Rissetto et al v. County of Clinton et al

Filing 127

MEMORANDUM-DECISION & ORDER: It is Ordered that the # 87 Motion to Amend/Correct and the # 119 Motion leave to Amend the Complaint are GRANTED. It is Ordered that, within five (5) days of the date of entry of this Memorandum-Decision and Order, p laintiffs must file an amended complaint that reflects the changes allowed by this Memorandum-Decision and Order insofar as this Court has permitted removal of the County Defendants, addition of the BOCES defendants to certain causes of action, and a ddition of the New York Civil Service Law §75-b claim, but makes no additional changes to the proposed amended complaint filed at Dkt. No. 87. It is Ordered that once plaintiffs file the updated amended complaint, the Clerk of the Court is direc ted to create a new docket entry for the amended complaint. It is further Ordered that once plaintiffs have filed the updated amended complaint, defendants must respond to the amended complaint, within the time frame set forth within the Federal Rules of Civil Procedure. Signed by Magistrate Judge Christian F. Hummel on 9/27/2017. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

PAUL J. RISSETTO, RACHEL M.
RISETTO,
Plaintiffs,

No. 8:15-CV-720
(CFH)

v.

CLINTON ESSEX WARREN WASHINGTON
BOARD OF COOPERATIVE EDUCATIONAL
SERVICES, et al.,
Defendants.
APPEARANCES:

OF COUNSEL:

The Steele Law Firm PC
949 County Route 53
Oswego, New York 13126
Attorneys for Plaintiffs

KIMBERLY A. STEELE, ESQ.

Burke Scolamiero Law Firm
7 Washington Square
Albany, New York 12205

JUDITH B. AUMAND, ESQ.
THOMAS J. MORTATI, ESQ.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION & ORDER1
I. Background
Presently pending before the Court is plaintiffs’ Motion to Amend the Verified

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Pursuant to 28 U .S.C. § 636(c), FED. R. CIV. P. 73, and N.D.N.Y.L.R. 72.2(b), the parties have
consented to disposition of this matter by a Magistrate Judge. Dkt. No. 106.

Complaint. Dkt. No. 87, 119. 2 Defendants Clamser, Clinton Essex Warren Washington
Board of Cooperative Educational Services (“BOCES”), Mark Davey, and Teresa
Calabrese Gray (collectively “defendants” or “BOCES defendants” where appropriate)
opposed. Dkt. No. 92. Plaintiffs filed a Reply. Dkt. No. 93. For the reasons that
follow, plaintiffs’ motion is granted.

II. Legal Standard
The Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) provide that courts
"should freely give leave" to amend a complaint "when justice so requires." FED. R. CIV.
P. 15(a)(2). The Second Circuit has stated that "[t]his permissive standard is consistent
with our strong preference for resolving disputes on the merits." Williams v. Citigroup
Inc., 659 F. 3d 208, 212-13 (2d Cir. 2011) (citation om itted). Leave to amend should be
given "absent evidence of undue delay, bad faith or dilatory motive on the part of the
movant, undue prejudice to the opposing party, or futility." Monahan v. N.Y.C. Dep't of
Corr., 214 F.3d 275, 283 (2d Cir. 2000). However, motions to amend "should generally
be denied in instances of futility, undue delay, bad faith or dilatory motive, repeated
failure to cure deficiencies by amendments previously allowed, or undue prejudice to
the non-moving party." Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d
Cir. 2008); Monahan, 214 F.3d at 283. An am endment is futile if the proposed claim
could not survive a motion to dismiss pursuant to Rule 12(b)(6) of the Fed. R. Civ. P..

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Following a conference with all parties in attendance, plaintiff submitted dkt. no. 119, to clarify
the remaining defendants and claims still pending in the Motion to Amend following plaintiff’s settlement
with the County defendants and those claims previously dismissed by the Court. See Text Min. Entry
Dated July 20, 2017; Dkt. No. 119. The County defendants have been terminated from this action by
reason of settlement. Id. at 1; Dkt. No. 109.

Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citing Dougherty
v. N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)); see also
Malesko v. Corr. Serv. Corp., 229 F.3d 374, 382-84 (2d Cir. 2000), rev'd on other
grounds, 534 U.S. 61 (2001) (holding that a proposed amended complaint seeking to
assert claims barred by the statute of limitations is futile and must be denied). The
decision to grant or deny a motion to amend is committed to the sound discretion of the
trial court and is not subject to review on appeal except for abuse of discretion. Nettis
v. Levitt, 241 F.3d 186, 192 (2d Cir. 2001).
“‘The nonmovant has the burden of showing that the proposed amendment
would be futile.’” Zink v. First Niagara Bank, N.A., 13-CV-1076-A, 2015 W L 423221, at
*2 (W.D.N.Y. Feb. 2, 2015) (quoting Youngbloods v. BMG Music, 07 Civ. 2394
(GBD/KNF), 2011 WL 43510, at *9 (S.D.N.Y. Jan. 6, 2011). “‘If a proposed amendment
is not clearly futile, then denial of leave to amend is improper.’” Id. (quoting Wright,
Miller, Kane, et. al., Federal Practice & Procedure (Civil) § 1487 (3d ed. 2014)).

III. Discussion
Plaintiffs seek to amend their complaint to reflect their settlement with the County
defendants and dismissal by the Court of certain claims in the original complaint by
removing the causes of action that have been dismissed by this Court, removing from
the County defendants from the claims that remain, and adding the BOCES defendants
to certain claims. See generally Dkt. Nos. 87-1; 119. Specifically, as to the claims that
remain following this Court’s August 29, 2016 Decision and Order (Dkt. No. 59),
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plaintiffs seek to (1) add the BOCES defendants to their claim for retaliation for intimate
association pursuant to 42 U.S.C. § 1983 on behalf of plaintiff Rachel M. Rissetto,
(2) remove County defendants from plaintiff Paul J. Rissetto’s claim pursuant to 42
U.S.C. § 1983, (3) add BOCES defendants to their claim for defamation on behalf of
Paul. J. Rissetto, (4) remove County defendants from their claim for tortious
interference with contract on behalf of Rachel M. Rissetto, (5) remove County
defendants from their claim for loss of consortium on behalf of Paul J. Rissetto;
(6) remove County defendants from their claim for loss of consortium on behalf of
Rachel M. Rissetto; and (7) reasonable attorneys fees and costs on behalf of both
plaintiffs. Dkt. No. 87, 119. 3 Further, plaintiffs seek to add a new claim for retaliation
pursuant to New York Civil Service Law § 75-b on behalf of Rachel M. Rissetto.4

A. Rule 8
In two cursory paragraphs, without providing any additional argument or support,
defendants ask this Court to deny plaintiffs’ motion to amend due to their apparent
disregard of Rule 8 of the Fed. R. Civ. P. Dkt. No. 92 at 6-7. Although plaintiffs’
proposed amended complaint is still significantly lengthy and “‘a model of neither clarity
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Defendants provide that they “are not opposing any request to amend the Complaint which
merely seeks to remove causes of action or claims that were previously dismissed by this Court’s
Decision and Order in response to the various motions to dismiss, to remove the ‘Sheriff’s Department of
the County of Clinton’ from the caption and complaint as a named defendant, or to correct the plaintiffs’
addresses as referenced in paragraphs 1-7 of the proposed Amended Complaint.” Dkt. No. 92 at 6.
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Defendants provide that they “are not opposing any request to amend the Complaint which
merely seeks to remove causes of action or claims that were previously dismissed by this Court’s
Decision and Order in response to the various motions to dismiss, to remove the ‘Sheriff’s Department of
the County of Clinton’ from the caption and complaint as a named defendant, or to correct the plaintiffs’
addresses as referenced in paragraphs 1-7 of the proposed Amended Complaint.” Dkt. No. 92 at 6.

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nor brevity,’” defendants have not shown that they are unable to respond or that it does
not provide them with notice of the claims against them. See Dkt. No. 59 at 45 (citing
Wydner v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004). Thus, the Court declines to deny
the motion on this ground.

B. New York Civil Service § 75-b
Defendants contend that plaintiff Rachel Rissetto’s claim for retaliation under the
New York Civil Service Law § 75-b is futile because it is barred by the General
Municipal Law. Dkt. Nos. 92. Plaintiff argues that “no notice of claim, pursuant to
General Municipal Law §§ 50-e, i, is required for a Civil Service Law § 75-b [claim] . . .
so Plaintiff Paul J. Rissetto’s Civil Service Law claim cannot be deemed futile on this
ground.” Dkt. No. 93 at 11. 5
A claim is “futile,” in the context of Rule 15, if it “‘could not withstand a motion to
dismiss under Rule 12(b).’” Crosby v. New York State Office for People with
Developmental Disabilities, No. 14-CV-656A(F), 2015 W L 5542517, at *6 (W.D.N.Y.
Sept. 18, 2015) (quoting Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,
282 F.3d 83, 88 (2d Cir. 2002)). In Castro v. City of New York, 141 A.D.3d 456, 36
N.Y.S. 3d 113 (N.Y. App. Div. 2016), cited by plaintiffs, the New York State Supreme
Court, Appellate Division, First Department held that a notice of claim is not required for
a Civil Service Law § 75-b claim as “§ 75-b claims are not tort actions under [General

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Defendants do not address the argument that § 75-b claims are excluded from the notice of
claim requirements in their Sur-reply. See generally Dkt. No. 97-3.

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Municipal Law] section 50-e and are not personal injury, wrongful death, or damage to
personal property claims under section 50-i, and there is no reason to encum ber the
filing of a retaliatory termination claim.” Id. at 458 (citing Margerum v. City of Buffalo, 24
N.Y.3d 731 (N.Y. 2015)). The Court agrees that New York State precedent directs that
a notice of claim is not required for a Civil Service Law § 75-b claim. Thus, the Court
does not find futility on this ground.
As the defendants raise no other arguments as to futility and do not argue that
the Motion to Amend is untimely,6 filed in bad faith or with dilatory motive on the part of
the movant, or would cause them undue prejudice, and have not shown – nor has the
Court found – any reason as to why the proposed amended complaint should be
denied, the Court grants plaintiffs’ Motion to Amend the complaint. See, e.g., Gesualdi
v. Baywood Concrete Corp, 11-CV-4080 (DRH/AKT), 2014 WL 4659265, at *3
(E.D.N.Y. Sept. 17, 2014) (“ . . . [the defendant] does not argue that the proposed
amendment would cause undue prejudice. Therefore, it need be determined only
whether Plaintiff's proposed amendment is futile.”).

IV. Conclusion
WHEREFORE, for the reasons stated herein, it is HEREBY
ORDERED, that plaintiffs’ Motion to Amend the Verified Complaint (Dkt. Nos. 87, 119)
is GRANTED; and it is further

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Apart from their timeliness argument as it relates to the Notice of Claim and New York State
General Municipal Law issue, the Court can discern no other timeliness argument. See generally Dkt. No.
92.

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ORDERED, that, within five (5) days of the date of entry of this MemorandumDecision and Order, plaintiffs must file an amended complaint that reflects the changes
allowed by this Memorandum-Decision and Order insofar as this Court has permitted
removal of the County Defendants, addition of the BOCES defendants to certain
causes of action, and addition of the New York Civil Service Law §75-b claim, but
makes no additional changes to the proposed amended complaint filed at Dkt. No. 87;
and it is further
ORDERED, that, once plaintiffs file the updated amended complaint, the Clerk of
the Court is directed to create a new docket entry for the amended complaint; and it is
further
ORDERED, that, once plaintiffs have filed the updated amended complaint,
defendants must respond to the amended complaint, within the time frame set forth
within the Federal Rules of Civil Procedure; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision on Order on
the parties.
IT IS SO ORDERED.
Dated: September 27, 2017
Albany, New York

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