Johnson v. White et al
Filing
71
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 32 Motion in Limine; granting in part and denying in part 54 Motion in Limine: The Court hereby ORDERS that Defendants' motions in limine are GRANTED in part and DENIED in part as set forth herein; and the Court further ORDERS that Plaintiff's motions in limine are GRANTED in part and DENIED in partas set forth herein; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 10/23/15. [copy mailed to plaintiff 10/23/15] (ban, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHNATHAN JOHNSON,
Plaintiff,
vs.
9:14-cv-00715
(MAD/DJS)
BRANDI WHITE, Grievance Supervisor, Upstate
Correctional Facility; SCOTT WOODWARD, Grievance
Supervisor, Upstate Correctional Facility; SANDRA
DANFORTH, Deputy Superintendent of Upstate Correctional
Facility; ANTHONY ANNUCCI, Acting Commissioner, Upstate
Correctional Facility; NANCY SMITH, Nurse, Upstate
Correctional Facility; DAVID ROCK, Prison Former
Superintendent, Upstate Correctional Facility; MAUREEN
SIENKO, Optometrist Upstate Correctional Facility;
MARTHA STURGEN, Nurse Administrator, Upstate
Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
COUCH, WHITE LAW FIRM
540 Broadway
P.O. Box 22222
Albany, New York 12201-2222
Attorneys for Plaintiff
PATRICK J. HIGGINS, ESQ.
STEPHEN D. ROSEMARINO, ESQ.
NEW YORK STATE ATTORNEY
GENERAL - BUFFALO
Main Place Tower
350 Main Street
Suite 300A
Buffalo, New York 14202
Attorneys for Defendants
STEPHANIE J. CALHOUN, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Johnathan Johnson, an inmate in the custody of the New York State Department
of Corrections and Community Supervision ("DOCCS"), commenced this action against nine
defendants pursuant to 42 U.S.C. § 1983 claiming that his constitutional rights were violated
while he was incarcerated at Upstate Correctional Facility ("Upstate C.F."). See Dkt. No. 5.
Plaintiff claims that Defendants, who were all employees of Upstate C.F. during the relevant time
period, were deliberately indifferent to a serious medical condition that substantially impaired his
daily activities and that he was denied access to the inmate grievance procedure. See id.
Currently before the Court are the parties' motions in limine.
II. BACKGROUND
Plaintiff commenced this action on December 26, 2013 in New York State Supreme
Court, Franklin County. See Dkt. No. 5. Defendants removed the action from state court on June
13, 2014 and paid the statutory filing fee.1 Dkt. No. 1. Magistrate Judge Treece issued a
Mandatory Pretrial Discovery and Scheduling Order on June 18, 2014, which set the discovery
deadline as December 18, 2014 and the dispositive motion deadline as February 18, 2015. Dkt.
No. 3. On March 20, 2015 this Court denied Defendants' letter motion for an extension, nunc pro
tunc, of the dispositive motion deadline. Dkt. Nos. 23, 26. Plaintiff was appointed pro bono
counsel Patrick J. Higgins on March 26, 2015. Dkt. No. 28. On September 2, 2015 Mr. Higgins
disclosed to Defendants the identity and report of Plaintiff's intended expert witness, Dr. Richard
S. Witlin. Dkt. No. 64 at 2. This Court conducted a final pre-trial conference on October 20,
2015 and discussed the issues presented in their motions in limine.
After several subsequent filings, see Dkt. Nos. 4, 9, 10, 19, 20, this Court settled the
removal and remand issue in favor of the federal court retaining jurisdiction on February 4, 2015,
Dkt. No. 21.
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The conduct giving rise to the instant action surrounds a period of time from August 8,
2013 through January 9, 2014, during which Plaintiff alleges he was denied his prescription
eyeglasses. Dkt. No. 5; Dkt. No. 45 at 2. Plaintiff was examined by optometrist Defendant
Maureen Sienko on August 8, 2013. Dkt. No. 51 at 2. Defendant Sienko determined that
Plaintiff was nearsighted and ordered him a pair of new eyeglasses because his previous pair had
been broken. Id. After a period of approximately 145 days – during which Defendants claim that
Plaintiff was unavailable for several optometry appointments and Plaintiff claims that Defendants
failed to provide him with his glasses despite filing repeated grievances – Plaintiff received his
prescription eyeglasses. See generally Dkt. No. 5; Dkt. No. 51 at 2-3.
III. DISCUSSION
A.
Standard
The main purpose of a motion in limine is to allow the trial court to rule in advance of trial
on the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2
(1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude
evidence on a motion in limine only when the evidence is clearly inadmissible on all potential
grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94 Civ. 5220, 1998 WL 665138,
*3 (S.D.N.Y. Sept. 25, 1998). Courts considering a motion in limine may reserve decision until
trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co.
v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, the court is
"free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as
"the case unfolds, particularly if the actual testimony differs from what was contained in the
[movant's] proffer." Luce, 469 U.S. at 41–42.
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"While 'dismissing claims is not the prototypical purpose of a motion in limine,' such
motions have sometimes been addressed on the merits and have sometimes 'been construed as or
converted into motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or
motions for summary judgment under Rule 56." Great Earth Int'l Franchising Corp. v. Milks
Dev., 311 F. Supp. 2d 419, 424 (S.D.N.Y. 2004) (quoting Fouriner v. McCann Erickson, 242 F.
Supp. 2d 318, 334-35 (S.D.N.Y. 2003)). Such use of the motion in limine to dismiss claims
should be limited to circumstances when "undisputed facts of the case compel the conclusion that,
as a matter of law, [the other party] cannot satisfy the statutory criteria for [their claim]."
Fouriner, 242 F. Supp. 2d at 334. However, motions in limine that are merely "re-hashes of
arguments made in [] earlier summary judgment motion[s]" should be denied. Baxter
Diagnostics, 1998 WL 665138, at *10.
B.
Defendants' Motions
1. Preclude Plaintiff From Introducing Expert Testimony
"If a party fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially justified or is harmless." FED. R. CIV.
P. 37(c)(1). "Courts have held that preclusion under Rule 37(c)(1) is 'automatic absent a
determination of either substantial justification or harmlessness.' However, '[d]espite the
automatic nature of Rule 37(c)(1) . . . [p]reclusion of evidence is generally a disfavored action.'"
Engler v. MTD Products, Inc., 304 F.R.D. 349, 355 (N.D.N.Y. 2015) (internal quotations and
citations omitted). Before precluding evidence for a party's failure to properly disclose an expert
witness, the court must consider "(1) the party's explanation for the failure to comply with the
discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice
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suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4)
the possibility of a continuance." Softel, Inc. v. Dragon Med. & Sci. Commc'ns, Inc., 118 F.3d
955, 961 (2d Cir. 1997).
The Court ruled in the October 20 final pre-trial conference that Defendants' motion to
preclude Plaintiff from introducing expert testimony is denied. Mr. Higgins was not appointed
until well after the discovery deadline had passed. See Dkt. No. 28. Mr. Higgins gave notice to
Defendants' counsel disclosing the expert's identity and his report on September 2, 2015. During
this conversation, Mr. Higgins offered Defendants an opportunity to obtain their own expert
without objection, notwithstanding the expiration of the discovery deadline. Dkt. No. 64 at 6.
Defendants did not obtain their own expert despite having ample time to do so before the start of
trial on October 26. Thus, Plaintiff's retention of Dr. Witlin after the discovery deadline was both
justified and harmless and Defendants' motion to preclude Plaintiff's expert's testimony is denied.
2. Preclude Plaintiff from Testifying as an Expert Regarding His Injuries
A lay witness may not testify as to the underlying cause of a medical condition that is
beyond his or her personal knowledge. See Saari v. Merck & Co., Inc., 961 F. Supp. 387, 392
(N.D.N.Y. 1997) ("[W]here there are complex medical issues, in order for plaintiff to prove that
her alleged injuries were caused by defendants' products, she must introduce expert medical
testimony establishing causation."). However, a witness may testify as to individual symptoms
that he has experienced so long as he does not give a conclusion as to the underlying medical
cause of such condition. See Fane v. Zimmer, Inc., 927 F.2d 124, 131 (2d Cir. 1991) (quoting
Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 396 (1941)) ("[W]here the matters are within
the experience and observation of the ordinary jurymen from which they may draw their own
conclusions and the facts are of such a nature as to require no special knowledge or skill, the
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opinion of experts is unnecessary."). Since the Court has denied Defendants' motion to preclude
Plaintiff's expert and because this issue is best decided at the time of trial, the court will reserve
on this part of Defendants' motion.
3. Dismiss Certain Defendants for Lack of Personal Involvement
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the
complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode,
423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the
plaintiff of rights and privileges secured by the Constitution, but the actions or omissions
attributable to each defendant must be the proximate cause of the injuries and consequent
damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y.
1991) (citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied,
445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a
section 1983 action, he must establish a causal connection between the acts or omissions of each
defendant and any injury or damages he suffered as a result of those acts or omissions. See id.
(citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619
(1979)) (other citation omitted).
"It is well settled in [the Second Circuit] that personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon
v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994)). Therefore, a supervisory official may not be held liable solely on the ground that they
held a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (citation
omitted). However, supervisory personnel may satisfy the personal involvement requirement if
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(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of inmates by failing
to act on information indicating that unconstitutional acts were
occurring.
Colon, 58 F.3d at 873.2
"A plaintiff asserting a § 1983 claim against a supervisory official in his individual
capacity must allege that the supervisor was personally involved in the alleged constitutional
deprivation." Rivera v. Fischer, 655 F. Supp. 2d 235, 237 (W.D.N.Y. 2009). Merely writing a
single letter of complaint generally does not provide the personal involvement necessary to
maintain a section 1983 claim against an individual defendant. See id. at 238. However, if the
official "personally look[s] into the matters raised in the letter, or otherwise acts on the prisoner's
complaint or request, the official may be found to be personally involved." Id. (citing Sealey v.
Giltner, 116 F.3d 47, 51 (2d Cir. 1997)). Moreover, pro se allegations that a prisoner sent
multiple letters to a prison official, that the official was allegedly fully aware of a course of
unconstitutional conduct under his control, and that the official failed to act in response to such
letters should not be dismissed for failure to plausibly allege personal involvement. See Ferrer v.
Fischer, No. 9:13-CV-0031, 2014 WL 1763383, *2-3 (N.D.N.Y. May 1, 2014) (citing Grullon v.
City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013)).
The Court acknowledges the parties' discussion regarding the pleading standard for
supervisory liability under section 1983 as discussed in Colon and Ashcroft v. Iqbal, 566 U.S. 622
(2009). See Dkt. No. 32-1 at 8; Dkt. No. 64 at 9. However, the Court declines to decide if Iqbal
has heightened the requirements for showing a supervisory official's personal involvement as the
Second Circuit has not decided this issue, see e.g., Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d
Cir. 2013), and the outcome in the instant motion would be identical under each standard.
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a. Defendant Karen Bellamy
Plaintiff agreed to dismiss with prejudice Defendant Karen Bellamy from the case. Dkt.
No. 64 at 9 n.2. This withdrawal was discussed at the October 20 pre-trial conference and
Ordered by the Court.
b. Defendant Anthony Annucci
Defendant Annucci is the acting commissioner of Upstate C.F. Plaintiff contends that he
wrote a complaint letter to Defendant Annucci concerning his prescription glasses on December
5, 2013. Dkt. No. 5 at ¶ 16. Plaintiff contends that Defendant Annucci was personally involved
both by his receipt of this letter and his subsequent lack of action regarding the situation involved.
See Dkt. No. 64 at 10. Plaintiff relies on Grullon to argue that alleged receipt of a letter and
subsequent failure to act is sufficient personal involvement to withstand dismissal. Dkt. No. 64 at
10. The Second Circuit in Grullon held that the district court erred in dismissing, without leave to
amend, a pro se plaintiff's complaint for failure to sufficiently allege personal involvement.
Grullon, 720 F.3d at 139. However, the Second Circuit articulated that the complaint as pled,
which merely alleged the receipt of a single complaint letter by the warden, was insufficient to
plausibly allege the supervisor's personal involvement. Id.
Defendant Annucci was under no obligation to respond to Plaintiff's letter and it is well
settled that mere receipt of a single letter is insufficient to establish personal involvement. See
Rivera, 655 F. Supp. 2d at 238. Moreover, Plaintiff does not contend that Defendant Annucci
personally looked into the matter, passed the complaint on to any other individual, or was aware
of any unconstitutional course of conduct under his control. See Rivera, 655 F. Supp. 2d at 238;
Ferrer, 2014 WL 1763383, at *2-3; Dkt. No. 64 at 10. The Court is unpersuaded by Plaintiff's
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reliance on Grullon given the differing procedural postures and that granting leave to amend in
this case would be highly prejudicial due to the trial date being less than one week away. Further,
Plaintiff failed to provide any further allegations of Defendant Annucci's personal involvement in
his response to Defendants' motion. See Dkt. No. 64 at 10. Therefore, Defendants' motion to
dismiss the claims against Defendant Annucci for lack of personal involvement is granted.
c. Defendant David Rock
"[A] supervisor's mere denial of a grievance is insufficient to establish personal
involvement[.]" McClenton v. Menifee, No. 05 Civ. 2844, 2006 WL 2474872, *10 (S.D.N.Y.
Aug. 22, 2006). Plaintiff's only allegation against Defendant Rock is that he responded to
Plaintiff's grievance concerning his eyeglasses in a letter stating "an investigation by Maureen
Sienko and Martha Sturgen . . . and completed by chart review (sic) the Plaintiff's eyeglasses were
ordered at Wallkill Correctional Facility. And once they are received they will be scheduled to be
issued at the next optometry clinic." Dkt. No. 5 at ¶ 12. Plaintiff has not provided any additional
allegations of Defendant Rock's personal involvement in response to Defendants' motions. See
Dkt. No. 64. Thus, Defendants' motion to dismiss the claims against Defendant Rock for lack of
personal involvement is granted.
d. Defendant Nancy Smith
Plaintiff has not alleged that Defendant Smith had any personal involvement in the instant
case. There is no indication that Defendant Smith played any role in treating Plaintiff for the
condition underlying this case and her only connection to Plaintiff is that she is a Nurse at Upstate
C.F. Therefore, Defendants' motion to dismiss the claims against Defendant Smith for lack of
personal involvement is granted.
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e. Defendant Sandra Danforth
Plaintiff alleges that Defendant Danforth denied his encumbrance request for special
lenses. Dkt. No. 5 at ¶ 8. "Where a prison doctor denies medical treatment to an inmate, that
doctor is personally involved in the alleged constitutional violation." Price v. Reilly, 697 F. Supp.
2d 344, 365 (E.D.N.Y. 2010). Drawing all reasonable inferences in Plaintiff's favor, Defendant
Danforth's denial of Plaintiff's encumbrance request can be characterized as equivalent to denying
him access to his prescription glasses and, thus, is sufficient to allege her personal involvement.
Defendants' motion contends that Defendant Danforth's actions did not amount to a
deliberate indifference to Plaintiff's serious medical needs. Dkt. No. 32-1 at 9-10. This standard
requires showing that "the prison official knew of and disregarded the plaintiff's serious medical
needs." Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (quoting Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998)). Liberally construed, Plaintiff's complaint plausibly alleges
that Defendant Danforth knew of Plaintiff's condition and disregarded his need. See Fouriner v.
McCann Erickson, 242 F. Supp. 2d 318, 334-35 (S.D.N.Y. 2003) (discussing the standard for
treating a motion in limine as a motion to dismiss). Therefore, Defendants' motion to dismiss the
claims against Defendant Danforth is denied.
4. All Grievance Claims Should be Dismissed
"[T]here is no constitutional right of access to the established inmate grievance program."
Rhodes v. Hoy, No. 9:05-CV-836, 2007 WL 1343649, *6 (N.D.N.Y. May 5, 2007); see also Davis
v. Buffardi, No. 9:01-CV-0285, 2005 WL 1174088, *3 (N.D.N.Y. May 4, 2005) ("Participation in
an inmate grievance process is not a constitutionally protected right."). Plaintiff claims that he
was denied access to the grievance procedures of Upstate C.F. despite filing two grievances and
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one appeal during the relevant time period of this case. See Dkt. No. 5 at ¶ 10-15. As this is not a
cognizable claim, Defendants' motion to dismiss Plaintiff's denial of access to the grievance
program claims is granted.
5. Limiting Plaintiff's Damages
The Prisoner Litigation Reform Act provides that "[n]o Federal civil action may be
brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing of physical injury . . . ." 42
U.S.C. § 1997e(e). Defendants argue that Plaintiff is only entitled to nominal damages because
he cannot prove an actual injury due to his allegedly minor medical condition. Dkt. No. 32-1 at
12. However, the determination of actual injury is a factually specific question which should be
decided after Plaintiff has had an opportunity to present his case. See Dolberry v. Levine, 567 F.
Supp. 2d 413, 417-18 (W.D.N.Y. 2008) (collecting cases discussing the actual injury threshold).
Therefore, the Court denies Defendants' motion on this ground without prejudice. Defendants
may renew this motion at the close of Plaintiff's case.
C.
Plaintiff's Motions
During the October 20 pre-trial conference the Court discussed Plaintiff's motions and the
parties agreed to each of Plaintiff's motions in limine except for those numbered three (3) and four
(4). See Dkt. No. 64. The Defendants agreed not to introduce the following: (1) Plaintiff's felony
convictions dating back more than ten years pursuant to Federal Rule of Evidence 609(b); (2)
Plaintiff's disciplinary record during the entirety of his incarceration; (5) Plaintiff's history of
grievances and the facts underlying them; (6) court decisions, opinions, or orders that reference
Plaintiff's litigation or grievance history; (7) Plaintiff's designation as an alleged three strikes
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litigation filer; (8) any reference or evidence to his other litigation or claims against DOCCS; and
(9) any of Plaintiff's other arrests and related extrinsic evidence. Given this agreement, the Court
denies each of those motions as moot.
Plaintiff's third motion in limine seeks to exclude evidence of Plaintiff's sentence, time in
the Secure Housing Unit ("SHU"), reasons for being in SHU, parole status, and expected release
date. Dkt. No. 55 at 7. Plaintiff argues that this evidence is unfairly prejudicial to him under
Rule 404(a), (b) and Rule 403 of the Federal Rules of Evidence ("FRE"), and is not relevant or
probative to the instant action under Rule 401 and Rule 402. See id. The Court denies Plaintiff's
motion regarding his sentence, parole status, and expected release date as moot given Defendants'
agreements at the pre-trial conference not to introduce such testimony. The Court reserves
judgment on any testimony involving the SHU until the time of trial because, based upon the
parties' submissions, a ruling would be premature.
Plaintiff's fourth motion in limine seeks to exclude all 800 pages of Plaintiff's medical
records except for those concerning eye care from August 8, 2013 to January 9, 2014, and those
marked by Plaintiff as a trial exhibit. Id. at 8. Plaintiff argues that these records should be
excluded under FRE Rules 401, 402, and 403 because they are not relevant to Plaintiff's eye care
during the specified time, they involve collateral issues which hold no probable value, and
introduction of such information would needlessly lengthen the trial. See id. At the pre-trial
conference, Defendants agreed that they would not introduce the entire 800 pages of Plaintiff's
medical record. The Court reserves judgment on Plaintiff's motion on this ground and will rule
on individual medical records as they are produced at trial.
Plaintiff filed specific objections to certain portions of the transcript of Defendants' crossexamination of Dr. Witlin. See Dkt. No. 65. The Court has reviewed Plaintiff's objections and
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Dr. Witlin's transcript and hereby partially grants Plaintiff's first objection and denies his second.
Dr. Witlin's transcript is stricken from page3 60, line 22 through page 63, line 6. Dkt. No. 58 at
60-63. The transcript is allowed without modification on page 73, lines 13-25. Id. at 73.
Plaintiff's remaining objections to Defendants' witness and exhibit lists have been addressed by
the motions in limine. Dkt. No. 65 at 2-4.
IV. CONCLUSION
After carefully reviewing the parties' submissions and the applicable law, and for the
above-stated reasons, the Court hereby
ORDERS that Defendants' motions in limine are GRANTED in part and DENIED in
part as set forth herein; and the Court further
ORDERS that Plaintiff's motions in limine are GRANTED in part and DENIED in part
as set forth herein; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: October 23, 2015
Albany, New York
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The page numbers refer to the transcript numbering, not the Court's docket numbering
system.
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