OPINION AND ORDER

CONNER, Senior District Judge.Page 1

Plaintiff, Joseph DeMasi, brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his due process rights under the Fourteenth Amendment of the United States Constitution when they terminated his benefits under N.Y. GEN. MUN. LAW § 207-c. Defendants, Joseph Benefico ("Benefico"), Richard Slingerland ("Slingerland") and the Village of Pelham, New York, (collectively "defendants"), move to dismiss plaintiff's claim pursuant to FED. R. CIV. P. 12(b)(6) on the grounds that plaintiff's benefits were lawfully terminated and his due process rights not violated. For the reasons stated below, defendants' motion is granted.

BACKGROUND

Pursuant to N.Y. GEN. MUN. LAW § 207-c(3), if a police officer is unable to perform regular duties but is able to perform light duty in the opinion of health authorities or physicians, "payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued . . . if he shall refuse to perform such light police duty if the same is available and offered to him. . . ." Plaintiff reported for light transitional duty but was unable to work an entire eight-hour shift or report for certain shifts from time to time because of pain. ( Id. ¶ 11.) Starting in early March 2005, plaintiff was not paid for time when he was either physically unable to complete a shift or work a particular shift due to his on-the-job injuries. ( Id. ¶ 12.) Plaintiff alleges that prior to that discontinuance of pay he was not accorded a due process hearing or an opportunity to be heard. ( Id. ¶ 13.)

Plaintiffbrought a proceeding pursuant to N.Y.C.P.L.R. § 7801 (an "Article 78 proceeding") in the Supreme Court, Westchester County, on April 18, 2005, seeking a judgment annulling defendants' termination of his section 207-c benefits. (Defs. Mem. Supp. Mot. Dismiss at 2; Stern Decl., Ex. B.) By decision dated August 30, 2005, that court determined that section 207-c benefits are a property right protected by constitutional guarantees of due process which may not be discontinued without a prior evidentiary hearing with notice and an opportunity to be heard. (Stern Decl., Ex. B at 7.) The court ordered that defendants resume payment of plaintiff's full salary retroactive to February 21, 2005 and that the issue of whether future payments may be terminated or reduced should be determined after an evidentiary hearing. ( Id. at 8.) The order was affirmed by the Appellate Division, Second Department in a decision dated November 8, 2006. (Stern Decl., Ex. C.) Plaintiff commenced this action on September 14, 2007.

ANALYSIS

I. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well-pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005); In re AES Corp. Sec. Litig., 825 F. Supp. 578, 583 (S.D.N.Y. 1993) (Conner, J.). Furthermore, in assessing the legal sufficiency of a claim, the court may consider only the facts alleged in the complaint, and any document attached as an exhibit to the complaint or incorporated in it by reference. See FED. R. CIV. P. 10(c); Dangler v. N. Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999); De Jesus v. Sears, Roebuck Co., 87 F.3d 65, 69 (2d Cir. 1996). On a motion to dismiss, a court may also consider matters "of which judicial notice may be taken under FED. R. EVID. 201." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). Included among such matters are decisions in prior lawsuits. See Jasper v. Sony Music Entm't, Inc., 378 F. Supp. 2d 334 (S.D.N.Y. 2005). To incorporate a document by reference, "the Complaint must make a clear, definite and substantial reference to the document." Thomas v. Westchester County Health Care Corp., 232 F. Supp. 2d 273, 275-76 (S.D.N.Y. 2002). "Mere discussion or limited quotation of a document in a complaint" is insufficient. R.H. Damon Co. v. Softkey Software Prods., Inc., 811 F. Supp. 986, 989 n. 1 (S.D.N.Y. 1993).

However, the Court may base its decision on a document that is not properly incorporated by reference if the document is "integral" to the Complaint and has been heavily relied on by the plaintiff in bringing suit. See Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006); Int'l Audiotext Network, Inc. v. Am. Tel. Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) ("Although the amended complaint in this case does not incorporate the Agreement, it relies heavily upon its terms and effect; therefore, the Agreement is `integral' to the complaint, and we consider its terms in deciding whether [plaintiff] can prove any set of facts that would entitle it to relief.") The Second Circuit has instructed that "a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis in original). The plaintiff's notice or possession of the document is not enough. Id.

On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the issue is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004) (internal quotation marks and citation omitted). "The Supreme Court has recently held that [w]hile a Complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Ello v. Singh, 531 F. Supp. 2d 552, 562 (S.D.N.Y. 2007) (internal quotation marks omitted; alterations in original) (quoting Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1964-65 (2007)); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d. Cir. 2007) (determining that the Court in Twombly "is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible `plausibility standard' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.") (emphasis in original). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[1][b] (3d ed. 1997); see also Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which plaintiff complains, are insufficient as a matter of law. See Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).

II. Plaintiff Was Accorded Due Process Under the Fourteenth Amendment

"An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 313 (1950)). When a person has aproperty interest that is terminated, "procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards." Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001) (citing Loudermill, 470 U.S. at 545-46). An Article 78 proceeding "is a perfectly adequate post[-]deprivation remedy." Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996).

Because it is well established under New York law that plaintiff has a property interest in Section 207-c benefits and a full post-termination adversarial hearing, in the form of an Article 78 proceeding, was provided to plaintiff, the issue before us is whether plaintiff received "notice and a limited opportunity to be heard prior to termination." See Locurto, 264 F.3d at 171.

Defendants argue that the availability of an adequate state law remedy, the Article 78 proceeding, precludes plaintiff from stating a cause of action under section 1983. (Defs. Mem. Supp. Mot. Dismiss at 3-4.) We agree that this action must be dismissed, but not for this reason. Defendants cite several cases dismissing section 1983 claims because the plaintiffs had adequate remedy in a state post-termination proceeding. ( Id. (citing Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981)).) However, these cases dealt with situations in which a property interest was terminated by the arbitrary or unanticipated conduct of a government actor. See Hudson, 468 U.S. at 533 (stating that unauthorized negligent and intentional deprivations of property do not violate the Due Process Clause if pre-deprivation process is impracticable and adequate state post-deprivation remedies are available); Parratt, 451 U.S. at 543 (finding that inmate whose mail was lost and who brought suit under § 1983 had not alleged a due process violation because his property deprivation did not occur as a result of some established state procedure but because of the unauthorized failure of State agents to follow the established state procedure). In cases where a property interest is terminated in such a way, courts have determined that it is not appropriate to hold the government liable for the lack of a pre-termination procedure because the government could not anticipate the need for one. See Parratt, 451 U.S. at 540-41 (stating that although the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner, that does not always require a pre-termination hearing if it would be impracticable and at some time a full and meaningful hearing will be available); Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984) (determining that due process was not violated when plaintiff was coerced to resign because it was "hard to visualize what sort of prior hearing the Constitution would require the employer to conduct" if the only dispute-whether the resignation was voluntary or involuntary-cannot be determined in advance and the state provides a meaningful post-deprivation hearing).

In this instance however, defendants state that plaintiff's rights were terminated pursuant to Section 207-c because a medical examiner determined that plaintiff was able to perform light-duty work. (Defs. Reply Mem. Supp. Mot. Dismiss at 2-3.) Therefore, defendants were acting pursuant to established state regulation. In situations where a government actor is acting pursuant to established state regulation, and therefore the act is a forseeable result, some minimal pre-termination proceeding is required. Defendants have not cited, nor are we aware of, any law to the contrary. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433-37 (1982) (holding that post-deprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action). Indeed, defendants cite a case that makes this very point. (Defs. Mem. Supp. Mot. Dismiss at 4 (citing Hellenic Am. Neighborhood Action Comm., 101 F.3d at 880-81).) The Second Circuit in Hellenic American Neighborhood Action Committee stated:

When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees. . . . In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy. . . . When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process.

Having determined that, at the very least, defendants were required to provide plaintiff with notice and a limited opportunity to be heard prior to the termination of his section 207-c benefits, we analyze whether plaintiff has stated a claim that defendants did not meet that requirement. Plaintiff received a letter from defendants in February 2005 ordering him to report for light transitional duty, noting that neither he nor his doctor provided medical evidence that he was unable to perform such duty, and stating that he would not be paid for time not worked. After receiving this letter plaintiff did in fact return to work. After plaintiff was found able to perform light duties, was notified by letter and did return to work, his benefits were terminated.

In determining whether the procedures afforded comport with the requirements of due process, the Court must examine and weigh various factors:

(1) the nature of the private and state interests involved[;] (2) the extent of the risk that without a hearing the plaintiff might erroneously be deprived of property and the value of a prompt hearing as a safeguard against that risk; (3) whether the state has a reasonable opportunity to provide a hearing before the deprivation occurs[;] and (4) the extent of the administrative burden on the state of being required to provide a formal rather than an informal hearing.

Examining these factors, we conclude that the procedures here satisfy the requirements of procedural due process. The letter from defendants provided plaintiff with adequate notice that they considered him able to perform light duty and upon return to such duty he would be compensated only for time worked, meaning he would no longer receive section 207 benefits. Moreover, the letter stated that he had an opportunity to present evidence to the contrary, in other words, an opportunity to be heard. We can not conceive of any other procedures that would further safeguard against the risk of erroneous deprivation of benefits while simultaneously giving proper consideration to the administrative burden on the state if it were required to provide a more formal hearing in every such instance.

We also find support for our conclusion in Vicks v. United States, 2006 WL 3019717 (N.D.N.Y. Oct. 24, 2006). In Vicks, plaintiff brought an action claiming a tax refund because he was receiving non-taxable benefits pursuant to section 207-a, a statute analogous to 207-c, for firefighters. Id. at *1. Defendants argued that plaintiff was receiving a taxable salary and plaintiff then moved for summary judgment on the ground that, among other things, once he was awarded benefits under section 207 they could not be revoked absent a revocation hearing, and since no hearing took place his compensation at that time was non-taxable. Id. The court recognized that section 207 benefits were a property interest giving rise to procedural due process protection, but did not agree with plaintiff that the benefits could never be terminated absent a hearing. Id. at *6. The court noted that pursuant to the statute an employee must make himself available for examination and after examination may be ordered to return to work. Id. The court determined that "[a] due process hearing is not required when such a return to work order is given unless the [recipient] presents evidence from his own physician of the [recipient's] continued total disability." Id. (emphasis in original). If the recipient does not provide such evidence, benefits may be discontinued if he refuses to perform light-duty assignments offered. Id. at 7. The plaintiff also argued that the benefits continued unabated even if the employee returned to work. Id. The court, however, disagreed, stating:

It would be illogical for the New York State Legislature to include provisions in the statute so an employer could re-examine an injured [recipient] to see if he [is] capable of returning to work and to terminate benefits if [he] fails to submit to the examination or to accept light duty work he is capable of performing, but also require employers to pay Section 207 benefits to [recipients] who do return to light duty work. In addition, case law indicates that once an injured [recipient] returns to work, his benefits are no longer paid under Section 207 but rather are paid as regular wages and salary.

Considering the facts as alleged in the Complaint, documents incorporated in the Complaint by reference and relied upon by plaintiff in forming the Complaint, and matters of which we may take judicial notice such as the decision in the Article 78 proceeding, plaintiff has not sufficiently pled a claim for violation of his due process rights as guaranteed by the Fourteenth Amendment. Plaintiff was given adequate pre-termination notice and an opportunity to be heard when he received the February 2, 2005 letter stating that he must return to work absent any evidence from his physician to the contrary. Plaintiff alleges that his physician did provide medical evidence "in words or substance . . . that due to his on-the-job injuries [p]laintiff from time to time would be unable to work a full eight-hour tour of light transitional duty and/or work certain of such tours." (Complt. ¶ 10.)

However, plaintiff has not sufficiently pled that he provided evidence from his physician of his continued total disability which would bring the disability determination into issue and require some type of hearing before the order to report was enforced or the benefits terminated. Plaintiff's doctor wrote two letters, one on February 11, 2005 and one on March 28, 2005. The letter of February 11 states that plaintiff's symptoms persist, but goes on to opine: "I do not see him returning to full duty as a police officer. He will remain on light duty and will return to the office in a month." (Stern Decl., Ex. F at 89.) The letter makes no mention at all that plaintiff may not be able to work a full eight-hour tour of light-duty from time to time. ( Id.) The March 28 letter states: "If symptoms worsen while on light duty I have given [plaintiff] consent to return home, etc." ( Id. at 90.) Besides the fact that this letter was submitted after plaintiff returned to work and his benefits were terminated (they were terminated sometime in early March), the letter does not sufficiently express an opinion that plaintiff was still totally disabled and therefore unable to perform light-duty work. In fact, the doctor begins the letter by stating that "[t]he patient has had no change in the above symptoms" and goes on to list those symptoms. ( Id.) Because neither of these letters from plaintiff's doctor stated an opinion contrary to the medical examiner's that plaintiff could return to light duty, there was no issue regarding plaintiff's ability to work and therefore no need for a pre-termination hearing.

The Court of Appeals, in interpreting Section 207 and analyzing the due process requirements, has stated such a requirement:

[A]lthough an administrative hearing may ultimately be required before section 207-a payments are terminated, recipients are not entitled to a hearing — as claimed by appellants here — prior to the issuance of a report for light duty order. Indeed, an order to report for duty made, as here, only after a medical determination of capability does not trigger a hearing unless a firefighter on section 207-a status has brought that determination into issue by the submission of a report by a personal physician expressing a contrary opinion. Once evidence of continued total disability has been submitted, we agree with the Appellate Division that the order to report for duty may not be enforced, or benefits terminated, pending resolution of an administrative hearing, which itself is subject to review under CPLR article 78.

In fact, plaintiff returned to work and pursuant to state statute his benefits were terminated. Finally, plaintiff had an adequate post-termination proceeding. We must therefore grant defendants' motion and dismiss the action with prejudice.

CONCLUSION

SO ORDERED.