Lerer v. Canario

Background

Andrew Lerer, also known as Aaron Lerer, represented himself in an action under 42 U.S.C. § 1983, a federal civil-rights statute. He sued Raymond Canario and the Incorporated Village of Spring Valley, which he incorrectly named as the Spring Valley Fire Department, Inc. Lerer alleged violations of New York General Municipal Law § 209-l, New York Civil Service Law § 75, the Spring Valley Fire Department’s constitution and by-laws, and the Fourteenth Amendment’s Due Process Clause.

Lerer alleged that he had been a volunteer firefighter with the Spring Valley Fire Department during two periods between approximately 2002 and January 2019. Canario, identified as the department’s Chief, suspended Lerer in November 2018 pending an investigation and hearing. The suspension barred Lerer from responding to calls, attending drills and other department activities, and visiting property leased, rented, or owned by the Village. Lerer alleged that this prevented him from accumulating points toward Length of Service Award Program benefits.

A December 27, 2018, notice scheduled a suspension hearing for January 2, 2019, and stated that failure to attend could result in immediate termination of Lerer’s membership. Lerer alleged that the hearing officer had held a separate December 27 hearing without notifying him and that he lacked information needed to prepare. The opinion recounts conflicting versions of what happened at the January 2 hearing: Lerer’s amended complaint said the hearing never took place because Canario did not appear, while his opposition papers said the hearing proceeded after Lerer left. Lerer later received a letter stating that he had been removed from the department’s membership rolls for conduct unbecoming a firefighter and creating a hostile work environment.

Court’s Analysis

The defendants moved to dismiss under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim. The court accepted well-pleaded factual allegations as true for purposes of the motion and read Lerer’s filings liberally because he represented himself, but it did not accept bare legal conclusions or invent facts not alleged.

State-law claims and notice of claim

The court held that Lerer’s state-law claims for alleged violations of General Municipal Law § 209-l, Civil Service Law § 75, and the department’s by-laws were subject to dismissal to the extent they were tort claims seeking money damages. New York law required Lerer to serve a notice of claim within 90 days after his claim arose. Because his termination occurred on January 15, 2019, the deadline was April 15, 2019. He did not timely serve a notice; he instead filed the action on August 16, 2019, and alleged that he served a notice on October 31, 2019.

The court rejected Lerer’s argument that his self-represented status and lack of knowledge excused compliance. It also held that a federal court could not grant permission for a late notice of claim under the New York statute. The court rejected Lerer’s argument that the notice requirement did not apply because he had named a fire-department corporation rather than a municipality, explaining that the named entity did not exist and that the fire department was an arm of the Incorporated Village of Spring Valley.

Civil Service Law § 75

The court held that Lerer had plausibly suggested that he was an exempt volunteer firefighter, but that status alone did not entitle him to the protections of Civil Service Law § 75. The statute also required that he be a permanent employee or permanent appointee, and Lerer did not allege or argue that he had either status. The court therefore held that his Civil Service Law claims were subject to dismissal.

Procedural due process

The court disagreed with defendants’ argument that General Municipal Law § 209-l did not apply. Although the statute generally does not require a hearing when a volunteer is removed for violating a fire company’s constitution or by-laws, the department’s by-laws expressly required proceedings to comply with § 209-l even in that circumstance. The court therefore held that the charge proceedings were subject to that statute.

The court nevertheless held that Lerer failed to plausibly state a federal procedural-due-process claim. It reasoned that Lerer received a suspension notice and an opportunity to be heard before an impartial hearing officer. According to the court, Lerer appeared for the scheduled hearing but left before it began, abandoning the opportunity to present evidence, question witnesses, and participate. The court also concluded that Lerer had an opportunity after his termination to bring a full adversarial proceeding under Article 78 of New York’s Civil Practice Law and Rules, but did not do so. The court held that these circumstances meant he had not plausibly alleged a deprivation of procedural due process.

Substantive due process

To the extent Lerer claimed that the suspension prevented him from accumulating Length of Service Award Program benefits and restricted his access to Village property, the court held that he failed to state a substantive-due-process claim. Substantive due process protects certain liberty and property interests from government action that is arbitrary, oppressive, or so extreme that it shocks the conscience.

The court concluded that temporarily suspending Lerer and restricting his access to municipal property and department activities while allegations of bullying and a hostile work environment were investigated did not plausibly show government action without reasonable justification or a legitimate governmental purpose.

By-laws claim

The court held that Lerer failed to plausibly state a claim for breach of the department’s constitution and by-laws. His allegations concerning notice and a hearing failed for the reasons given in the due-process analysis. He also did not seek specific performance of the by-laws or allege economic damages supporting a contract claim. Finally, allegations that defendants failed to act on charges Lerer said he filed against Canario did not show that the by-laws required defendants to take action on that correspondence.

Disposition

Judge Vincent L. Briccetti granted the defendants’ motion to dismiss. The court denied leave to file a second amended complaint because it found that the problems with Lerer’s claims were substantive and could not be cured by better pleading. The Clerk was directed to terminate the motion and close the case. The court also certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees.