Kirkwood v. Buffalo & Erie County Naval & Military Park et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EDWARD B. KIRKWOOD,
Plaintiff,
v.
BUFFALO & ERIE COUNTY NAVAL &
MILITARY PARK, et al.,
Defendants.
DECISION AND ORDER
1:22-cv-703-LJV-JJM
In this pro se action, plaintiff Edward B. Kirkwood asserts claims of
discrimination, wrongful termination, and retaliation against defendants Buffalo & Erie County
Naval & Military Park and Paul Marzello under Title VII of the Civil Rights Act of 1964 (“Title
VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), the Americans with
Disabilities Act of 1990 (“ADA”), and the New York State Human Rights Law (“NYSHRL”).
Complaint [1]; Amended Complaint [22].1
Before the court are various “motions” filed by Kirkwood: a motion in limine
[74], a motion “of misconduct” [75], a motion for a protective order [78], and a “Request for
ADA Accomodations” [85]. This action has been referred to me by District Judge Lawrence J.
Vilardo for supervision of pretrial proceedings. [33]. Having reviewed the parties’ submissions
[74, 75, 78, 81, 82, 83, 84], for the following reasons the motions are denied, without prejudice.
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
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DISCUSSION
A. 	Motion in Limine [74]
Kirkwood styles this submission a motion in limine, which is generally a pretrial
motion for an evidentiary ruling. Kirkwood references certain recordings of a conversation with
him and four other individuals provided by Nick Czerniejewski, which he claims have been
altered to exclude racist diatribes by supervisors. [74] at 2, 4, 5.
Defendants respond that the referenced recording includes “highly inappropriate
comments” by Kirkwood. [82] at 4. Defendants argue that Kirkwood’s motion, presuming it
seeks to exclude such evidence, is premature as discovery is not yet complete. Id. at 4-5.
Kirkwood is free to explore the subject of the recording in depositions. Defendants further argue
that there is no legal basis for exclusion, and that such evidence is relevant to the circumstances
of Kirkwood’s termination. Id. at 5-6. Therefore, I deny the motion as premature.
B. 	Motion “of Misconduct” [75]
This motion contains no narrative, but Kirkwood attaches what appears to be
email correspondence between himself and his attorney in his wage case, Rafael Gomez, as well
as correspondence with the previous mediator in this case, Kenneth Manning, Esq. [75] at 2-12. I
can only guess what the thrust of the motion was intended to be, but his email complains about
delays attributable to the bankruptcy issue and Mr. Manning’s change of position. Id. at 2.
Defendants respond that Kirkwood’s motion is frivolous, that the court previously
decided that there was no settlement, and the attached emails demonstrate no misconduct. [81] at
4, 6-8. I agree with defendants and deny the motion.
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C. 	Motion for Protective Order [78]
In this motion, Kirkwood attaches what appears to be an AI-generated response to
a question about an organization changing its bylaws during discovery. [78] at 2-3. He then
attaches some email correspondence from June 2024 relating to a proposed change to the
corporate structure of Buffalo & Erie County Naval & Military Park from voting membership to
a “self-perpetuating board” form of governance. Id. at 5. I fail to see the relevance of these
materials to this case.
Defendants again respond that Kirkwood’s motion is frivolous, and that what
Kirkwood is really seeking is a preliminary injunction preventing Buffalo Naval Park for
modifying its internal voting processes. [83] at 4. They argue that Kirkwood has not established
entitlement to such relief, or explained how this change would affect his claim. Id. They also
argue that the motion is untimely because the issue arose almost a year and a half ago, and the
changes were approved at the June 2024 annual meeting. Id. at 6-7. I again agree with
defendants, and deny the motion.
D. 	Request for ADA Accommodations [85]
Although this motion itself states that the applicant should “request specific,
reasonable accommodations” for an alleged disability ([85] at 3), Kirkwood does not do so.
Therefore, I deny the motion.
CONCLUSION
For these reasons, plaintiff’s motions [74, 74, 78, 85] are denied, without
prejudice.
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Dated: November 17, 2025
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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