Koziol v. Lippman et al

Filing 8

MEMORANDUM-DECISION AND ORDER that all of the defendants' motions to dismiss are GRANTED; All of the defendants' motions for summary judgment are GRANTED; All claims pursuant to 42 U.S.C. §§ 1983, 1985, 1986 are DISMISSED; The sta te law trespass claim against the Town of New Hartford is DISMISSED; The state law defamation claims against William Koslosky and Keith Eisenhut are DISMISSED; The state law legal malpractice claims against William Koslosky are DISMISSED; Any remaini ng state law claims are DISMISSED without prejudice; All of plaintiff's cross-motions are DENIED; and The lead and member complaints are DISMISSED in their entirety. The Clerk of the Court is directed to enter judgment accordingly. Signed by Judge David N. Hurd on 5/24/2011. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------JOHN PARENT, individually and as natural
parent of Child "A" and Child "B," and on behalf
of parents similarly situated, also known as
Leon R. Koziol,
Plaintiffs,
-v-

6:09-CV-233 (LEAD)

STATE OF NEW YORK; JONATHAN LIPPMAN,
individually and as Chief Administrative Officer of
the New York Unified Court System; UNIFIED
COURT SYSTEM OF THE STATE OF NEW YORK;
JOHN W. GROW, individually and as State Court
Judge; CHARLES C. MERRELL, individually and as
Family Court Judge; GEORGE S. GETMAN,
individually and as Support Magistrate; MICHAEL
DALEY, individually and as Acting Judge for the
State of New York; JUSTICES OF THE
APPELLATE DIVISION, FOURTH DEPARTMENT;
FIFTH JUDICIAL DISTRICT GRIEVANCE
COMMITTEE; MARY GASPARINI, individually and
as investigator/attorney for the Grievance
Committee; SHERYL CRANKSHAW, individually
and as investigator for the Grievance Committee;
KATHLEEN SEBELIUS, Secretary of Health and
Human Services for the United States; DAVID J.
SWARTS, individually and as Commissioner of
Motor Vehicles for the State of New York; BRIAN J.
WING, individually and as Commissioner of the
Office of Temporary and Disability Assistance for the
State of New York; LUCILLE SOLDATO, individually
and as Commissioner of the Oneida County Support
Collection Unit; DARLENE CHUDYK, individually
and as "Investigator" for Oneida County; JANE
DOE, individually and as "Custodial Parent" for the
State of New York; KEITH EISENHUT; WILLIAM
KOSLOSKY, individually and as "Attorney for the
Child" for the State of New York; and MARTHA
WALSH-HOOD, individually and as Acting State
Court Judge,
Defendants.
-------------------------------------

------------------------------------LEON R. KOZIOL, individually and as natural
parent of Child "A" and Child "B," and on behalf
of parents similarly situated,
Plaintiffs,
-v-

6:10-CV-1361 (MEMBER)

JONATHAN LIPPMAN, individually and as Chief
Administrative Officer of the New York Unified Court
System; NEW YORK UNIFIED COURT SYSTEM;
STATE OF NEW YORK; JOHN W. GROW,
individually and as State Supreme Court Judge;
CHARLES MERRELL, individually and as Family
Court Judge; GEORGE S. GETMAN, individually
and as Support Magistrate; MICHAEL DALEY,
individually and as Acting Judge; JUSTICES OF
THE APPELLATE DIVISION THIRD/FOURTH
DEPARTMENTS; FIFTH JUDICIAL DISTRICT
GRIEVANCE COMMITTEE; GREGORY HUETHER,
individually and as Chief Counsel/Complainant of
the Fifth Judicial District; MARY GASPARINI,
individually and as investigator/attorney for the Fifth
District; KATHLEEN SEBELIUS, U.S. Secretary of
Health and Human Services; BRIAN J. WING,
individually and as Commissioner of the Office of
Temporary and Disability Assistance; DAVID J.
SWARTS, as Commissioner of Motor Vehicles;
LUCILLE SOLDATO, individually and as
Commissioner of the Oneida County Department of
Social Services; DARLENE CHUDYK, individually
and as "Investigator" for Oneida County; KELLY
HAWSE-KOZIOL, individually and as "Custodial
Parent" for the State of New York; KEITH
EISENHUT; WILLIAM KOSLOSKY, individually and
as the state's "Attorney for the Child"; MARTHA
WALSH-HOOD, individually and as Acting Judge; C.
DUNCAN KERR, individually and as Deputy Tax
Commissioner; DONNA COSTELLO, CHARLOTTE
KIEHLE and unknown enforcement agents of the
state, County of Oneida and New Hartford Police;
COUNTY OF ONEIDA; and TOWN OF NEW HARTFORD,
Defendants.
------------------------------------- 2 -

APPEARANCES:

OF COUNSEL:

JOHN PARENT, Plaintiff Pro se
LEON R. KOZIOL, Plaintiff Pro se
1518 Genesee Street
Utica, NY 13502
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorneys for Defendants State of New York,
Lippman, Unified Court System, Grow,
Merrell, Getman, Swarts, Wing, Daley,
Justices of the Appellate Division Fourth
Department, Fifth Judicial District Grievance
Committee, Huether, Gasparini, Crankshaw,
and Walsh-Hood
The Capitol
Albany, NY 12224

CHRISTOPHER W. HALL, ESQ.
MEGAN M. BROWN, ESQ.
Ass't Attorneys General

GORMAN, WASZKIEWICZ, GORMAN &
SCHMITT
Attorneys for Defendants Soldato, Chudyk,
and County of Oneida
1508 Genesee Street
Utica, NY 13502

BARTLE J. GORMAN, ESQ.

SUGARMAN LAW FIRM
Attorneys for Defendant
Town of New Hartford
211 West Jefferson Street
Syracuse, NY 13202

PAUL V. MULLIN, ESQ.

COSTELLO, COONEY & FEARON, PLLC
Attorneys for Defendants Eisenhut and
Koslosky
205 South Salina Street
Syracuse, NY 13202

JENNIFER L. NUHFER, ESQ.
PAUL G. FERRARA, ESQ.
CHRISTOPHER G. TODD, ESQ.

- 3 -

HON. RICHARD S. HARTUNIAN
United States Attorney
Northern District of New York
Attorneys for Defendant Sebelius
100 South Clinton Street
P.O. Box 7198
Syracuse, NY 13261

CHARLES E. ROBERTS, ESQ.
Ass't United States Attorney

DAVID N. HURD
United States District Judge

- 4 -

TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
LEGAL STANDARDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Motion to Dismiss.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Motion for Summary Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
New Hartford. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Federal Claims under §§ 1983, 1985, 1986. . . . . . . . . . . . . . . . . . . . . . . . . . .
State Law Trespass Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Personal Involvement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Eleventh Amendment Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judicial and Quasi-Judicial Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judge Lippman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judge Grow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judge Merrell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Support Magistrate Getman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judge Daley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judge Walsh-Hood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gasparini, Huether, and Crankshaw.. . . . . . . . . . . . . . . . . . . . . . . . . . .
County Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
County of Oneida. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Soldato and Chudyk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorney Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Federal Claims under § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conspiracy Claims under § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State Law Defamation Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State Law Legal Malpractice Claims—Koslosky. . . . . . . . . . . . . . . . . . . . . . . .
Remaining State Law Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other Issues.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sebelius. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hawse-Koziol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Costello, Kiehle, and Kerr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Remaining State Law Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Plaintiff's Cross-Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12
12
12
14
14
15
16
18
20
21
22
23
23
24
26
27
27
28
31
31
33
36
38
40
40
40
41
41
43
43

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

- 5 -

MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiff Leon R. Koziol1 ("plaintiff" or "Koziol"), individually and as natural
parent of Child "A" and Child "B," and on behalf of parents similarly situated, brings these
actions asserting a total of forty-two causes of action under the United States Constitution
and state law.
Plaintiff filed the initial complaint in Civil Action No. 6:09-CV-233 ("lead case") on
February 26, 2009. Dkt No. 1. He later served an amended complaint and second amended
complaint ("lead complaint"). Dkt. Nos. 7, 13. Defendants filed various motions to dismiss in
the lead case. Dkt. Nos. 19, 22, 33, 38. Oral argument was heard regarding those motions
on September 16, 2010, in Utica, New York. Decision was reserved.
On November 10, 2010, plaintiff filed Civil Action No. 6:10-CV-1361 ("member case").2
The member case was reassigned to the undersigned on November 12, 2010, when it was
discovered that the lead case was pending and related. A comparison of the two cases
revealed they involve common questions of law and fact. On November 23, 2010, the two
cases were consolidated and the initial action designated as the lead case. Dkt. No. 54. The
pending motions were dismissed without prejudice to renew to incorporate arguments with
regard to the new causes of action in the member case.

1

The nam ed plaintiff in the lead com plaint is "John Parent, individually and as natural
parent of Child 'A' and Child 'B,' and on behalf of parents sim ilarly situated also known as Leon R. Koziol."
Lead Com pl., Dkt. No. 13.
2

The com plaint in the m em ber case will be referenced as "m em ber com plaint."
- 6 -

Following consolidation, defendant Town of New Hartford ("New Hartford") moved to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule __"). Dkt. No. 60.
Plaintiff opposed.
Defendants the State of New York ("New York"); Chief Judge of the State of New York
Jonathan Lippman ("Judge Lippman"); the Unified Court System of the State of New York
("UCS"); retired New York State Supreme Court Judge John W. Grow ("Judge Grow"); Lewis
County Family Court Judge Charles C. Merrell ("Judge Merrell"); Herkimer County Family
Court Support Magistrate George S. Getman ("Getman"); New York State Commissioner of
Motor Vehicles David J. Swarts ("Swarts"); New York State Commissioner of the Office of
Temporary and Disability Assistance Brian J. Wing ("Wing"); New York State Deputy Tax
Commissioner C. Duncan Kerr ("Kerr"); Herkimer County Supreme Court Judge Michael E.
Daley ("Judge Daley"); the Justices of the Appellate Division, Third Department ("Third
Department"); the Justices of the Appellate Division, Fourth Department ("Fourth
Department"); the Fifth Judicial District Grievance Committee ("Grievance Committee"); Fifth
Judicial District Chief Counsel/Complainant Gregory Huether ("Huether"); Grievance
Committee Investigator/Attorney Mary Gasparini ("Gasparini"); Grievance Committee
Investigator Sheryl Crankshaw ("Crankshaw"); and Fifth Judicial District Family Court
Supervising Judge Martha Walsh-Hood ("Judge Walsh-Hood") (collectively "State
defendants") also moved to dismiss pursuant to Rule 12(b)(6). Dkt. No. 68. Plaintiff
opposed and the State defendants replied.
The Commissioner of the Oneida County Department of Social Services Lucille Soldato
("Soldato"); Oneida County Investigator Darlene Chudyk ("Chudyk"); and the County of

- 7 -

Oneida ("County") (collectively "County defendants") moved to dismiss pursuant to Rule
12(b)(6). Dkt. No. 70. Plaintiff opposed and the County defendants replied.
Defendants Keith Eisenhut ("Eisenhut") and William Koslosky3 ("Koslosky") (collectively
"attorney defendants") separately moved for summary judgment pursuant to Rule 56. Dkt.
Nos. 84, 89. Plaintiff opposed both motions and the attorney defendants replied.
Plaintiff cross-moved for a preliminary injunction, full or partial summary judgment, and
a default judgment regarding non-appearing defendants. Dkt. No. 72. The County, State,
and attorney defendants opposed. Plaintiff replied. All motions were considered on their
submissions without oral argument.
No appearance has been entered nor motions made on behalf of defendant Kelly
Hawse-Koziol4 ("Hawse-Koziol" or "ex-wife"). Secretary of Health and Human Services for
the United States Kathleen Sebelius ("Sebelius") appeared in the action but no motions have
been made on her behalf.5 Similarly, no appearances have been entered nor motions made
on behalf of defendants New York State Tax Compliance Agent Donna Costello ("Costello"),
Charlotte Kiehle ("Kiehle"), and unknown enforcement agents.
II. BACKGROUND
The facts upon which these actions are based are summarized briefly below. Further
details will be set forth as necessary in the analysis of each claim. Facts set forth in the
complaint will be taken as true for the purpose of motions to dismiss. For summary judgment
3

Plaintiff designates Koslosky as "attorney for the child for the State of New York."

4

She is nam ed as Jane Doe in the lead case and as Kelly Hawse-Koziol in the m em ber case.
Plaintiff designates her as "custodial parent for the State of New York" in both cases.
5

Sebelius filed a m otion to dism iss on May 13, 2011. Dkt. No. 102. This m otion is untim ely as an
answer was due on January 11, 2011. Therefore, Sebelius's m otion will not be considered.
- 8 -

motions, facts will be viewed in the light most favorable to plaintiff, with all inferences made in
his favor.
Koziol, who was a duly-licensed attorney, carried on a private law practice specializing
in civil rights matters. He practiced in both state and federal court.
Plaintiff and his ex-wife had two minor daughters. Pursuant to their private separation
agreements, plaintiff and his ex-wife cooperated with each other as to the custody and
support of the two daughters. After eighteen months of legal separation and compliance with
their separation agreements, Koziol initiated a divorce action in New York state court in
September 2005.
An uncontested application for a final decree of divorce was filed approximately four
months after the divorce action was initiated. In February 2006, the state court judge before
whom the application was pending refused to grant the divorce without written reasons. On
October 8, 2008, a letter decision was issued by the state court denying the application
based upon failure to provide net worth statements and conform to the state's child support
standards law.
A custody and support contest then ensued. Plaintiff alleges that the requirements
imposed upon him by the state court pertaining to child custody and support, which altered
the agreement between he and his ex-wife, constructively terminated his fathering rights.
Koziol did not make the child support payments as required by the state court, arguing
that the designation of his ex-wife as custodial parent and the court-ordered payments
violated his federal constitutional rights. The state child support collection unit became
involved, as did the attorney disciplinary committee. Various other state and local
enforcement authorities also performed investigatory functions.
- 9 -

Plaintiff's delinquencies in child support obligations eventually resulted in the
suspension of his driver's license, his license to practice law, and his passport privileges.
Without a license to practice law, Koziol had to close his legal practice.
Over the last five years, over twenty-one state court judges have been assigned to hear
plaintiff's child custody and support issues. A minimum of fifty orders in relation to those
matters have been issued. Custody, support, and visitation issues remain unresolved
although plaintiff is currently making a monthly payment toward child support and arrears.
III. LEGAL STANDARDS
A. Motion to Dismiss
When deciding a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff's factual
allegations must be accepted as true and all reasonable inferences must be drawn in favor of
the plaintiff to asses whether a plausible claim for relief has been stated. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-61, 127 S. Ct. 1955, 1964-67 (2007); Ashcroft v. Iqbal, __ U.S.
__, 129 S. Ct. 1937, 1953 (2008) (holding that the pleading rule set forth in Twombly applies
in "all civil actions"). The factual allegations must be sufficient "to raise a right to relief above
the speculative level," crossing the line from "possibility" to "probability." Twombly, 550 U.S.
at 557, 127 S. Ct. at 1966. Additionally, "a formulaic recitation of the elements of a cause of
action will not do." Id. at 555, 127 S. Ct. at 1965. "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly,
550 U.S. at 556, 127 S. Ct. at 1965).
Thus, in reviewing the sufficiency of the pleading, a court first may identify legal
conclusions that "are not entitled to the assumption of truth." Id. at 1950. The court should
- 10 -

then "assume [the] veracity" of "well-pleaded factual allegations . . . and determine whether
they plausibly give rise to an entitlement to relief." Id.
B. Motion for Summary Judgment
Summary judgment must be granted when the pleadings, depositions, answers to
interrogatories, admissions, and affidavits show that there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986).
The moving party carries the initial burden of demonstrating an absence of a genuine issue
of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.
2548, 2552 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light
most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986).
When the moving party has met the burden, the nonmoving party "must do more than
simply show that there is some metaphysical doubt as to the material facts." Id. at 586, 106
S. Ct. at 1356. At that point, the nonmoving party "must set forth specific facts showing that
there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250,
106 S. Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct. at 1356. To
withstand a summary judgment motion, sufficient evidence must exist upon which a
reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at
248-49, 106 S. Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct. at 1356.

- 11 -

IV. ANALYSIS
A. New Hartford
Plaintiff alleges causes of action under the United States Constitution, pursuant to 42
U.S.C. §§ 1983, 1985, and 1986 against New Hartford, as well as a state law trespass cause
of action.
1. Federal Claims under §§ 1983, 1985, 1986
A plaintiff may bring an action for redress of a "deprivation of any rights, privileges, or
immunities secured by the Constitution and laws" by a person acting under color of state law.
42 U.S.C. § 1983 (2006); L.A. Cnty., Cal. v. Humphries, __ U.S. __, 131 S. Ct. 447, 452
(2010). Municipalities, considered a "person" for this purpose, may "'be sued directly under
§ 1983 for monetary, declaratory, or injunctive relief'" where the allegation is that a policy or
custom6 of the municipality results in a deprivation of constitutional rights. Humphries, 131 S.
Ct. at 452 (quoting Monell, 436 U.S. at 690-91, 98 S. Ct. at 2035-36). However, a
municipality cannot be sued "'solely because it employed a tortfeasor.'" Id. (quoting Monell,
436 U.S. at 691, 98 S. Ct. at 2036).
Section 1985 provides a cause of action to one who is "injured by conspiracies formed
'for the purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws.'" United
Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 827, 103 S. Ct. 3352, 3355 (1983)

6

As the Suprem e Court reiterated, "policy or custom " is used as a shorthand to reference a "lengthy
list of types of m unicipal action" for which liability can ensue. Hum phries, 131 S. Ct. at 452. The list includes
an action that "'im plem ents or executes a policy statem ent, ordinance, regulation, or decision officially
adopted and prom ulgated by that body's officers. ... [They can also be sued for] deprivations visited pursuant
to governm ental "custom " even though such a custom has not received form al approval through the body's
official decision m aking channels.'" Id. (alteration in original) (quoting Monell v. N.Y.C. Dep't of Soc. Servs.,
436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36 (1978)).
- 12 -

(quoting 42 U.S.C. § 1985(3)). In addition to establishing that there was a conspiracy, an act
in furtherance of the conspiracy, and injury caused by the conspiracy, "there must be some
racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators' action." Id. at 830, 835, 103 S. Ct. at 3357, 3359. Fathers who are divorcing,
are divorced, or are engaged in custody disputes are not members of a class subject to
invidious discrimination; therefore, a cause of action under § 1985 will not lie. Buchanan v.
Buchanan, 42 F.3d 1398 (9th Cir. 1994) (Table; unpublished opinion found at 1994 WL
680992, at *4); Humphrey v. Court of Common Pleas, 640 F. Supp. 1239, 1243 (M.D. Pa.
1986); see also Pollack v. Nash, 58 F. Supp. 2d 294, 305 (S.D.N.Y. 1999) (dismissing §
1985 claim because "those in a family custody dispute do not form a protected class").
Further, a valid § 1985 claim is a prerequisite to a claim brought under § 1986. Brown
v. City of Oneonta, N.Y., 221 F.3d 329, 341 (2d Cir. 2000). Thus, if the underlying § 1985
cause of action is dismissed, the § 1986 cause of action must also be dismissed. Id.
On October 19, 2010, a New York state court order, warrant, and tax levy were
executed at plaintiff's residence by state officials. Unnamed New Hartford police officers
were present at his residence during the execution. According to plaintiff, the New Hartford
police officers were at his home arbitrarily and without cause, and in such a manner as to
provoke controversy. There is no allegation in Koziol's complaint that New Hartford had a
policy, custom, or practice of violating constitutional rights, or of retaliating for the exercise of
constitutional rights. Moreover, there are no facts alleged from which an inference could
plausibly be drawn that any such policy, custom, or practice existed. Any right to relief based
upon facts alleged pertaining to New Hartford would be purely speculative. Thus, all § 1983
claims against New Hartford based upon policy, custom, or practice will be dismissed.
- 13 -

Moreover, Koziol cannot prevail on a claim under § 1985. His attempt at analogizing
the plight of non-custodial parents ordered by a state court to make child support payments
with that of African-Americans targeted for invidious discrimination by the Ku Klux Klan
deserves no more attention than patent denial. Plaintiff does not fall within a class subject to
invidious discrimination deserving of protection under § 1985. Because Koziol's
§ 1985 claim fails, his § 1986 claim must also be dismissed.7
2. State Law Trespass Claim
A timely-filed notice of claim is a prerequisite to a tort action against a municipality.
N.Y. Gen. Mun. L. § 50-i(1) (McKinney Supp. 2011). The complaint must contain allegations
that the notice of claim was filed at least thirty days prior and payment has not been made to
satisfy the claim. Id.
Plaintiff does not allege in his complaint that he filed a notice of claim with New Hartford
and that more than thirty days passed without resolution of the claim prior to filing the
member case. Further, he does not argue in opposition to New Hartford's motion to dismiss
that he has complied with the notice of claim requirements. Therefore, the state law trespass
claim against New Hartford will be dismissed.
B. State Defendants
The State defendants moved to dismiss, asserting: (1) Swarts, Wing, and Kerr were
not personally involved in the conduct that allegedly violated plaintiff's rights; (2) all State

7

To the extent plaintiff asserts § 1985 and § 1986 claim s against other defendants, those claim s are
dism issed for the sam e reasons discussed above.
- 14 -

defendants are entitled to Eleventh Amendment immunity; and (3) the judicial defendants8
are entitled to judicial immunity.
1. Personal Involvement
Swarts, Wing, and Kerr assert they must be dismissed for lack of personal involvement.
Plaintiff fails to respond to this argument. This lack of a counter argument lightens
defendants' burden so they need only show their motion has "facial merit." Cont’l Ins. Co. v.
Coyne Int’l Enter. Corp., 700 F. Supp. 2d 207, 213 & n.6 (N.D.N.Y. 2010) (Suddaby, J.).
The personal involvement of defendants is an essential element of a § 1983 claim.
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). "A plaintiff must allege a tangible
connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790
F.2d 260, 263 (2d Cir. 1986). There is no respondeat superior liability under § 1983, and
defendants may not be held liable for constitutional violations merely because they hold a
high position of authority. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21
F.3d at 501.
The only mention of Swarts in the lead complaint is an allegation that, as New York
State Commissioner of Motor Vehicles, he was ultimately responsible for executing "belated
notices for a suspension of driving privileges." Lead Compl. ¶ 82. While Swarts is listed as a
defendant in the member complaint, there are no factual allegations made against him.
Wing is mentioned only in the "Parties" section of the lead complaint, where it is alleged
that he "exercised authority over the implementation of Title IV-D as it relates to plaintiffs."
Id. ¶ 20. In the member complaint, plaintiff alleges Wing "exceeded his scope by targeting

8

The judicial defendants include Judges Lippm an, Grow, Merrell, Daley, and W alsh-Hood; Support
Magistrate Getm an; and Grievance Com m ittee m em bers Gasparini, Huether, and Crankshaw.
- 15 -

plaintiffs" and "sponsored an unauthorized, fraudulent and stigmatizing petition for support
violations" that led to the suspension of plaintiff's driving privileges. Member Compl. ¶¶ 20,
78.
These conclusory allegations are insufficient to establish the personal involvement of
Swarts and Wing. Plaintiff does not allege any facts to even suggest a tangible connection
between these two defendants and the conduct that actually violated his rights. Swarts and
Wing cannot be held liable solely by virtue of their positions of authority. Therefore, all
claims against Swarts and Wing will be dismissed.
Kerr is not named anywhere in the lead complaint. In the "Parties" section of the
member complaint plaintiff alleges Kerr "directed and participated in an unlawful seizure of
assets from [his] homestead on October 19, 2010." Id. ¶ 28. This allegation is sufficient to
establish Kerr's personal involvement as it suggests she was physically present at Koziol's
home and took part in the allegedly unlawful seizure outlined in the twelfth cause of action.
Accordingly, defendants' motion to dismiss for lack of personal involvement will be
granted as to Swarts and Wing but denied as to Kerr.
2. Eleventh Amendment Immunity
The State defendants argue that New York, its agencies, and all individual State
defendants in their official capacities are entitled to immunity under the Eleventh
Amendment.
It is well-established that the Eleventh Amendment bars actions against states and
state agencies. Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d Cir. 2009). Eleventh
Amendment immunity precludes a plaintiff from seeking any relief against states and state
agencies—including monetary and injunctive relief. Cory v. White, 457 U.S. 85, 90-91, 102
- 16 -

S. Ct. 2325, 2329 (1982). This immunity "extends beyond the states themselves to state
agents and state instrumentalities that are, effectively, arms of the state." Gollomp, 568 F.3d
at 366 (internal quotation omitted). Specifically, UCS and appellate divisions have been
deemed arms of New York. Id. at 368 (UCS); Zuckerman v. Appellate Div., 421 F.2d 625,
626 (2d Cir. 1970) (appellate divisions). It follows that the Grievance Committee is an arm of
New York as it is tasked, by law, with investigating reports of attorney misconduct on behalf
of UCS. See N.Y. Comp. Codes R. & Regs. tit. 22, § 603.4 (2011); Thaler v. Casella, 960 F.
Supp. 691, 700-01 (S.D.N.Y. 1997) (holding that a grievance committee is entitled to
Eleventh Amendment immunity since it is a judicial arm of New York).
The Eleventh Amendment also bars claims for money damages against state officials
acting in their official capacities. Kentucky v. Graham, 473 U.S. 159, 167-68, 105 S. Ct.
3099, 3106 (1985). However, suits against state officials in their official capacities for
prospective injunctive relief to stop ongoing violations of federal law are permitted. Ex parte
Young, 209 U.S. 123, 159-60, 28 S. Ct. 441, 453-54 (1908).
Eleventh Amendment immunity is lost only if Congress unequivocally abrogates states'
immunity or a state expressly consents to suit. Gollomp, 568 F.3d at 365-66. It is wellsettled that Congress did not abrogate states' immunity through § 1983. Quern v. Jordan,
440 U.S. 332, 343-45, 99 S. Ct. 1139, 1146-47 (1979); Dube v. State Univ. of N.Y., 900 F.2d
587, 594 (2d Cir. 1990). While a state may be required to waive its immunity in order to
receive federal funds, Congress must explicitly require such a waiver in statute, and the state
must "unequivocally" consent to suit in federal court. Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 680, 686, 119 S. Ct. 2219, 2228, 2231
(1999). Indeed, "[s]tate participation in a federal program . . . does not in itself constitute
- 17 -

waiver; rather waiver will be found only if stated in 'express language or by such
overwhelming implications from the text as [will] leave no room for any other reasonable
construction.'" Yorktown Med. Lab., Inc. v. Perales, 948 F.2d 84, 88 (2d Cir. 1991) (quoting
Fla. Dep't of Health & Rehabilitative Servs. v. Fla. Nursing Home Ass'n, 450 U.S. 147, 150,
101 S. Ct. 1032, 1034 (1981)).
Plaintiff argues that New York and its agencies have effectively waived immunity by
using federal law, namely Title IV-D, and federal courts to enforce child support collection.
Plaintiff offers no case law supporting his argument that a state waives its sovereign
immunity by fulfilling its responsibilities under Title IV-D. Moreover, Congress did not
explicitly require states to waive immunity under Title IV-D. See 42 U.S.C. § 659(a) (2006);
Jenkins v. Massinga, 592 F. Supp. 480, 494 n.12 (D. Md. 1984). Plaintiff fails to identify any
express language in state or federal law by which the State defendants have waived
sovereign immunity.
Accordingly, New York, UCS, Third Department, Fourth Department, and Grievance
Committee are entitled to Eleventh Amendment immunity, and all claims against them will be
dismissed. All claims for monetary damages against the remaining individual State
defendants in their official capacities will also be dismissed.
3. Judicial and Quasi-Judicial Immunity
The judicial defendants argue that they are entitled to judicial immunity from suit.
It is well-established that judges enjoy "absolute immunity from suits for money
damages for their judicial actions." Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009).
Moreover, § 1983 provides that "in any action brought against a judicial officer for an act or
omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless
- 18 -

a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983;
see also Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (per curiam). Plaintiff does not
allege that a declaratory decree was violated or that declaratory relief is unavailable. Indeed,
plaintiff seeks a declaration that "the processes and provisions" applied to his divorce
proceedings are unconstitutional. Lead Compl., 36, ¶ 4. Since a declaratory decree was not
violated and declaratory relief is available, plaintiff cannot seek injunctive relief from the
judicial defendants.
Allegations of "bad faith or malice" cannot overcome judicial immunity. Bliven, 579 F.3d
at 209. Indeed, "the scope of the judge's jurisdiction must be construed broadly where the
issue is the immunity of the judge," and "[a] judge will not be deprived of immunity because
the action he took was in error, was done maliciously, or was in excess of his authority."
Stump v. Sparkman, 435 U.S. 349, 356, 98 S. Ct. 1099, 1105 (1978). There are only two
ways to overcome judicial immunity. "First, a judge is not immune from liability for nonjudicial
actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune
for actions, though judicial in nature, taken in the complete absence of all jurisdiction."
Mireles v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286, 288 (1991).
When determining whether an action is judicial, courts are instructed "to take a
functional approach" and consider whether the action is one expected to normally be
performed by a judge. Bliven, 579 F.3d at 210. "[T]he Supreme Court has generally
concluded that acts arising out of, or related to, individual cases before the judge are
considered judicial in nature." Id. Even "informal and ex parte" proceedings that are
"otherwise within a judge's lawful jurisdiction" are considered judicial. Forrester v. White, 484
U.S. 219, 227, 108 S. Ct. 538, 544 (1988). Administrative actions such as terminating a
- 19 -

court employee, compiling general jury lists, and promulgating an attorney code of conduct
do not fall within the range of judicial actions protected by absolute immunity. Bliven, 579
F.3d at 210.
When considering if a judge acted in complete absence of jurisdiction, courts must ask
(1) whether a reasonable judge would have thought jurisdiction was proper and (2) if that
particular judge knew or had reason to know of such jurisdictional defect. See Maestri v.
Jutkofsky, 860 F.2d 50, 53 (2d Cir. 1988) (distinguishing between a judge who acts in excess
of jurisdiction and one who acts in clear absence of all jurisdiction).
a. Judge Lippman
The only allegations against Judge Lippman involve an order he issued in 2008
returning "all severed components of the father's original uncontested divorce to defendant
Grow" and the assignment of judges to plaintiff's numerous cases, petitions, and hearings.
Lead Compl. ¶ 69, 85; Member Compl. ¶ 80. Plaintiff argues that these actions were
administrative and therefore outside the scope of judicial immunity.9
The assignment of cases and issuance of consolidation orders are judicial functions
normally performed by, and statutorily reserved to, Judge Lippman. See 22 N.Y. Comp.
Codes R. & Regs. tit. 22, §§ 1.1, 33.0, 80.1 (2011) (giving Chief Judge and Chief
Administrator the authority to assign judges to judicial terms and parts). Courts have
deemed such functions to be judicial in nature even though they are not directly related to a
particular case. See, e.g., Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985) ("Although
it is an 'administrative' act, in the sense that it does not concern the decision who shall win a

9

Other than causing an "unnecessary trip to another county," Koziol fails to explain how the
consolidation order harm ed him — m uch less how it violated his constitutional rights. Lead Com pl. ¶ 69.
- 20 -

case, the assignment of cases is still a judicial function in the sense that it directly concerns
the case-deciding process . . . ."), vacated on other grounds sub nom. Tyus v. Martinez, 475
U.S. 1138, 106 S. Ct. 1787 (1986); Zahl v. Kosovsky, No. 08 Civ. 8308, 2011 WL 779784, at
*9 (S.D.N.Y. Mar. 3, 2011) (alleged manipulation of the assignment system and failure to
recuse in light of a conflict of interest did not strip defendant justice of judicial immunity).
Accordingly, Judge Lippman is entitled to judicial immunity, and all claims against him will be
dismissed.
b. Judge Grow
Plaintiff makes numerous factual allegations against Judge Grow, who was the first
judge assigned to the divorce petition filed by plaintiff in 2005. Judge Grow rejected the
petition for lack of appropriate financial information. During the ensuing litigation Judge Grow
issued orders granting plaintiff's motion for divorce by default, establishing child support
amounts, issuing protective orders against Eisenhut and Hawse-Koziol, denying plaintiff's
petitions for visitation and expanded parenting time, and refusing to suspend support
payments. Further, Judge Grow allegedly issued a letter decision on matters beyond the
scope of Koziol's motion and, over his objection, signed a divorce decree bifurcating the
matter between Supreme Court (support issues) and Family Court (custody issues). Judge
Grow then allegedly engaged in an ex parte conversation with Judge Merrell and Eisenhut
regarding support issues, and failed to make a complete record of such conversation.
According to Koziol, after issuing a bench decision granting his ex-wife a money
judgment, Judge Grow walked off the bench and ignored his plea to address his pending
contempt petition. Thereafter, plaintiff asserts, Judge Grow erred in issuing an order that did
not act on several of his requests, thereby preventing an appeal of those matters. Further,
- 21 -

Judge Grow granted Hawse-Koziol's request for enforcement through the child support
collection unit allegedly denying plaintiff an opportunity to be heard on the matter. Finally,
plaintiff contends Judge Grow improperly refused to disqualify himself, and ignored ethical
issues involving Eisenhut.
All of the orders issued by Judge Grow were clearly judicial in nature and within his
jurisdiction as the Supreme Court judge assigned to Koziol's divorce proceeding. Therefore,
Judge Grow is entitled to judicial immunity. Even if Judge Grow acted improperly or in error,
or with malice or bad faith, his entitlement to judicial immunity remains. Nor do ex parte
conversations or actions taken in excess of authority by Judge Grow strip him of judicial
immunity. Accordingly, all claims against Judge Grow will be dismissed.
c. Judge Merrell
Plaintiff alleges that Judge Merrell was "improperly assigned" to hear a November 2006
petition regarding parenting issues. Lead Compl. ¶ 51. Thereafter, Judge Merrell allegedly
engaged in ex parte conversations and, without written decision, denied plaintiff's motion for
Thanksgiving visitation. According to Koziol, in November 2007 Judge Merrell improperly
appointed Koslosky as attorney for the children without first affording plaintiff an opportunity
to be heard. Judge Merrell recused himself in December 2007.
Plaintiff does not argue that Judge Merrell completely lacked jurisdiction. The allegation
that Judge Merrell was not properly assigned apparently relates to Judge Grow's bifurcation
order, which Koziol claims was improper. However, even if the order was improper, it was
reasonable for Judge Merrell to believe he had jurisdiction over a case to which he was
assigned. Judge Merrell's decisions regarding visitation adjustments and his appointment of
attorney Koslosky are judicial actions arising from the case before him. Even assuming
- 22 -

Judge Merrell's failure to issue a formal written decision was contrary to statutory
requirements, as plaintiff alleges, such error was made within the scope of a judicial function.
Accordingly, Judge Merrell is entitled to judicial immunity, and all claims against him will be
dismissed.
d. Support Magistrate Getman
Getman became involved in the Koziol divorce proceedings in November 2008.
Allegedly, Getman "vowed revenge" for plaintiff's filing of a federal claim against him, refused
to recuse himself, denied plaintiff's motion to dismiss the support petition, and recommended
Koziol be incarcerated for failure to pay child support. Member Compl. ¶ 79.
These decisions and rulings were well within Getman's judicial capacity, and, despite
claiming Getman occupied the "lowest tier of domestic relations processes in the State of
New York," plaintiff does not offer a cogent argument that jurisdiction was completely absent.
Lead Compl. ¶ 12. Even assuming Getman exceeded his authority and acted in bad faith or
with malice when he recommended incarceration, he is still entitled to immunity. Further,
Getman's refusal to recuse himself was not outside the scope of his judicial capacity. See
Bobrowsky v. Yonkers Courthouse, __ F. Supp. 2d __, No. 10-CV-1846, 2011 WL 1344590,
at *15 (S.D.N.Y. Apr. 8, 2011) ("[A] judge's decision to recuse (or not recuse) is also a judicial
act . . . ."). Accordingly, Getman is entitled to judicial immunity, and all claims against him will
be dismissed.
e. Judge Daley
Plaintiff maintains that Judge Daley "abused his position as a jurist by directing sheriff
deputies to investigate [his] girlfriend." Member Compl. ¶ 14. Plaintiff also faults Judge
Daley for failing to recuse himself as he had done in previous cases involving plaintiff.
- 23 -

Moreover, Judge Daley issued a "willful violation order," which eventually led to the
suspension of plaintiff's law license. Id. ¶ 91. Finally, according to Koziol, Judge Daley
improperly ordered all proceeds from the sale of plaintiff's house be held in escrow to cover
future child support payments.
Again, plaintiff fails to argue that Judge Daley completely lacked jurisdiction over the
divorce proceeding. Although plaintiff suggests Judge Daley, a Supreme Court judge, was
acting in a "hybrid capacity" when he presided over a teleconference as "Acting Family Court
Judge," he fails to explain how this stripped Judge Daley of jurisdiction. Lead Compl. ¶¶ 13,
85. Plaintiff alleges Judge Daley acknowledged confusion about his jurisdiction and capacity
to hear the matter. In the same paragraph, however, plaintiff notes that Judge Daley
presided over the hearing as the acting judge assigned to the case by a "designated order"
from Judge Lippman. Id. ¶ 85. Therefore, it cannot be said that Judge Daley acted in the
clear absence of all jurisdiction.
Plaintiff's allegations merely suggest Judge Daley abused his authority, failed to recuse
himself, and acted with malice toward plaintiff and his girlfriend. These actions are not
enough to overcome judicial immunity. Accordingly, all claims against Judge Daley will be
dismissed.
f. Judge Walsh-Hood
Judge Walsh-Hood presided over a four-day custody hearing in July 2009. According
to Koziol, she improperly denied his request to address outstanding issues before the
proceeding started and moved forward with the hearing despite her lack of familiarity with
numerous underlying issues. Plaintiff alleges that during the hearing she confined him to his
trial table, deprived him of his pen, prevented him from presenting complete testimony,
- 24 -

misstated facts, and wrongly ruled in Hawse-Koziol's favor on custody and visitation issues.
Also according to Koziol, Judge Walsh-Hood improperly required him to pay transcript fees
and issued a restraining order directing him to "stay away" from his ex-wife. Id. ¶ 98.
Plaintiff points out that Judge Walsh-Hood is a family court judge who was acting as
supreme court judge in Koziol's divorce proceeding. Any suggestion that Judge Walsh-Hood
was therefore acting in the complete absence of jurisdiction is unpersuasive as the practice
of appointing family court judges to acting supreme court roles is common and
constitutionally permissible in New York. See N.Y. Const. art. VI, § 26(f). Judge WalshHood was acting within her jurisdiction.
While the hearing before Judge Walsh-Hood was undoubtedly contentious and
emotionally-charged,10 the judge's rulings are shielded from scrutiny by absolute immunity.
See Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1218 (1967) ("It is a judge's duty to
decide all cases within [her] jurisdiction . . . including controversial cases that arouse the
most intense feelings in the litigants. [Her] errors may be corrected on appeal, but [she]
should not have to fear that unsatisfied litigants may hound [her] with litigation charging
malice or corruption."). Even assuming Judge Walsh-Hood showed malice toward plaintiff
and made procedural errors during the proceeding, she was acting within her jurisdiction and
capacity as the assigned judge. See Stump, 435 U.S. at 359, 98 S. Ct. at 1106 ("A judge is
absolutely immune from liability for [her] judicial acts even if [her] exercise of authority is
flawed by the commission of grave procedural errors."). Accordingly, all claims against
Judge Walsh-Hood will be dismissed.

10

Koziol took issue with "unwarranted, retaliatory and inflam m atory rem arks" m ade at the hearing
and left the courtroom before the proceeding ended "to avoid a contem pt ruling." Lead Com pl. ¶ 96.
- 25 -

g. Gasparini, Huether, and Crankshaw
The doctrine of quasi-judicial immunity extends absolute immunity to "certain others
who perform functions closely associated with the judicial process." Cleavinger v. Saxner,
474 U.S. 193, 200, 106 S. Ct. 496, 500 (1985). The Grievance Committee and its members
are considered an arm of the judiciary. See Anonymous v. Ass'n of the Bar of N.Y., 515 F.2d
427, 433 (2d Cir. 1975) (noting that disciplinary proceedings are judicial in nature and holding
that the state grievance committee acted "as a quasi-judicial body"); Thaler, 960 F. Supp. at
700 (holding that judicial immunity bars claims against the Grievance Committee and its
members). Therefore Gasparini, Huether, and Crankshaw are entitled to quasi-judicial
immunity for actions taken as members of the Grievance Committee.
The Grievance Committee first became involved after Koziol filed a show cause petition
with the Fourth Department in January 2008. The memorandum of law supporting this
petition "contained severe criticisms of the domestic relations processes in New York State"
as well as criticisms of Eisenhut. Lead Compl. ¶ 62. Gasparini authored a report charging
Koziol with misconduct for grievances unrelated to this petition and recommended that a
"Letter of Admonition" be filed. Plaintiff argues that Gasparini and Huether made false and
misleading statements to the ethics committee during the ensuing disciplinary proceedings.
In September 2008 Gasparini and Huether filed additional charges against Koziol related to
discrepancies in his responses to past inquiries. In July 2009 Gasparini and Crankshaw
opened a new investigation into plaintiff's unresolved child support delinquencies.11

11

This is the only factual allegation involving Crankshaw, who is not nam ed in the m em ber

com plaint.
- 26 -

Plaintiff does not argue that the Grievance Committee members acted in complete
absence of jurisdiction or without authority to investigate grievances lodged against him.
Indeed, attorneys and investigators employed by an ethical grievance committee are
expected to investigate reports of misconduct, issue reports, and recommend sanctions.
Plaintiff's main complaints are that Gasparini "exceeded her scope by concocting complaints"
against him, and Huether "fashioned" the disciplinary process to prevent him from practicing
law. Member Compl. ¶¶ 17-18. However, even if Gasparini, Huether, and Crankshaw acted
with malice, bad faith, error, or corruption, quasi-judicial immunity is not overcome.
Accordingly, all claims against Gasparini, Huether, and Crankshaw will be dismissed.
C. County Defendants
The County defendants move to dismiss on the grounds that the member complaint
fails to state a claim against the County under Monell and the individual defendants are
immune from suit. They also argue the abstention doctrine, Younger v. Harris, 401 U.S. 37,
43-45, 91 S. Ct. 746, 750-51 (1971), and the domestic relations exception to federal
jurisdiction, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12-13, 124 S. Ct. 2301,
2309 (2004), require dismissal of the complaint.
1. County of Oneida
The County asserts it is not liable under the theory of respondeat superior for the
conduct of individual County employees and that the complaint fails to allege § 1983 liability.
Monell, 436 U.S. at 690-91, 98 S. Ct. at 2035-36. Plaintiff contends the County is liable
because it relies upon revenues secured through unconstitutional policies and practices.
As explained above, "a municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a
- 27 -

respondeat superior theory." Monell, 436 U.S. at 691, 98 S. Ct. at 2036. A custom, policy, or
practice must be alleged.
The County is not a named defendant in the lead complaint and the only allegations
pertaining to it in the member complaint involve the search and seizure at plaintiff's home on
October 19, 2010. The complaint alleges "unknown state, county and town enforcement
officers trespassed upon the father's homestead on October 19, 2010 contrary to lawful
authority, seizing unspecified personal property under threat of arrest." Member Compl. ¶
163. Further, "[t]he invasion was designed to provoke a criminal act following the father's
civil rights filings against the county and town defendants on behalf of former clients which
had received publicity weeks earlier." Id. The complaint fails to allege any facts constituting
a municipal custom, policy, or practice as required in a § 1983 suit against a municipality. All
claims for money damages and prospective relief against the County will be dismissed. See
Humphries, 131 S. Ct. at 450.
2. Soldato and Chudyk
Soldato and Chudyk contend they are entitled to judicial immunity because Soldato is
an executive employee and Chudyk was functioning in the role of prosecutor when she filed
a petition against plaintiff. In the alternative, they argue for qualified immunity because they
were discharging their responsibilities under the child support enforcement system. Koziol
maintains they were not acting with traditional judicial character and are therefore not entitled
to judicial immunity. Further, he disputes the defense of qualified immunity because
parenting rights under the Constitution have long been established. Defendants contend
their actions involved child support, not parenting rights, and there is no constitutional right to
not financially support one's children.
- 28 -

Qualified immunity generally protects governmental officials from civil liability "insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738 (1982); Aiken v. Nixon, 236 F. Supp. 2d 211, 229-30 (N.D.N.Y. 2002) (McAvoy,
J.), aff'd, 80 F. App'x 146 (2d Cir. 2003). However, even if the constitutional privileges "are
so clearly defined that a reasonable public official would know that his actions might violate
those rights, qualified . . . immunity might still be available . . . if it was objectively reasonable
for the public official to believe that his acts did not violate those rights." Kaminsky v.
Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991). In determining whether qualified immunity
applies, a court may first consider whether "the facts alleged show the [defendant's] conduct
violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156
(2001), modified, Pearson v. Callahan, 555 U.S. 223, __, 129 S. Ct. 808, 818 (2009)
("[W]hile the sequence set forth [in Saucier] is often appropriate, it should no longer be
regarded as mandatory.").
The claims against Soldato and Chudyk stem from Judge Grow's June 12, 2008, order
regarding plaintiff's child support obligations. The complaint alleges Soldato exercised
enforcement authority over Koziol and his children and Chudyk filed an enforcement petition
on behalf of his ex-wife for support violations. He concludes the petition was "unauthorized,
fraudulent and stigmatizing." Lead Compl. ¶ 82.
During the time in question Soldato was acting as Commissioner of the Oneida County
Department of Social Services and Chudyk as County investigator for the child support
collection unit. They are not entitled to judicial immunity because their responsibilities are not
closely associated with the judicial process nor is their agency a quasi-judicial body.
- 29 -

However, they are entitled to qualified immunity. Koziol does not allege any acts by Soldato
except that she "directed and participated in enforcement actions over the father and his
children resulting in suspension of the father's driving privileges, livelihood and an unlawful
seizure of assets." Member Compl. ¶ 22. Chudyk filed the petition enforcing Judge Grow's
order, which she had authority to do, pursuant to the New York State Family Court Act. Her
conduct in filing and enforcing the petition did not violate any clearly established right. There
is no right to refuse to pay child support. Moreover, even if there was such a right and it was
clearly established, it was objectively reasonable for Soldato and Chudyk to believe that
carrying out their duties and enforcing the petition did not violate plaintiff's rights. Because
these defendants are entitled to qualified immunity, claims against them in their individual
capacities will be dismissed.
Any claims against Soldato and Chudyk in their official capacities must also be
dismissed. Official capacity suits are merely an alternative way to plead a claim against an
entity of which an officer is an employee. Graham, 473 U.S. at 165, 105 S. Ct. at 3105. "[A]
governmental entity is liable under § 1983 only when the entity itself is a 'moving force'
behind the deprivation." Id. at 166, 105 S. Ct. at 3105 (quoting Polk Cnty. v. Dodson, 454
U.S. 312, 326, 102 S. Ct. 445, 454 (1981)). In an official capacity suit against a municipal
employee, a plaintiff must show that the acts were performed pursuant to a policy or custom.
Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004).
Here, the suits against Soldato and Chudyk in their official capacities are essentially
actions against the County. Koziol did not allege that they performed any acts pursuant to a
policy or custom and therefore the official capacity claims against them will be dismissed.

- 30 -

There is no need to address the remaining arguments based on abstention or the domestic
relations exception.
D. Attorney Defendants
Koslosky and Eisenhut each move for summary judgment dismissing plaintiff's causes
of action based on §§ 1983, 1985, and 1986 as well as claims for defamation. Koslosky also
moves for summary judgment dismissing the state law legal malpractice claims against him.
All facts and inferences will be viewed in a light most favorable to plaintiff, the nonmovant, as
must be done on a motion for summary judgment. Unless otherwise noted, all material facts
are undisputed.
1. Federal Claims under § 1983
The attorney defendants argue all § 1983 claims must be dismissed because they did
not act under color of state law. Plaintiff contends Koslosky and Eisenhut were not acting as
lawyers in a proper judicial proceeding but instead as state actors terminating his fatherdaughter relationships under color of law. He notes that both attorney defendants are
licensed by New York and Koslosky was appointed by Oneida County Family Court as
attorney for his children. He also contends Eisenhut became a state actor by employing
improper tactics beyond the scope of his representation.
To maintain a claim under § 1983, the alleged deprivation must be committed by a
person acting under color of state law. 42 U.S.C. § 1983. "[Section] 1983 excludes from its
reach merely private conduct, no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 985 (1999) (internal quotation omitted). It is
well-settled that attorneys engaged in private practice do not act under color of state law
within the meaning of § 1983. See, e.g., Polk Cnty., 454 U.S. at 318, 102 S. Ct. at 450.
- 31 -

Further, although appointed by the state, an attorney for the children or law guardian is not a
state actor because he or she must exercise independent professional judgment on behalf of
the clients they represent. See Elmasri v. England, 111 F. Supp. 2d 212, 221 (E.D.N.Y.
2000) (finding that court appointed legal guardian in custody proceedings was not a state
actor, despite her appointment by a New York state court and the fact that she was paid by
state funds); Storck v. Suffolk Cnty. Dep't of Soc. Servs., 62 F. Supp. 2d 927, 941-42
(E.D.N.Y. 1999) (noting that guardians ad litem, although appointed by the court, exercise
independent professional judgment in the interests of the clients they represent and are
therefore not state actors for purposes of § 1983).
It is undisputed that the allegations against Koslosky relate to his actions taken while
attorney for plaintiff's children. Koslosky argues the only state-related conduct alleged is that
he filed petitions on behalf of the children including seeking a mental health evaluation of
plaintiff, supervised visitation, and to hold Koziol in criminal contempt. Based on these
actions, plaintiff asserts Koslosky participated in the state's institutional processes. However,
his appointment by the Oneida County Family Court and the delegation of duties to him in
accordance with that position, without more, does not transform his otherwise private role
into that of a state actor. Under these circumstances, no reasonable jury could find that
Koslosky acted under color of state law. Therefore, he cannot be liable under § 1983.
Likewise, Eisenhut served as a private attorney for plaintiff's ex-wife during the couple's
divorce proceedings. Based upon these undisputed facts, Eisenhut is entitled to judgment as
a matter of law that he was not a state actor for purposes of § 1983.

- 32 -

Accordingly, summary judgment as to all federal causes of action under § 1983 against
Koslosky and Eisenhut will be granted and those claims dismissed because they did not act
under color of state law.
2. Conspiracy Claims under § 1983
To the extent plaintiff alleges a conspiracy under § 1983 for any of the federal claims,
the attorney defendants argue there are no genuine issues of material fact and they are
entitled to judgment as a matter of law on these claims. Koziol maintains the attorney
defendants conspired with state actors, specifically judges, to deprive him of his
constitutional rights.
A private individual may be subject to § 1983 liability "if he or she willfully collaborated
with an official state actor in the deprivation of the federal right." Dwares v. City of New York,
985 F.2d 94, 98 (2d Cir. 1993). To succeed on a § 1983 conspiracy claim, a plaintiff must
prove: "(1) an agreement between a state actor and a private party; (2) to act in concert to
inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
damages." Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). Conclusory
allegations that a private person acted in concert with a state actor are insufficient to
maintain a conspiracy claim under § 1983. Id. at 325.
Koziol asserts the attorney defendants were co-conspirators in a scheme to impair his
relationships with his children. The complaint alleges the "defendant State and its agents"
and "defendants, acting individually and in concert with one another" deprived plaintiff of his
constitutional rights. Lead Compl. ¶¶ 102, 105, 109.
As to Koslosky, the complaint alleges he "advocated for his own personal and
pecuniary interests in a malicious effort to permanently separate the plaintiff children from
- 33 -

their natural father" while acting as attorney for the children. Id. ¶ 25. Koziol asserts that in
retaliation for the filing of pleadings in the lead case, Koslosky "surreptitiously and recklessly
sought to damage the father's reputation and childrearing capacities" during a teleconference
with an assigned judge. Id. ¶ 126. He contends Koslosky engaged in "limbo petitions" and
"dismissed Family Offense petitions which caused ten months of father-daughter
deprivations and a continuing level of punitive processes designed to keep the father in his
male dominated subservient class of parent." Koziol Aff., Dkt. No. 96, ¶ 17. He claims
Koslosky acted at odds with his "clients' best interests" and "personally asserted himself
outside of any rational state appointed position to retaliate for his inclusion as a defendant in
the Lead Case." Id. Plaintiff further alleges Koslosky "co-counseled with the state's
presumptively declared 'custodial parent' prior, during and after all disjointed proceedings."
Id.
Viewing the facts in a light most favorable to plaintiff, the nonmovant, he cannot
succeed on a § 1983 conspiracy claim against Koslosky. A § 1983 conspiracy cannot be
based on acts between Koslosky and plaintiff's ex-wife, both private actors. Koziol has not
offered any evidence suggesting an agreement or concerted action between Koslosky and
any state actor. The generalized allegations of complicity in his role as attorney for the
children are not enough to maintain a conspiracy claim against a private individual and
plaintiff has not come forward with specific facts showing there is a genuine issue for trial.
Therefore, all § 1983 conspiracy claims against Koslosky will be dismissed.
As to Eisenhut, the complaint alleges he "exploited unethical and unauthorized means
to transform [Hawse-Koziol] from a natural parent to a custodial agent of the state for
retaliatory and fee generating purposes." Lead Compl. ¶ 24. Koziol asserts Eisenhut used
- 34 -

his position to convince Hawse-Koziol that she was entitled to child support payments in
excess of the amount agreed upon between the parties and that he further utilized his seat
on the Grievance Committee to commit unethical and child damaging practices to extort legal
fees. Plaintiff also alleges Eisenhut conspired with Judges Grow and Merrell in an ex parte
conversation prior to oral argument in Supreme Court on a support issue. He contends
Eisenhut unlawfully engaged the Fourth Department and Grievance Committee into the
domestic relations process. The complaint alleges that six days after a show cause petition
was filed with the Fourth Department, the Grievance Committee opened an investigation
regarding plaintiff's professional background. Finally, he maintains Eisenhut was protected
because of his association with the bench and bar through ex parte interactions with named
judges and his appointed presence on the state's bar ethics committee.
As with the claims against Koslosky, plaintiff cannot establish a conspiracy under
§ 1983 between Eisenhut and Hawse-Koziol, both private actors. Eisenhut met his burden of
showing he is entitled to judgment as a matter of law on these claims because he is not a
state actor, and plaintiff has utterly failed to satisfy his burden in response. Koziol set forth
no facts suggesting concerted action between Eisenhut and any state actor to deprive him of
his civil rights. Eisenhut's ex parte conversation with Judges Grow and Merrell, without more,
is insufficient to establish his civil liability under § 1983. There is no evidence that an
agreement existed among these three individuals to inflict an unconstitutional injury on
Koziol, or that the ex parte conversation was done in furtherance of that goal. Other than
asserting Eisenhut served on the Grievance Committee and implying that he acted
improperly, plaintiff has put forth no facts supporting a conspiracy between Eisenhut and the
Grievance Committee or the Fourth Department. Accordingly, Eisenhut is entitled to
- 35 -

summary judgment on all § 1983 conspiracy claims and those claims will be dismissed. The
state law causes of action against these defendants are discussed below.
3. State Law Defamation Claims
Both complaints include defamation claims. The attorney defendants argue they are
entitled to summary judgment on these claims because they have absolute immunity for all
statements made by them pertinent to the litigation and communicated in the course of
judicial proceedings.
The elements of a defamation claim include: "(1) a false and defamatory statement of
fact, (2) regarding plaintiff, (3) the publication of the written or oral statements to a third party,
and (4) injury to the plaintiff." Ives v. Guilford Mills, Inc., 3 F. Supp. 2d 191, 199 (N.D.N.Y.
1998) (Kahn, J.) (citing Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir. 1993)). A
defamation cause of action must identify the statement, when it was made, and to whom it
was communicated. Ives, 3 F. Supp. 2d at 199.
In New York, "'in the context of a legal proceeding, statements by parties and their
attorneys are absolutely privileged if, by any view, or under any circumstances, they are
pertinent to the litigation.'" Lipin v. Nat'l Union Fire Ins. Co. of Pittsburgh, 202 F. Supp. 2d
126, 137 (S.D.N.Y. 2002) (quoting O'Brien v. Alexander, 898 F. Supp. 162, 171 (S.D.N.Y.
1995)). Whether a statement is pertinent is broadly construed and "'embraces anything that
may possibly or plausibly be relevant or pertinent, with the barest rationality, divorced from
any palpable or pragmatic degree of probability.'" Lipin, 202 F. Supp. 2d at 137 (quoting
O'Brien, 898 F. Supp. at 171).
In the lead case, Koziol asserts the attorney defendants "described and impugned to
the plaintiff father a character of an abusive person and parent in a malicious effort to cause
- 36 -

a predetermined outcome in 'custody' proceedings and severe damage to the career
interests of the father and his children." Lead Compl. ¶ 128. He contends on July 21, 2009,
his ex-wife's mother, Pauline Hawse, testified falsely during a custody hearing that he
assaulted his children in 2001. Id. ¶ 129. Following his "extreme reaction" to this testimony,
the witness openly recanted her "sworn testimony as the product of statements made to her
by the defendant Doe prior to trial." Id. Further, "[a]lthough the testimony was immediately
stricken, the defendant attorney conducted himself in a manner which demonstrated his
incompetence, prejudice and support of such statements that had never before been
alleged." Id. ¶ 130.
It is not clear whether "the defendant attorney" referenced in this cause of action is
Koslosky or Eisenhut. Koslosky served as attorney for the children in the underlying custody
proceedings and Eisenhut represented Hawse-Koziol in the divorce proceedings. The
defamation claim does not actually identify any statements made by either attorney
defendant. The only identified allegedly defamatory statements were those made by HawseKoziol's mother. These statements were not made or published by Koslosky nor Eisenhut.
Even if plaintiff could prove a defamation claim, the attorney defendants are immune
from liability because any statements made by them in the course of judicial proceedings are
absolutely privileged if they were pertinent to the litigation. The allegedly defamatory
statements were made during a custody hearing and related to plaintiff's competence as a
parent. Surely whether he was abusive to his children or previously assaulted them is
pertinent to a child custody determination. Because the attorney defendants are immune
from liability for the statements made by Pauline Hawse, and because the lead complaint

- 37 -

identifies no other statements, Koslosky and Eisenhut are entitled to summary judgment
dismissing this claim.
The defamation cause of action in the member case alleges "[c]ertain named
defendants have maliciously and recklessly published false and defamatory statements
concerning the plaintiff father to each other and to third parties in the community." Member
Compl. ¶ 173. Plaintiff has not set forth any facts identifying the statement, when it was
made, and to whom it was communicated. The attorney defendants have shown they are
entitled to judgment as a matter of law on this claim and Koziol has not come forward with
specific facts to withstand a motion for summary judgment. Accordingly, all defamation
claims against the attorney defendants will be dismissed.
4. State Law Legal Malpractice Claims—Koslosky
Plaintiff asserts a state law legal malpractice claim against Koslosky in both the lead
and member complaints. Koslosky argues he is entitled to summary judgment dismissing
these claims because plaintiff lacks standing to assert the claims on behalf of his two infant
children. He further argues that even if Koziol had standing, the claims must be dismissed
because the children did not suffer any pecuniary damages.
Section 1201 of the New York Civil Practice Law and Rules governs who may
commence and maintain legal proceedings on behalf of infants. In the absence of a
guardian ad litem, a parent having "legal custody" may appear on behalf of an infant. N.Y.
C.P.L.R. § 1201 (McKinney 2011) ("Unless the court appoints a guardian ad litem, an infant
shall appear by the guardian of his property or, if there is no such guardian, by a parent
having legal custody . . . ."). Koslosky contends Hawse-Koziol is the custodial parent and
plaintiff only has visitation rights. Therefore, he argues, Koziol does not have "legal custody"
- 38 -

within the meaning of Section 1201 and cannot assert a malpractice claim on the children's
behalf. In support of this, he cites a Third Circuit Court of Appeals case noting that "[n]o New
York case appears to find legal custody in a divorced parent who does not have a custody
order from a court." Bagot v. Ashcroft, 398 F.3d 252, 263 (3d Cir. 2005). It need not be
determined whether plaintiff, who does not have physical custody of his children, has
standing because no reasonable jury could return a verdict for Koziol on the legal malpractice
claims.
To succeed on a legal malpractice claim, a plaintiff must show "that the defendant
attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed
by a member of the legal profession which results in actual damages to a plaintiff." AmBase
Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434 (2007). "A cause of action for legal
malpractice does not afford recovery for any item of damages other than pecuniary loss so
there can be no recovery for emotional or psychological injury." Wolkstein v. Morgenstern,
275 A.D.2d 635, 637 (N.Y. App. Div. 1st Dep't 2000). However, a plaintiff does not need to
show actual damages were sustained and "is required only to allege facts from which actual
damages could reasonably be inferred." Garnett v. Fox, Horan & Camerini, LLP, 82 A.D.3d
435, 436 (N.Y. App. Div. 1st Dep't 2011).
The lead complaint alleges Koslosky failed to "preserve the pre-existing parent-child
relationship" and made unsubstantiated allegations "designed to permanently sever the
children from their father while simultaneously destroying their infant reputation in the
process." Lead Compl. ¶¶ 125-26. The member complaint includes almost identical
allegations and states "Koslosky continued to demonstrate his malice and child injury by filing
a frivolous complaint with defendant Hood in February, 2010 seeking contempt and
- 39 -

incarceration of the father on false pretenses." Member Compl. ¶ 172. There are absolutely
no facts that Koziol's children sustained any pecuniary damages. Instead, he asserts they
suffered emotional distress and pain and suffering which are not recoverable. Based on the
undisputed facts demonstrating a lack of actual damages, Koslosky is entitled to judgment as
a matter of law dismissing the malpractice claims.
5. Remaining State Law Claims
The attorney defendants have not moved for dismissal of the remaining state law
claims. Because all federal claims against them will be dismissed, supplemental jurisdiction
over the remaining state law claims will be declined. See 28 U.S.C. § 1367(c)(3) (2006).
E. Other Issues
1. Sebelius
Although Sebelius did not file a timely motion to dismiss, the claims against her must be
dismissed on two separate grounds.
Initially, it is not clear that plaintiff brings a claim under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971). Nonetheless,
even liberally construing the complaints to find a Bivens claim against Sebelius, such claim
fails as plaintiff cannot establish her personal involvement. Indeed, "[b]ecause the doctrine
of respondeat superior does not apply in Bivens actions, a plaintiff must allege that the
individual defendant was personally involved in the constitutional violation." Thomas v.
Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006); see also Tavarez v. Reno, 54 F.3d 109, 110 (2d
Cir. 1995) ("[F]ederal courts typically analogize claims under § 1983 with Bivens actions.").
The only allegation against Sebelius is that "she has charge over the administration and
enforcement of Title IV-D of the Social Security Act." Lead Compl. ¶ 18; Member Compl.
- 40 -

¶ 19. This is insufficient to establish personal involvement. Plaintiff fails to allege any
actions taken by Sebelius, much less how her actions violated his constitutional rights.
Instead, he seeks to hold Sebelius liable under the doctrine of respondeat superior which, as
noted above, he cannot do.
Sebelius is also entitled to statutory immunity to the extent plaintiff seeks to hold her
liable for the enforcement of Title IV-D provisions. See 42 U.S.C. § 652(k)(3) (2006) ("The
Secretary . . . shall not be liable to an individual for any action with respect to a certification
by a State agency under this section."). Accordingly, all claims against Sebelius will be
dismissed.
2. Hawse-Koziol
No motions have been made on behalf of Hawse-Koziol. To the extent plaintiff asserts
§ 1983 claims against her, these claims must be dismissed because she is not a state actor.
There are insufficient allegations that she conspired with state actors and thus the complaint
fails to tie her to a § 1983 conspiracy. Finally, because all federal claims against her will be
dismissed, supplemental jurisdiction over the remaining state law causes of action will be
declined. See 28 U.S.C. § 1367(c)(3).

3. Costello, Kiehle, and Kerr
Costello and Kiehle have not appeared and no motions have been made on their
behalf. As discussed above, a motion to dismiss was made on behalf of Kerr based on lack
of personal involvement. The only facts pertaining to these defendants are in the member
complaint. That complaint alleges Kerr and Costello "directed and participated in an unlawful
seizure of assets from the father's homestead on October 19, 2010." Member Compl. ¶¶ 28- 41 -

29. Additionally, "Charlotte Kiehle and unknown enforcement agents . . . are persons who
invaded plaintiffs' homestead October 19, 2010. As relevant to this Complaint, they acted in
violation of their own warrant, levy, and operative court order, all in further retaliation for the
father's exercise of protected constitutional rights." Id. ¶ 31. The only causes of action
implicating these defendants are a claim for search and seizure in violation of the Fourth
Amendment and a state law trespass claim. Both stem from the October 19, 2010, seizure
at Koziol's home.
The Fourth Amendment, applicable to New York by way of the Fourteenth Amendment,
protects the "right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const. amend. IV. The only allegation
of wrongdoing by these defendants is that they went to the wrong address "in further violation
of the August, 2010 order of Supreme Court Judge Daley" and "completed the trespass and
seizure in a manner designed to provoke additional outrage, arrest without cause, and
remote residential relocation." Member Compl. ¶ 109. Plaintiff has not provided any factual
allegations that could support a plausible claim under the Fourth Amendment. There are no
facts describing what the defendants did to "provoke additional outrage, arrest without cause,
[or] remote residential relocation." Id. These allegations do nothing more than infer "the
mere possibility of misconduct" and are insufficient to survive a motion to dismiss. See Iqbal,
129 S. Ct. at 1950.
Accordingly, the Fourth Amendment cause of action will be dismissed. Because the
federal claims against Costello, Kiehle, and Kerr will be dismissed, supplemental jurisdiction
over the remaining state law trespass claim will be declined. See 28 U.S.C. § 1367(c)(3).

- 42 -

4. Remaining State Law Claims
To the extent any state law claims remain against any defendants, supplemental
jurisdiction will be declined pursuant to 28 U.S.C. § 1367(c)(3) and any such claims will be
dismissed without prejudice.
5. Plaintiff's Cross-Motions
Given the resolution of defendants' motions, plaintiff's cross-motions are denied as
moot.
V. CONCLUSION
Koziol's federal constitutional claims against New Hartford and the County fail because
there are no allegations of and no factual support for the existence of a municipal custom,
policy, or practice. Plaintiff's conspiracy claim under § 1985 will be dismissed because he is
not a member of a class covered by that section. Consequently, his § 1986 claim will also be
dismissed. Koziol's state law trespass claim will be dismissed because he failed to meet the
statutory prerequisite of filing a notice of claim.
New York, UCS, Third Department, Fourth Department, and Grievance Committee are
entitled to Eleventh Amendment immunity, and all claims against them will be dismissed. All
claims for monetary damages against the individual State defendants in their official
capacities will also be dismissed. The judicial defendants are entitled to judicial immunity,
and all claims against them for monetary and injunctive relief will be dismissed. Swarts,
King, and Sebelius will be dismissed for lack of personal involvement.
Soldato and Chudyk are entitled to qualified immunity and all claims against them in
their individual capacities will be dismissed. Further, all claims in their official capacities will

- 43 -

be dismissed because Koziol failed to allege that they performed any acts pursuant to a
policy or custom.
Plaintiff's federal constitutional claims against Koslosky and Eisenhut fail because they
are not state actors and there are no facts suggesting they conspired with state actors. The
attorney defendants are entitled to summary judgment on the state law defamation claims
because plaintiff failed to present evidence establishing that either attorney actually made the
allegedly defamatory statements. Further, the attorney defendants have immunity for
statements made in the course of judicial proceedings. Koziol's state law legal malpractice
claim against Koslosky will also be dismissed because no facts were adduced that his
children suffered any pecuniary damages.
Plaintiff's ex-wife, Hawse-Koziol, is not a state actor and did not conspire with state
actors so she cannot be held liable under § 1983. Koziol's Fourth Amendment search and
seizure claim against Costello, Kiehle, and Kerr also fails because he did not allege sufficient
facts to survive a motion to dismiss.
Finally, jurisdiction over all remaining state law claims will be declined.
Accordingly, it is
ORDERED that
1. All of the defendants' motions to dismiss are GRANTED;
2. All of the defendants' motions for summary judgment are GRANTED;
3. All claims pursuant to 42 U.S.C. §§ 1983, 1985, 1986 are DISMISSED;
4. The state law trespass claim against the Town of New Hartford is DISMISSED;
5. The state law defamation claims against William Koslosky and Keith Eisenhut are
DISMISSED;
- 44 -

6. The state law legal malpractice claims against William Koslosky are DISMISSED;
7. Any remaining state law claims are DISMISSED without prejudice;
8. All of plaintiff's cross-motions are DENIED; and
9. The lead and member complaints are DISMISSED in their entirety.
The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED.

Dated: May 24, 2011
Utica, New York.

- 45 -