Sofia v. Esposito et al
OPINION AND ORDER re: 31 MOTION to Dismiss Amended Complaint. filed by Adam M. Levy, Esq., Adam M. Levy, Esq., P.C., Adam M. Levy, P.C. For the reasons stated above, Defendant Levy's motion to dismiss is GRANTED with prejudice. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444- 45 (1962). The Court has previously granted Sofia permission to amend his claims against Esposito. (Dkt. #50). As the Court previously indicated, Sofia must file his amended pleadings as to Esposito, if it all, within 45 days of the issuance of this Opinion. Esposito will similarly be required to respond within 45 days of the filing, by Sofia, of any amended complaint. (As further set forth in this Order.) (Signed by Judge Katherine Polk Failla on 4/10/2018) Copies Mailed By Chambers. (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GARY ESPOSITO and ADAM M. LEVY,
DOC #: _________________
DATE FILED: April 10, 2018
17 Civ. 1829 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
In this case, a failing business relationship culminated in an assault by
one former business partner against another outside a courtroom in the United
States Bankruptcy Court for the Southern District of New York. Plaintiff
Robert Sofia, proceeding pro se, claims that Defendant Gary Esposito — Sofia’s
former business partner in a now-defunct business called Brooklyn Comics &
More, Inc. — physically and verbally assaulted him as they left United States
Bankruptcy Judge Stuart M. Bernstein’s courtroom after a hearing. Sofia
further alleges that Defendant Adam Levy, Esposito’s counsel at the
bankruptcy hearing on the day of the assault, failed to intervene as Esposito
spat on Sofia, struck him in the face, grabbed his coat, threw him to the floor,
and verbally assaulted him with a racial epithet.
Pending before the Court is Defendant Levy’s unopposed motion to
dismiss, which the Court grants for the reasons set forth below.
Factual Background 1
On February 23, 2016, Sofia and Esposito appeared before Judge
Bernstein for a bankruptcy hearing involving Brooklyn Comics & More, Inc.,
which Sofia and Esposito co-owned. (Am. Compl. 5). Levy served as Esposito’s
counsel at the hearing. (Id.). Sofia alleges that Levy “intentionally stated false
information in his applications to the Court in order to generate sympathy for
his client and to possibly be appointed by the Bankruptcy Trustee as a ‘special
prosecutor’ to enrich himself.” (Id.).
Sofia further alleges that as he, Esposito, and Levy were leaving the
courtroom at the conclusion of the hearing, Levy approached him to discuss
the possibility of an out-of-court settlement. (Am. Compl. 5). As Sofia
responded to Levy’s question, “Defendant Esposito sp[a]t on [him], hitting
[Sofia’s] face and glasses.” (Id.). Sofia claims that as he walked away,
“Esposito charged after [him], grabbed [his] coat (ripping the zipper), bearhugged [him] and threw [him] to the floor, called [him] a ‘nigger’[,] scratched
[his] head with [Esposito’s] fingernails removing skin and causing bleeding, and
threatened [his] life while stomping on [his] glasses.” (Id.).
The facts in this section are drawn from the Amended Complaint (“Am. Compl.”), filed
on September 29, 2017. (Dkt. #29). For the purpose of adjudicating the motion to
dismiss, the Court accepts as true the well-pleaded allegations in the Amended
Complaint. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (per
curiam). For ease of reference, the Court refers to Levy’s memorandum of law in
support of his motion to dismiss as “Levy Br.” (Dkt. #32). Because the Amended
Complaint does not have numbered paragraphs, the Court instead cites to the relevant
Though Levy was nearby, he “did nothing to intercede during the several
minutes” between when Esposito allegedly spat on Sofia and when Esposito
“started beating on” Sofia. (Am. Compl. 5). Sofia “later learned that another
attorney intervened by holding Esposito[,] which prevented him from being able
to stand up in order to increase the severity of the assault.” (Id.). The
altercation ended when “Federal Marshals arrived and took [ ] Esposito into
custody[.]” (Id.). Sofia “suffered various injuries, stress, anxiety[,] including
debilitating back pain that has only become worse [with] time as a direct result
of Esposito’s actions.” (Id.). Sofia “later learned that, somehow, Defendant
Levy persuaded the Marshals not to arrest Defendant Esposito and take him to
jail.” (Id.). Sofia concludes by asserting that, “[i]f Levy had not created false
documentation to help his client and had let justice prevail, [Sofia] would not
have been assaulted on that day.” (Id. at 6).
On March 10, 2017, Sofia filed a complaint against Esposito and Levy.
(Dkt. #2). On September 29, 2017, Sofia filed an Amended Complaint, seeking
monetary damages for pain and suffering, as well as a permanent protective
order against Esposito and an “official reprimand and other appropriate
measures” against Levy. (Am. Compl. 6).
On July 6, 2017, Defendant Levy filed a letter requesting a pre-motion
conference (Dkt. #9), which was held on August 9, 2017 (see Dkt. #12).
Following the pre-motion conference, the Court issued a scheduling order
requiring that Levy file his motion to dismiss by October 2, 2017, Sofia file his
opposition brief by November 17, 2017, and Levy file his reply by December 4,
2017. (Dkt. #15).
On October 16, 2017, Levy filed the pending motion to dismiss. (Dkt.
#31). On November 17, 2017, Sofia failed to file his opposition brief; instead,
he requested thirty additional days to oppose Levy’s motion, which request the
Court granted over Levy’s objection. (Dkt. #35). After Sofia failed to file an
opposition brief within the extended time period, the Court issued an Order to
Show Cause on December 28, 2017, directing Sofia to advise the Court in
writing why he had not responded to Levy’s motion to dismiss. (Dkt. #39).
On January 26, 2018, Sofia informed the Court that the delay in
opposing Levy’s motion was caused by unforeseen medical issues. (Dkt. #44).
On January 30, 2018, the Court held a teleconference with the parties, during
which it instructed Sofia to file his opposition no later than February 15, 2018.
(See Dkt. #43). On February 13, 2018, Sofia filed a letter advising the Court
that he would not oppose Levy’s motion to dismiss and that he had “no choice
[but] to withdraw Adam M. Levy as a Defendant from this particular case”; he
requested, however, that the Court “grant this request without prejudice.”
Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court should “draw all reasonable inferences in Plaintiff[’s]
favor, assume all well-pleaded factual allegations to be true, and determine
whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life
Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation
omitted). Thus, “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While this plausibility
requirement “is not akin to a probability requirement … it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation
marks omitted). Toward that end, a plaintiff must provide more than “an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
That said, pro se litigants are afforded a special solicitude: A court must
construe pro se submissions liberally “to raise the strongest arguments that
they suggest.” Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (internal
quotation marks and citation omitted). In this regard, a court may also
consider factual allegations made in a pro se litigant’s submissions opposing a
motion to dismiss. See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)
(“A district court deciding a motion to dismiss may consider factual allegations
made by a pro se party in his papers opposing the motion.”). And while a
plaintiff’s pleadings are typically limited to the complaint itself and any
documents “attached to it as an exhibit or any statements or documents
incorporated in it by reference[,]” Int’l Audiotext Network, Inc. v. Am. Tel. & Tel.
Co., 62 F.3d 69, 72 (2d Cir. 1995) (internal quotation marks and citation
omitted), a court may also consider documents submitted with a pro se
litigant’s moving papers, see Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987)
(upholding district court’s consideration of an affidavit filed by a pro se plaintiff
in opposition to a motion to dismiss).
Plaintiff Has Failed to State a Claim Against Defendant Levy
Sofia’s claim against Levy is grounded in the allegation that Levy pulled
Sofia aside to speak with him just before Esposito assaulted him, and that
during the assault, Levy “did nothing to stop [Esposito].” (Am. Compl. 2). Sofia
further alleges that Levy “intentionally stated false information in his
applications to the Court in order to generate sympathy for his client and to
possibly be appointed by the Bankruptcy Trustee as a ‘special prosecutor’ to
enrich himself.” (Id. at 5). In Sofia’s view, “[i]f Levy had not created false
documentation to help his client and had let justice prevail, [Sofia] would not
have been assaulted on that day.” (Id. at 6).
Though Sofia advances specific factual allegations against Levy, he does
not clearly connect these allegations to any legal claims or theories under
which relief might be granted. In Section A of the form complaint, Sofia asserts
that he “was the victim of a physical and verbal assault upon [him] … by
Defendant Gary D. Esposito while his attorney, Defendant Adam M. Levy, Esq.,
did nothing to stop his client.” (Am. Compl. 2). He also writes that he “later
learned that, somehow, Defendant Levy persuaded the Marshals not to arrest
Defendant Esposito[.]” (Id. at 5). Yet nowhere in the Amended Complaint does
Sofia articulate a specific cause of action against Levy.
Nevertheless, in light of Sofia’s pro se status, the Court construes his
allegations to “raise the strongest arguments that they suggest.” Cruz, 202
F.3d at 597 (internal quotation marks and citation omitted). Accordingly, the
Court reads the Amended Complaint as advancing two claims against Levy: a
conspiracy claim under 42 U.S.C. § 1985(3), and a negligence claim under New
York state law. The Court addresses each in turn.
Plaintiff’s Section 1985 Claim Fails
A conspiracy claim under Section 1985(3) contains four elements: “[i] a
conspiracy, [ii] for the purpose of depriving any person … of the equal
protection of the laws … , [iii] an act in furtherance of the conspiracy, and
[iv] whereby a person is injured in his person or property or deprived of a right
or privilege of a citizen.” Iqbal v. Hasty, 490 F.3d 143, 176 (2d Cir. 2007), rev’d
on other grounds by Aschroft v. Iqbal, 556 U.S. 662 (2009). To succeed, a
plaintiff must also show that there was “some racial, or perhaps otherwise
class-based, invidiously discriminatory animus behind the conspirators’
action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). A plaintiff “must
[further] provide some factual basis supporting a meeting of the minds, such as
that defendants entered into an agreement, express or tacit, to achieve the
unlawful end[,]” along with “some details of time and place and the alleged
effects of the conspiracy.” Romer v. Morgenthau, 119 F. Supp. 2d 346, 363
(S.D.N.Y. 2000) (internal quotation marks and citations omitted).
While the Court has, in light of Sofia’s pro se status, liberally construed
the Amended Complaint as stating a Section 1985(3) claim, the factual
allegations therein are insufficient to survive Levy’s motion to dismiss. To be
sure, Sofia has sufficiently alleged that he was injured and that the attack was
inspired by racial animus. He claims that, during the assault, Esposito called
him a “nigger” (Am. Compl. 5), and that as a result of the altercation, he
“[s]ustained cuts, scrapes, bleeding, physical and mental anguish” and is now
“afraid to enter a court building [for] fear of being attacked again” (id. at 6).
Yet Sofia has not set forth any factual basis to support a claim that Levy
and Esposito conspired to achieve the unlawful end. The only evidence
suggestive of any such conspiracy — that Levy pulled Sofia aside and
distracted him just before the assault and then failed to intervene — does little
more than establish “a sheer possibility that [Levy] has acted unlawfully.”
Iqbal, 556 U.S. at 678. Even if true, the fact that Levy distracted Sofia just
before Esposito attacked him does not create a plausible inference that Levy
and Esposito had entered into an agreement, the aim of which was to harm
Sofia. Where, as here, “a complaint pleads facts that are merely consistent
with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (internal quotation
marks and citation omitted). Without any factual allegations that support a
plausible claim that Levy conspired with Esposito, Sofia’s Section 1985(3) claim
against Levy cannot survive. See, e.g., Webb v. Goord, 340 F.3d 105, 111 (2d
Cir. 2003) (“The plaintiffs have not alleged, except in the most conclusory
fashion, that any … meeting of the minds occurred among any or all of the
defendants. Their conspiracy allegation must therefore fail.”).
Plaintiff’s Negligence Claim Fails
Under New York law, 2 a plaintiff must establish the following elements to
state a claim for negligence: “(i) a duty owed to the plaintiff by the defendant;
(ii) breach of that duty; and (iii) injury substantially caused by that breach.”
Pasternack v. Lab. Corp. of Am. Holdings, 807 F.3d 14, 19 (2d Cir. 2015)
(quoting Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir.
2002)). “The existence of a duty is thus a sine qua non of a negligence claim:
In the absence of a duty, as a matter of law, no liability can ensue.” Alfaro v.
Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000) (per curiam) (internal
quotation marks omitted) (quoting McCarthy v. Olin Corp., 119 F.3d 148, 156
(2d Cir. 1997)). “Although juries determine whether and to what extent a
particular duty was breached, it is for the courts first to determine whether any
duty exists.” Pasternack, 807 F.3d at 19 (quoting Darby v. Compagnie Nat’l Air
Fr., 96 N.Y.2d 343, 347 (2001)).
The parties do not dispute that New York law governs this action and have not
suggested that another jurisdiction’s law might apply. Accordingly, this Court need not
engage in a choice-of-law analysis. See, e.g., Arch Ins. Co. v. Precision Stone, Inc., 584
F.3d 33, 39 (2d Cir. 2009) (“The parties’ briefs assume that New York substantive law
governs the issues … presented here, and such implied consent is, of course, sufficient
to establish the applicable choice of law.” (internal quotation marks and citation
omitted)); see also Li & Fung (Trading) Ltd. v. Contemporary Streetwear, LLC, No. 11 Civ.
2022 (CM) (DCF), 2013 WL 3757080, at *5 n.4 (S.D.N.Y. June 6, 2013) (“Plaintiff’s
[submissions] are entirely silent on the issue of choice of law. Defendants are also
silent on the subject. Under the circumstances, it is appropriate for the Court to apply
New York law — the law of the forum state — to Plaintiff’s state-law claims.”). Even if
the Court were to engage in a choice-of-law analysis, it would find that New York law
applies. Under New York law, where a conflict exists between New York law and that of
another jurisdiction, the law of the jurisdiction with the greatest interest in adjudicating
the issues raised in the litigation governs. See, e.g., Babcock v. Jackson, 12 N.Y.2d 473,
480-83 (1963). Here, because the alleged assault took place in New York, Plaintiff
resides in New York, and Defendant Esposito resided in New York at the time of the
assault, New York has the greatest interest in adjudicating this dispute.
Levy argues that Sofia has failed adequately to plead that Levy owed a
duty of care to Sofia. (Levy Br. 4-6). The Court agrees. Under New York law,
“[a] defendant generally has no duty to control the conduct of third persons so
as to prevent them from harming others, even where as a practical matter
defendant can exercise such control.” Vega v. Fox, 457 F. Supp. 2d 172, 183
(S.D.N.Y. 2006) (quoting D’Amico v. Christie, 71 N.Y.2d 76, 88 (1987)); see also
Miglino v. Bally Total Fitness of Greater N.Y., Inc., 937 N.Y.S.2d 63, 71 (2d Dep’t
2011) (“Generally speaking, one does not owe a duty to come to the aid of a
person in peril, whether the peril is medical or otherwise[.]”).
A duty to intervene may exist in exceptional circumstances. As a sister
court in this District has explained, “[a] duty may arise … where there is a
relationship either between defendant and a third-person tortfeasor that
encompasses defendant’s actual control of the third person’s actions, or
between defendant and plaintiff that requires defendant to protect plaintiff from
the conduct of others.” Vega, 457 F. Supp. 2d at 183-84 (quoting Hamilton
v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233 (2001)). But Sofia has not
suggested that Levy had actual control over Esposito at the time of the assault.
Nor has he alleged that Levy’s relationship with Sofia, such as it was, might
have required Levy to protect Sofia. Absent such a relationship, there is no
basis to find that Levy owed any duty to intervene during the alleged assault.
Without any such duty, Sofia’s negligence claim fails as a matter of law.
Even if Sofia had adequately alleged that Levy owed him a duty, his
negligence claim would still fail as he has failed to allege causation. Sofia
asserts that, “[i]f Levy had not created false documentation to help his client
and had let justice prevail, [Sofia] would not have been assaulted on that day.”
(Am. Compl. 6). But even if true, that conclusory assertion is insufficient to
support a negligence claim. Under New York law, a plaintiff must allege “that
the negligence was a proximate, or legal, cause of the event that produced the
harm sustained by the plaintiff[.]” Hain v. Jamison, 28 N.Y.3d 524, 529 (2016)
(internal citation omitted). When “a question of proximate cause involves an
intervening act, liability turns upon whether the intervening act is a normal or
foreseeable consequence of the situation created by the defendant’s negligence.”
Id. (internal quotation marks omitted) (citing Mazella v. Beals, 27 N.Y.3d 694,
706 (2016); Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (1980)).
Here, there is no question that any harm to Sofia was caused by an
intervening act — namely, Esposito’s alleged assault. And nothing in Sofia’s
submissions persuades the Court that the intervening act was reasonably
foreseeable. Sofia does not suggest that Levy had reason to believe that
Esposito might become violent. This Court cannot find, under New York law,
that Esposito’s sudden assault of Sofia at the conclusion of the bankruptcy
hearing was reasonably foreseeable. See, e.g., Maysonet v. KFC, Nat’l Mgmt.
Co., 906 F.2d 929, 931 (2d Cir. 1990) (finding that defendant was “not required
to anticipate [assailant’s] sudden and unexpected act”). Here, Sofia has failed
to establish that Levy’s actions proximately caused Sofia’s injuries, or that the
assault on Sofia was reasonably foreseeable under the circumstances.
Accordingly, even if Sofia had sufficiently alleged that Levy owed a duty of
care — which Sofia has not done — Sofia’s negligence claim would still fail as a
matter of law.
The Court Dismisses Sofia’s Claims Against Levy With
The sole remaining question is whether this Court should dismiss Sofia’s
claims with prejudice. Rule 15(a)(1) allows a party to “amend its pleading once
as a matter of course within … 21 days after serving it, or … if the pleading is
one to which a responsive pleading is required, 21 days after service of a
responsive pleading[.]” Fed. R. Civ. P. 15(a)(1). But once that period has
expired, “a party may amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) further
states: “The court should freely give leave when justice so requires.” Id.
The Second Circuit has explained that “the permissive standard of
Rule 15 is consistent with [its] strong preference for resolving disputes on the
merits.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160,
190 (2d Cir. 2015) (internal quotation marks and citations omitted).
Accordingly, “[t]he rule in this Circuit has been to allow a party to amend its
pleadings in the absence of a showing by the nonmovant of prejudice or bad
faith.” AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699,
725 (2d Cir. 2010) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d
But Rule 15’s permissive standard does not require the Court to dismiss
without prejudice a claim that would be futile. The Second Circuit has held
that if a complaint has substantive problems and a “better pleading will not
cure [them,]” “[s]uch a futile request to replead should be denied.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). Such is the case
here. Sofia has offered the Court no reason to believe that he could cure the
deficiencies in his pleadings. The Court is convinced that Sofia would be
unable, in any amended pleading, to allege adequately that Levy owed him a
duty or proximately caused Sofia’s injuries, or that Levy conspired with
Esposito to assault Sofia. For that reason, the Court will not permit Sofia to
replead his allegations or to withdraw his claims without prejudice.
For the reasons stated above, Defendant Levy’s motion to dismiss is
GRANTED with prejudice. The Court certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal from this order would not be taken in good faith;
therefore, in forma pauperis status is denied for purposes of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Court has previously granted Sofia permission to amend his claims
against Esposito. (Dkt. #50). As the Court previously indicated, Sofia must file
his amended pleadings as to Esposito, if it all, within 45 days of the issuance
of this Opinion. Esposito will similarly be required to respond within 45 days
of the filing, by Sofia, of any amended complaint.
April 10, 2018
New York, New York
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Robert V. Sofia
29 38th Drive
Little Neck, NY 11363
A copy of this Order was mailed by Chambers to:
Gary D. Esposito
c/o Michael and Donna DeLepine
1136 East 215 Place
Carson, CA 90745-1602
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