Case Information
‐ ‐ cv DeMartino NYS Dep’t Labor, et al.
UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At stated term United States Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City York, th day October, two thousand seventeen.
PRESENT: JOHN M. WALKER, JR.,
RAYMOND J. LOHIER, JR.,
Circuit Judges ,
JOHN F. KEENAN,
District Judge. * FRANK DEMARTINO,
CONSTRUCTION CORPORATION,
Plaintiffs ‐ Appellants , No. ‐ cv
NEW YORK STATE DEPARTMENT OF LABOR, DORMITORY AUTHORITY OF THE STATE OF NEW YORK, PETER M. RIVERA, JOHN PADULA, JOHN W. SCOTT, DENNIS MONAHAN,
Defendants Appellees , * Judge John F. Keenan, United States Southern York, sitting designation. *2 JOHN DOES 1–10,
Defendants . FOR APPELLANTS: B RYAN H A , Attorney Law, White Plains, NY. APPELLEES: S ETH M. R OKOSKY , Assistant Solicitor
General (Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, brief ), for Eric T. Schneiderman, Attorney General of State of New York, New York, NY, for New York State Department Labor, Peter M. Rivera, John Padula, John W. Scott.
S USAN P. G REENBERG , Of Counsel (Richard Dearing, Devin Slack, Of Counsel, brief ), Zachary W. Carter, Corporation Counsel City New York, New York, NY, Dormitory Authority York Dennis Monahan. Appeal from judgment United States District Eastern (Kiyo A. Matsumoto, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED AFFIRMED is DISMISSED Construction Corporation Frank DeMartino (collectively,
“TADCO”) from a the (Matsumoto, J.) dismissing their against the York State Department (“DOL”) and three its employees, as well as the Dormitory Authority the (“DASNY”) and one its employees. Seeking both money damages and injunctive relief, alleged that the defendants violated due process rights, committed an and engaged in a conspiracy when they withheld payments to without promptly providing an hearing. We assume parties’ familiarity with facts and record prior proceedings, to which we refer only necessary to explain our decision to affirm in dismiss in first defendants violated procedural due
process rights failing promptly convene post ‐ deprivation hearing on (1) withholding Queens Hospital Project, (2) direct withholding cross withholding Assuming without deciding has property interest payment work properly performed contracts *4 with DASNY, agree with no procedural due violations occurred. was not entitled a hearing on 2007 records withholding
because procedure for implementing a records withholding itself satisfies due because does dispute it failed maintain or produce required violation both Law contracts with DASNY. Without a factual dispute, any hearing would have been meaningless. Nor deprived a result defendants’ four year delay providing administrative hearing withholdings Lujan G & G Fire Sprinklers, Inc., U.S. 189, (2001); see also Oneida Indian Nation Madison Cty., n.13 An hearing withholding a constitutional requirement; availability breach contract suit alone satisfies process. Lujan, U.S. 197. In case, does dispute it could sued breach contract, mandamus relief, or relief Article 78. further erred when it dismissed
substantive process claim arising out of investigation into Queens Hospital project. But cannot meet high standard required to prevail substantive process claim, see Cty. Sacramento v. Lewis, 523 U.S. 833, 840, 846–47 (1998), not least because required law to keep adequate payroll records to provide them to DOL upon request, see N.Y. Law § 220(3 a)(a)(iii), (3 a)(c). DOL’s request provide its does not “shock conscience.” Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007); see also Oneida, 665 F.3d 427 n.13.
As abuse claim, we recognize claims under § 1983 only abuse criminal abuse civil process. See Green v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). On appeal, its claim should have been construed as arising under law or it should been permitted amend complaint include such claim. But did raise argument Court, so we do consider 581, F.3d Nassau, Cty. Mgmt., Mhany See here. it Inc. (2d Cir. 2016).
*6 While appeal pending, Commissioner adopted report and recommendation finding committed Appellees’ FRAP 28(j) Letter, ECF
No. 86. Because DOL has now concluded proceeding, dismiss moot part appeal concerning TADCO’s injunctive relief.
Finally, conclude Court did discretion in denying motion recusal. No “objective and disinterested observer, knowing understanding all facts circumstances, could reasonably question [Judge Matsumoto’s] impartiality.” SEC Razmilovic,
We considered remaining arguments conclude they are without merit. For foregoing reasons, AFFIRMED is DISMISSED THE COURT:
Catherine O’Hagan Wolfe, Clerk
[2] The DASNY defendants (DASNY Dennis Monahan) argue they are relevant actors procedural claim, since contentions relate only DOL. Because conclude has stated adequate procedural claim any event, do address argument.
[3] conspiracy claim § premised defendants violated underlying federal constitutional right. Droz McCadden, Because, reasons already stated, affirm dismissal those underlying claims, affirm dismissal conspiracy claim well.