Antonyuk et al v. Hochul et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________________
IVAN ANTONYUK; COREY JOHNSON; ALFRED TERRILLE;
JOSEPH MANN; and LAWRENCE SLOAN, 	1:22-CV-0986
(GTS/CFH)
Plaintiffs,
v.
STEVEN G. JAMES, in his Official Capacity as Acting
Superintendent of the New York State Police;1 JUDGE MATTHEW
J. DORAN, in His Official Capacity as Licensing-Official of
Onondaga County; WILLIAM FITZPATRICK, in His Official
Capacity as the Onondaga County District Attorney; TOBIAS J.
SHELLEY, in his Official Capacity as the Sheriff of Onondaga
County; MARK RUSIN, in his Official Capacity as the Chief of
Police of Syracuse;2 LEE C. KINDLON, in his Official Capacity as
the District Attorney of Albany County;3 ANTHONY J.
DiMARTINO, JR., in his Official Capacity as the District Attorney
of Oswego County; and DON HILTON, in his Official Capacity as
the Sheriff of Oswego County,
Defendants.
________________________________________________________
APPEARANCES: 	OF COUNSEL:
STAMBOULIEH LAW, PLLC 	STEPHEN D. STAMBOULIEH, ESQ.
Counsel for Plaintiffs
P.O. Box 428
Olive Branch, MS 38654
1 	The Clerk of Court is directed to automatically substitute Steven G. Hames for Steven A.
Nigrelli as a Defendant in this action, pursuant to Fed. R. Civ. P. 25(d).
2 	The Clerk of Court is directed to automatically substitute Mark Rusin for Joseph Cecile
as a Defendant in this action, pursuant to Fed. R. Civ. P. 25(d).
3 	The Clerk of Court is directed to automatically substitute Lee C. Kindlon for David
Soares as a Defendant in this action, pursuant to Fed. R. Civ. P. 25(d).
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WILLIAM J. OLSON, P.C. 	ROBERT J. OLSON, ESQ.
Co-Counsel for Plaintiffs
370 Maple Avenue W, Suite 4
Vienna, VA 22180
HON. LETITIA A. JAMES 	JAMES M. THOMPSON, ESQ.
Attorney General for the State of New York 	TIMOTHY P. MULVEY, ESQ.
Counsel for the State Defendants 	Assistants Attorney General
The Capitol 	ALEXANDRIA TWINEM, ESQ.
Albany, NY 12224 	Assistant Solicitor General
BARCLAY DAMON LLP 	EDWARD G. MELVIN, ESQ.
Counsel for Oswego County Defendants 	JOHN JOSEPH PELLIGRA, ESQ.
Barclay Damon Tower
125 East Jefferson Street
Syracuse, NY 13202
HON. SUSAN R. KATZOFF 	TODD M. LONG, ESQ.
Corporation Counsel for the City of Syracuse 	DANIELLE R. SMITH, ESQ.
Counsel for City of Syracuse Defendants 	DARIENN BALIN, ESQ.
233 East Washington Street 	Assistants Corporation Counsel
300 City Hall
Syracuse, NY 13202
ONONDAGA COUNTY DEPT. OF LAW 	JOHN E. HEISLER, JR.
Counsel for Onondaga County Defendants 	Deputy County Attorney
John H. Mulroy Civic Center, 10th Floor
421 Montgomery Street
Syracuse, NY 13202
HON. JEFFERY JAMISON 	MICHAEL L. GOLDSTEIN ESQ.
Albany County Attorney 	PHILIP BANASZEK, ESQ.
Counsel for Defendant Kindlon 	Assistants County Attorney
112 State Street, Room 600
Albany, NY 12207
THE TOWNE LAW FIRM, P.C. 	JOHN W. LIGUORI, ESQ.
Co-counsel for Defendant Kindlon
500 New Karner Road
P.O. Box 15072
Albany, NY 12212
GLENN T. SUDDABY, United States District Judge
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DECISION and ORDER
Currently before the Court, in this civil rights action filed by the five above-captioned
individuals (“Plaintiffs”) against the eight above-captioned employees of the State of New York
or one of its counties or cities, is the motion of Anthony J. DiMartino, Jr., and Don Hilton
(“Oswego Defendants”) for judgment on the pleadings with regard to Plaintiff Joseph Mann’s
claims against them pursuant to Fed. R. Civ. P. 12(c). 	(Dkt. No. 149.) 	For the reasons set forth
below, the Oswego Defendants’ motion is construed as properly arising under Fed. R. Civ. P.
12(h)(3), and that motion is granted.
I. 	RELEVANT BACKGROUND
A. 	Relevant Procedural History
Generally, in the Complaint, Plaintiff Mann asserts claims against the Oswego
Defendants under 42 U.S.C. § 1983, challenging numerous provisions of New York Concealed
Carry Improvement Act (“CCIA”) primarily on Second Amendment grounds. 	(See generally
Dkt. No. 1.)
Generally, in its Decision and Order of November 10, 2022, the Court found that Plaintiff
Mann had standing to assert challenges to various of those provisions, including paragraph “(n)”
of N.Y. Penal Law §§ 265.01-e(2), which prohibited carrying a firearm in “any place,
conveyance, or vehicle used for public transportation or public transit, subway cars, train cars,
buses, ferries, railroad, omnibus, marine or aviation transportation; or any facility used for or in
connection with service in the transportation of passengers, airports, train stations, subway and
rail stations, and bus terminal.” 	(See generally Dkt. No. 78.) 	Furthermore, the Court
preliminary enjoined the enforcement of various of those provisions, including paragraph “(n).”
(Id. at 182-84.)
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In their appeal, the State Defendants expressly stated in a footnote that they did “not
appeal the injunction as it applies to . . . privately chartered vans and buses, which are the only
forms of ground transportation mentioned in the complaint . . . and in the district court’s standing
analysis . . . .” 	Antonyuk v. Nigrelli, No. No. 22-2908, Brief for Appellants Nigrelli and Doran,
at 61, n.14 (2d Cir. filed Jan. 9, 2023). 	The reason they did not do so, stated the State
Defendants, was as follows, in pertinent part:
The CCIA does not apply to private buses or vans. . . . The scope of the
provision is confirmed by the canons of noscitur a sociis and ejusdem
generis, because the examples of transportation referenced in the relevant
statutory provision are forms of public transportation; none are exclusively
private transportation. . . .
And the injunction does not apply to buses used in public transit.
The district court correctly stated that ‘Metropolitan Transportation
Authority buses are not an issue in this action.’ . . . . Nothing in the
opinion suggests that plaintiffs had standing to challenge the restriction as
to any public-transit system. . . . .
No other Defendant did so either. 	Antonyuk v. James, 120 F.4th 941, 960 (2d Cir. 2024)
(“The State challenged each aspect of the injunction except for the portion concerning the
CCIA's application to buses and airports. No Plaintiff cross-appealed or otherwise challenged
any aspect of the district court's decision adverse to them.”).
In its decision, the Second Circuit did not expressly analyze, or opine on, the issue of
New York’s firearm carry ban on “busses” or “vans.” 	See generally Antonyuk, 120 F.4th at
941-1048. 	Nonetheless, the Second Circuit vacated the injunction in “all . . . respects” other
than with regard to (1) social media disclosure, (2) private property held open to the general
public, and (3) places of worship (i.e., it vacated the injunction with regard to the Fellowship
Baptist Church bus). 	Antonyuk, 120 F.4th at 1048.
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B. 	Summary of Parties’ Arguments
1. 	Oswego Defendants’ Opening Memorandum of Law
Generally, in their memorandum of law, the Oswego Defendants argue that Plaintiff
Mann lacks standing to challenge any portion of the CCIA’s restriction on Firearm Possession in
“sensitive locations.” 	(Dkt. No. 149, Attach. 2, at 13.)4 	More specifically, the Oswego
Defendants assert six arguments. 	(Id.)
First, the Oswego Defendants argue, Plaintiff Mann lacks standing to challenge the
CCIA’s restriction on firearm possession in “places of worship” as a result of its amendment on
May 3, 2023. 	(Id. at 16-17.)
Second, the Oswego Defendants argue, Plaintiff Mann lacks standing to challenge the
CCIA’s restriction on firearm possession in “theaters, conference centers, and banquet halls”
because the Fellowship Baptist Church is not a “banquet hall.” 	(Id. at 18-20.)
Third, the Oswego Defendants argue, Plaintiff Mann lacks standing to challenge the
CCIA’s restriction on firearm possession at First Amendment gatherings because worship
services and religious assemblies do not fall within the legislature’s intended definition of N.Y.
Penal Law § 265.01-e(2)(s). 	(Id. at 20-23.)
Fourth, the Oswego Defendants argue, Plaintiff Mann lacks standing to challenge the
CCIA’s restriction on firearm possession at “any place, conveyance, or vehicle used for public
transportation or public transit . . .” as stated in paragraph “(n)” of N.Y. Penal Law § 265.01-
e(2), because, as a matter of statutory interpretation, a van or bus privately owned by the
4 	The Court notes that page citations in this Decision and Order refer to the screen numbers
on the Court's Case Management/Electronic Case Filing (“CM/ECF”) System, not to the page
numbers stated on the documents contained therein.
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Fellowship Baptist Church is not even arguably covered by this paragraph, which expressly
prohibits firearms only on types of mass “public transportation or public transit.” 	(Id. at 23-
24.) 	In support of this argument, the Oswego Defendants argue that the Court’s understanding
of the former phrase should be informed by “the company the phrase keeps,” which requires the
Court to consider the phrase’s accompanying list of eight types of transportation: “subway cars,
train cars, buses, ferries, railroad, omnibus, marine or aviation transportation.” 	(Id. at 24.)
Alternatively, the Oswego Defendants argue, Plaintiff Mann fails to allege facts plausibly
suggesting that he will personally carry a concealed weapon on his church bus or van when it is
being used in public (to transport church members, their youth, and members of the public) in
violation of the CCIA. 	(Id. at 24-25.)
Fifth, the Oswego Defendants argue, Plaintiff Mann lacks standing to challenge the
CCIA’s restriction on firearm possession at “any location providing health, behavioral health, or
chemical dependence care services” because the Fellowship Baptist Church does not fall within
the legislature’s intended definition of N.Y. Penal Law § 265.01-e(2)(b). 	(Id. at 25-28.)
Sixth, the Oswego Defendants argue, Plaintiff Mann lacks standing to challenge the
CCIA’s restrictions on firearm possession in any “sensitive location” because his intended
carriage is lawful under the newly amended version of the CCIA. 	(Id. at 28-29.)
2. 	Plaintiff Mann’s Opposition Memorandum of Law
Generally, in his opposition memorandum of law, Plaintiff Mann asserts three arguments.
(Dkt. No. 157.) 	First, Plaintiff Mann argues, it opposes only the Oswego Defendants’ fourth
argument (regarding “any place, conveyance, or vehicle used for public transportation or public
transit,” specifically buses), effectively consenting to the Oswego Defendants’ remaining five
arguments. 	(Id. at 3, 5.)
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Second, Plaintiff Mann argues that, with regard to the Oswego Defendants’ fourth
argument, the Oswego Defendants impermissibly attempt to read words into or out of the statute
for the following reasons: (a) the Court has already rejected the Oswego Defendants’ argument
that the word “public” modifies all of the words in paragraph “(n)” of N.Y. Penal L. § 265.01-
e(2), reasoning that the regulation lacks the words “such as” between the words “any . . . vehicle
used for public transportation or public transit,” and the words “subway cars, train cars, buses . .
.”; (b) because no Defendant appealed that part of this Court’s Decision and Order, the Second
Circuit did not opine on, or reject, this Court’s conclusion regarding this provision;5 and (c) left
without support in the text, the Oswego Defendants attempt to improperly rely on legislative
intent, which cannot override the text actually enacted. 	(Id. at 5-9.)
Third, Plaintiff Mann argues, in any event, his church bus would, in fact, qualify as a
form of “public transportation” under the CCIA, because that bus is treated by state law in the
same way as other “public” buses. 	(Id. at 8.)
3. 	Oswego Defendants’ Reply Memorandum of Law
Generally, in their reply memorandum of law, the Oswego Defendants assert four
arguments. 	(Dkt. No. 158.) 	First, the Oswego Defendants argue, because Plaintiff Mann
opposes only the Oswego Defendants’ fourth argument, the Court should accept the Oswego
Defendants’ other five arguments. 	(Id. at 3.) 	Indeed, the Oswego Defendants argue, because
Plaintiff Mann sets forth arguments with regard to only the church bus (and not also the church
van), the Court should accept the Oswego Defendants’ fourth argument with regard to vans.
5 	Plaintiff Mann alternatively argues that, even if the preliminary injunction as to his
church bus had been vacated (which he disputes), that fact would not require the dismissal of that
claim because the Court may still provide permanent relief on that claim at the appropriate time.
(Dkt. No. 157, at 4, n.2.)
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(Id. at 3, n.1.)
Second, the Oswego Defendants argue that the Second Circuit vacated the injunction
with regard to the church bus because Plaintiff Mann lacked standing. 	(Id. at 5-7.) 	Most
notably, the Oswego Defendants argue that the reason that no Defendant appealed that part of
this Court’s Decision (and Order and the Second Circuit did not expressly opine on it) is that, in
their appellate brief, the State Defendants expressly conceded that “[t]he CCIA does not apply to
private buses or vans.” 	(Id.) 	The Oswego Defendants further argue that, apparently agreeing
that the CCIA does not apply to privately owned vehicles, the Second Circuit vacated the
injunction in “all . . . respects” other than with regard to (1) social media disclosure, (2) private
property held open to the general public, and (3) places of worship (i.e., it vacated the injunction
with regard to the Fellowship Baptist Church bus). 	(Id.)
Third, the Oswego Defendants’ interpretation of the relevant statutory language is
concurrent with the analysis undertaken by the Second Circuit in its amended opinion. 	(Id. at 7-
12.) 	Most notably, the Oswego Defendants argue that, even setting aside the above-referenced
concession, their interpretation of the relevant statutory language is supported by the use of the
canon of statutory construction noscitur a sociis (requiring that the meaning of an unclear word
or phrase be determined by the words immediately surrounding it). 	(Id. at 7-9.) 	The Oswego
Defendants also argue that their interpretation is consistent with (a) the CCIA’s central objective
(to prohibit firearm possession in publicly owned and operated locations and areas where large
numbers of people are likely to gather), (b) the CCIA’s general practice of expressly
distinguishing between “public” and “private” locations where intended, and (c) the Supreme
Court’s admonition against “expanding the category of ‘sensitive places’ simply to all places of
public congregation that are not isolated from law enforcement . . . .” 	(Id. at 10-12.)
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Fourth, the Oswego Defendants argue, Plaintiff Mann has failed to address their
argument that the version of the CCIA that was amended on May 3, 2023, permits him to carry
his firearm to provide security and protection to his congregation while on church property
(including its bus), rendering his claim moot. 	(Id. at 12-13.)
II. 	GOVERNING LEGAL STANDARD
Although the Oswego Defendants cast their motion as one for judgment on the pleadings
arising under Fed. R. Civ. P. 12(c), it is “proper[ly]” construed as one to dismiss for lack of
subject-matter jurisdiction under either Fed. R. Civ. P. 12(b)(1) or 12(h)(3). 	See Alliance For
Environmental Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88, n.6 (2d Cir. 2006)
(“Although we have noted that standing challenges have sometimes been brought under Rule
12(b)(6), as well as Rule 12(b)(1) . . . , the proper procedural route is a motion under Rule
12(b)(1). . . . Presenting and considering a challenge to lack of Article III standing under Rule
12(b)(1) avoids the needs to fashion a modified approach to a Rule 12(b)(6) motion that concerns
standing [so that the court may render findings of fact].”) (citations omitted).
Indeed, the Oswego Defendants’ prior attempt to challenge Plaintiff Mann’s claims
against them based on a lack of standing was cast as one to dismiss for lack of subject-matter
jurisdiction under Fed. R. Civ. P. 12(b)(1). 	(Dkt. No. 46.) 	Although the subsequent filing of an
Answer rendered Fed. R. Civ. P. 12(b)(1) “technically no[] [longer] the correct procedural
vehicle” for a renewed such motion for lack of subject-matter jurisdiction, it did nothing to
render Fed. R. Civ. P. 12(h)(3) unavailable. 	Greystone Bank v. Tavarez, 09-CV-5192, 2010 WL
3325203, at *1 (E.D.N.Y. Aug. 19, 2010) (“[T]he Court notes that, because Defendant has
answered, a 12(b)(1) motion is technically not the correct procedural vehicle for its challenge to
the Court's subject matter jurisdiction. 	However, Fed. R. Civ. P. 12(h)(3) provides that ‘[i]f the
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court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.’” 	Other than the ability to be filed after an Answer, the distinction between a motion
filed under Fed. R. Civ. P. 12(b)(1) and one filed under Fed. R. Civ. P. 12(h)(3) is “largely
academic.” 	Greystone Bank, 2010 WL 3325203, at *1 (“Accordingly, the Court will construe
the motion as a motion pursuant to Rule 12(h)(3). 	Except for the pre-answer limitation on Rule
12(b)(1) motions, the distinction between a Rule 12(b)(1) motion and a Rule 12(h)(3) motion is
largely academic, and the same standards are applicable to both types of motions.”).
Generally, a challenge to standing can be either “facial” (i.e., based solely on the
complaint and the documents attached to it) or “fact-based” (i.e., based also on record evidence
outside the pleadings). 	See Carter v. HealthPort Tech., LLC, 822 F.3d 47, 56 (2d Cir. 2016)
(“A Rule 12(b)(1) motion challenging subject matter jurisdiction may be either facial or fact-
based.”). 	In addition, the standing that is challenged can be either “constitutional” in nature
(arising under Article III of the Constitution) or “prudential” in nature. 	See Warth v. Seldin, 422
US 490, 498, 95 S. Ct. 2197 (1975) (“[Standing asks] whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues . . . This inquiry involves both
constitutional limitations on federal-court jurisdiction and prudential limitations on its
exercise.”).
Where (as here) a defendant asserts a facial challenge based on lack of constitutional
standing, the plaintiff bears the burden of alleging facts that affirmatively and plausibly suggest
the plaintiff has standing to sue in federal court. 	See Carter, 822 F.3d at 56 (“When the Rule
12(b)(1) motion is facial, i.e., based solely on the allegations of the complaint or the complaint
and exhibits attached to it . . . , the plaintiff has no evidentiary burden . . . . The task of the
district court is to determine whether the Pleading alleges facts that affirmatively and plausibly
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suggest that the plaintiff has standing to sue.”) (internal quotation marks and citation omitted).
However, when deciding such a challenge, the court must not only accept as true all
material factual allegations in a complaint but draw all reasonable inferences in favor of the
plaintiff. 	See John v. Whole Foods Market Group, Inc., 858 F.3d 732, 737 (2d Cir. 2017)
(“When the defendant asserts a ‘facial’ challenge to standing, therefore, it remains the case that
courts should continue to draw from the pleadings all reasonable inferences in the plaintiff's
favor and are to presume that general allegations embrace those specific facts that are necessary
to support the claim.”) (internal quotation marks omitted); Carter, 822 F.3d at 57 (“On appeal,
we review the district court's decision on such a facial challenge de novo, . . . accepting as true
all material factual allegations of the complaint . . . , and drawing all reasonable inferences in
favor of the plaintiff.”) (internal quotation marks and citations omitted); Lunney v. United States,
319 F.3d 550, 554 (2d Cir. 2003) (“When (as here) a jurisdictional challenge under Fed. R. Civ.
P. 12(b)(1) is addressed to the complaint, a court accepts as true all the factual allegations in the
complaint and must draw all reasonable inferences in favor of the plaintiff.”).
III. 	ANALYSIS
All of the Oswego Defendants’ arguments challenge Plaintiff Mann’s standing.
Generally, “a plaintiff has Article III standing to bring a pre-enforcement challenge to a criminal
statute if he or she can demonstrate: (1) an intention to engage in a course of conduct arguably
affected with a constitutional interest; (2) that the intended conduct is proscribed by the
challenged law; and (3) that there exists a credible threat of prosecution thereunder.” 	Antonyuk
v. James, 120 F.4th 941, 1004 (2d Cir. 2024) (internal quotation marks omitted). 	In applying
this standard, “courts are to consider whether the plaintiff's intended conduct is arguably
proscribed by the challenged statute, not whether the intended conduct is in fact proscribed.”
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Picard v. Magliano, 42 F.4th 89, 98 (2d Cir. 2022) (internal quotation marks omitted). 	Thus, “if
a plaintiff's interpretation of a statute is reasonable enough[,] and under that interpretation, the
plaintiff may legitimately fear that it will face enforcement of the statute, then the plaintiff has
standing to challenge the statute.” Picard, 42 F.4th at 98.
A. 	All Arguments Other than Those Regarding N.Y. Penal Law § 265.01-e(2)(n)
The Court accepts all of the Oswego Defendants’ arguments other than those regarding
N.Y. Penal Law § 265.01-e(2)(n) for the first reason set forth in the Oswego Defendants’ reply
memorandum of law (i.e., Plaintiff Mann’s failure to oppose those arguments). 	See, supra, Part
I.B.3. of this Decision and Order.
Generally, in this District, when a non-movant fails to oppose a legal argument asserted
by a movant, the movant’s burden with regard to that argument is lightened, such that, in order to
succeed on that argument, the movant need only show that the argument possess facial merit,
which has appropriately been characterized as a “modest” burden. 	See N.D.N.Y. L.R. 7.1(a)(3)
(“Where a properly filed motion is unopposed and the Court determines that the moving party
has met its burden to demonstrate entitlement to the relief requested therein, the non-moving
party’s failure to file or serve any papers as this Rule requires shall be deemed as consent to the
granting or denial of the motion, as the case may be, unless good cause is shown.”); Rusyniak v.
Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.)
(collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at *2 & nn.2, 3
(N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
Here, the Court finds at least facial merit to each of these unopposed arguments for the
reasons set forth in the Oswego Defendants’ opening memorandum of law. 	See, supra, Part
I.B.1. of this Decision and Order.
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B. 	Arguments Regarding N.Y. Penal Law § 265.01-e(2)(n)
1. 	Arguments Other than Those Regarding Concession, Vacatur and
Statutory Construction
The Court begins by observing that it is not persuaded by the alternative argument set
forth in the Oswego Defendants’ opening memorandum of law (i.e., that Plaintiff Mann has
failed to allege facts plausibly suggesting that he will personally carry a firearm on his church
bus or van when it is being used in public in violation of the CCIA). 	See, supra, Part I.B.1. of
this Decision and Order. 	Granted, previously the Court found that Plaintiff Mann does not
expressly allege that he has routinely carried his licensed handgun concealed while riding on his
church bus in public. 	(Dkt. No. 78, at 59.) 	However, the Court hastened to add that it “finds
that inference to be reasonable based on his other sworn assertions (including his assertion that
he considers it his duty to “protect [his] congregation, including [its] children,” and his assertion
that he “frequently ha[s] traveled to the homes of persons addicted to drugs” as part of his
addiction-recovery ministry and has “carried [his] firearm” when doing so).” 	(Id.)
Similarly, the Court is not persuaded by the fourth argument set forth in the Oswego
Defendants’ reply memorandum of law (i.e., that the May 2023 amendment to the CCIA creates
an exception for Plaintiff Mann to carry his firearm to provide security and protection to his
congregation while on church property including its bus, rendering his claim moot). 	See, supra,
Part I.B.3. of this Decision and Order. 	The CCIA’s “except[ion] for those persons responsible
for security” is expressly limited to their possession of a firearm “at any place of worship.”
N.Y. Penal Law § 265.01-e(2)(c). 	Under the circumstances, the Court need not rely on the fact
that, under New York State law, the term “place of worship” generally appears to refer to a
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building or structure at a fixed location.6 	More important is the fact that the very provision at
issue in the Oswego Defendants’ motion (regarding public transportation) expressly
distinguishes between “place[s]” and “vehicle[s]. 	See N.Y. Penal Law § 265.01-e(2)(n) (“any
place, conveyance, or vehicle used for public transportation or public transit . . .”) (emphasis
added). 	In any event, Plaintiff Mann does not allege that he intends to use the bus as a place of
worship; rather, he alleges that he uses the bus “to take church members, youth, and members of
the public with [him] when [he] travel[s],” including for “church business to travel to various
locations,” as well as “hypothetically . . . to go on a hunting trip, or to the shooting range,” or “on
a skeet shooting trip . . . .” 	(Dkt. No. 1, at ¶¶ 98, 195; Dkt. No. 1, Attach. 9, at ¶ 33.)7
2. 	Arguments Regarding Concession and Vacatur
A closer question is presented by the second argument presented in the Oswego
Defendants reply memorandum of law (i.e., that, in their appellate brief, the State Defendants
expressly conceded that “[t]he CCIA does not apply to private buses or vans,” and that the
Second Circuit must have agreed with that concession because it vacated the portion of the
preliminary injunction that regarded the church bus and van), but ultimately the Court has
6 	See, e.g., N.Y. Alc. Bev. Con. § 64(7)(a) (“No retail license for on-premises consumption
shall be granted for any premises which shall be . . . on the same street or avenue and within two
hundred feet of a building occupied exclusively as a school, church, synagogue or other place of
worship . . . .”); Winterton Properties, LLC v. Town of Mamakating Zoning Bd. of Appeals, 132
A.D.3d 1141, 1142 (N.Y. App. Div., 3d Dep’t 2015) (defining a “neighborhood place of
worship” as meaning “a building or location set aside in a certain area for any form of religious
devotion, ritual, or service showing reverence”); cf. Geisinsky v. Village of Kings Point, 226
A.D.2d 340, 341 (N.Y. App. Div., 2d Dep’t 1996) (holding that “a tent temporarily erected” for
Yom Kippur services was not a "house of worship" within the meaning of a village code).
7 	The Court notes that Plaintiff Mann’s declaration was both attached to and incorporated
by reference in his Complaint.
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trouble relying on that argument. 	See, supra, Part I.B.3. of this Decision and Order.8
The State Defendants' concession narrowly interpreting N.Y. Penal Law § 265.01-e(2)(n)
during the course of this litigation does not destroy Plaintiff Mann’s standing, because nothing
(including the doctrine of judicial estoppel) prevents the State Defendants from changing their
view of the law. 	See Vermont Right to Life Committee v. Sorrell, 221 F.3d 376, 383 (2d Cir.
2000) (“The State also argues that VRLC's fear of suit could not possibly be well-founded
because the State has no intention of suing VRLC for its activities. While that may be so, there is
nothing that prevents the State from changing its mind. It is not forever bound, by estoppel or
otherwise, to the view of the law that it asserts in this litigation.”); accord, Citizens for
Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1192-93 (10th
Cir.2000) (citing Vt. Right to Life when rejecting the state’s reliance on its representation that the
plaintiffs will not be prosecuted).
Similarly, under the circumstances, the Second Circuit’s vacatur concerning the church
bus and van does not destroy Plaintiff Mann’s standing. 	Of course, generally, a federal circuit
court may vacate a portion of a preliminary injunction that was never challenged on appeal (i.e.,
sua sponte) if (1) its jurisdiction has been triggered by an appellate challenge to other portions of
that preliminary injunction, and (2) the challenged portions are inextricably intertwined with the
unchallenged portion (such that a review of the unchallenged portion is necessary to ensure a
8 	The Court notes that is so even though the Oswego County Defendants have made a
similar concession on their current motion. 	(See Dkt. No. 149, Attach. 2 [Oswego Defs.’
Memo. of Law, arguing that “as a matter of statutory interpretation, a van or bus privately owned
by the Fellowship Baptist Church is not even arguably covered by this paragraph, which
prohibits firearms on types of mass public transportation or public transit”] [internal quotation
marks omitted].)
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meaningful review of the challenged portions). 	S.E.C. v. Smith, 710 F.3d 87, 94 (2d Cir. 2013).
However, when a federal circuit court does not state its grounds for vacating an unchallenged
portion of the preliminary injunction, generally it would be imprudent for a district court on
remand to infer those grounds. 	Cf. Matter of Fed. Bureau of Prisons’ Execution Protocol
Cases, 485 F. Supp.3d 233, 240 (D.D.C. 2020) (“[I]t would be improper for the court to interpret
the Supreme Court's vacatur as an indication of how this court should resolve the dispute on the
merits.”). 	This is because a circuit court’s vacatur can have been based on other grounds,
including the likelihood of success, irreparable harm, balance of equities, public interest, an
intervening change of controlling law, or simply to allow the district court to reconsider the
matter in light of the circuit court’s other holdings. 	Here, the most the Second Circuit indicated
on the subject was that it had “concluded either that the district court lacked jurisdiction because
no plaintiff had Article III standing to challenge the laws or that the challenged laws do not
violate the Constitution on their face.” 	Antonyuk v. James, 120 F.4th 941, 1048 (2d Cir. 2024)
(emphasis added). 	Simply stated, the Court would be hazarding a guess akin to flipping a coin
if it were to apply the law-of-the-case doctrine (or specifically, the mandate rule) to the issue of
Plaintiff Mann’s standing to challenge N.Y. Penal Law § 265.01-e(2)(n).
3. 	Arguments Regarding Statutory Construction
However, having said all of that, the Court largely accepts the threshold argument set
forth in the Oswego Defendants’ opening memorandum of law and the third argument set forth
in their reply memorandum of law (i.e., that a careful construction of the statute requires a
finding that it does not apply to Plaintiff Mann’s church bus or van). 	See, supra, Parts I.B.1.
and I.B.3. of this Decision and Order.
Before conducting a statutory construction, the Court must first consider whether the
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statutory text is clear on its face. 	In its entirety, N.Y. Penal Law § 265.01-e(2)(n) provides as
follows: “For the purposes of this section, a sensitive location shall mean . . . any place,
conveyance, or vehicle used for public transportation or public transit, subway cars, train cars,
buses, ferries, railroad, omnibus, marine or aviation transportation; or any facility used for or in
connection with service in the transportation of passengers, airports, train stations, subway and
rail stations, and bus terminals.”
Thus, the sentence begins with a definitional phrase (“any place, conveyance, or vehicle
used for public transportation or public transit”) then immediately proceeds to a list of nouns
(“subway cars, train cars, buses, ferries, railroad, omnibus, marine or aviation transportation”),
each of which refers to places, conveyances or vehicles that may be public in nature (potentially
rendering the list grammatically redundant), and some of which refer to places, conveyances or
vehicles that may be private in nature (rendering the list ambiguous).9 Moreover, the lack of a
syntactic marker (e.g., “such as,” “including,” “specifically,” or a colon) between the definitional
phrase and the list of nouns obscures whether the listed nouns are intended to function as
examples falling within the scope of the definitional phrase (whether exhaustive or merely
illustrative in nature) or independent nouns subject to a different scope. 	For these reasons, the
language is reasonably susceptible to more than one meaning and in need of statutory
interpretation.10
9 	Specifically, private “buses,” “marine [transportation],” and “aviation transportation”
exist in New York State. 	Indeed, it appears arguable that private “ferries,” “railroads,” and
“train cars” also exist in New York State.
10 	Under the circumstances, the Court need not rely on the fact that the sentence does not
make clear whether the word “any” modifies only the immediately following nouns (“place,
conveyance, or vehicle used for public transportation or public transit”) or whether it also
governs the subsequently listed nouns, which themselves vary in grammatical number and form,
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Here, the Court finds it appropriate to begin its statutory interpretation by considering the
application of the “commonsense” canon of noscitur a sociis.11 	2A Sutherland Statutory
Construction § 47.16 (7th ed.); see, e.g., Antonyuk v. James, 120 F.4th 941, 1036 (2d Cir. 2023)
(“Our intuitive understanding is confirmed by an examination of the company the phrase
keeps.”). 	“Noscitur a sociis means literally ‘it is known from its associates,’ and means
practically that a word may be defined by an accompanying word, and that, ordinarily, the
coupling of words denotes an intention that they should be understood in the same general
sense.” 	2A Sutherland Statutory Construction § 47.16 (7th ed.).
In arguing that the canon of noscitur a sociis applies, the Oswego Defendants ask the
Court to rely on the Second Circuit’s examination of the company kept by the specific term
“banquet halls” after the general term “any place used for . . . performance, art entertainment,
alternating between plural nouns (“subway cars,” “train cars,” “buses,” “ferries”), singular nouns
(“railroad,” “omnibus”), and abstract nouns (“marine or aviation transportation”). The Court also
need not rely on the fact that the list terminates irregularly, lacking a coordinating conjunction
before the compound phrase “marine or aviation transportation.”
11 	The Court notes that, in their Appellate Brief, the State Defendants expressly relied also
on the related canon of ejusdem generis. 	“Ejusdem generis means ‘of the same kind,’ and is a
variation of the maxim noscitur a sociis. 	Ejusdem generis instructs that, where general words
follow specific words in an enumeration describing a statute's legal subject, the general words
are construed to embrace only objects similar in nature to those objects enumerated by the
preceding specific words.”). 	2A Sutherland Statutory Construction § 47.17 (7th ed.). 	Granted,
the canon of ejusdem generis can apply where, as here, the general term precedes (not follows)
the specific enumeration. 	Id. (“The doctrine applies equally to the opposite sequence, i.e.,
specific words following general ones, to restrict application of the general terms to things that
are similar to those enumerated.”). 	However, the Court has been unable to find any cases
applying the doctrine so as to restrict, limit or narrow the construction of the specific words or
terms in a statute (in light of the general words or terms in a statute), as desired by the Oswego
County Defendants here; rather, the doctrine appears to be properly applied only to restrict, limit
or narrow the construction of the general words or terms (in light of the specific words or terms).
This makes sense given that the express focus of the doctrine appears to be on determining what
unlisted terms are “of the same kind” as the general terms (in light of the specific terms listed).
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gaming, or sporting events” in N.Y. Penal Law § 265.01-e(2)(p). 	(Dkt. No. 158, at 9.)
Granted, the Court has some trouble relying on that examination, because the specific term in §
265.01-e(2)(p) is expressly prefaced by the syntactic marker “such as” – which is conspicuously
missing from N.Y. Penal Law § 265.01-e(2)(n). 	Antonyuk, 120 F.4th at 1036.12 	However, the
Court has no trouble relying on the Second Circuit’s application of the canon of noscitur a sociis.
This is because both of the cases relied on by the Second Circuit involved the construction of
particular terms in light of other particular terms (not the construction of particular terms in light
of a general term followed by the syntactic marker “such as”). 	Id. (citing Homaidan v. Sallie
Mae, Inc., 3 F.4th 595, 604 [2d Cir. 2021] and Freeman v. Quicken Loans, Inc., 566 U.S. 624,
634-35 [2012]).13
Turning to an application of the canon noscitur a sociis then, here, the disputed noun
“buses” appears alongside the nouns “subway cars,” “train cars,” “ferries,” “railroad,”
“omnibus,” “marine [transportation],” and “aviation transportation.” 	As stated above, each of
these eight nouns refers to a place, conveyance, or vehicle of transportation that may be public in
12 	The Court believes that the syntactic marker “such as” (like the syntactic markers “for
example” or “including”) were not used in N.Y. Penal Law § 265.01-e(2)(n) because the list of
nouns appears to be exhaustive. 	Instead, the syntactic markers “specifically” or “in particular”
could have been used to introduce that exhaustive list. 	The use of such a syntactic marker
would have obviated the need to invoke the canon of ejusdem generis. 	Cf. Cooper Distrib. Co.,
Inc. v. Amana Refrigeration, Inc., 63 F.3d 262, 280 (3d Cir. 1995) (“But the rule of ejusdem
generis applies only if the provision in question does not express a contrary intent. . . . 	Thus,
since the phrase ‘including, but not limited to’ plainly expresses a contrary intent, the doctrine of
ejusdem generis is inapplicable.”) (citations omitted).
13 	Specifically, in Homaidan, the Second Circuit relied on the canon of noscitur a sociis to
restrictively construe the term “educational benefit” in accordance with its accompanying terms
“scholarship” and “stipend.” 	Homaidan, 3 F.4th at 604. 	Similarly, in Freeman, the Second
Circuit relied on the canon of noscitur a sociis to restrictively construe the terms “portion” and
“percentage” in accordance with the intervening term “split.” 	Freeman, 566 U.S. 624, 634-35
(2d Cir. 2012).
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nature; and, indeed, one of the eight nouns (“subway cars”) refers to a vehicle that is clearly
exclusively public in nature. 	Moreover, none of these eight nouns refers to a place, conveyance,
or vehicle of transportation that is exclusively private in nature. 	Granted, the Court is given
pause by the fact that three (and arguably six) of the eight nouns refers to place, conveyance, or
vehicle of transportation that may be private in nature. 	See, supra, note 9 of this Decision and
Order). 	However, the Court finds the case of Gustafson v. Alloyd Co., 513 U.S. 561 (1995), to
be instructive.
In Gustafson, the Supreme Court interpreted the term “communication” in § 2(10) of the
Securities Act of 1933 to refer to a public communication, rather than any written
communication (i.e., public or private), because the term “communication” appeared in a list
along with the terms “prospectus, notice, circular, advertisement, [or] letter,” each of which
“apparent[ly] . . . refer[red] to documents of wide dissemination.” Gustafson, 513 U.S. at 575-76.
The Supreme Court rendered that finding even though the term “letter” could obviously refer to a
document of wide or narrow dissemination in a different context – just as the terms “buses,”
“marine [transportation],” and “aviation transportation” could refer to public or private means of
transportation in a different context.
The Supreme Court did so because it is attention to the current context that is demanded
by the canon of noscitur a sociis. 	And, in the current context, not only do all eight nouns in
N.Y. Penal Law § 265.01-e(2)(n) refer to a place, conveyance, or vehicle of transportation that
may be public in nature, but all eight nouns are immediately preceded by the definitional phrase
“any . . . vehicle used for public transportation or public transit.” 	As a result, upon further
reflection, the Court finds that a careful examination of the noun “buses” in light of its
accompanying language favors an interpretation of “buses” as meaning “public buses” rather
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than “public or private buses,” as if the entire list of eight nouns had been preceded by the
syntactic marker “specifically” (or perhaps “such as” if the list were not intended to be
exhaustive).
Such a construction is consistent with the “elementary rule” of statutory construction that
“effect must be given, if possible, to every word . . . of a statute.” 	See 2A Sutherland Statutory
Construction § 46.6 (7th ed.) (“It is an elementary rule of construction that effect must be given,
if possible, to every word, clause and sentence of a statute. Courts construe a statute to give
effect to all its provisions, so that no part is inoperative or superfluous . . . , unless a provision is
the result of obvious mistake or error.”) (internal quotation marks and footnotes omitted). 	This
is because, if the Court were to interpret N.Y. Penal Law § 265.01-e(2)(n) as if the syntactic
marker “specifically” (or perhaps “such as”) were not implied before the list of eight nouns
(which appear to encompass all of the any place, conveyance, or vehicle of transportation that
may be public in nature in New York State), then the definitional phrase “any . . . vehicle used
for public transportation or public transit” would be rendered grammatically redundant or
superfluous.
Such a construction is also consistent with the “cardinal rule” of statutory construction
that “the general purpose, intent or purport of the whole act shall control, and that all the parts
are subsidiary and harmonious to its manifest object, and if the language is susceptible of two
constructions, one which will carry out and the other defeat such manifest object, it should
receive the former construction.” 	See 2A Sutherland Statutory Construction § 46.5 (7th ed.).
This is because N.Y. Penal Law § 265.01-e(2)(n) does not merely list “any place, conveyance, or
vehicle used for public transportation or public transit, subway cars, train cars, buses, ferries,
railroad, omnibus, marine or aviation transportation”; it also lists “any facility used for or in
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connection with service in the transportation of passengers, airports, train stations, subway and
rail stations, and bus terminals.” 	With the exception of “airports,” all of the five facilities listed
appear exclusively public in nature. 	As a result, reading the earlier list of places, conveyances,
or vehicles as including private vehicles would appear to introduce an inconsistency between the
statute’s treatment of places, conveyances, or vehicles and its treatment of facilities.
Finally, the Court must address Plaintiff Mann’s third argument in his opposition
memorandum of law (i.e., that his church bus would, in fact, qualify as a form of “public
transportation” under the CCIA, because that bus is treated by state law in the same way as other
“public” buses). 	See, supra, Part I.B.2. of this Decision and Order. 	Even if the Court were to
accept Plaintiff Mann’s representation that the church must register its bus with the state
pursuant to Article 19-A of the N.Y. Veh. & Traf. Law,14 that fact (even when combined with
the fact that the church bus transports some members of the public on church business or
recreational trips) does not mean that the church bus is arguably a vehicle used for “public
transportation” for purposes of the N.Y. Penal Law.
Article 19-A of the N.Y. Veh. & Traf. Law primarily addresses driver qualification and
safety requirements. See, e.g., N.Y. Veh. & Traf. Law § 509-b (establishing qualification
14 	See N.Y. Veh. & Traf. Law § 509-a(1) (“[B]us shall mean every motor vehicle, owned,
leased, rented or otherwise controlled by a motor carrier, which . . . has a seating capacity of
more than ten adult passengers in addition to the driver and which is used for the transportation
of persons under the age of twenty-one or persons of any age who are mentally or physically
disabled to a place of . . . religious instruction or religious service including . . . camps . . . .”);
N.Y. Veh. & Traf. Law § 509-a(3) (“[M]otor carrier shall mean any person . . . or entity, public
or private, who directs one or more bus drivers and who operates a bus wholly within or partly
within and partly without this state . . . in the operation or administration of any . . . place of . . .
religious instruction or religious service for persons under the age of twenty-one or persons of
any age who are mentally disabled . . . .”). For the sake of brevity, the Court will assume that it
may take judicial notice of Form CDL-15 from the New York State Department of Motor
Vehicles website under Fed. R. Evid. 201.
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standards, including requirements that bus drivers possess valid driver’s licenses or permits, pass
physical examinations, and not be disqualified under the statute); N.Y. Veh. & Traf. Law § 509-c
(addressing disqualification of bus drivers generally); N.Y. Veh. & Traf. Law § 509-d
(addressing qualification procedures for bus drivers, maintenance of files and availability to
subsequent employers); N.Y. Veh. & Traf. Law § 509-e (requiring annual review of driving
record); N.Y. Veh. & Traf. Law § 509-k (prohibiting ill or fatigued operators).
In contrast, the N.Y. Penal Law generally treats term “public transportation” as meaning
a transportation service held out to the general public for a fee such as a service operated by a
common carrier. 	See New York v. Correa, 643 N.Y.S.2d 310, 312 (Crim. Ct., City of N.Y.,
Richmond Cnty. 1996) (referring to “public transportation” as something that requires “fares,”
and citing as examples “the Staten Island Rapid Transit Railroad,” “the Staten Island Ferry,” and
the “subway . . . in Manhattan”); New York v. Bridgman, 622 N.Y.S.2d 431, 433 (City Ct., City
of Canandaigua, N.Y. 1995) (equating a defendant’s access to “public transportation” to his
access to a “taxi service” in evaluating “extreme hardship”); New York v. Lee, 336 N.Y.S.2d 18,
22 (Crim. Ct., City of N.Y., N.Y. Cnty. 1972) (“[A] private limousine service is not a public
transportation service within the meaning of the Penal Law [§ 165.15(3), which proscribes the
theft of services] since unlike the enumerated forms of transportation enunciated as public
transportation [i.e., railroads, subways, buses, taxis, etc.], it is not a common carrier.”); cf. N.Y.
Penal Law. Section 240.00(2) (defining “transportation facility” as meaning “any conveyance . . .
used for or in connection with public passenger transportation . . . includ[ing] aircraft,
watercraft, railroad cars, buses, school buses” and related terminals) [emphasis added].
Here, Plaintiff Mann’s Complaint and Declaration appear bereft of any allegations or
assertions that the church bus either is held out to the general public or is so held out for a fee.
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(Dkt. No. 1, at ¶¶ 98, 195; Dkt. No. 1, Attach. 9, at ¶ 33.) As a result, the Oswego Defendants’
motion must be, and is, granted in its entirety.
ACCORDINGLY, it is
ORDERED that the Oswego Defendants’ motion to dismiss (Dkt. No. 149) is
GRANTED; and it is further
ORDERED that the remaining claims of Plaintiff Mann in his Complaint (Dkt. No. 1)
are DISMISSED without prejudice.15
Dated: February 23, 2026
Syracuse, New York
15 	Generally, dismissals for lack of subject-matter jurisdiction due to a lack of Article III
standing must be without prejudice. See Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 121 (2d
Cir. 2017) (“One other wrinkle: when a case is dismissed for lack of federal subject matter
jurisdiction, Article III deprives federal courts of the power to dismiss [the] case with prejudice. .
. . As a result, where a case is dismissed for lack of Article III standing, as here, that disposition
cannot be entered with prejudice, and instead must be dismissed without prejudice.”) (internal
quotation marks and citation omitted).
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