he argues
that his waiver was not effective because it was not knowing and
voluntary.
(Pl.’s Br. at 7-14.)
9
As discussed below, the Court
finds that it cannot, at this stage of the litigation, determine
whether Plaintiff waived his constitutional claims.
“[C]onstitutional rights may be waived upon clear and
convincing evidence that the waiver is knowing, voluntary, and
intelligent.”6
Intermor v. Inc. Vill. of Malverne, No. 03-CV-
5164, 2007 WL 2288065, at *8 (E.D.N.Y. Aug. 8, 2007) (emphasis
added) (citing D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185,
92 S. Ct. 775, 782, 31 L. Ed. 2d 124 (1972)); see also Doe v.
Marsh, 105 F.3d 106, 111 (2d Cir. 1997).
However, “[w]aiver of
federal remedial rights such as an action under 42 U.S.C. § 1983
will not be lightly inferred, and courts ‘must indulge every
reasonable presumption against waiver.’”
Murray v. Town of N.
Hempstead, 853 F. Supp. 2d 247, 259 (E.D.N.Y. 2012) (quoting Legal
Aid Soc’y, 114 F. Supp. 2d at 226-27 (S.D.N.Y. 2000)).
In determining whether a waiver of constitutional claims
is knowing and voluntary, some courts in this Circuit have applied
the six-factor, “totality of the circumstances” test enunciated by
the Second Circuit in Bormann v. AT&T Communications, Inc., 875
F.2d 399 (2d Cir. 1989), a case involving waiver of statutory
To determine whether Plaintiff waived constitutional claims
under § 1983, the Court looks to federal law, not New York state
law, because “‘the question of a waiver of a federally
guaranteed constitutional right is, of course, a federal
question controlled by federal law.’” Legal Aid Soc’y v. City
of N.Y., 114 F. Supp. 2d 204, 226 (S.D.N.Y. 2000) (quoting
Brookhart v. Janis, 384 U.S. 1, 4, 86 S. Ct. 1245, 1247, 16 L.
Ed. 2d 314 (1966)).
6
10
claims under the Age Discrimination in Employment Act.
See, e.g.,
LaRue v. N.Y. City Off-Track Betting Corp., No. 03-CV-0783, 2004
WL 2793195, at *7-8 (S.D.N.Y. Dec. 6, 2004); Kwok v. N.Y. City
Transit Auth., No. 99-CV-2281, 2001 WL 829876, at *5 (S.D.N.Y.
July
23,
2001).
circumstances
Other
surrounding
particular factors or test.
courts
the
have
waiver
simply
scrutinized
the
without
identifying
any
See, e.g., Murray, 853 F. Supp. 2d at
259-61; Intermor, 2007 WL 2288065, at *8-10.
No matter what the actual test, the Court cannot answer
the question of whether Plaintiff waived his constitutional rights
without analyzing the facts surrounding Plaintiff’s execution of
the Agreement, some of which are outside of the Complaint.
In
arguing that the facts support a finding that Plaintiff waived his
due process claims, Defendants urge the Court to consider the
transcript of Plaintiff’s Rule 50-h testimony, the transcript of
the 3020-a hearing addressing the Agreement, and Plaintiff’s text
messages with the student.
(Defs.’ Br. at 2 n.1.)
However, when
deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court's
“review is limited to the facts as asserted within the four corners
of the complaint, the documents attached to the complaint as
exhibits, and any documents incorporated in the complaint by
reference.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191
(2d Cir. 2007) (citation omitted).
Thus, the Court may not
consider these documents without converting Defendants’ motion to
11
dismiss into one for summary judgment, see Aguilera v. County of
Nassau, 425 F. Supp. 2d 320, 322-23 (E.D.N.Y. 2006) (declining to
consider plaintiff’s 50-h testimony because the transcript was not
attached to or incorporated by reference in the complaint), which,
the Court declines to do here.
Plaintiff alleges that he was fraudulently induced into
signing the Agreement.
The Complaint also suggests that he did
not fully understand the effects of the Agreement because he was
on medication at the time.
Additionally, the Complaint suggests
that his union attorney advised him to enter into the Agreement
because that attorney had loyalties to the Valley Stream School
District.
Defendants
submit
documents
that
present
factual
questions going to the weight of the evidence in support of
Plaintiff’s allegations.
However, the resolution of a factual
dispute, “in the absence of any discovery or evidentiary hearing,
is not appropriate on a motion to dismiss.”
In re Bear Stearns
Cos. Secs., Derivative, & ERISA Litig., 763 F. Supp. 2d 423, 502–
03 (S.D.N.Y. 2011).
This, coupled with the tenet that the waiver
of constitutional rights may not be lightly inferred, favors denial
of Defendants’ motion to dismiss on waiver grounds.
Accordingly,
Defendants’ motion to dismiss in this regard is DENIED.
B.
Municipal Liability
Defendants
next
argue
that
Plaintiff’s
due
process
claims must be dismissed because Plaintiff has not adequately
12
alleged municipal liability.
(Defs.’ Br. at 14.)
The Court
disagrees.
Section 1983 states in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . . subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof
to the deprivation of any rights, privileges,
or immunities secured by the Constitution and
laws,
shall
be
liable
to
the
party
injured . . . .
42 U.S.C. § 1983.
The Valley Stream School District is subject to
liability under § 1983 pursuant to the doctrine of municipal
liability set forth in the United States Supreme Court’s decision
in Monell v. Department of Social Services of City of New York,
436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611
(1978).
See Lopez v. Bay Shore Union Free Sch. Dist., 668 F. Supp.
2d 406, 417 (E.D.N.Y. 2009).
Under Monell, “a municipality cannot be held liable
solely because it employs a tortfeasor--or, in other words, a
municipality cannot be held liable under § 1983 on a respondeat
superior theory.”
Id. at 691 (emphasis in original).
Rather, to
state a § 1983 claim against a municipality, a plaintiff must plead
that the unconstitutional acts of its employees are attributable
to a municipal policy or custom.
See id. at 694.
To plead an
official policy or custom, a complaint must allege the existence
of, inter alia, “a formal policy which is officially endorsed by
13
the municipality” or “actions taken or decisions made by government
officials responsible for establishing municipal policies which
caused the alleged violation of the plaintiff's civil rights.”
Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996)
(citing Monell, 436 U.S. at 690; Pembaur v. City of Cincinnati,
475 U.S. 469, 483–84, 106 S. Ct. 1292, 1299-1300, 89 L. Ed. 2d 452
(1986)).
Here, the Complaint contains no factual allegations that
the Valley Stream School District had a custom or policy of
violating
any
of
its
teachers’
rights,
and
the
Complaint’s
“[c]onclusory allegations of municipal custom or policy will not
suffice to satisfy the requirements of Monell.”
Jackson v.
DeMarco, No. 10-CV-5477, 2011 WL 1099487, at *3 (E.D.N.Y. Mar. 21,
2011) (citing Solomon v. Nassau Cnty., 759 F. Supp. 2d 251, 263
(E.D.N.Y.
2011)).
However,
the
Complaint
does
allege
some
involvement of the Valley Stream School District’s Superintendent-namely, that he pressured Plaintiff into signing the Agreement.
(Compl. ¶ 25.)
These allegations are sufficient at this stage of
the litigation to state a Monell claim against the Valley Stream
School District.
See Konits v. Valley Stream Cent. High Sch.
Dist., No. 01–CV–6763, 2006 WL 224188, at *4 (E.D.N.Y. Jan. 28,
2006) (“[E]ven one decision by a school superintendent, if acting
as a final policymaker, could render his or her decision district
policy.”); Luo v. Baldwin Union Free Sch. Dist., No. 12-CV-6054,
14
2013 WL 4719090, at *4 (E.D.N.Y. Sept. 3, 2013) (“The allegations
in the Complaint here--namely, that the District, through its
superintendent, demanded that Plaintiff cease all communications-are sufficient at this stage of the litigation to state a claim
against the District.”); see also Pembaur, 475 U.S. at 480 (finding
that “municipal liability may be imposed for a single decision by
municipal
policymakers
under
appropriate
circumstances”).
Moreover, the Complaint alleges that the Valley Stream School
Board,
also
a
defendant
Plaintiff’s resignation.
herein,
was
involved
in
coercing
These allegations are also sufficient to
state a Monell claim against the Valley Stream School District
because it is plausible that the school board maintains policymaking authority.
Lopez, 668 F. Supp. 2d at 417 (holding that
plaintiffs stated a plausible Monell claim against the school
district based on alleged decisions of the school board because
the board’s “decisions are also plausibly imbued with policymaking power”).
Accordingly, Defendants’ motion to dismiss for
failure to state a claim of municipal liability against the Valley
Stream School District is DENIED to the extent Plaintiff has
pleaded viable underlying constitutional violations.
The
Court
additionally
notes,
however,
that
the
Complaint also purports to state a Monell claim against the Valley
Stream School Board.
Like school districts, school boards are
also subject to § 1983 claims under Monell.
15
See Talley v.
Brentwood Union Free Sch. Dist., No. 08-CV-0790, 2012 WL 3841396,
at *7 (E.D.N.Y. Sept. 5, 2012); Huff v. W. Haven Bd. of Educ., 10
F. Supp. 2d 117, 121 (D. Conn. 1998).
Defendants do not address
whether Plaintiff has adequately alleged a custom or policy to
hold the Valley Stream School Board liable under Monell.
(See
Defs.’ Br. at 14.) Thus, even if Defendants had prevailed on their
motion to dismiss as against the Valley Stream School District,
such
dismissal
would
not
apply
to
Plaintiff’s
constitutional
claims in their entirety because the Monell claim against the
Valley Stream School Board still remains.
See Luo, 2013 WL
4719090, at *4 (“[T]he Court cannot sua sponte dismiss a claim
without giving Plaintiff notice and an opportunity to respond.”
(citing Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir.
1994))); Huff, 10 F. Supp. 2d at 121 (declining to address whether
plaintiff had adequately alleged a custom or policy against the
school board because the parties did not address the issue).
C.
Procedural Due Process
Defendants
have
not
moved
underlying due process claims.
to
dismiss
Plaintiff’s
However, as explained below,
Plaintiff’s procedural due process claim is insufficient as a
matter of law and is therefore sua sponte DISMISSED as frivolous.
The
Fourteenth
Amendment’s
Due
Process
Clause
“guarantees procedural fairness when a state action deprives a
citizen of a protected interest in life, liberty, or property.”
16
Wiesner v. Rosenberger, No. 98-CV-1512, 1998 WL 695927, at *3
(S.D.N.Y. Oct. 6, 1998).
“The fundamental requirement of the Due
Process Clause is that an individual be given the opportunity to
be
heard
at
a
meaningful
time
and
in
a
meaningful
manner.”
Patterson v. City of Utica, 370 F.3d 322, 336 (2d Cir. 2004)
(internal quotation marks and citation omitted).
Normally, the
deprivation must “be preceded by notice and opportunity for hearing
appropriate to the nature of the case.”
F.3d 187, 197 (2d Cir. 2005).
hearing
is
impractical
and
O'Connor v. Pierson, 426
However, “[w]here a pre-deprivation
a
post-deprivation
hearing
is
meaningful, the State satisfies its constitutional obligations by
providing the latter.”
Giglio v. Dunn, 732 F.2d 1133, 1135 (2d
Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 539, 101 S.
Ct. 1908, 1915, 68 L. Ed. 2d 420 (1981)).
A tenured school teacher possesses “a protected property
interest in [his] position which entitle[s him] to due process
prior to removal” by a school district.
Gipson v. Hempstead Union
Free Sch. Dist., No. 09-CV-5466, 2010 WL 4942650, at *3 (E.D.N.Y.
Nov. 18, 2010).
Here, Plaintiff claims that Defendants deprived
him of due process when they coerced his resignation and waiver of
a pre-deprivation disciplinary hearing.
However, it is well-
settled that where a New York state employee resigns and later
contends that his resignation was not voluntary, the lack of a
hearing prior to the resignation does not deprive the employee of
17
procedural due process because New York has provided an opportunity
for a post-deprivation hearing in the form of an Article 78
proceeding.
See Giglio, 732 F.2d at 1135.
In Giglio, a tenured high school teacher contended that
his resignation was coerced and that he was denied due process
because he did not receive a hearing prior to his resignation.
Id. at 1134.
The Second Circuit rejected this claim finding that
it would be impractical to conduct a pre-deprivation hearing,
explaining that:
A coerced resignation does not involve a
showing of cause; it is simply the submission
by an employee to pressure exerted by a
superior.
For this reason, it is hard to
visualize what sort of prior hearing the
Constitution would require the employer to
conduct. . . . When an employee resigns, the
only
possible
dispute
is
whether
the
resignation was voluntary or involuntary, and
this cannot be determined in advance.
Id. at 1135.
The Second Circuit ultimately upheld the district
court’s dismissal of Plaintiff’s claim because the teacher could
have commenced an Article 78 proceeding, which “gave the employee
a meaningful opportunity to challenge the voluntariness of his
resignation.”
Id. at 1135.
Many courts have subsequently applied Giglio’s holding
that
the
availability
of
an
Article
78
proceeding
satisfies
procedural due process in a case where a New York state employee
claims a coerced resignation.
See, e.g., Weslowski v. Zugibe, --
18
- F. Supp. 2d ----, 2014 WL 1612967, at *16-18 (S.D.N.Y. Mar. 31,
2014); Camhi v. Glen Cove City Sch. Dist., 920 F. Supp. 2d 306,
311-12 (E.D.N.Y. Jan. 7, 2013); Griffin v. City of N.Y., 880 F.
Supp. 2d 384, 404-05 (E.D.N.Y. 2012); Fortunato v. Liebowitz, No.
10-CV-2681, 2012 WL 6628028, at *4-6 (S.D.N.Y. Dec. 20, 2012);
Gipson, 2010 WL 4942650, at *4-5; Cronin v. St. Lawrence, No. 08CV-6346, 2009 WL 2391861, at *6-7 (S.D.N.Y. Aug. 5, 2009); Mulcahey
v. Mulrenan, No. 06–CV–4371, 2008 WL 110949, at *7 (S.D.N.Y.
Jan. 3, 2008); Semorile v. City of N.Y., 407 F. Supp. 2d 579, 582–
83 (S.D.N.Y. 2006); see also Hellenic Am. Neighborhood Action Comm.
v. City of N.Y., 101 F.3d 877, 881 (2d Cir. 1996) (“An Article 78
proceeding is adequate for due process purposes even though the
petitioner may not be able to recover the same relief that he could
in a § 1983 suit.”).
Thus, it is quite clear that the availability
of an Article 78 proceeding precludes Plaintiff’s procedural due
process claim and it is therefore DISMISSED WITH PREJUDICE.7
III. State Law Claims
Plaintiff also asserts New York state law claims for
fraudulent
inducement,
defamation,
and
prima
facie
tort.
As noted, Defendants have not moved to dismiss Plaintiff’s
underlying substantive due process claim, instead relying on the
arguments that Plaintiff waived his constitutional rights and
failed to state a claim for municipal liability, both of which
the Court has rejected. It is not readily apparent to the Court
whether or not Plaintiff has a viable, underlying substantive
due process claim. This claim therefore remains.
7
19
Defendants argue, inter alia, that the state law claims should be
dismissed because Plaintiff failed to serve a timely notice of
claim as required by New York Education Law § 3813(1).8
The Court
agrees with Defendants.
New York Education Law § 3813(2) “provides that any tort
claim against a school district, board of education, or school
district employee is subject to the notice of claim requirements
set forth in New York General Municipal Law Sections 50–e and 50–
i.”
Edwards v. Jericho Union Free Sch. Dist., 904 F. Supp. 2d
294, 306 (E.D.N.Y. 2012) (citing N.Y. EDUC. LAW § 3813(2)).
Under
New York General Municipal Law § 50-e, a plaintiff must, inter
alia, serve a notice of claim within ninety days after the claim
arises and plead that it has been served.
Smith v. N.Y. City Dep’t
of Educ., 808 F. Supp. 2d 569, 578 (S.D.N.Y. 2011).
Although
Plaintiff’s
Complaint
fails
to
allege
compliance with the notice of claim requirements, the parties do
Defendants claim that failure to comply with the notice of
claim requirements requires dismissal for lack of subject matter
jurisdiction. This is not accurate; failure to comply with
these requirements requires dismissal for failure to state a
claim under Rule 12(b)(6). See Humphrey v. Cnty. of Nassau, No.
06-CV-3682, 2009 WL 875534, at *20 (E.D.N.Y. Mar. 30, 2009)
(“‘Notice of claim requirements are construed strictly by New
York state courts. Failure to comply with these requirements
ordinarily requires a dismissal for failure to state a cause of
action.’”) (quoting Hardy v. N.Y. City Health & Hosps. Corp.,
164 F.3d 789, 793–94 (2d Cir. 1999)).
8
20
not dispute that Plaintiff served his notice of claim on June 18,
2013.
Defendants argue that the notice of claim is not timely
because the Complaint “is devoid of any allegations of tortious
conduct or claims that arose after March 18, 2013,” the only time
period for which Plaintiff’s notice of claim would be timely.
(Defs.’ Br. at 18.)
Plaintiff inexplicably argues that the notice
of claim is timely because employees of the Valley Stream School
District allegedly defamed Plaintiff sometime in January of 2013.
(Pl.’s Br. at 19.)
This, Plaintiff contends, constitutes a
continuing
that
violation
brings
Defendants’
conduct
within
ninety-day period immediately prior to service of the notice of
claim.
However, even if the continuing violation doctrine applied
here, conduct in January of 2013 still took place more than ninety
days before Plaintiff served the notice of claim.
The notice of
claim is therefore untimely with respect to the state law claims,
each of which arose more than ninety days before service of the
notice of claim.
Recognizing that the notice of claim is not timely,
Plaintiff cross-moves for leave to file a late notice of claim.
Pl.’s Br. at 19-25.)
Under New York General Municipal Law § 50-
e(5), a plaintiff may seek leave to file a late notice of claim.
N.Y. GEN. MUN. LAW § 50-e(5).
However, this Court does not have
jurisdiction to entertain such an application.
New York General
Municipal Law § 50-e(7) states that “[a]ll applications under
21
[§ 50-e] shall be made to the supreme court or to the county
N.Y. GEN. MUN. LAW § 50-e(7).
court.”
Although “[t]he Second
Circuit has not definitively ruled on whether a federal district
court may grant a request to extend time to serve the notice of
claim,” Jackson v. City of N.Y., --- F. Supp. 2d ----, 2014 WL
1010785, at *13 (E.D.N.Y. Mar. 17, 2014) (internal quotation marks
and citations omitted), “the overwhelming weight of authority
among district courts in the Second Circuit . . . finds that
Section 50–e(7) permits only certain state courts . . . to consider
and to grant an application for an extension of time in this
context,” Humphrey v. Cnty. of Nassau, No. 06–CV–3682, 2009 WL
875534,
at
*21
(E.D.N.Y.
Mar.
30,
2009)
(collecting
cases).
Therefore, this Court lacks jurisdiction to grant Plaintiff leave
to file a late notice of claim.
However,
even
if
this
Court
had
jurisdiction
to
entertain Plaintiff’s application to file a late notice of claim,
the application would not be successful because it is untimely.
An application for leave to file a late notice of claim must be
made within one year and ninety days after the cause of action has
accrued.
Brown v. Metro. Transp. Auth., 717 F. Supp. 257, 259
(S.D.N.Y. 1989) (citing Pierson v. City of N.Y., 56 N.Y.2d 950,
954, 439 N.E.2d 331, 332, 453 N.Y.S.2d 615 (1982) (interpreting §
50-e(5)).
According to Plaintiff, the last act giving rise to any
of his state law claims occurred in January of 2013.
22
As far as
the Court can tell, Plaintiff has not applied to file a late notice
of claim in state court, and any such application made now would
be untimely because more than one year and ninety days has passed
since Plaintiff’s claims arose.
See Nieves v. N.Y. City Hous.
Auth., 96 A.D.3d 621, 621, 946 N.Y.S.2d 859, 859-60 (1st Dep’t
2012) (holding that plaintiff’s “failure to seek a court order
excusing . . . lateness [of her notice of claim] within one year
and 90 days after the date of the accident requires dismissal of
the action” (citing McGarty v. City of N.Y., 44 A.D.3d 447, 448,
843 N.Y.S.2d 287 (1st Dep’t 2007); N.Y. GEN. MUN. LAW §§ 50–e(5),
50–i(1)(c)).
Accordingly,
Plaintiff’s
state
law
claims
are
DISMISSED WITH PREJUDICE.9
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss
is GRANTED IN PART and DENIED IN PART and Plaintiff’s cross-motion
to file a late notice of claim is DENIED.
Plaintiff’s procedural
due process and state law claims are DISMISSED WITH PREJUDICE.
Plaintiff’s substantive due process claim remains.
Additionally, the Court will direct the Clerk of the
Court to unseal Docket Entry 25 in its entirety unless either party
presents compelling reasons for these documents remaining under
Because Plaintiff’s failure to file a timely notice of claim
requires dismissal of the state law claims as a matter of law,
the Court need not address Defendants’ remaining grounds for
dismissal of the claims.
9
23
seal.
If the parties wish to submit briefing on this issue, they
must do so within seven (7) days of the entry of this Memorandum
and Order.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
August
25 , 2014
Central Islip, NY
24
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