Opinion
11-CV-2191 (CBA)
08-17-2012
OJU S. MINIMA, Plaintiff, v. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM ("NYCERS"); JOSEPH MANGANO, Director of Client Services; MRS. H. BASTAWROSE, Assistant Deputy Director, Retirement Benefits; THEA CENIZA, Retirement Benefit Examiner, Defendants.
REPORT & RECOMMENDATION
GOLD, STEVEN M., United States Magistrate Judge:
INTRODUCTION
Plaintiff Oju Minima, pro se, claims in this case that the New York City Employees' Retirement System ("NYCERS") wrongfully suspended payment of his pension benefits. Defendant NYCERS contends that plaintiff's benefits were suspended because plaintiff failed to provide NYCERS with the birth and marriage certificates of Joyce Minima, plaintiff's wife and designated beneficiary. The parties agree that plaintiff did provide these certificates when he was earlier asked to do so. Defendant contends, however, that the certificates were misplaced, and that it asked plaintiff for additional copies. Moreover, defendant NYCERS states that it is willing to restore plaintiff's pension benefits, and make all retroactive payments due, as soon as plaintiff provides replacement copies of the required certificates. Plaintiff has declined to provide the required certificates and has opted instead to pursue this lawsuit.
In his first complaint, plaintiff sued NYCERS and several of its officers for breach of fiduciary duty. Compl. at 1, Docket Entry 1. Defendants moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See generally Defs. Mem. Plaintiff responded to defendants' motion by filing a "petition for writ of mandamus" and a new complaint asserting a violation of his constitutional due process rights. See Pl. Supp. Mem., Docket Entry 19. I treated this submission as both opposition to the motion to dismiss and as an amended complaint. Defendants subsequently submitted a reply to plaintiff's filing ("Defs. Reply," Docket Entry 23). The Honorable Carol B. Amon referred defendants' motion to dismiss and plaintiff's additional petition to me for report and recommendation. See Dec. 9, 2011 Order.
Defendants argue that NYCERS is not a suable entity under New York City Charter § 396, which states that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." See Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) ("Defs. Mem.") at 6, Docket Entry 21-1. In addition, the portion of the New York City Administrative Code governing the activities of NYCERS states that "[t]he provisions of chapter seventeen of the charter [which includes § 396] shall continue to apply to the retirement system and the retirement system shall constitute an agency for the purposes of such chapter seventeen." § 13-103(c)(5). It is not in fact clear, however, what type of entity NYCERS is. Compare § 13-103(c)(5) with § 13-120 (providing that the "retirement system shall have the powers and privileges of a corporation").
Notwithstanding the Charter provision, NYCERS is frequently the subject of suits in courts in this Circuit, and I can find no case law indicating that NYCERS may not be sued in its own name. See, e.g., Campo v. NYCERS, 843 F.2d 96 (2d Cir. 1988); Bagedonow v. NYCERS, 2010 WL 2927436 (S.D.N.Y. July 16, 2010); Jernigan v. NYCERS, 2010 WL 1049585 (E.D.N.Y. Mar. 18, 2010); Pennyfeather v. NYCERS, 2005 WL 3534759 (S.D.N.Y. Dec. 21, 2005). Given my recommendations below, the status of NYCERS and whether it is subject to suit is not dispositive. However, if this Report and Recommendation is not accepted, I respectfully request that this question be referred to me for further consideration.
"Pl. Supp. Mem." refers to plaintiff's submission entitled "Petition for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief."
I treated the filing as such because of plaintiff's pro se status. See Washington v. James, 782 F.2d 1134, 1138-39 (2d Cir. 1986) (considering a pro se plaintiff's "Affidavit and Memorandum of Law" to be an amendment to his complaint on a 12(b)(6) motion); Vazquez v. Parks, 2003 WL 1442087, at *2 (S.D.N.Y. Feb. 4, 2003), aff'd on other grounds 101 Fed. Appx. 365 (2d Cir. 2004) (treating pro se plaintiff's complaint, motion and a document containing both law and facts "leniently and in the aggregate"); Fraternal Order of Police v. U.S. Postal Serv., 988 F. Supp. 701, 705 (S.D.N.Y. 1997) (evaluating a basis for jurisdiction only articulated in plaintiff's memorandum of law in opposition to defendant's motion). Further, "leave to amend should be 'freely given,' FED. R. CIV. P. 15(a), and a pro se litigant in particular 'should be afforded every reasonable opportunity to demonstrate that he has a valid claim.'" Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quoting Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)). Consideration of a pro se plaintiff's additional claims is also appropriate on a motion for summary judgment. Augustus v. MSG Metro Channel, 217 F. Supp. 2d 458, 463, 463 n.34 (S.D.N.Y. 2002) (construing pro se plaintiff's opposition to a summary judgment motion to be a motion to amend the complaint and collecting cases to the same effect).
Following an examination of plaintiff's due process claims in particular, I ordered the parties to supplement their filings. See Docket Entry 28. In response, defendants filed a supplemental affidavit with attached exhibits and a supplemental memorandum ("Defs. Supp. Aff.," "Defs. Exs." and "Defs. Supp. Mem.," Docket Entries 30, 31). Plaintiff submitted an additional memorandum with attached exhibits ("Pl. Supp. Mem. 2d," Docket Entry 32).
By Order dated January 20, 2012, I scheduled a conference to be held on January 31, 2012. I directed the parties to be prepared to address whether defendants' Rule 12 motion should be converted to one for summary judgment and, if so, whether either party sought to take discovery before the motion was submitted. Plaintiff failed to appear for the conference. I then rescheduled the conference for February 16, 2012. Docket Entry 33. Plaintiff again failed to appear. Although he was then reached by telephone, plaintiff declined to stay on the line and participate in the conference. Docket Entry 35.
After reviewing the parties' submissions, I ruled that defendants' motion to dismiss be converted to one for summary judgment under FED. R. CIV. P. 12(d). When the Court converts a motion to dismiss to one for summary judgment, the "parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." FED. R. CIV. P. 12(d); see also Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990) (describing the notice to the parties required). Further, Local Civil Rule 12.1 mandates that pro se plaintiffs be served with notice of the conversion and with a copy of FED. R. CIV. P. 56. See id.
Both parties have had the opportunity to supplement their submissions and plaintiff has been provided with the notice required by the Local Rules. See Order dated Feb. 17, 2012, Docket Entry 34. Plaintiff has filed an additional memorandum, "Pl. Supp. Mem. 3d," Docket Entry 39, and defendants have elected not to file a reply. Having considered all the above submissions, I respectfully recommend that the motion for summary judgment be granted and the claims against defendants be dismissed.
BACKGROUND
According to the defendants, and without contradiction by the plaintiff, plaintiff joined NYCERS in 1998 after beginning work for the City the previous year. See Defs. Supp. Mem. at 3; Defs. Ex. 1. In November 2008, plaintiff filed a Designation of Beneficiary form, naming Joyce Minima, his wife, as the beneficiary of his Ordinary Death Benefit, as well as a Retirement Option Election Form, electing to have a reduced amount of benefits paid to him during his life and, after his death, to Joyce Minima, if she survived him. Defs. Supp. Mem. at 5; Defs. Ex. 11. As defendants note, the Retirement Option Election Form states that NYCERS "require[s] proof of date of birth for [the] designated beneficiary, as well as a marriage certificate, if [the] beneficiary is a married woman." Defs. Supp. Mem. at 5; Defs. Ex. 11; see also Defs. Mem. at 5 n.6 (stating that this documentation is necessary because, "[i]n order to properly make [the actuarial] calculation, the actuary needs proof of what a member states on his or her form," and "once [this form] is finalized, it cannot be changed").
This type of option for receiving retirement benefits is described as "Option Five" in N.Y. RETIRE. & SOC. SEC. L. § 610(a).
While I am unable to find corroboration for defendants' statement that the form is permanently binding, the relevant law does state that "an option selection previously filed by a member or retired member subject to the provisions of this section may be changed no later than thirty days following the date of payability of his or her retirement allowance." N.Y. RETIRE. & SOC. SEC. L. § 610(f).
Around November 2008, plaintiff had a number of interactions with NYCERS regarding the submission of the documentation necessary to effectuate his selected benefit plan. Plaintiff states in his complaint that he first submitted Joyce Minima's birth and marriage certificates in person on November 18, 2008, during a visit to NYCERS' office. Compl. at 2. Defendants' records reflect a customer service visit on November 19, during which defendant Joseph Mangano told plaintiff that he must submit his wife's birth certificate and a marriage certificate. See Defs. Ex. 12. Plaintiff apparently faxed the documentation on November 20, but the copy was not legible. Defs. Ex. 13; see also Pl. Supp. Mem. 2d, Ex. 3 (a copy of a fax cover sheet stating that a copy of plaintiff's wife's birth certificate was attached with a fax confirmation report dated November 19).
Despite the complaint's reference to a number of exhibits, no exhibits were attached to it. While certain exhibits described in the complaint appear to have been included in later filings, the most crucial of those documents, such as a "faxed copy of document of marriage certificate indicating maiden name of wife," see Compl. at 2, were not.
Plaintiff and defendants appear to agree that plaintiff resubmitted the necessary documents on November 21, 2008. See, e.g., Pl. Supp. Mem. 3d at 8; Defs. Supp. Mem. at 6. Defendant Mangano's records indicate that he received the birth and marriage certificates on November 21, 2008. Defs. Ex. 14. However, defendants state that they are now unable to find these documents or a record of their being entered into NYCERS' system. Defs. Supp. Mem. at 6.
Plaintiff repeatedly cites a document he claims to be evidence of his submission of the birth and marriage certificates on November 21, 2008. Plaintiff claims that this document, labeled as Exhibit D to plaintiff's third supplemental memorandum and included as an exhibit to other filings, is defendant "Mangano's hand written confirmation of Plaintiff's delivery to him[ of] original documents of Plaintiff's Wife's Date of Birth and Marriage Certificates bearing NYCERS' OFFICIAL STAMP AND DATE." Pl. Supp. Mem. 3d at 8. The document appears, however, to be a sheet designed for NYCERS members to request information from the agency and to contain only the plaintiff's statement that he was submitting the two certificates at that time. While the form itself is stamped as received by NYCERS' Customer Service on November 21, 2008, I do not see anything purporting to be Mangano's handwriting or a confirmation that the underlying documents were received.
Plaintiff subsequently applied for payment of his retirement benefits effective December 2009. Defs. Supp. Mem. at 6; Defs. Ex. 15. Mr. Minima states that he began receiving partial payments from his pension approximately a year before the payments were suspended in April 2011. See Pl. Supp. Mem. 3d at 2.
This application was Mr. Minima's second; he previously applied to receive retirement benefits and then reentered city service. See Defs. Supp. Mem. at 3-4.
Defendants aver that, after plaintiff applied to receive his pension, they attempted on numerous occasions to obtain another copy of the two certificates they could not find in their system. According to defendants, on April 27, 2010, Hanan Bastawrose, the Assistant Deputy Director of Retirement Benefits at NYCERS, informed plaintiff (apparently by phone) that NYCERS required the two documents; defendants have provided what appears to be an internal record of this interaction. See Defs. Supp. Mem. at 6; Defs. Ex. 16. Thea Ceniza, a Retirement Benefit Examiner, then wrote to plaintiff on May 28, 2010, describing the documents he could use to satisfy their requirements and warning him that any pension payment would be suspended if the documents were not received within fifteen days. See Defs. Supp. Mem. at 6; Defs. Ex. 17. Plaintiff states that he sent a "letter of protest" to defendant Ceniza on May 10, 2010 in response. See Pl. Supp. Mem. 3d at 2-4; Pl. Exs. F (copy of letter to NYCERS dated May 1, 2010), B (email confirming delivery of letter, sent by certified mail to NYCERS, on May 4, 2010).
"Pl. Ex." refers to the exhibits attached to plaintiff's third supplemental memorandum, Docket Entry 39-1.
A number of letters from defendants to plaintiff followed during the next year. Defendant Bastawrose wrote Mr. Minima on February 7, 2011, again giving him 15 days to submit documents. See Defs. Ex. 18. Plaintiff responded with a letter on February 12, 2011, reiterating that he had previously sent the requested documents. See Pl. Ex. E; Defs. Supp. Mem. at 7, Defs. Ex. 19. Ms. Bastawrose wrote to plaintiff on March 10, 2011 requesting the documents and stating that processing of his pension would be delayed without the certificates. See Defs. Ex. 20. On April 12, 2011, Ms. Bastawrose wrote for the last time to plaintiff informing him that his benefits would be suspended approximately two weeks later if the documents were not supplied to NYCERS and asking him to contact her by phone or to provide telephone contact information. See Defs. Supp. Mem. at 7-8; Defs. Ex. 21.
Plaintiff appears not to contest the majority of these facts. He adds, however, that he communicated by telephone with various people at NYCERS approximately twenty times between April 2010 and April 2011. Pl. Supp. Mem. 3d at 2, 9-10.
Plaintiff is still not receiving his pension payments; however, defendants' counsel has represented that "[a]s soon as plaintiff provides NYCERS with a copy of his alleged wife's birth certificate and his marriage certificate, NYCERS is ready, willing and able to re-insistituted [sic] plaintiff's pension and retroactively pay him for the time in which his pension has been suspended." Defs. Supp. Mem. at 8. Plaintiff has not directly responded to this offer. See id. at 8 n.9 (describing defendants' counsel's attempts to reach plaintiff).
DISCUSSION
A party is entitled to summary judgment 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). An issue of fact is material if it "might affect the outcome of the suit under the governing law," and a dispute about that fact is genuine "if the evidence [supporting it] is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation omitted).
In reaching a determination on summary judgment, the Court must resolve ambiguities and draw reasonable inferences in favor of the nonmoving party. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991). The moving party bears the initial burden of establishing that there are no genuine issues of material fact; once he does so, the non-moving party may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial. Anderson, 477 U.S. at 256; Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996). Mere conclusory allegations, however, are insufficient, and "[t]here must be more than a 'scintilla of evidence'" to defeat a motion for summary judgment. Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252). When a pro se party opposes summary judgment, "although the same standards for dismissal apply, a court should give the pro se litigant special latitude." Ibeawuchi v. United States, 209 F.R.D. 320, 321-22 (S.D.N.Y. 2002).
a. Petition for mandamus relief
Defendants are entitled to summary judgment as matter of law on plaintiff's petition for mandamus relief. Plaintiff invokes the Mandamus Act, 28 U.S.C.§ 1361, which provides that the "district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." See Pl. Supp. Mem. at 3-4. By the statute's express terms, the jurisdiction of federal courts does not extend to lawsuits seeking to compel action by city officers and employees; federal courts may compel only federal officers to act. See also Sloan v. Truong, 573 F. Supp. 2d 823, 828 (S.D.N.Y. 2008) (noting that "claims [under Section 1361] may be brought only against an officer, employee, or agency of the United States" and finding that "the district court lacks jurisdiction when the requirements for mandamus are not met" (emphasis added; internal citations omitted)). The Second Circuit has pointed out that an action pursuant to New York's Article 78 is the appropriate vehicle for obtaining an order directed to a local official: "we recognize that under New York State law, Article 78 is a form of proceeding available to compel public [city] officials to comply with their responsibilities." Vandor, Inc. v. Militello, 301 F.3d 37, 39 (2d Cir. 2002) (citing N.Y. C.P.L.R. 7801 et seq.); see also Campo, 843 F.2d at 101; Cruz v. N.Y.C. Taxi, 2007 WL 4243861, at *4 (E.D.N.Y. Nov. 29, 2007).
It is not wholly clear whether a motion to dismiss a petition for the writ of mandamus is properly brought under Rule 12(b)(1) or 12(b)(6). Compare Clemmons v. Comm'r Soc. Sec., 2012 WL 1107661, at *6 (E.D.N.Y. Mar. 30, 2012) (denying a motion to dismiss for lack of subject matter jurisdiction because the Court could exercise mandamus jurisdiction) with Tirado v. Lindsay, 2009 WL 4065958, at *4 (E.D.N.Y. Nov. 19, 2009) (adopting the recommendation that the mandamus claim be dismissed on its merits); see also Delott v. Astrue, 2011 WL 703560, at *3 n.2 (E.D.N.Y. Feb. 18, 2011) (noting that this question is an open one in the Second Circuit but finding that Second Circuit cases have more often discussed mandamus relief as a jurisdictional issue (citing cases)).
Whether defendants' motion to dismiss as to the mandamus claim should be understood as one made under 12(b)(1) or 12(b)(6) before its conversion to a motion for summary judgment is ultimately immaterial. "Though Rule 12(b)(1) does not expressly provide for conversion of a motion to dismiss into a motion for summary judgment, courts have held that 'the outcome should be the same' under both rules.'" Tsanganea v. City Univ. of New York, 2008 WL 4054426, at *3 (S.D.N.Y. Aug. 28, 2008) (citing cases).
The plaintiff argues that, by invoking the writ of mandamus, he is in fact commencing an Article 78 proceeding. See Pl. Supp. Mem. 3d at 12. This argument ignores, however, that he has petitioned for a writ of mandamus under the federal statute, rather than employing the state Article 78 process. While both proceedings involve compelling officials to act, the federal statute under which plaintiff has moved applies only to federal officials. To the extent that plaintiff is making a claim for review under Article 78, I would recommend declining to exercise supplemental jurisdiction under 28 U.S.C. § 1367, as is discussed further below.
Mr. Minima's claims are directed not toward any federal entity, but instead to NYCERS and its employees. As NYCERS is a city body, functioning pursuant to provisions in the New York City Administrative Code, see § 13-102, this Court does not have jurisdiction to issue a writ of mandamus pursuant to Section 1361. For this reason, I recommend that defendants be granted summary judgment on this claim.
b. Due Process Claim
Plaintiff argues that NYCERS's actions have violated the due process rights afforded him by the Fourteenth Amendment. See Pl. Supp. Mem. at 2. Plaintiff asserts that he has been deprived of a property right without due process of law. Id. (stating that "Plaintiff's retirement benefit is the sole and only source of livelihood and sustenance and [that] any unconstitutional hindrance or blockage . . . of this benefit . . . is a gross and blatant violation of plaintiff's 14th Amendment [rights]" (emphasis omitted)). As I find that plaintiff has not raised a genuine issue of material fact as to whether he was deprived of sufficient process, I respectfully recommend that the defendants be granted summary judgment on this claim, as well.
In certain circumstances, revoking or refusing to pay retirement benefits may constitute a due process violation actionable pursuant to 42 U.S.C. § 1983. I therefore liberally construe the pleadings of this pro se plaintiff, see, e.g., Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and infer that Mr. Minima sought to bring a claim under 42 U.S.C. § 1983.
A plaintiff asserting a constitutional violation under § 1983 must show that "(1) the defendant acted under color of state law; and (2) the defendant's action resulted in a deprivation of the plaintiff's constitutional rights." Williams v. N.Y.C. Housing Auth., 335 Fed. Appx. 108, 110 (2d Cir. 2009) (citing Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir. 2004)). NYCERS is considered a "person" acting under color of law for the purposes of Section 1983. See Campo, 843 F.2d at 99 (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 669 (1978)); Morris v. N.Y.C. Emp. Retirement Sys., 129 F. Supp. 2d 599, 605 (S.D.N.Y. 2001) (accepting the undisputed proposition that "NYCERS is a state actor for the purposes of Section 1983" and that it "was acting under color of state law" when deciding whether or not to award benefits (internal citations omitted)). It appears that plaintiff also sues the other named defendants in their official, rather than individual, capacities. They are also subject to suit under Section 1983 as acting under color of state law. See Nassau County Emp. "L" v. County of Nassau, 345 F. Supp. 2d 293, 298 (E.D.N.Y. 2004) (noting that "[a] claim against a municipal employee in his or her official capacity may be treated as an action against the municipality itself" (citing Hafer v. Melo, 502 U.S. 21, 25 (1991); Orange v. County of Suffolk, 830 F. Supp. 701, 706-07 (E.D.N.Y. 1993))).
It is clear that, "[i]n order to impose § 1983 liability upon a municipality or municipal agency, a plaintiff must demonstrate that any constitutional harm suffered was the result of a municipal policy or custom." Bowles v. N.Y.C. Trans. Auth., 285 Fed. Appx. 812, 815 (2d Cir. 2008) (internal citation and brackets omitted); see also Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991) (noting that the same rule applies to municipal employees sued in their official capacities)). Because I find that there is no genuine issue of material fact regarding plaintiff's claim that he was deprived of property without due process, I do not consider whether NYCERS is a municipal agency or whether, if so, the violation of rights alleged by plaintiff resulted from a custom or policy.
The Supreme Court "consistently has held that some form of hearing is required [as a matter of procedural due process] before an individual is finally deprived of a property interest." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing cases). The New York State Constitution provides that Mr. Minima has a property interest in his pension benefits. See N.Y. CONST. Art. V, § 7 (mandating that "membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired"); Bagedonow, 2010 WL 2927436, at *3 (noting that the "Second Circuit has held that a protectable property interest may inhere to an employee's public pension benefits" (citing McDarby v. Dinkins, 907 F.2d 1334, 1336 (2d Cir. 1990); Winston v. City of New York, 759 F.2d 242, 247 (2d Cir. 1985))); Ortiz v. Regan, 749 F. Supp. 1254, 1258 (S.D.N.Y. 1990) (observing that "[t]here is little question that plaintiff's right to continued pension payments is a property right protected by the due process clause of the Fourteenth Amendment" and finding that this constitutional protection extends to advance pension payments) (citing cases).
It is well-settled that an Article 78 proceeding generally provides constitutionally adequate post-deprivation process. See Campo, 843 F.2d at 102-03 (holding "that the State of New York, through Article 78, offered . . . a due process hearing at a meaningful time and in a meaningful manner" to a plaintiff whose survivor benefits from her late husband's pension were terminated); see also Manza v. Newhard, 2012 WL 917286, at *2 (2d Cir. Mar. 20, 2012) (citing with approval the District Court's finding that "the Article 78 proceeding provided [plaintiff] with a sufficient post-deprivation remedy").
It is immaterial that the statute of limitations for commencing an Article 78 proceeding has almost certainly elapsed in this case. "Where . . . Article 78 gave the employee a meaningful opportunity to challenge the [state action], he was not deprived of due process simply because he failed to avail himself of that opportunity." Silverman v. City of New York, 2001 WL 218943, at *6 (E.D.N.Y. Feb. 2, 2001) (quoting Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984)).
Essentially then, Mr. Minima's Section 1983 claim rests on whether he was provided adequate process before his benefits were suspended. While "[d]ue process is flexible and calls for such procedural protections as the particular situation demands," Mathews v. Eldridge, 424 U.S. at 334 (internal citation and punctuation omitted), the Supreme Court has held that some process may be constitutionally required prior to the deprivation of a property right in many circumstances. Specifically, while post-deprivation remedies might satisfy due process "where the State is truly unable to anticipate and prevent a random deprivation," it is also true that, "[i]n situations where the State feasibly can provide a predeprivation hearing before taking property, it must do so regardless of the adequacy of [the] postdeprivation . . . remedy." Zinermon v. Burch, 494 U.S. 113, 132 (1990); Kshel Realty Corp. v. City of New York, 293 Fed. Appx. 13, 15 (2d Cir. 2008) (same); see also Ortiz v. Regan, 749 F. Supp. 1254, 1260 (S.D.N.Y. 1990) (finding that predeprivation process should "at least [be] 'an initial check against mistaken decisions'" (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985))).
When predeprivation process is required, it must, "[a]t minimum, . . . provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Weinstein v. Albright, 261 F.3d 127, 134 (2d Cir. 2001) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)); see also Sweeney v. City of New York, 186 Fed. Appx. 84, 86 (2d Cir. 2006) (holding that "due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards" (internal citation omitted)).
In the context of termination or suspension of pension benefits, courts have found a due process violation where a pensioner was given no notice that his pension would be suspended, or where the notice provided was so confusing as to suggest that the determination was final. See Ortiz, 749 F. Supp. at 1260 (finding that plaintiff stated a claim for deprivation of property without due process where plaintiff was not told her benefits would be suspended and was given inadequate instructions about how to replace them); Weaver v. NYCERS, 717 F. Supp. 1039, 1045 (S.D.N.Y. 1989) (finding that a notice regarding a finding of incapacity, and its effects on plaintiff's receipt of his pension, was constitutionally defective because "a reasonable lay person would not have known that he had an opportunity to contest defendants' finding" (emphasis in original)).
In contrast, plaintiff Minima was informed multiple times of NYCERS' intent to suspend his pension benefits, was told precisely why his benefits were about to be suspended, and was given an opportunity to provide NYCERS with the documents required to avoid suspension of his benefits. He does not dispute that he received multiple letters from defendants informing him about the impending suspension of his benefits, nor does he deny that defendants' letters told him how he might avoid that result. See Defs. Exs. 17-21. Indeed, it is clear from the records of plaintiff's multiple phone conversations with NYCERS, see Pl. Supp. Mem. 3d at 2, 9-10, and plaintiff's letter protesting NYCERS' decision, Pl. Ex. F, that plaintiff was aware of defendants' intent to suspend his payments unless it received the birth and marriage certificates of his designated beneficiary. Clearly, then, the process defendants afforded to Minima was constitutionally sufficient. See O'Connor v. Pierson, 426 F.3d 187, 198 (2d Cir. 2005) (where plaintiff was aware of the imminent deprivation and objected to it, the lack of pre-termination hearing did not violate his due process rights because, in part, the "parties were well aware of each other's assertions and any further hearing would have amounted to an empty formality"). Accordingly, I recommend that defendants' motion for summary judgment on plaintiff's due process claim be granted.
c. Breach of fiduciary duty
In his original complaint, plaintiff alleged that NYCERS breached its fiduciary duty to him by suspending his pension payments. See generally Compl. Plaintiff's contentions are more appropriately brought in an Article 78 hearing. "That plaintiff stated his challenge to . . . [a NYCERS administrative] determination in terms of a breach of contract or fiduciary duty did not serve to render an [A]rticle 78 proceeding, the customary vehicle for review of administrative determinations, inappropriate." Leon v. NYCERS, 658 N.Y.S.2d 283, 284 (1st Dep't 1997) (citing Solnick v. Whalen, 49 N.Y.2d 224 (1980); Clissuras v. City of New York, 517 N.Y.S.2d 39 (2d Dep't 1987)) (affirming the trial court's dismissal of, among other claims, one for breach of fiduciary duty, on the ground that Article 78's four month statute of limitations had expired). Here also, the gist of plaintiff's claim is one for review of NYCERS' administrative decisions.
To the extent that plaintiff seeks a form of Article 78 review in this Court, I recommend that supplemental jurisdiction under 28 U.S.C. § 1367 not be exercised over his claim. There does not appear to be a consensus in this Circuit as to whether courts may, in their discretion, hear Article 78 claims under the rubric of supplemental jurisdiction. Clear Wireless L.L.C. v. Bldg. Dep't of Lynbrook, 2012 WL 826749, at *9 (E.D.N.Y. Mar. 8, 2012) (noting that "it is doubtful . . . that claims under Article 78 are even amenable to a district court's supplemental jurisdiction" (quoting Morningside Supermarket Corp. v. N.Y. State Dep't of Health, 432 F. Supp. 2d 334, 346 (S.D.N.Y. 2006))); see also Cartagena v. City of New York, 257 F. Supp. 2d 708, 710 (S.D.N.Y. 2003) (finding that the Court lacked discretion to conduct an Article 78 proceeding, but, in a later proceeding, exercising supplemental jurisdiction under Article 78 given the consent of the parties and the unusual circumstances of the case, see 345 F. Supp. 2d 414, 426 (S.D.N.Y. 2004)).
Although there may be rare circumstances under which a federal court might conduct an Article 78 proceeding, the "overwhelming majority of district courts confronted with the question . . . have found that they are without power to do so or have declined to do so." Clear Wireless, 2012 WL 826749, at *9 (quoting Coastal Commc'ns Serv., Inc. v. City of New York, 658 F. Supp. 2d 425, 459 (E.D.N.Y. 2009)); see also DeJesus v. City of New York, 2012 WL 569176, at *4 (S.D.N.Y. Feb. 21, 2012) (noting that "Article 78 is not in and of itself a cause of action, but a procedure best suited for state courts"). In any event, a federal court may "decline to exercise supplemental jurisdiction . . . if . . . [it] has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c); see also Smith v. Oppenheimer Funds Distrib., Inc., 824 F. Supp. 2d 511, 523 (S.D.N.Y. 2011) (observing that "[i]t has consistently been recognized that pendant jurisdiction is a doctrine of discretion, not of plaintiff's right" (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966))). For all these reasons, and because I have recommended that defendants be granted summary judgment on plaintiff's federal causes of action, I recommend declining to exercise supplemental jurisdiction over any claim plaintiff makes to be entitled to Article 78 review in this Court.
CONCLUSION
For the reasons stated above, I respectfully recommend that summary judgment be granted in favor of the defendants on all federal claims and that, to the extent that plaintiff presses the state law claims discussed above, this Court decline to exercise its jurisdiction. Any objections to the recommendations made in this Report must be made within fourteen days after service of the Report and, in any event, no later than September 7, 2012. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. Proc. 72(b)(2). Failure to file timely objections may waive the right to appeal the District Court's order. See Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (discussing waiver under the former ten day limit). A copy of this Report will be mailed today to the pro se plaintiff at the address listed on the docket sheet.
/s/_________
Steven M. Gold
United States Magistrate Judge Brooklyn, New York
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