Fedele et al v. Harris et al

Filing 45

MEMORANDUM-DECISION and ORDER - That defendants' motion to dismiss (Dkt. No. 33) is GRANTED IN PART and DENIED IN PART as follows: GRANTED with respect to plaintiffs' causes of action under 42 U.S.C. § 1983 and those causes of action (Compl. 98-100, 101-104) are DISMISSED. DENIED with respect to plaintiffs' tax disclosure causes of action (Compl. 91-93, 94-97). That the parties contact Magistrate Judge Christian F. Hummel to schedule further proceedings in this case. Signed by Chief Judge Gary L. Sharpe on 11/20/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
THOMAS FEDELE et al.,
Plaintiffs,

1:14-cv-559
(GLS/CFH)

v.
MARIANNE HARRIS et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Office of Howard R. Birnbach
111 Great Neck Road - Suite 413
Great Neck, NY 11021
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

HOWARD R. BIRNBACH, ESQ.

HELENA LYNCH
STEPHEN M. KERWIN
Assistant Attorneys General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Thomas Fedele, Matthew Anderson, Gregory Aurigemma,
Arturo F. Ramirez-Calle, and Alec Zef commenced this action against
defendants Marianne Harris, Kiaran Johnson-Lew, Mary Starr, Richard

Ernst, Jamie Woodward, Honora “Nonie” Manion, Nancy Williams, Edward
Chaszczewski, Richard Arnold, Argiroula “Argi” O’Leary, Victor Vasta, Jr.,
Todd Wynne, and David Savoie, asserting claims pursuant to 42 U.S.C.
§ 1983 based upon violations of their First and Fourteenth Amendment
rights, as well as claims pursuant to federal and New York state tax
confidentiality laws. (See generally Compl., Dkt. No. 1.) Pending is
defendants’ motion to dismiss the complaint in its entirety for failure to state
a claim. (Dkt. Nos. 19, 33.) 1 For the reasons that follow, the motion to
dismiss is granted in part and denied in part.
II. Background2
Plaintiffs here, except for Anderson, were, at all times relevant to this

1

This case was originally commenced in United States District Court for the Eastern
District of New York. (See generally Compl., Dkt. No. 1.) Defendants moved to dismiss the
complaint for failure to state a claim and for lack of subject matter jurisdiction, as well as to
dismiss or transfer the case due to improper venue. (Dkt. No. 19.) In a Memorandum of
Decision and Order dated May 9, 2014, District Judge Arthur D. Spatt of the Eastern District of
New York denied defendants’ motion insofar as it sought to dismiss the complaint for lack of
subject matter jurisdiction, but granted defendants’ motion to the extent it sought transfer of the
case to the Northern District of New York. (Dkt. No. 27 at 16.) Judge Spatt “decline[d] to
address that part of . . . [d]efendants’ motion seeking to dismiss the complaint for failure to
state a claim upon which relief can be granted,” and thus denied that portion of defendants’
motion, with leave to renew in the transferee court. (Id.) Pursuant to that decision, the case
was transferred to this court. (Dkt. No. 28.) Defendants subsequently renewed their motion to
dismiss in this court, to the extent it sought dismissal for failure to state a claim. (Dkt. No. 33.)
That motion is currently pending before this court, with the parties relying on their earlier
submissions. (Dkt. No. 34.)
2

Unless otherwise noted, the facts are drawn from plaintiffs’ complaint and presented
in the light most favorable to them.

2

action, employees of the New York State Department of Taxation and
Finance (DTF), specifically the Office of Tax Enforcement and the Criminal
Investigations Division (CID). (Compl. ¶ 6.) On July 8, 2010, the New York
Post published an article in which it stated that CID’s funding for cigarette
sting operations had been “substantially cut as a result of political
pressure.” (Id. ¶ 29.) That same day, Thomas Stanton, who had been the
director of CID, and Paul Rossi, the deputy director of CID, were
terminated. (Id. ¶¶ 30-31.) Plaintiffs allege that they were “closely
associated with Stanton in their work at the Office of Tax Enforcement,” but
that, because of New York’s civil service laws, they could only be
terminated “for cause.” (Id. ¶ 33.)
A few days after the newspaper article was published, Ernst sent an
email to plaintiffs, among others, threatening them with discipline because
of the leak of information to the media. (Id. ¶ 34.) The next month,
Aurigemma, Ramirez-Calle, and Zef were contacted by Peter Persampieri,
the director of investigations, and directed to schedule interviews with the
Department of Internal Affairs. (Id. ¶ 35.) On August 16, they were
“interrogated” by internal affairs investigators about the newspaper article
and the leaked information. (Id. ¶ 36.)
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Shortly afterwards, on August 25, all plaintiffs received a Notice of
Audit, dated August 22, 2011, “demanding production of records to
substantiate the information on their 2010 tax returns.” (Id. ¶ 37.) Such an
audit “within only a few months of the filing deadline is extraordinary and
unusual.” (Id. ¶ 41.) Typically, such audits are performed by low-level DTF
employees, but in this case, plaintiffs’ audits were “directed and closely
supervised” by high-ranking officials in DTF, including defendants. ( Id.
¶¶ 44-45.)
Following the audits, in April 2012, defendants served a “notice of
deficiency” on each plaintiff, alleging deficiencies of various amounts “for
taxes allegedly due and payable for personal income tax.” (Id. ¶¶ 47, 51,
55, 59, 63, 67, 71, 75, 79.) Plaintiffs assert that these notices of deficiency
were “a pretext designed to provide a lawful basis for the retaliatory
termination of plaintiff[s].” (Id. ¶¶ 48, 52, 56, 60, 64, 68, 72, 76, 80.) Each
plaintiff has challenged these tax assessments with the New York State
Department of Taxation, Division of Tax Appeals (DTA), which remained
pending as of the commencement of this action. (Id. ¶¶ 50, 54, 58, 62, 66,
70, 74, 78, 82.) On August 17, 2012, Savoie ordered Aurigemma, Fedele,
Ramirez-Calle, and Zef “to submit to an [i]nterrogation regarding . . . their
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2010 tax return, the same issues that had been protested to, and were then
pending before . . . DTA.” (Id. ¶ 86.)
In November 2011, defendants “disclos[ed] [p]laintiffs[’] confidential
tax return information to the Human Resources of [DTF].” (Id. ¶ 84.)
Similarly, in June 2012, defendants made the same disclosure “to the
Labor Relations of [DTF].” (Id. ¶ 85.) Ultimately, on August 20, 2013,
Aurigemma, Fedele, Ramirez-Calle, and Zef were suspended after the
New York State Supreme Court, Albany County, ordered defendants to
respond to plaintiffs’ request under the Freedom of Information Law for
documents regarding the “Labor Relations interrogations.” (Id. ¶ 89.)
Plaintiffs commenced this action in November 2013, alleging that the
“interrogations” and “suspensions were in retaliation for [p]laintiffs
exercising their civil rights, including . . . their right to redress grievances
under the First Amendment.” (Id. ¶¶ 88, 90.) Plaintiffs assert causes of
action pursuant to 42 U.S.C. § 1983 for violations of their First Amendment
rights to freedom of speech and freedom to redress grievances, and their
Fourteenth Amendment equal protection rights. (Id. ¶¶ 98-100, 101-04.)
They also assert violations of United States and New York state tax
secrecy laws when their tax information was disclosed without their
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consent. (Id. ¶¶ 91-93, 94-97.) They seek “compensatory and punitive
damages.” (Id. ¶¶ 93, 97, 100, 104.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz,
LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
Although not a model of clarity, the theory pleaded in plaintiffs’
complaint on their § 1983 causes of action appears to be that they were
interrogated and targeted for audits in retaliation for the alleged leak of
information leading to the publishing of the newspaper article, and then
were subsequently suspended in retaliation for challenging, with DTA, the
resulting tax assessments. (See generally Compl.) They also allege that
their “confidential tax return information” was disclosed to “Human
Resources” and “Labor Relations.” (Id. ¶¶ 84-85.)
In their motion, defendants have offered several arguments in favor
of dismissing the complaint. With respect to plaintiffs’ § 1983 causes of
action, defendants first argue that the claims against them in their official
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capacities are barred by Eleventh Amendment immunity. (Dkt. No. 19,
Attach. 1 at 12-13.) They further argue that plaintiffs have failed to
adequately allege personal involvement of each defendant, requiring
dismissal of the § 1983 claims for damages against defendants in their
individual capacities. (Id. at 13-14.) Turning to the merits of plaintiffs’
claims, defendants assert that plaintiffs have failed to state a claim that any
constitutional rights were infringed. (Id. at 17-19.) Lastly, with respect to
plaintiffs’ claims based on the disclosure of their tax information,
defendants argue that plaintiffs have failed to state a claim, and that the
statutes at issue were not intended to cover or apply to the circumstances
of this case, and thus these claims should be dismissed. (Id. at 14-16.)
In response to defendants’ motion, plaintiffs argue that they have
properly pleaded causes of action under both § 1983, (Dkt. No. 25 at 1725), and the tax disclosure laws at issue here, (id. at 14-17). The court will
address each of plaintiffs’ claims, and defendants’ corresponding
arguments for dismissal, below.
Before turning to the arguments raised in defendants’ motion, the
court first addresses what it may properly consider in resolving this motion.
In response to the motion, which initially sought dismissal for improper
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venue, lack of subject matter jurisdiction, and failure to state a claim, (Dkt.
No. 19, Attach. 1 at 1), plaintiffs submitted an affidavit from Fedele and
several exhibits. (Dkt. No. 25, Attachs. 1-11.)
Plaintiffs also refer to these exhibits numerous times in their arguments
opposing dismissal for failure to state a claim. (Dkt. No. 25 at 14-25.)
Defendants argue that, while the affidavit and exhibits could properly be
considered with respect to the venue and subject matter jurisdiction issues
decided by the Eastern District of New York, they should not be considered
by this court in ruling on the motion to dismiss for failure to state a claim.
(Dkt. No. 26 at 1.) The court agrees.
“A court’s task in ruling on a Rule 12(b)(6) motion is merely to assess
the legal feasibility of the complaint, not to assay the weight of the evidence
which might be offered in support thereof.” AmBase Corp. v. City Investing
Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir. 2003) (internal quotation
marks and citation omitted). “In considering a motion under Fed. R. Civ. P.
12(b)(6) to dismiss a complaint for failure to state a claim on which relief
can be granted, the district court is normally required to look only to the
allegations on the face of the complaint.” Roth v. Jennings, 489 F.3d 499,
509 (2d Cir. 2007). Only in certain circumstances, not applicable here,
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may the court “permissibly consider documents other than the complaint in
ruling on a motion under Rule 12(b)(6).” Id.; see Staehr v. Hartford Fin.
Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) (explaining that, on Rule
12(b) motion, the court may consider matters of which judicial notice may
be taken); Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir.
1998), cert. denied, 525 U.S. 1103 (1999) (noting that, on a motion to
dismiss, the court may consider documents that are attached to the
complaint or incorporated in it by reference); Cortec Indus., Inc. v. Sum
Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960
(1992) (noting that the court may also consider documents upon which the
complaint relies and which are integral to the complaint).
While such exhibits may be considered by the court on a motion to
dismiss for lack of subject matter jurisdiction, see Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000) (“In resolving a motion to dismiss
for lack of subject matter jurisdiction . . . a district court . . . may refer to
evidence outside the pleadings.”), the subject matter jurisdiction
component of this motion has already been adjudicated by the Eastern
District of New York, leaving only the portions of defendants’ motion
brought pursuant to Rule 12(b)(6). (Dkt. No. 27.) As such, given the
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current posture of the pending motion, brought pursuant to Rule 12(b)(6),
reference to matters outside of the pleadings is excluded from the court’s
consideration on the issue of whether plaintiffs have adequately stated a
claim. See Fed. R. Civ. P. 12(d).
A.

Section 1983 Claims
1.

Claims Against Defendants in Official Capacities 3

As mentioned above, defendants argue that the claims against them
in their official capacities must be dismissed due to Eleventh Amendment
immunity. (Dkt. No. 19, Attach. 1 at 12-13.) In response, plaintiffs argue
that their official capacity claims are not barred “because [p]laintiffs may
seek equitable relief against [defendants] in their official capacity.” (Dkt.
No. 25 at 18.) For the following reasons, plaintiffs’ § 1983 claims against
defendants in their official capacities are dismissed.
Suits for damages arising under 42 U.S.C. § 1983 are barred by the
Eleventh Amendment unless the state has specifically waived its immunity.
See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). This bar
applies to suits against state officials for money damages when sued in
3

At the outset, the court notes that the capacity in which plaintiffs have chosen to sue
defendants is not specified in the complaint. (See generally Compl.) However, as discussed
herein, this is of no moment, as plaintiffs’ claims pursuant to § 1983 are dismissed against
defendants in both their official and individual capacities.

10

their official capacities. See Regents of Univ. of Cal. v. Doe, 519 U.S. 425,
429 (1997); see also Ford Motor Co. v. Dep’t of Treasury of Ind., 323 U.S.
459, 464 (1945) (“[W]hen the action is in essence one for the recovery of
money from the state, the state is the real, substantial party in interest and
is entitled to invoke its sovereign immunity from suit even though individual
officials are nominal defendants.” (citations omitted)).
In response to defendants’ motion, plaintiffs assert, without any
citation to the complaint, and seemingly for the first time in this case, that
“[i]n the [c]omplaint, [they] seek equitable relief in addition to monetary
damages against [d]efendants.” (Dkt. No. 25 at 18.) Although plaintiffs are
correct that § 1983 claims seeking declaratory or injunctive relief, in
contrast to those seeking money damages, are not barred by Eleventh
Amendment immunity, see Will, 491 U.S. at 71 n.10, the court is unable to
discern such a request anywhere in plaintiffs’ complaint, as in each of their
causes of action, plaintiffs claim that they “have been damaged in an
amount of compensatory and punitive damages,” (Compl. ¶¶ 93, 97, 100,
104), and they expressly seek “judgment . . . for an amount to be
determined by a jury,” (id. at 12). In the entirety of plaintiffs’ complaint,
there is no mention of declaratory or injunctive relief; plaintiffs seek money
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damages only, which are unavailable against defendants in their official
capacities on the § 1983 causes of action. Accordingly, to the extent
defendants here are sued in their official capacities, these claims are
barred by the Eleventh Amendment.
2.

Claims Against Defendants in Individual Capacities

With respect to the § 1983 claims against defendants in their
individual capacities, defendants argue that they are entitled to dismissal
because plaintiffs have failed to allege personal involvement by defendants
in the alleged constitutional violations. (Dkt. No. 19, Attach. 1 at 13-14.)
Again, the court agrees.
The Second Circuit has held that “personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994) (internal quotation marks and citations omitted). Moreover, “the
doctrine of respondeat superior cannot be applied to section 1983 actions
to satisfy the prerequisite of personal involvement.” Kinch v. Artuz, No. 97
CIV. 2419, 1997 WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997). Thus, “a
plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Ashcroft v.
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Iqbal, 556 U.S. 662, 676 (2009). The Second Circuit has stated that a
supervisory defendant may have been personally involved in a
constitutional deprivation within the meaning of § 1983 if it can be shown
that:
(1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created
a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of
such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of
[individuals] by failing to act on information indicating
that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citations omitted).
Here, eleven of the thirteen defendants sued by plaintiffs are not
even mentioned by name in the body of the complaint, leaving the court
with no idea of what involvement, if any, they each had in the alleged
deprivations of constitutional rights. Although plaintiffs assert in their
motion response papers that “[o]ther acts of personal involvement will be
borne out through . . . discovery,” (Dkt. No. 25 at 19), they are still obligated
to plead and/or allege the “personal involvement of defendants in alleged

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constitutional deprivations [a]s a prerequisite to an award of damages
under § 1983.” Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir.
2001) (internal quotation marks and citations omitted); see Cipriani v.
Buffardi, No. 06-CV-0889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007)
(“Dismissal is appropriate where a defendant is listed in the caption, but the
body of the complaint fails to indicate what the defendant did to the
plaintiff.”); Purdie v. Mahoney, No. 9:05-CV-0705, 2005 WL 3050969, at *1
(N.D.N.Y. Nov. 14, 2005) (stating that, to satisfy the personal involvement
requirement, a plaintiff must “set forth allegations of personal involvement
by each named defendant in his complaint, and may not meet this
obligation with conclusory allegations,” and that “he must name
[defendants] in the caption of his complaint and set forth specific
allegations of wrongdoing as to each individual in the body of his
complaint”).
Plaintiffs further argue that those defendants who are in supervisory
positions could be charged with personal involvement in the alleged
wrongdoing because they “learned of the constitutional violations through
their email correspondence.” (Dkt. No. 25 at 19 (citing Al-Jundi v. Estate of
Rockefeller, 885 F.2d 1060, 1066 (2d Cir. 1989).) However, there are no
14

facts pleaded in the complaint from which the court could reasonably
conclude that particular defendants in supervisory roles had such
knowledge; all that plaintiffs have alleged here, without further factual
allegations, is that “defendants title their conspiracy against [plaintiffs] a
‘special project’ in their communications.” (Compl. ¶ 46.) This allegation
falls short of attributing any defendants with knowledge of any particular
unconstitutional action.
With respect to the two defendants who are named in the body of the
complaint, the complaint merely states that Ernst “transmitted an e-mail
threatening the plaintiffs, and others, with discipline arising from the leak of
information to the New York Post,” (id. ¶ 34), and that Savoie “ordered
[p]laintiffs . . . to submit to an [i]nterrogation regarding expenses set forth in
their 2010 tax return, the same issues that had been protested to, and were
then pending before . . . DTA,” (id. ¶ 86). However, the court is unable to
see how these particular acts attributed to Ernst and Savoie represent
violations of any constitutionally protected rights. The “gravamen” of
plaintiffs’ complaint consists of claims for First Amendment retaliation and a
violation of Fourteenth Amendment equal protection rights. (Compl. ¶¶ 22,
102.) Although Ernst threatened discipline as a result of the newspaper
15

leak, there is no allegation that Ernst subsequently disciplined anyone, nor
have plaintiffs even alleged that any of them in fact engaged in any
protected speech with respect to that incident. Similarly, while Savoie
directed plaintiffs to submit to an interrogation regarding their tax returns,
which plaintiffs had previously protested to DTA, plaintiffs have not alleged
that Savoie was even aware of these protests, nor that he was treating
plaintiffs differently than any other employees. Plaintiffs argue that
“defendants are linked to the wrongdoing by their own emails and affidavits
of former personnel,” (Dkt. No. 25 at 19), but, as already discussed, such
affidavits and exhibits are not appropriately considered on a 12(b)(6)
motion, and plaintiffs simply have not pleaded such links in their complaint.
B.

Tax Secrecy Claims
The federal tax return confidentiality statute provides that “[r]eturns

and return information shall be confidential,” and, with limited exceptions, 4
“no officer or employee of any State . . . shall disclose any return or return
information obtained by him in any manner in connection with his service

4

Defendants do not appear to argue that any exceptions apply here. The only
exception mentioned in their motion papers is one permitting “disclosure of tax returns and
return information for use by the Department of Treasury in personnel matters,” which would
not seem to be relevant here, as plaintiffs have not alleged any involvement by the Department
of Treasury. (Dkt. No. 19, Attach. 1 at 15 (citing 26 U.S.C. § 6103(l)(4).)

16

as such an officer or an employee.” 26 U.S.C. § 6103(a)(2). The
enforcement mechanism for this statute is found in § 7431, which states:
If any person who is not an officer or employee of the
United States knowingly, or by reason of negligence,
inspects or discloses any return or return information
with respect to a taxpayer in violation of any provision
of section 6103 or in violation of section 6104(c), such
taxpayer may bring a civil action for damages against
such person in a district court of the United States.
Id. § 7431(a)(2). Thus, the elements of a cause of action for willful or
negligent inspection or disclosure of a taxpayer’s tax return or return
information under § 7431 include: (1) unauthorized disclosure; (2) made
either negligently or with knowledge; and (3) in violation of § 6103. See
Weiner v. Internal Revenue Serv.-Collections Div., 789 F. Supp. 655, 656
(S.D.N.Y. 1992), aff’d sub nom. Weiner v. I.R.S., 986 F.2d 12 (2d Cir.
1993). Similarly, the New York analog, found in N.Y. Tax Law § 697(e)(1),
states that “it shall be unlawful for . . . any . . . employee of the department .
. . to divulge or make known in any manner . . . any particulars set forth or
disclosed in any report or return required under this article.”
In support of dismissal, defendants argue that plaintiffs have failed to
state a claim for violation of the federal statute because “there was no need
for any defendant to access plaintiffs’ federal tax returns,” as “itemized
17

deductions were (and are) reported on the New York State income tax
return form.” (Dkt. No. 19, Attach. 1 at 15.) With respect to the state claim,
they argue that “it is far from clear that the alleged internal use of plaintiffs’
tax returns . . . within DTF for personnel matters constitutes ‘divulg[ing] or
mak[ing] known’ any particulars set forth in any state tax return.” ( Id.
(quoting N.Y. Tax. Law § 697(e)(1).) However, taking plaintiffs’ allegations
as a whole, the court finds that they have adequately alleged that their
confidential tax return information was disclosed to the human resources
and labor relations divisions within DTF, not as a means to collect unpaid
taxes, but instead as part of a pretextual scheme, “for employee
administrative purposes,” to justify initiating meritless audits and
suspending plaintiffs out of retaliation. (Compl. ¶¶ 22-27.) Although it will
ultimately be plaintiffs’ burden to substantiate their allegations with record
evidence support, and demonstrate that defendants unlawfully disclosed
plaintiffs’ returns and/or return information, at this stage, all allegations in
the complaint are assumed to be true and all reasonable inferences are
drawn in favor of the nonmoving party. See Oteze Fowlkes v. Adamec,
432 F.3d 90, 95 (2d Cir. 1995). Therefore, at this juncture, plaintiffs have
adequately pleaded that their confidential tax returns and/or return
18

information were disclosed, and defendants’ motion is denied insofar as it
seeks dismissal of these claims.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion to dismiss (Dkt. No. 33) is
GRANTED IN PART and DENIED IN PART as follows:
GRANTED with respect to plaintiffs’ causes of action under 42
U.S.C. § 1983 and those causes of action (Compl. ¶¶ 98-100, 101-104) are
DISMISSED; and
DENIED with respect to plaintiffs’ tax disclosure causes of
action (Compl. ¶¶ 91-93, 94-97); and it is further
ORDERED that the parties contact Magistrate Judge Christian F.
Hummel to schedule further proceedings in this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 20, 2014
Albany, New York

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