Wasiluk v. City of Oneida, New York

Filing 42

ORDER denying # 37 Motion for Summary Judgment: It is DENIED without prejudice and with leave to re-file accompanied with a notice advising Plaintiff of the consequences of failing to respond to the motion. If the City intends to re-file the motion , it should do so within twenty (20) days of the date of this Order. If the motion is re-filed, Plaintiff will have twenty (20) days to respond, and, if he does, the City will have seven (7) days to file a reply. IT IS SO ORDERED. Signed by Senior Judge Thomas J. McAvoy on September 9, 2021. (Copy served on plaintiff via regular mail )(gmd, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
WALTER WASILUK,
Plaintiff,
v.

5:19-cv-280

CITY OF ONEIDA, NEW YORK,
Defendant.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

ORDER
Plaintiff commenced this action pro se asserting that his constitutional rights were
being violated by the City of Oneida (“the City”) because the City had foreclosed on
Plaintiff’s house for failure to pay taxes, and was “seeking to vacate [Plaintiff] from [his]
house so that they can sell it . . . .” Compl. p. 5. Plaintiff asserts that the City’s conduct
violates the Eighth Amendment's Excessive Fines Clause, and his pro se pleading can
also be interpreted as raising a Fourteenth Amendment due process challenge to the
foreclosure proceedings. See generally, id.
The City moves for summary judgment seeking to dismiss the claims in the
Complaint. Dkt. No. 37. In support of the motion, the City submits a detailed “Statement of
Undisputed Material Facts in Support of Motion for Summary Judgment,” supporting each

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alleged fact with citations to the record as required by N.D.N.Y. L.R. 7.1(a)(3).1 See Dkt.
No. 37-40. In opposition to the motion, Plaintiff submits an “Affidavit of Facts Disputing
Motion for Summary Judgement,” Dkt. No. 39, and a “Memorandum of Law Disputing
Motion for Summary Judgement,” Dkt. No. 39-1. Although Plaintiff asserts in his affidavit
that he “concedes no position taken by defendant,” Plaintiff has not submitted a response
to the City’s statement of material facts that conforms with the requirements of N.D.N.Y.
L.R. 7.1(a)(3). See id. (“The opposing party shall file a response to the Statement of
Material Facts. The non-movant's response shall mirror the movant's Statement of
Material Facts by admitting and/or denying each of the movant’s assertions in a short and
concise statement, in matching numbered paragraphs. Each denial shall set forth a
specific citation to the record where the factual issue arises.”). While the Local Rules
provide that “[t]he Court shall deem admitted any properly supported facts set forth in the
Statement of Material Facts that the opposing party does not specifically controvert,” id.
(emphasis in original), it does not appear that the City provided Plaintiff with a notice
advising him of the consequences of failing to respond to the City’s statement of material
facts. See N.D.N.Y. L.R. 7.1(a)(3)(“The moving party shall also advise pro se litigants
about the consequences of their failure to respond to a motion for summary judgment.”);
id. at 56.2 (“When moving for summary judgment against a pro se litigant, the moving
party shall inform the pro se litigant of the consequences of failing to respond to the
summary judgment motion. Counsel for the moving party shall send a notice to the pro se
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The Local Rules were amended effective January 1, 2021. In the amendment, L.R. 7.1 was
dissected and various subsections were renumbered and relocated to correspond with the appropriate
Federal Rule. The relevant substance of the rules did not change. In the currently operative version of the
Local Rules, L.R. 56.1 deals with summary judgement motions. However, because the instant motion was
filed in 2020, the Court refers to the Local Rules as they existed at that time.

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litigant that a motion for summary judgment seeks dismissal of some or all of the claims or
defenses asserted in their complaint or answer and that the pro se litigant’s failure to
respond to the motion may result in the Court entering a judgment against the pro se
litigant. Parties can obtain a sample notice from the Court’s webpage at
‘www.nynd.uscourts.gov.’”); Phillips v. Mitchell, No. 9:19-CV-0383 (TJM/TWD), 2021 WL
1175051, at *3 (N.D.N.Y. Mar. 29, 2021)(“Where, as in this case, a party has failed to
respond to the movant's statement of material facts in the manner required under L.R.
7.1(a)(3), the facts in the movant's statement to which the plaintiff has not properly
responded will be accepted as true (1) to the extent that they are supported by evidence in
the record, and (2) provided that the nonmovant, if proceeding pro se, has been
specifically advised of the possible consequences of failing to respond to the
motion.”)(citing Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)).
The Local Rules addressed to summary judgment motions are designed to allow
the Court to efficiently and effectively rule on such motions by narrowing or eliminating
genuine factual disputes. Plaintiff may have believed that his statement that he “concedes
no position taken by defendant” was sufficient to dispute some or all of the facts asserted
in the City’s statement of material facts, but that conclusion is not apparent on the instant
record. In order to allow the Court to efficiently and effectively rule on the motion, the
Court will deny the motion without prejudice and with leave to re-file accompanied with a
notice advising Plaintiff of the consequences of failing to respond to the motion, including
the consequences of failing to properly respond to the City’s statement of material facts.
Upon re-filing of the motion, Plaintiff can provide whatever response he deems

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appropriate.
Conclusion
For the reasons set forth above, the City’s motion for summary judgment, Dkt. No.
37, is DENIED without prejudice and with leave to re-file accompanied with a notice
advising Plaintiff of the consequences of failing to respond to the motion. If the City
intends to re-file the motion, it should do so within twenty (20) days of the date of this
Order. If the motion is re-filed, Plaintiff will have twenty (20) days to respond, and, if he
does, the City will have seven (7) days to file a reply.
IT IS SO ORDERED.
Dated: September 9, 2021

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