Marino v. Ameruso
| Decision Date | 08 January 1988 |
| Docket Number | No. 440,D,440 |
| Citation | 837 F.2d 45 |
| Parties | Damien MARINO, Plaintiff-Appellant, v. Anthony AMERUSO, Commissioner of the Department of Transportation of the City of New York, Defendant-Appellee. ocket 87-7532. |
| Court | U.S. Court of Appeals — Second Circuit |
Ronald Podolsky, New York City, for plaintiff-appellant.
Alan Krams, New York City (Peter L. Zimroth, Corp. Counsel, Fay Leoussis, Karen Hutson, New York City, of counsel), for defendant-appellee.
Before VAN GRAAFEILAND, WINTER and ALTIMARI, Circuit Judges.
Damien Marino appeals from Judge Griesa's dismissal of his suit brought under 42 U.S.C. Sec. 1983 (1982) against the Commissioner of the Department of Transportation of the City of New York. Marino alleged that he was deprived of a property interest in his job as a New York City traffic enforcement agent without procedural due process when an Administrative Law Judge ("ALJ") failed to strike the testimony of a witness at an administrative hearing. Because adequate state procedures exist to correct any evidentiary error committed by the ALJ, we hold that Marino was not denied procedural due process and affirm.
We briefly summarize the relevant facts. On September 17, 1984, Marino was served with an administrative charge that he had solicited and accepted a bribe of $10 for not issuing a traffic summons. At a Department of Transportation disciplinary hearing on October 18, Eileen "Doe," the complainant, testified that she was a passenger in a car stopped by Marino on August 23 on East 39th Street in Manhattan; that Marino told the car's driver, her boyfriend, that he had made an illegal right-hand turn; that Marino told the driver that he faced a forty-five dollar fine and "two points" but that "[o]ne hand washes the other"; and that the driver handed money to Marino. On cross-examination, the complainant refused to give the driver's name, even after the ALJ asked her to do so, because "[h]e does not want to get involved [and] he had told me not to say his name." The two other witnesses at the hearing were a Department of Transportation investigator, who testified that Marino was stationed at 40th Street and Lexington Avenue on the date in question, and Marino himself, who denied accepting a bribe.
Marino moved for a New York State Supreme Court order compelling the complainant to give the driver's name. That court denied this motion as premature and instructed Marino to renew the motion at the close of the administrative proceedings when "the entire record can be reviewed." The ALJ subsequently found Marino guilty of soliciting and accepting a bribe, and recommended that he be dismissed. The ALJ also refused to strike the complainant's testimony.
The Commissioner of Transportation adopted the ALJ's report and recommendation, and Marino was dismissed, effective March 4, 1985. Marino neither renewed his application to the Supreme Court to compel the complainant to provide the driver's name nor challenged the Commissioner of Transportation's determination in an Article 78 proceeding in state court, an action in which evidentiary error by the ALJ would have been grounds for relief. Instead, eight months after his dismissal, Marino brought this action under Section 1983, alleging that the ALJ's failure to strike the complainant's testimony deprived him of his right to cross-examination and thereby of due process. In dismissing Marino's Section 1983 complaint, Judge Griesa held that "the whole range of procedural rights must be considered" and that Marino did not have a "valid claim" because the availability of Article 78 review of the ALJ's evidentiary ruling afforded him procedural due process.
It is not disputed that Marino had a property interest in his public employment protected by due process, see Berns v. Civil Serv. Comm'n, 537 F.2d 714, 716 (2d Cir.1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1549, 51 L.Ed.2d 774 (1977), and that he was therefore entitled to, and had, a predismissal hearing. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The sole issue before us is whether the ALJ's allegedly erroneous evidentiary ruling regarding the admissibility of the complainant's testimony denied Marino procedural due process notwithstanding the availability of adequate state procedures to correct that error. We assume for purposes of this appeal that the ALJ made an evidentiary error, and that...
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