Rini v. Zwirn, CV 93-2968 (MLO).

886 F. Supp. 270

Thomas RINI, Diane O'Donnell, Richard E. Ryan, Edward Winrow, Barbara Laumenede, Lawrence Ragona, John Infranca, Helen Delaney Harris, John Ciborowski, Vincent Anthony, Rhoda Becker, Giacomo Ciccone, and Charles J. O'Connor, Plaintiffs, v. Benjamin L. ZWIRN, in his individual capacity and as Supervisor of the Town of North Hempstead, May Newburger, Anthony D'Urso, Barbara Johnson, in their individual capacities, and as council members of the Town of North Hempstead, Gerard Cunningham, in his capacity as council member of the Town of North Hempstead Board, Richard Middlemark, in his individual capacity, and as Executive Assistant to the Supervisor of the Town of North Hempstead, the Town of North Hempstead, Paul Nehrich, individually and as President of the Town of North Hempstead Civil Service Employees Association, William Biamonte, in his individual capacity, and as

Director of Legislative Affairs, Lawrence Nedelka, in his individual capacity and as Commissioner of Finance, Friends of Ben Zwirn and Alice Peckelis, in her capacity as Treasurer of Friends of Ben Zwirn, Defendants.

No. CV 93-2968 (MLO).

United States District Court, E.D. New York.

May 5, 1995.

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Vessa & Wilensky, by Michael P. Vessa, Mineola, NY, for plaintiffs.

Paul, Weiss, Rifkind, Wharton & Garrison by Gerald C. Harper and Jeh C. Johnson, New York City, for defendants Benjamin L. Zwirn, May W. Newburger, Anthony D'Urso, Barbara Johnson, Gerard Cunningham, Richard Middlemark, William Biamonte, Lawrence Nedelka, and the Town of North Hempstead.

Ivan Kline, Town Atty., Town of North Hempstead, Manhasset, NY and Nancy E. Hoffman, Albany, NY, for Paul Nehrich, as President of the Town of North Hempstead Civ. Service Employees Ass'n.

Gaba & Stober, P.C. by Richard M. Gaba and Louis D. Stober, Mineola, NY, for Paul Nehrich, individually.

Tedone & Tedone by Matthew A. Tedone, Albertson, NY, for Friends of Ben Zwirn.

Alice Peckelis, Port Washington, NY, pro se.

MEMORANDUM OPINION AND ORDER

ORENSTEIN, United States Magistrate Judge:

The plaintiffs in this action, former employees of the Town of North Hempstead, challenge the termination of their employment under 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), 42 U.S.C. § 1988, 18 U.S.C. § 1961 et seq. (Racketeer Influenced and Corrupt Organizations, hereinafter "RICO"), and common law fraud. Plaintiffs bring this action against the Town of North Hempstead, the former town supervisor, members of the Town Council, other former town officials, the president of the town Civil Service Employees Association and the town supervisor's political fund-raising organization and its treasurer. Plaintiffs assert that they were terminated from their positions as public employees solely on the basis of their political affiliation and in retaliation for their political activities. (Compl. ¶ 2.)

Defendants move to dismiss the Complaint. Fed.R.Civ.P. 12(b)(6), 12(c), and 9(b). Defendants Town of North Hempstead, Benjamin L. Zwirn, May Newburger, Anthony D'Urso, Gerard Cunningham, Richard Middlemark, William Biamonte, and Lawrence Nedelka (hereinafter collectively referred to as "Municipal" or "Town" defendants) move to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure (hereinafter "FRCP") 12(b)(6) or in the alternative pursuant to FRCP 9(b) for failure to plead allegations of fraud with particularity. Defendant Paul Nehrich as "President of the Town of North Hempstead Civil Service Employees Association" (hereinafter "CSEA") moves to dismiss all claims pursuant to FRCP 12(c). (CSEA Mem. of Law at 1.) Defendant "Friends of Ben Zwirn" also moves to dismiss pursuant to FRCP 12(c).¹

BACKGROUND

Plaintiffs are former employees of the Town of North Hempstead who were discharged during the period of December 31, 1991 to April 10, 1992, although ten of the thirteen plaintiffs were discharged on December 31, 1991. (Compl. ¶¶ 5-17.) All plaintiffs are registered Republicans. (Compl. ¶¶ 2, 5-17.) All defendants, except Cunningham, are members of the Democratic Party. (Compl. ¶ 2.) Plaintiffs allege that defendants met secretly and targeted for termination, Town employees who were active in Republican politics or had family members who were active Republicans. (Id.) It is alleged that the targeted employees were pressured by the defendants to disavow their Republican affiliation in exchange for their jobs. (Compl. ¶ 47.) Plaintiffs claim that defendants' stated reasons and motive for the dismissals, that they were necessary due to a fiscal crisis and resulting budget cuts, are pretextual. (Compl. ¶¶ 48-50.)

Thomas Rini was Administrative Assistant to the Superintendent of Highways. (Compl. ¶ 5.) Diane O'Donnell was a Traffic Technician I. (Compl. ¶ 6.) Richard E. Ryan was also a Traffic Technician I. (Compl. ¶ 7.) Edward Winrow was Administrative Assistant to the Commissioner of Community Services. (Compl. ¶ 8.) Barbara Laumenede was a Payroll Supervisor. (Compl. ¶ 9.) Lawrence Ragona was a Laborer II. (Compl. ¶ 10.) John Infranca was a Recreation Aide. (Compl. ¶ 11.) Helen Delaney Harris was an Investigator Aide. (Compl. ¶ 12.) John Ciborowski was a Laborer I. (Compl. ¶ 13.) Vincent Anthony was Chief Research Assistant. (Compl. ¶ 14.) Rhoda Becker was Commissioner of Planning and Research Development of the Town of North Hempstead. (Compl. ¶ 15.) Giacomo Ciccone was a Labor Supervisor I. (Compl. ¶ 16.) Charles O'Connor was a Multiple Residence Inspector I. (Compl. ¶ 17.) Eight of the plaintiffs were elected members of the Nassau County Republican Committee. (Compl. ¶¶ 5-17.) Plaintiffs further allege that defendants knew these plaintiffs to be active Republicans. (Compl. ¶ 18.)

Benjamin L. Zwirn was Supervisor of the Town of North Hempstead, and a member of the Town Board; he is a Democrat. (Compl. ¶ 19.) May Newburger, Anthony D'Urso, and Barbara Johnson were Town Board members and are Democrats. (Compl. ¶¶ 20-22.) Gerard Cunningham was a Republican Town Board member. (Compl. ¶ 23.) Richard Middlemark was the Executive Assistant to the Supervisor. (Compl. ¶ 24.) Paul Nehrich is an employee of the Town of North Hempstead (Compl. ¶ 25), and is Unit President of the North Hempstead Unit of Local 830, Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, which Unit on May 1, 1993, became part of Nassau County Municipal Employees Local 882 of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO. (Answer of Defendant Nehrich, Individually, at ¶ 26.) William Biamonte was Administrative Assistant to the Supervisor and Director of Legislative Affairs. (Compl. ¶ 26.) Lawrence Nedelka is Commissioner of Finance. (Compl. ¶ 27.) The Town of North Hempstead ("Town") is a municipal corporation according to the laws of the State of New York. (Compl. ¶ 28.) Friends of Ben Zwirn was and is an unincorporated political committee formed to promote the election of defendant Zwirn. (Compl. ¶ 29.) Alice Peckelis is Treasurer of Friends of Ben Zwirn. (Compl. ¶ 30.) Plaintiffs are suing all defendants in their official and individual capacities except Cunningham and Peckelis, who are being sued in their official capacities only. (Compl. ¶ 32.)

Plaintiffs allege that Zwirn and defendants Middlemark, Nedelka, and Biamonte created a budget for the Town as well as to

engage in a scheme and conspiracy to defraud the Town, as well as plaintiffs and other Republicans and the Nassau County Civil Service Commission through the use of implied extortion, strong-armed tactics and other threats and harassing measures for the purpose of demonstrating to Town employees who were members of the Republican Party that in the event they did not disavow their loyalties to the Republican Party and/or switch their registration from Republican to another, they would be terminated.

(Compl. ¶ 44.) Plaintiffs claim that defendants' true motivation in terminating them was so that the defendants would be free to hire individuals associated with them or the Democratic Party and who contributed to them or the Democratic Party without regard to the competence of said individuals and without regard to the various Civil Service laws, regulations and other requirements for hiring of Town employees.

(Compl. ¶ 45.) It is alleged that Zwirn "and/or his agents" told Republican employees at various Town forums that they would be terminated, as Zwirn did not intend to continue to employ individuals who had worked under the previous Republican Town administration. (Compl. ¶ 46.) Plaintiffs claim they had "implied knowledge ... that all active Republican Town employees were being targeted for termination." (Compl. ¶ 47.)

DISCUSSION

On a motion to dismiss, the factual allegations of the complaint are accepted as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination, ___ U.S. ___, ___, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Bolt Electric v. City of New York, 53 F.3d 465, 469 (1995); Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993), cert. denied ___ U.S. ___, 115 S.Ct. 572, 130 L.Ed.2d 489 (1994). In addition, the court will draw all inferences in plaintiffs' favor. Ferran, 11 F.3d at 22. Thus defendants must demonstrate that plaintiffs' claims cannot succeed under any interpretation of the facts. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991).

The complaint seeks compensatory and punitive damages, attorney's fees, and injunctive relief against the defendants based upon violations of the ...