Natalizio v. City of Middletown

Jan 13, 2003
Versions:301 A.D.2d 507
754 N.Y.S.2d 24

—In an action to recover damages for violations of 42 USC § 1983, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated October 29, 2001, as granted that branch of the defendants’ motion which was for summary judgment dismissing their substantive due process claims.

Ordered that the order is affirmed insofar as appealed from, with costs.

To succeed on their claims pursuant to 42 USC § 1983, the plaintiffs were required to establish the deprivation of a protectable property interest by one acting under the authority of law (see Town of Orangetown v Magee, 88 NY2d 41, 52). Since the plaintiff Deborah Natalizio (hereinafter Deborah) was, at *508most, an “at-will” employee of the defendant City of Middle-town, she did not have a property interest in her continued employment (see Matter of Voorhis v Warwick Val. Cent. School Dist., 92 AD2d 571; Baron v Port Auth. of N.Y. & N.J., 271 F3d 81). Morever, since the plaintiffs failed to establish that the defendants made false charges against Deborah, or that any charges relating to the termination of her employment impacted upon her reputation or stigmatized her future employability, or were publicly disseminated, they failed to establish a claim for a deprivation of liberty without due process of law (see Supan v Michelfeld, 97 AD2d 755). Accordingly, summary judgment dismissing the plaintiffs’ substantive due process claims with respect to Deborah’s termination was properly granted.

The plaintiffs failed to establish that they had any protect-able property interest in the use and area variances which were denied by the City’s Zoning Board of Appeals (hereinafter the ZB A). In any event, the ZBA had a legitimate reason for the denial of the variances and, therefore, did not act in an arbitrary or irrational manner (see Harlen Assoc. v Incorporated Vil. of Mineola, 273 F3d 494; Lisa’s Party City v Town of Henrietta, 185 F3d 12). Accordingly, summary judgment dismissing the substantive due process claims relating to the denial of the variance was also properly granted (see Town of Orangetown v Magee, supra; Harlen Assoc. v Incorporated Vil. of Mineola, supra).

The plaintiffs’ remaining contentions are without merit. Santucci, J.P., H. Miller, Schmidt and Townes, JJ., concur.