# Holtz v. Town of Arcadia

> District Court, W.D. New York · February 24, 2025

URL: https://www.frixlaw.com/law-library/cases/10805131

## Case

- **Court:** District Court, W.D. New York
- **Decided:** February 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________

STEPHANIE HOLTZ,

Plaintiff, DECISION AND ORDER

v. 6:22-CV-06449 EAW

TOWN OF ARCADIA,

Defendant.
___________________________________
INTRODUCTION
Plaintiff Stephanie Holtz (“Plaintiff”) brings this action against the Town of Arcadia
(“Defendant” or “the Town”) arising from the termination of her employment as the Town’s
sole assessor. Defendant has filed a motion for judgment on the pleadings and/or for
summary judgment (Dkt. 44) and Plaintiff has cross-moved for summary judgment (Dkt.
53).
For the reasons that follow, Defendant’s motion is granted in part and denied in part
and Plaintiff’s cross-motion is denied.
BACKGROUND
I. Factual Background
Plaintiff is a New York State assessor. (Dkt. 53-1 at ¶ 5; Dkt. 60-24 at ¶ 5). The
Town was and is a municipal corporation duly organized and existing under the laws of
the State of New York, having its principal offices located at 201 Frey Street in Newark,
New York. (Dkt. 53-1 at ¶ 3; Dkt. 60-24 at ¶ 3). Prior to her employment with the Town,
Plaintiff was previously the sole assessor for the Town of Victor, where she was appointed
to fill the remaining term of the prior assessor and was initially on probation when hired.
(Dkt. 44-14 at ¶ 7; Dkt. 61-3 at ¶ 7).

On September 30, 2020, Plaintiff received a letter offering her the position of sole
assessor for the Town. (Dkt. 44-14 at ¶¶ 6, 17; Dkt. 61-3 at ¶¶ 6, 17; Dkt. 53-1 at ¶ 12;
Dkt. 60-24 at ¶ 12). The offer letter provided that Plaintiff’s “appointment will be for a
term of 6 years,” and would be “in compliance with the NYS guidelines.” (Dkt. 53-1 at
¶¶ 13, 14; Dkt. 60-24 at ¶¶ 13, 14). The letter was signed by Plaintiff and Jon Verkey, the

Supervisor of the Town, on October 8, 2020. (Dkt. 53-1 at ¶ 15; Dkt. 60-24 at ¶ 15). The
offer letter reflected an annual salary of $66,000 for the assessor’s position and provided it
would continue to accrue at a 2% increase every year until the completion of the term.
(Dkt. 53-1 at ¶ 26; Dkt. 60-24 at ¶ 26).
Plaintiff’s start date of employment with the Town was October 19, 2020. (Dkt. 44-

14 at ¶ 19; Dkt. 61-3 at ¶ 19; Dkt. 53-1 at ¶ 1; Dkt. 60-24 at ¶ 1). Barb DiSanto (“DiSanto”)
was an assessor clerk who worked in the office with Plaintiff. (Dkt. 44-14 at ¶ 8; Dkt. 61-
3 at ¶ 8). Plaintiff knew that she would be working with DiSanto when she accepted the
position with the Town. (Dkt. 44-14 at ¶ 10; Dkt. 61-3 at ¶ 10). Plaintiff testified that
while employed with the Town, DiSanto was “my clerk.” (Dkt. 44-14 at ¶ 11; Dkt. 61-3

at ¶ 11). Supervision over the work of clerical staff was included in the assessor’s job
description. (Dkt. 44-14 at ¶ 16; Dkt. 61-3 at ¶ 16).
Plaintiff had concerns about DiSanto’s job performance because, among other
things, DiSanto made repeated errors, including careless spelling and math errors, and her
behavior was erratic. (Dkt. 44-14 at ¶ 13; Dkt. 61-3 at ¶ 13). Plaintiff testified that she
contacted Wayne County to obtain DiSanto’s job description and felt that it was her job to
report issues with DiSanto because DiSanto’s mistakes impacted the taxpayers of the

community. (Dkt. 44-14 at ¶¶ 14, 15; Dkt. 61-3 at ¶¶ 14, 15).
In an August 25, 2021 email to Richard VanLaeken, the Deputy Town Supervisor,
Plaintiff wrote: “[o]ne more thing is my probation is up in October. I’m not sure if the
Board will be keeping me on or not,” though Plaintiff denies that this email operated as an
acknowledgment of her employment status. (Dkt. 44-14 at ¶ 18; Dkt. 61-3 at ¶ 18).

Plaintiff was terminated on September 23, 2021. (Dkt. 44-14 at ¶ 19; Dkt. 61-3 at
¶ 19; Dkt. 53-1 at ¶ 22; Dkt. 60-24 at ¶ 22). When Plaintiff asked why she was being
terminated, the Deputy Town Supervisor advised her that it was because Plaintiff “was not
happy here” and they “can’t have tension in the town hall.” (Dkt. 53-1 at ¶ 23; Dkt. 60-24
at ¶ 23). Plaintiff filed a Notice of Claim on or about November 15, 2021. (Dkt. 53-1 at

¶ 26; Dkt. 60-24 at ¶ 26). Plaintiff never commenced an Article 78 proceeding against the
Town with regard to her termination or for a claim of entitlement to a hearing. (Dkt. 44-
14 at ¶ 20; Dkt. 61-3 at ¶ 20).
In her complaint filed on September 13, 2022 (Dkt. 1-2 at 6-19), Plaintiff asserts
four claims against Defendant: (1) wrongful termination in violation of Real Property Tax

Law § 310(2) and New York Public Officers Law § 36; (2) violation of civil service law
§ 75-b; (3) First Amendment retaliation pursuant to 42 U.S.C. § 1983; and (4) violation of
due process pursuant to 42 U.S.C. § 1983.
II. Procedural Background
Plaintiff filed this action in Wayne County Supreme Court on September 13, 2022,
against the Town and the Village of Newark.1 (Dkt. 1-2). On October 18, 2022, the Town

removed the action to federal court on the basis of federal question jurisdiction and filed
its answer. (Dkt. 1; Dkt. 2). On July 11, 2023, the Town filed an amended answer. (Dkt.
31).
On August 26, 2024, the Town filed the instant motion for summary judgment and
for judgment on the pleadings. (Dkt. 44). On October 17, 2024, Plaintiff filed her

opposition (Dkt. 61), and on November 1, 2024, the Town filed its reply (Dkt. 64).
On August 29, 2024, Plaintiff filed her cross-motion for summary judgment. (Dkt.
53). On October 17, 2024, the Town filed its opposition to Plaintiff’s motion (Dkt. 60),
and on November 1, 2024, Plaintiff filed her reply (Dkt. 66).2
DISCUSSION

I. Legal Standards
A. Motion for Judgment on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the
pleadings are closed—but early enough not to delay trial—a party may move for judgment

1 By Stipulation and Order entered September 20, 2024, all claims and crossclaims
asserted by or against the Village of Newark were dismissed and the Village of Newark
was terminated as a party. (Dkt. 59).

2 Outside the briefing schedule set for these motions, both parties submitted a letter
to the Court regarding an argument made in Plaintiff’s reply. (Dkt. 67; Dkt. 68). The Court
has considered the submissions although their contents were not material to the
determination of the pending motions.
on the pleadings.” Fed. R. Civ. P. 12(c). “The standard for granting a Rule 12(c) motion
for judgment on the pleadings is identical to that for granting a Rule 12(b)(6) motion for
failure to state a claim.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d

Cir. 2021) (internal quotation marks and citation omitted).
“In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the
complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all
reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund
v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant
must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546
(2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“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

entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal
quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual
allegations must be enough to raise a right to relief above the speculative level.’” Nielsen
v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at
555).
B. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes “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). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the court finds that no rational jury could

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007).
“When the moving party has carried its burden under Rule 56(c), its opponent must
do more than simply show that there is some metaphysical doubt as to the material facts. .
. . Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-587 (1986) (quotation marks, internal citations, and
footnote omitted).
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-248 (1986) (emphasis in original). Where, as here, there are cross-motions for
summary judgment, “each party’s motion must be examined on its own merits, and in each
case all reasonable inferences must be drawn against the party whose motion is under
consideration.” Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001).
II. The Parties’ Motions

The Town moves for summary judgment and/or to dismiss each of Plaintiff’s four
claims and her request for punitive damages. Conversely, Plaintiff seeks summary
judgment against the Town arguing that the Town unlawfully terminated her and failed to
provide the due process to which she was entitled.
A. Real Property Tax Law § 310(2) and New York Public Officers Law § 36
Plaintiff’s first claim alleges that Defendant violated New York’s Real Property Tax
Law § 310(2) and New York Public Officers Law § 36. Real Property Tax Law provides

that “[t]he term of office of assessor shall be six years except as otherwise provided in
subdivision seven of this section.”3 N.Y. Real Prop. Tax Law § 310(2). New York Public
Officers Law § 36 provides:
Any town, village, improvement district or fire district officer, except a
justice of the peace, may be removed from office by the supreme court for
any misconduct, maladministration, malfeasance or malversation in office.
An application for such removal may be made by any citizen resident of such
town, village, improvement district or fire district or by the district attorney
of the county in which such town, village or district is located, and shall be
made to the appellate division of the supreme court held within the judicial
department embracing such town, village, improvement district or fire
district. Such application shall be made upon notice to such officer of not
less than eight days, and a copy of the charges upon which the application
will be made must be served with such notice.

3 Subsection 7 provides: “Indefinite term for assessors. Notwithstanding the
provisions of subdivision two of this section, the office of assessor shall have an indefinite
term (a) where the office of assessor is a full time position as determined by the local
legislative body and on or after August first, nineteen hundred seventy is classified in the
competitive class of the civil service at the request of the local legislative body or (b) where
on July thirty-first, nineteen hundred seventy the office of assessor is classified in the
competitive class of the civil service and has an indefinite term pursuant to law.” N.Y. Real
Prop. Tax Law § 310(7). No party contends that this subsection applies.
N.Y. Pub. Off. Law § 36. This statute “was enacted to enable a town or village to rid itself
of an unfaithful or dishonest public official.” Salvador v. Ross, 61 A.D.3d 1163, 1164 (3d
Dep’t 2009) (quoting Matter of Miller v. Filion, 304 A.D.2d 1016, 1017 [3d Dep’t 2003])).

Taken together, Plaintiff contends that her term as assessor was for six years, that she could
be removed only for misconduct, maladministration, malfeasance or malversation in office,
and that Defendant’s removal of her from her position did not amount to just cause under
these statutes.
Defendant moves to dismiss this claim on the grounds that these statutes do not

create an independent private right of action for Plaintiff and that the relief Plaintiff seeks
is exclusively available in an Article 78 proceeding. The Court agrees.
As an initial matter, Plaintiff cites no authority that these statutes authorize her
pursuit of a private right of action challenging her removal from office. Rather, she argues
that given that New York Civil Service Law § 77 provides for damages, “Plaintiff does not

need to establish a separate right to damages for violation of N.Y. Public Officers Law
§ 36.” (Dkt. 61 at 6). The Court construes this as a concession by Plaintiff that there is no
express private right of action under these statutes, although that does not end the inquiry.
“Where a statute contains no express private right of action, a plaintiff can seek
relief for a violation of the statute ‘only if a legislative intent to create such a right of action

is fairly implied in the statutory provisions and their legislative history.’” Galante v.
Watermark Servs. IV, LLC, 722 F. Supp. 3d 170, 185-86 (W.D.N.Y. 2024) (quoting Konkur
v. Utica Academy of Science Charter Sch., 38 N.Y.3d 38, 40-41 (2022)). “The New York
Court of Appeals applies a ‘three-factor test to determine whether the legislative intent
favors an implied right: (1) whether the plaintiff is one of the class for whose particular
benefit the statute was enacted; (2) whether recognition of a private right of action would
promote the legislative purpose; and (3) whether creation of such a right would be

consistent with the legislative scheme.’” Id. “Consistency with the legislative scheme is
‘the most important [factor] and typically turns on the legislature’s choice to provide one
particular enforcement mechanism to the exclusion of others,’ because that choice
‘demonstrates that the legislature considered and decided what avenues of relief were
appropriate.’” Id. at 186 (quoting Konkur, 38 N.Y.3d at 41).

Plaintiff contends in a conclusory manner that all three factors are met but cites no
authority that would warrant court recognition of such right. (See Dkt. 61 at 6). Indeed,
the purpose of the Public Officers Law is to provide a town or village with a procedure for
removal of an officer and does not speak in terms of the process for the officer to challenge
the determination. See, e.g., Salvador v. Naylor, 222 A.D.2d 931, 931 (3d Dep’t 1995)

(“The purpose of Public Officers Law § 36 is to enable a town or village to rid itself of an
unfaithful or dishonest public official.” (quotation and citation omitted)). Accordingly, the
Court declines to adopt Plaintiff’s argument that a private right of action exists in the
absence of any legal support for that position.
In addition, the Town argues that the appropriate forum for such challenges is an

Article 78 proceeding. Again, the Court agrees, as it is “well settled that proceedings that
compel action by a government agency or challenge the reasonableness or legality of an
administrative decision must be brought in Supreme Court as an article 78 proceeding.”
Spillers v. City of New York, 58 Misc. 3d 150(A), 94 N.Y.S.3d 540 (Kings Cty. 2018); see
also Walsh v. New York State Thruway Auth., 24 A.D.3d 755, 756-57 (2d Dep’t 2005) (claim
that a plaintiff was terminated without hearing in violation of state law rights and sought
reinstatement was “clearly within the purview of a CPLR article 78 proceeding, the proper

procedural vehicle for reviewing such a termination”). Plaintiff’s contention that the Town
did not comply with New York state statutes comes within Article 78’s purview. Finley v.
Giacobbe, 79 F.3d 1285, 1292 (2d Cir. 1996) (“Even non-tenured or probationary
employees must invoke article 78 to review dismissals that are allegedly arbitrary,
capricious, or prohibited by statute or the constitution.”); Trask v. Town of Alma, No. 1:19-

CV-01192, 2020 WL 6390091, at *4 (W.D.N.Y. Oct. 30, 2020) (“In New York, Article 78
proceedings are the ‘exclusive remedy for a discharged public employee, who must seek
reinstatement prior to seeking unpaid salary[.]’” (quotation and citation omitted)); Vill. of
Northport v. Krumholz, 169 A.D.3d 745, 746 (2d Dep’t 2019) (“We agree with the Supreme
Court’s determination that the defendant [challenging termination pursuant to Public

Officer Law § 36] was required to bring a proceeding pursuant to CPLR article 78 to pursue
her claim of wrongful termination and to seek reinstatement and unpaid salary.”).
Given the lack of any authority to support a conclusion that there exists a private
right of action for Plaintiff to pursue independent claims under New York’s Real Property
Tax Law § 310(2) and New York Public Officers Law § 36 and the fact that the exclusive

remedy for such claims is an Article 78 proceeding, Defendant’s motion to dismiss and/or
for summary judgment on this claim is granted and Plaintiff’s motion for summary
judgment is denied.
B. Civil Service Law § 75-b
“To state a claim under New York Civil Service Law section 75-b, a plaintiff must
allege: (1) an adverse personnel action; (2) disclosure of information to a governmental

body (a) regarding a violation of a law, rule, or regulation that endangers public health or
safety, or (b) which [he] reasonably believes constitutes an improper governmental action;
and (3) a causal connection between the disclosure and the adverse personnel action.”
DeFranco v. New York Power Auth., No. 20-CV-1861-LJV, 2024 WL 1621533, at *10
(W.D.N.Y. Apr. 15, 2024) (quoting Rusk v. New York State Thruway Auth., 37 F. Supp. 3d

578, 600 (W.D.N.Y. 2014)).
The Town first argues that Plaintiff’s § 75-b claim is subject to dismissal because
the statute requires that complaints be made to a governmental body, and it contends that
Plaintiff did not complain directly to the Town Board. The statute defines “governmental
body” to mean “(i) an officer, employee, agency, department, division, bureau, board,

commission, council, authority or other body of a public employer, (ii) employee,
committee, member, or commission of the legislative branch of government, (iii) a
representative, member or employee of a legislative body of a county, town, village or any
other political subdivision or civil division of the state, (iv) a law enforcement agency or
any member or employee of a law enforcement agency, or (v) the judiciary or any employee

of the judiciary.” N.Y. Civ. Serv. Law § 75-b. Defendant cites no requirement or legal
authority suggesting that any complaint needed to be made to the entire Town Board or that
Plaintiff’s complaints made to several different Town councilmembers (Dkt. 50-2 at ¶¶ 30-
34), were insufficient as a matter of law.
But separate from whether Plaintiff can satisfy disclosure to a governmental body,
a fundamental flaw in her claim is the fact that her complaints about DiSanto’s misconduct,
errors, and erratic behavior did not concern a violation of a law, rule, or regulation that

endangers public health or safety, or which could reasonably be considered by her to
constitute improper governmental action. “‘Improper governmental action’ is conduct
‘which is in violation of any federal, state or local law, rule or regulation.’” Verdi v. City
of New York, 306 F. Supp. 3d 532, 549 (S.D.N.Y. 2018) (quoting N.Y. Civ. Serv. Law § 75-
b(2)(a)).

While Plaintiff argues that the Town’s failure to properly address DiSanto’s errors
and inability to properly complete her job duties constituted gross mismanagement and
waste of taxpayer funds, at bottom, Plaintiff’s complaints about DiSanto and oversight of
her work were within the scope of Plaintiff’s job duties. See Johnson v. Bd. of Educ. Ret.
Sys. of City of New York, No. 18CV4605(NGG)(PK), 2021 WL 2133434, at *7 (E.D.N.Y.

May 11, 2021) (communications of internal dissent regarding matters within the ambit of
plaintiff’s employment did not constitute a report to a governmental body pursuant to §75-
b), aff’d, No. 21-1465-CV, 2022 WL 17076718 (2d Cir. Nov. 18, 2022); Eyshinskiy v. New
York City Dep’t of Educ., No. 15 CIV. 10027 (DLC), 2016 WL 7017414, at *2 (S.D.N.Y.
Dec. 1, 2016) (“Disagreeing with the principals at Flushing about their standards in

supervising him does not constitute a complaint to a governmental body.”), aff’d, 692 F.
App’x 677 (2d Cir. 2017). That taxpayers are entitled to be treated fairly does not make
Plaintiff’s complaints about DiSanto’s errors rise to the level of a violation of any law, rule,
or regulation that endangers public health or safety, or constitute an improper governmental
action, as required. To hold otherwise would be to create a Civil Service Law § 75-b claim
whenever a municipal employee voices concerns about an employee’s performance, and it
would essentially eradicate the second element required to assert such a claim. In sum,

Plaintiff has not adduced admissible evidence that her complaints about DiSanto fell within
the scope of § 75- b’s protections.
On this basis, Defendant’s motion for summary judgment on this claim is granted
and Plaintiff’s motion for summary judgment is denied.
C. First Amendment

“Section 1983 itself creates no substantive rights; it provides only a procedure for
redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515,
519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). “To
state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged
conduct (1) was attributable to a person acting under color of state law, and (2) deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the
United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing
Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).
To state a plausible claim for First Amendment retaliation, a plaintiff must allege:
“(1) his speech or conduct was protected by the First Amendment; (2) [defendants] took an

adverse action against him; and (3) there was a causal connection between this adverse
action and the protected speech.” Persaud v. City of New York, No. 1:22-CV-02919
(MKV), 2023 WL 2664078, at *4 (S.D.N.Y. Mar. 28, 2023) (quoting Cox v. Warwick Valley
Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)); see also Searle v. Red Creek Cent. Sch.
Dist., No. 21-CV-6086-FPG, 2021 WL 5086405, at *4 (W.D.N.Y. Nov. 2, 2021) (“The
elements of a First Amendment retaliation claim are dependent on the ‘factual context’ of
the case.” (quotation and citation omitted)).

As to the first element, the Supreme Court in Lane v. Franks, 573 U.S. 228 (2014),
outlined a two-step inquiry into whether a public employee’s speech is entitled to
protection:
The first [step] requires determining whether the employee spoke as a citizen
on a matter of public concern. If the answer is no, the employee has no First
Amendment cause of action based on his or her employer’s reaction to the
speech. If the answer is yes, then the possibility of a First Amendment claim
arises. The question becomes whether the relevant government entity had an
adequate justification for treating the employee differently from any other
member of the general public.

Id. at 237 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)); see also Shara v.
Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 82-83 (2d Cir. 2022) (“So in assessing the
first prong of the retaliation test–whether a public employee’s speech is protected–we must
consider ‘two separate subquestions’: (1) whether the employee spoke as a citizen rather
than solely as an employee, and (2) whether he spoke on a matter of public concern. . . . If
either question is answered in the negative, our inquiry may end there. If both questions
are answered in the affirmative, we may proceed to consider whether the employer had an
adequate justification for treating the employee differently from any other member of the
general public based on the government’s needs as an employer.” (citations and quotations
omitted)); DiFonzo v. Cnty. of Niagara, No. 1:22-CV-588, 2023 WL 1801695, at *5
(W.D.N.Y. Feb. 7, 2023) (“A public employee’s speech ‘is protected by the First
Amendment only when the employee is speaking as a citizen . . . on a matter of public
concern.’” (quoting Ross v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012)) (internal quotation
marks omitted)); Cecchini v. Schenck, No. 3:14-CV-1704 (MPS), 2017 WL 902849, at *9
(D. Conn. Mar. 7, 2017) (“To determine if a public employee’s speech is protected by the

First Amendment, courts must consider ‘(1) whether the subject of the employee’s speech
was a matter of public concern and (2) whether the employee spoke “as a citizen” rather
than solely as an employee.’” (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011))).
To assess whether a public employee is speaking pursuant to official duties, courts
“examine the nature of the plaintiff’s job responsibilities, the nature of the speech, and the

relationship between the two,” as well as other contextual factors such as whether the
plaintiff’s speech “was also conveyed to the public.” Ross v. Breslin, 693 F.3d 300, 306
(2d Cir. 2012); see also Severin v. New York City Dep’t of Educ., No. 19-CV-775 (MKV),
2023 WL 2752973, at *7 (S.D.N.Y. Mar. 31, 2023) (“In determining whether an employee
spoke pursuant to his official duties, a key question is whether the complaint was part-and-

parcel of his concerns about his ability to properly execute his duties.” (citations and
quotations omitted)), aff’d, No. 23-732-CV, 2024 WL 1904574 (2d Cir. May 1, 2024).
Defendant argues that Plaintiff’s statements at issue cannot constitute
constitutionally protected speech because at the time the statements were made, Plaintiff
was not speaking as a citizen, but solely as an employee. It argues that if Plaintiff expressed

concerns about a subordinate employee’s misconduct or incompetence, it was within her
professional responsibility to do so as the Town assessor. The Court agrees. Indeed,
Plaintiff acknowledges that supervision of DiSanto was her responsibility and any
misconduct by DiSanto directly interfered with Plaintiff’s own job duties, leading to an
indisputable conclusion that the speech was not protected. See Shara, 46 F.4th at 80 (bus
driver’s disagreements with school district mechanic and school district officials over the
frequency of bus inspection reporting did not constitute protected speech, regardless of

whether the information impacted the safety of school children); Barclay v. Michalsky, 368
F. App’x 266, 267 (2d Cir. 2010) (complaints to supervisors that co-workers were
mistreating patients and sleeping on the job was part of job duties and not speech as public
citizen); Johnson v. Bd. of Educ. Ret. Sys. of City of New York, No. 18CV4605NGGPK,
2021 WL 2133434, at *6 (E.D.N.Y. May 11, 2021) (“Because he was reporting on a core

job function within an established internal channel of communication, Johnson was not
speaking as a citizen and his speech is not protected by the First Amendment.”), aff’d, No.
21-1465-CV, 2022 WL 17076718 (2d Cir. Nov. 18, 2022).
There being no credible admissible evidence before the Court showing that
Plaintiff’s speech concerned matters outside the scope of her job duties or demonstrating

the presence of factual issues on that point, Plaintiff’s complaints cannot be considered to
have been protected speech made as a citizen. Accordingly, Defendant’s motion for
summary judgment as to this claim is granted and Plaintiff’s motion is denied.
D. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment was “intended to secure the

individual from the arbitrary exercise of the powers of government . . . [and] serves to
prevent governmental power from being used for purposes of oppression.” Daniels v.
Williams, 474 U.S. 327, 331 (1986) (quotations and citations omitted). To succeed on a
due process claim, a plaintiff must establish that “he or she possesses a constitutionally
protected interest in life, liberty, or property, and that state action has deprived him or her
of that interest.” Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994). “An essential principle
of due process is that a deprivation of life, liberty, or property be preceded by notice and

opportunity for hearing appropriate to the nature of the case.” Cleveland Bd. of Educ v.
Loudermill, 470 U.S. 532, 542 (1985) (quotation omitted).
“To evaluate whether a plaintiff received due process, one of two standards may
apply. If the deprivation is the result of ‘unauthorized acts by state employees,’ the
Fourteenth Amendment is not violated ‘so long as the State provides a meaningful post-

deprivation remedy.’ If the deprivation ‘occurs in the more structured environment of
established State procedures, rather than random acts, the availability of post-deprivation
procedures will not, ipso facto, satisfy due process.’” Langton v. Town of Chester, 168 F.
Supp. 3d 597, 606 (S.D.N.Y. 2016) (quoting Hellenic Am. Neighborhood Action Comm. v.
City of N.Y., 101 F.3d 877, 880 (2d Cir. 1996)). Instead, in such cases, the Court considers

the adequacy of the pre-deprivation procedures, taking into account:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Chase Grp. All. LLC v. City of
N.Y. Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010).
Plaintiff argues that she had an enforceable expectation of continued public
employment which constituted a property interest such that she could not be terminated
without the due process protections of notice and hearing. Resolution of whether Plaintiff
had a property interest in her continued employment is precluded on these motions by the
existence of factual disputes over whether Plaintiff was a permanent or probationary

employee.
Defendant contends that Plaintiff was still in a probationary period at the time of her
termination and had no protected property interest in the position. It relies on Rule XIV of
the Wayne County Civil Service Commission Rules and Regulations which indicates:
“Except as herein otherwise provided, every permanent appointment from an open

competitive list and every original appointment to a position in the non-competitive,
exempt or labor class shall be for a probationary term of not less than eight (8) nor more
than fifty-two (52) weeks.” (Dkt. 44-10 § XIV). Defendant contends that Plaintiff
acknowledged her probationary status in an email to Deputy Town Supervisor VanLaeken
where she stated, “my probation is up in October,” which would have been one year from

her start date. In addition, prior to terminating Plaintiff, VanLaeken contacted the Wayne
County Civil Service to confirm that Plaintiff was a probationary employee and was told
that she was subject to a probationary term of 52 weeks. (Dkt. 44-12 at ¶ 6).
Conversely, Plaintiff notes that there is no documentation to reflect her status as a
probationary employee. It is undisputed that the assessor position was a six-year term and

the offer letter Plaintiff received did not state the appointment was probationary. A Report
of Personnel Change form dated October 20, 2020, and completed by the Town contained
in her file checked the box for “permanent” employee and left “probationary” unchecked.4
(Dkt. 53-6).
As is clear, there are genuine issues of fact as to whether Plaintiff was permanent or

probationary or even if probationary, the length of the probationary term or what process a
probationary employee is due. Because these disputed issues as to Plaintiff’s employment
status necessarily dictate whether she possessed a property interest in her employment, the
Court cannot resolve this question on a summary judgment motion. The court in Reynolds
v. Vill. of Chittenango, No. 5:19-CV-416 (GLS/ML), 2023 WL 6460417 (N.D.N.Y. Oct. 4,

2023), faced a similar issue. There, the plaintiff asserted a due process claim and the
defendant’s motion for summary judgment required it to demonstrate “that there are no
genuine issues of material fact, including with regard to their primary contention, that
[plaintiff] was a probationary employee who was, therefore, not entitled to a hearing and
had no property interest in continued employment.” Id. at *8. The Court stated, “[in other

words, essential to the analysis of [plaintiff’s] Fourteenth Amendment claim is a
determination of whether he was a probationary employee at the time he was terminated.
The answer to this question—whether [plaintiff] was probationary—adjudges whether

4 The Court rejects Defendant’s suggestion that the Court should not consider
Defendant’s own document for lack of proper authentication, particularly where no
challenge is raised by it as to whether the document is authentic. See
PharmacyChecker.com v. Nat’l Ass’n of Boards of Pharmacy, No. 19-CV-7577 (KMK),
2023 WL 2973038, at *4 (S.D.N.Y. Mar. 28, 2023) (“To the extent that Plaintiff’s
authentication and foundation objections rest upon documents Plaintiff itself produced, the
Court will overrule this objection for the purposes of summary judgment.”). In any event,
Plaintiff has submitted a declaration from counsel explaining that the document was
received from Defendant during discovery. (See Dkt. 66-1).
process was, in fact, due. However, the parties dispute a multitude of material facts, leaving
this determination unresolved—and, for summary judgment purposes, unresolvable.” Id.
The court concluded that a finder of fact must resolve disputed issues as to whether plaintiff

was a probationary employee at the time he was terminated and only then could the court
determine whether any process was due. Id. So too here is the Court similarly constrained.
See also Morgenstern v. Cnty. of Nassau, No. 04-CV-0058 JS ARL, 2008 WL 4449335, at
*19 (E.D.N.Y. Sept. 29, 2008) (“Plaintiff alleges that Defendants violated New York Civil
Service Law § 75 by terminating Plaintiff without a notice and hearing. Defendants argue

that they did not violate the Civil Service Law because Plaintiff was a probationary
employee and thus not entitled to a notice and hearing. . . . Because the Court has already
found that there is an issue of fact as to whether Plaintiff was a permanent employee at the
time of her termination, the Court cannot grant summary judgment for Defendants on this
claim.”); Jackson v. Kemp, No. 88 CIV. 2919 (LLS), 1991 WL 39300, at *1 (S.D.N.Y. Jan.

22, 1991) (“In addition, the degree to which such administrative procedures apply to
plaintiff apparently depends upon resolution of factual issues concerning whether she was
a ‘probationary’ or an ‘excepted’ or a ‘full’ employee. Accordingly, plaintiff’s motion is
also denied.”).
In addition, the question of Plaintiff’s employment status impacts not only the

assessment of whether her termination was an unauthorized act by state employees or was
consistent with established State procedures, but also whether Article 78 provides the
exclusive remedy for Plaintiff’s due process claim, as Defendant argues. In some cases,
the availability of Article 78 proceedings can foreclose a federal due process claim. See
McCluskey v. Lopez, No. 24-381, 2024 WL 5182876, at *2 (2d Cir. Dec. 20, 2024)
(“[U]nder some circumstances, the Supreme Court has said it is possible that ‘a
postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies

due process.’” (quoting Zinermon v. Burch, 494 U.S. 113, 127-28 (1990))); Locurto v. Safir,
264 F.3d 154, 175 (2d Cir. 2001) (“An Article 78 proceeding therefore constitutes a wholly
adequate post-deprivation hearing for due process purposes.”); Nolan v. Cnty. of Erie, No.
1:19-CV-01245, 2020 WL 1969329, at *11 n.7 (W.D.N.Y. Apr. 24, 2020) (“Article 78
proceedings often constitute sufficient procedural due process foreclosing a § 1983 claim

against municipalities.”). But “[s]ufficient process ‘is a flexible concept that varies with
the particular situation,’ considering factors that include the private interest affected, the
risk of a wrongful deprivation of such interest under the procedures used, the probable
value of additional or substitute procedural safeguards, and the burdens to the government
that additional procedural protections might entail.” McCluskey, 2024 WL 5182876, at *2.

Because here, Plaintiff contends that she did not receive pre-deprivation or post-
deprivation procedures to which she was entitled, her right to which turns on her
employment status, the Court cannot determine on these motions whether Article 78
provided adequate and exclusive relief. See Todaro v. Norat, 112 F.3d 598, 599-600 (2d
Cir. 1997) (where a tenured employee has a right to notice and opportunity to be heard

before termination, “certain features must be present to fulfill the minimum requirements
of fairness” and post-termination proceedings do not satisfy those requirements); Moulton
v. Cnty. of Tioga, New York, No. 3:22-CV-00340 (AMN/ML), 2024 WL 4836608, at *10
(N.D.N.Y. Nov. 20, 2024) (denying motion for summary judgment on procedural due
process claim where “a reasonable juror could very well find that a pre-deprivation hearing
was required”); Reynolds v. Vill. of Chittenango, No. 519CV416GLSTWD, 2020 WL
1322509, at *6 (N.D.N.Y. Mar. 20, 2020) (“Here, Reynolds’ alleges that defendants did not

provide him with the pre-termination notice and hearing that was required under law and
contract. Accordingly, the availability of an Article 78 proceeding does not foreclose his
procedural due process claim.”); Mullen v. Vill. of Painted Post, 356 F. Supp. 3d 275, 282
(W.D.N.Y. 2019) (because plaintiff alleged he was not provided a meaningful pre-
termination opportunity to respond, “a post-deprivation procedural safeguard such as an

Article 78 proceeding does not automatically satisfy due process”); Swain v. Town of
Wappinger, No. 17 CIV. 5420 (JCM), 2019 WL 2994501, at *8 (S.D.N.Y. July 9, 2019)
(denying cross-motions for summary judgment and rejecting argument that Article 78 post-
deprivation remedies defeat Plaintiff’s due process claim because “the availability of an
adequate post-termination remedy, whether through a CBA procedure or Article 78 hearing,

does not satisfy due process if there was no pre-termination notice”).
Accordingly, because the nature of the process due Plaintiff is unresolved at this
time, the Court cannot resolve Defendant’s argument that the availability of Article 78
proceedings may ultimately preclude Plaintiff’s due process claim. Similarly, because the
Court denies Plaintiff’s motion for summary judgment because of issues of fact related to

her employment status, so too is it unable to resolve the question of what damages are
applicable should Plaintiff succeed on her claims.
For these reasons, both parties’ motions for summary judgment on Plaintiff’s due
process claims are denied.
E. Punitive Damages
Finally, Defendant moves to dismiss Plaintiff’s request for punitive damages,
arguing that such claim is barred against a municipality. Plaintiff did not respond to this

argument.
“[P]unitive damages are not per se unavailable against a municipality,” although
there “is a common-law presumption against the availability of punitive damages from
municipalities, and thus ‘[t]he general rule . . . is that no punitive damages are allowed
unless expressly authorized by statute.” Jordan v. City of New York, No. 23CV4962 (DLC),

2024 WL 4872186, at *3 (S.D.N.Y. Nov. 22, 2024) (quoting City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 259-64 & n.21 (1981)). The Second Circuit has clarified that
a statute need not specifically state that punitive damages are recoverable from a
municipality so long as the statute permits punitive damages without exception. Gilead
Cmty. Servs., Inc. v. Town of Cromwell, 112 F.4th 93, 103 (2d Cir. 2024). Here, as noted,

Plaintiff provided no authority to establish that punitive damages are available from
Defendant on her claims and the Court presumes they are not. See, e.g., Baumeister v. Erie
Cnty., No. 23-CV-1150-LJV, 2024 WL 4362311, at *15 (W.D.N.Y. Sept. 30, 2024) (holding
municipalities immune from claims of punitive damages in a section 1983 action); Zielonka
v. Town of Sardinia, 120 A.D.3d 925, 926 (4th Dep’t 2014) (“[T]he Town cannot be held

liable for punitive damages [pursuant to § 75-b] absent an express provision in the
statute.”).
Moreover, “[i]n the case of a counseled party, a court may, when appropriate, infer
from a party’s partial opposition that relevant claims or defenses that are not defended have
been abandoned.” Jones v. Pawar Bros. Corp., 434 F. Supp. 3d 14, 20 n.4 (E.D.N.Y. 2020)
(quoting Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014)); see also Kurtz v.
Hansell, No. 20 CIV. 3401 (PAE), 2021 WL 1143619, at *16 (S.D.N.Y. Mar. 24, 2021)

(holding that by failing to respond to argument on motion to dismiss “plaintiffs have
abandoned that claim”); East v. Roosevelt Union Free Sch. Dist., No. CV193709JSAKT,
2020 WL 13753159, at *20 (E.D.N.Y. July 31, 2020) (“Courts in the Second Circuit have
found that ‘[a] plaintiff’s failure to respond to contentions raised in a motion to dismiss
claims constitutes an abandonment of those claims.’” (quoting Laface v. E. Suffolk Boces,

349 F. Supp. 3d 126, 161 (E.D.N.Y. 2018))); Romeo & Juliette Laser Hair Removal, Inc.
v. Assara I LLC, No. 08-CV-442 TPG FM, 2014 WL 4723299, at *7 (S.D.N.Y. Sept. 23,
2014) (“At the motion to dismiss stage, where review is limited to the pleadings, a plaintiff
abandons a claim by failing to address the defendant’s arguments in support of dismissing
that claim.”). For these reasons, any such claim for punitive damages has been abandoned

and Defendant’s motion to dismiss such relief is granted. 5

5 In addition, to the extent that the parties argue over whether the Court should read
Plaintiff’s complaint to state claim for “Monell Liability,” “Monell [v. Dep’t of Soc. Servs.
of City of N.Y., 436 U.S. 658, 691 (1978)] does not provide an independent separate cause
of action against a municipality; ‘it extends liability to a municipal organization where that
organization’s failure to train, or the policies or customs that it has sanctioned, led to an
independent constitutional violation,’” Gem Fin. Serv., Inc. v. City of N.Y., 298 F. Supp. 3d
464, 490 (E.D.N.Y. 2018) (quoting Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006)).
“In other words, Monell is not a cause of action, but is rather a form of liability.” Watkins
v. Town of Webster, 592 F. Supp. 3d 96, 118-19 (W.D.N.Y. 2022). Here, apart from the due
process claim, Plaintiff’s complaint does not assert any other viable § 1983 claim against
the Town, nor do the words “custom” or “policy” even appear in Plaintiff’s complaint.
Thus, there would be no basis to read any other claim outside the due process claim
discussed herein into Plaintiff’s complaint and the Court need not resolve the parties’
arguments on this point.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss and/or for summary
judgment is granted as to Plaintiff’s claims for wrongful termination in violation of Real
Property Tax Law § 310(2) and New York Public Officers Law § 36, civil service law
§ 75-b, First Amendment retaliation pursuant to 42 U.S.C. § 1983, and punitive damages,
but it is denied as to Plaintiff's claims for violation of due process pursuant to 42 U.S.C.
§ 1983. Plaintiff's motion for summary judgment is denied.
SO ORDERED. ? (yd
[LI BAL AC
ERXIZABETH &. WOLFORD
Chief Judge
United States District Court
Dated: February 24, 2025
Rochester, New York

-25-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10805131. Public record. Not legal advice.