Martz v. Incorporated Village of Valley Stream

• Decision Date: 07 April 1994
• Docket Number: D,No. 950,950
• Citation: 22 F.3d 26
• Parties: Deborah MARTZ, Plaintiff-Appellant, v. INCORPORATED VILLAGE OF VALLEY STREAM; George Donley, Individually, and as Mayor of the Incorporated Village of Valley Stream; Paul Brown, Individually, and as Trustee of the Incorporated Village of Valley Stream; Michael Belfiore, Individually, and as Trustee of the Incorporated Village of Valley Stream; Thomas Williams, Individually, and as Village Attorney for the Incorporated Village of Valley Stream; Nunzio Colombo, Individually, and as Treasurer of the Incorporated Village of Valley Stream; Joseph W. Gathard, as Trustee of the Incorporated Village of Valley Stream; Rosario Messina, as Trustee of the Incorporated Village of Valley Stream, Defendants-Appellees. ocket 93-7785.
• Court: U.S. Court of Appeals — Second Circuit

Page 26

22 F.3d 26

Deborah MARTZ, Plaintiff-Appellant, v. INCORPORATED VILLAGE OF VALLEY STREAM; George Donley Individually, and as Mayor of the Incorporated Village of Valley Stream; Paul Brown, Individually, and as Trustee of the Incorporated Village of Valley Stream; Michael Belfiore, Individually, and as Trustee of the Incorporated Village of Valley Stream; Thomas Williams, Individually and as Village Attorney for the Incorporated Village of Valley Stream; Nunzio Colombo, Individually, and as Treasurer of the Incorporated Village of Valley Stream Joseph W. Gathard, as Trustee of the Incorporated Village of Valley Stream; Rosario Messina, as Trustee of the Incorporated Village of Valley Stream, Defendants-Appellees.

No. 950, Docket 93-7785.

United States Court of Appeals Second Circuit.

Argued Jan. 12, 1994.

Decided April 7, 1994.

Elliot I. Susser, Lake Success, NY (Lysaght, Lysaght & Kramer, P.C., Lake Success, NY, of counsel), for plaintiff-appellant.

Kenneth Novikoff, Uniondale, NY (Evan H. Krinick, Rivkin, Radler & Kremer, Uniondale, NY, of counsel), for defendants-appellees.

Before: MINER, MAHONEY, Circuit Judges, and RESTANI, ^* Judge.

MINER, Circuit Judge:

Plaintiff-appellant Deborah Martz appeals from a summary judgment entered on July 14, 1993 in the United States District Court for the Eastern District of New York (Spatt, J.), in favor of defendants-appellants the Incorporated Village of Valley Stream, George Donley, Paul Brown, Michael Belfiore, Thomas Williams, Nunzio Colombo, Joseph W. Gathard and Rosario Messina ("Village", collectively) and dismissing Martz's complaint, brought pursuant to 42 U.S.C. Sec. 1983, in its entirety. The district court found that (1) the Village's alleged breach of a contract with Martz in not paying her for professional services rendered did not constitute a deprivation of a property interest protected by the Fourteenth Amendment, and (2) alleged defamatory statements attributed to the Village and first published in a local newspaper approximately six months after the expiration of Martz's one-year term of appointment as Deputy Village Attorney did not deprive her of any liberty interest protected by the Fourteenth Amendment.

For the reasons that follow, the judgment of the district court is AFFIRMED.

BACKGROUND

In April of 1985, Martz was appointed by the Board of Trustees of the Village to a one-year term as Deputy Village Attorney for the Village's Board of Zoning Appeals ("BZA"). The original resolution ¹ appointing Martz Early in 1988, Martz was directed by the Board of Trustees to begin drafting a new Zoning Code and was asked to wait until the project was completed before requesting payment. Although the new Zoning Code was passed in September of 1990, the Board of Trustees asked Martz to continue to work on minor revisions. In March of 1991, the Board of Trustees suggested that she submit her final bill for services rendered. Accordingly, Martz submitted verified written vouchers to her supervisor, Michael Hopkins. These vouchers totaled $40,220.00 for services provided in connection with Martz's drafting of the Zoning Code and for other BZA-related services. The vouchers then were signed by Hopkins and the members of the Board of Trustees and given to the Village Treasurer.

provided that she was to be paid an annual retainer to attend a specified number of meetings and public hearings of the BZA, prepare all written decisions of the BZA and prepare all written interpretations of the Village Zoning Code. A separate resolution empowered the Board of Trustees to contract with Martz to perform additional legal services on a case-by-case basis. This resolution also provided that she would be compensated at a fixed hourly rate and required Martz to submit verified written vouchers before receiving payment.

On April 1, 1991, a new mayor and three new trustees took office, having been elected on March 19, 1991. Martz's term as Deputy Attorney expired on April 1, and she was not re-appointed. Martz did not contest the failure to re-appoint. In mid-April, having not yet received payment for her work on the Zoning Code, Martz telephoned the Village's payroll department to check on the status of her vouchers. She was told that the vouchers had been picked up by the new Village Attorney, Thomas Williams. The Village continued to withhold payment and, on August 5, 1991, a resolution to pay Martz (submitted by the two incumbent Trustees) was defeated by a three-to-two vote of the Village Board. According to the Village, Martz was refused payment because the vouchers were viewed as being submitted and approved under extraordinarily suspicious circumstances. Several vouchers described services allegedly rendered over one year prior to their submission without any evidence of a resolution or contract authorizing Martz's services and without any corresponding budgetary appropriation. Other vouchers allegedly had been verified on March 15, 1991, but included time entries for work to be performed in the future.

On September 19, 1991, almost six months after Martz's appointment had expired, a local weekly newspaper, the Valley Stream Maileader, published a letter to the editor from Village Attorney Williams responding to an earlier letter from a Valley Stream citizen that discussed the number of lawsuits filed against the Village during the new administration's tenure. In the letter, Williams stated that it was his opinion, and the opinion of other lawyers with whom he had consulted, that Martz had committed malpractice by allowing a default judgment to be entered against the Village in a case that she had handled during her tenure. Williams' comments also suggested that he had only recently learned about the alleged malpractice. The article, however, did not include any statement by Williams concerning the Village's decision not to re-appoint Martz six months earlier.

On August 1, 1991, Martz had commenced an action in the New York Supreme Court, Nassau County (DiNoto, J.), against the Village. The complaint set forth causes of action for restitution and breach of contract, both based on the Village's failure to pay for the services described in the vouchers. Martz sought damages in the amount of $40,220 on each cause of action. In December of 1992 the Village moved for summary judgment dismissing the complaint, arguing that Martz had failed to comply with section 9802 of the Civil Practice Law and Rules by neglecting to file a verified claim with the village clerk within one year after the accrual of the cause of action. N.Y.Civ.Prac.L. & R. Sec. 9802 (McKinney 1981). In an April 21, 1993 decision, the court granted the Village's motion to dismiss, finding that Martz had failed to comply with the requirements of section 9802. In May of 1993, Martz moved for leave to renew and reargue the grant of On September 16, 1992, while her state court action was pending, Martz commenced the action that gives rise to this appeal. Her complaint referred to three separate occurrences that form the basis for the relief she seeks under 42 U.S.C. Sec. 1983. They were (1) the rejection by the Village of its contractual obligations to pay Martz for professional services rendered in accordance with the vouchers submitted; (2) the defamatory comments made by Williams and published in the Maileader on September 19, 1991; and (3) the decision by the Village not to reappoint Martz to the position of Deputy Village Attorney after her one-year appointment had expired. Based upon these occurrences, Martz set forth four claims in her complaint.

summary judgment, arguing that the submitted vouchers constituted the verified written claim necessary to maintain her action against the Village. By judgment dated July 24, 1993, the Supreme Court denied Martz's motion to renew and reargue.

In the first claim, she sought contract damages in the amount of $40,220. In the second claim, Martz complained of the deprivation by the Village of a protected property interest without due process of law, based primarily upon Williams' alleged defamatory remarks published in the Maileader. In her third claim, Martz alleged that the acts of the Village set out in her first two claims continued to deprive her of a protected property interest. In the fourth claim, Martz challenged the decision of the Village not to re-appoint her, alleging deprivation of property and liberty without due process. Relying upon the district court's supplemental jurisdiction, Martz alleged state law tort claims as part of the fourth claim of her complaint.

On June 7, 1993, the Village moved for summary judgment dismissing the complaint, arguing that, even if the vouchers constituted an enforceable and binding contract, a breach of that contract did not constitute a deprivation of a property interest. The Village also contended that, even if the statements printed in the Maileader were actionable defamation, the fact that they were published six months after the appointment of Martz expired precluded a finding that she had been deprived of a protected liberty interest.

By judgment entered on July 14, 1993, the district court granted summary judgment, holding that Martz had no constitutionally protected property right in payment on the vouchers or in re-appointment as Deputy Village Attorney. ² The district court also held that Martz had suffered no deprivation of a liberty interest as a result of the alleged defamatory statements because the statements did not occur in the course of her dismissal or in connection with the Village's refusal to rehire her. Having dismissed the federal causes of action, the district court dismissed the pendent state claims without prejudice. This appeal followed.

DISCUSSION

1. Property Interest

Martz argues that the Village's failure to compensate her, pursuant to the submitted vouchers, for services rendered gives rise to a cognizable claim for damages under the provisions of 42 U.S.C....