Meissner et al v. City of New York et al

Filing 57

MEMORANDUM AND ORDER granting 45 Motion for Judgment on the Pleadings; granting 48 Motion to Dismiss. For the foregoing reasons, defendants' motion and the NYAG's motion are granted in full. The Court dismisses the following claims: plaintiffs' full faith and credit claim, plaintiffs' Second Amendment claim to the extent it challenges New York State's firearm licensing regime, and plaintiffs' unpled right to travel claim. The Clerk of the Court is directed to terminate the motions pending at ECF Nos. 45, 48. (Signed by Judge Naomi Reice Buchwald on 3/5/2025) (sgz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------X
STUART MEISSNER, JONATHAN ZERON, JAMES
ALEMAN, JR., STEVEN SILVESTRO,
Plaintiffs,

MEMORANDUM AND ORDER

- against CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT, JESSICA TISCH, 1 NICOLE
BERKOVICH, NEW YORK CITY POLICE
DEPARTMENT LICENSE DIVISION,

23 Civ. 1907 (NRB)

Defendants.
-------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiffs Stuart Meissner, Jonathan Zeron, James Aleman,
Jr., and Steven Silvestro (collectively, “plaintiffs”), on behalf
of a putative class, raise facial and as-applied challenges to New
York State’s and New York City’s firearm licensing laws.

ECF No.

26 (“AC”).

One of the defendants in this action is the Commissioner of the New York
City Police Department. Multiple individuals have held this position during
the pendency of this action.
At the time of the filing of the complaint,
Keechant L. Sewell served as the Commissioner. ECF No. 1 ¶ 51. By the time
defendants submitted their motion to dismiss, Edward A. Caban had replaced Ms.
Sewell, ECF No. 47 at 1 n.1, and by the time defendants submitted their reply,
Thomas G. Donlon had replaced Mr. Caban, ECF No. 55 at 1 n.1. Mr. Donlon has
since been replaced by Jessica Tisch. See Maria Cramer, Emma G. Fitzsimmons &
Chelsia Rose Marcius, Jessica Tisch, sanitation chief, becomes 2nd woman to
lead
the
N.Y.P.D.,
The
New
York
Times,
https://www.nytimes.com/2024/11/20/nyregion/jessica-tisch-nypdcommissioner.html (last visited Mar. 4, 2025).
Pursuant to Federal Rule of
Civil Procedure 25(d), a public officer’s “successor is automatically
substituted as a party” when a public officer “dies, resigns or otherwise ceases
to hold office while the action is pending.” Accordingly, current Commissioner
Tisch is substituted for former Commissioner Sewell as a party defendant.
1

-1-

The motions before the Court have been filed by the New York
City defendants 2 (“defendants” or the “City”) and the New York
State Attorney General (“NYAG”), as an intervenor.

Both the City

and the NYAG seek to dismiss plaintiffs’ full faith and credit
claim,

which

challenges

a

New

York

State

statute

requiring

individuals possessing guns in New York State and New York City to
have a license or permit from those jurisdictions.
48.

ECF Nos. 45,

The NYAG also moves to dismiss plaintiffs’ other challenges

to New York State’s firearm licensing regime.
12-19.

ECF Nos. 48, 49 at

In brief, the City defendants and the NYAG maintain that

New York State has a right to enact a state-specific statute
regulating gun ownership and that such statutes do not facially
violate the U.S. Constitution.
Plaintiffs’

opposition

brief

states

that

“[p]laintiffs

concede to the motion to dismiss the Full Faith and Credit claim”
and acknowledges that “States and municipalities may create their
own guns laws.”

ECF No. 54 (“Opp.”) at 6, 8.

should end our discussion.

These concessions

However, plaintiffs’ brief continues

and addresses issues not advanced in their amended complaint, along
with other issues which the parties had previously agreed would
not be the subject of the pending motions.
“Defendants” in this action refers to the City of New York (“City”), the
New York City Police Department (“NYPD”), the NYPD License Division, the Police
Commissioner of the City of New York, and Nicole Berkovich, Director of the
License Division (collectively “defendants”). See AC ¶¶ 47-53.

2

-2-

BACKGROUND
To put the posture of the case in context, some history is
necessary.
I.

Plaintiffs’ Claims
Plaintiffs

are

New

York

and

New

Jersey

residents

who,

following the Supreme Court’s decision in New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), filed a complaint
raising three primary issues.
First,

plaintiffs

See ECF No. 1; AC ¶¶ 41-46.

contend

that

New

York

City

is

unduly

delaying the approval process to obtain a firearm license, alleging
that plaintiffs’ applications took longer than six months to be
processed.

See AC ¶¶ 5, 11-15, 17-19, 25, 28, 58, 60-62, 64-69,

74-76, 83, 88-92, 136, 144. 3
Second, plaintiffs challenge the requirement that individuals
must obtain a New York City-specific license or permit to carry
firearms in New York City.

AC ¶¶ 63, 72, 79-82; see also N.Y.

Penal Law § 400.00(6) (requiring, as a condition to carry a firearm
in New York City, either a City-issued license or a special City-

New York State law requires a “licensing officer” to “act upon any
application for a license . . . within six months of the date of presentment of
such an application to the appropriate authority” unless “written notice” has
been given “to the applicant specifically stating the reasons for any delay.”
N.Y. Penal Law § 400.00(4-b). Even though plaintiffs cite this state statute
in their amended complaint, see AC ¶ 7, plaintiffs have asserted that the
alleged delays in the application process raise constitutional issues rather
than state law issues to be resolved in an Article 78 proceeding. See, e.g.,
AC ¶¶ 15, 25; Opp. 2 (raising constitutional arguments). As set forth below,
this timeliness issue is not presently before the Court.
3

-3-

issued permit even if the individual had already obtained a New
York State license from another county in the state). 4
Lastly, relying on the full faith and credit clause as well
as the Second and Fourteenth Amendments of the U.S. Constitution,
plaintiffs oppose the requirement that a valid New York State
license is necessary to carry a firearm in New York State.

See AC

¶¶ 3, 93-95, 97, 99-102, 157-170; see also N.Y. Penal Law §§
265.03, 265.20(a)(3) (requiring a valid New York State license to
avoid prosecution for criminal possession of a firearm).

In

support of this challenge, plaintiffs assert that “New York State
does not accept the validity of any gun license from any other
State,” id. ¶ 3, and maintain that the Second Amendment rights of
out-of-state residents “do not stop at the New York border,” id.
¶ 97.

See also id. ¶ 161 (“Plaintiffs are entitled to Second

Amendment rights with the seriousness of any other rights and those
rights do not end at state or municipal lines or borders.”); id.
at Fifth Claim (“violation of the Second and Fourteen[th] Amendment
to the United States Constitution and the Full Faith And Credit
Clause for refusing to accept the validity of firearms licenses of
other states”); id. ¶¶ 100-102, 157-170 (similar).
The two New Jersey plaintiffs, James E. Aleman, Jr. and Steven
J. Silvestro, further contend that they have “not carried their

4

As set forth below, this issue is not presently before the Court.

-4-

firearms into New York City when they come here for fear of being
arrested by the [d]efendants who routinely arrest individuals for
possessing firearms in New York while in possession of valid
firearms license issued by States other than New York State.”
¶¶ 45, 46, 95.

Id.

Further, it is alleged that the New Jersey

plaintiffs have no legal means of exercising their right to carry
a firearm because “[u]pon information and belief, Defendants do
not issue licenses to non-residents.”

Id. ¶ 99.

Altogether, plaintiffs challenge these aspects of New York
State’s and New York City’s firearm regulation through five causes
of action: (1) a claim under 42 U.S.C. §§ 1981, 1983 alleging a
violation of the Second and Fourteenth Amendments; (2) a “Monell
claim for failure to train or properly supervise in violation of
42 U.S.C. § 1983;” (3) a claim alleging a violation of plaintiffs’
due process rights; (4) a claim alleging a violation of the due
process

clause

of

the

Fourteenth

Amendment;

and

(5)

a

claim

alleging a “violation of the Second and Fourteen[th] Amendment to
the United States Constitution and the full faith and credit clause
for refusing to accept the validity of firearms licenses of other
states and other counties in New York State.”

AC ¶¶ 103-170.

Plaintiffs bring these claims on behalf of a class of “similarly
situated individuals who have applied for firearms licenses . . .
and have no criminal convictions in their past.”
-5-

AC ¶¶ 33-40.

II.

Procedural History
Following

the

filing

of

plaintiffs’

amended

complaint,

defendants elected to file an answer instead of moving to dismiss.
See ECF No. 28.

In February 2024, the Court directed the City to

produce “documents showing the status of the applications of each
named plaintiff.”

ECF No. 34.

In March 2024, the City submitted

the requested documentation, which showed that:

plaintiff Stuart

Meissner

Permit

had

received

a

Rifle

and

Shotgun

and

his

application for a Premises Residence Handgun License was pending;
plaintiff Jonathan Zeron was approved for a Special Carry License;
and plaintiffs James E. Aleman, Jr. and Steven J. Silvestro were
New Jersey residents who never applied for a firearm license or
permit in New York City.

See ECF No. 35; AC ¶¶ 45, 46.

Despite their challenges to the firearm licensing laws of New
York State, plaintiffs only asserted claims against New York City
defendants.

AC ¶¶ 47-53; see also ECF No. 1 ¶¶ 46-52 (same in

initial complaint).

However, in compliance with Rule 5.1 of the

Federal Rules of Civil Procedure, 5 plaintiffs filed a notice of
constitutional question on March 17, 2023, which raised challenges

If “a state statute is questioned and the parties do not include the
state,” Rule 5.1 of the Federal Rules of Civil Procedure requires the party
that files the pleading “drawing into question the constitutionality of a . .
. state statute” to (1) “file a notice of constitutional question stating the
question and identifying the paper that raises it,” and (2) “serve the notice
and paper on the . . . state attorney general.” Fed. R. Civ. P. 5.1(a)(1)(B),
(a)(2).

5

-6-

to New York State law.

ECF No. 17.

When the Court did not receive

proof of service or a response from the NYAG as of February 22,
2024, this Court issued an order requesting a response from the
NYAG as to whether it would exercise its right to intervene.
No. 33.

ECF

On March 21, 2024, the NYAG moved to intervene “for the

limited purpose of defending the constitutionality of New York’s
firearm licensing laws.”

ECF No. 36.

Counsel for the parties

consented to the NYAG’s intervention, id., and the Court granted
NYAG’s motion to intervene in April 2024, ECF No. 37.
Thereafter, the parties and the NYAG agreed to a briefing
schedule focused on “Plaintiffs’ various challenges to New York
Penal Law § 265.20(3),” i.e., the requirement that an individual
must have a valid New York State license to carry a firearm in New
York State.

ECF Nos. 39, 40.

The parties also agreed to stay

plaintiffs’ challenge to the requirement that a New York Cityspecific license or permit is needed to carry firearms in New York
City, “pending a decision by the Second Circuit Court of Appeals
in Frey v. Nigrelli, No. 23-365 (2d. Cir., argued Jan. 30, 2024).”
Id.

Critically,

the

parties’

agreed-upon

briefing

schedule

allowed the parties to complete pre-motion discovery as to the
named plaintiffs if they chose to do so, provided a deadline for
plaintiffs to file any motion for interim injunctive relief, and
permitted plaintiffs to file a cross-motion for judgment on the
-7-

pleadings.

ECF Nos. 39, 40.

Pursuant to the briefing schedule, defendants and the NYAG
each filed a motion.

Defendants move for a judgment on the

pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure, seeking to dismiss plaintiffs’ claim arising under the
full faith and credit clause.

ECF No. 45.

The NYAG moves to

dismiss three of plaintiffs’ claims pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure:

the full faith

and credit claim, ECF No. 49 at 5-11; the Second Amendment claim
to the extent it challenges New York State’s firearm licensing
regime, id. at 12-15; and an unpled right to travel claim, id. at
15-19.
However, plaintiffs did not file any motions for interim
injunctive relief, nor did they bring an affirmative cross-motion
for judgment on the pleadings.

As a result, though plaintiff’s

opposition brief touches upon the timeliness issue at various
points, Opp. 1-2, 7, 8, plaintiffs’ challenge concerning the
timeliness of New York City’s application process is not presently
before the Court, see ECF No. 55 at 4 (“Plaintiffs’ claim about
the timeliness of the City’s licensing determinations is not part
of Defendants’ motion for judgment on the pleadings.”); ECF Nos.
49 at 4 n.2, 56 at 3 n.2 (the NYAG takes no position on plaintiffs’
challenges to the City’s policies).
-8-

In sum, given the procedural history set forth above, the
motions addressed in this decision are focused solely on whether
New York can require a New York State license to carry firearms
within the state.
LEGAL STANDARDS
Under Rule 12(b)(1), a “case is properly dismissed for lack
of subject matter . . . when the district court lacks the statutory
or constitutional power to adjudicate it.”

Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000) (citation omitted).

To

defeat a motion to dismiss for lack of subject-matter jurisdiction,
the plaintiff “must allege facts that affirmatively and plausibly
suggest that it has standing to sue.”
S.W.I.F.T.

SCRL,

671

F.3d

140,

145

Amidax Trading Grp. v.

(2d

Cir.

2011)

(citation

omitted).
Motions brought under Rules 12(b)(6) and 12(c) are subject to
the same standard.

See Bank of New York v. First Millennium, Inc.,

607 F.3d 905, 922 (2d Cir. 2010).

To defeat either motion, a

complaint must include “enough facts to state a claim that is
plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007); see also Am. Soc’y for the Prevention of Cruelty to
Animals v. Animal & Plant Health Inspection Serv., 60 F.4th 16, 21
(2d Cir. 2023) (same).

A claim is facially plausible “when the

plaintiff pleads factual content that allows the court to draw the
-9-

reasonable

inference

that

the

defendant

is

liable

for

the

misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A

as

court

must

accept

true

all

factual

allegations

in

the

complaint and draw all reasonable inferences in plaintiff’s favor.
See Acticon AG v. China N.E. Petrol. Holdings Ltd., 692 F.3d 34,
37 (2d Cir. 2012).
DISCUSSION
I.

Plaintiffs’ Full Faith and Credit Clause Claim
As noted supra pp. 2, “Plaintiffs concede to the motion to

dismiss the Full Faith and Credit claim,” Opp. 6, and plaintiffs’
full faith and credit claim can be dismissed on this basis alone.
See, e.g., Cotto v. City of New York, No. 17-2845, 2020 WL 1228765,
at *3 (2d Cir. Mar. 13, 2020) (affirming dismissal of claims
plaintiff expressly conceded); Alvarez v. Cnty. of Orange, N.Y.,
95

F.

Supp.

3d

385,

398

(S.D.N.Y.

2015)

(collecting

cases

dismissing claim after plaintiff conceded claim in opposition
brief).
Nonetheless, in the interest of completeness, we address why
plaintiffs’ concession is appropriate and required by the law.
First,

“the

Full

Faith

and

Credit

Clause,

in

either

its

constitution or statutory incarnations, does not give rise to an
implied federal cause of action.”

Thompson v. Thompson, 484 U.S.

174, 182 (1988) (citations omitted).
-10-

Nor does it give “rise to a

right vindicable in a § 1983 action.”
146, 153 (5th Cir. 2011).

Adar v. Smith, 639 F.3d

And, even if plaintiffs had a vindicable

right, the full faith and credit clause “does not require a State
to substitute for its own statute, applicable to persons and events
within it, the statute of another State reflecting a conflicting
and opposed policy.”

Franchise Tax Bd. of California v. Hyatt,

578 U.S. 171, 176 (2016) (citations and quotation marks omitted).
Thus, New York State is not required to substitute its own firearm
licensing laws for New Jersey’s regime.

Accordingly, plaintiffs’

full faith and credit claim is dismissed.
II.

Plaintiffs’ Second Amendment Claim
The NYAG also moves to dismiss plaintiffs’ Second Amendment

claim on the ground that the Second Amendment does not bar states
from establishing state-specific firearm licensing regimes.
No. 49 at 12-15.

ECF

Plaintiffs seemingly concede that “States and

municipalities may create their own guns laws,” but nevertheless
contend that New York has not “create[d] a legal, constitutional
pathway for citizens to be licensed” due to excessive wait times
in the licensing process.

Opp. 8.

We dismiss plaintiffs’ Second Amendment claim to the extent
it challenges New York State’s right to impose its own firearm
licensing laws within its own borders.
plainly

stated

in

Bruen,

“nothing
-11-

in

As the Supreme Court
our

analysis

should

be

interpreted to suggest the unconstitutionality of the 43 States’
‘shall-issue’ licensing regimes, under which ‘a general desire for
self-defense is sufficient to obtain a [permit].’”
U.S. at 38 n.9 (citation omitted).
District,

applying

Bruen,

held

Bruen, 597

In fact, Judge Rakoff of this
that

“‘shall-issue’

licensing

regimes, so long as they allow persons contemplated by the Second
Amendment to keep and bear arms and are not applied in practice to
frustrate that right, do not even trigger a Bruen inquiry into
whether they are consistent with this Nation’s tradition of firearm
regulation.”

United States v. Libertad, 681 F. Supp. 3d 102, 111

(S.D.N.Y. 2023) (citations omitted).

Accordingly, plaintiffs’

Second Amendment claim is dismissed to the extent it challenges
New York State’s right to impose its own firearm licensing laws
within its own borders.
III. Plaintiffs’ Purported “Right To Travel” Claim
In

their

opposition

brief,

plaintiffs

contend

that

individuals have a right to drive through New York City with
firearms, even if they do not have a New York State license.
Opp. 3-4, 8.

See

However, plaintiffs’ right to travel claim is not

included in their amended complaint, ECF No. 26, 6 and can be
The Court notes that while “[t]he textual source of the constitutional
right to travel . . . has proved elusive,” Att’y Gen. of N.Y. v. Soto-Lopez,
476 U.S. 898, 902 (1986), plaintiffs’ amended complaint fails to cite any of
the origins of this right: “the Privileges and Immunities Clause of Article
IV, the Commerce Clause, the Privileges and Immunities Clause of the Fourteenth
Amendment, [or] the Constitution’s general creation of a federal structure of
6

-12-

dismissed on this basis alone.

“A claim must be set forth in the

pleadings . . . [and] it is inappropriate to raise new claims” in
opposition papers.

Thomas v. Egan, 1 F. App’x 52, 54 (2d Cir.

2001) (citations omitted); see also Shah v. Helen Hayes Hosp., 252
F. App’x 364, 366 (2d Cir. 2007) (“A party may not use his or her
opposition

to

a

dispositive

motion

as

a

means

to

amend

the

complaint.” (citation omitted)).
Moreover, regardless of whether it has been pled, plaintiffs’
right to travel claim is meritless.

“To prevail on a [right to

travel claim], a plaintiff must demonstrate that the state has
burdened nonresident activity that is ‘sufficiently basic to the
livelihood of the Nation as to fall within the purview of the
Privileges and Immunities Clause.’”

Schoenefeld v. Schneiderman,

821 F.3d 273, 279 (2d Cir. 2016) (citation omitted).

Because New

York State does not prohibit nonresidents from applying for a
firearm license, see N.Y. Penal Law § 400.00(1), plaintiffs cannot
establish that New York State has burdened nonresident activity at

government,” Chan v. United States Dep’t of Transportation, No. 23 Civ. 10365
(LJL), 2024 WL 5199945, at *24 (S.D.N.Y. Dec. 23, 2024) (citation omitted).
This claim is not in plaintiff’s original complaint, either. ECF No. 1.
Aside from their opposition to the present motions, plaintiffs have only
referenced this issue once.
In March 2023, before filing their amended
complaint, plaintiffs filed a “notice of constitutional question” which included
the following language: “[w]hether the provisions of Article 265.00 of the New
York State Penal Law and Penal Law §265.20 (3), which only permits the possession
of a firearm by a person possessing a New York State firearms license issued
pursuant to Penal Law Article 400 violates the Constitutional Right to Travel?”
ECF No. 17. As a result of plaintiffs’ notice of constitutional question, the
NYAG moved to dismiss plaintiffs’ right to travel claim. ECF No. 49 at 15-19.

-13-

all.

Therefore,

even

had

plaintiffs

sought

to

amend

their

complaint to include this meritless claim, which they have not,
any such motion would be denied as futile.
IV.

Plaintiffs’ Unpled Allegations
In addition to plaintiffs’ unpled right to travel claim,

plaintiffs’ opposition includes numerous other unpled allegations.
Plaintiffs contest New York State’s Concealed Carry Improvement
Act’s “good moral character” standard, Opp. 2-3, 8, 9, as well as
New York City’s emergency rules allowing non-residents to apply
for a license, id. at 7-10. Specifically, plaintiffs contend that,
even if an out-of-state individual applied for a New York City
firearm license, the “city gives the individual the run-around” by
requiring the applicant to be fingerprinted by the “applicant’s
local

police

department,

departments do.”

which

is

not

even

something

these

Id. at 8.

“Plaintiffs cannot amend their complaint by asserting new
facts or theories for the first time in opposition to Defendant[s’]
motion to dismiss.”

K.D. ex rel. Duncan v. White Plains Sch.

Dist., 921 F. Supp. 2d 197, 209 n.8 (S.D.N.Y. 2013); see also Black
Lives Matter v. Town of Clarkstown, 354 F. Supp. 3d 313, 322
(S.D.N.Y. 2018) (“[N]ew claims not specifically asserted in the
complaint may not be considered by courts when deciding a motion
to dismiss.” (collecting cases)).
-14-

Moreover, even if plaintiffs could amend their pleadings,
plaintiffs’ asserted theories would likely fail as a matter of
law.

The Second Circuit recently held that New York’s Concealed

Carry Improvement Act’s “good moral character” standard is “not
facially invalid because it is not unconstitutional in all its
applications.”

Antonyuk v. James, 120 F.4th 941, 981 (2d Cir.

2024) (emphasis in original).

The Circuit, in the same decision,

notes that where “the plaintiff’s injury . . . stems from his
personal ineligibility for a license, the plaintiff must prove up
that premise either by applying for a license or by making a
substantial showing of futility.”

Id. at 979.

Therefore, based

on the Circuit’s opinion, there is a clear question of standing as
to whether the two non-resident plaintiffs in this case -- who
never submitted firearm applications -- could challenge New York
City’s emergency rules concerning non-residents.
CONCLUSION 7
For the foregoing reasons, defendants’ motion and the NYAG’s
motion are granted in full.
claims:

The Court dismisses the following

plaintiffs’ full faith and credit claim, plaintiffs’

Second Amendment claim to the extent it challenges New York State’s
firearm licensing regime, and plaintiffs’ unpled right to travel

7
The Court understands that the NYAG requested oral argument. However,
given our holding and that our decision is based on clear legal doctrine, the
Court determined that oral argument would not be productive.

-15-

claim.

The Clerk of the Court is directed to terminate the motions

pending at ECF Nos. 45, 48.
Dated:

March 5, 2025
New York, New York
____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

-16-