Opinion
2001-10438
Argued December 13, 2002.
January 13, 2003.
In an action to recover damages for violations of 42 U.S.C. § 1983, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated October 29, 2001, as granted that branch of the defendants' motion which was for summary judgment dismissing their substantive due process claims.
James J. Herkenham, Slate Hill, N.Y., for appellants.
McCabe Mack, LLP, Poughkeepsie, N.Y. (Gerianne Hannibal and David L. Posner of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., HOWARD MILLER, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
To succeed on their claims pursuant to 42 U.S.C. § 1983, the plaintiffs were required to establish the deprivation of a protectable property interest by one acting under the authority of law (see Town of Orangetown v. Magee, 88 N.Y.2d 41, 52). Since the plaintiff Deborah Natalizio (hereinafter Deborah) was, at most, an "at-will" employee of the defendant City of Middletown, she did not have a property interest in her continued employment (see Matter of Voorhis v. Warwick Val. Cent. School Dist., 92 A.D.2d 571; Baron v. Port Authority of New York and New Jersey, 271 F.3d 81). Morever, since the plaintiffs failed to establish that the defendants made false charges against Deborah, or that any charges relating to the termination of her employment impacted upon her reputation or stigmatized her future employability, or were publicly disseminated, they failed to establish a claim for a deprivation of liberty without due process of law (see Supan v. Michelfeld, 97 A.D.2d 755). Accordingly, summary judgment dismissing the plaintiffs' substantive due process claims with respect to Deborah's termination was properly granted.
The plaintiffs failed to establish that they had any protectable property interest in the use and area variances which were denied by the City's Zoning Board of Appeals (hereinafter the ZBA). In any event, the ZBA had a legitimate reason for the denial of the variances and, therefore, did not act in an arbitrary or irrational manner (see Harlen Associates v. Incorporated Village of Mineola, 273 F.3d 494; Lisa's Party City v. Town of Henrietta, 185 F.3d 12). Accordingly, summary judgment dismissing the substantive due process claims relating to the denial of the variance was also properly granted (see Town of Orangetown v. Magee, supra; Harlen Associates v. Incorporated Vil. of Mineola, supra).
The plaintiffs' remaining contentions are without merit.
SANTUCCI, J.P., H. MILLER, SCHMIDT and TOWNES, JJ., concur.