Sedacca et al v. Mangano et al
Filing
35
ORDER denying 23 Motion for Summary Judgment; denying 29 Motion for Sanctions; granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the attached Memorandum and Order, defendant s' motion to dismiss is granted in part and denied in part. In addition, plaintiffs' motion for sanctions is denied and plaintiffs' motion for summary judgment is denied without prejudice. Ordered by Judge Denis R. Hurley on 4/9/2014. (Kaley, Regina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DOLORES SEDACCA, JOHN R. LEWIS, JR.
and ISRAEL WASSER,
Plaintiffs,
MEMORANDUM AND ORDER
12-cv-1921 (DRH) (AKT)
-againstEDWARD P. MANGANO, County Executive
of Nassau County and COUNTY OF NASSAU,
Defendants.
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APPEARANCES
For the Plaintiffs:
LYNN, GARTNER, DUNNE & COVELLO, LLP
330 Old Country Road
Suite 103
Mineola, NY 11501
By:
Kenneth Lawrence Gartner, Esq.
John Walter Dunne, Esq.
Robert P. Lynne, Jr., Esq.
For the Defendants:
OFFICE OF THE NASSAU COUNTY ATTORNEY
One West Street
Mineola, NY 11501
By:
Susan M. Tokarski, Esq.
HURLEY, Senior District Judge:
On April 19, 2012, plaintiffs Dolores Sedacca (“Sedacca”), John R. Lewis, Jr.
(“Lewis”), and Israel Wasser (“Wasser”) (collectively “plaintiffs”) initiated this action
against County Executive Edward Mangano (“Mangano”) and the County of Nassau
(collectively, “defendants”), alleging constitutional violations under 42 U.S.C. § 1983.
1
Presently before the Court are defendants’ motion to dismiss plaintiffs’ claims for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1),
plaintiffs’ motion for sanctions pursuant to Rule 11, and plaintiffs’ motion for summary
judgment pursuant to Rule 56. For the reasons set forth below, the Court grants in part
and denies in part defendants’ motion to dismiss, and the Court denies plaintiffs’ motions
for sanctions and for summary judgment.
BACKGROUND
Unless otherwise noted, the following facts are taken from the Complaint and
assumed true for purposes of defendants’ motion to dismiss, which the Court will address
first. The plaintiffs were all appointed as Commissioners of the Nassau County
Assessment Review Commission (“ARC”) by County Executive of Nassau County
Thomas Suozzi (See Defs.’ Mem. in Supp. at 3) and confirmed to their positions by
resolutions of the Nassau County Legislature on December 24, 2009. Sedacca’s term
was to expire on June 29, 2012, Wasser’s term was to expire on June 29, 2013, and
Lewis’s term was to expire on June 29, 2014.
On or about January 14, 2010, newly named County Executive Edward P.
Mangano sent the plaintiffs letters stating that the plaintiffs were being removed from
their positions pursuant to Section 203 of the Nassau County Charter (“§ 203”). 1
According to plaintiffs, the reasons given for the removals had nothing to do with the
1
Section 203 of the Nassau County Charter states that “[t]he County Executive
may at any time remove any person so appointed provided that in the case of members of
boards and commissions appointed for definite terms, no removal shall be made unless
the person to be removed has been serv[ed] with a notice of the reasons for such removal
and given an opportunity to be heard . . . thereon by the County Executive.” Sedacca v.
Mangano, 18 N.Y.3d 609, 614 (2012).
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plaintiffs’ performance, but rather, Mangano’s “desire to name new appointees of his
political choice, and thwart what he believed was a political overreach in the exercise of
appointive authority by his predecessor” and the prior County Legislature. 2 (Compl. ¶
25.)
On January 25, 2010, the plaintiffs commenced an Article 78 proceeding 3 in
Nassau County Supreme Court seeking a declaration that their removal without cause
would be unlawful and seeking to enjoin the defendants from taking such action. The
action was commenced by an order to show cause containing a temporary restraining
order (“TRO”) seeking to keep the plaintiffs in their positions pending the resolution of
the proceeding. Although the Supreme Court initially signed the TRO, on February 4,
2010 it lifted the TRO and dismissed the action finding that § 203 allowed the County
Executive to remove the plaintiffs without cause. Sedacca v. Mangano, 895 N.Y.S.2d
792 (Sup. Ct. 2010). According to plaintiffs, the defendants removed the plaintiffs from
office on that same day.
The plaintiffs appealed to the Appellate Division, Second Department, but on
November 3, 2010, the Appellate Division affirmed the February 4, 2010 order of the
Nassau Supreme Court. Sedacca v. Mangano, 78 A.D. 3d 716 (2d Dep’t 2010). The
New York Court of Appeals, however, granted leave to appeal, and in a February 21,
2
The letter read: “the County Executive is removing you from office as a
Commissioner of the Nassau County Assessment Review Commission” and stated that
the plaintiffs’ appointment in the last weeks of the previous County Executive’s outgoing
administration “would not only frustrate the mandates of the newly-elected County
Executive and County Legislators, but [] would also frustrate the will of the voters.” (See
Pls.’ Ex. 3 to Motion for Sanctions.) It also set a date and time for the plaintiff’s to be
heard if they so desired.
3
The Court of Appeals referred to the state court action as a “combined
declaratory judgment action/CPLR article 78 proceeding.” Sedacca, 18 N.Y.3d at 614.
3
2012 per curiam opinion, unanimously reversed the Supreme Court’s decision and found
that “in the absence of cause, the County Executive does not have authority to remove
commissioners of the Nassau County Assessment Review Commission prior to the
expiration of their statutory terms” and remitted the case to the Supreme Court. Sedacca,
18 N.Y.3d at 616. On remand, the Supreme Court granted the plaintiffs’ request for an
“[o]rder permanently enjoining the County Executive and the County of Nassau from,
absent cause, taking any action to effect the removal of [plaintiffs] prior to the expiration
of their statutory terms.” (Defs.’ Ex. L to Opp. to Summ. J., Order of Hon. Roy S.
Mahon, April 10, 2012.) By the time the Supreme Court issued this order plaintiffs had
already been removed, and Mangano refused to reinstate the plaintiffs, refused to
compensate them for the time during which they had been removed from their positions,
and refused to provide them with any future pay despite the decision not to reinstate the
plaintiffs to their positions.
Plaintiffs now claim that “defendants unjustly deprived the plaintiffs of their
constitutional rights [to due process under the Fourteenth Amendment of the United
States Constitution] when they unlawfully removed the plaintiffs without cause,” and
when they “following the February 21, 2012 decision of the Court of Appeals, refused to
reinstate or compensate the plaintiffs without cause.” (Compl. ¶¶ 39-42.) Plaintiffs
claim that pursuant to 42 U.S.C. § 1983 they are entitled to “(i) reinstatement (to the
extent that their terms, by the time of adjudication, have any time left on them), (ii) back
(or future) pay, (iii) the attorneys [sic] fees and expenses incurred in the state court
action, and (iv) punitive damages; together with, pursuant to 42 U.S.C. § 1988 (i) the
attorneys [sic] fees incurred in the instant action, and if not awarded as direct
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compensatory damages pursuant to 42 U.S.C. § 1983, (ii) the attorneys [sic] fees and
expenses incurred in the state court action.” (Compl. ¶ 38.)
DISCUSSION
I.
Standard of Review
A defendant may move to dismiss a suit for lack of subject matter jurisdiction
under Rule 12(b)(1) “when the district court lacks the statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The
plaintiff has the burden to prove subject matter jurisdiction by a preponderance of the
evidence. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.
2005). In reviewing a motion to dismiss under Rule 12(b)(1), the Court must accept all
facts in the complaint as true. Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221,
227 (2d Cir. 2012). The court may consider affidavits and other materials beyond the
pleadings to resolve the jurisdictional issue. Makarova, 201 F.3d at 113.
II.
Defendants’ Motion to Dismiss
A.
Qualified Immunity
Defendants argue that all claims against County Executive Mangano should be
dismissed because he is entitled to qualified immunity. “Government actors have
qualified immunity to § 1983 claims ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’ ” Bolmer v. Oliveira, 594 F.3d 134, 141 (2d Cir. 2010) (quoting Okin v. Vill. of
Cornwall–on–Hudson Police Dep't, 577 F.3d 415, 432 (2d Cir. 2009)). Thus, “[a]
qualified immunity defense is established if (a) the defendant's action did not violate
clearly established law, or (b) it was objectively reasonable for the defendant to believe
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that his action did not violate such law.” Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996)
(citations omitted).
“Qualified immunity shields government officials from liability for civil damages
as a result of their performance of discretionary functions, and serves to protect
government officials from the burdens of costly, but insubstantial, lawsuits.” Lennon v.
Miller, 66 F.3d 416, 420 (2d Cir. 1995). Qualified immunity is an affirmative defense.
As such, the burden of proof rests on the defendants asserting the defense to demonstrate
that it was objectively reasonable to believe that their conduct did not violate a federal
right of plaintiffs. See Green v. City of New York, 465 F.3d 65, 83 (2d Cir. 2006).
“Though a qualified immunity defense may be advanced on a 12(b)(6) motion, it faces a
‘formidable hurdle’ when advanced at such an early stage in the proceedings.” Cathedral
Church of the Intercessor v. Incorporated Village of Malverne, 353 F. Supp. 2d 375, 391
(E.D.N.Y. 2005) (citing McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004.)
Moreover, “plaintiff is entitled to all reasonable inferences from the facts alleged, not
only those that support his claim, but also those that defeat the immunity defense.”
McKenna, 386 F.3d at 436.
Defendants argue that all claims against County Executive Mangano are barred
because he is entitled to qualified immunity as “[a]t the time the County Executive
removed the plaintiffs, it was reasonable [for him] to believe that his actions were lawful
pursuant to County Charter § 203” especially since the Supreme Court had “found that
the County Executive could remove the Commissioners [without cause] pursuant to
County Charter § 203.” (Defs.’ Mem. in Supp. at 13.) Plaintiffs respond that “[w]hile
[the Supreme Court’s ruling] might arguably have made the County Executive’s initial
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removal of the plaintiffs ‘reasonable’ at the time they were removed,” it does not excuse
defendants’ actions after the Court of Appeals reversed the Supreme Court’s decision as
“[o]nce the Court of Appeals ruled – in February 2012 – the County Executive was
constitutionally bound to immediately provide the plaintiffs with back pay, reinstate
them, and if they could purportedly not be reinstated due to the appointment of
replacement commissioners, provide them with future pay.” (Pls.’ Mem. in Opp’n at 1213.)
Here, at the time plaintiffs allege they were removed, i.e., after the order of the
Supreme Court stating that defendants could remove plaintiffs without cause, it was
objectively reasonable for Mangano to believe that he was not in violation of any law.
Defendant Mangano, however, has not met his burden in proving that he is entitled to
qualified immunity as to his actions after the Court of Appeals reversed the Supreme
Court’s order. The defendants’ sole argument on that issue is that “[t]here was no legal
obligation for the County Executive to grant the plaintiffs reinstatement or back pay”
because the Court of Appeals remanded the case to the Supreme Court and the Supreme
Court, although it granted the order enjoining the defendants from removing the plaintiffs
without cause, did not specifically order that plaintiffs be reinstated. (Defs.’ Reply at 9.)
Drawing all inferences in the favor of the plaintiffs, however, the Court cannot rule at the
motion to dismiss stage that defendant Mangano was not required to take any further
action with regard to plaintiffs once it became clear that they could not be removed
without cause. Moreover, defendant Mangano has not proven that it was reasonable for
him to believe that he was not in violation of any law when he refused to compensate or
reinstate plaintiffs after the Court of Appeals decision. Therefore, the Court will not
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dismiss plaintiffs’ claim that Mangano’s actions post the Court of Appeals decision
violated due process.
B.
Claim Preclusion
1.
Plaintiffs’ Claims Are Not Precluded
Defendants claim that the plaintiffs’ causes of action are “barred by the theory of
claim preclusion,” which “bars the relitigation of any ground of recovery that was
available in the prior action.” (Defs.’ Mem. in Supp. at 8.) “Under the doctrine of res
judicata, or claim preclusion, a final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were or could have been raised in that
action.” St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (internal quotation marks
and citations omitted). “Under New York law, there are four elements to the doctrine of
res judicata: (1) there must be a final judgment; (2) the judgment must have been ‘on the
merits’; (3) the parties in the second action must be the same as those in the first; and (4)
the claims must be the same in the first and second actions.” Sorano v. Taggert, 642 F.
Supp. 2d 45, 51 (S.D.N.Y. 2009). Moreover, “two claims are considered to be the ‘same’
if the second claim arises from the same transaction or series of transactions as the first
claim – even if the subsequent claim is based upon a different legal theory or seeks a
different remedy.” Id. The Second Circuit has held, however, that “when [a] second
action concerns a transaction occurring after the commencement of the prior litigation,
claim preclusion generally does not come into play.” Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 400 F.3d 139, 141 (2d Cir. 2005) (internal quotation marks and citation
omitted) (holding that plaintiff ’s retaliatory discharge action was not barred given that
she was not discharged until after commencing prior lawsuit). “Where the facts that
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have accumulated after the first action are enough on their own to sustain the second
action, the new facts clearly constitute a new ‘claim,’ and the second action is not barred
by res judicata.” Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 384 (2d. Cir. 2003).
Defendants claim that all of plaintiffs’ causes of action should be barred because
“the plaintiffs’ claims for reinstatement and attorney’s fees 4 (for the Art. 78 proceeding)
were litigated” 5 and “the ancillary relief of future and back pay could have been sought in
the Art. 78 proceeding.” 6 ( Defs.’ Mem. in Supp. at 8.) Plaintiffs respond that “[t]he
plaintiffs brought their Article 78 proceeding before they had ever been removed, and
specifically in order to obtain a writ of prohibition preventing that removal,” and so
“[t]he plaintiffs could not and did not seek to be ‘reinstated’ to something from which
they had not yet been removed, and could not and did not seek either ‘back’ pay when
they were still on the job, or ‘future pay’ when they hoped to stay on the job.” (Pls.’
Mem. in Opp’n at 3.)
Regardless of whether the Article 78 court was capable of awarding the relief
plaintiffs now request, whether plaintiffs’ federal claim is barred depends on whether the
4
Plaintiffs request attorneys’ fees from the state court action as “direct
compensatory damages pursuant to 42 U.S.C § 1983” as well as attorneys’ fees from both
the state court action and this action pursuant to 42 U.S.C. § 1988, which allows the
Court to award damages to the prevailing party in a § 1983 action. (Compl. ¶ 9.) As
both of plaintiffs’ theories of recovery hinge upon whether plaintiffs prevail in this
action, the Court will address the issue of attorneys’ fees upon resolution of the matter.
5
Defendants’ argument that plaintiffs requested reinstatement in the state court
action rests on plaintiffs’ statement in their brief to the Court of Appeals requesting that
the court remand “the case to the court below for purposes of granting appropriate relief,
potentially including a back pay award and reinstatement.” (Defs.’ Reply at 4.)
6
New York courts have held that an Article 78 court is capable of awarding
reinstatement, back pay, and future pay. See e.g., Latino Officers Ass’n v. The City of
New York, 253 F. Supp. 2d 771, 782 (S.D.N.Y. 2003).
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plaintiffs have alleged “facts accumulat[ing] after the first action [that] are enough on
their own to sustain” this new federal action. Storey, 347 F.3d at 384. As discussed
above, the plaintiffs allege that once the Court of Appeals ruled that they could not be
fired without cause, they were entitled to back pay with either reinstatement or future
pay. The defendants’ refusal to provide this relief, occurring after the first action was
commenced, is the basis of a separately sustainable due process claim. As a result,
plaintiffs should not now be precluded from seeking reinstatement, back pay, and future
pay. See Legnani, 400 F.3d at 141 (“Claims arising subsequent to a prior action need not,
and often perhaps could not, have been brought in that prior action; accordingly, they are
not barred by res judicata regardless of whether they are premised on facts representing a
continuance of the same course of conduct.”)
2. Sanctions
Plaintiffs seek sanctions pursuant to Rule 11(c) because they claim that
defendants’ claim preclusion argument is frivolous. (Gartner Aff. in Supp. of Mot. for
Sanctions ¶ 26.) Rule 11(c) states that “[i]f, after notice and a reasonable opportunity to
respond, the court determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party that violated the rule or is
responsible for the violation.” Rule 11(b) mandates, inter alia, that a party’s “claims,
defenses, and other legal contentions are warranted by existing law or by a nonfrivolous
argument” and that the parties’ “factual contentions have evidentiary support.” See Fed.
R. Civ. Proc. 11(b)(2)-(3). Rule 11 places an “affirmative duty” upon attorneys to make
“reasonable inquiry” into the facts and the law. Gutierrez v. Fox, 141 F.3d 425, 427 (2d
Cir. 1998) (internal quotation marks and citation omitted). “ ‘The standard for triggering
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the award of fees under Rule 11 is objective unreasonableness,’ and is not based on the
subjective beliefs of the person making the statement.” Storey v. Cello Holdings, LLC,
347 F.3d 370, 387 (2d Cir. 2003) (quoting Margo v. Weiss, 213 F.3d 55, 65 (2d Cir.
2000)).
“Although the imposition of sanctions is within the province of the district court,
any such decision should be made with restraint and discretion.” Pannonia Farms, Inc. v.
USA Cable, 426 F.3d 650, 652 (2d Cir. 2005) (internal quotation marks and citation and
alteration omitted). “When divining the point at which an argument turns from merely
losing, to losing and sanctionable, courts must resolve all doubts in favor of the signer of
the pleading.” Dorchester Fin. Secs. v. Banco BRJ, S.A., 2010 WL 2483983, at *3
(S.D.N.Y. June 16, 2010) (internal quotation marks and citation and alterations omitted);
see also MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 73 F.3d 1253, 1259 (2d Cir. 1996)
(noting that “Rule 11 sanctions must be imposed with caution”).
Although the Court disagrees with defendants’ claim preclusion argument,
defendants’ argument cannot legitimately be labeled frivolous. Indeed, defendants
supported their argument with case law and it does not appear that they failed to make
reasonable inquiry into the facts. Therefore, plaintiffs’ motion for sanctions is denied.
C.
Punitive Damages
Defendants argue that the “plaintiffs’ claims for punitive damages should be
dismissed” because “[p]unitive damages cannot be recovered from a municipal
corporation, unless expressly authorized by statute,” and that plaintiffs have not pointed
to any statute relevant here. (Defs.’ Mem. in Supp. at 12.) Defendants also argue that
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County Executive Mangano, sued in his official capacity, is similarly immune to punitive
damages. (Id.)
Plaintiffs argue, however, that at this stage, it would be “premature to determine
that this could not be one of those ‘extreme situations’ where punitive damages against
municipal parties would be justified.” (Pls.’ Mem. in Opp’n at 14 (citing Ciraolo v. City
of New York, 216 F.3d 236 (2d Cir. 2000)).) In Ciraolo v. City of New York, the Second
Circuit examined the Supreme Court’s decision in City of Newport v. Fact Concerts, Inc.,
452 U.S. 247 (1981), “which held that, ordinarily, municipalities are immune from
punitive damages under § 1983.” Ciraolo, 216 F.3d at 238. In Newport, however, the
Court indicated that “in some rare cases, the goal of retribution might be furthered by
punitive damages against a municipality” and “[i]in a footnote, the majority mused, ‘[i]t
is perhaps possible to imagine an extreme situation where the taxpayers are directly
responsible for perpetrating an outrageous abuse of constitutional rights.’ ” Ciraolo, 216
F.3d at 240 (quoting Newport, 452 U.S. at 267 n.29). According to the Ciraolo court,
“[t]o the extent that footnote 29 creates an exception to Newport’s general rule against
punitive damages . . . it is not an exception for particularly outrageous abuses . . . but
rather an exception for outrageous abuses for which the taxpayers are directly
responsible.” Id. Further, Ciraolo reasoned that “[a]lthough it could be argued that, to
the extent that they are also voters who play a part in choosing municipal officials,
taxpayers are always responsible for municipal policies, such responsibility is clearly too
indirect to give rise to liability for punitive damages . . . . Footnote 29 seems, instead, to
contemplate a much more immediate connection between the taxpayers’ behavior and the
unconstitutional municipal policy, perhaps – for example – as close a link as a
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referendum in which the taxpayers directly adopted the invalid policy.” Id. Ciraolo
found that Footnote 29 did not allow the plaintiff in that case to seek punitive damages
where “an unconstitutional policy ha[d] been adopted by municipal officials without any
clear endorsement of the policy by the electorate.” Id. at 241.
The situation here is analogous to Ciraolo in that plaintiffs complain of an
unconstitutional act of the municipality, namely Nassau County and Count Executive
Mangano, but have not alleged any facts nor made any argument that there is an
immediate connection between the taxpayers and the defendants’ actions. As discussed
in Ciraolo, the mere fact that the taxpayers may have voted for Mangano is not enough to
warrant punitive damages. Therefore the plaintiffs are not entitled to punitive damages
based on their claims against Nassau County and County Executive Mangano in his
official capacity.
D.
Necessary Party
According to defendants, “[t]he Complaint should be dismissed as the plaintiffs
have failed to name the current ARC Commissioners [who filled the unexpired terms of
the plaintiffs] as parties to this action.” (Defs.’ Mem. in Supp. at 6.) According to
Federal Rule of Civil Procedure 19(a)(1), “[a] person who is subject to service of process
and whose joinder will not deprive the court of subject-matter jurisdiction must be joined
if: (A) in that person’s absence, the court cannot accord complete relief among existing
parties.” Defendants claim that the current ARC Commissioners should be joined
because the Court’s ruling, presumably as to whether the plaintiffs should be reinstated,
could affect the current ARC Commissioners’ rights. (Defs.’ Mem. in Supp at 7.) As a
practical matter, however, the terms of Sedacca and Wasser have already expired and
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they cannot be reinstated. Moreover, Lewis’s term is set to expire in less than four
months on June 29, 2014. To the extent Lewis still seeks reinstatement, plaintiffs should
notify the Court within 15 days of this Order. At that time, if necessary, the Court will
consider defendants’ Rule 19 argument.
II.
Plaintiffs’ Motion for Summary Judgment
Plaintiffs do not attach “a separate initial memorandum of law” to their moving
papers in violation of this Court’s Individual Rule 3.D. 7 As a result, plaintiffs’ motion
for summary judgment is denied without prejudice.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss plaintiffs’ claims is
granted in part and denied in part. In addition, plaintiffs’ motions for sanctions and for
summary judgment are denied.
SO ORDERED.
Dated: Central Islip, New York
April 9, 2014
/s/
Denis R. Hurley
United States District Judge
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Plaintiffs also failed to include with their motion a “short and concise statement,
in numbered paragraphs, of the material facts as to which [they] contend[] there is no
genuine issue to be tried” in accordance with Local Rule 56.1.
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