Recent NDNY Decisions of Interest

By Mike Langan, Law Clerk to Hon. Glenn T. Suddaby, USDJ


Dogan v. Keybank, N.A., 18-CV-0205 (N.D.N.Y.) (10/10/18) – Diversity action against national banking association by passbook savings account holder, asserting claims of breach of contract, conversion, negligence, unjust enrichment and breach of good faith under U.C.C. § 1-203, arising from bank’s conversion of passbook savings account to paper statement savings account in September 2005, resulting in account holder’s inability to withdraw $10,000 in spring 2017.  U.S. District Judge Mae A. D’Agostino granted Defendant’s motion to compel arbitration and dismiss the complaint.

Attorney’s Fees

Shibata v. RAS Enterprises, 16-CV-1349 (N.D.N.Y.) (10/10/18) – Pro se diversity action against building contractor and its president by two real property owners asserting claims of breach of contract arising from proposed residential construction project on real property located in Danby, N.Y.  Following an Order of Dismissal under Fed. R. Civ. P. 37(b)(2) and 41(b) based on Plaintiffs’ failure to appear for deposition, U.S. District Judge Brenda K. Sannes granted Defendants’ request for award of costs and attorney’s fees in the amount of $1,042 (at a rate of $300 per hour for an experienced attorney and $110 per hour for a paralegal), and denied Plaintiffs’ cross-motion for order awarding sanctions in their favor and against defense counsel as a complete offset to any award of costs and attorney’s fees in Defendants’ favor.  Appeal pending.

Civil Rights

NRA v. Cuomo, 18-CV-0566 (N.D.N.Y.) (11/06/18) – Action against Governor, N.Y. State Department of Financial Services and its Superintendent by gun rights organization asserting claims of denial of freedom of speech, freedom from retaliation and freedom of association under First Amendment; claims of denial of due process and equal protection under Fourteenth Amendment; claim of conspiracy under 42 U.S.C. § 1983; and claims of violation of state constitution and state tort law, arising from alleged overt viewpoint-based discrimination campaign against organization and its members, involving threats of selective regulatory actions against banks and insurers if they did not terminate their relationships with organization.  Senior U.S. District Judge Thomas J. McAvoy granted in part and denied in part Defendants’ motion to dismiss Plaintiff’s Amended Complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), permitting the following three claims to proceed: (1) claim of denial of freedom of speech under First Amendment and state constitution; (2) claim of retaliation under First Amendment and state constitution; and (3) claim of denial of equal protection under Fourteenth Amendment and state constitution to the extent monetary damages are sought for past acts of selective enforcement.

Consumer Protection

Gonzales v. Agway Energy Services, LLC, 18-CV-0235 (N.D.N.Y.) (10/22/18) – Putative class action against energy services company by a customer alleging deceptive and bad-faith pricing practices that caused overpayment by “thousands” of New York and Pennsylvania consumers who were charged variable rate for electricity from November 2011 to date of complaint (December 6, 2017).  U.S. District Judge Mae A. D’Agostino granted in part and denied in part Defendant’s motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6), dismissing Plaintiff’s claims of unjust enrichment and breach of implied covenant of good faith and fair dealing for failure to state claim, but rejecting Defendant’s arguments regarding Plaintiff’s claims for breach of contract and deceptive business practices under Gen. Bus. Law § 349, including argument that Court lacks jurisdiction based on (1) purported difference between New York breach-of-contract claim and Pennsylvania breach-of-contract claim, and (2) parties’ venue-selection clause.

Criminal and Habeas Corpus

U.S. v. Reynolds, 18-CR-0321 (N.D.N.Y.) (11/13/18) – Criminal prosecution of former Cornell University student, age 21, for willfully causing to be made false statements during the purchase of a firearm in violation of 18 U.S.C. § 922 and for possessing unregistered firearms in violation of 26 U.S.C. § 5861, arising from a report from a Walmart employee who was suspicious of the materials Defendant was purchasing, and the subsequent discovery, in Defendant’s apartment and storage units, of a bomb, a gas mask, two bullet-proof vests, a gun silencer, a semiautomatic rifle, and more than 1,000 rounds of rifle and shotgun ammunition, among other items.  Senior U.S. District Judge Thomas J. McAvoy accepted Defendant’s guilty plea, pursuant to which he admitted to possessing the weapons and that in November 2017 he had given another student money to buy, on his behalf, the semiautomatic rifle.  Defendant faces up to 10 years in prison on each charge.

U.S. v. Lorenz, 18-CR-0034 (N.D.N.Y.) (11/06/18) – Criminal prosecution of sole owner of power-washing company arising from several federally funded, state-awarded contracts for washing and sealing bridge decks in 2015 and 2016, charging eight counts of wire fraud under 18 U.S.C. § 1343 and one count of mail fraud under 18 U.S.C. § 1341.  Following seven-day jury trial in Syracuse before Senior U.S. District Judge Norman A. Mordue, jury rendered verdict against Defendant on all counts.  Defendant faces up to 20 years in prison.  On January 23, 2019, Judge Mordue denied Defendant’s motion to set aside the verdict.

Larkins v. Artus, 17-CV-0345 (N.D.N.Y.) (09/12/18) – Petition for writ of habeas corpus arising from conviction for attempted gunpoint robbery in August 2010 at Ramada Inn in DeWitt, and claiming that Onondaga County Court’s refusal to permit Petitioner to proceed pro se violated his rights under Sixth Amendment.  U.S. Magistrate Judge Andrew T. Baxter issued Report-Recommendation recommending that petition be denied on ground that Fourth Department did not unreasonably apply clearly established Supreme Court law in determining that petitioner’s request to proceed pro se 7 days before trial was equivocal.  On de novo review, U.S. District Judge Brenda K. Sannes rejected Report-Recommendation and directed that Petitioner be released unless state provides him a new trial within 60 days, because (1) there is no clearly established Supreme Court law holding that Petitioner’s request was untimely, (2) there was no ambiguity in Petitioner’s repeated request to proceed pro se, (3) the State has cited no authority for the point of law that a request can be unambiguous yet equivocal and (4) in any event, the request was unequivocal based on the transcript of the request.


Manley v. Champlain Stone, Ltd., 17-2593-CV (2d Cir.) (11/07/18) – Pro se action against supplier of building stone and 4 of its unidentified employees by former employee claiming negligence under state labor laws and discrimination based on alienage under 42 U.S.C. § 1981, arising from his injury on the job and termination due to not being a U.S. citizen.  Senior U.S. District Judge Normal A. Mordue sua sponte dismissed Plaintiff’s Amended Complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(b)(6).  The Second Circuit affirmed because, along other reasons, while 42 U.S.C. § 1981 prohibits alienage discrimination, it cannot be construed to require employers to hire aliens who are not authorized to work in the United States: when an employer refuses to hire or fires an alien because he or she is not authorized to work in the United States, that employer is discriminating on the basis not of alienage but of noncompliance with federal law.

Matthews v. CSX Transportation, Inc., 17-CV-0448 (N.D.N.Y.) (10/17/18) – Employment civil rights action against a railroad operating company by former carman alleging that company intentionally discriminated against him based on his disability (type 1 diabetes), and that, after he reported the discrimination, the company retaliated against him by subjecting him to dishonest performance evaluations and eventually improperly terminating his employment.  Chief U.S. District Judge Glenn T. Suddaby granted in part and denied in part Defendant’s motion to dismiss Plaintiff’s Second Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), dismissing Plaintiff’s claims of discrimination under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), but rejecting Defendant’s arguments regarding Plaintiff’s claims of retaliation under the ADA and Section 504.

Excessive Force / False Arrest / Malicious Prosecution

Lanning v. City of Glens Falls, No. 17-970-CV (2d Cir.) (11/07/18) – Action against city, its Police Department, a police officer, the county sheriff’s office, the county district attorney’s office, and a county police officer by arrestee asserting claims of malicious prosecution in violation of Fourth Amendment and a claim of denial of equal protection in violation of Fourteenth Amendment, based on allegations that he had been repeatedly unlawfully arrested and charged with aggravated harassment and violation of order of protection at direction of his estranged wife, who had been romantically involved with city police officer.  U.S. District Judge Mae A. D’Agostino granted Defendants’ motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The Second Circuit affirmed on grounds that (1) Plaintiff had not plausibly alleged that any of the criminal proceedings against him were terminated in a manner affirmatively indicating his innocence for purposes of a malicious prosecution claim, and (2) he had not plausibly alleged the existence of an appropriate comparator for purpose of an equal protection claim.

Grant v. City of Syracuse, 15-CV-0445 (N.D.N.Y.) (10/23/18) – Action against City of Syracuse and two of its police officers by husband and wife asserting claims of excessive force under the Fourth Amendment, false arrest under the Fourth Amendment, municipal liability under Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978), assault and battery under New York State law, and false imprisonment under New York State law, arising from incident at Plaintiffs’ home on Hudson Street in response to 911 call in June 2014.   Following eleven-day jury trial before U.S. District Judge David N. Hurd in Utica, jury rendered verdict for Plaintiffs on all claims except for claim of municipal liability, awarding husband $1,130,000 in actual damages, and awarding wife $450,000 for loss of consortium.  Post-trial motions pending, as well as motion to stay enforcement of judgment pending decision of those motions.

LaPoint v. Vasiloff, 15-CV-0185 (N.D.N.Y.) (10/11/18) – Action against two Village of East Syracuse police officers by an arrestee asserting claim of excessive force under Fourth Amendment arising from incident on night in February 2012 when, after smoking marijuana all day and drinking at least two alcoholic beverages, he entered a rail yard in East Syracuse, entered the engine compartment of a freight train, locked the door and started sounding the train’s whistle.  U.S. District Judge Mae A. D’Agostino granted Defendants’ motion for summary judgment under Fed. R. Civ. P. 56 based on the undisputed record evidence establishing one officer’s lack of personal involvement in the use of force, and the other officer’s proportionate response to Plaintiff’s active resistance to arrest.  Appeal pending.

Medical Malpractice

Kaminski v. St. Joseph’s Hospital Health Center, 14-CV-1441 (11/16/18) – Diversity action against hospital and emergency physician by administratrix of estate of decedent asserting claims of medical malpractice and lack of informed consent, arising from decedent’s death from a heart attack 107 days after he had been admitted to hospital due to complaints of chest pain and loss of consciousness, examined then discharged.  Senior U.S. District Judge Gary L. Sharpe denied Defendants’ motions for summary judgment under Fed. R. Civ. P. 56 based on report of Plaintiff’s expert, but granted Defendants 30 days in which to move again for summary judgment regarding Plaintiff’s claim of lack of informed consent.