Croci v. Town of Haverstraw et al

Filing 30

OPINION & ORDER: Defendants' Motion To Dismiss Plaintiff's due process, First Amendment, and Executive Law § 296 claims is granted; Defendants' Motion is, however, denied with respect to Plaintiff's Title VII claim. The Clerk of the Court is respectfully requested to terminate the pending Motion. (See Dkt. No. 19.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/31/2016) (lnl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

CHERYL CROCI,
Plaintiff,
-v-

Case No. 14-CV-5138 (KMK)
OPINION & ORDER

TOWN OF HAVERSTRAW, GEORGE WARGO,
and HOWARD PHILLIPS,
Defendants.

Appearances:
Ambrose Wotor Wotorson, Jr., Esq.
Law Offices of Ambrose Wotorson, P.C.
New York, NY
Counsel for Plaintiff
Kenneth Ethan Pitcoff, Esq.
Morris Duffy Alonso & Faley
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Cheryl Croci (“Plaintiff”) brings this action against defendants Town of
Haverstraw (the “Town”), George Wargo (“Wargo”), and Howard Phillips (“Phillips”)
(collectively, “Defendants”) asserting claims pursuant to 42 U.S.C. § 2000e et seq. (“Title VII”),
the New York State Human Rights Law, N.Y. Exec. Law § 296, and 42 U.S.C. § 1983 for
violation of her First Amendment rights and for violations of procedural and substantive due
process. Defendants move to dismiss Plaintiff’s Title VII retaliation claim, § 1983 claims, and
state law claims on various grounds. For the reasons that follow, Defendants’ Motion is granted
in part and denied in part.

I. Background
A. Factual Background
The following facts are taken from Plaintiff’s Amended Complaint and are assumed to be
true for purposes of this Opinion. Plaintiff began working for the Town in 1997, and, according
to Plaintiff, at all relevant times, her performance has been satisfactory. (Am. Compl. ¶ 9 (Dkt.
No. 14).) In March 2000, Plaintiff began working for the Town’s Highway Department as a
personal assistant. (Id. ¶ 10(a).) Since that time, Plaintiff was re-appointed to that position every
two years. (Id. ¶ 10(b).) On or about March 2, 2010, Plaintiff began to formally complain about
sex discrimination and an allegedly hostile work environment based upon her gender. (Id.
¶ 10(c).) According to Plaintiff, these complaints were continuing in nature, and Defendants’
agents investigated her complaints on two separate occasions. (Id.) At the end of the first
investigation, the agents concluded that her complaints were unsubstantiated. (Id.)
Nevertheless, Plaintiff alleges that Phillips, the Town Supervisor, was “not pleased” with
Plaintiff’s complaints, and, in response to her complaints, falsely alleged that Plaintiff had
engaged in sexually inappropriate behavior. (Id. ¶ 10(d).) According to Plaintiff, Phillips made
this allegation “without any credible basis for doing so,” and further “issued a pretextual and
retaliatory warning to Plaintiff,” while “utterly fail[ing] to punish Plaintiff’s harasser(s) in any
regard or to ensure that such harassment did not occur in the future.” (Id.)
Nevertheless, Plaintiff’s complaints persisted, and Defendants undertook a second
investigation, which concluded that her gender-based hostile work environment claims were
substantiated. (Id. ¶ 10(e).) As a result, Plaintiff alleges, her harasser was eventually removed
from the garage where Plaintiff worked and was suspended for 15 days in August or September
2013, after Plaintiff had already filed a sexual harassment lawsuit, and was instructed to avoid

2

further contact with Plaintiff. (Id. ¶ 10(f).) Despite this outcome, Plaintiff alleges that Phillips—
who remained in his position and was not subject to any punishment—“was not pleased
with . . . Plaintiff’s complaining about a gender-based hostile work environment, nor about [the]
outcome of the second investigation.” (Id.) In addition to her internal complaints, in or about
2011, Plaintiff filed a lawsuit in Rockland County State Supreme Court, alleging sexual
harassment, sex discrimination, and a hostile work environment based on gender. (Id. ¶ 10(g).)
Plaintiff alleges that that complaint was served on Phillips, who was aware of the suit and
participated in its defense, and served on the Town. (Id.)
Later, in or around March or April 2012, Plaintiff attended a luncheon for the
Superintendents of the Highways Association. (Id. ¶ 10(h).) During the luncheon, an
engineer/consultant brought up and discussed Plaintiff’s pending sexual harassment charges with
Wargo, then one of the foremen for the County of Rockland Highway Department, in Plaintiff’s
presence. (Id. ¶¶ 10(h)–10(i).) After Wargo asked her, Plaintiff said that she did have sexual
harassment charges pending against the Town. (Id. ¶ 10(i).)
The next year, in May 2013, Phillips met with John Piperato, who at the time was
“attempting to run” for Superintendent of the Haverstraw Highway Department. (Id. ¶ 10(j).)
During the meeting, Phillips allegedly suggested that he would back Piperato’s bid only if
Piperato fired Plaintiff once elected, because of Plaintiff’s sexual harassment and hostile work
environment claims. (Id.) Piperato declined the invitation, and Phillips subsequently backed
Wargo in his pursuit of the Superintendent’s position. (Id. ¶¶ 10(k)–10(l).) According to
Plaintiff, Wargo was “not pleased with Plaintiff’s protected activities and . . . did not want her to
work under his charge, precisely because of her prior protected activities, which he was aware
of.” (Id. ¶ 10(l).) Nevertheless, prior to the election, Wargo assured Plaintiff on several

3

occasions that he intended to keep her on as a personal assistant if he were elected and that her
position was secure since she had been in it for “so long.” (See id. ¶ 10(o).)
In or about July 2013, Plaintiff filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) alleging ongoing sexual harassment, sex discrimination, and a hostile
work environment based upon her gender. (Id. 10(m).) The Town was served with a copy of the
complaint, and Phillips, who, Plaintiff alleges, became aware of and participated in the defense
to that complaint, was “not pleased with Plaintiff’s EEOC filling.” (Id.)
In November 2013, Wargo was elected as a Democrat to the position of Superintendent
of Highways. (Id. ¶ 10(n).) The next month, despite Wargo’s earlier assurances to the contrary
and without any explanation, Plaintiff was informed that Phillips and Wargo decided that she
should no longer be the personal assistant to the Superintendent of Highways. (Id. ¶ 10(p).)
Plaintiff was not given any notice or right to be heard before her termination. (Id. ¶ 10(t).)
Moreover, Plaintiff was the only support staffer in the Highway Department who was not
retained, despite the fact that she, like Wargo and Phillips, was a registered Democrat, and even
though other Town employees have kept their positions after past elections, including three
secretaries in the Town Clerk’s office. (Id. ¶¶ 10(q)–10(s).)1 Plaintiff alleges that Wargo—who
is a Town employee and ultimately answerable to Phillips—participated in the decision to
terminate Plaintiff on account of her “prior protected activities in formally pursuing sexual
harassment claims against the Town.” (Id. ¶ 10(s).)

1

It is not clear whether Plaintiff alleges these secretaries retained their jobs after the
November 2013 election or some other election.
4

B. Procedural Background
On July 9, 2014, Plaintiff brought the instant Action against Defendants. (Dkt. No. 1.)
Because no proof of service had been filed within 120 days of when Plaintiff filed the original
Complaint, on January 7, 2015, the Court ordered that Plaintiff properly serve the summons and
complaint and file proof of such action, or, alternatively, demonstrate good cause to the Court
concerning Plaintiff’s failure to effect such service. (Dkt. No. 3.) After successful service by
that date, (Dkt. Nos. 4–6), Defendants requested on March 10, 2015 a pre-motion conference in
advance of their anticipated Motion to Dismiss the Complaint, (Dkt. No. 10.) By letter dated
March 19, 2015, Plaintiff requested leave to file an Amended Complaint, (Dkt. No. 11–12), and
did so on April 6, 2015, (Dkt. No. 14). Having reviewed Plaintiff’s then-still-proposed Amended
Complaint, Defendants submitted a letter to the Court indicating that they wished to renew their
request for a pre-motion conference in advance of an anticipated Motion to Dismiss. (Dkt. Nos.
13, 15.) Plaintiff responded, (Dkt. Nos. 16–17), and, after a pre-motion conference held on May
7, 2015, (Dkt. (minute entry for May 7, 2015)), Defendants filed their Motion to Dismiss and
accompanying papers on June 26, 2015, (Dkt. Nos. 19–21). Plaintiff filed her Opposition by
August 1, 2015, (Dkt. Nos. 24–26), and Defendants submitted their Reply on August 21, 2015,
(Dkt. No. 27).
II. Discussion
A. Standard of Review
Defendants move to dismiss Plaintiff's Amended Complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. “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 entitlement to relief requires more than labels and conclusions, and a formulaic recitation

5

of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (alteration, citations, and internal quotation marks omitted). Indeed, Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.” Id. (alterations and internal
quotation marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a
right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555. Although “once a
claim has been stated adequately, it may be supported by showing any set of facts consistent with
the allegations in the complaint,” id. at 563, and, although a plaintiff need only allege “enough
facts to state a claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not
“nudged [her] claim[] across the line from conceivable to plausible, the[] complaint must be
dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” (second alteration in
original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a
notable and generous departure from the hyper-technical, code-pleading regime of a prior era,
but it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); see also Graham v. Macy’s Inc., No. 14-CV-3192, 2015 WL 1413643, at *1 n.1

6

(S.D.N.Y. Mar. 23, 2015) (“For the purpose of resolving the motion to dismiss, the [c]ourt
assumes all well-pled facts to be true . . . .”). Further, “[f]or the purpose of resolving [a] motion
to dismiss, the [c]ourt . . . draw[s] all reasonable inferences in favor of the plaintiff.” Daniel v.
T&M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s
Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6)
motion, a district court must confine its consideration to facts stated on the face of the complaint,
in documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d
99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Hendrix v. City of N.Y., No.
12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20, 2013) (same).
B. Analysis
Defendants move to dismiss (1) Plaintiff’s Title VII retaliation claims on the grounds that
she is not an employee, (2) Plaintiff’s due process claims on the grounds that she does not have
an adequate property interest, (3) Plaintiff’s § 1983 claims against the individual defendants on
the grounds that they are protected by the doctrine of qualified immunity, and (4) Plaintiff’s state
law claims on the grounds that she did not comply with Town Law § 67. The Court agrees with
the second and fourth propositions, disagrees with the first, and need not decide the third.2
1. Title VII
As noted, Defendants first argue that Plaintiff’s Title VII retaliation claim should be
dismissed because Plaintiff is not an “employee” within the meaning of Title VII. (Mem. of Law

2

In addition, Defendants moved to dismiss Plaintiff’s § 1983 claim for violations of her
First Amendment rights. (See Mem. of Law in Supp. of Defs.’ Mot. To Dismiss 8–9 (Dkt. No.
21).) In her Opposition, Plaintiff conceded that she had failed to state a First Amendment claim,
and, therefore, withdrew it. (See Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. To Dismiss
Pursuant to Rule 12(b)(6) (“Pl.’s Mem.”) 18 (Dkt. No. 26).)
7

in Supp. of Defs.’ Mot. To Dismiss (“Defs.’ Mem.”) 4–8 (Dkt. No. 21).) The argument is
premature at this stage, and Defendant’s Motion is therefore denied.
To begin, under the relevant provision, an employee is defined as
[A]n individual employed by an employer, except that the term “employee” shall
not include any person elected to public office in any State or political subdivision
of any State by the qualified voters thereof, or any person chosen by such officer to
be on such officer’s personal staff, or an appointee on the policy making level or
an immediate adviser with respect to the exercise of the constitutional or legal
powers of the office. The exemption set forth in the preceding sentence shall not
include employees subject to the civil service laws of a State government,
governmental agency or political subdivision. With respect to employment in a
foreign country, such term includes an individual who is a citizen of the United
States.
42 U.S.C. § 2000e(f) (emphasis added). The provision thus exempts four categories of workers:
(1) elected officers; (2) individuals chosen by such an officer to be members of his or her
“personal staff;” (3) such officer’s appointees on a policymaking level; or (4) an immediate
advisor with respect to the exercise of the powers of the office. Bland v. New York, 263 F. Supp.
2d 526, 536 (E.D.N.Y. 2003); see also Zagaja v. Vill. of Freeport, No. 10-CV-3660, 2015 WL
3507353, at *6 (E.D.N.Y. June 3, 2015) (same). “Title VII does not define ‘personal staff.’”
Maioriello v. New York, No. 05-CV-1062, 2008 WL 398483, at *8 (N.D.N.Y. Feb. 12, 2008).
Nevertheless, “[t]he question of who is an exempt employee is a matter of federal, not state law,
although state law may clearly illuminate the job responsibilities and status of [an] individual
considered under the statute.” Bland, 263 F. Supp. 2d at 536; see also Zagaja, 2015 WL
3507353, at *6 (same). The Second Circuit has not addressed the “personal staff” exemption
contained in § 2000e(f), although it has considered the policymaking exemption found in both
§ 2000e(f) and the identically-worded, analogous provision of the Age Discrimination in
Employment Act (“ADEA”). See Butler v. N.Y. State Dep’t of Law, 211 F.3d 739, 741, 749 (2d
Cir. 2000) (finding an assistant attorney general who also served as deputy bureau chief of the
8

litigation department at the New York State Department of Law to fall within policymaker
exception of Title VII); Tranello v. Frey, 962 F.2d 244, 251 (2d Cir. 1992) (finding former
deputy county attorney not excluded from ADEA as a policymaker where he was not appointed
by an elected public official); E.E.O.C. v. State of Vt., 904 F.2d 794, 800 (2d Cir. 1990) (finding
appointed judges not excluded from ADEA’s definition of employee as policymakers), overruled
on other grounds by Gregory v. Ashcroft, 501 U.S. 452 (1991); see also Maioriello, 2008 WL
398483, at *8 (“[W]hile the Second Circuit has addressed the ‘policy maker’ exemption to Title
VII’s definition of employee, it has not considered the ‘personal staff’ exemption.”). Each time,
the Second Circuit, quoting the relevant legislative history, suggested that § 2000e(f)’s
exceptions were to be “construed narrowly.” Butler, 211 F.3d at 747 (internal quotation marks
omitted); see also Tranello, 962 F.2d at 250 (same); State of Vt., 904 F.2d at 800 (same); accord
Howard v. Ward Cty., 418 F. Supp. 494, 502 (D.N.D. 1976) (“The legislative history of this
provision . . . indicates that Congress intended that this exclusion be construed very narrowly.”).3
Other circuit courts—as well as district courts—have, however, weighed in on the scope
of the “personal staff” exception. In a particularly influential opinion, the Fifth Circuit
developed a non-exhaustive list of six factors to determine whether an individual falls into the
Title VII’s “personal staff” exception. See Teneyuca v. Bexar Cty., 767 F.2d 148, 151 (5th Cir.
1985). Those factors are:
(1) whether the elected official has plenary powers of appointment and removal,
(2) whether the person in the position at issue is personally accountable to only that
3

Although these decisions did not deal with the personal staff exception, their
observations concerning the exceptions’ narrow construction apply equally to the personal staff
exception. See Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir. 1981) (“The legislative history of
[§] 2000e(f) indicates that Congress intended that the personal staff exception be construed
narrowly.”); see also Conley v. City of Erie, Pa., 521 F. Supp. 2d 448, 452 (W.D. Pa. 2007)
(“These exemptions [in § 2000e(f)], commonly referred to as the ‘personal staff’ and ‘policy
making’ exemptions, are to be narrowly construed.”).
9

elected official, (3) whether the person in the position at issue represents the elected
official in the eyes of the public, (4) whether the elected official exercises a
considerable amount of control over the position, (5) the level of the position within
the organization’s chain of command, and (6) the actual intimacy of the working
relationship between the elected official and the person filling the position.
Id. Many other courts have drawn on the Teneyuca analysis. See, e.g., Hemminghaus v.
Missouri, 756 F.3d 1100, 1108 (8th Cir. 2014); Birch v. Cuyahoga Cty. Prob. Court, 392 F.3d
151, 158 (6th Cir. 2004); Smith v. Town of Hempstead, 21 F. Supp. 3d 202, 205 (E.D.N.Y.
2014); Bland, 263 F. Supp. 2d at 539–40. In conducting this analysis, courts have made clear
that the proper inquiry is highly fact intensive, rendering resolution on purely legal grounds
difficult. See Teneyuca, 767 F.2d at 152 (“This [c]ourt notes that the highly factual nature of the
inquiry necessary to the determination of the ‘personal staff’ exception does not lend itself well
to disposition by summary judgment.”); Manzi v. DiCarlo, 62 F. Supp. 2d 780, 790 (E.D.N.Y.
1999) (“[T]he highly factual nature of the inquiry necessary to the determination of the ‘personal
staff’ exception does not lend itself well to disposition by summary judgment” (some internal
quotation marks omitted)); Leving v. City of Chi., No. 87-CV-1077, 1988 WL 20046, at *2 (N.D.
Ill. Mar. 1, 1988) (“The application of these facts to determine whether a person is a member of
an elected official’s ‘personal staff’ involves a factual determination. The resolution of factual
issues is [in]appropriate in a Rule 12(b)(6) motion for dismissal.”). Nevertheless, in appropriate
circumstances, a court may still make the determination upon a motion to dismiss or a summary
judgment motion. See Bland, 263 F. Supp. 2d at 544 (granting motion to dismiss, finding that
the plaintiff was personal staff and thus not an employee, reasoning that “in the present case
there are no issues of fact with regard to the question to be resolved on the motion”); see also
Harris v. Anne Arundel Cty., No. 12-CV-829, 2014 WL 4924308, at *4–5 (D. Md. Oct. 1, 2014)
(concluding “as a matter of law” that “constituent services specialist” was part of the county

10

executive’s “personal staff” based on “her personal selection by [the county executive],
involvement with [his] campaigns, frequent contact with [him], frequent appearances at public
events at which she represented [the county executive], and consultation on appointments”), aff’d
sub nom. Harris v. Leopold, 600 F. App’x 114 (4th Cir. 2015); Guy v. State of Ill., 958 F. Supp.
1300, 1305–06 (N.D. Ill. 1997) (noting that, although it “may be true in certain instances” that
“whether [the position at issue] falls within the scope of the ‘employee’ exemption is a factspecific issue that cannot be disposed of via a 12(b)(6) motion,” “where the duties of the position
in question are a matter of ‘common knowledge,’ a court can make a determination in the
context of a motion to dismiss”).
Here, Defendants argue that Plaintiff is not an employee because her job title was at all
relevant points “Confidential Secretary to the Superintendent of Highways,” (see Defs.’ Mem.
5), and that this position “undoubtedly qualifies as a member of the Superintendent of Highways’
‘personal staff’ under 42 U.S.C. § 2000e(f),” (see id. at 6). Nevertheless, as Defendants concede,
Plaintiff does not adopt that job title in the Amended Complaint, rather, calling herself a
“personal assistant.” (See Defs.’ Mem. 4–5 (citing Am. Compl. ¶¶ 6, 10(p)).) All the same,
Defendants ask that the Court take judicial notice of certain public documents and a filing from
the state court action identifying Plaintiff as a “confidential secretary,” (see Defs.’ Mem. 5
(citing Att’y Aff’n (“Pitcoff Aff’n”) Ex. E (Dkt. No. 20); Pitcoff Aff’n Ex. F; Pitcoff Aff’n Ex.
G)), which, according to Defendants, the Court can do, as these documents are matters of public
record, (see Defs.’ Mem. 5 (citing Jackson v. City of Columbus, 194 F.3d 737, 745–46 (6th Cir.
1999), abrogated on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002);
Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1197 (3d Cir. 1993);
Marshall Invs. Corp. v. Krones, Inc., No. 13-CV-118, 2013 WL 1962671, at *1 n.2 (W.D. Pa.

11

May 10, 2013), aff’d, 572 F. App’x 149 (3d Cir. 2014))). The Court’s ability to take judicial
notice of these documents is not, however, so cut-and-dry. Although there is no question that
courts may take judicial notice upon a motion to dismiss of public documents in at least some
circumstances, see, e.g., Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts
Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (noting that the court “may also look to public
records, including complaints filed in state court, in deciding a motion to dismiss”); Kramer v.
Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (holding courts may take judicial notice of
public disclosure documents the filing of which is required by law), that does not mean that the
courts may take as true any statement found in any document that a party asserts to be public, see
Glob. Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir. 2006) (“[A]lthough [a]
final determination [by a New York City administrative body] and [the] testimony [of the
president and sole shareholder of the plaintiff company] may be public records of which a court
may take judicial notice, it may do so on a motion to dismiss only to establish the existence of
the opinion, not for the truth of the facts asserted in the opinion.” (internal quotation marks
omitted)); Quick Cash of Westchester Ave. LLC v. Vill. of Port Chester, No. 11-CV-5608, 2013
WL 135216, at *4 (S.D.N.Y. Jan. 10, 2013) (“[I]t is well established that courts may take
judic[i]al notice of publicly available documents on a motion to dismiss. In the motion to
dismiss context, however, a court should generally take judicial notice to determine what
statements the documents contain[,] not for the truth of the matters asserted.” (alterations,
citation, and internal quotation marks omitted)); Schubert v. City of Rye, 775 F. Supp. 2d 689,
696 n.3 (S.D.N.Y. 2011) (noting that “the minutes and recordings of the City Council meetings
are matters of public record and therefore are the types of materials of which a court may take
judicial notice,” but adding that “the [c]ourt [would] consider these materials for the limit[ed]

12

purposes of determining the fact of the meetings and the actions taken by the relevant parties, not
for the truth of any statements made during these proceedings”); Old St. George’s LLC v.
Bianco, No. 08-CV-5321, 2009 WL 8668386, at *3–4 (S.D.N.Y. May 8, 2009) (noting that the
defendants submitted as an exhibit to their motion to dismiss “minutes of Town of Yorktown
Town Board meetings concerning [the property at issue],” but stressing that the court “only
considered the [a]mended [c]omplaint and the exhibits attached thereto, as well as documents
provided by [the] [d]efendants that are referred to in the [a]mended [c]omplaint but not attached
thereto”), aff’d, 389 F. App’x 33 (2d Cir. 2010). Likewise, the law is clear that, while judicial
notice may be taken of filings in other courts, such notice may not be taken to establish the truth
of the matters contained in those filings. See, e.g., Kramer, 937 F.2d at 774 (“[C]ourts routinely
take judicial notice of documents filed in other courts, . . . not for the truth of the matters asserted
in the other litigation, but rather to establish the fact of such litigation and related filings.”); In re
Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., No. 00-CV-1898, 2015 WL 9777725,
at *3 (S.D.N.Y. Dec. 7, 2015) (“[T]he [c]ourt may take judicial notice of filings in other courts
not for the truth of the matters asserted in the other litigation, but rather to establish the fact of
such litigation and related filings.” (internal quotation marks omitted)). Therefore, the Court
does not accept the proposition that, in deciding whether Plaintiff falls in the “personal staff”
exception, it may proceed on the logic that she was a “confidential secretary”—subject to all the
corollaries that Defendants suggest that title entails—based purely on statements referring to her
as such, found in minutes of the Haverstraw Town Board (Exhibit F), see Old St. George’s LLC,
2009 WL 8668386, at *3, Plaintiff’s state court complaint (Exhibit G), see Kramer, 937 F.2d at
774, or a memo apparently from the “Commissioner of Personnel” for Rockland County to
Phillips with handwriting on it (Exhibit E), suggesting that it may not even be a public

13

document.4 Accordingly, the Court also declines to reach this conclusion based on the fact that,
as Defendants stress, (see Defs.’ Mem. 4 (citing Compl. ¶ 11(m) (Dkt. No. 1)), Plaintiff refers to
herself in the original complaint as the “Secretary to the Superintendent of Highways,” (Compl.
¶ 11(m)).5
Defendants’ strenuous effort to label Plaintiff as the “confidential secretary” to the
superintendent apparently are predicated on the idea that elected officials’ secretaries are
“personal staff” within the meaning of § 2000e(f). In addition to making intuitive sense, this
proposition finds support in the relevant legislative history. See Bland, 263 F. Supp. 2d at 537–
38 (quoting colloquy between senators relating to the amendment that would become personal
staff exception, concluding that “the legislative history unequivocally indicates that ‘personal
staff’ means, first and foremost, ‘personal secretary’”). Moreover, this intuition is further
augmented by the fact that regulations interpreting an analogous provision in the Fair Labor
Standards Act explicitly mention “personal secretar[ies]” as an example of “personal staff.”
Compare 29 U.S.C. § 203(e)(2)(C)(ii)(II) (excluding from definition of employee any individual
“selected by the holder of [public elective] office to be a member of his personal staff”) with 29

4

Defendants also suggest that the Court consider additional documents submitted to
establish that the “confidential secretary” position was not subject to the protections of New
York’s state civil service law. (See Defs.’ Mem. 7–8.) Because the Court need not reach that
question to decide the instant Motion, consideration of those documents is unnecessary.
5

Relatedly, Defendants’ argument falls particularly flat in its assertion that Plaintiff
“obscures the nature of [her] employment with the Town in an attempt to avert dismissal” by
describing herself in her amended complaint as “a personal assistant with the Highway Department,”
(Defs.’ Mem. 4 (quoting Am. Compl. ¶ 6)) and as “the personal assistant to the Superintendent of
Highways,” (id. at 5 (quoting Am. Compl. ¶ 10p)), whereas she had, in her original complaint’s
corresponding paragraphs, referred to herself as “a secretary with the Department of Transportation,”
(Compl. ¶ 6), and “Secretary to the Superintendent of Highways,” (Compl. ¶ 11(m)). To suggest that
the meaning of “personal staff,” see 42 U.S.C. § 2000e(f), excludes “personal assistant[s],” (Am.
Compl. ¶¶ 6, 10p), but includes “secretar[ies],” (Compl. ¶¶ 6, 11(m)), and with such clarity that
that should matter upon a motion to dismiss is, at best, debatable.
14

C.F.R. § 553.11(b) (noting that “[t]he statutory term ‘member of personal staff’ generally
includes only persons who are under the direct supervision of the selecting elected official and
have regular contact with such official” and that “the term might include the elected official’s
personal secretary”); see also Bland, 263 F. Supp. 2d at 538 (noting same).
But even if there is a compelling case to be made that elected officials’ secretaries are, as
a general matter, “personal staff,” that does not mean that it is appropriate to apply that exception
at the motion dismiss stage to any plaintiff whose job title suggests that he or she is the assistant,
secretary, or even confidential secretary to an elected official. Rather, to answer the question of
whether Plaintiff was “personal staff,” this Court—like many before it—looks to the factors
enumerated in Teneyuca. See Bland, 263 F. Supp. 2d at 540 (applying Teneyuca factors). At
this stage, it is simply too early to know, for instance, whether Plaintiff is “personally
accountable to only that elected official” (factor two), whether Plaintiff “represents the
[Superintendent of Highways] in the eyes of the public” to any meaningful extent (factor three),
or the level of Plaintiff’s position within the Department’s chain of command (factor five). See
Teneyuca, 767 F.2d at 151 (emphasis added). Accordingly, Defendant’s Motion to Dismiss, on
this basis, is denied, though it would hardly be surprising if the issue is re-visited at summary
judgment. See Milliones v. Fulton Cty. Gov’t, No. 12-CV-3321, 2013 WL 2445206, at *1, *5
(N.D. Ga. June 5, 2013) (concluding in context of county commissioner’s assistant’s Title VII
personal staff analysis that “the question of [the] [p]laintiff’s position with [the] [d]efendant is
highly factual and cannot be resolved based solely on the allegations in the pleadings” (internal
quotation marks omitted)); Leving, 1988 WL 20046, at *1–3 (declining to dismiss complaint
brought by mayor’s secretary, where the defendants argued the secretary fell within the “personal
staff” exception); cf. E.E.O.C. v. Reno, 758 F.2d 581, 585 (11th Cir. 1985) (“Rather than

15

deciding simply that assistant state attorneys are exempt from the ADEA coverage, the district
court went on to hold that [the] defendant . . . is not an employer for purposes of the statute.
Under this aspect of the district court’s holding, not only would [the position at issue] be denied
the ADEA’s protections, but so would all the . . . secretaries[] and other personnel who are
appointed by and serve at the pleasure of the [defendant]. We believe that such a holding sweeps
too broadly . . . .”).6
2. Due Process
Defendants next move to dismiss Plaintiff’s § 1983 claim for denial of due process on the
grounds that she had no constitutionally protected property interest in continuing employment
with the Town. (See Defs.’ Mem. 9–11.) As Defendants point out, (see Reply Mem. of Law in
Supp. of Defs.’ Mot. To Dismiss (“Defs.’ Reply”) 4 (Dkt. No. 27)), Plaintiff’s argument, in
essence, is that she had a property interest in being reappointed to her position because she had

6

One might protest that the resounding silence surrounding these questions is a reason to
grant—rather than deny—the Motion to Dismiss because, arguably, Plaintiff has alleged facts
merely “consistent with” rather than facts “plausibly suggesting” her non-status as personal staff.
See Twombly, 550 U.S. at 557. However, Plaintiff has done more than this—albeit not much.
Indeed, Plaintiff alludes to working in a garage in the course of her position. (See Am. Compl.
¶ 10(f).) Accepting this as true, it provides some basis to think that her job duties may differ
somewhat from the archetypal secretary discussed in connection with § 2000e(f)’s legislative
history, and renders more difficult still the question of whether Plaintiff meets the Teneyuca
factors. Cf. Brewster v. Barnes, 788 F.2d 985, 990–91 (4th Cir. 1986) (reversing on appeal the
district court’s determination that the plaintiff secretary and correctional officer was the
defendant sheriff’s personal staff from 1975 onwards when, in 1975, their close working
relationship ended and the plaintiff worked purely as a correctional officer).
For what it is worth, the Court notes that Plaintiff relies on her allegation about working
in the garage to cast doubt upon the notion that she worked exclusively for the superintendent.
(See Pl.’s Mem. 15.) In their reply, Defendants astutely rejoin that § 2000e(f)’s personal staff
exception does not require that employees be isolated from their coworkers. (See Reply Mem. of
Law in Supp. Of Defs.’ Mot. To Dismiss 1 (Dkt. No. 27).) Nevertheless, the significance of this
allegation, from the Court’s perspective, is that, inasmuch as the word “secretary” comes
prepackaged with a set of expected job duties, this allegation suggests that meaning may not
accord well with Plaintiff’s actual responsibilities, counseling against answering the § 2000e(f)
question before discovery. In any event, discovery could shed ample light to clarify the issue.
16

regularly been reappointed to two-year terms over the previous 13 years and because Wargo
explicitly reassured her that she would be reappointed, (see Pl.’s Mem. of Law in Opp’n to
Defs.’ Mot. To Dismiss Pursuant to Rule 12(b)(6) (“Pl.’s Mem.”) 9–11 (Dkt. No. 26)). Neither
claim is sufficient.
Under the Due Process Clause of the Fourteenth Amendment, no state may deprive any
person of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. A
government employee may have a property interest in her continuing employment. See
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–39 (1985); see also Faghri v. Univ. of
Conn., 621 F.3d 92, 99 (2d Cir. 2010) (“The due process clause requires a government employer
to provide notice and opportunity for a hearing before terminating an employee with a protected
property interest in his employment” (internal quotation marks omitted)). However, property
interests are not created by the Constitution; rather, “they are created and their dimensions are
defined by existing rules or understandings that stem from an independent source such as state
law . . . .” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972); see also Ciambriello
v. Cty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002) (same). In order for a property interest in a
benefit to exist, it is not enough to have an “abstract need or desire for it” or a “unilateral
expectation of it;” rather, one must have a “legitimate claim of entitlement to it.” Roth, 408 U.S.
at 577.
As relevant here, “[a] property interest in employment can . . . be created . . . by an
implied contract . . . ;” however, even then, “the sufficiency of the claim of entitlement . . . must
be decided by reference to state law.” Bishop v. Wood, 426 U.S. 341, 344 (1976); see also Perry
v. Sindermann, 408 U.S. 593, 601–02 (1972) (noting in context of question surrounding college
professor’s tenure protections that “absence of . . . an explicit contractual provision may not

17

always foreclose the possibility that a teacher has a ‘property’ interest in reemployment,”
reasoning that “the law of contracts in most, if not all, jurisdictions long has employed a process
by which agreements, though not formalized in writing, may be ‘implied.’”); Ezekwo v. N.Y.C.
Health & Hosps. Corp., 940 F.2d 775, 782 (2d Cir. 1991) (noting that “[a]dditional contractual
provisions may be ‘implied’ into a contract as a result of a course of dealing between the
parties,” and that “[t]he parties through their conduct and practice can create additional rights
and duties”); Goetz v. Windsor Cent. Sch. Dist., 698 F.2d 606, 608 (2d Cir. 1983) (“[A] property
interest in employment can be created by local ordinance or by implied contract. In either case,
the sufficiency of the claim of entitlement rests on state law.” (citation omitted)). Because there
is no allegation that Plaintiff had an express contractual right to be reappointed, her argument
must progress on the understanding that she had an implied contract to renewed employment.
That cannot be so. To begin, although not addressed by the Parties, New York case law
makes unambiguously clear that a non-written promise to reappoint a public employee that
cannot be performed within a year violates the statute of frauds, and, therefore, cannot create a
property interest for due process purposes. In Bykofsky v. Hess, 484 N.Y.S.2d 839, (App. Div.),
aff’d, 481 N.E.2d 569 (N.Y.), cert denied, 106 S. Ct. 408 (1985), the plaintiff, who had a “long
history” of jobs with the New York City government and the City University of New York,
sought and allegedly obtained assurances in spring 1980 from the recently appointed president of
Brooklyn College, the plaintiff’s then-employer, that the plaintiff would be reappointed to his
current administrative position for the next two successive academic years. Id. at 840–41.
According to the complaint, were the plaintiff to be reappointed for those two years, he would
have accrued 25 years of credited service with the New York City Teachers’ Retirement System,
which would entitle him to greater insurance, retirement, and salary benefits. See id. at 841.

18

Despite the assurances of the college president, the plaintiff was not reappointed in 1981. Id.
Rejecting the plaintiff’s § 1983 due process claim, the Appellate Division noted that the college
president’s “alleged oral promise to reappoint plaintiff for two successive one-year terms is
unenforceable pursuant to the Statute of Frauds.” Id. at 843. Likewise, New York’s Statute of
Frauds today indicates, in pertinent part, that:
[e]very agreement, promise or undertaking is void, unless it or some note or
memorandum thereof be in writing, and subscribed by the party to be charged
therewith, or by his lawful agent, if such agreement, promise or
undertaking . . . [b]y its terms is not to be performed within one year from the
making thereof or the performance of which is not to be completed before the end
of a lifetime.
N.Y. Gen Oblig. Law § 5-701(a)(1). Here, Plaintiff seems to suggest that she was—and
presumably would continue to be—appointed to two-year terms in her job. (See Am. Compl.
¶ 10(b) (“Plaintiff has been re-appointed to her position every two years since the time of her
initial hire in March 2000, and she had a due process right to that position.”); id. ¶ 10(o))
(“However, prior after [sic] his election, Wargo had personally assured Plaintiff on several
occasions that her position was secure, since she had been working in it for ‘so long’, and that he
intended to keep her on as a personal assistant.”). As such, it plainly contravenes the statute of
frauds, and is, therefore, insufficient to create a property interest under New York law. See
Bykofsky, 484 N.Y.S.2d at 843; cf. Kant v. Columbia Univ., No. 08-CV-7476, 2010 WL 807442,
at *3 (S.D.N.Y. Mar. 9, 2010) (“The alleged oral contract—although phrased in one-year
increments—provides for performance over a two-year period, and thus violates the statute of
frauds, rendering it unenforceable.”)
To the extent that Plaintiff would respond that Wargo’s assurances were not for a twoyear term, but rather for an indefinite term, this would be tantamount to at-will employment.
See, e.g., Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 137 (2d Cir. 2007) (“Under
19

New York law, ‘employment for an indefinite or unspecified term’ is presumed to be ‘at will and
freely terminable by either party at any time without cause or notice.’” (alterations and ellipses
omitted) (quoting Horn v. N.Y. Times, 790 N.E.2d 753, 755 (N.Y. 2003))); Jones-Kahn v.
Westbury Bd. of Educ.-Westbury Union Free Sch. Dist., No. 13-CV-7144, 2015 WL 1529839, at
*13 (E.D.N.Y. Mar. 31, 2015) (“Under New York law, an employment relationship covering an
indefinite period of time is deemed to be at-will, and as such is terminable at any time by either
party, with or without cause.” (internal quotation marks omitted)); Vassallo v. Texaco Inc., 422
N.Y.S.2d 747, 748 (App. Div. 1979) (“[A]n offer for employment for an indefinite period
constitutes a hiring at will which can be terminated by either party without a showing of cause.”).
Such employment does not amount to a property interest. See Baron v. Port Auth., 271 F.3d 81,
89 (2d Cir. 2001) (“[A]t-will employment is not a constitutionally protected property interest.”);
Mace v. Cty. of Sullivan, No. 05-CV-2786, 2009 WL 413503, at *8 (S.D.N.Y. Feb. 11, 2009)
(same).
Therefore, Plaintiff’s only hope to salvage her due process claim lies in Defendants’
historic practice of reappointing her to her job. In support of her position, Plaintiff cites three
cases—Ezekwo v. New York City Health & Hospitals Corp., 940 F.2d 775 (2d Cir. 1991),
Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002), and Harhay v. Town of Ellington
Board of Education, 323 F.3d 206 (2d Cir. 2003)—for the proposition that she had a property
interest in her status as a full-time employee. However, each of these cases involved a plaintiff
with something more than just a long history at his or her respective place of employment: In
Ezekwo, the plaintiff had a property interest in being appointed chief resident in her medical
residency program where she applied to that program against a backdrop of an existing policy,
reduced to writing, of cycling each accepted resident through the chief resident position. See 940

20

F.2d at 777, 782–83. In Ciambriello, the Second Circuit concluded that the plaintiff had a
property interest in his job—if he could establish that his demotion contravened the relevant
collective bargaining agreement. See 292 F.3d at 314–15. And in Harhay, the Second Circuit
was explicit that the plaintiff “had a contractual right, according to the terms of the [collective
bargaining agreement], to be reappointed to any vacant position for which she was qualified.”
See 323 F.3d at 212 (emphasis added). In contrast, numerous cases make clear that an employee
whose position requires reappointment has no protectable property interest, absent some
additional basis to find one, in her subsequent reappointment. See, e.g., Williams v. Woodhull
Med. & Mental Health Ctr., 891 F. Supp. 2d 301, 332 (E.D.N.Y. 2012) (finding no property
interest in reappointment to medical staff position where the medical center’s bylaws “set forth
procedures regarding applications for reappointment . . . and appeals of any denial of
reappointment,” but where the plaintiff pointed to “no provision . . . that provide[d] [her] with an
entitlement to reappointment to the medical staff.”); Baxter v. Anello, No. 04-CV-428, 2008 WL
489272, at *3 (W.D.N.Y. Feb. 20, 2008) (“[The] [p]laintiff relies upon the fact that at least one
former City Clerk . . . was consistently reappointed as City Clerk by different mayors. Although
that fact may have created for the plaintiff an expectation of reappointment, it did not create a
property right to reappointment.” (emphasis in original)); Schwartz v. Mayor’s Comm. on
Judiciary of City of N.Y., 657 F. Supp. 29, 30 (S.D.N.Y. 1986) (finding no property interest in
reappointment to family court judgeship, reasoning that “the New York Constitution provides
that an appointment as a Family Court judge shall be for a term of ten years,” and that “[n]o
mention is made of any right of an incumbent to the Family Court to reappointment”), aff’d, 816
F.2d 54 (2d Cir. 1987); Ause v. Regan, 399 N.Y.S.2d 526, 531 (App. Div. 1977) (noting that the
plaintiff “allege[d] no contractual or other assurance, express or implied, of his reappointment as

21

hospital superintendent,” and that, therefore, “[a]s an appointee, whose term of office had
expired and who was occupying the position only as a hold-over . . . , [the] [plaintiff] cannot be
said to have had sufficient expectancy of continued employment to constitute a protected
property interest” (alteration and internal quotation marks omitted)). Plaintiff has provided no
basis to think that a 13-year tenure changes that calculus in any meaningful way. Accordingly,
Plaintiff lacks an adequate property interest, and her due process claims are dismissed
accordingly.
3. Qualified Immunity
Defendants also move to dismiss the claims against Phillips and Wargo because they are,
Defendants assert, protected by the doctrine of qualified immunity. (See Defs.’ Mem. 11–12.)
In so moving, Defendants’ argument was apparently limited to Plaintiff’s § 1983 claims. (See id.
(“Because no clearly established law proscribes the individual defendants’ decision to not
reappoint [P]laintiff following Mr. Wargo’s election, Plaintiff’s 42 U.S.C. § 1983 claims against
Mr. Wargo and Mr. Phillips should be dismissed.”).) Nevertheless, in her Opposition to
Defendants’ Motion, Plaintiff argues that “the laws against sexual harassment, sexual
discrimination and retaliation for opposing such forms of discrimination are clearly established,”
and that “[w]hile there is no individual liability under Title VII, there is individual liability under
[§] 296 of the New York Human Rights Law, and there is individual liability under [§] 1983 for
procedural and substantive due process violations.” (Pl.’s Mem. 23.) Perhaps consistently with
that line of reasoning, Plaintiff asserts that “the evidence strongly suggests that Phillips and
Wargo harbored animus towards [P]laintiff and colluded to terminate [P]laintiff and to deprive
her of her employment.” (Id. at 24.) In reply, Defendants stress that (1) Plaintiff’s arguments
that Phillips and Wargo acted with “animus” “misses the mark” because allegations concerning

22

state of mind are not “relevant to the qualified immunity analysis, which is primarily objective in
nature,” (2) that no clearly established law showed Plaintiff had a “clear entitlement” to her
position for purposes of a due process analysis, and (3) that Defendants qualified immunity
claims with respect to Plaintiff’s withdrawn § 1983 First Amendment retaliation claim are moot.
(See Defs.’ Reply 6–7.) Plaintiff’s argument concerning Wargo’s and Phillips’ state of mind,
therefore, appears to proceed from the understandable but mistaken belief that Defendants have
moved for qualified immunity with respect to her New York State Human Rights Law claims.
Defendants’ Reply, however, both is consistent with their initial Memorandum of Law and
makes clear that Defendants sought qualified immunity only on the basis of Plaintiff’s § 1983
claims. Therefore, because Plaintiff has withdrawn her non-due process § 1983 claim and
because the Court has already dismissed Plaintiff’s § 1983 due process claims, there is no need
to consider the qualified immunity question. See Carey v. City of Mt. Vernon, No. 09-CV-3191,
2010 WL 3912400, at *5 (S.D.N.Y. Sept. 13, 2010) (“[A]ll claims [including § 1983 claims]
against [one individual defendant] must be dismissed, and there is no need for the [c]ourt to
reach her assertion of qualified immunity.”)
4. Town Law § 67
Defendants next move to dismiss Plaintiff’s state-law claims because they are barred by
the notice-of-claim requirement found in Town Law § 67. (See Defs.’ Mem. 12–13.)
Defendants are correct.
In its entirety, Town Law § 67 provides:
1. Any claim including a claim specified in section sixty-five-a of this chapter
which may be made against the town or town superintendent of highways for
damages for wrong or injury to person or property or for the death of a person, shall
be made and served in compliance with section fifty-e of the general municipal law.

23

2. Every action upon such claim shall be commenced pursuant to the provisions of
section fifty-i of the general municipal law.
3. This section shall not apply to actions upon claims for damages or compensation
for property taken by condemnation for any public purpose.
N.Y. Town Law § 67. “[I]n a federal court, state notice-of-claim statutes,” like those contained
in Town Law § 67 and General Municipal Law §§ 50-e and 50-i, “apply to state-law claims.”
Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999) (emphasis omitted);
see also Ong v. Park Manor (Middletown Park) Rehab. & Healthcare Ctr., No. 12-CV-974,
2015 WL 5729969, at *44 (S.D.N.Y. Sept. 30, 2015) (same); Warner v. Vill. of Goshen Police
Dep’t, 256 F. Supp. 2d 171, 175 (S.D.N.Y. 2003) (“The notice of claim requirements apply
equally to state tort claims brought as pendent claims in a federal civil rights action.”). Plaintiffs
are required to serve the notice of claim “within [90] days after the claim arises.” N.Y. Gen.
Mun. Law § 50-e(1)(a). This notice of claim requirement is “construed strictly by New York
state courts,” and a “[f]ailure to comply with these requirements ordinarily requires a dismissal
for failure to state a cause of action.” Hardy, 164 F.3d at 793–94 (internal quotation marks
omitted). While “New York’s notice of claim requirements are not applicable to [§] 1983 claims
brought in federal court . . . the requirements do apply to state law personal injury claims that are
brought in federal court as related to [§] 1983 cases.” Gibson v. Comm’r of Mental Health, No.
04-CV-4350, 2006 WL 1234971, at *5 (S.D.N.Y. May 8, 2006); see also Penree v. City of Utica,
No. 13-CV-1323, 2016 WL 915252, at *5 (N.D.N.Y. Mar. 4, 2016) (“Federal courts . . . apply
state notice of claim statutes to state law claims . . . .”). Where a plaintiff has not complied with
the terms of Town Law § 67, dismissal is typically appropriate. Smith v. Scott, 740 N.Y.S.2d
425, 432 (App. Div. 2002) (noting in context of Town Law § 67 claim that “[f]ailure to comply
with provisions requiring notice and presentment of claims prior to the commencement of

24

litigation ordinarily requires dismissal” (internal quotation marks omitted)); see also El v. City of
N.Y., No. 14-CV-9055, 2015 WL 1873099, at *8 (S.D.N.Y. Apr. 23, 2015) (explaining that,
“[a]bsent a showing of . . . a notice of claim, the complaint may be dismissed for failure to state a
cause of action.” (internal quotation marks omitted) (citing, inter alia, N.Y. Gen. Mun. Law
§§ 50-e, 50-i)); Naples v. Stefanelli, 972 F. Supp. 2d 373, 390 (E.D.N.Y. 2013) (“To survive a
motion to dismiss, a plaintiff must affirmatively plead that a notice of claim was filed.” (citing
N.Y. Gen. Mun. Law § 50-i(1)(b))).
Here, the case law makes clear that the “injury to person” that Town Law § 67
contemplates includes employment discrimination claims brought pursuant to Executive Law
§ 296, the provision upon which Plaintiff relies for her second cause of action. Picciano v.
Nassau Cty. Civil Serv. Comm’n, 736 N.Y.S.2d 55, 61 (App. Div. 2001) (“[Town Law § 67]
requires compliance with the notice of claim provisions in General Municipal Law §§ 50-e and
50-i for, inter alia, ‘any claim . . . for damages for wrong or injury to person or property.’ Such
language is broad enough to include an employment discrimination claim based on Executive
Law § 296.” (italics omitted)); Scopelliti v. Town of New Castle, 620 N.Y.S.2d 405, 406 (App.
Div. 1994) (“While the plaintiff correctly argues that an action brought pursuant to Executive
Law § 296 is not a tort claim which falls within the notice provisions of the General Municipal
Law, nevertheless, his action must be dismissed [pursuant to Town Law § 67].” (citations
omitted)).
Here, Plaintiff has not alleged that she complied with Town Law § 67. Rather, she says
that “there is no requirement that notice of claims be filed against individual defendants.” (Pl.’s
Mem. 24.) For that proposition, she cites Goodwin v. Pretorius, 962 N.Y.S.2d 539, 545 (App.
Div. 2013), for its observation that:

25

the courts have misapplied or misunderstood the law in creating, by judicial fiat, a
requirement for notices of claim that goes beyond those requirements set forth in
the statute. If the legislature had intended that there be a requirement that the
individual employees be named in the notices of claim, it could easily have created
such a requirement.
See id. at 545. However, even if individual employees need not be named in a notice of claim,
see id., the relevant statutes make clear that a notice of the particular claim must nevertheless be
submitted, see N.Y. Town Law § 67 (“Every action upon such claim shall be commenced
pursuant to the provisions of section fifty-i of the general municipal law.”); N.Y. Gen. Mun. Law
§ 50-i (“No action . . . shall be prosecuted or maintained against a . . . town . . . for [specified
injuries] alleged to have been sustained by reason of the negligence or wrongful act of
such . . . town . . . or of any officer, agent[,] or employee thereof . . . , unless, [among other
things,] a notice of claim shall have been made and served upon the . . . town . . . in compliance
with section fifty-e of this article . . . .”). Therefore, because Plaintiff has not alleged that she
filed a notice of claim against the Town, her Executive Law § 296 claim is dismissed. See El,
2015 WL 1873099, at *8 (“Absent a showing of such a notice of claim, the complaint may be
dismissed for failure to state a cause of action.” (internal quotation marks omitted)); Naples, 972
F. Supp. 2d at 390 (“To survive a motion to dismiss, a plaintiff must affirmatively plead that a
notice of claim was filed.” (citing N.Y. Gen. Mun. Law § 50–i(1)(b))).
III. Conclusion
For the foregoing reasons, Defendants’ Motion To Dismiss Plaintiff’s due process, First
Amendment, and Executive Law § 296 claims is granted; Defendants’ Motion is, however,

26

denied with respect to Plaintiffs Title VII claim. The Clerk of the Court is respectfully
requested to terminate the pending Mot ion. (See Dkt. No. 19.)
SO ORDERED.
Dated:

Marc h3l , 2016
White Plains, New York

27