Smith et al v. D'Agostino et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ETHAN D. SMITH, and
JENNIFER L. DEES,
-vs-
MAE D'AGOSTINO, et al.,
Plaintiffs,
Defendants.
DECISION AND ORDER
25-CV-1265-MAV-CDH
On December 9, 2025, the 	Court entered an order sua sponte dismissing
Plaintiffs' complaint in this case with leave to amend in 30 days. ECF No. 179. The
matter is now before the Court on Plaintiffs' motion for "reconsideration/ vacatur"
and "recusal / reassignment." ECF No. 184 ("motion for reconsideration"). Plaintiffs
have also filed a motion for oral argument (ECF No. 186), and a motion for stay
pending the resolution of these motions and Plaintiffs' mandamus petition currently
pending before the Second Circuit (ECF No. 188).
For the reasons stated below, the Court declines to recuse itself from this
matter, and Plaintiffs' motions for reconsideration (ECF No. 184), oral argument
(ECF No. 186), and a stay (ECF No. 188) are denied. Plaintiffs may amend their
complaint within 30 days after the date of filing of this order, or inform the Court by
status letter that they forego the opportunity to amend.
BACKGROUND
The Court assumes the reader's familiarity with the underlying facts and
procedural history of this case, as it was more fully set forth in the Court's earlier
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decisions. See Smith v. D'Agostino, No. 25-CV-1265-MAV-CDH, 2025 WL 3525935
(W.D.N.Y. 	Dec. 	9, 	2025) 	(dismissing Plaintiffs' complaint with leave to amend)
("December Order"); see also Smith v. D'Agostino, No. 25-CV-1265-MAV, 2025 WL
2695439, at *1 (N.D.N.Y. Sept. 22, 2025) (denying Plaintiffs' motion for a temporary
restraining order) ("September Order"). In its December Order, the Court explained
that Plaintiffs' complaint:
alleges a conspiracy that involves "at its core . . . unlawful attorney
appointments and void judicial orders, enforced by a network of at least
four married couples - state judges, bar administrators, OCFs, clerks,
and attorneys - 	creating a closed system where fraud is legitimized,
retaliation is routine, and justice is for sale in a pay-to-play scheme."
ECF No. 1 at p. 2.
According 	to 	the 	complaint, 	Plaintiff 	Smith's 	ex-wife, 	Defendant
Veronica Smith, initiated divorce proceedings against him in June 2020.
ECF No. 1 ,r 128. On August 3, 2020, Judge Paul Pelagalli, the "engineer
of the racketeering scheme," initiated "the racketeering enterprise"
when he appointed an attorney for the child. Id. ,r 116. Plaintiffs claim
that Judge Pelagalli's adjudication of the matrimonial proceedings "was
not 	neutral 	adjudication 	but 	a 	calculated 	mechanism 	to 	preserve
revenue for the system while protecting an abuser." Id. ,r 120. For this
and other actions between his appointment of the attorney for the child
in 2020 and his assumption of the role of Clifton Park Town Attorney in
January 2024, Plaintiffs allege Judge Pelagalli's conduct constituted
mail and wire fraud, honest services fraud, extortion under color of law,
obstruction of justice, retaliation against witnesses, and deprivation of
rights under color oflaw. Id. ,r 125.
Plaintiff alleges 	that 	"[t]he 	enterprise 	operated 	through 	Saratoga
Family and Supreme Court, Saratoga Springs City Court, county clerk
offices, 	the 	AD3 	[Appellate 	Division, 	Third Department], 	and into
federal forums." Id. ,r 161. Plaintiff claims that defendant judges and
various other judicial employees in these courts and offices acted in
concert to commit, 	attempt, and/or aid and abet multiple predicate
racketeering acts, including wire fraud, obstruction of justice, witness
tampering/retaliation, 	deprivation of rights under color of law, 	and
RICO conspiracy. Id. ,r 162.
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Smith II, 2025 WL 3525935 at *1-2.
For the reasons outlined in the December Order, the Court found Plaintiffs'
complaint to be frivolous both because Plaintiffs' factual allegations rose to the level
of the irrational or the wholly incredible, and because the complaint lacked an
arguable basis in law. 	Smith, 	2025 WL 3525935 at *3. Accordingly, 	the 	Court
dismissed the action sua sponte, but gave Plaintiffs leave to amend their complaint
within 30 days.
On December 18, 2025, less than 10 days after the Court entered its Decision
and Order, Plaintiffs filed the motion for reconsideration presently before the Court.
ECF No. 184. The following day, Plaintiffs sought oral argument on the motion. ECF
No. 186. On December 28, 2025, Plaintiffs filed a motion for a stay pending decision
on the motions for reconsideration and the mandamus petition Plaintiffs filed with
the Second Circuit.
RECUSAL I REASSIGNMENT
Plaintiffs' 	motion 	for 	reconsideration 	also 	includes 	a 	request 	that 	the
undersigned recuse herself, which is not their first request during the pendency of
this case. As the Court noted in its September Order, Petitioners argued in September
2025 that the undersigned must be disqualified pursuant to 28 U.S.C. § 455(a) and
(b)(3). ECF No. 15 at 2. The Court denied Plaintiffs' request at that time, finding that
§ 	455(b)(3) 	was 	inapplicable, 	and 	that 	Plaintiffs' 	grounds 	for 	their 	request 1
1 In their earlier motion, Plaintiffs identified four reasons for seeking the undersigned's recusal: (1)
that the undersigned previously served as a judge within the New York Unified Court System, "subject
to the administrative oversight'' of certain state court judges who are named in Plaintiffs' complaint,
(2) that the undersigned was appointed to and served on the New York State Advisory Committee on
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established no basis for disqualification under § 455(a). Smith, 2025 WL 2695439 at
*2 (citing ECF No. 15 at 6-8).
Section 455(a) states that "[a]ny justice, judge, or magistrate judge of the
United States shall disqualify [her]self in any proceeding in which [her] impartiality
might reasonably be questioned." 28 U.S.C. § 455(a). "In determining whether Section
455(a) requires recusal, 	the 	appropriate 	standard is objective reasonableness -
whether 'an objective, disinterested observer fully informed of the underlying facts,
[would] entertain significant doubt that justice would be done absent recusal."' United
States v. Carlton, 534 F.3d 97, 100 (2d Cir.), cert. denied, 555 U.S. 1038 (2008). "[T]he
grounds asserted in a recusal motion must be scrutinized with care, and judges
should not recuse 	themselves 	solely because 	a 	party claims 	an 	appearance 	of
partiality." Gurvey v. Hochul, No. 1:24-CV-00211 (AMN/PJE), 2025 WL 1532700, at
*5 (N.D.N.Y. May 29, 2025) (quoting In reAguinda, 241 F.3d 194, 201 (2d Cir. 2001)).
In the declaration accompanying their request for recusal in the instant
motion, Plaintiffs present what they term to be "objective appearance-of-impartiality
concerns under 28 U.S.C. 	§ 455(a) arising from 	(a) structural and institutional
overlap within the NDNY; (b) Judge Vacca's sworn representations to the US Senate
during her confirmation proceedings; (c) documentary evidence cont[r]adicting those
representations; 	and 	(d) 	Judge 	Vacca's 	documented 	professional 	proximity 	to
Judicial Ethics with named Defendants, (3) that the undersigned is active in the Asian American
Judges Association of New York, "which publicly celebrated" the election of a Defendant judge, and (4)
that while serving as a Monroe County Court Judge, the undersigned presided over a wholly unrelated
criminal matter, in which a Defendant purportedly served as defense counsel. ECF No. 15 at 6-8.
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Defendants Garry, Wilson, Zayas, Chaudhry, and Singh, among others." ECF No.
184-1 if 2.
The Court has considered the foregoing "concerns" presented by Plaintiffs,
including both the argument in their declaration and the supporting exhibits, and
continues to find that there are no grounds for the undersigned's disqualification.
Plaintiffs' request that the undersigned recuse herself is therefore denied.
RECONSIDERATION I VACATUR AND ORAL ARGUMENT
Because Plaintiffs have filed this motion for reconsideration pro se, it has been
liberally construed to raise the strongest arguments that it suggests. Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006). Nevertheless, even
having liberally construed the arguments presented, the Court finds that the issues
do not require oral argument, and that there is no merit in Plaintiffs' motion for
reconsideration.
I. Legal Standard
Motions for reconsideration may be brought pursuant to Rules 59(e) and 60(b)
of the Federal Rules of Civil Procedure, and Rule 60.1 of the Local Rules of the
Northern District of New York. As relevant here, Local Rule 60.1 provides that
"[u]nless otherwise provided by the Court, by statute or rule . . . 	a party may file
and serve a motion for reconsideration ... no later than FOURTEEN DAYS after the
entry of the challenged judgment, order, or decree." L.R. 60.1. It further provides that
"[t]he Court will decide motions for reconsideration ... on submission of the papers,
without oral argument, unless the Court directs otherwise." Id.
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A movant faces a "strict" standard on a motion for reconsideration. Grant v.
Lockett, 610 F. Supp. 3d 448, 450 (N.D.N.Y. 2022) (quoting Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995)). As the Second Circuit has explained, "'[i]t is
well-settled that [a motion for reconsideration] is not a vehicle for relitigating old
issues, presenting the case under new theories, securing a rehearing on the merits,
or otherwise taking a 'second bite at the apple' .... " Analytical Survs., Inc. v. Tonga
Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012) (quoting
Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). "Thus, a prior ruling will
only be reconsidered and vacated if: (1.) the law has changed since that ruling was
first 	issued; 	(2.) 	new 	evidence 	not previously 	available 	comes 	to 	light; 	or 	(3.)
reconsideration is necessary to remedy a clear error of law or to prevent manifest
injustice." Grant, 610 F. Supp. 3d at 450 (citing Delaney v. Belsky, 899 F. Supp. 923,
925 (N.D.N.Y. 1995); Doe v. N. Y.C. Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.
1983), cert. denied, 464 U.S. 864 (1983)).
II. Plaintiffs' Arguments
In addition to arguing that the Court should recuse itself under 28 U.S.C.
§ 455, Plaintiffs' motion for reconsideration presents several reasons why they believe
the Court's December Order should be vacated: (1.) Plaintiffs' two prior, related cases
confirm 	that 	the 	Defendants 	"cannot 	produce 	jurisdictional 	proof 	or 	lawful
appointments," (2.) the Court's frivolousness ruling cannot be reconciled with Second
Circuit precedent, (3.) the Court improperly "pre-award[ed] sweeping immunity to all
defendants," (4.) the Court misread the doctrines of Younger abstention and Rooker
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Feldman, and (5.) the Court misconstrued each cause of action. ECF No. 184. Having
carefully reviewed Plaintiffs' voluminous papers related to these issues, the Court
denies Plaintiffs' request for oral argument. ECF No. 186.
Plaintiffs' first argument - that two prior, related cases that they filed have
demonstrated 	that 	Defendants 	cannot 	produce 	jurisdictional 	proof 	or 	lawful
appointments - is simply a rehashing of arguments made in their complaint. See, e.g.,
ECF No. 1 ,r 118-19 (alleging Judge Pelagali made unlawful attorney appointments
and issued "jurisdictionally void" orders); ECF No. 39 at 70-71 (alleging "invalid" and
"unauthorized" appointments). Accordingly, the Court finds that it presents no basis
for vacating the December Order.
Further, the Court disagrees with Plaintiffs second argument, i.e., that its
frivolousness ruling cannot be squared with Second Circuit precedent, and that the
Court failed to provide Plaintiffs with notice and an opportunity to be heard. See ECF
No. 184 at 7-10. For one, after revisiting the Plaintiffs' complaint (ECF No. 1) and
RICO Statement (ECF No. 39), the Court finds the allegations, as pled, "lack[ ] an
arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Moreover, 	the 	Court notes that its order dismissing Plaintiffs' prior complaint
provided 	them 	with 	notice 	of the 	deficiencies 	therein, 	and 	granted 	them 	an
opportunity to amend the complaint to correct those deficiencies. In other words, the
Court provided Plaintiffs with notice of its intent to dismiss their claims with
prejudice if the deficiencies were not cured, and an opportunity to be heard through
the filing of an amended complaint. See, e.g., Murray v. New York, No. 1:24-CV-08015-
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GHW, 2025 WL 370886, at *6 (S.D.N.Y. Feb. 2, 2025) (observing that the Second
Circuit noted in Moroshkin v. Dietsche, No. 22-487-CV, 2022 WL 16570779, at *1 (2d
Cir. Nov. 1, 2022) (summary order) that being given leave to amend" provides a pro
se plaintiff with the "opportunity to be heard").
The Court also finds Plaintiffs' third and fourth arguments to be unpersuasive.
With respect to Plaintiffs' arguments regarding Rooker-Feldman and the Younger
abstention, the 	Court expressly declined to make "a definitive ruling as to the
application of either doctrine" because the substance and procedural posture of the
various cases involving the challenged rulings were too ambiguous in the pleadings.
Smith, 	2025 WL 3525935 at *5. 	Similarly, with respect to Plaintiffs' argument
regarding immunity of numerous Defendants, the Court found that considerations of
immunity were "not dispositive due to the vague and conclusory nature of Plaintiffs'
allegations." Id. Accordingly, while the Court continues to believe that the Rooker-
Feldman and Younger abstention doctrines, and principles of immunity, present
potentially profound problems to Plaintiffs' claims, even were the Courts' position on
those issues to constitute legal error, dismissal of Plaintiffs' complaint is warranted
on other grounds identified in the December Order.
Lastly, with respect to Plaintiffs' fifth argument, that the Court misconstrued
each cause of action, Plaintiffs state that the Court "never meaningfully engag[ed]
the RICO statement .... [which] supplies exactly the predicate-act particulars, dates,
actors, and mail/wire uses" required to adequately plead their respective claims. ECF
No. 184 at 18-19. To be sure, Rule 9.2 of the Local Rules of Civil Procedure in the
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Northern District of New York provides that the Court shall construe a party's RICO
statement as an amendment to the pleadings. Nevertheless, in the instant case,
despite adding an additional 129 pages to the record, Plaintiffs complaint and RICO
statement are still not sufficient to demonstrate an entitlement to relief.
The 	Supreme 	Court 	has 	articulated 	two 	working 	principles 	to 	aid 	the
assessment as to whether, in compliance with Federal Rule of Civil Procedure 8(a)(2),
a pleading contains a "short and plain statement of the claim showing that the
pleader is entitled to relief." First, the Supreme Court made clear that "the tenet that
a 	court must accept as true 	all of the 	allegations contained in a 	complaint is
inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (noting courts "are not bound
to accept as true a legal conclusion couched as a factual allegation")). "Second, only a
complaint that states a plausible claim for relief survives .... " Id. at 678-79 (citing
Twombly, 550 U.S. at 556). In that regard, "where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged - but it has not shown - that the pleader is entitled to relief." Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2)) (internal quotation marks omitted).
Here, Plaintiffs' claims, even as augmented in their RICO statement, are
alleged largely in terms of legal conclusions that the Court is not bound to accept as
true. For instance, Question 5 of Plaintiffs' RICO statement provides the specifics for
the ten 2 alleged predicate acts underlying their RICO claim. ECF No. 39 at 69-97.
2 Plaintiffs allege two separate predicate acts as "No. 9." ECF No. 39 at 91, 94.
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Predicate Act No. 1 - "Fraudulent Appointments & State Funded Billing Scheme" -
alleges that at least four "illegal attorneys" "unlawfully inserted themselves" into
Plaintiffs' 	matrimonial 	proceedings, 	and 	that 	at 	least 	two 	judges 	"issued
unauthorized ... appointments from the bench." Id. at 70-73. Predicate Act No. 2 -
"Fraudulent Support and Tax Racketeering Scheme" - alleges that over a five-year
period, several judges and state and local government agencies "repeatedly issued,
transmitted, 	and 	enforced 	fraudulent 	garnishment 	notices, 	license 	suspension
threats, and lien notifications," and that another Defendant "filed fraudulent federal
and state tax returns .... " Id. at 73-75. Although Predicate Act No. 3 - Kidnapping
/ 	Custodial 	Interference 	/ 	Retaliation - 	provides 	specific 	dates 	of two 	alleged
kidnappings, 	the 	allegation itself is based upon the conclusory assertions 	that
Plaintiffs rights as established in vaguely identified "custody orders" were violated,
and at least two "protection orders" were invalid or unlawful. Id. at 76-78. Each of
the other seven predicate acts contain similar assertions of legal conclusions. Id. at
79-96. In assessing whether a complaint complies with Fed. R. Civ. P. 8, the Court is
not obliged to accept legal conclusions as true.
The remainder of Plaintiffs' fifth argument likewise fails to establish grounds
for vacating the December Order. Thus, Plaintiffs' motion for reconsideration is denied.
MOTION FOR STAY
While their motion for reconsideration was pending before the Court, Plaintiffs
filed a motion seeking a stay "directing that the case remain in status quo posture"
pending this Court's resolution of the motion for reconsideration and the Second
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Circuit's disposition of Plaintiffs' pending mandamus proceeding. ECF No. 	188.
However, the motion for reconsideration, 	and the declaration accompanying the
motion to stay both seem to indicate that were the Court to deny the motion for
reconsideration, Plaintiffs seek "entry of a final appealable order/judgment so [that]
Plaintiffs may obtain meaningful review." ECF Nos. 184 at 1, 188-2 ,r 7. Thus, it is
not clear to the Court whether Plaintiffs' motion for a stay is mooted by the denial of
their motion for reconsideration.
In any event, the Court has considered Plaintiffs' analysis of the stay factors
that courts must consider, 3 and finds that-in light of the Court's rulings in this and
previous orders - Plaintiffs have neither demonstrated a likelihood of success in this
action or presented "sufficiently serious questions going to the merits to make them
a fair ground for litigation." ECF No. 188-1 at 12. Accordingly, Plaintiffs' motion for
a stay (ECF No. 188) is denied.
LEAVE TO AMEND
As the Court noted in its prior order, "the Second Circuit has stated that failure
to provide notice and an opportunity to be heard prior to dismissal is a 'bad practice
3 The Supreme Court has identified four factors courts must consider with respect to a motion for a
stay: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in the proceeding; and (4) where the public
interest lies." Nken v. Holder, 556 U.S. 418, 426 (2009) (citing Hilton v. Braunskill, 481 U.S. 770, 776)
(1987)). As Plaintiffs point out, with respect to the likelihood of success factor, the Second Circuit has
adopted a "flexible" standard which weighs the factor in favor of the stay applicant if he has
demonstrated sufficiently serious questions going to the merits to make them a fair ground for
litigation and a balance of hardships tipping decidedly in the applicant's favor. See Citigroup Glob.
Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35-38 (2d Cir. 2010).
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in numerous contexts' and 'reversible error' in others." Smith, 2025 WL 3525935 at
*12 (quoting Curcio v. Abrams, No. 22-693, 2023 WL 31183, at *2 (2d Cir. Jan. 4,
2023)). Thus, the usual practice is to allow leave to replead a deficient complaint,
especially where a complaint has been submitted prose. Id. (citing Davidson v. Flynn,
32 F.3d 27, 31 (2d Cir. 1994)).
As noted above, it appears that Plaintiffs would like to "stand on the operative
pleading ... and the RICO statement, and request entry of final judgment so review
may be sought in higher courts." ECF No. 184 at 1. However, in order to ensure
Plaintiffs an opportunity to be heard, 	the 	Court will allow Plaintiffs to file 	an
amended complaint within 30 days after the date of filing of this Decision and Order
to cure the deficiencies the Court has identified in the factual and legal bases for their
claims. See, e.g., Andrews v. Hall, No. 22-1298, 2023 WL 309609 at *1 (2d Cir. Jan.
19, 	2023) 	(summary order) 	("[T]he 	district court 	satisfied this 	requirement by
warning [plaintiff] that his claims were vulnerable to dismissal on [a stated] basis ..
. and inviting his response."). If Plaintiffs do not wish to amend their complaint, they
may notify the Court by filing a brief status letter and the Court will enter final
judgment.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Plaintiffs' motion for reconsideration (ECF No. 184), motion
for oral argument (ECF No. 186), and motion for stay (ECF No. 188) are DENIED;
and it is further
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ORDERED that Plaintiffs shall file an amended complaint within thirty (30)
days after the date of filing of this Decision and Order. Plaintiffs are advised that an
amended complaint is intended to completely replace the prior complaint in the
action, and must be pled so as to stand alone as the sole complaint in this action that
Defendants must answer. Allen v. Erie Cnty. Med. Ctr. Corp., No. 25-CV-136 (JLS),
2025 WL 641299, at *4 (W.D.N.Y. Feb. 25, 2025); and it is further
ORDERED that if Plaintiffs fail to file an amended complaint, file a similarly
frivolous amended complaint, or file a status letter notifying the Court of their intent
to "stand on the operative pleading ... and RICO statement," this action will be
dismissed with prejudice.
SO ORDERED.
DATED: 	February .#:-., 2026
Rochester, New York
clJ~JJJm~HON~EREDITHA. VACCA
United States District Judge
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