Rubeor v. Town of Wright, 1:13-CV-612 (LEK/CFH)

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtLawrence E. Kahn U.S. District Judge
PartiesSTEVEN RUBEOR, Plaintiff, v. TOWN OF WRIGHT, et al., Defendants.
Docket Number1:13-CV-612 (LEK/CFH)
Decision Date16 August 2017

TOWN OF WRIGHT, et al., Defendants.

1:13-CV-612 (LEK/CFH)


August 16, 2017



This case arises from plaintiff Steven Rubeor's removal from the position of assessor for defendant Town of Wright (the "Town"). Dkt. No. 1-1 ("Complaint"). On May 29, 2013, Defendants removed this action to the Northern District of New York pursuant to 28 U.S.C. § 1441, asserting federal question jurisdiction under 28 U.S.C. § 1331. Dkt. No. 1 ("Notice of Removal") ¶ 5. Presently before the Court are the Town's motion for summary judgment, Dkt. No. 47 ("Town Motion"); see also Dkt. No. 47-16 ("Town Memorandum"); Dkt. No. 47-17 ("Town Statement of Material Facts"); Dkt. No. 54 ("Town Response"); Dkt. No. 55 ("Town Responsive Statement of Material Facts"); Dkt. No. 57 ("Town Reply"),1 and Rubeor's cross-motion for partial summary judgment, Dkt. No. 48 ("Rubeor Motion"); see also Dkt. No. 48-1 ("Rubeor Memorandum"); Dkt. No. 48-18 ("Rubeor Statement of Material Facts"); Dkt. No. 52 ("Rubeor Response"); Dkt. No. 52-1 ("Rubeor Responsive Statement of Material Facts"); Dkt. No. 58 ("Rubeor Reply"). Because a reasonable jury would have to conclude that Defendants'

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removal of Rubeor from the assessor position violated his right to procedural due process, the Court grants his motion and denies the Town's motion.


A. Factual Background

In 1995, the Town established a coordinated assessment program ("CAP") with the towns of Schoharie and Esperance. Town SMF ¶ 1; Rubeor Responsive SMF ¶ 1. CAP agreements allow "[t]wo or more assessing units . . . within the same county or adjoining counties . . . [to appoint] a single assessor . . . to hold the office of assessor in all the participating assessing units." N.Y. Real Prop. Tax Law § 579(2)(b). New York law requires each town to appoint "one assessor," and "[t]he term of office of assessor shall be six years except as otherwise provided." Id. § 310(1)-(2). Assessors are "public officer[s] who ordinarily may only be removed from office for cause under Public Officers Law § 36." Rubeor v. Town of Wright (Rubeor II), 20 N.Y.S.3d 730, 732 (App. Div. 2015). In accordance with these statutes, the document formalizing the three towns' CAP agreement codified their decision "to provide for a single assessor to be appointed to hold the office of assessor in all aforesaid participating units." Dkt. No. 47-2 ("CAP Agreement") § II.

Rubeor has worked as an assessor for about twenty-five years. Town SMF ¶ 3; Rubeor Responsive SMF ¶ 3. On September 17, 2008, Rubeor became the CAP assessor for the Town, Schoharie, and Esperance; he was slated to fill "the remaining term of the previous assessor," which was to end in September 2013. Town SMF ¶ 5; Rubeor Responsive SMF ¶ 5. Schoharie was responsible for paying Rubeor for his services as CAP assessor, with the Town and

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Esperance "contribut[ing] their portions directly to . . . Schoharie." Town SMF ¶¶ 7-8; Rubeor Responsive SMF ¶¶ 7-8.

Rubeor's term as CAP assessor was controversial in some quarters in the Town. Several residents of the Town "accused [Rubeor] of raising their assessments illegally," though Rubeor denies any wrongdoing. Dkt. No. 48-15 ("Rubeor Declaration") ¶ 11. Some of these residents were so upset with Rubeor's assessments that they "brought their concerns to the Town Board and the newspapers, and pressed the Town Board to initiate a lawsuit against [him]." Dkt. No. 52-11 ("Second Rubeor Declaration") ¶ 16. The Town Board authorized this lawsuit on November 5, 2012. Dkt. No. 52-8 ("November Meeting Minutes") at 1-3.

Around this time, Bill Goblet, the Town Supervisor and a member of the Town Board, "brought up the notion" of the Town's withdrawing from the CAP agreement. Town SMF ¶ 15; Rubeor Responsive SMF ¶ 15. Specifically, on October 11, 2012, a "CAP Meeting" was held at which Goblet "expressed a desire to get out of the CAP." Dkt. No. 48-13 ("Rubeor Deposition Part Two") at 125:5-7, 126:2-4, 127:10-12. Rubeor attended this meeting, id. at 126:8-9, and his understanding of the effect of the Town's withdrawing from the CAP agreement was that "[i]t wouldn't affect [him] as the CAP assessor. It wouldn't affect [him] as the Town of Wright's assessor. It's two separate things. It's very easy to get out of the CAP, but to fire your assessor you have to go through specific steps, and they did not do that," id. at 130:13-17. Rubeor was also aware of rumors that Goblet wanted to fire him. Dkt. No. 48-11 ("Rubeor Deposition") at 77:19-78:14.

On December 10, 2012, the Town held a Town Board meeting. Town SMF ¶ 16; Rubeor Responsive SMF ¶ 16. Rubeor arrived late to the meeting. Rubeor Dep. at 57:20-58:5. At the

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meeting, the Town Board resolved, by two four-to-one votes, to withdraw from the CAP agreement and "authorize the appointment of an interim assessor to be chosen by the board at a later date." Dkt. No. 47-5 ("December 10 Meeting Minutes") at 3. "The interim period would be from [the] date of hire until September 2013 when all NYS Assessors are reappointed or appointed." Id. These votes had already been taken by the time Rubeor showed up. Rubeor Decl. ¶ 18. After Rubeor explained that he was "proceeding with data collection, and [that] all three towns w[ould] be completed 100% by [the] May 1st goal," Goblet told him that "the Board had voted and decided to remove the Town from the CAP so it will be one less town he has to worry about." Dec. 10 Meeting Minutes at 5. Rubeor "asked when this is effective and . . . Goblet explained this is effective today, December 10th." Id.

Before this meeting, Rubeor was aware that "the Town Board was considering withdrawing" from the CAP, but he did not know that the Town would withdraw from the CAP at the December 10 meeting. Rubeor Decl. ¶ 17. Nor did he realize that the Town would hire an interim assessor upon withdrawing from the CAP agreement. Id. ¶ 16. When Goblet told him the bad news, he "was shocked, and went basically speechless trying to process what just happened." Second Rubeor Decl. ¶ 9. And while Rubeor knew about the anger some residents felt at his assessment activities, he "was never informed by Town officials or Town Board members that defendants relied on th[e residents'] accusations as the basis for [his] removal." Rubeor Decl. ¶ 11. Rubeor also complains that the Town never gave him a chance to

(a): explain that the Town's withdrawal from CAP 1 did not legally cut short [his] term of office as the Town's sole assessor; (b) show that the removal was illegal without evidence of "just cause" and the removal being done in conformance with applicable legal procedures;

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and (c) rebut whatever evidentiary basis the Town Board thought justified its decision to remove [him] as the Town's sole assessor.

Id. ¶ 15. Indeed, Rubeor never received "an explanation by a representative of the Town of Wright and/or the Town Board of the evidence justifying defendants' decision to replace [him] as the Town's sole assessor." Id. ¶ 10.2

Another Town Board meeting was held on December 17, 2012. Dkt. No. 47-6 ("December 17 Meeting Minutes"). At this meeting, the Town Board unanimously voted to "authorize Lynn Herzog, Town Clerk[,] to submit Local Law #1-2012, Withdrawing from the Coordinated Assessment Program." Id. at 1. The Town Board also agreed to "appoint Susan Crosby as the Interim Assessor for the period ending September 2013." Id. Two days later, on December 19, 2012, Goblet sent Rubeor a letter informing him that "the Town of Wright has decided to end its involvement with the CAP and [his] services are no longer needed. This decision was made at the last Town Board meeting and is effective December 10th based on Town of Wright, Local Law #1-2012." Dkt. No. 48-17 ("December Letter").

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After these events, Rubeor remained employed as the assessor for Schoharie and Esperance, Rubeor Dep. at 23:1-7, a position from which he retired on February 28, 2017, so that he could move to Florida to care for his elderly mother, Second Rubeor Decl. ¶¶ 33-34. But in the period between his removal as the assessor for the Town and February 2017, he unsuccessfully attempted to obtain additional work as an assessor. Town SMF ¶¶ 38-41; Rubeor Responsive SMF ¶¶ 38-41. Rubeor attributes his lack of success in this area to his removal as assessor for the Town, which "gave validity to the false accusations against [him]." Second Rubeor Decl. ¶ 18. According to Rubeor, by removing him while the "'cloud' of [allegedly] illegal misconduct hung over [him]," the Town "intensif[ied] the damage the taxpayers' false accusations caused to [his] professional reputation." Id. For example, in the summer of 2013, Middleburgh was considering appointing a new assessor, and Rubeor applied for the position. Dkt. No. 52-21 ("Makely Declaration") ¶¶ 6-7. Susan Makely, a member of Middleburgh's Town Board, supported Rubeor's application, but "other Town Board members [mentioned him] as someone they did not want to interview because of the fallout from the public uproar in . . . Wright that led to his removal as the Town's assessor." Id. ¶ 7. Makely was nonetheless able to convince the Middleburgh Town Board to interview Rubeor, but the board ended up deciding to retain the incumbent assessor. Id. ¶¶ 8-9.

Rubeor, a divorced, single father, claims that the removal has caused him significant psychological, physical, and financial harm, in addition to damaging his relationship with his daughter, over whom he has primary custody. E.g., Second Rubeor Decl. ¶¶ 11-13. The lost income forced Rubeor to "discontinue the cable TV subscription at [his] house, and to stop going out with [his] daughter for breakfast, ice-cream, bowling, and movies." Id. ¶ 12. These changes

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contributed to Rubeor's sense of "inadequa[cy] as a father" and to his depression and anxiety, for which he "had...

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