16‐978‐cv
DeMartino v. NYS Dep’t of Labor, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 5th day of October, two thousand
4 seventeen.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 JOHN F. KEENAN,
10 District Judge.*
11
12
13 FRANK DEMARTINO, TADCO
14 CONSTRUCTION CORPORATION,
15
16 Plaintiffs‐Appellants,
17
18 v. No. 16‐978‐cv
19
20 NEW YORK STATE DEPARTMENT OF LABOR,
21 DORMITORY AUTHORITY OF THE STATE OF
22 NEW YORK, PETER M. RIVERA, JOHN PADULA,
23 JOHN W. SCOTT, DENNIS MONAHAN,
24
25 Defendants‐Appellees,
* Judge John F. Keenan, of the United States District Court for the Southern District of
New York, sitting by designation.
1
2 JOHN DOES 1–10,
3
4 Defendants.
5
6
7 FOR APPELLANTS: BRYAN HA, Attorney at Law, White
8 Plains, NY.
9
10 FOR APPELLEES: SETH M. ROKOSKY, Assistant Solicitor
11 General (Barbara D. Underwood,
12 Solicitor General, Steven C. Wu,
13 Deputy Solicitor General, on the brief),
14 for Eric T. Schneiderman, Attorney
15 General of the State of New York,
16 New York, NY, for New York State
17 Department of Labor, Peter M.
18 Rivera, John Padula, and John W.
19 Scott.
20
21 SUSAN P. GREENBERG, Of Counsel
22 (Richard Dearing, Devin Slack, Of
23 Counsel, on the brief), for Zachary W.
24 Carter, Corporation Counsel of the
25 City of New York, New York, NY, for
26 Dormitory Authority of the State of
27 New York and Dennis Monahan.
28
29 Appeal from a judgment of the United States District Court for the Eastern
30 District of New York (Kiyo A. Matsumoto, Judge). UPON DUE
31 CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
32 that the judgment of the District Court is AFFIRMED in part and the appeal is
33 DISMISSED in part.
34 TADCO Construction Corporation and Frank DeMartino (collectively,
2
1 “TADCO”) appeal from a judgment of the District Court (Matsumoto, J.)
2 dismissing their claims against the New York State Department of Labor (“DOL”)
3 and three of its employees, as well as the Dormitory Authority of the State of New
4 York (“DASNY”) and one of its employees. Seeking both money damages and
5 injunctive relief, TADCO alleged that the defendants violated TADCO’s due
6 process rights, committed an abuse of process, and engaged in a conspiracy when
7 they withheld payments to TADCO without promptly providing an
8 administrative hearing. We assume the parties’ familiarity with the facts and
9 record of the prior proceedings, to which we refer only as necessary to explain our
10 decision to affirm in part and dismiss in part.
11 TADCO first argues that the defendants2 violated its procedural due
12 process rights by failing to promptly convene a post‐deprivation hearing on
13 (1) the 2007 records withholding on the Queens Hospital Project, and (2) the 2010
14 direct withholding and 2013 cross‐withholding for prevailing‐wage violations on
15 the Staten Island Project. Assuming without deciding that TADCO has a
16 property interest in payment for work properly performed under its contracts
2 The DASNY defendants (DASNY and Dennis Monahan) argue that they are not the
relevant actors for the procedural due process claim, since TADCO’s contentions relate
only to DOL. Because we conclude that TADCO has not stated an adequate procedural
due process claim in any event, we do not address this argument.
3
1 with DASNY, we agree with the District Court that no procedural due process
2 violations occurred.
3 TADCO was not entitled to a hearing on the 2007 records withholding
4 because the procedure for implementing a records withholding itself satisfies due
5 process, and because TADCO does not dispute that it failed to maintain or
6 produce the required records in violation of both the Labor Law and its contracts
7 with DASNY. Without a factual dispute, any hearing would have been
8 meaningless. Nor was TADCO deprived of due process as a result of the
9 defendants’ four‐year delay in providing an administrative hearing on the 2010
10 and 2013 withholdings for violations on the Staten Island Project. See Lujan v. G
11 & G Fire Sprinklers, Inc., 532 U.S. 189, 197 (2001); see also Oneida Indian Nation of
12 New York v. Madison Cty., 665 F.3d 408, 427 n.13 (2d Cir. 2011). An
13 administrative hearing for a prevailing wage withholding is not a constitutional
14 requirement; the availability of a breach of contract suit alone satisfies due
15 process. Lujan, 532 U.S. at 197. In this case, TADCO does not dispute that it
16 could have sued for breach of contract, mandamus relief, or relief under Article
17 78.
18 TADCO further argues that the District Court erred when it dismissed its
4
1 substantive due process claim arising out of the investigation into the Queens
2 Hospital project. But TADCO cannot meet the high standard required to prevail
3 on a substantive due process claim, see Cty. of Sacramento v. Lewis, 523 U.S. 833,
4 840, 846–47 (1998), not least because TADCO was required by law to keep
5 adequate payroll records and to provide them to DOL upon request, see N.Y.
6 Labor Law § 220(3‐a)(a)(iii), (3‐a)(c). DOL’s request that TADCO provide its
7 records does not “shock the conscience.” Lombardi v. Whitman, 485 F.3d 73, 81
8 (2d Cir. 2007); see also Oneida, 665 F.3d at 427 n.13.
9 As for TADCO’s abuse of process claim, we recognize claims under § 1983
10 only for abuse of criminal process, not abuse of civil process. See Green v.
11 Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). On appeal, TADCO argues that its
12 abuse of process claim should have been construed as arising under State law or
13 that it should have been permitted to amend its complaint to include such a claim.
14 But TADCO did not raise this argument in the District Court, so we do not
15 consider it here.3 See Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 615 (2d
16 Cir. 2016).
3
TADCO’s conspiracy claim under § 1983 is premised on its claims that the defendants
violated an underlying federal constitutional right. See Droz v. McCadden, 580 F.3d
106, 109 (2d Cir. 2009). Because, for the reasons already stated, we affirm the dismissal
of those underlying claims, we affirm the dismissal of the conspiracy claim as well.
5
1 While this appeal was pending, the Commissioner of Labor adopted a
2 report and recommendation finding that TADCO committed prevailing wage
3 violations on the Staten Island Project. See Appellees’ FRAP 28(j) Letter, ECF
4 No. 86. Because DOL has now concluded its administrative proceeding, we
5 dismiss as moot that part of the appeal concerning TADCO’s claims for injunctive
6 relief.
7 Finally, we conclude that the District Court did not abuse its discretion in
8 denying TADCO’s motion for recusal. No “objective and disinterested observer,
9 knowing and understanding all of the facts and circumstances, could reasonably
10 question [Judge Matsumoto’s] impartiality.” SEC v. Razmilovic, 738 F.3d 14, 29
11 (2d Cir. 2013).
12 We have considered TADCO’s remaining arguments and conclude that
13 they are without merit. For the foregoing reasons, the judgment of the District
14 Court is AFFIRMED in part and the appeal is DISMISSED in part.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk of Court
17
6
DeMartino v. NYS Dep't of Labor
Combined Opinion