Treistman v. Wacks, Esq. et al

Filing 115

MEMORANDUM-DECISION and ORDER - That Wach's motion to dismiss (Dkt. No. 109) is GRANTED and then Clerk is directed to terminate Wachs from this action. That municipal defendants' motion for summary judgment (Dkt. No. 90) is GRANTED IN PART and DENIED IN PART as follows: GRANTED with respect to claims against Krisjanis, Jackson, and Sorkin in their individual capacities. GRANTED with respect to claims against Ulster County and municipal defendants in their official capacities. DENIE D in all other respects. That Treistman's cross motion for summary judgment (Dkt. No. 94) is DENIED. That the Clerk is directed to terminate Krisjanis, Jackson, Sorkin and Ulster County from this action. That municipal defendants shall supple ment their motion and submit briefing consistent with this Memorandum-Decision and Order within fourteen (14) days of entry, Treistman shall have fourteen (14) days to respond, and municipal defendants shall have seven (7) days to reply. Signed by Senior Judge Gary L. Sharpe on 2/16/2017. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BEN GARY TREISTMAN,
Plaintiff,

1:12-cv-1897
(GLS/CFH)

v.
VALERIE LYN WACKS, ESQ. et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Ben Gary Treistman
Pro Se
28 Garrison Road
Shady, NY 12409
FOR THE DEFENDANTS:
Valerie Lyn Wacks, Esq.
Office of Eric Schneider
P.O. Box 3936
Kingston, NY 12402

ERIC SCHNEIDER, ESQ.

Amy Greene, Kelly Whittaker,
Elisabeth Krisjanis, Esq., Jillian
Jackson, Esq., Barbara Sorkin, Denise
Woltman, Charlene Boswell, Mary Ellen
Schneider, Joseph Bennett, and Ulster
County Municipality
Cook, Netter Law Firm
ERIC M. KURTZ, ESQ.
P.O. Box 3939
ROBERT D. COOK, ESQ.
85 Main Street
Kingston, NY 12402

Karin Hubbs and Pamela Joern, Esq.
Cook, Netter Law Firm
P.O. Box 3939
85 Main Street
Kingston, NY 12402

ERIC M. KURTZ, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Ben Gary Treistman commenced this action against
defendants Amy Greene, Kelly Whittaker, Elisabeth Krisjanis, Esq., Jillian
Jackson, Esq., Barbara Sorkin, Denise Woltman, Charlene Boswell, Mary
Ellen Schneider, Joseph Bennett, Ulster County Municipality (collectively
“municipal defendants”), and unnamed Doe defendants, as well as
defendants pro se Valerie Lyn Wacks, Esq.1 and Lawrence Shelton, Esq.,
pursuant to 42 U.S.C. §§ 1983, 1985, the Health Insurance Portability and
Accountability Act of 1996 (HIPAA),2 and New York common law. (Compl.,
Dkt. No. 1.) Pending are Wacks’ motion to dismiss for failure to state a
claim, (Dkt. No. 109), and municipal defendants’ motion for summary

1

Wacks is now represented on this motion.

2

See Pub. L. No. 104-191, 110 Stat. 1936 (codified in scattered sections of 18, 26, 29,
and 42 U.S.C.).

2

judgment, (Dkt. No. 90), and Triestman’s cross motion for summary
judgment, (Dkt. No. 94). For the reasons that follow, Wacks’ motion is
granted, the motion of municipal defendants is granted in part and denied
in part, and Triestman’s motion is denied.
II. Background
A.

Facts
1.

Motion for Summary Judgment3

General familiarity with the facts is presumed from the court’s earlier
Memorandum-Decision and Order. (Dkt. No. 70 at 3-9.) Treistman and
Suzanne Cayley are the parents of A.T. and have been in a custody
dispute in Ulster County Family Court since February 2011. (Defs.’
Statement of Material Facts (SMF) ¶¶ 1, 16, Dkt. No. 90, Attach. 3.) A.T.
was seven years old at the time the dispute began and is diagnosed with
pervasive developmental disorder, a type of developmental delay. (Dkt.

3

Unless otherwise noted, the facts are not in dispute. Also, Triestman’s failure to
comply with Local Rule 7.1(a)(3) by admitting or denying each of the paragraphs in the
municipal defendants’ statement of material facts is not without consequences. Municipal
defendants’ properly supported and uncontroverted facts are therefore deemed admitted. In
support of his cross motion for summary judgment, Triestman submits a statement of material
facts comprised exclusively of unsupported allegations derived from his amended complaint.
(Dkt. No. 94, Attach. 1 at 3-9.) His submission does not comply with the requirement to list “a
specific citation in the record where the fact is established.” N.D.N.Y. L.R. 7.1(a)(3).
Nevertheless, municipal defendants properly responded by admitting or denying each of the
numbered paragraphs, and the facts admitted by municipal defendants are deemed admitted.

3

No. 90, Attach. 2 at 3 ¶ 7, 17 ¶ 3.) In October 2011, a neglect petition was
filed against Treistman in Family Court. (Id. ¶ 13; Dkt. No. 90, Attach. 7 at
3-7.) Treistman alleges that the petition was filed in retaliation for reporting
neglectful conduct by Cayley, which was investigated by Ulster County
Department of Social Services (DSS) and determined to be unfounded.
(2d Am. Compl. ¶¶ 68-71, 87, Dkt. No. 98.) Triestman also complains that
temporary restraining orders, which were entered as a result of the petition,
unlawfully restricted his visitation and the topics he could speak about with
A.T. (Id. ¶ 88.)
Whittaker, Greene, Woltman, and Boswell are caseworkers or
supervisors at Child Protective Services (CPS), a division of DSS. (Defs.’
SMF ¶¶ 3-5, 9-10.) Jackson, Krisjanis, and Joern are attorneys for DSS.
(Defs.’ SMF ¶¶ 7-8; 2d Am. Compl. ¶ 10b.) Schneider and Bennett are
licensed clinical social workers with the County’s Department of Mental
Health (DMH). (Id. ¶¶¶ 11-12.) Finally, Sorkin is the deputy commissioner
of DSS and Hubbs is the assistant director of children and family services
of DSS. (Id. ¶ 6; 2d Am. Compl. ¶ 10c.)
a.

Whittaker and Greene

Whittaker and Greene both work within the investigations unit of
4

CPS. (Dkt. No. 90, Attach. 2 at 6 ¶ 12, 7 ¶ 1.) In September 2011,
Whittaker investigated a complaint lodged by Treistman against Cayley
and determined it to be unfounded. (Dkt. No. 90, Attach. 2 at 2-3 ¶ 6.) As
part of the investigation, Whittaker interviewed Cayley who made her own
allegations against Treistman. (Id. ¶ 7.) Those allegations asserted that
Treistman asked A.T. about custody related issues while videotaping her,
gave her energy drinks, and told A.T. that her mother gave her medication
that would “kill her and make her heart explode in her chest.” (Id.) Some
of these allegations were corroborated by a social worker from A.T.’s
school. (Id.) Greene and Whittaker later met with Treistman to investigate
the allegations. (Id. ¶ 9.) Based on their investigation, they recommended
that a neglect petition be filed against him. (Id. ¶ 10.)
Whittaker counseled Treistman and advised him to take parenting
classes but never threatened or prevented him from being with his
daughter. (Id. ¶ 13.) Greene’s last contact with Treistman was on
November 4, 2011 when she arranged a supervised visit, and Whittaker’s
last contact with Treistman was on November 8, 2011 when she
supervised that visitation. (Id. ¶ 12; Dkt. No. 90, Attach. 2 at 10 ¶ 10.) The
case was then transferred to the Mandated Preventive Care Unit at DSS.
5

(Dkt. No. 90, Attach. 2 at 6 ¶ 12.)
b.

Woltman and Boswell

Woltman and Boswell work in the Mandated Preventive Care Unit at
DSS. (Dkt. No. 90, Attach. 2 at 11 ¶ 1, at 21 ¶ 1.) Woltman supervised
visits between Treistman and A.T. starting in November 2011. (Id. at 12
¶ 1.) She attended court hearings, ensured that Treistman complied with
the temporary orders of protection, and spoke with mental health
professionals involved in the case. (Id. ¶¶ 2-3.) On several occasions,
Woltman advised Treistman to avoid discussions that upset A.T.; in
particular, conversations about his federal court case, custody issues, and
A.T.’s medication. (Id. ¶¶ 4-5.) Treistman insisted he had a constitutional
right to speak to his daughter about any topic. (Id. ¶ 6.) Despite
Woltman’s warnings, Treistman continued to speak with A.T. about such
topics. (Id.; Dkt. No. 90, Attach. 15.) Consequently, Woltman and
Boswell, her supervisor, decided to forward Woltman’s case notes to the
legal department to support a new neglect petition. (Id.) As a result,
Family Court issued a new temporary order of protection prohibiting
Treistman from speaking about “the federal lawsuit,” “rules of visitation,”
“custody,” “medication or side effects,” or the “mother and [maternal]
6

grandmother” with A.T. during their supervised visits. (Id.; Dkt. No. 90,
Attach. 14 at 3-5.) Woltman never told A.T. that Treistman would be
arrested or go to jail if he spoke about restricted topics. (Dkt. No. 90,
Attach. 2 at 14 ¶ 6.)
c.

Krisjanis and Jackson

Krisjanis and Jackson are DSS attorneys who filed the October 2011
and February 2013 neglect petitions against Treistman. (Id. at 5 ¶ 10, 25
¶ 13.) Jackson appeared on behalf of the County at Family Court
proceedings on October 12, 20, and 26, 2011, November 3, 2011, and
February 3, 2013. (Dkt. No. 90, Attachs. 7, 9-10, 13, 16.) Neither Krisjanis
nor Jackson were involved in investigating the allegations against
Treistman. (Dkt. No. 90, Attach. 2 at 5 ¶ 10, 25 ¶ 13.)
d.

Schneider and Bennett

Schneider and Bennett are licensed social workers at DMH. (Defs.’
SMF ¶¶ 11-12.) Schneider began treating A.T. in January 2011 after A.T.
was referred by her school’s social worker due to her physical outbursts.
(Dkt. No. 90, Attach. 2 ¶ 3.) Schneider continued to see A.T. for weekly
therapeutic treatment and determined she needed a psychiatric evaluation.
(Id. ¶ 4.) In June 2011, Dr. Howard Gottlieb performed an evaluation and
7

recommended that A.T. be prescribed medication. (Id. ¶ 8.) Although
Schneider did not inform Treistman about Dr. Gottlieb’s recommendation
due to his custody status, she advised Cayley to share this information with
him. (Id.)
In December 2011, Schneider learned that Treistman arranged for
A.T. to see Dr. Kathy Caproni, a private psychologist. (Id. ¶ 11.)
Schneider spoke with Dr. Caproni in January 2012 about her evaluation of
A.T. and her recommendation that she supervise family therapeutic visits
between A.T. and Treistman. (Id.) Shortly thereafter, Schneider, Bennett,
her supervisor, and Dr. Gottlieb met and discussed A.T.’s duplicative
treatment with Dr. Caproni. (Id.) The team decided that Schneider would
provide family therapy to Treistman and A.T. (Id.) In an individual session,
A.T. expressed to Schneider that she was distressed when her father
spoke about his court case and feared he may go to jail. (Id. ¶¶ 12, 13.)
Schneider advised Treistman to avoid these conversations because A.T.
became anxious. (Id. ¶ 13.) However, he continued to assert his right to
speak with his daughter about any topic. (Id.) Schneider also informed
A.T.’s caseworker that Treistman’s discussions about such topics were
detrimental to her psychological well-being. (Id.)
8

e.

Sorkin

Sorkin is the deputy commissioner of DSS and oversees adult and
children’s services for the county. (Dkt. No. 90, Attach. 2 at 22 ¶ 4.) She
was not directly involved in A.T.’s supervised visitation. (Id.)
f.

Hubbs

Hubbs is the assistant director of children and family services at
DSS. (2d Am. Compl. ¶ 10c.) On May 31, 2012, she attended a meeting
with members of the Mandated Preventive Care Unit and DMH to discuss
which agency would determine when Treistman could have unsupervised
visits with A.T. (Dkt. No. 90, Attach. 2 at 23 ¶ 7.)
2.

Motion to Dismiss4

Wacks is the attorney who was assigned to represent A.T. in the
custody proceeding. (2d Am. Compl. ¶ 30.) Between February 14, 2011
and April 3, 2015, Wacks conveyed false statements about Treistman’s
parental fitness to unnamed others. (Id. ¶ 123.) Specifically, Wacks
represented to unnamed others in an unknown manner that Treistman was
dangerous, abused and neglected A.T., did not care about A.T.’s health or

4

In regards to Wacks’ motion to dismiss, the facts as they relate to her are drawn from
Treistman’s second amended complaint and presented in the light most favorable to him.

9

well-being, and engaged in frivolous litigation. (Id.)
B.

Procedural History
Treistman filed this action in late December 2012 asserting claims on

behalf of A.T. and himself. (See generally Compl.) After joinder of issue,
(Dkt. Nos. 6, 8, 10), Treistman sought a temporary restraining order and
preliminary injunction by order to show cause that would prohibit
defendants “from interfering with [p]laintiffs actions of association and free
speech,” (Dkt. No. 12, Attach. 3 at 4). After court-ordered briefing on the
issue, it determined that Treistman was not a proper representative of A.T.
for purposes of the litigation, and appointed a guardian ad litem to
represent A.T. (Dkt. Nos. 19, 27.) A.T.’s guardian ad litem reported to the
court that A.T. desired to have all claims asserted on her behalf dismissed.
(Dkt. No. 31.) The court dismissed all claims asserted on A.T.’s behalf and
denied Treistman’s application for a preliminary injunction. (Dkt. No. 32.)
Treistman’s untimely motion for reconsideration was denied, (Dkt. No. 37),
and he appealed, (Dkt. No. 38). The Second Circuit eventually dismissed
the appeal as moot, explaining that Treistman informed the Court during
oral argument “that the neglect proceedings against him have been
dismissed, and that he currently has unrestricted and unsupervised
10

visitation with his child.” Treistman v. Wacks, 578 F. App’x 18, 19 (2d Cir.
2014). Before the Circuit’s resolution of Treistman’s appeal, Wacks and
Shelton filed motions to dismiss, which the court granted, and municipal
defendants filed a motion for judgment on the pleadings, which the court
granted in part and denied in part. (Dkt. Nos. 55, 56, 57, 70.)
Subsequently, municipal defendants stipulated to Treistman’s filing of
an amended complaint. (Dkt. No. 85, Attach. 1.) Treistman also filed a
motion to amend his original complaint to include claims and allegations
that municipal defendants refused to stipulate. (Dkt. No. 84.) Before the
court’s resolution of Treistman’s motion to amend, municipal defendants
moved for summary judgment and Treistman cross moved for summary
judgment, which motions are both pending before the court. (Dkt. Nos. 90,
94.) Magistrate Judge Christian F. Hummel granted in part and denied in
part Treistman’s motion to amend, which added Hubbs and Joern as
municipal defendants and added a defamation claim against the previously
dismissed defendant Wacks. (Dkt. No. 97.) Municipal defendants and
Treistman advised the court to apply their pending motions to the second
amended complaint. (Dkt. Nos. 101, 102.) Thereafter, Wacks filed the
pending motion to dismiss for failure to state a claim. (Dkt No. 109.)
11

Municipal defendants answered Treistman’s second amended complaint
and asserted a crossclaim against Wacks for contribution or
indemnification. (Dkt. No. 103.)
III. Standard of Review
Regarding Wacks’ motion to dismiss, the standard of review under
Fed. R. Civ. P. 12(b)(6) is well established and will not be repeated here.
For a full discussion of the standard, the court refers the parties to its prior
opinion in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218
(N.D.N.Y. 2010), abrogated on other grounds by Altman v. J.C.
Christensen & Assocs., Inc., 786 F.3d 191 (2d Cir. 2015).
Regarding the motions for summary judgment, the standard of review
pursuant to Fed. R. Civ. P. 56 is well established and will not be repeated
here. For a full discussion of the standard, the court refers the parties to its
decision in Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011),
aff’d sub nom. Wagner v. Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Motion to Dismiss
Wacks argues that Treistman’s state law defamation claim should be

dismissed because the complaint fails to adequately notify her of the
12

alleged defamatory statement. (Dkt. No. 109, Attach. 2 at 6-8.) Wacks
contends that Treistman does not identify when, to whom, or how the
statement was communicated. (Id.) In sum and substance, Treistman
counters that he adequately pled the elements of defamation. (Dkt.
No. 113 at 4-7.)5
To state a claim for defamation under New York law, a plaintiff must
allege “a false statement, published without privilege or authorization to a
third party, constituting fault as judged by, at a minimum, a negligence
standard, . . . caus[ing] special harm or constitut[ing] defamation per se.”
Stega v. N.Y. Downtown Hosp., __ A.D.3d __, 2017 N.Y. Slip. Op. 139, at
*10 (1st Dep’t 2017) (internal quotation marks and citation omitted). While
New York pleading rules require a party claiming defamation to allege the
“particular words complained of” in his complaint, see N.Y. C.P.L.R.

5

Treistman also asserts that his claims of conspiracy under 42 U.S.C. § 1985(3) and
violations of his First and Fourteenth Amendment rights alleged against Wacks in his second
amended complaint are valid. (Dkt. No. 113 at 7-8.) Magistrate Judge Christian F. Hummel
already rejected those claims as futile in his decision denying in part Treistman’s motion to
amend his pleading. (Dkt. No. 97 at 28-29.) Consequently, those claims are not before the
court.
In addition, Treistman argues that the court should not consider Wacks’ motion
because it was improperly served. (Dkt. No. 113 at 9.) Treistman contends the motion was
served via CM/ECF and he is a non-filing user who has not consented to that method of
service. (Id., citing Fed. R. Civ. P. 5(b)(2)(E).) To the contrary, the court granted Treistman’s
request to receive electronic e-mail notifications, (Dkt. No. 40), which constitutes service upon
receiving users, see N.D.N.Y. General Order 22 § 5.2. As a result, service was proper.

13

3016(a), state procedural rules do not apply to federal courts sitting in
diversity, see Nickerson v. Commc’n Workers of Am. Local 1171, No.
504CV00875NPM, 2005 WL 1331122, at *6 (N.D.N.Y. May 31, 2005)
(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). For that reason,
federal courts apply the more lenient Rule 8 pleading standard. See Kelly
v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986). Nevertheless, for a
defamation claim to survive a Rule 12(b)(6) motion, a plaintiff still must
“identify (1) the allegedly defamatory statements; (2) the person who made
the statements; (3) the time when the statements were made; and, (4) the
third parties to whom the statements were published.” Hillary v. Vill. of
Potsdam, No. 7:12-cv-1669, 2015 WL 902930, at *11 (N.D.N.Y. Mar. 3,
2015) (internal quotation marks and citation omitted). In other words, the
allegations must include “the time, place, and manner of the false
statement.” Arvanitakis v. Lester, 145 A.D.3d 650, 651 (2d Dep’t 2016).
In the only timely defamation claim alleged against Wacks, (Dkt.
No. 97 at 22-23), Treistman fails to adequately plead the nature of her false
statement. Treistman alleges that “[f]rom February 2011 to April 3, 2015
[Wacks] did defame and cast aspersions upon the character and reputation
of [Treistman] to others [that] were untrue and false.” (2d Am. Compl.
14

¶ 227.) He alleges that Wacks falsely accused him of child abuse and
questioned his parental fitness. (Id. ¶ 123, 229.) Treistman generally
alleges that Wacks’ statements were published to others through some
unidentified medium and, because of those statements, he suffered
damage to his reputation and harm to his business. (Id. ¶ 229.) Even
assuming that the statements constituted actionable defamation, Treistman
does not identify when, how many, through what means, or to whom the
statements were made over this lengthy time period. Thus, even under
Rule 8's liberal pleading standard, the second amended complaint fails to
set forth sufficient facts to support a defamation cause of action. Wacks is
therefore entitled to dismissal on this claim.6
B.

Municipal Defendants’ Summary Judgment Motion
1.

Rooker-Feldman Doctrine

Municipal defendants argue that the court lacks subject matter
jurisdiction under the Rooker-Feldman doctrine because Treistman seeks

6

Treistman has not sought leave to amend, and the court declines to grant it. The
court recognizes that Treistman is a pro se litigant, however, throughout this litigation, he has
demonstrated an ability to comply with court orders and make appropriate arguments. In any
event, Treistman has already been afforded two prior opportunities to amend his complaint
and the court declines to grant additional leave. See Cuoco v. Mortisugu, 222 F.3d 99, 112
(2d Cir. 2000) (holding courts should give pro se litigants at least one opportunity to amend
their complaint).

15

appellate review of a state court judgment. (Dkt. No. 90, Attach. 5 at 2021.) Treistman responds that the doctrine does not apply because he did
not lose in state court. (Dkt. No. 111 at 16-18.) The court agrees with
Treistman.
The rationale underlying the Rooker-Feldman doctrine is “that within
the federal judicial system, only the Supreme Court may review state-court
decisions.” Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 85 (2d
Cir. 2005) (citing 28 U.S.C. § 1257). Under this doctrine, the court is
deprived of jurisdiction if four requirements are met. See id. The Second
Circuit outlines the requirements as follows: (1) the plaintiff must have lost
in state court; (2) the plaintiff must now complain of injuries arising from the
state court judgment; (3) the plaintiff must ask the federal court to review
and reject the state court judgment; and (4) the plaintiff must have
commenced the federal action after the state court judgment. See id.
Here, municipal defendants contend that Treistman lost in Family
Court because he was denied unsupervised visitation as a result of the
October 2011 neglect petition. (Dkt. No. 90, Attach. 5 at 21.) After the
petition was filed, Family Court issued several temporary orders of
protection restricting Treistman’s visitation with A.T. (Defs.’ SMF ¶ 13; Dkt.
16

No. 90, Attachs. 8, 11, 14.) However, the neglect petition was ultimately
dismissed without a final order of disposition at a time not apparent from
the record. See Treistman, 578 F. App’x at 19. For the purposes of the
Rooker-Feldman doctrine, a federal court plaintiff has not lost his state
case if a Family Court petition against him has been dismissed. See
Green v. Mattingly, 585 F.3d 97, 102 (2d Cir. 2009) (holding that plaintiff
did not lose in state court when there was no final order of disposition
against her and a neglect petition had been dismissed); see also Graham
v. City of New York, 869 F. Supp. 2d 337, 347-48 (E.D.N.Y. 2012).
Because Treistman did not lose in state court, the Rooker-Feldman
doctrine does not deprive this court of jurisdiction.7
2.

Personal Involvement

Municipal defendants argue that Sorkin, the deputy commissioner of
DSS, is entitled to summary judgment because she was not personally
involved. (Dkt. No. 90, Attach. 5 at 9.) In order to be liable for a
constitutional violation, a defendant must have been personally involved in

7

Nor would the Rooker-Feldman doctrine apply if Treistman challenged the February
2013 neglect petition. (Defs.’ SMF ¶ 13.) This neglect petition was also dismissed by Family
Court, (Dkt. No. 90, Attach. 17 at 17-18), and, moreover, Treistman commenced his federal
action in 2012, before the 2013 neglect petition was even filed. (See generally Compl.)

17

the allegedly wrongful conduct. See Colon v. Coughlin, 58 F.3d 865, 872
(2d Cir. 1995). Here, it is undisputed that Sorkin was not directly involved
nor on notice of allegedly unconstitutional acts imposing or enforcing
restrictions on visitation between Treistman and A.T. (Dkt. No. 90, Attach.
2 at 22 ¶ 4; Dkt. No. 90, Attach. 17 at 61.) Nor did Treistman allege that
Sorkin failed to prevent any constitutional violations. (See generally 2d
Am. Compl.) As a result, all claims against Sorkin are dismissed.
3.

Immunity
a.

Krisjanis and Jackson

Municipal defendants argue that DSS attorneys, Krisjanis and
Jackson, are entitled to absolute immunity on all claims.8 (Dkt. No. 90,
Attach. 5 at 2-7.) Treistman contends that he sufficiently alleged that these
defendants cannot receive immunity because they worked in an
investigatory capacity. (Dkt. No. 111 at 8-9.)
Attorneys who initiate and prosecute child protective proceedings are
entitled to absolute immunity from section 1983 claims arising from the

8

The court recognizes that municipal defendants filed this motion before defendant
Joern as well as defendant Hubbs were added as parties. (Dkt. No. 97 at 23-26.) As a result,
municipal defendants may supplement their motion within fourteen days from the date of this
Memorandum Decision and Order, and Treistman shall have fourteen days to respond.
Municipal defendants will then have seven days to reply.

18

performance of their duties. See Cornejo v. Bell, 592 F.3d 121, 128 (2d
Cir. 2010); Walden v. Wishengrad, 745 F.2d 149, 150 (2d Cir. 1984).
Courts have extended this immunity to conspiracy claims under section
1985. See, e.g., Halpern v. City of New Haven, 489 F. Supp. 841, 844 (D.
Conn. 1980). Additionally, municipal defendants “involve[d in] the
conscious exercise of discretion of a judicial or quasi-judicial nature”
receive absolute immunity from tort claims under New York law. Arteaga v.
New York, 72 N.Y.2d 212, 216 (1988); see Cornejo, 592 F.3d at 130;
Carossia v. City of New York, 39 A.D.3d 429 (1st Dep’t 2007).
Here, Krisjanis and Jackson only performed acts arising from their
duties as DSS attorneys, namely, filing the neglect petitions against
Treistman and appearing for court proceedings. (Dkt. No. 90, Attach. 2 at
5 ¶¶ 10-11.) Consequently, the court finds that Krisjanis and Jackson are
absolutely immune from all claims.9 Treistman’s allegations are insufficient
to demonstrate the existence of a genuinely disputed material fact. See
Fed. R. Civ. P. 56(c)(1).

9

While the state law claims were not specifically mentioned in municipal defendants’
motion papers on the issue of immunity, Treistman was sufficiently on notice that municipal
defendants sought dismissal of all claims against Krisjanis and Jackson and, therefore, had an
opportunity to respond as to all claims.

19

b.

Greene and Whittaker

Municipal defendants also contend that Greene and Whittaker are
absolutely immune because they are agency officials who performed
functions analogous to that of prosecutors. (Dkt. No. 90, Attach. 5 at 9-11.)
Treistman points out, and the court agrees, that Greene and Whittaker
performed investigatory functions which preclude them from receiving
absolute immunity. (Dkt. No. 11 at 9-10.)
Indeed, agency officials receive absolute immunity for acts that are
functionally equivalent to that of a prosecutor. See Butz v. Economou, 438
U.S. 478, 515 (1978). But such immunity does not extend to officials
acting in an investigatory capacity. See DiBlasio v. Novello, 344 F.3d 292,
300-01 (2d Cir. 2003).
Here, municipal defendants readily concede that Greene and
Whittaker investigated Treistman and Cayley’s allegations of neglect
against each other. (Dkt. No. 90, Attach. 2 at 2 ¶¶ 4-9.) As such, neither
defendant is entitled to absolute immunity.
c.

Schneider, Bennett, Woltman, and Boswell

Again, municipal defendants argue that absolute immunity applies to
Scheider, Bennett, Woltman, and Boswell who are either social workers or
20

caseworkers with the County. (Dkt. No. 90, Attach. 5 at 11-18.) Treistman
counters that the authority upon which defendants rely is inapplicable.
(Dkt. No. 111 at 11-12, 13-14.) The court agrees with Treistman.
Defendants rely exclusively on Mosher-Simons v. County of Allegany,
99 N.Y.2d 214, 220 (2012), from the New York State Court of Appeals to
support their immunity argument. Indeed, Mosher-Simons held that
absolute immunity applies against New York state tort claims when
executing court orders. See id. Treistman, however, predominately
asserts federal claims under section 1983, where Mosher-Simons has no
application. See, e.g., Peker v. Steglich, 324 F. App’x 38, 39 (2d Cir.
2009); Sutton v. Tompkins Cty., 617 F. Supp. 2d 84, 99 (N.D.N.Y. 2007).
The only state law claim asserted against these defendants is a
tortious interference with contract claim against Schneider and Bennett for
contacting Dr. Caproni and directing her to cease therapy with Treistman
and A.T. (2d Am. Compl. ¶¶ 213-17.) In Mosher-Simons, the court held
that a county was immune from a negligence claim where a Family Court
ordered the county to perform a home study to determine its suitability for a
child’s placement. See 99 N.Y.2d at 220. Under the rationale of judicial
immunity, the court granted the county immunity because it served as “an
21

arm of the court” by executing the order. Id. at 218. Here, however,
absolute immunity does not apply because Schneider or Bennett were not
performing a specifically delegated judicial duty when they contacted Dr.
Caproni. See Gotlin v. City of New York, 26 Misc. 3d 514, 520-21 (Sup. Ct.
2009) (holding child protective agency was not entitled to immunity for
claims arising from home supervision because it was not specifically
ordered by Family Court), aff’d 90 A.D. 605 (2d Dep’t 2011). Nothing in the
temporary orders of protection submitted to this court directs any action on
the part of these defendants. (Dkt. No. 90, Attachs. 8, 11, 14.) Therefore,
absolute immunity does not apply.
3.

Municipal Liability

Municipal defendants argue that Treistman has not submitted any
proof that the County has an unconstitutional policy or practice. (Dkt.
No. 90, Attach. 5 at 18-20.) Treistman contends that he sufficiently alleged
that municipal defendants have an unconstitutional practice of gender
discrimination by targeting fathers in DSS investigations and that they fail
to train their caseworkers to avoid infringing on a parent’s constitutional
rights. (Dkt. No. 111 at 14-16.)
Municipal liability requires that a plaintiff suffer a constitutional
22

violation due to a municipality’s official policy or custom and there must be
a causal relationship between the violation and the municipal policy or
practice. See Mitchell v. City of New York, 841 F.3d 72, 80 (2d Cir. 2016)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978)).
Absent accompanying proof of an existing unconstitutional policy, a single
constitutional violation is insufficient to impose municipal liability. See
id. (citing City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985)).
Treistman relies solely on his complaint and points to nothing in the
record to raise a question of fact about whether the municipal defendants
have an unconstitutional policy or practice. (Dkt. No. 111 at 14-16.) The
only arguable evidence is that DSS filed neglect petitions against
Treistman and not Cayley. Treistman contends that municipal defendants
have discriminated against him because of his gender by not filing a
neglect petition against Cayley when wrongful conduct was alleged against
her. Even if Cayley and Treistman were similarly situated for the purpose
of the Fourteenth Amendment, see Knight v. Conn. Dep’t of Public Health,
275 F.3d 156, 166 (2d Cir. 2001) (noting, among other things, an equal
protection violation requires a showing that the plaintiff was selectively
treated compared with similarly situated individuals), municipal liability
23

could not be imposed for a sole constitutional violation. See Mitchell, 841
F.3d at 80. Therefore, municipal defendants are entitled to summary
judgment on this claim. Because municipal liability does not lie, all claims
against municipal defendants in their official capacities are also dismissed.
See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
C.

Rule 56(f)
The court has identified alternative grounds that may entitle the

municipal defendants to summary judgment on the remaining claims.
Under Rule 56(f)(2) of the Federal Rules of Civil Procedure, the court may
grant summary judgment “on grounds not raised by a party” once it has
“giv[en] notice and a reasonable time” for the parties to respond. See
Willey v. Kirkpatrick, 801 F.3d 51, 62-63 (2d Cir. 2015). Here, the parties
are directed to brief whether qualified immunity would apply to the
remaining defendants who are not shielded by absolute immunity.
Additionally, the parties should address the viability of the state law claims.
Municipal defendants shall submit briefing within fourteen days from the
date of this Memorandum-Decision and Order, and Treistman shall have
fourteen days to respond. Municipal defendants will have seven days to
reply.
24

D.

Treistman’s Cross Motion for Summary Judgment
Treistman cross moves for summary judgment without citing a single

authority which entitles him to judgment. (Dkt. No. 94, Attach. 1.) His
motion consists entirely of selected allegations from his complaint, which
he contends “are not controverted and are in fact admitted.” (Id. at 3.)
Treistman asserts that the affidavits submitted in support of municipal
defendants’ motion verify his facts and that municipal defendants’ exhibits,
including transcripts of the underlying Family Court proceedings and
neglect petitions, establish that “[d]efendants sought to, and did, prohibit
the federal privileges [Treistman] had, using their actions and authority
under color of law.” (Id. at 3, 8-9.) Municipal defendants argue that the
court should deny the motion because it is untimely, procedurally deficient,
and, in any event, lacks merit. (Dkt. No. 108, Attach. 3 at 2-11.)
Even assuming Treistman timely filed this motion and complied with
the procedures outline in Local Rule 7.1(a)(3), the court still denies his
motion on the merits. Because Treistman cites no authority in support of
his motion, he fails to meet his burden to prove that he is entitled to
judgment. See Fed. R. Civ. P. 56(a); Wagner, 827 F. Supp. 2d at 92. As
such, his motion is denied.
25

V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Wacks’ motion to dismiss (Dkt. No. 109) is
GRANTED and the Clerk is directed to terminate Wacks from this action;
and it is further
ORDERED that municipal defendants’ motion for summary judgment
(Dkt. No. 90) is GRANTED IN PART and DENIED IN PART as follows:
GRANTED with respect to claims against Krisjanis, Jackson,
and Sorkin in their individual capacities; and
GRANTED with respect to claims against Ulster County and
municipal defendants in their official capacities; and
DENIED in all other respects; and it is further
ORDERED that Treistman’s cross motion for summary judgment
(Dkt. No. 94) is DENIED; and it is further
ORDERED that the Clerk is directed to terminate Krisjanis, Jackson,
Sorkin and Ulster County from this action; and it is further
ORDERED that municipal defendants shall supplement their motion
and submit briefing consistent with this Memorandum-Decision and Order

26

within fourteen (14) days of entry, Treistman shall have fourteen (14) days
to respond, and municipal defendants shall have seven (7) days to reply;
and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
February 16, 2017
Albany, New York

27