Lynch, et al. vs. Mellace II, et al.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Eric Lynch, et. al.,
Plaintiffs,
v. 	6:25-CV-1495
(MAD/MJK)
Frank Mellace II., et. al.,
Defendants.
_____________________________________________________________________
Eric Lynch, Bradly Kane, Camryn Lynch,
Christine Lynch, Richard Lynch, Plaintiffs pro se
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Mae A. D’Agostino, U.S. District Judge
ORDER & REPORT-RECOMMENDATION
Eric Lynch (“Lynch”), Bradly Kane, Camryn Lynch, Christine
Lynch, and Richard Lynch commenced this action on October 24, 2025
by filing a Complaint. (“Compl.,”Dkt. 1). Lynch also filed an application
for leave to proceed in forma pauperis (“IFP”). (Dkt. 2).1 The Clerk has
sent the Complaint and IFP application to this Court for review.
1 Bradly Kane, Camryn Lynch, Christine Lynch, and Richard Lynch have not filed
applications to proceed in forma pauperis. See Section IV(F) below for a discussion
on this issue. Only Eric Lynch has signed the Complaint.
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I. 	BACKGROUND
Defendants are all private attorneys who represented Lynch at
various stages of his March 9, 2017 arrest for burglary in the first
degree which resulted in a 12-count indictment and subsequent
conviction. (Compl., Dkt 1, ¶¶ 13, 32).
A. 	First Claim - Frank Mellace II
Lynch met with Mellace shortly after his arrest and agreed to pay
Mellace $12,500.00 to represent him. (Compl., ¶ 15). Plaintiffs allege
that Mellace:
a. 	failed to file a motion to have the “duplicitous charges
dismissed” (Compl., ¶ 18) which he admitted to “on the
record” during “oral argument” (Compl., ¶ 19);
b. allowed the “Court to seat numerous jurors who admitted
on the record to being related to New York State
Troopers, the police agency which arrested [Lynch],
investigated the alleged crimes, and of which numerous
officers testified against [Lynch] at trial.” (Compl., ¶ 20);
c. 	“knowingly and willfully failed to turn over evidence in
his possession which would have the reduced the charges
of Criminal Mischief in the second degree, a felony, to a
misdemeanor” (Compl., ¶ 22);
d. failed to object to the County Court “illegally empaneling
an anonymous jury in [Lynch’s] criminal trial” (Compl., ¶
24);
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e. failed to “object to the fact that numerous Jurors who
were related to members of the arresting agency,” “thus
allowing jurors with a very serious conflict of interest to
imprison [Lynch] on illegal and [d]uplicitous charges
(Compl., ¶ 25);
f. 	failed to “investigate the fact that the Honorable John H.
Crandall issued an illegal search warrant for [Lynch’s]
cell phone” (Compl., ¶ 27);
g. “refused to present any defense during [Lynch’s] criminal
trial even though he was in possession of information and
documents which proved that (1) [Lynch] was intoxicated
at the time of his arrest and (2) that [Lynch] suffered from
numerous mental health issues …” (Compl., ¶ 29);
h. “refus[ed] to present an intoxication and/or mental health
defense on behalf of [Lynch] during his criminal trial …”
(Compl., ¶ 30); and
i. 	“presented no defense, called no witnesses, presented no
evidence” …” (Compl., ¶ 31).
Plaintiffs claim that Mellace’s actions and/or inactions constitute
ineffective assistance of counsel, malpractice, negligence, breach of
contract in violation of his Fourth, Fifth, Sixth, and Fourteenth
Amendment rights.
Bradly and Camryn seek monetary damages for “los[ing] their
father for 8 and ½ years to Mellace[’s] ineffective assistance of counsel,
malpractice, negligence, and violations of [Lynch’s] Constitutional
Rights.” (Compl., ¶ 33).
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Christine and Richard seek monetary damages for “los[ing] their
son for 8 and ½ years” and having to “spend thousands of dollars are on
legal expenses …” (Compl., ¶ 33).
B. 	Second Claim - Frank Mellace II (Appeal)
After Lynch’s conviction, Christine Lynch and Richard Lynch paid
Mellace $20,000 to perfect an appeal. (Compl., ¶¶ 33, 34).
The Complaint alleges that Mellace:
a. “knowingly and willfully submitted” an “incomplete
Record on Appeal” to the New York State Appellate
Division, Fourth Department (Compl., ¶ 36);
b. failed to include “evidence of preservation” contained
in Lynch’s “Motion [p]ursuant to CPL § 330.30, 330.40,
and 330.50 …” (Compl., ¶ 36); and
c. 	“refused to submit to the Appellate Court numerous
arguments which would have overturned [Lynch’s] []
conviction.” (Compl., ¶ 38).
Because of Mellace’s “incompetence,” Lynch’s convictions were
affirmed. (Compl., ¶ 37). Plaintiffs claim that Mellace’s actions and/or
inactions constitute ineffective assistance of counsel, malpractice, and
negligence in violation of his Fifth and Fourteenth Amendment Due
Process rights. (Compl., ¶ 39).
Plaintiffs seek monetary damages on this claim.
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C. 	Third Claim - David A. Longeretta
On July 13, 2021, Longeretta sent a letter to Lynch’s parents
requesting $7,000 to review his file and to prepare a 440 motion.
(Compl., ¶ 40). Richard Lynch paid Longeretta on August 17, 2021.
(Compl., ¶ 41).
Plaintiffs allege that “Longeretta strung [Lynch] along with
excuses as to why nothing was being done on the 440.10 motion …”
(Compl., ¶ 41). On September 19, 2022, Longeretta informed Lynch’s
parents that the motion would be filed within two weeks. (Compl., ¶ 43).
Two weeks later, Longeretta introduced Defendant Brigano to Lynch,
representing that Brigano was a “440 specialist who had great success
in Herkimer County in the past.” (Compl., ¶ 44). Longeretta
subsequently told Lynch that the “440.10 Motion on Ineffective
Assistance of Counsel was complete” and would be filed by Brigano.
(Compl., ¶ 45). That same day, Brigano informed Lynch’s mother that
he “needed” an additional $5,000 “before he would file Plaintiff’s 440.10
motion.” (Compl., ¶ 46). Payment was made to Brigano. (Compl., ¶ 46).
Brigano subsequently moved to Texas and “never filed the 440.10
Motion” for Lynch. (Compl., ¶ 48).
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After Brigano moved to Texas, Lynch informed Longeretta that he
“needed to put his name on the 440.10 Motion” but Longeretta “kept
making excuses as to why he could not do that …” (Compl., ¶ 48). After
several more months of excuses, Longeretta informed Lynch that
another attorney, Defendant Schultz, would file the motion on his
behalf. (Compl., ¶ 49).
Schultz filed the 440.10 motion but withdrew it on June 6, 2023,
without Lynch’s authorization. (Compl., ¶¶ 50, 51). After that, Lynch
contacted Longeretta who informed Lynch that according to Schultz,
Judge Crandall “ordered him to withdraw [Lynch’s] 440.10 Motion
because he did not like the fact that the 440.10 Motion contained a
section on conflict of interest due to the fact that Herkimer County
District Attorney Jeffrey S. Carpenter has previously been Plaintiff’s
College Professor.” (Compl., ¶ 54).
Longeretta agreed to file the 440.10 motion and prepared another
draft “in which he removed the section about the District Attorney
sexually assaulting Plaintiff’s classmate …” (Compl., ¶ 55). Longeretta
mailed Lynch a copy of the 440.10 motion on June 27, 2023 for his
review. (Id.). Yet Longeretta never filed the 440.10 motion. (Compl., ¶
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56). On or about July 25, 2023, Roth filed the motion on Lynch’s behalf.
(Compl., ¶ 58). But in June 2024, Roth “dropped Plaintiff’s 440.10
Motion in exchange for a position as an Oneida County Public
Defender.” (Compl., ¶ 59). Lynch then requested that Longeretta “take
over as counsel on the 440.10 motion.” (Compl., ¶ 60). Longeretta denied
Lynch’s request, stating that “he had issues with the Herkimer County
District Attorney” and that “[Lynch] would have better luck in County
Court if he was to proceed pro se.” (Compl., ¶ 61).
The Complaint further alleges that Longeretta’s wife informed
Christine Lynch that “Longeretta had a sexual affair with the Herkimer
County District Attorney’s wife. (Compl., ¶ 63). At some point,
Longeretta acknowledged the sexual relationship to Lynch. (Compl., ¶
64).
Plaintiffs argue that Longeretta’s failure to “complete and file
Plaintiff’s 440.10 Motion” and failure to disclose his relationship with
the Herkimer County District Attorney’s wife constitutes ineffective
assistance of counsel, malpractice, negligence in violations of his due
process rights under the Fifth and Fourteenth Amendments. (Compl.,
¶¶ 68, 69).
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Plaintiffs seek money damages against Longeretta.
D. 	Fourth Claim – Anthony F. Brigano
The Complaint alleges that Lynch provided Brigano with evidence
of “jury stacking, jury tampering, an anonymous jury trial, withheld
evidence, missing witnesses, prosecutorial misconduct, and judicial
misconduct. (Compl., ¶ 71) (cleaned up). However, Brigano only
included evidence of ineffective assistance of counsel because “he knew
the Judge and knew that he would never grant any relief on anything
other than ineffective assistance of counsel.” (Compl., ¶ 71). Brigano
also failed to “find and/or address the illegal search warrant which was
used to obtain evidence from Plaintiff’s cellular phone.” (Compl., ¶ 79).
The Complaint further alleges that because of Brigano’s failure to
file the 440.10 motion despite having been paid $5,000, Lynch’s parents
and children “lost precious years” with him. (Compl., ¶ 77, 78).
Plaintiffs further claim that Brigano’s failure to file the 440.10
motion and address the “illegal search warrant” constitutes ineffective
assistance of counsel, malpractice, violations of the Model Rules of
Professional Conduct, breach of contract, and a violation of Lynch’s due
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process rights under the Firth and Fourteenth Amendments. (Compl., ¶
80).
Plaintiffs seek money damages against Brigano.
E. 	Fifth Claim – Kurt D. Schultz
As noted, Schultz withdrew the 440.10 motion on June 6, 2023
without Lynch’s authorization. (Compl., ¶ 84). Lynch became aware of
the 440.10 motion having been withdrawn only after his mother
purchased a copy of the docket sheet from the Herkimer County Clerk’s
office. (Compl., ¶ 85).
Plaintiffs claim that Schultz’s actions constitute ineffective
assistance of counsel, malpractice, negligence, breach of contract, unjust
enrichment, a violation of the Model Rules of Professional Conduct and
a violation of his due process rights under the Fifth and Fourteenth
amendments. (Compl., ¶ 89).
Plaintiffs seek money damages against Schultz.
F. 	Sixth Claim – William M. Roth
Plaintiffs allege that Roth’s “illegal dropping of [his] 440.10
Motion” and “forc[ing] [Lynch] to proceed pro se” constitutes ineffective
assistance of counsel, malpractice, negligence, breach of contract, unjust
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enrichment, a violation of the Model Rules of Professional Conduct and
a violation of his due process rights under the Fifth and Fourteenth
amendments.
Plaintiffs seek money damages against Roth.
II. 	IFP APPLICATION
Lynch declares in his IFP applications that he is unable to pay the
filing fee. (Dkt. 2). After reviewing his application, this Court finds that
Lynch is financially eligible for IFP status.
III. 	STANDARD OF REVIEW
Courts can sua sponte dismiss a case at any time if they determine
that an action is (1) frivolous or malicious; (2) fails to state a claim on
which relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. See 28 U.S.C. § 1915
(e)(2)(B)(i)-(iii).
When determining whether an action is frivolous, courts must
consider whether the complaint lacks an arguable basis in law or fact.
See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (cleaned up); see also
28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to
prevent abuses of court process as well as to discourage the waste of
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judicial resources. See Neitzke, 490 U.S. at 327; see also Harkins v.
Eldredge, 505 F.2d 802, 804 (8th Cir. 1974).
Courts must show liberality toward pro se litigants and use
extreme caution when sua sponte dismissing pro se complaints. See
Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d
Cir. 2000). Still, courts have a responsibility to determine that a claim
is not frivolous before permitting a plaintiff to proceed. See id.
IV. 	DISCUSSION
The District Court should dismiss the Complaint for lack of
subject matter jurisdiction.
This Court recommends dismissing the Complaint, in its entirety,
with prejudice and without leave to amend for lack of subject matter
jurisdiction. First, Defendants are private attorneys, not state actors,
for purposes of § 1983. Second, even if Defendants were state actors,
Plaintiff’s Fifth Amendment due process clause claims would still
warrant dismissal because Defendants are not federal agents acting
under the color of federal authority. Finally, Plaintiffs’ claims are
barred under Heck because they necessarily imply the invalidity of
Lynch’s conviction or sentence.
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A. The District Court should dismiss the Complaint
because there are no allegations that Defendants acted
“under color of state law.”
Lynch’s § 1983 Fifth Amendment due process clause, Sixth
Amendment for ineffective assistance of counsel, and Fourteenth
Amendment due process clause claims should be dismissed because
Defendants’ purported actions and/or inactions cannot be “fairly
attribut[ed] to the state.” Logan v. Bennington Coll. Corp., 72 F.3d
1017, 1027 (2d Cir. 1995) (quotation omitted). An essential element of a
§ 1983 claim is that the defendants acted “under color of state law.”
Wynder v. Goltzer, No. 24-CV-7925, 2025 WL 2207248, at *4 (S.D.N.Y.
Aug. 3, 2025) (citation omitted).
1. Fifth Amendment
The Fifth Amendment due process clause applies only to the
federal government, and not to state or municipal governments. See
Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due Process
Clause of the Fifth Amendment prohibits the United States, as the Due
Process Clause of the Fourteenth Amendment prohibits the States, from
depriving any person of property without due process of law.”). Yet here,
the Complaint does not allege that any federal official violated Lynch’s
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Fifth Amendment due process rights. The allegations are only against
private attorneys retained by Lynch. Accordingly, the Court
recommends that all Fifth Amendment claims against Defendants be
dismissed with prejudice and without leave to amend because any
amendment would be futile. See, e.g., Robinson v. Wright, No. 5:21-CV-
1098 (TJM/ML), 2022 WL 2663369, at *3 (N.D.N.Y. Jul. 11, 2022)
(dismissing the plaintiff’s Fifth Amendment claims because no
allegations made against any federal official).
2. Sixth Amendment Claims
“Private attorneys are generally not ‘state actors’ for purposes of §
1983.” O’Donoghue v. United States Soc. Sec. Admin., 828 F. App’x 784,
787 (2d Cir. 2020). And because Defendants were not acting “under
color of state law,” “an ineffectiveness cause of action [is] inappropriate
in a proceeding brought under § 1983.” Bourdon v. Loughren, 386 F.3d
88, 90 (2d Cir. 2004). Thus, the Court recommends the District Court
dismiss all Sixth Amendment ineffective assistance of counsel claims
with prejudice and without leave to amend because any amendment
would be futile. See Warren v. Fischl, No. 15-CV-2829, 2015 WL
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6760230, at *8 (E.D.N.Y. Nov. 5, 2015) (“[A]n ineffectiveness claim is
not actionable in a proceeding brought under § 1983.”) (cleaned up).
3. Fourteenth Amendment Claims
The Fourteenth Amendment “applies only to state action.” Cooper
v. U.S. Postal Serv., 577 F.3d 479, 491 (2d Cir. 2009). State action
requires “conduct by the United States or a state of the United States or
by someone acting under the color of their authority.” Mayer v. Mayer,
No. 11-CV-6385, 2012 WL 441182, at *2 (E.D.N.Y. Feb. 10, 2012). Here,
Plaintiffs do not allege any state action. See generally (Compl.). The
Court therefore recommends that the District Court dismiss the
Fourteenth Amendment due process claims against all Defendants with
prejudice and without leave to amend because any amendment would be
futile.
4. The claims for ineffective assistance of counsel are
barred under Heck v. Humphrey.
Plaintiffs’ § 1983 claims for ineffective assistance of counsel are
precluded by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the
Supreme Court held that plaintiffs may not recover damages under
§ 1983 if “a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence . . . unless the plaintiff can
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demonstrate that the conviction or sentence has already been
invalidated.” Id. at 487. To demonstrate that their conviction or
sentence has been invalidated, the plaintiff “must prove that the
conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court’s issuance
of a writ of habeas corpus.” Id. at 486-87. Here , Plaintiffs’ § 1983 claims
for ineffective assistance of counsel seek money damages and allege
that Lynch’s conviction and sentence would not have been imposed but
for Defendants’ respective errors in representing him. Accordingly,
Plaintiffs’ claims fail under Heck because they “necessarily imply the
invalidity of [Lynch’s] conviction or sentence” and Lynch has provided
no indication that his “conviction or sentence has already been
invalidated.” Heck, 512 U.S. at 487; see also Complaint ¶ 1 (alleging
that Lynch is “currently incarcerated as a state prisoner”).2 The Court
therefore recommends that the District Court dismiss the Complaint, in
2 The Heck rule is an independent reason to dismiss the claims for ineffective
assistance of counsel, in addition to Plaintiffs’ failure to allege state action as noted
above. See Warren v. Fischl, No. 15-CV-2829, 2015 WL 6760230, at *1-2 & n.2
(E.D.N.Y. Nov. 5, 2015), aff’d, 674 F. App’x 71 (dismissing claims brought under
Fifth, Sixth, and Fourteenth Amendments because, among other things, they were
“barred by Heck v. Humphrey”) (emphasis added).
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its entirety, with prejudice and without leave to amend. Any
amendment would be futile.
B. 	Bradly Kane and Camryn Lynch
Because this Court recommends that Lynch’s claims be dismissed
for lack of subject matter jurisdiction, his children’s claims should be
dismissed too. Even if the District Court does not accept this Court’s
recommendation and allows Lynch’s claims to proceed, the claims
asserted by Bradly Kane and Camryn Lynch should still be dismissed
because they are derivative of Lynch’s § 1983 claims. Should the
District Court decide that Bradly Kane and Camryn Lynch’s claims are
not derivative, their claims should still be dismissed because this Court
is unable to discern from the allegations in the Complaint if they are
minors. And if they are minors, their father may not prosecute this
action on their behalf; they need to be represented by an attorney. See
discussion at Section B(2) below.
1. Derivative Claims
Even if the Court allows Lynch’s claims to proceed, Bradly Kane
and Camryn Lynch’s claims should be dismissed as derivative. Bradly
Kane and Camryn Lynch allege that they “lost their father for 8 and ½
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years” and that they “lost years of precious time with their father” due
to the Defendants’ actions. See generally (Compl.). The Court interprets
their allegations as a claim for loss of consortium. “While the Second
Circuit has not addressed whether a plaintiff may bring a loss of
consortium claim pursuant to federal civil rights statutes, the weight of
authority holds they may not.” Rakchi v. City of New York, No. 24-CV-
01312, 2025 U.S. Dist.LEXIS 186281, at *14-5 (E.D.N.Y. Sept. 22,
2025); see also Wahhab v. City of New York, 386 F. Supp. 2d 277, 292
(S.D.N.Y. 2005) (“[Section] 1983 does not support derivative claims for
loss of consortium.”); Pritzker v. City of Hudson, 26 F. Supp. 2d 433, 445
(N.D.N.Y. 1998) (“Loss of consortium is not an independent cause of
action, but is derivative . . . [and] Section 1983 does not support a
derivative claim for loss of consortium.”). Therefore, to the extent
Bradly Kane and Camryn Lynch assert a claim for loss of consortium
under § 1983, they should be dismissed with prejudice and without
leave to amend.
2. Minor Children
Even if the District Court determines that Camryn Lynch and
Bradly Kane’s claims are not derivative, and that it has subject matter
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jurisdiction, this Court nevertheless recommends that their claims be
dismissed without prejudice and with leave to amend because the
Complaint does not allege how old they are. “A litigant in federal court
has a right to act as his or her own counsel.” Cheung v. Youth Orchestra
Found., 906 F.2d 59, 61 (2d Cir. 1990) (citing 28 U.S.C. § 1654). “The
statutory right to proceed pro se reflects a respect for the choice of an
individual citizen to plead his or her own cause.” Id. However, “a non-
attorney parent must be represented by counsel in bringing an action
on behalf of his or her child.” Id. This is because the choice to appear
pro se is not a true choice for minors who, under state law, cannot
determine their own legal actions. Id. (citing Fed. R. Civ. P. 17(b)).
Minor children “are entitled to trained legal assistance so their rights
may be fully protected.” Cheung v. Youth Orchestra Found., 906 F.2d at
61. Thus, the “court has an affirmative duty to enforce the rule that a
non-attorney parent must be represented by counsel when bringing an
action on behalf of his or her child.”3 Fauconier v. Comm. on Special
3 The Second Circuit has carved out limited exceptions to this general rule,
including for claims filed on behalf of minors under the Individuals with Disabilities
Education Act (“IDEA”) and actions relating to social security benefits. Liberally
construed, the allegations in the Complaint do not fall within any of the noted,
limited exceptions.
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Educ., No. 02 Civ. 1050, 2003 WL 21345549, at *1 (S.D.N.Y. June 10,
2003), aff’d sub nom. Fauconier v. Comm. on Special Educ., 112 F.
App’x 85 (2d Cir. 2004). The Court therefore recommends that Bradly
Kane and Camryn Lynch’s claims be dismissed without prejudice and
with leave to amend.
C. Christine Lynch and Richard Lynch
Because this Court recommends that Lynch’s claims all be
dismissed, his parents’ claims should be dismissed as well. Should the
District Court reject the recommendation as to Lynch’s claims, and
conclude that there is subject matter jurisdiction, Christine Lynch and
Richard Lynch’s claims should nevertheless be dismissed because they
are derivate of Lynch’s § 1983 claims. Specifically, the Complaint
alleges that “Christine Lynch and Richard Lynch lost their son for 8
and ½ years” and that they “lost years of precious time with their son”
due to the Defendants’ actions. See generally (Compl.). The Court
interprets their claim as effectively a claim for loss of consortium which
the Court recommends be dismissed against all Defendants with
prejudice and without leave to amend for the same reasons articulated
in § IV(C)(2) above.
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D. State Law Claims
The District Court should dismiss the state law claims. The
Complaint alleges that Plaintiffs are entitled to damages for “breach of
contract” and “unjust enrichment.” (Compl., Dkt. 1., at ¶¶ 1, 80, 89, 97)
arising from Defendants’ representation of Lynch. The Court interprets
these claims as arising under New York State law. District courts may
decline to exercise supplemental jurisdiction of state law claims when it
“has dismissed all claims over which it has original jurisdiction.” 28
U.S.C. § 1367(c)(3). In fact, “when the federal-law claims have dropped
out of the lawsuit in its early stages and only state-law claims remain,
the federal court should decline the exercise of jurisdiction.” Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, (1988). Having
recommended dismissal of the § 1983 federal claims—the claims over
which the District Court would have original jurisdiction if state action
was present—this Court recommends that the District Court decline to
exercise supplemental jurisdiction over any state law claims Plaintiffs
may be asserting and that they be dismissed without prejudice and
without leave to amend.
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E. Legal Malpractice and New York Rules of Professional
Conduct
In addition to precluding his federal claims for ineffective
assistance of counsel, Lynch’s conviction precludes Plaintiffs’ state-law
claims for legal malpractice under New York law. In New York, a
plaintiff seeking damages pursuant to a “legal malpractice [claim]
arising out of a criminal proceeding . . . bear[s] the unique burden to
plead and prove that the client’s conviction was due to the attorney’s
actions alone and not due to some consequence of his guilt.” Britt v.
Legal Aid Society, 95 N.Y.2d 443, 446-47 (2000). A legal-malpractice
claim “must allege [the plaintiff’s] innocence or a colorable claim of
innocence of the underlying offense,” and “[i]n order to open the door for
even a colorable claim of innocence, criminal defendants must free
themselves of the conviction, for the conviction precludes those potential
plaintiffs from asserting innocence in a civil suit,” Id. at 446-7; accord
Sash v. Schwartz, 356 F. App’x 555, 556 (2d Cir. 2009) (dismissing legal
malpractice claim because the plaintiff “failed to establish that his
conviction following a guilty plea was overturned”). Accordingly, “a
plaintiff cannot assert a cognizable malpractice claim under New York
law so long as his conviction stands.” McKiver v. City of New York, No.
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17-CV-4411, 2018 WL 3543906, at *3 (S.D.N.Y. Feb. 16, 2018), report
and recommendation adopted, 2018 WL 3628840 (S.D.N.Y. July 23,
2018).
The Complaint does not allege that Lynch’s conviction does not
stand. To the contrary, the Complaint alleges that Lynch is “currently
incarcerated as a state prisoner.” (Compl., Dkt. 1, at ¶ 1). Because
Lynch is not “free” of his conviction, his malpractice claims are barred
under New York law.
Lynch also alleges violations of the “Model Rules of Professional
Misconduct.” (Compl., Dkt. 1, at ¶¶ 1, 80, 89) which the Court
interprets as referring to the New York Rules of Professional Conduct
(the “NYRPC”). While a “[v]iolation of a Rule [in the NYRPC] should not
itself give rise to a cause of action against a lawyer,” a violation of a
Rule “may support a legal malpractice claim” “where proximate cause
and actual damages can be shown to have [resulted].” Applied
Energetics, Inc. v. Gusrae Kaplan Nusbaum PLLC, No. 21-CV-382, 2022
WL 956119, at *11 (S.D.N.Y. Mar. 30, 2022) (collecting cases). Even if
Lynch adequately alleges that a violation of a Rule proximately caused
him damages, his “conviction precludes [him] from asserting innocence
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in a civil suit,” and thus precludes him from stating a claim for legal
malpractice under New York law. Britt, 95 N.Y.2d at 447.
The Court therefore recommends that all claims for legal
malpractice and violation of the New York Rules of Professional
Conduct be dismissed without prejudice and without leave to amend.
F. Opportunity to Amend
Generally, before the court dismisses a pro se complaint or any
part of the complaint sua sponte, the court should afford a plaintiff the
opportunity to amend at least once; however, leave to re-plead may be
denied where any amendment would be futile. See Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present
when the problem with plaintiff’s causes of action is substantive such
that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted).
Here, any amendment would be futile because the Court lacks
subject matter jurisdiction over Plaintiffs’ claims. Also, the claims for
legal malpractice and violation of NYRPC cannot be amended to assert
a viable claim because Lynch’s conviction has not been overturned. No
amendment would alter these facts. But if the District Court rejects this
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24
Court’s recommendations and determines that there is subject matter
jurisdiction and the Complaint requires a response or that an amended
pleading be filed, Bradly Kane, Camryn Lynch4, Christine Lynch, and
Richard Lynch have not paid the statutory filing fee of $405.00 (only
one filing fee in the amount of $405.00 needs to be paid), have not
submitted an IFP application on their own behalf, and have not
personally signed the Complaint. See Compl. at 1, 6. Accordingly,
should Bradly Kane, Camryn Lynch. Christine Lynch, and Richard
Lynch continue this action, they must, within thirty (30) days from the
filing date of the District Court’s Memorandum Decision and Order, if
they are allowed to proceed with this action, (1) either (a) pay the
Court’s filing fee of $405.00 in full or (b) submit a completed, signed,
and certified IFP application, and (2) execute a copy of the Complaint or
any amended pleading, with their own original signature. If Bradly
Kane, Camryn Lynch, Christine Lynch, and Richard Lynch fail to do so,
this action will be dismissed without prejudice, without further Order of
the Court.
4 This directive is only applicable to Bradly Kane and Camryn Lynch if they are not
minors.
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V. 	CONCLUSION
WHEREFORE, based on the findings above, it is hereby
ORDERED that Lynch’s motion to proceed in forma pauperis
(Dkt. 2) is GRANTED,5 and it is further
RECOMMENDED that the Complaint (Dkt. 1) be DISMISSED
WITH PREJUDICE AND WITHOUT LEAVE TO AMEND for lack
of subject matter jurisdiction, and it is further
RECOMMENDED that even if the Complaint is not dismissed
for lack of subject matter jurisdiction, the claims asserted by Bradly
Lynch, Camryn Lynch, Christine Lynch, and Richard Lynch should all
be DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO
AMEND because their claims are derivative in nature of Lynch’s § 1983
claims, and it is further
RECOMMENDED, that if Bradly Lynch and Camryn Lynch’s
claims are not dismissed as duplicative of Lynch’s § 1983, their claims
should still be DISMISSED WITHOUT PREJUDICE AND WITH
5 Although his IFP application has been granted, Lynch will be required to pay fees
that he may incur in this action, including copying and/or witness fees.
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26
LEAVE TO AMEND because the Court cannot determine if Bradly
Kane and Camryn Lynch are minors, and it is further
RECOMMENDED, that if the District Court determines that
there is no subject matter jurisdiction, the District Court not exercise
supplemental jurisdiction over Plaintiffs’ state law claims, and it is
further
RECOMMENDED, that Plaintiffs’ claims for legal malpractice
and violation of the New York Rules of Professional Conduct be
dismissed without prejudice and without leave to amend, and it is
further
ORDERED that the Clerk provide Plaintiffs with a copy of this
Order and Report-Recommendation, along with copies of the
unpublished decisions cited herein in accordance with the Second
Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)
days within which to file written objections to the foregoing report.6
6 If you are proceeding pro se and are served with this Report-Recommendation and
Order by mail, three additional days will be added to the fourteen-day period,
meaning that you have seventeen days from the date the Report-Recommendation
and Order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the
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27
Such objections shall be filed with the Clerk of the Court. FAILURE
TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984
F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72.
Dated: December 17, 2025.
last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then
the deadline is extended until the end of the next day that is not a Saturday,
Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Wynder v. Goltzer, Slip Copy (2025)
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2025 WL 2207248
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Kenneth N. WYNDER, Jr., Plaintiff,
v.
George GOLTZER, Esq., et al., Defendants.
1:24-cv-7925-GHW
|
Signed August 3, 2025
Attorneys and Law Firms
Kenneth N. Wynder, Jr., Fort Worth, TX, Pro Se.
Ying Stafford, New York, NY, for Defendant Ying Stafford
Esq.
Jeremy Schneider, Rothman, Schneider, Soloway & Stern,
LLP, New York, NY, for Defendant Jeremy Schneider Esq.
MEMORANDUM OPINION & ORDER
GREGORY H. WOODS, United States District Judge:
*1 Plaintiff Kenneth N. Wynder, Jr. brings this action pro
se and in forma pauperis against his former attorneys in a
criminal matter, alleging that they provided him inadequate
legal representation resulting in his conviction at trial. He
brings claims pursuant to 42 U.S.C. § 1983 (“Section
1983”) for violations of his Sixth Amendment right to
effective assistance of counsel and his Fifth and Fourteenth
Amendment rights to due process. His complaint may also be
read to bring state-law claims for legal malpractice.
Plaintiff's Section 1983 claims fail because Section 1983 only
applies to actions taken under color of state law, and the
defendants’ actions in this case cannot be fairly attributed
to the state. Plaintiff's state-law malpractice claims fail
because his conviction, as alleged, stands, and an undisturbed
conviction precludes a claim for legal malpractice under New
York law. Because Plaintiff fails to state a claim under federal
or state law, his claims are hereby DISMISSED.
I. BACKGROUND 1
1 The facts are drawn from Plaintiff's complaint, Dkt.
No. 1 (“Complaint”), and are accepted as true for
the purposes of this motion. Town of Babylon v.
Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d
Cir. 2012). However, “[t]he 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).
Plaintiff Kenneth N. Wynder, Jr. “is presently serving a
criminal sentence in the custody of the Federal Medical
Center (‘FMC’) in Fort Worth, Texas.” Dkt. No. 1 ¶
3 (“Complaint”). He was found guilty of “wire fraud,
conspiracy, and various tax evasion counts” after a trial in this
court before the Honorable Kevin P. Castel in May 2023. Id.
¶¶ 14, 47, 53. He was sentenced to 40 months imprisonment
in January 2024. Id. ¶¶ 60, 65, 68, 70. 2
2 The Complaint does not allege the length of the
sentence. The Court judicially notices that Plaintiff
was sentenced to 40 months imprisonment on
January 19, 2024. USA v. Wynder, Jr. et al., Case
No. 1:20-cr-470 (PKC), Dkt. No. 255 at 3.
On October 4, 2024, Plaintiff brought this action pro se
against the three attorneys that represented Plaintiff in
connection with his trial: George Goltzer, Ying Stafford, and
Jeremy Schneider. Id. ¶¶ 4–5, 54. The first two attorneys,
Mr. Goltzer and Ms. Stafford, represented Plaintiff up to
and through his trial. Id. ¶¶ 4–5. They were his court-
appointed attorneys pursuant to the Criminal Justice Act
(“CJA”). Id. ¶ 11; see 18 U.S.C. § 3006A. Mr. Goltzer
allegedly exhibited serious medical symptoms throughout the
proceedings, including collapsing at the outset of trial and
causing the trial to be rescheduled, Complaint ¶ 25, and
appearing in court “barely able to stand up, even with the
aid of his cane,” id. ¶ 29. As a result, Mr. Goltzer allegedly
failed to properly represent Plaintiff during his trial, including
by allegedly “fail[ing] to properly cross-examine and review
evidence” from various witnesses, see id. ¶¶ 31–38, “fail[ing]
to call” various witnesses that would have helped Plaintiff's
defense, see id. ¶¶ 39–43, and giving an unfocused and
“mumbling” closing argument, see id. ¶¶ 45–46.
*2 Ms. Stafford, who was Mr. Goltzer's co-counsel, id. ¶ 5,
did not display any medical symptoms, but allegedly failed on
multiple occasions to convince Mr. Goltzer to call or cross-
examine important witnesses, id. ¶¶ 33–34, 43–44, and “failed
to instruct the [court] of her knowledge” of Mr. Goltzer's
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medical symptoms and strategic errors in defending Plaintiff,
id. ¶ 34.
“On August 3, 2023, sixty-nine ... days after Plaintiff's trial,”
Mr. Goltzer and Ms. Stafford moved to withdraw as counsel
for Plaintiff because of Mr. Goltzer's rapidly deteriorating
health. Id. ¶ 53. Mr. Goltzer allegedly stated that he had
been diagnosed with a brain condition that “render[ed] it
impossible to competently represent [Plaintiff]” because it
slurred Mr. Goltzer's speech and impeded his ability to focus,
research, and write. Id. The motion to withdraw was granted
on August 3, 2023. Id. ¶ 54. Mr. Goltzer passed away on
December 21, 2023. Id. ¶ 55.
Following Mr. Goltzer's and Ms. Stafford's withdrawal,
Defendant Jeremy Schneider was appointed as Plaintiff's
new CJA counsel. Id. ¶ 54. Plaintiff alleges that Mr.
Schneider “chose not to file” a motion for judgment of
acquittal under Federal Rule of Criminal Procedure 29 despite
acknowledging Mr. Goltzer's ineffective representation of
Plaintiff. Id. ¶¶ 60, 63. Mr. Schneider also allegedly “failed to
advise either ... Plaintiff or the [c]ourt that he had a conflict
of interest in representing Plaintiff at sentencing because of
his 40-year personal and professional relationship with [Mr.]
Goltzer.” Id. ¶ 68.
II. CAUSES OF ACTION
Plaintiff brings claims against the Estate of Mr. Goltzer, 3
Ms. Stafford, and Mr. Schneider 4 for violations of his Sixth
Amendment right to effective assistance of counsel and his
Fifth and Fourteenth Amendment rights to due process. Id. ¶¶
3–7, 64–70. Because these claims seek redress for violations
of rights under the United States Constitution, the Court
construes these claims as asserted under 42 U.S.C. § 1983
(“Section 1983”). See, e.g., Connecticut Citizens Def. League,
Inc. v. Thody, 664 F. Supp. 3d 235, 246 (D. Conn. 2023),
aff'd, No. 23-724-cv, 2024 WL 177707 (2d Cir. Jan. 17,
2024) (“An action taken directly from the Constitution ... is
impermissible. Section 1983 is the exclusive federal remedy
for violations of constitutional rights.”).
3 The Complaint brought a claim against Mr. Goltzer
himself. Complaint ¶ 1. On December 2, 2024, the
Court ordered that the Estate of Mr. Goltzer be
substituted for Mr. Goltzer as a defendant, given the
Complaint's allegation that Mr. Goltzer has passed
away. Dkt. No. 7.
4 The Complaint also brought a claim against
“Criminal Justice Act, Inc.” Complaint ¶ 1.
On December 2, 2024, the Court dismissed
Plaintiff's claims against that defendant because
that organization does not exist. Dkt. No. 7.
Construed liberally, Plaintiff's Complaint also brings claims
under state law for legal malpractice. See Complaint ¶
1 (alleging that “[t]his action places before the Court a
malpractice civil lawsuit”); see also, e.g., id. ¶¶ 65, 70
(alleging that ineffective representation “caus[ed] Plaintiff
a guilty verdict, incarceration, pain and suffering”). Those
implied claims are governed by New York law. Because the
basis for the Court's jurisdiction over Plaintiff's state-law
claims is diversity of citizenship, the Court applies “the choice
of law analysis of the forum state.” Beth Israel Med. Ctr. v.
Horizon Blue Cross & Blue Shield of New Jersey, Inc., 448
F.3d 573, 582 (2d Cir. 2006). “In New York, the forum state in
this case, the first question to resolve in determining whether
to undertake a choice of law analysis is whether there is an
actual conflict of laws.” Curley v. AMR Corp., 153 F.3d 5,
12 (2d Cir. 1998). The potentially conflicting bodies of law
in this case are those of New York, where the events giving
rise to this action occurred, see, e.g., Complaint ¶¶ 29–63
(alleging trial and sentencing proceedings in the Southern
District of New York), Texas, where Plaintiff is incarcerated,
id. ¶ 3, and Pennsylvania, where Plaintiff “was residing” “at
all times relevant to this Action,” id. “In tort actions, 5 if there
is a conflict of laws, New York courts apply an ‘interests
analysis,’ under which the law of the jurisdiction having the
greatest interest in the litigation is applied.” Curley, 153 F.3d
at 12 (quoting AroChem Int'l, Inc. v. Buirkle, 968 F.2d 266,
279 (2d Cir. 1992)).
5 Based on the allegations in the Complaint,
Plaintiff's malpractice claim is a tort claim. See,
e.g., Wolfson v. Moskowitz, No. 08-cv-8796 (DLC),
2009 WL 1515674, at *4 (S.D.N.Y. June 1, 2009)
(observing that New York choice-of-law analysis
applicable to tort claims applies to “tort claim[s]
such as legal malpractice”); Ferranti v. Arshack,
Hajek & Lehrman PLLC, No. 20-cv-2476 (KPF),
2021 WL 1143290, at *3 n.4 (S.D.N.Y. Mar. 24,
2021) (similar). While it is possible to bring a
breach-of-contract claim based on an attorney's
failure to fulfill the terms of a contract for
representation, see Nat. Organics Inc. v. Anderson
Kill & Olick, P.C., 67 A.D.3d 541, 542 1st Dep't
(2009), no contract for representation is alleged
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to exist in this case. Defendants were appointed
to be Plaintiff's counsel pursuant to the CJA. See
Complaint ¶¶ 11, 54. Moreover, in any event,
“a breach of contract claim premised on [an]
attorney's failure to exercise due care or to abide by
general professional standards” must be dismissed
as “a redundant pleading of [a] malpractice claim.”
Levine v. Lacher & Lovell-Taylor, 681 N.Y.S.2d
503, 506 (1st Dep't 1998); see also Nevelson v.
Carro, Spanbock, Kaster & Cuiffo, 736 N.Y.S.2d
668, 670 (1st Dep't 2002) (dismissing contract
claim that was “predicated on the same allegations
and [sought] relief identical to that sought in the
malpractice cause of action”).
*3 When conducting a conflict-of-laws analysis under New
York law, courts may assume that there is an actual conflict
of laws and proceed directly to the interests analysis. See
Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d
45, 47 (2d Cir. 2013) (“Assuming there is an actual conflict
between New York and Israeli law, we applied New York's
interest-analysis test to determine which law should apply.”).
“[A]ssuming without deciding that an actual conflict does
exist,” In re AXA Equitable Life Ins. Co. COI Litig., 595
F. Supp. 3d 196, 239 (S.D.N.Y. 2022), the interests analysis
in this case compels the application of New York law. “For
tort claims, including legal malpractice [claims], ‘the law of
the jurisdiction where the tort occurred will generally apply
because that jurisdiction has the greatest interest in regulating
behavior within its borders.’ ” Ferranti, 2021 WL 1143290, at
*3 n.4 (quoting Negri v. Friedman, No. 14-cv-10233 (GHW),
2017 WL 2389697, at *3 (S.D.N.Y. May 31, 2017)). “New
York's interest is predominant when the attorney being sued
is licensed in New York and the underlying trial took place in
New York.” Wolfson, 2009 WL 1515674, at *5 (applying New
York law to legal-malpractice claim). New York, accordingly,
has the greatest interest in this action, as the entirety of
“Defendants’ representation in the underlying criminal matter
occurred in New York,” and Defendants are “licensed to
practice as ... attorney[s] in New York.” Ferranti, 2021 WL
1143290, at *3 n.4; see Complaint ¶¶ 4–6, 29–63. Plaintiff's
implied state-law claims for legal malpractice are therefore
governed by New York law.
Plaintiff seeks compensatory damages of at least $5,000,000
from each Defendant. Complaint at 20. He also seeks a
declaration that Defendants violated his civil rights and
breached their “fiduciary duties with respect to those rights.”
Id. He does not seek injunctive relief. See id.
III. PROCEDURAL HISTORY
Plaintiff brought this action on October 4, 2024. Complaint
at 21. He was granted leave to proceed in forma pauperis on
November 25, 2024. Dkt. No. 8.
On May 6, 2025, the Court ordered Plaintiff to show cause
as to why his claims should not be dismissed sua sponte.
Dkt. No. 15. The order warned Plaintiff that his Section
1983 claims appeared to be deficient because Defendants
were not alleged to have acted under color of state law.
Id. at 7 n.6. It explained that “each of the defendants in
this case represented Plaintiff in their capacity as court-
appointed attorneys pursuant to the CJA,” id., and that “it is
well-established that court-appointed attorneys performing a
lawyer's traditional functions as counsel to [a] defendant do
not act ‘under color of state law,’ ” id. (quoting Rodriguez
v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)). The order also
observed that Plaintiff's claims for damages and declaratory
relief against his former counsel appeared barred under
federal and state law because there was no indication that
his conviction is not still intact. Id. at 6–8. It explained
that Plaintiff's claims under federal law for ineffective
assistance of counsel were likely barred “unless [he] can
demonstrate that [his] conviction or sentence has already been
invalidated,” as under the rule established by the Supreme
Court in Heck v. Humphrey, plaintiffs are barred from
bringing Section 1983 claims for monetary and declaratory
relief if a judgment in their favor “would necessarily imply
the invalidity of [their] conviction.” Id. at 7 (quoting 512
U.S. at 487). The order then explained that Plaintiff's implied
state-law claims for legal malpractice appeared to be barred
“so long as his conviction stands,” as under New York
law, “a colorable claim of innocence of the underlying
offense” is a prerequisite for a legal-malpractice claim against
criminal counsel, and a “conviction precludes ... plaintiffs
from asserting innocence in a civil suit.” Id. at 8 (quoting Britt
v. Legal Aid Soc., Inc., 95 N.Y.2d 443, 446 (2000)).
The order set a response deadline of May 27, 2025. Id. at 9.
On May 20, 2025, Plaintiff requested an additional thirty days
to respond. Dkt. No. 34. On May 23, 2025, the Court granted
Plaintiff's request and extended the deadline for Plaintiff to
respond until June 26, 2025. Dkt. No. 35. Plaintiff responded
to the Court's order to show cause on June 24, 2025, Dkt.
No. 42 (“Response”). Defendants responded to Plaintiff's
response in a joint letter on July 21, 2025. Dkt. No. 48
(“Opposition”).
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IV. LEGAL STANDARD
*4 The Court must dismiss a complaint filed in forma
pauperis that “is frivolous or malicious,” “fails to state a
claim on which relief may be granted,” or “seeks monetary
relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court
must also dismiss a complaint when the Court lacks subject
matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds,
the Court is obliged to construe pro se pleadings liberally,
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and to interpret
them to “raise the strongest arguments that they suggest,”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d
Cir. 2006) (quotation omitted). Still, the “special solicitude”
that plaintiffs are afforded in pro se actions, id. at 475
(quotation omitted), does not absolve them of the requirement
under Rule 8 of the Federal Rules of Civil Procedure that their
complaint provide a “short and plain statement ... showing
that the pleader is entitled to relief,” Fed. R. Civ. 8(a)(2); e.g.,
Salahuddin v. Cuomo, 861 F.2d 40, 41–42 (2d Cir. 1988).
Rule 8 requires a complaint to allege “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Id. In reviewing whether a complaint states a claim upon
which relief can be granted, the Court “accept[s] all factual
allegations as true, and draw[s] all reasonable inferences in
the plaintiff's favor.” Austin v. Town of Farmington, 826 F.3d
622, 625 (2d Cir. 2016).
V. DISCUSSION
Plaintiff's Section 1983 claims fail because he does not allege
that Defendants acted “under color of state law.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 926 (1982). Plaintiff
has also provided no indication in his complaint or in his
response to the Court's order to show cause that his criminal
conviction does not stand. 6 His intact conviction bars his
claims for ineffective assistance of counsel under the rule
established by the Supreme Court in Heck v. Humphrey, 512
U.S. 477, and bars his claims for legal malpractice under
New York law because legal-malpractice claims arising from
a criminal proceeding “must allege [the plaintiff's] innocence
or a colorable claim of innocence,” and an intact conviction
“precludes ... potential plaintiffs from asserting innocence in
a civil suit,” Britt, 95 N.Y.2d at 446–47.
6 The Court also takes judicial notice that, as of
the date of this opinion, Plaintiff's appeal from his
conviction and sentence remains unresolved. See
United States of America v. Wynder, Jr., No. 24-213,
Dkt. No. 104 (2d Cir. Jan 24, 2024).
Because Plaintiff's complaint fails to state a claim under
federal or state law, this action must be dismissed.
A. Plaintiff's Section 1983 Claims Fail because He
Does Not Allege that Defendants Acted Under Color
of State Law
Plaintiff's Section 1983 claims are deficient because
Defendants’ actions cannot be “fairly attribut[ed] to the state.”
Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1027 (2d
Cir. 1995) (quotation omitted). An essential element of a
claim under Section 1983 is that the defendants acted “under
color of state law.” Lugar, 457 U.S. at 929. The defendants
in this case are attorneys who, by court appointment,
performed their traditional roles in litigating against the
government. Complaint ¶¶ 4–7. 7 “[I]t is well-established that
court-appointed attorneys performing a lawyer's traditional
functions as counsel to [a] defendant do not act ‘under color
of state law’ and therefore are not subject to suit under 42
U.S.C. § 1983.” Rodriguez, 116 F.3d at 66; accord Housand
v. Heiman, 594 F.2d 923, 924–25 (2d Cir. 1979) (explaining
that it “is the law in this circuit” that “public defenders [and]
court-appointed defense attorneys do not act ‘under color
of law’ ”). The Second Circuit has explained, accordingly,
that “an ineffectiveness cause of action [is] inappropriate in
a proceeding brought under § 1983.” Bourdon v. Loughren,
386 F.3d 88, 90 (2d Cir. 2004); accord Warren v. Fischl,
No. 15-cv-2829 (JS) (AKT), 2015 WL 6760230, at *8
(E.D.N.Y. Nov. 5, 2015), aff'd, 674 F. App'x 71 (2d Cir. 2017)
(“[A]n ineffectiveness claim is not actionable in a proceeding
brought under § 1983.” (quotations and alterations omitted)).
Because Plaintiff's Section 1983 claims are not based on
conduct that can be fairly attributed to the state, they must be
dismissed.
7 It is possible for a private individual to engage in
conduct that is “attributable to the state” “[f]or the
purposes of section 1983” if “(1) the [individual]
acts pursuant to the coercive power of the state
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or is controlled by the state ...; (2) when the state
provides significant encouragement to the entity,
the entity is a willful participant in joint activity
with the state, or the entity's functions are entwined
with state policies ...; or (3) when the entity has
been delegated a public function by the state ....”
Sybalski v. Indep. Grp. Home Living Program, Inc.,
546 F.3d 255, 257 (2d Cir. 2008) (quotations and
alterations omitted). A Section 1983 claim may
also be cognizable against a private individual who
conspires with state actors. Ciambriello v. Cnty.
of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002).
Plaintiff makes no attempt in his complaint or his
response to the Court's order to show cause to
allege that any of these circumstances are present
here. His claims allege that Defendants did not do a
good enough job in their traditional roles as defense
attorneys litigating against the government. See
Complaint ¶¶ 64–70; Response at 4–10.
B. Plaintiff's Conviction Bars His Claims for
Ineffective Assistance of Counsel under Heck v.
Humphrey
*5 Plaintiff's Section 1983 claims for ineffective assistance
of counsel, as alleged, would also fail under the rule
established by the Supreme Court in Heck v. Humphrey, 512
U.S. 477. In Heck, the Supreme Court held that a plaintiff may
not recover damages under Section 1983 if “a judgment in
favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence ... unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.” Id. at 487. To demonstrate that his conviction
or sentence has been invalidated, the plaintiff “must prove
that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of habeas
corpus.” Id. at 486–87. In Edwards v. Balisok, the Supreme
Court held that the Heck rule also applies to “claim[s] for
declaratory relief.” 520 U.S. 641, 648 (1997).
Plaintiff's Section 1983 claims for ineffective assistance of
counsel seek damages and declaratory relief and allege that
his conviction and sentence would not have been imposed
but for Defendants’ errors in representing him. Complaint at
20; see id. ¶¶ 65, 68, 70 (alleging that Defendants’ actions
“caus[ed] Plaintiff a guilty verdict” and “incarceration”).
Accordingly, at least as alleged, Plaintiff's claims would
fail under Heck v. Humphrey because they “necessarily
imply the invalidity of his conviction or sentence” and
Plaintiff has provided no indication that his “conviction or
sentence has already been invalidated.” 512 U.S. at 487; see
Complaint ¶ 3 (alleging that Plaintiff “is presently serving a
criminal sentence”); Response at 5, 11. The Heck rule is an
independent reason to dismiss Plaintiff's claims for ineffective
assistance of counsel, in addition to his failure to allege state
action. See Warren, 2015 WL 6760230, at *1–2 & n.2, aff'd,
674 F. App'x 71 (dismissing claims brought under Fifth, Sixth,
and Fourteenth Amendments because, among other things,
they were “barred by Heck v. Humphrey”).
Plaintiff's response to the Court's order to show cause
identifies several circumstances where the Heck rule does
not apply, see Response at 4–10, but provides no indication
that those circumstances are present in this case. Plaintiff is
correct, for example, that the Supreme Court has “stress[ed]
the importance of the term ‘necessarily’ ” in defining the
reach of the Heck rule, Response at 7 (quoting Nelson
v. Campbell, 541 U.S. 637, 647 (2004)), and accordingly,
that Heck does not apply unless “a prisoner's victory in a
§ 1983 suit would necessarily demonstrate the invalidity
of his conviction or sentence,” McKithen v. Brown, 481
F.3d 89, 102 (2d Cir. 2007) (emphasis in original). “[W]hat
‘necessarily demonstrates’ the invalidity of a sentence or
conviction is often anything but easy to decide,” Teichmann
v. New York, 769 F.3d 821, 829 (2d Cir. 2014) (Calabresi, J.,
concurring), and the Second Circuit has not addressed, at least
in a published opinion, the general applicability of Heck to
claims for ineffective assistance of counsel, but see Kevilly v.
New York, 410 F. App'x 371, 375 (2d Cir. 2010) (summary
order) (holding that plaintiff's claims in his proposed amended
complaint for ineffective assistance of counsel would “be
barred under Heck”). “[T]o be entitled to relief on a claim
of counsel's ineffective assistance,” a plaintiff must plausibly
plead, among other things, “a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Raysor v. United
States, 647 F.3d 491, 495 (2d Cir. 2011) (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)). Construed liberally,
Plaintiff's response to the Court's order to show cause argues
that a plaintiff can meet the ineffectiveness standard without
“necessarily demonstrating” that his conviction is invalid. See
Response at 4–5.
*6 In the Court's view, Plaintiff has reason to question
whether, as a general matter, a ruling that there is a
“reasonable probability” that a plaintiff would not have been
convicted but for an attorney's errors would “necessarily
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demonstrate” that the conviction is invalid. See Teichmann,
769 F.3d at 829 (Calabresi, J., concurring) (reasoning that “the
mere fact that success in a § 1983 suit would make it more
likely that a conviction or sentence is invalid would seem
to be irrelevant to the Heck inquiry”). Courts in this circuit,
however, have concluded that it would. See Warren, 2015
WL 6760230, at *1–2 & n.2; Evans v. Nassau Cnty., 184 F.
Supp. 2d 238, 243 (E.D.N.Y. 2002) (dismissing ineffective-
assistance claims under Heck because a judgment in the
plaintiff's favor “would necessarily imply the invalidity of
his criminal conviction and sentence”); Fleming v. Stradford,
No. 10-cv-3345 (KPF), 2018 WL 1033234, at *18 (S.D.N.Y.
Feb. 22, 2018) (finding claim for ineffective assistance of
counsel deficient because, among other things, Heck bars “a
challenge to Plaintiff's underlying convictions”); Kevilly, 410
F. App'x at 375 (holding that ineffective-assistance claims in
proposed amended complaint would “be barred under Heck”).
Their conclusions are not unfounded. At a bare minimum, a
ruling that there is a reasonable probability that a plaintiff's
conviction was the result of his counsel's errors would raise
serious questions about the validity of his conviction. And
in any event, in this particular case, Plaintiff's claim is that
he is owed damages specifically because Defendants’ actions
caused his conviction and incarceration. See Complaint ¶ 65.
Because this section of the Court's opinion is mere dicta in
light of Plaintiff's failure to allege the state action required to
sustain a claim under Section 1983, see supra Part V.A, the
Court need not resolve whether Heck bars Plaintiff's claims
for ineffective assistance of counsel. The Court observes,
nonetheless, that the prevailing case law in this circuit is that a
plaintiff's ineffective-assistance claims are barred under Heck
because their success “would necessarily imply the invalidity
of his criminal conviction and sentence.” Evans, 184 F. Supp.
2d at 243; see also, e.g., Kevilly, 410 F. App'x at 375.
Plaintiff is also correct that Heck may not bar an action under
Section 1983 when Section 1983 “was a diligent plaintiff's
only opportunity to challenge his conviction in a federal
forum,” Artec Constr. & Dev. Corp. v. City of New York, No.
15-cv-9494 (KPF), 2017 WL 5891817, at *5 (S.D.N.Y. Nov.
28, 2017) (quoting Teichmann, 769 F.3d at 828 (Livingston, J.
concurring)), but that exception to Heck is inapplicable here
since a diligent litigant in Plaintiff's position could challenge
his conviction on direct appeal, as Plaintiff is currently doing,
see Wynder, Jr., No. 24-213, Dkt. No. 104, and if that appeal is
unsuccessful, by seeking “remedy in habeas corpus,” Leather
v. Eyck, 180 F.3d 420, 424 (2d Cir. 1999). “Although § 1983
authorizes constitutional tort claims against state officials,
it is not an appropriate vehicle for collaterally attacking a
state conviction.” Teichmann, 769 F.3d at 827 (Livingston,
J. concurring) (citing Heck, 512 U.S. at 485–86). Cases
“in which a prisoner challenges the fact or length of his
confinement” lie “at the heart of habeas corpus,” so in such
cases, “habeas is the exclusive federal remedy.” Huang v.
Johnson, 251 F.3d 65, 74 (2d Cir. 2001) (quoting Jenkins
v. Haubert, 179 F.3d 19, 24 (2d Cir. 1999)). On the other
hand, where there is “no remedy in habeas corpus” available
to a plaintiff—for example because the plaintiff “is not and
never was in the custody of the State”—the Heck bar does
not apply. Leather, 180 F.3d at 420; accord Huang, 251 F.3d
at 75 (holding Heck was inapplicable where plaintiff “ha[d]
no habeas remedy because he has long since been released
from ... custody”). Here, however, Plaintiff “has a habeas
corpus remedy available to him” because he remains “in ...
custody” pursuant to his conviction. Green v. Montgomery,
219 F.3d 52, 61 n.3 (2d Cir. 2000) (“We have held ... that
Heck acts only to bar § 1983 suits when the plaintiff has
a habeas corpus remedy available to him (i.e., when he is
in state custody).”). The exception from Heck for plaintiffs
without recourse to habeas plainly does not apply in this case.
Because Plaintiff's ineffective-assistance claims would
“necessarily imply the invalidity of his conviction or
sentence,” they are barred by the rule established in Heck v.
Humphrey. 512 U.S. at 487.
C. Plaintiff's Legal Malpractice Claims Brought
Under New York State Law Are Barred Because His
Conviction Remains Intact
In addition to precluding his federal claims for ineffective
assistance of counsel, Plaintiff's conviction precludes his
state-law claims for legal malpractice under New York law.
In New York, a plaintiff seeking damages pursuant to a “legal
malpractice [claim] arising out of a criminal proceeding ...
bear[s] the unique burden to plead and prove that the client's
conviction was due to the attorney's actions alone and not due
to some consequence of his guilt.” Britt, 95 N.Y.2d at 446–
47. A legal-malpractice claim “must allege [the plaintiff's]
innocence or a colorable claim of innocence of the underlying
offense,” id. at 446 (quoting Carmel v. Lunney, 70 N.Y.2d
169, 173 (1987)), and “[i]n order to open the door for even a
colorable claim of innocence, criminal defendants must free
themselves of the conviction, for the conviction precludes
those potential plaintiffs from asserting innocence in a civil
suit,” id. at 447; accord Sash v. Schwartz, 356 F. App'x 555,
556 (2d Cir. 2009) (same, dismissing legal malpractice claim
because the plaintiff “failed to establish that his conviction
following a guilty plea was overturned”). Accordingly, “a
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plaintiff cannot assert a cognizable malpractice claim under
New York law so long as his conviction stands.” McKiver
v. City of New York, No. 17-cv-4411 (GBD) (KHP), 2018
WL 3543906, at *3 (S.D.N.Y. Feb. 16, 2018), report and
recommendation adopted, 2018 WL 3628840 (S.D.N.Y. July
23, 2018); accord D'Amato v. Bray, 83 F. App'x 380, 381 (2d
Cir. 2003) (same).
*7 Plaintiff does not allege that his conviction does not
stand. To the contrary, he alleges that he “is presently serving
a criminal sentence,” Complaint ¶ 3, and his response to
the Court's order to show cause—submitted from prison—
provides no indication that his sentence or conviction are
not intact, see, e.g., Response at 11. Because Plaintiff's
“conviction[ ] remain[s] intact,” his malpractice claims are
barred under New York law. Hooks v. City of New York, No.
21-cv-10771 (JGK), 2022 WL 16964010, at *9 (S.D.N.Y.
Nov. 16, 2022). 8
8 Plaintiff also alleges a violation of his “rights
conferred through the ABA Model Rules of
Professional Conduct of the State of New York.”
Complaint ¶ 2, see also id. ¶¶ 17, 66. Plaintiff
appears to be referring to the New York Rules
of Professional Conduct (the “NYRPC”). While
a “[v]iolation of a Rule [in the NYRPC] should
not itself give rise to a cause of action against a
lawyer,” NYRPC Preamble, a violation of a Rule
“may support a legal malpractice claim” “where
proximate cause and actual damages can be shown
to have [resulted],” Applied Energetics, Inc. v.
Gusrae Kaplan Nusbaum PLLC, No. 21-cv-382
(DF), 2022 WL 956119, at *11 (S.D.N.Y. Mar.
30, 2022) (collecting cases). Still, even if Plaintiff
adequately alleges that a violation of a Rule
proximately caused him damages, his “conviction
precludes [him] from asserting innocence in a civil
suit,” and thus precludes him from stating a claim
for legal malpractice under New York law. Britt, 95
N.Y.2d at 447.
IV. LEAVE TO AMEND IS DENIED
Plaintiff's claims are dismissed without leave to amend. In
this circuit, “a pro se complaint generally should not be
dismissed without granting the plaintiff leave to amend at
least once.” Grullon v. City of New Haven, 720 F.3d 133,
140 (2d Cir. 2013). However, “it is proper to deny leave to
replead where there is no merit in the proposed amendments
or amendment would be futile.” Hunt v. All. N. Am. Gov't
Income Tr., Inc., 159 F.3d 723, 728 (2d Cir. 1998); see also
Burke v. Verizon Commc'ns, Inc., No. 18-cv-4496 (PGG)
(GWG), 2020 WL 6538748, at *8 (S.D.N.Y. Nov. 6, 2020),
aff'd sub nom. Burke v. Hous. & Servs., Inc., No. 23-635,
2024 WL 2207054 (2d Cir. May 16, 2024) (dismissing pro
se complaint without leave to amend because amendment
would be futile). Granting leave to amend Plaintiff's claims
against his criminal defense attorneys under Section 1983
would be futile here because Plaintiff's Section 1983 claims
against them fall irreparably short of alleging state action.
See Rodriguez, 116 F.3d at 66 (“[I]t is well-established that
court-appointed attorneys performing a lawyer's traditional
functions as counsel to defendant do not act ‘under color
of state law’ and therefore are not subject to suit under 42
U.S.C. § 1983.”); Bourdon, 385 F.3d at 90 (explaining that
“an ineffectiveness cause of action [is] inappropriate in a
proceeding brought under § 1983” because court-appointed
attorneys “do not act ‘under color of state law’ and therefore
are not subject to suit under 42 U.S.C. § 1983 (citing Polk
County v. Dodson, 454 U.S. 312, 318–19 (1981))). Granting
Plaintiff leave to amend his state-law malpractice claims
against his former counsel at this time would be futile because
his conviction remains intact. As long as his conviction
remains intact, Plaintiff's malpractice claims are categorically
barred under New York law. See Britt, 95 N.Y.2d at 446–48;
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (denying
leave to amend on futility grounds because “[t]he problem
with [the plaintiff's] causes of action” was “substantive; better
pleading [would] not cure it”).
*8 Courts have the authority to dismiss a pro se complaint
“so long as the plaintiff is given notice and ‘an opportunity to
be heard.’ ” Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d
Cir. 1994) (quoting Thomas v. Scully, 943 F.2d 259, 260 (2d
Cir. 1991) (per curiam)). “The issuance ... of an order to show
cause why a complaint should not be dismissed sua sponte for
a stated reason[ ] will typically suffice to provide notice and
an opportunity to be heard.” Nwoye v. Obama, No. 22-1253,
2023 WL 382950, at *1 (2d Cir. Jan. 25, 2023) (collecting
cases); Kanyan v. U.S. Citizenship & Immigr. Servs., No. 24-
cv-8564 (RPK), 2025 WL 1489807, at *4 (E.D.N.Y. May
22, 2025) (same); see also Andrews v. Hall, No. 22-1298,
2023 WL 309609, at *1 (2d Cir. Jan. 19, 2023) (holding
that district court provided adequate notice to pro se plaintiff
before dismissing his claims without leave to amend because
it “warn[ed] [the plaintiff] that his claims were vulnerable to
dismissal ... and invit[ed] his response”). The Court issued
an order to show cause nearly three months ago explaining
each of the deficiencies in Plaintiff's claims that now form the
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basis for the Court's dismissal. Dkt. No. 15 at 7 n.6 (explaining
apparent failure to allege state action on part of Defendants);
id. at 6–7 (explaining that Plaintiff's ineffective-assistance
claims appeared to be barred under Heck v. Humphrey); id. at
8 (explaining that Plaintiff's state-law claims appeared to be
barred by his conviction). Plaintiff submitted, and the Court
considered, an eleven-page memorandum in response to the
Court's order. Dkt. No. 42. Dismissal without leave to amend
is appropriate given that Plaintiff has been afforded notice
and the opportunity to be heard. See, e.g., Nwoye, 2023 WL
382950, at *1; Kanyan, 2025 WL 1489807, at *4.
Plaintiff's Section 1983 claims are dismissed with prejudice.
Plaintiff's state-law malpractice claims are dismissed without
prejudice. Because Plaintiff's state-law claims are dismissed
without prejudice, he is not barred from filing a separate
action to pursue them if his conviction is ultimately
overturned, whether on direct appeal or otherwise. See
Wynder, Jr., No. 24-213, Dkt. No. 104 (noticing oral argument
regarding direct appeal from Plaintiff's conviction). The
Court's determination that Plaintiff's malpractice claims
are futile rests solely on Plaintiff's intact conviction. See
Part III.C. The Court has not determined that Plaintiff's
malpractice claims would be futile if he later “free[s]
[himself] of the conviction.” Britt, 95 N.Y.2d at 447.
Accordingly, while Plaintiff is denied leave to amend his
state-law malpractice claims at this time because the ultimate
resolution of Plaintiff's appeal of, and potential collateral
attack on, his conviction may take a substantial amount of
time, Plaintiff may, to the extent permitted by law, pursue
his state-law malpractice claims in a separate action if his
conviction is ultimately overturned. 9
9 Any claim Plaintiff might have for malpractice
arising from his conviction would not accrue for
statute-of-limitations purposes until “the date when
the indictment against [him] is dismissed.” Britt, 95
N.Y.2d at 448.
V. CONCLUSION
For the foregoing reasons, this action is DISMISSED without
leave to amend. Plaintiff's Section 1983 claims are dismissed
with prejudice. Plaintiff's state-law malpractice claims are
dismissed without prejudice.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be taken in good
faith, and therefore in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444–45 (1962).
The Clerk of Court is directed to enter judgment for
Defendants, to terminate all pending motions, and to close this
case.
SO ORDERED.
All Citations
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Wynder v. Goltzer
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History (2)
Direct History (1)
1. Wynder v. Goltzer
2025 WL 2207248 , S.D.N.Y. , Aug. 03, 2025
Related References (1)
2. Wynder v. George Goltzer, Esq.
2024 WL 4932064 , S.D.N.Y. , Dec. 02, 2024
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Filings
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Robinson v. Wright, Not Reported in Fed. Supp. (2022)
2022 WL 2663369
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 2663369
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Christopher E. ROBINSON, Plaintiff,
v.
Michael WRIGHT, New York State Parole
Officer; Matthew Mullen, New York State
Parole Officer; and Tonia Zimmerman,
New York State Parole Officer, Defendants.
5:21-CV-1098 (TJM/ML)
|
Signed July 11, 2022
Attorneys and Law Firms
CHRISTOPHER E. ROBINSON, Plaintiff, Pro Se, Cayuga
Correctional Facility, Post Office Box 1186, Moravia, New
York 13118.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 The Clerk has sent this pro se amended complaint filed by
Christopher E. Robinson (“Plaintiff”) to the Court for review.
(Dkt. No. 11.) For the reasons discussed below, I recommend
that Plaintiff's Amended Complaint (Dkt. No. 11) be accepted
in part for filing and dismissed in part without leave to amend.
I. BACKGROUND
Construed as liberally 1 as possible, Plaintiff's Amended
Complaint alleges that defendants Michael Wright, Matthew
Mullen, and Tonia Zimmerman (collectively “Defendants”),
who are all New York State parole officers, violated his
civil rights by submitting perjured testimony against him.
(See generally Dkt. No. 11 [Am. Compl.].) More specifically,
Plaintiff alleges that on April 29, 2021, during a parole
revocation hearing: (1) Defendant Wright testified that (a)
Plaintiff was not allowed to possess a smartphone throughout
his parole, and (b) his reasoning for requesting a search of
Plaintiff's residence was because of law enforcement contact
related to a domestic violence incident involving Plaintiff;
(2) Defendant Mullen testified that he personally searched
Plaintiff's bedroom and found a smartphone under a mattress;
and (3) Defendant Zimmerman (a) omitted, while under
oath, where she found alleged contraband while searching
Plaintiff's residence, and (b) omitted, while under oath,
Officer Delaney when listing the individuals present while
searching Plaintiff's residence. (Id.)
1 The court must interpret pro se complaints to
raise the strongest arguments they suggest. Soto v.
Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)).
Plaintiff alleges that based on Defendants’ perjured
statements, the parole violations against him were sustained
and he has been reincarcerated. (Id.) Based on these factual
allegations, Plaintiff asserts the following five causes of
action: (1) a claim that Plaintiff's right to a fair trial was
violated by Defendants pursuant to the Due Process Clause
in the Fourteenth Amendment and 42 U.S.C. § 1983; (2)
a claim that Plaintiff's right to a fair trial was violated by
Defendants pursuant to the Fifth Amendment and 42 U.S.C.
§ 1983; (3) a claim that Defendant Wright violated Plaintiff's
rights in making an arbitrary and capricious decision pursuant
to the Fourteenth and Fifth Amendments; (4) a claim of
malicious prosecution against Defendants pursuant to the
Fifth, Eighth, and Fourteenth Amendments; and (5) a claim of
false imprisonment against Defendants pursuant to the Fifth,
Eighth, and Fourteenth Amendment. (Id.) As relief, Plaintiff
seeks $3,000,000.00 in damages against Defendants. (Id.)
II. LEGAL STANDARD GOVERNING INITIAL
REVIEW OF A COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any
time if the court determines that ... the action ... (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. § 1915(e)(2).
*2 In order to state a claim upon which relief can be granted,
a complaint must contain, inter alia, “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a
plaintiff “show” that he or she is entitled to relief means that
a complaint “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis
added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Determining whether a complaint states a plausible
claim for relief ... requires the ... court to draw on its judicial
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experience and common sense.... [W]here 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.” Iqbal, 556
U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint ... the court must accept the
material facts alleged in the complaint as true and construe all
reasonable inferences in the plaintiff's favor.” Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
“[E]xtreme caution should be exercised in ordering sua sponte
dismissal of a ... complaint before the adverse party has
been served and [the] parties ... have had an opportunity
to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d
Cir. 1983). The Court, however, also has an overarching
obligation to determine that a claim is not legally frivolous
before permitting a plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
362, 363 (2d Cir. 2000) (holding that a district court may
sua sponte dismiss a frivolous complaint, notwithstanding
the fact that the plaintiff paid the statutory filing fee).
“Legal frivolity ... occurs where ‘the claim is based on an
indisputably meritless legal theory [such as] when either the
claim lacks an arguable basis in law, or a dispositive defense
clearly exists on the face of the complaint.” Aguilar v. United
States, 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2
(D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is
proper only if the legal theory ... or factual contentions lack an
arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995)
(“[T]he decision that a complaint is based on an indisputably
meritless legal theory for purposes of dismissal under section
1915(d), may be based upon a defense that appears on the face
of the complaint.”).
III. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the
court must construe his pleadings liberally. Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having
reviewed Plaintiff's Amended Complaint with this principle
in mind, I recommend that his claims be accepted in part for
filing and dismissed in part without leave to amend.
A. Section 1983 Claims Against Defendants in Official
Capacities
To the extent that Plaintiff's claims are asserted against
Defendants in their official capacities, I recommend that they
be dismissed for failure to state a claim upon which relief
may be granted. Plaintiff seeks only monetary damages, and
Defendants—in their official capacities—are immune from
suit pursuant to the Eleventh Amendment. See Kentucky v.
Graham, 473 U.S. 159, 169 (1985) (“The Court has held that,
absent waiver by the State or valid congressional override, the
Eleventh Amendment bars a damages action against a State in
federal court. This bar remains in effect when State officials
are sued for damages in their official capacity.” (internal
citations omitted)); Quern v. Jordan, 440 U.S. 332, 341 (1979)
(“[W]e simply are unwilling to believe, on the basis of such
slender ‘evidence,’ that Congress intended by the general
language of § 1983 to override the traditional sovereign
immunity of the States.”); Minotti v. Lensink, 798 F.2d 607,
609 (2d Cir. 1986) (“Using its authority under section 5 of the
fourteenth amendment, Congress may abrogate the eleventh
amendment in the absence of a waiver by the states, but the
civil rights statute 42 U.S.C. § 1983 does not override the
eleventh amendment.” (internal citations omitted)).
*3 Plaintiff alleges that Defendants are New York State
Parole Officers. (Dkt. No. 11 at 2-3.) “Because the New York
State [Division of Parole (“DOP”)] is an arm of the state, [and]
Plaintiff [asserts] claims against.... DOP employees[,] ... the
Eleventh Amendment bars any claims for damages against ...
[D]efendants in their official capacities.” Kirkland v. New
York State Div. of Parole, 20-CV-8606, 2021 WL 706709, at
*3 (S.D.N.Y. Feb. 18, 2021) (citing Gollomp v. Spitzer, 568
F.3d 355, 366 (2d Cir. 2009)).
As a result, I recommend that Plaintiff's claims against
Defendants in their official capacities be dismissed because
they are immune from suit.
B. Section 1983 Claims Against Defendants in
Individual Capacities
To the extent that Plaintiff asserts claims pursuant to
42 U.S.C. § 1983 against Defendants in their individual
capacities, I recommend that his claims pursuant to the Fifth
and Eighth Amendments and alleging malicious prosecution
and false arrest be dismissed but that Defendants be
directed to respond to his claim pursuant to the Fourteenth
Amendment.
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1. Fifth Amendment
The Fifth Amendment Due Process Clause applies only
to the federal government, and not to state or municipal
governments. See Dusenbery v. United States, 534 U.S.
161, 167 (2002) (“The Due Process Clause of the Fifth
Amendment prohibits the United States, as the Due Process
Clause of the Fourteenth Amendment prohibits the States,
from depriving any person of property without due process
of law.”); Poe v. Ullman, 367 U.S. 497, 540 (1961)
(explaining that prohibitions “against the deprivation of
life, liberty or property without due process of law” set
forth in Fourteenth Amendment are applicable to state
government and same prohibitions in Fifth Amendment are
applicable to “the Federal Government”); Ambrose v. City
of New York, 623 F. Supp. 2d 454, 466-67 (S.D.N.Y. 2009)
(holding that any due process claim “against the City is
properly brought under the Fourteenth Amendment, not
the Fifth Amendment”); Mitchell v. Home, 377 F. Supp.
2d 361, 372-73 (S.D.N.Y. 2005) (“The Fifth Amendment's
Due Process Clause protects citizens against only federal
government actors, not State officials. Any due process
rights plaintiff enjoys as against state government officials ...
arise solely from the Fourteenth Amendment due process
clause.” (internal citations omitted)).
Plaintiff has not alleged that any federal official violated
his Fifth Amendment due process rights. Instead, all of his
allegations are against state officials. Thus, Plaintiff's due
process claims may only be brought under the Fourteenth
Amendment, not the Fifth Amendment. See Dusenbery, 534
U.S. at 167 (explaining that Fifth Amendment does not apply
to State officials); Ambrose, 623 F. Supp. 2d at 466-67 (stating
that Fifth Amendment does not apply to city officials).
As a result, I recommend that Plaintiff's Fifth Amendment
claim against Defendants is dismissed for failure to state a
claim upon which relief may be granted. See 28 U.S.C. §
1915A(b)(1).
2. Eighth Amendment
The Eighth Amendment “protects prisoners from cruel and
unusual punishment by prison officials,” Crawford v. Cuomo,
796 F.3d 252, 256 (2d Cir. 2015), whereas the Fifth and
Fourteenth Amendments “prohibit the government from
depriving any person of life, liberty, or property, without
due process of law.” Smalls v. Collins, 10 F.4th 117, 133
(2d Cir. 2021) (internal quotation marks, citations and
alterations omitted). Generally, pro se plaintiffs bring Eighth
Amendment claims to challenge “excessive force,” “denial
of adequate medical care,” “unconstitutional conditions of
confinement unrelated to medical care,” and the “failure
to protect.” Randle v. Alexander, 960 F. Supp. 2d 457,
470 (S.D.N.Y. 2013). Though Plaintiff cites the Eighth
Amendment, he does not raise issues that are customarily
resolved by Eighth Amendment claims; instead, he appears
to challenge the lack of “due process of law.” (Dkt. No. 11.)
Accordingly, Plaintiff's Eighth Amendment claims “relating
to [parole revocation] proceedings ... are more properly
analyzed as due process violations.” Barclay v. New York, 477
F. Supp. 2d 546, 555 (N.D.N.Y. 2007) (Hurd, J.).
3. Malicious Prosecution/False Imprisonment
*4 A plaintiff alleging malicious prosecution and false arrest
must demonstrate termination of the proceedings in his favor.
See Henry v. City of New York, 17-CV-3450, 2021 WL
1648029, at *4 (S.D.N.Y. Apr. 27, 2021) (citing Shabazz v.
Kailer, 201 F. Supp. 3d 386, 391 (S.D.N.Y. 2016)) (dismissing
the plaintiff's malicious prosecution claim because he did
not “secure a favorable termination of the criminal action.”);
Aragon v. New York, 14-CV-9797, 2017 WL 2703562, at *5
(S.D.N.Y. June 22, 2017) (quoting Heck v. Humphrey, 512
U.S. 477, 486-87 (1994)) (“Thus, to recover damages for a
false imprisonment claim under Section 1983, a prisoner must
demonstrate that his conviction ‘has been reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of habeas
corpus.’ ”).
Here, Plaintiff alleges that his “parole violations were
sustained and [he has] been reincarcerated.” (Dkt. No. 11 at
4.) Thus, Plaintiff has not obtained a favorable termination of
the underlying proceeding to state a malicious prosecution or
false imprisonment claim.
As a result, I recommend that Plaintiff's claims alleging
malicious prosecution and false arrest be dismissed for failure
to state a claim upon which relief may be granted.
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4. Fourteenth Amendment
A final parole revocation proceeding is an administrative
proceeding held solely to enable parole authorities to
determine whether the parolee violated the terms of parole.
People ex rel. Maiello v. New York State Bd. of Parole, 65
N.Y.2d 145, 147 (N.Y. 1985). Although a parolee facing
revocation of release is not entitled to the “full panoply
of rights” due to a defendant in a criminal prosecution,
the Supreme Court has held that the revocation of parole
implicates a liberty interest protected by the Due Process
Clause of the Fourteenth Amendment. Morrisey v. Brewer,
408 U.S. 471, 482 (1972). Upholding the Morrisey decision,
a year later the Supreme Court further defined the process
required during a preliminary parole revocation hearing.
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). “At
the ... hearing, a probationer or parolee is entitled to
notice of the alleged violations of probation or parole, an
opportunity to appear and to present evidence in his own
behalf, a conditional right to confront adverse witnesses,
an independent decisionmaker, and a written report of the
hearing.” Gagnon, 411 U.S. at 786 (citing Morrisey, 408
U.S. at 487). Furthermore, at the final hearing, individuals
are given a more detailed hearing with the minimum
requirements including:
(a) written notice of the claimed
violations of (probation or) parole;
(b) disclosure to the (probationer or)
parolee of evidence against him; (c)
opportunity to be heard in person and
to present witnesses and documentary
evidence; (d) the right to confront
and cross-examine adverse witnesses
(unless the hearing officer specifically
finds good cause for not allowing
confrontation); (e) a ‘neutral and
detached’ hearing body such as a
traditional parole board, members of
which need not be judicial officers or
lawyers; and (f) a written statement by
the factfinders as to the evidence relied
on and reasons for revoking (probation
or) parole.
Id. (citing Morrisey, 408 U.S. at 489).
Here, Plaintiff alleges that his constitutional rights were
violated during his parole revocation hearing based on false
statements made by Defendants. Out of an abundance of
caution, mindful of the Second Circuit's instruction that
a pro se plaintiff's pleadings must be liberally construed,
see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without
expressing an opinion as to whether Plaintiff can withstand
a properly filed motion to dismiss or for summary judgment,
I recommend that a response be required to Plaintiff's
Fourteenth Amendment claims against Defendants in their
individual capacities.
IV. OPPORTUNITY TO AMEND
*5 Generally, a court should not dismiss claims contained
in a complaint filed by a pro se litigant without granting
leave to amend at least once “when a liberal reading of the
complaint gives any indication that a valid claim might be
stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991);
see also Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave when justice so requires.”). An opportunity to
amend is not required, however, where “the problem with [the
plaintiff's] causes of action is substantive” such that “better
pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a
plaintiff is unable to allege any fact sufficient to support its
claim, a complaint should be dismissed with prejudice.”).
Stated differently, “[w]here it appears that granting leave to
amend is unlikely to be productive, ... it is not an abuse of
discretion to deny leave to amend.” Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept.
22, 1997) (Pooler, J.). 2
2 See also Carris v. First Student, Inc., 132 F. Supp.
3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby,
C.J.) (explaining that the standard set forth in
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
796 (2d Cir. 1999)—that the Court should grant
leave to amend “unless the court can rule out any
possibility, however unlikely it might be, that an
amended complaint would be successful in stating
a claim”—is likely not an accurate recitation of the
governing law after Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007)), rev'd on other grounds, 682 F.
App'x 30.
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In this instance, I conclude that any further amendments
to Plaintiff's Amended Complaint would be futile. As a
result, I recommend that Plaintiff's Amended Complaint be
dismissed without leave to amend to the extent that it alleges
claims pursuant to 42 U.S.C. § 1983 against Defendants
in their (1) official capacities, and (2) individual capacities
alleging violations of the Fifth and Eighth Amendments,
for malicious prosecution, and for false imprisonment. See
Official Comm. of Unsecured Creditors of Color Tile, Inc. v.
Coopers & Lybrand, LLP, 322 F.3d 147, 168 (2d Cir. 2003)
(quoting Dluhos v. Floating & Abandoned Vessel, Known as
“New York,” 162 F.3d 63, 69 (2d Cir. 1998)) (finding that
the “District Court did not abuse its discretion in denying
[the plaintiff] leave to amend the complaint because there
was a ‘repeated failure to cure deficiencies by amendments
previously allowed.’ ”); Salinger v. Projectavision, Inc., 972
F. Supp. 222, 236 (S.D.N.Y. 1997) (“Three bites at the apple
is enough.”).
ACCORDINGLY, it is respectfully
RECOMMENDED that Plaintiff's Amended Complaint
(Dkt. No. 11) be ACCEPTED FOR FILING with respect to
Plaintiff's Fourteenth Amendment due process claim against
Defendants in their individual capacities; and it is further
respectfully
RECOMMENDED that the Court DISMISS WITHOUT
LEAVE TO REPLEAD Plaintiff's claims (1) against
Defendants in their official capacities, and (2) against
Defendants in their individual capacities pursuant to the Fifth
Amendment, Eighth Amendment, for malicious prosecution,
and for false imprisonment, for failure to state a claim upon
which relief may be granted and because it seeks monetary
relief against Defendants who are immune from such relief
pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of
this report and recommendation on the docket of this case and
serve a copy upon the parties in accordance with the local
rules. 3
3 The Clerk shall also provide Plaintiff with copies of
all unreported decisions cited herein in accordance
with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)
(per curiam).
*6 NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
have fourteen days within which to file written objections
to the foregoing report. 4 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)
(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v.
Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of
Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
4 If you are proceeding pro se and served with
this report and recommendation by mail, three
additional days will be added to the fourteen-day
period, meaning that you have seventeen days from
the date that the report, recommendation, and order
was mailed to you to serve and file objections. Fed.
R. Civ. P. 6(d). If the last day of that prescribed
period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the
next day that is not a Saturday, Sunday, or legal
holiday. Fed. R. Civ. P. 6(a)(1)(C).
All Citations
Not Reported in Fed. Supp., 2022 WL 2663369
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Case 6:25-cv-01495-MAD-MJK Document 9 Filed 12/17/25 Page 42 of 87

Robinson v. Wright
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 5:21-CV-01098
Robinson v. Wright et al
— N.D.N.Y. Oct. 07, 2021 Docket
Case 6:25-cv-01495-MAD-MJK Document 9 Filed 12/17/25 Page 43 of 87

Robinson v. Wright
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (5)
Direct History (2)
1. Robinson v. Wright
2022 WL 2663369 , N.D.N.Y. , July 11, 2022
Report and Recommendation Adopted by
2. Robinson v. Wright
2022 WL 4356214 , N.D.N.Y. , Sep. 19, 2022
Related References (3)
3. Robinson v. Wright
2022 WL 866426 , N.D.N.Y. , Mar. 23, 2022
Report and Recommendation Adopted by
4. Robinson v. Wright
2022 WL 1504175 , N.D.N.Y. , May 12, 2022
5. Robinson v. Wright
2023 WL 6122882 , N.D.N.Y. , Sep. 19, 2023
Case 6:25-cv-01495-MAD-MJK Document 9 Filed 12/17/25 Page 44 of 87

Robinson v. Wright
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:25-cv-01495-MAD-MJK Document 9 Filed 12/17/25 Page 45 of 87

Warren v. Fischl, Not Reported in F.Supp.3d (2015)
2015 WL 6760230
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2015 WL 6760230
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Gregory WARREN, Plaintiff,
v.
Robert FISCHL; Carolyn M. Genovesi; A.D.A. John
J. Mckenna; A.D.A. James R. Watson; A.D.A. Andrea
M. Digregorio; Mary Biunno; Nassau County District
Attorney's Office; Nassau County Court Judge Meryle
Berkowitz; Zelda Jonas; Paul Kowtna; Nassau County
Court Judge David P. Sullivan; Nassau County Court
Judge Allen L. Winick; Nassau County Court Judge
Karen V. Murphy; Nassau County Court; Darin Poole,
C.I. No. 71–91; Det. Laurette Kemp, Sh. No. 737; Det.
Anthony Sorrentino, Sh. No. 728; Det. George Ludwig,
Sh. No. 701; Det. Sgt. Hinchman, Sh. No. Unknown;
Nassau County Police Department; Mathew Muraskin,
Nassau County Legal Aid Society; and Nassau County,
in their individual and official capacities, Defendants.
No. 15–CV–2829(JS)(AKT).
|
Signed Nov. 5, 2015.
Attorneys and Law Firms
Gregory Warren, Bronx, NY, pro se.
No appearances for Defendants.
MEMORANDUM & ORDER
SEYBERT, District Judge.
*1 On May 12, 2015, pro se plaintiff Gregory
Warren (“Plaintiff”) filed an in forma pauperis
Complaint in this Court pursuant to 42 U.S.C. §
1983 (“Section 1983”) and 18 U.S.C. § 1961 et seq.
(“RICO”) against A.D.A. Robert Fischl (“A.D.A .Fischl”);
Carolyn M. Genovesi (“A.D.A.Genovesi”); A.D.A.
John J. McKenna (“A.D.A.McKenna”); A.D.A. James
R. Watson (”A.D.A.Watson); A.D.A. Andrea M.
DiGregorio (“A.D.A.DiGregorio”); A.D.A. Mary Biunno
(“A.D.A.Biunno”); Nassau County District Attorney's Office
(“NCDA Office”); Nassau County Court Judge Meryle
Berkowitz (“Judge Berkowitz”); Hon. Zelda Jonas (“Judge
Jonas”); Hon. Paul Kowtna (“Judge Kowtna”); Nassau
County Court Judge David P. Sullivan (“Judge Sullivan”);
Nassau County Court Judge Allen L. Winnick (“Judge
Winnick”); Nassau County Court Judge Karen V. Murphy
(“Judge Murphy”); Nassau County Court (“County Court”);
Darin Poole, C.I. No. 71–91 (“Poole”); Det. Laurette
Kemp, Sh. No. 737 (“Det.Kemp”); Det. Anthony Sorrentino,
Sh. No. 728 (“Det.Sorrentino”); Det. George Ludwig,
Sh. No. 701 (“Det.Ludwig”); Det. Sgt. Hinchman, Sh.
No. Unknown (“Det.Ludwig”); Nassau County Police
Department (“NCPD”); Mathew Muraskin (“Muraskin”);
Nassau County Legal Aid Society (“Legal Aid”); Nassau
County (“the County” and collectively, “Defendants”),
accompanied by an application to proceed in forma pauperis.
Plaintiff seeks to sue all of the Defendants in their individual
and official capacities.
Upon review of the declaration in support of the application
to proceed in forma pauperis, the Court finds that Plaintiff is
qualified to commence this action without prepayment of the
filing fee. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff's
request to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, the Complaint is sua
sponte DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii)-(iii).
BACKGROUND 1
1 The following facts are taken from Plaintiff's
Complaint and are presumed to be true for the
purpose of this Memorandum and Order.
Plaintiff's Complaint seeks to challenge Plaintiff's September
23, 1992 arrest, and the manner in which Defendants secured
his grand jury indictment, conviction, and sentence. The
gravamen of the Complaint is that Defendants knew or should
have known that perjured testimony was used to prosecute
Plaintiff. Thus, Plaintiff claims that his Fourth, Fifth, Sixth,
and Fourteenth Amendment rights were violated and further
claims that Defendants conspired to violate his rights under
the Racketeer Influenced and Corrupt Organizations Statute,
18 U.S.C. § 1961 et seq. (“RICO”). For relief, Plaintiff seeks
to recover a monetary damages award in excess of $1 billion.
PROCEDURAL HISTORY
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Warren v. Fischl, Not Reported in F.Supp.3d (2015)
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Plaintiff is no stranger to this Court. This is Plaintiff's
second attempt to litigate these claims in this Court against
many of the same Defendants. See Warren v. A.D.A. Fischl,
et al., 96–CV–3387 (“Warren I”). 2 In addition, Plaintiff
filed an unsuccessful Petition for a Writ of Habeas Corpus
challenging the same conviction that is the subject of the
present Complaint. See Warren v. Kelly, 99–CV–4226(ADS)
(“rren II” ). By Memorandum of Decision and Order dated
June 16, 2002, Judge Spatt denied the Petition because
it was time-barred. See Warren v. Kelly, 207 F.Supp.2d 6
(E.D.N.Y.2002). Warren appealed and, by Order dated March
25, 2003, the appeal was dismissed because it was untimely
filed. (See Warren II at Docket Entry No. 20.) On February
6, 2007, Warren filed another Petition for a Writ of Habeas
Corpus challenging this conviction. See Warren v. Payant,
07–CV–0540(JS) (“Warren III”). By Order dated March 7,
2008, this Petition was transferred to the Second Circuit Court
of Appeals as a Successive Petition and, by Mandate dated
April 22, 2009, it was denied. (See Warren III at Docket
Entries 15 and 16.)
2 Plaintiff sued A.D.A. Robert Fischl, A.D.A.
Carolyn M. Genovesi, A.D.A. David P. Sullivan,
D.A. Denis Dillon, District Attorney's Office of
Nassau County, Darin Poole C.I. No. 71–91,
Det. Laurette Kemp Sh. No. 737, Det. Anthony
Sorrentino Sh. No. 728, Det. George Ludwig Sh.
No. 701, Det. Sgt. Hinchman Sh. No. Unknown,
Nassau County Police Department, the County
of Nassau, Meryl Berkowitz, Mathew Muraskin,
the Legal Aid Society of Nassau County, Thomas
Gulotta, and Nassau County. By Memorandum and
Order dated January 9, 1999, District Judge Arthur
D. Spatt granted the Motion to Dismiss brought by
the Legal Aid Society of Nassau County, Mathew
Muraskin, and Meryl Berkowitz. (See Warren I
Docket Entry 131; Warren v. Fischl, 33 F.Supp.2d
171 (E.D.N.Y.1999)). By Order dated September
26, 2000, District Judge Charles R. Wolle, sitting
by designation, granted the remaining Defendants'
Motion for Summary Judgment dismissing the
balance of the complaint in its entirety. (See Warren
I Docket Entry 185.) Plaintiff appealed the Order
granting summary judgment and, by Mandate dated
January 23, 2001, the appeal was dismissed. (See
Warren I Docket Entry 189.) Given Warren I, many
of Plaintiff's claims in the instant case are barred
by res judicata and/or collateral estoppel. However,
because adjudication of Plaintiff's claims is barred
by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994), see infra at 12–17,
the Court need not reach this alternate basis for
dismissal.
*2 Warren also filed an unsuccessful application for a Writ
of Error Corum Nobis seeking to vacate, on the ground of
ineffective assistance of counsel, the Appellate Division's
October 12, 1996 decision (People v. Warren, 232 A.D.3d
589, 648 N.Y.S.2d 670 (2d Dep't 1996)) modifying Warren's
judgment of conviction rendered on June 20, 1994 in the
County Court, Nassau County. People v. Warren, 23 A.D.3d
589, 804 N.Y.S.2d 263 (2d Dep't 2005).
FACTS
As noted above, Plaintiff again seeks to challenge his 1992
arrest and the manner in which the District Attorney's Office,
the individual assistant district attorneys, police officers, and
the Nassau County Police Department secured his grand
jury indictment, conviction, and sentence. Plaintiff further
seeks to challenge the conduct of the state court judges
who presided over his underlying criminal proceedings, the
Nassau County Court and Court Clerk, as well as his criminal
defense attorney and the Nassau County Legal Aid Society.
More specifically, Plaintiff alleges that he was unlawfully
arrested on September 23, 1992 and that his premises were
unlawfully searched at the time of his arrest. (Compl.¶¶
2728.) 3 Plaintiff claims, in conclusory fashion, that on
October 28, 1992 “Poole, Kemp, Ludwig, Fischl, Watson
and McKenna, did knowingly and willfully explicitly/tacitly
agree amongst themselves to fabricate Poole, Kemp, and
Ludwig's testimony ... and evidence and presented it to the
Grand Jury (“GJ”) to unlawfully secure an indictment to
prosecute Plt on a false predicate....” (Compl.¶ 29.) Plaintiff
claims that Fischl called Poole, Kemp, and Ludwig to
testify falsely at the grand jury proceeding and that they
falsely claimed to have purchased cocaine from Plaintiff
on several occasions. (Compl.¶¶ 30–31.) According to
Plaintiff, Ludwig also falsely claimed to have observed
Plaintiff in possession of, inter alia, a “9 millimeter semi-
automatic Taurus pistol” as well as “packets of white powdery
substance ... cocaine.” (Compl.¶ 31.)
3 Plaintiff's allegations have been reproduced here
exactly as they appear in the Complaint. Errors in
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Warren v. Fischl, Not Reported in F.Supp.3d (2015)
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spelling, punctuation, and grammar have not been
corrected or noted.
Plaintiff alleges that the grand jury indicted him, but asserts
that the indictment was not signed by the foreman and
was thus invalid. (Compl.¶ 32.) Plaintiff claims that, in
March 1994, Jonas, Kowtna, Winick, Genovesi, Sullivan,
Berkowitz, and Ludwig agreed to “fabricate a search warrant
for Plt's premises to conceal the fact that NCPD did not
have said warrant when they entered and searched Plt's
premises ...” and “falsely indicating same was issued on
09/22/92.” (Compl.¶¶ 35–36.) Plaintiff next claims that, in
March 1994, Poole, Kemp, Sorrentino, Ludwig, Genovesi,
Sullivan, and Berkowitz “agree [d] amonst themselves to
doctor audio tapes adding Kemp's voice to said tapes ... for
the purpose of presenting them to, and misleading, the Trial
Jury.” (Compl.¶ 37.) Plaintiff also alleges that Poole, Kemp,
Sorrentino, Ludwig, Sullivan, Kowtna, and Berkowitz agreed
amongst themselves to introduce false witness testimony
against Plaintiff at trial. (Compl .¶ 38.) Plaintiff further
claims that tape recordings of Plaintiff's telephone calls were
“doctored” and used against him at trial. (Compl.¶¶ 38–40.)
*3 On April 21, 1994, a jury convicted Warren of Criminal
Possession of a Controlled Substance in the First Degree,
three counts of Criminal Sale of a Controlled Substance
in the Third Degree, six counts of Criminal Possession of
a Controlled Substance in the Third Degree, three counts
of Criminal Possession of a Controlled Substance in the
Fourth Degree, and three counts of Criminal Possession of
a Weapon in the Third Degree. See Warren, 207 F.Supp.2d
at 8. Plaintiff appealed the judgment of conviction claiming
that the “trial court erred in refusing to charge that the
defendant must know the weight of the controlled substance
as an element of the crime of criminal possession of a
controlled substance in the first and fourth degrees.” People
v. Warren, 232 A.D.2d 589, 648 N.Y.S.2d 670 (2d Dep't
1996). The Appellate Division agreed, and ruled that “the
People were required to prove beyond a reasonable doubt
that the defendant had knowledge of both the possession
of the substance and the weight.” Id. at 590, 648 N.Y.S.2d
670. Accordingly, the Court reversed Warren's convictions of
Criminal Possession of a Controlled Substance in the fourth
degree under counts three, six and nine of the indictment,
Criminal Possession of a Controlled Substance in the third
degree under count eleven on the indictment, and Criminal
Possession of a Controlled Substance in the first degree under
count twelve of the indictment, vacated the sentences imposed
thereon, and remitted the case for a new trial as to those
counts. Id. at 589–90, 648 N.Y.S.2d 670; see also Compl. ¶
41. The judgment of conviction on the remaining counts was
affirmed. Warren, 232 A.D.2d at 589, 648 N.Y.S.2d 670.
According to the Complaint, on February 4, 1997, Plaintiff's
court assigned defense attorneys agreed with the District
Attorney, the Nassau County Police Department, Nassau
County, and the Nassau County Court that the remitted
charges against Plaintiff would be dismissed in an effort
to prevent Plaintiff from presenting his “newly discovered,
suppressed evidence proving the Defs founded and rested
their case on fabricated evidence....” (Compl.¶ 43.) Plaintiff
alleges that in August 2000, several Defendants agreed
that they would present false evidence in Federal Court
(presumably in Warren I ) including: (1) that there was a
warrant for the search of Plaintiff's home prior to his arrest;
(2) that none of the Defendants colluded to prosecute Plaintiff
illegally; (3) that none of the Defendants were involved in a
conspiracy to prosecute Plaintiff; and (4) the fraudulent audio
tapes presented in the underlying criminal trial. (Compl.¶¶
44–48.) Plaintiff also claims that, in 2005 and 2011, false
evidence was submitted by several Defendants in opposition
to Plaintiff's C.P.L. §§ 440.10 and 440.46 motions. (Compl.¶¶
49–51.)
As a result of the foregoing, Plaintiff alleges seven causes
of action. First, Plaintiff claims that his Fourth Amendment
Right to be free from unreasonable searches and seizures
was violated when, in 1992 and without a warrant, the
police searched his home and he was arrested. (Compl.¶¶
61–62.) Second, Plaintiff alleges that his Fifth Amendment
Right to testify in his own behalf was violated when he was
denied the opportunity to testify during his trial in 1994.
(Compl.¶¶ 63–64.) Third, Plaintiff alleges that he was denied
the effective assistance of counsel in violation of his Sixth
Amendment Right when his attorneys conspired with law
enforcement personnel to: (1) search Plaintiff's home and
arrest him in 1992; (2) secure Plaintiff's indictment based
on fabricated evidence in 1992; (3) prosecute Plaintiff on
false evidence and without jurisdiction in 1994; (4) falsely
incriminate Plaintiff in 1994; (5) deny Plaintiff the right to
testify on his own behalf in 1994; (6) deny Plaintiff the
right to present favorable and exculpatory evidence in 1994;
(7) secure Plaintiff's conviction with fabricated evidence
from 1994 through 2011; (8) secure and maintain Plaintiff's
imprisonment with fabricated evidence from 1994 through
2011; (9) suppress exculpatory evidence from 1994 through
2011; and (10) destroy exculpatory evidence from 1994
through 2011. (Compl.¶ 66.) Plaintiff's fourth, fifth and
sixth causes of action allege that his Fourteenth Amendment
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Warren v. Fischl, Not Reported in F.Supp.3d (2015)
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Due Process Rights were violated when, in 1994:(1) he
was prosecuted without “a valid grant of subject-matter
jurisdiction” (Compl.¶¶ 67–68); (2) he was denied his right
to a fair trial (Compl.¶¶ 69–70); and (3) he was prevented
from introducing favorable evidence at trial (Compl.¶¶ 71–
72). Finally, Plaintiff's seventh cause of action alleges that the
Defendants violated the RICO statute when they conspired
to unlawfully prosecute and imprison him. (Compl.¶¶ 73–
74.) For relief, Plaintiff seeks to recover a damages award in
excess of $1 billion.
DISCUSSION
I. In Forma Pauperis Application
*4 Upon review of Plaintiff's declaration in support of the
application to proceed in forma pauperis, the Court finds
that Plaintiff is qualified to commence this action without
prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Therefore, Plaintiff's request to proceed in forma pauperis is
GRANTED.
II. Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to dismiss
an in forma pauperis complaint if the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-
(iii), 1915A(b). The Court is required to dismiss the action as
soon as it makes such a determination. See id. § 1915A(b).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir.2008); McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir.2004). However, a complaint must
plead sufficient facts to “state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (citations omitted). The plausibility standard requires
“more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678; accord Wilson v. Merrill Lynch & Co.,
671 F.3d 120, 128 (2d Cir.2011). While “ ‘detailed factual
allegations' “ are not required, “[a] pleading that offers ‘labels
and conclusions' or ‘a formulaic recitation of the elements of a
cause of action will not do.’ “ Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).
III. Section 1983
Section 1983 provides that
[e]very person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State ... subjects, or
causes to be subjected, any citizen of
the United States ... to the deprivation
of any rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured....
42 U.S.C. § 1983; accord Rehberg v. Paulk, ––– U.S. ––––,
132 S.Ct. 1497, 1501–02, 182 L.Ed.2d 593 (2012). To state
a claim under Section 1983, a plaintiff must “ ‘allege that (1)
the challenged conduct was attributable at least in part to a
person who was acting under color of state law and (2) the
conduct deprived the plaintiff of a right guaranteed under the
Constitution of the United States.’ “ Rae v. Cnty. of Suffolk,
693 F.Supp.2d 217, 223 (E.D.N.Y.2010) (quoting Snider v.
Dylag, 188 F.3d 51, 53 (2d Cir.1999)). The applicable statute
of limitations for a Section 1983 action is governed by “the
law of the state in which the cause of action arose.” Wallace v.
Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 1094, 166 L.Ed.2d
973 (2007). In New York, the general statute of limitations
for personal injury claims is three years. See N.Y. C.P.L.R. §
214(5).
A. Heck v. Humphrey Bars Plaintiff's § 1983 Claims
*5 When a claim for damages under § 1983 calls into
question the validity of an underlying conviction, a district
court must dismiss the claim, unless the conviction has been
invalidated. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct.
2364, 2372, 129 L.Ed.2d 383 (1994). The petitioner in Heck
was an inmate with a direct appeal from his conviction
pending, who brought a § 1983 action for damages against
state officials who, he claimed, acted unconstitutionally in
arresting and prosecuting him. Drawing an analogy to the
tort of malicious prosecution, the Supreme Court held that
an inmate's § 1983 claim for damages was unavailable
because he could not demonstrate that the underlying criminal
proceedings had terminated in his favor. Id. at 486–87. This
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favorable termination requirement is similarly applicable to a
released prisoner, such as Plaintiff, seeking to bring a § 1983
action implying the invalidity of a conviction. Id. at 490, n.
10. The Supreme Court in Heck enumerated four methods of
demonstrating that a conviction has been invalidated: (1) the
conviction was reversed on a direct appeal; (2) an executive
order expunged the conviction; (3) a habeas corpus petition
was issued by a federal court; or (4) an authorized state
tribunal declared the conviction invalid. Id. at 486–87.
In this case, affording the pro se Complaint a liberal
construction, Plaintiff arguably relies only on the first
of the these methods to maintain that his conviction
was invalidated. 4 Although Plaintiff's convictions for First
Degree Criminal Possession of a Controlled Substance
(count twelve), and three counts of Fourth Degree Criminal
Possession of a Controlled Substance (counts three, six,
and nine) were reversed on appeal, the Appellate Division
affirmed the judgment of conviction and sentence on the
remaining twelve counts, namely six counts of Third Degree
Criminal Possession of a Controlled Substance (counts two,
five, eight, ten, eleven, and thirteen). See People v. Warren,
323 A.D.2d 589, 648 N.Y.S.2d 670 (2d Dept.1996), leave to
appeal denied, People v. Warren, 90 N.Y.2d 865, 683 N.E.2d
1066, 661 N.Y.S.2d 192 (1997).
4 Method three does not apply because Judge Spatt
denied Plaintiff's application for a writ of habeas
corpus, see Warren v. Kelly, 207 F.Supp.2d 6
(E.D.N.Y.2002), and Plaintiff has not alleged that
methods two and four have any application here.
For purposes of deciding the applicability of Heck here,
the most informative cases are the Second Circuit's recent
decision in Poventud v. City of New York, 750 F.3d 121 (2d
Cir.2014) (en banc ) and DiBlasio v. City of New York, 102
F.3d 654 (2d Cir.1996). In the first case, after trial, Poventud's
conviction on attempted murder and related charges was
vacated as a result of a collateral attack in state court. The state
court found that the investigating officers failed to disclose
exculpatory evidence that the key government witness and
victim had mistakenly identified Poventud's brother as one
of his assailants before the witness eventually identified
Poventud. Poventud, 750 F.3d at 125–26. The case was
remanded for a new trial; but, in order to secure his immediate
release from prison, Poventud pled guilty to a reduced charge
of attempted robbery, contradicting his prior alibi defense that
he was not present during the alleged attack on the victim. Id.
at 124, 126–27.
*6 Thereafter, Poventud initiated a section 1983 action for
damages against the officials who conducted the original
criminal investigation, based on the Brady violations that
tainted the first trial. The Second Circuit, reversing the district
court dismissal of Poventud's civil rights action, found that
Poventud's later plea to reduced charges did not warrant a
Heck bar of his section 1983 action. Explaining that a viable
Brady claim does not require proof of factual innocence, the
Second Circuit concluded that Poventud's subsequent plea
to a related, less serious offense was not inconsistent or
irreconcilable with his 1983 claim predicated on the Brady
violation in the first trial. Id. at 134–35, 137–38. The Second
Circuit acknowledged, however, that Poventud's civil rights
claim based on the Brady violation was inconsistent with his
conviction after the first trial; but that conviction was vacated,
eliminating any Heck problem relating to the first trial. Id. at
134–35, 138.
DiBlasio involved a physician who, in 1986, was convicted
of the Criminal Sale of a Controlled Substance (cocaine) in
the first, second and third degrees, and Criminal Possession
of a Controlled Substance in the fourth degree. Four years
later, following an unsuccessful appeal in the State courts, the
United States District Court for the Eastern District of New
York granted DiBlasio a writ of habeas corpus based on his
claim that the prosecution's failure to produce or identify a
confidential informant deprived him of a fair trial. The Second
Circuit affirmed. DiBlasio v. Keane, 932 F.2d 1038 (2d
Cir.1991). The State retried DiBlasio, and he was convicted
only on the charge of unlawful possession. Subsequently,
DiBlasio brought a malicious prosecution claim against the
police officers pursuant to 42 U.S.C. § 1983. The district court
dismissed the complaint as time-barred and for failure to state
a claim. DiBlasio appealed.
In examining DiBlasio's malicious prosecution claim, the
Second Circuit began by outlining the four elements
of a common law tort for malicious prosecution: “(1)
commencement or continuance of a criminal proceeding,
(2) lack of probable cause, (3) existence of malice, and (4)
termination in plaintiff's favor.” DiBlasio v. City of New York,
102 F.3d 654, 657 (2d Cir.1996). Turning to the question
of favorable termination, the Circuit wrote: “Proceedings are
‘terminated in favor of the accused’ only when their final
disposition is such as to indicate the accused is not guilty.”
Id. at 658. Ultimately, the Second Circuit rejected DiBlasio's
claim because his habeas did not demonstrate his innocence;
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hence, his later retrial and conviction of the lesser crime of
possession.
Upon careful analysis, the Court finds that Poventud is
distinguishable and does not save the instant civil rights
action from dismissal under Heck. Plaintiff's claims in
this case are predicated on the allegation that he was
unlawfully arrested and that Defendants secured his grand
jury indictment, conviction, and imprisonment in violation of
his Constitutional rights. Those Section 1983 claims cannot
be reconciled with Plaintiff's conviction on the remaining
twelve counts, namely six counts of Third Degree Criminal
Possession of a Controlled Substance (counts two, five,
eight, ten, eleven, and thirteen). Because Plaintiff's success
on his civil rights claims in this case would necessarily
invalidate the conviction on these counts, none of which
have been reversed or vacated, Plaintiff's Section 1983
claims are not cognizable under Heck. Like in DiBlasio,
Plaintiff's conviction was not vacated in its entirety. Rather,
Plaintiff's conviction was vacated on just four counts of
the sixteen-count indictment. Thus, because success on
Plaintiff's Section 1983 claims would implicate the validity
of the remaining convictions, Heck's bar precludes their
adjudication. 5 Accordingly, Plaintiff's Section 1983 claims
are not plausible and are thus DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). See Peay v. Ajello, 470 F.3d 65,
68 (2d Cir.2006) (“allegations of extensive conspiratorial
misconduct between defense counsel and the prosecution
would render the [plaintiff's] convictions invalid if they were
proved” and thus are barred by Heck.); Whaley v. Lopez,
12–CV–2889, 2012 WL 3137900, at *7 (E.D.N.Y. July
30, 2012) (citing Kevilly v. New York, 410 F. App'x 371,
374 (2d Cir.2010) (prosecutorial misconduct claim is barred
because such conduct necessarily implies invalidity of the
conviction)). 6
5 Although “ § 1983 remains a possible remedy
when there is no other federal avenue to bring
a claim”, Chillemi v. Town of Southampton, 943
F.Supp.2d 365, 375 (E.D.N.Y.2013), Plaintiff had
the opportunity to-and did-seek habeas relief. See
Warren, 207 F.Supp.2d at *11 (denying petition for
a writ of habeas corpus brought under § 2254).
6 Although statute of limitation is an affirmative
defense, the Court notes that most of the challenged
conduct is alleged to have occurred in the early
1990s with the most recent act allegedly occurring
in 2011 (Compl.¶ 51), all well outside the three-
year statute of limitation.
B. Section 1983 Claims Against Judge Berkowitz 7 ,
Muraskin and Legal Aid
7 The Court notes that the allegations against Judge
Berkowitz relate only to her conduct in 1994 when
she was Plaintiff's criminal defense attorney and
was employed by Legal Aid. (Comp. at ¶ 11.)
*7 Although Plaintiff's claims seeking to impose Section
1983 liability on Judge Berkowitz, Muraskin, and Legal Aid
are barred by Heck, such claims are not plausible for the
additional reason that these Defendants are not state actors.
Section 1983 “constrains only state conduct, not the ‘acts of
private persons or entities.’ “ Hooda v. Brookhaven Nat'l Lab.,
659 F.Supp.2d 382, 393 (E.D.N.Y.2009) (quoting Rendell–
Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 2769, 73
L.Ed.2d 418 (1982)). Accordingly, “a litigant claiming that
his constitutional rights have been violated must first establish
that the challenged conduct constitutes state action.” Flagg v.
Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir.2005)
(internal quotation marks and citation omitted); Fabrikant v.
French, 691 F.3d 193, 206 (2d Cir.2012) (“A plaintiff pressing
a claim of violation of his constitutional rights under § 1983
is [ ] required to show state action.” (internal quotation marks
and citation omitted)). Indeed, “the under-color-of-state-law
element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977,
985, 143 L.Ed.2d 130 (1999) (internal quotation marks and
citation omitted).
Private actors, such as Berkowitz, Muraskin, and Legal Aid,
may be considered to be acting under the color of state
law for purposes of § 1983 if the private actor was a “
‘willful participant in joint activity with the State or its
agents.’ “ Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
324 (2d Cir.2002) (quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 152, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142
(1970)). Section 1983 liability may also extend to a private
party who conspires with a state actor to violate a plaintiff's
constitutional rights. Ciambriello, 292 F.3d at 323–24. In
order to state a Section 1983 conspiracy claim, a plaintiff
must allege: “(1) an agreement between a state actor and a
private party; (2) to act in concert to inflict an unconstitutional
injury; and (3) an overt act done in furtherance of that
goal causing damages.” Id. at 324–25 (citing Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir.1999)). Indeed, “[a]
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merely conclusory allegation that a private entity acted in
concert with a state actor does not suffice to state a § 1983
claim against the private entity.” Ciambriello, 292 F.3d at 324
(internal quotation marks omitted).
Here, Plaintiff alleges that Muraskin and/or Legal Aid are
liable for his claimed Constitutional deprivations simply
because Muraskin was Berkowitz's supervisor and Legal Aid
was her employer. Attorneys, whether with the Legal Aid
Society, court-appointed, or privately retained, are generally
not state actors for purposes of Section 1983. See, e.g.,
Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct.
445, 453, 70 L.Ed.2d 509 (1981); see also Rodriguez
v. Weprin, 116 F.3d 62, 65–66 (2d Cir.1997) (“[I]t is
well-established that court-appointed attorneys performing
a lawyer's traditional functions as counsel to [a] defendant
[in a criminal proceeding] do not act ‘under color of state
law’ and therefore are not subject to suit under 42 U.S.C. §
1983”); there is no respondent superior liability under Section
1983. Iqbal, 556 U.S. at 676 (“[b]ecause vicarious liability
is inapplicable to ... § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official's
own individual actions, has violated the Constitution.”). A
complaint based upon a violation under Section 1983 that
does not allege the personal involvement of a defendant fails
as a matter of law. See Johnson v. Barney, 360 F. App'x 199,
201 (2d Cir.2010). Thus, Plaintiff has not alleged a plausible
Section 1983 claim against Muraskin or Legal Aid and such
claims are DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii).
*8 Additionally, Plaintiff has not sufficiently alleged that
Berkowitz acted jointly with a state actor or conspired with
a state actor to deprive Plaintiff of some constitutional right.
Although Plaintiff suggests that his Legal Aid attorney,
Berkowitz, conspired with a state court judge to pursue his
illegal prosecution, his merely conclusory allegations with
no supporting factual averments are insufficient to state a
conspiracy. Thus, in the absence of any state action, Plaintiff's
Section 1983 claim against Berkowitz is not plausible as a
matter of law. Ciambriello, 292 F.3d at 325. Moreover, though
far from clear, to the extent Plaintiff seeks to assert a cause of
action against Berkowitz based on the ineffective assistance
of counsel, “an ineffectiveness [claim is not actionable] in
a proceeding brought under § 1983.” Bourdon v. Loughren,
386 F.3d 88, 90 (2d Cir.2004). Accordingly, Plaintiff's
Section 1983 claim against Berkowitz is DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IV. Plaintiff's RICO Claims
A. Judge Jonas, Judge Kowtna, Judge Sullivan, and
Judge Winnick are Immune From Such Claims
Plaintiff's remaining claims against Judges Jonas, Kowtna,
Sullivan, and Winnick are subject to dismissal because these
Defendants, all of whom are judges employed by the state
court, are absolutely immune from suit. It is well-established
that judges “generally have absolute immunity” from suit
for judicial acts performed in their judicial capacities. Bliven
v. Hunt, 579 F.3d 204, 209 (2d Cir.2009) (citing Mireles v.
Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 287, 116 L.Ed.2d 9
(1991)). This absolute “judicial immunity is not overcome
by allegations of bad faith or malice,” nor can a judge “be
deprived of immunity because the action he took was in
error ... or was in excess of his authority.” Mireles, 502 U.S. at
11, 13 (internal quotation marks and citation omitted (ellipsis
in original)).
Rather, judicial immunity is overcome in only two instances.
The first is “liability for nonjudicial actions, i.e., actions not
taken in the judge's judicial capacity.” Bliven, 579 F.3d at
209 (quoting Mireles, 502 U.S. at 11). The second is liability
arising from actions taken “ ‘in the complete absence of all
jurisdiction.’ “ Basile v. Connolly, 538 F. App'x 5, 7 (2d
Cir.2013) (emphasis in the original) (quoting Mireles, 502
U.S. at 1112). Here, nothing in Plaintiff's Complaint suggests
that either exception applies to overcome absolute judicial
immunity. Although Plaintiff complains that the judges acted
without jurisdiction, such allegation is belied by the fact
that he was tried and convicted in the state court, and such
conviction was, in large part, affirmed on appeal. See People
v. Warren, 323 A.D.2d 589, 648 N.Y.S.2d 670 (2d Dept.1996),
leave to appeal denied, People v. Warren, 90 N.Y.2d 865, 683
N.E.2d 1066, 661 N.Y.S.2d 192 (1997). There can be no doubt
that state court prosecution for violations of state law relating
to drug possession and weapon possession is the very kind of
case over which state courts have jurisdiction. Accordingly,
Plaintiff's claims against Judges Jonas, Kowtna, Sullivan, and
Winnick are not plausible as a matter of law and are thus
DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii)-(iii).
B. Plaintiff has not Adequately Alleged RICO Claims
Against the Remaining Defendants
*9 Plaintiff also alleges that Defendants have violated his
rights under RICO. RICO makes it a crime to conduct “an
enterprise's affairs through a pattern of racketeering activity.”
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18 U.S.C. § 1962(c). “18 U.S.C. § 1964(c) provides a private
right of action for ‘[a]ny person injured in his business or
property by reason of a violation of Section 1962.’ “ Goldfine
v. Schienzia, 118 F.Supp.2d 392, 399 (S.D.N.Y.2000), quoting
18 U.S.C. § 1964(c) (emphasis omitted). The statute of
limitations for a civil RICO claim under 18 U.S.C. § 1964(c)
is four years. Frankel v. Cole, 313 F. App'x 418, 419 (2d
Cir.2009) (citing Agency Holding Corp. v. Malley–Duff &
Assocs., 483 U.S. 143, 156, 107 S.Ct. 2759, 2767, 97 L.Ed.2d
121 (1987)). The statute of limitations “ ‘begins to run when
the plaintiff discovers or should have discovered the RICO
injury.’ “ Frankel, 313 F. App'x at 419 (quoting In re Merrill
Lynch, Ltd. P'Ships Litig., 154 F.3d 56, 58 (2d Cir.1998) (per
curiam) ).
Here, given that Plaintiff was convicted in 1994, his alleged
RICO injury occurred well outside the four-year statutory
period. Even accepting Plaintiff's allegation that the most
recent action undertaken as part of the conspiracy occurred
on April 21, 2011 (Compl.¶ 51), it too is outside the statutory
period given Plaintiff's filing of this Complaint on May 12,
2015. Thus, Plaintiff's RICO claims are clearly time-barred.
Moreover, Plaintiff's RICO claims are not plausible because
wholly absent from the Complaint are any factual allegations
that any of the Defendants received money from racketeering
activities, had an interest in an enterprise engaged in
racketeering, or conspired to violate Section 1962. Plaintiff
does not allege any facts which would support an inference
that Defendants were engaged in racketeering activity or
involved in an enterprise which affects interstate or foreign
commerce. Thus, even construing Plaintiff's Complaint
liberally, there is no factual or legal basis for a RICO
claim. In the absence of any such allegations, together with
the unexplained twenty-year delay in bringing such claims,
Plaintiff's RICO claims are not plausible and are DISMISSED
WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)
(ii).
IV. Leave to Amend
Given the Second Circuit's guidance that a pro se complaint
should not be dismissed without leave to amend unless
amendment would be futile, Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir.2000), the Court has carefully considered
whether leave to amend is warranted here. Because the defects
in Plaintiff's claims are substantive and would not be cured
if afforded an opportunity to amend, leave to amend the
Complaint is DENIED.
CONCLUSION
For the reasons set forth above, Plaintiff's application to
proceed in forma pauperis is GRANTED, however the
Complaint is sua sponte DISMISSED WITH PREJUDICE
for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)
(2)(B)(ii)-(iii).
*10 The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good
faith and therefore in forma pauperis status is DENIED for
the purpose of any appeal. See Coppedge v. United States, 369
U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
The Clerk of the Court is directed to mail a copy of this Order
to Plaintiff and to mark this case CLOSED.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 6760230
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Warren v. Fischl
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (7)
Title PDF Court Date Type
1. Brief for Defendants-Appellees
Gregory WARREN, Plaintiff - Appellant, v. A.D.A Robert
FISCHL, A.D.A Caroyln M. Genovesi, Ada John J.
Mckenna, Ada James R. Watson, Andrea M. Digregorio,
Ada Mary Biunno, Nassau County District Attorney's
Office, Meryle Berkowitz, Honorable Judge Zelda Jonas,
Honorable Judge Paul Kowtna, A.D.A. David P. Sullivan,
Judge Allen L. Winick, Karen V. Murphy, Ncc Court Clerk,
Nassau County Courthouse, Darin Poole, C.I. No. 7191,
Detective Anthony Sorrentino, Sh. No. 701,
2016 WL 5403060
C.A.2 Sep. 23, 2016 Brief
2. Brief for Appellant
WARREN, G., Appellant, v. FISCHL et al., Appellee.
2016 WL 3537015
C.A.2 June 23, 2016 Brief
3. Brief for Appellant
WARREN, G., Appellant, v. FISCHL et al., Appellee.
2016 WL 3551440
C.A.2 June 23, 2016 Brief
4. Brief for Appellant
WARREN, G., Appellant, v. FISCHL et al., Appellee.
2016 WL 1128188
C.A.2 Mar. 18, 2016 Brief
5. Docket 16-9388
GREGORY WARREN v. ROBERT FISCHL, ET AL.
— U.S. May 31, 2017 Docket
6. Docket 15-3919
WARREN v. FISCHL
— C.A.2 Dec. 03, 2015 Docket
7. Docket 2:15cv02829
WARREN v. FISCHL ET AL
— E.D.N.Y. May 12, 2015 Docket
Case 6:25-cv-01495-MAD-MJK Document 9 Filed 12/17/25 Page 54 of 87

Warren v. Fischl
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (3)
1. Warren v. Fischl
2015 WL 6760230 , E.D.N.Y. , Nov. 05, 2015
Judgment Affirmed by
2. Warren v. Fischl
674 Fed.Appx. 71 , 2nd Cir.(N.Y.) , Jan. 06, 2017
Certiorari Denied by
3. Warren v. Fischl
583 U.S. 847 , U.S. , Oct. 02, 2017
Case 6:25-cv-01495-MAD-MJK Document 9 Filed 12/17/25 Page 55 of 87

Fauconier v. Committee on Special Education, Not Reported in F.Supp.2d (2003)
2003 WL 21345549
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Overruling Risk
Overruling Risk Exxon Mobil Corp. v. Saudi Basic Industries Corp., U.S.,
March 30, 2005
2003 WL 21345549
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Richard FAUCONIER, Plaintiff,
v.
COMMITTEE ON SPECIAL EDUCATION, District
3, New York City Board of Education, Defendant.
No. 02 Civ.1050 RCC.
|
June 10, 2003.
Synopsis
Noncustodial parent sued special education committee under
Individuals with Disabilities Act (IDEA), challenging denial
of mainstream educational placement for student. Committee
moved to dismiss. The District Court, Casey, J., held that:
(1) nonattorney parent could not proceed pro se, representing
interests of student under IDEA, and (2) Rooker-Feldman
doctrine barred suit.
Case dismissed.
West Headnotes (2)
[1] Infants Schools and education
Nonattorney parent could not proceed pro
se to represent interests of student in suit
under Individuals with Disabilities Education
Act (IDEA) challenging school committee's
decision to retain student in special private
education setting rather than mainstreaming him.
20 U.S.C.A. § 1400 et seq.
17 Cases that cite this headnote
[2] Courts Constitutional questions, civil
rights, and discrimination in general
Rooker-Feldman doctrine, precluding federal
court review of state court final judgment,
barred suit under Individuals with Disabilities
Education Act (IDEA) by noncustodial
parent challenging school district's denial of
mainstream educational placement for disabled
student; claimant was trying to obtain federal
court reversal of state court determination that
he could not represent student's interests under
IDEA, because he was not custodial parent. 20
U.S.C.A. § 1400 et seq.
4 Cases that cite this headnote
OPINION & ORDER
CASEY, J.
I. Background
*1 Pro se Plaintiff Richard Fauconier (“Plaintiff”) initiated
this action on behalf of himself and his son, M.F., 1 against
the Committee on Special Education of District 3 of the
New York City Board of Education (“Defendant”) alleging
violations of the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. On July 24,
2002, Defendant filed a motion to dismiss the complaint.
By Report and Recommendation (“Report”) Judge Ronald
Ellis recommended that Defendant's motion to dismiss be
granted and that Plaintiff's complaint be dismissed without
prejudice. Thereafter, the Plaintiff filed timely objections to
the Report. Accordingly, the Court reviews the matter de
novo. Fed.R.Civ.P. 72(b).
1 In the interests of privacy, the child will be referred
to in these proceedings as “M.F.”
The Plaintiff is the non-custodial parent of M.F., who has been
diagnosed with Attention Deficit Hyperactive Disorder. M.F.
is a student at a private institution for emotionally, physically
and mentally challenged students. Due to his disability, public
funds are used to pay for M.F.'s education.
On five separate occasions, from August, 1994 to March,
2001, M.F. was evaluated by District 3. As a result of each
evaluation, District 3 found it to be in M.F.'s best interest
that he continue to attend a private educational institution.
The Plaintiff, however, sought to have his son placed in
a mainstream school. District 3 denied Plaintiff's request
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for a reevaluation and transfer of M.F. and declined to
include Plaintiff as a member of M.F.'s IEP team. In reaching
these decisions, District 3 cited Plaintiff's status as the non-
custodial parent.
As a result, on November 5, 2001, Plaintiff filed an order to
show cause in an Article 78 Special Proceeding in the State
of New York Supreme Court, New York County. Plaintiff
sought: (1) a reevaluation of M.F.; (2) placement of M.F.
in a mainstream academic setting with support services; (3)
permission for M.F. to take the standardized testing for fourth
grade math and English; and (4) a position on M.F.'s IEP
team with full access to his educational records. By final
disposition, the state court denied Plaintiff's claims in light
of his non-custodial status. Plaintiff then commenced this
federal action on February 11, 2002.
II. Discussion
[1] In his Report, Judge Ellis recommended that Plaintiff's
complaint be dismissed without prejudice on the ground that
under Cheung v. Youth Orchestra Foundation of Buffalo, Inc.,
906 F.2d 59, 61 (2d Cir.1990), Plaintiff could not proceed
pro se to litigate M .F.'s interests. For the following reasons,
the Court concludes that pursuant to its affirmative duty to
enforce the Cheung rule, the claims that Plaintiff brings on
behalf of his son must be dismissed. Additionally, the Court
finds that Plaintiff's remaining claims brought on his own
behalf are barred by the Rooker–Feldman doctrine.
A. Representing Children Pro Se
The Second Circuit has made clear in Cheung that a court
has an affirmative duty to enforce the rule that a non-attorney
parent must be represented by counsel when bringing an
action on behalf of his or her child. See id. at 61. In fact, the
Second Circuit in Cheung enforced this affirmative duty prior
to addressing the jurisdictional issues present in that case.
This Court therefore has a duty to enforce the Cheung rule,
for “ ‘[t]he infant is always the ward of every court wherein
his rights or property are brought into jeopardy, and is entitled
to the most jealous care that no injustice be done to him.” ’
Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 125 (2d
Cir.1998) (quoting Johns v. County of San Diego, 114 F.3d
874, 877 (9th Cir.1997). On the other hand, a parent is entitled
to represent himself when claiming that his own rights under
the IDEA have been violated. Id. at 126. Here, Counts One
and Two of Plaintiff's Amended Complaint are claims that
exclusively concern M.F.'s rights. Additionally, Counts Three
and Five concern both Plaintiff's and M.F.'s rights. Under
Cheung, however, Plaintiff may not litigate the interests of
M.F. Therefore, at the outset the Court dismisses Counts One
and Two of Plaintiff's complaint. Counts Three and Five are
dismissed to the extent that they concern M.F.'s rights. Thus,
the remaining claims not barred by Cheung are Plaintiff's
record-access claim, Plaintiff's claim that he be permitted a
seat on M.F.'s IEP team, and his claim that Defendant has
violated his Fourteenth Amendment rights.
B. Rooker–Feldman
*2 [2] The Rooker–Feldman doctrine holds that a party
may not take an appeal of a state court decision to a federal
court. Plaintiff, however, requests that this Court do precisely
that.
Plaintiff's claims that he be permitted access to M.F.'s
educational records and that he be given a seat on M.F.'s IEP
team were precisely the subject of Plaintiff's order to show
cause brought in state court. Therefore, as discussed below,
under the Rooker–Feldman doctrine these claims may not be
re-litigated here. Accordingly, the Court finds that it lacks
subject matter jurisdiction over these claims.
A challenge under the Rooker–Feldman doctrine is for lack
of subject matter jurisdiction and therefore may be raised at
any time by either party or sua sponte by the Court. Moccio v.
New York State Officers of Court Admin., 95 F.3d 195, 198 (2d
Cir.1996). Generally speaking, the Rooker–Feldman doctrine
directs that a federal district court lacks authority to review
the final judgment of state courts in judicial proceedings.
Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir.2002). The
doctrine is derived from two Supreme Court decisions. In
the first, Rooker v. Fidelty Trust Co., 263 U.S. 413, 44 S.Ct.
149, 68 L.Ed. 362 (1923), the Court held that appeals from
state court judgments are reserved to the Supreme Court, and
therefore the lower federal courts lack jurisdiction to entertain
such appeals. Sixty years later, in District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75
L.Ed.2d 206 (1983), the Court extended Rooker by barring
reconsideration of claims that were implicitly decided by the
state court as well. In crafting the “inextricably intertwined”
test, the Court held:
If the constitutional claims presented
to a United States district court
are inextricably intertwined with the
state court's denial in a judicial
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proceeding ... then the district court
is in essence being called upon to
review the state-court decision. This
the district court may not do.
Feldman, 460 U.S. at 483–84 n. 16.
Under the Rooker–Feldman doctrine, the Court may address
two questions: (1) whether a party is attempting to directly
challenge a state court decision in federal court and (2)
whether such a suit is inextricably intertwined with the
previous state court proceedings. Given that a challenge under
the Rooker–Feldman doctrine as an inquiry into the Court's
subject matter jurisdiction, the Court may consider materials
extrinsic to the complaint. Phifer v. City of New York, 289 F.3d
49, 55 (2d Cir.2002). The Court now turns to this inquiry.
In his attempt to appeal the decision of the state court to
the federal courts, Plaintiff asserts that this action contains
claims under the IDEA that were never raised in the state court
proceeding. See Plaintiff's Memorandum of Law ¶ 38. The
Court, however, finds Plaintiff's assertion disingenuous. In
his November 15, 2001 Affidavit filed in New York Supreme
Court, Plaintiff himself stated that his cause of action was
partly “governed by the federal Individuals with Disabilities
Education Act (IDEA).” Moreover, in state court Plaintiff
asserted that despite the fact that he is M.F.'s non-custodial
father, Doe v. Anrig, 651 F.Supp. 424 (D.Mass.1987),
supported his claim that he could still assert claims under the
IDEA. See Plaintiff's Nov. 15, 2001 Aff. ¶ 7(i). Nevertheless,
the state court concluded that because Plaintiff is not the
custodial parent, he lacked decision making authority for M.F.
See Ex. O to Am. Compl.
*3 On December 6, 2001 Plaintiff filed this action
contending that the state court was insensitive to the facts
forming the basis of his federal claims and that the state
court failed to protect his federal rights. Plaintiff's Amended
Complaint asserts that the state court “made no mention
of Doe v. Anrig” and that “apparently, no judicial notice
is taken of cases in federal district courts such as Doe v.
Anrig, and the educational system's escape of scrutiny is
assured.” Am. Compl. ¶¶ 33, 34. Accordingly, the Court
finds that Plaintiff's pleadings demonstrate that he has brought
this action because he is dissatisfied with the state court
decision. In effect, Plaintiff is asking the Court to review the
state court's determination that he lacks educational decision
making authority because he is not the custodial parent.
The Rooker–Feldman doctrine squarely bars a litigant from
complaining of a result in state court by asking a federal court
to entertain an appeal of that result. See Kropelnicki, 290 F.3d
at 128. To consider Plaintiff's claims, the Court would be
required to determine whether the IDEA protects the rights of
both custodial and non-custodial parents, a question the state
court has already ruled upon in this case. This type of request
is squarely barred under the Rooker–Feldman doctrine. See
Corsini v. Ross, 152 F.3d 917 (2d Cir.1998) (“[D]istrict courts
‘do not have jurisdiction ... over challenges to state court
decisions ... even if those challenges allege that the state
court's action was unconstitutional .” ’) (quoting Feldman,
460 U.S. at 486). Accordingly, the Court lacks subject matter
jurisdiction in this case.
III. Conclusion
For the reasons stated above, under Cheung Plaintiff's claims
brought on behalf of M.F. are dismissed. Additionally,
Plaintiff's remaining claims pertaining to his rights under the
IDEA are dismissed under the Rooker–Feldman doctrine. The
Clerk of the Court is hereby directed to close the case.
All Citations
Not Reported in F.Supp.2d, 2003 WL 21345549
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Fauconier v. Committee on Special Education
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Filings (3)
Title PDF Court Date Type
1. Petition for Rehearing, for Pro-Se plaintiff-appellant
Richard FAUCONIER Plaintiff-Appellant, v. COMMITTEE
ON SPECIAL EDUCATION, District 3, New York City
Board of Education, Defendant-Appellee,
2004 WL 3507929
C.A.2 Oct. 14, 2004 Petition
2. Docket 03-7793
FAUCONIER v. COMMITTEE ON SPECIAL
— C.A.2 Aug. 05, 2003 Docket
3. Docket 1:02CV01050
FAUCONIER v. COMMITTEE ON SPECIAL
— S.D.N.Y. Feb. 11, 2002 Docket
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Fauconier v. Committee on Special Education
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (3)
1. Fauconier v. Committee of Special Educ.
2002 WL 31235786 , S.D.N.Y. , Oct. 02, 2002
Report and Recommendation Adopted by
2. Fauconier v. Committee on Special Education
2003 WL 21345549 , S.D.N.Y. , June 10, 2003
Decision Affirmed by
3. Fauconier v. Committee on Special Educ., Dist. 3, New York City Bd. of Educ.
112 Fed.Appx. 85 , 2nd Cir.(N.Y.) , Sep. 30, 2004
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Fauconier v. Committee on Special Education
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McKiver v. City of New York, Not Reported in Fed. Supp. (2018)
2018 WL 3543906
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 3543906
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jeffery MCKIVER, Plaintiff,
v.
CITY OF NEW YORK, Thomas Gerding,
Alberto Pingy, George Garica, Amanda
Levy, Zwi Wasserstein, Defendants.
1:17-cv-04411 (GBD) (KHP)
|
Signed 02/16/2018
Attorneys and Law Firms
Jeffery McKiver, Danbury, CT, pro se.
Thandiwe Gray, New York County District Attorney, Maria
Fernanda DeCastro, Rruhija Matai-Sanchez, New York City
Law Department, New York, NY, Gregg Douglas Weinstock,
Karolina Maria Wiaderna, Vigorito, Barker, Porter, &
Patterson, LLP, Garden City, NY, for Defendants.
REPORT AND RECOMMENDATION
Katharine H. Parker, United States Magistrate Judge
*1 To: The Honorable George B. Daniels, United States
District Judge
From: Katharine H. Parker, United States Magistrate
Judge
Pro se Plaintiff Jeffery McKiver filed this action pursuant
to 42 U.S.C. § 1983 (“Section 1983”) against Defendants
the City of New York, police officers Thomas Gerding,
Alberto Pingy, and George Garica, Assistant District Attorney
Amanda Levy, and Plaintiff's former defense counsel
Zwi Wasserstein, alleging various constitutional violations
stemming from his criminal prosecution for drug and
weapons-related crimes. Defendant Wasserstein has filed a
Motion to Dismiss the Complaint as against him pursuant to
Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”).
(Doc. No. 26.) For the reasons set forth below, this Court
recommends that the Motion to Dismiss be GRANTED.
BACKGROUND
Plaintiff's claims arise out of his arrest at the Port Authority
Bus Terminal (the “Port Authority”) in New York on August
22, 2014 for possession of drugs and a weapon. Plaintiff
asserts that while at the Port Authority, he was unlawfully
searched by a police officer and then arrested without
probable cause. (Doc. No. 1 (“Compl.”) at 3, 8-10.) Though
Plaintiff admits that he possessed a knife and marijuana at the
time of the arrest, he claims there was no basis for the police to
stop and search him and that the police made false statements
about the circumstances surrounding his arrest. (Compl. at
8-10.) After the arrest, Plaintiff originally was indicted by
the New York County District Attorney's Office. (Compl. at
10.) However, those charges were dismissed after Plaintiff
was indicted in federal court based on the August 22, 2014
incident. (Id.) Plaintiff ultimately pled guilty to possession
of a controlled substance with the intent to distribute 1 and
was sentenced to 68 months imprisonment with 60 months of
supervised release. (Compl. at 9.)
1 Defendant Levy has annexed to her motion to
dismiss the transcript of Plaintiff's plea allocution.
(Doc. No. 37 Ex. 7.) Although Plaintiff did not
annex the plea allocution to his Complaint or allege
the specific crime to which he pled guilty, the
Court may consider the plea allocution because the
Complaint incorporates Plaintiff's guilty plea by
reference. See Int'l Audiotext Network, Inc. v. Am.
Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995).
Defendant Wasserstein, an attorney with the New York
County Defender Services, was Plaintiff's court-assigned
attorney for the criminal case pending in state court. (Compl.
at 9.) Plaintiff alleges that he informed Defendant Wasserstein
that he wanted to testify before the Grand Jury and be
present when his indictment was issued. (Compl. at 12-13.)
Plaintiff claims that Defendant Wasserstein ignored Plaintiff's
wishes, advised him not to testify, and waived Plaintiff's
right to testify without his consent. (Compl. at 12; Doc
No. 25 (“Pl's Opp.”) at 5.) Plaintiff also alleges that the
arresting officers fabricated evidence against him and that
Defendant Wasserstein failed to investigate Plaintiff's claims
of innocence and failed to seek surveillance video that
would have corroborated Plaintiff's version of events and
proven his innocence. (Compl. at 9-10, 11-13.) Plaintiff
further asserts that Wasserstein failed to competently cross-
examine the arresting officers, failed to properly consult
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with Plaintiff about entering a plea, failed to visit the scene
of the crime, failed to object to certain conduct of the
prosecutor, failed to obtain funds to hire an investigator,
delayed filing a motion to suppress, and conspired with
the state prosecutor and arresting officers. (Pl's. Opp. at
5-7.) Based on all of the above, Plaintiff alleges that
Defendant Wasserstein committed legal malpractice and
provided ineffective assistance of counsel. (Pl's. Opp. at 5,
20.)
*2 Prior to filing this action, Plaintiff filed a grievance
against Defendant Wasserstein with the Disciplinary
Committee of the New York Supreme Court, Appellate
Division, First Department. (Compl. at 19.) On July 2,
2015, the Disciplinary Committee informed Plaintiff that
it had completed its investigation of Plaintiff's complaint
against Defendant Wasserstein and it found that Plaintiff's
dissatisfaction did not amount to Defendant Wasserstein's
professional misconduct. (Compl. at 19.)
DISCUSSION
I. Legal Standard
When considering a motion to dismiss under Rule 12(b)(6),
a court must accept all factual allegations in the complaint
as true and draw all inferences in the plaintiff's favor. Cruz
v. Beto, 405 U.S. 319, 322 (1972); Littlejohn v. City of New
York, 795 F.3d 297, 306 (2d Cir. 2015). To survive the motion,
the Court must determine whether the complaint contains
“sufficient factual matter ... to ‘state a claim to relief that
is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007) ). While detailed factual allegations
are not required, the complaint must contain more than mere
“labels and conclusions.” Id. It must contain more than
“naked assertion[s] devoid of further factual enhancement.”
Id. (citation omitted). And, it must contain more than a
“formulaic recitation of the elements of a cause of action.” Id.
As the U.S. Supreme Court explained in Ashcroft v. Iqbal, the
“plausibility standard” asks for “more than a sheer possibility
that a defendant has acted unlawfully.” Id.
The same standards apply to motions to dismiss complaints
filed by pro se plaintiffs. See Legeno v. Corcoran Grp., 308
F. App'x 495, 496 (2d Cir. 2009); Jenkins v. N.Y.C. Dep't of
Educ., No. 10-cv-6159 (BSJ) (THK), 2011 WL 5451711, at
*3 (S.D.N.Y. Nov. 9, 2011) (pro se status “does not ... excuse
a plaintiff from compliance with the pleading standards of
the Federal Rules of Civil Procedure”). However, a pro
se plaintiff's complaint must be construed liberally, Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011), and interpreted
as raising the strongest arguments it suggests. Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see
also Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). For
this reason, courts will consider allegations made in a pro se
plaintiff's submission in opposition to a motion to dismiss as
supplementing the complaint's allegations, provided that such
assertions are consistent with the allegations in the complaint.
See, e.g., Chukwueze v. NYCERS, 891 F. Supp. 2d 443, 448
(S.D.N.Y. 2012); Flores v. N.Y.C. Human Res. Admin., No.
10-cv-2407 (RJH), 2011 WL 3611340, at *1, n.1 (S.D.N.Y.
Aug. 16, 2011).
Construing Plaintiff's Complaint and the allegations made in
his opposition papers as raising the strongest arguments they
suggest, the Complaint can be read as raising two claims
against Defendant Wasserstein: (1) violation of Plaintiff's
civil rights under of Section 1983 by providing ineffective
assistance of counsel in his representation of Plaintiff in the
underlying criminal matter and by conspiring with the police
and prosecutor and (2) legal malpractice under New York
common law. These claims are addressed in turn below.
II. Section 1983 Claims
In order to state a cognizable claim under Section 1983, a
plaintiff must allege that he has been deprived of a federally
protected right by someone acting under the color of state
law. 42 U.S.C. § 1983; Flagg Brothers, Inc. v. Brooks, 436
U.S. 149, 155 (1978). A “public defender does not act under
color of state law when performing a lawyer's traditional
functions as counsel to a defendant in a criminal proceeding.”
Polk County v. Dodson, 454 U.S. 312, 325 (1981); see also
Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (“[I]t
is well-established that court-appointed attorneys performing
a lawyer's traditional functions as counsel to a defendant do
not act ‘under color of state law’ and therefore are not subject
to suit under 42 U.S.C. § 1983.”).
*3 Here, Defendant Wasserstein represented Plaintiff on
behalf of the New York County Defender Services. Plaintiff
alleges that Defendant Wasserstein rendered ineffective
assistance of counsel because, among other reasons, he failed
to competently cross-examine the arresting officers, failed to
properly consult with Plaintiff about entering a plea, failed
to visit the scene of the crime, failed to object to certain
conduct of the prosecutor, failed to obtain funds to hire an
investigator, and failed to order surveillance videos. These
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allegations concern activities that are fall squarely within the
traditional functions of counsel. See Dodson, 454 U.S. at 320,
325. Therefore, Defendant Wasserstein was not acting under
color of state law, meaning that Plaintiff cannot state a claim
for ineffective assistance of counsel under Section 1983. See
Jones v. New York City Police Dep't, No. 09-cv-8105 (BSJ)
(JCF), 2012 WL 1034919, at *1 (S.D.N.Y. Mar. 27, 2012)
(adopting report and recommendation dismissing Section
1983 ineffective assistance of counsel claims against New
York County Defender Services).
Though a public defender does not act under color of state law
when performing a lawyer's traditional functions as counsel
to a defendant in a criminal proceeding, a public defender
may be held liable under Section 1983 for engaging in a
conspiracy with officials acting under color of state law to
deprive a person of a right secured by the Constitution. Tower
v. Glover, 467 U.S. 914, 923 (1984);Warren v. Fischl, 33
F. Supp. 2d 171, 177 (E.D.N.Y. 1999). In order to state a
claim for conspiracy under Section 1983, the complaint must
contain more than mere conclusory allegations. Dwares v.
City of New York, 985 F.2d 94, 99 (2d Cir. 1993), overruled
on other grounds by Jean-Laurent v. Wilkerson, 461 F. App'x
18 (2d Cir. 2012). A plaintiff must allege “details of time
and place and the alleged effect of the conspiracy.” Id.
(internal quotation marks omitted). In addition, a plaintiff
must plead facts to demonstrate that the defendants entered
into an agreement, express or tacit, to achieve the unlawful
end. Warren, 33 F. Supp. 2d at 177.
To the extent the Complaint here can be read to assert a
conspiracy theory of liability, it fails to state a claim. Plaintiff's
conspiracy allegation is asserted in the most conclusory
fashion and is unsupported by facts that plausibly establish
that Defendant Wasserstein entered into an agreement with
the police or the prosecutor to charge and convict Plaintiff of
the crime to which he pled guilty.
Accordingly, this Court recommends that the Section 1983
claims against Defendant Wasserstein be dismissed.
III. Malpractice Claim
Plaintiff's malpractice claim against Defendant Wasserstein
also fails as a matter of law. A legal malpractice claim
in New York requires a plaintiff to demonstrate that the
attorney breached the standard of care owed to his client,
that the attorney's negligence was the proximate cause of
the loss sustained, and that the client has suffered actual
and ascertainable damages as a result of the malpractice.
Dombrowski v. Bulson, 19 N.Y.3d 347, 350 (2012). In the
context of criminal defense representation, the client must
establish that “the conviction was due to the attorney's actions
alone and not due to some consequences of his guilt.” Britt
v. Legal Aid Society, 95 N.Y.2d 443, 447 (2000); Carmel v.
Lunney, 70 N.Y.2d 169, 173-74 (1987). A plaintiff who has
been convicted of a criminal offense must be able to assert
his innocence or a colorable claim of innocence before he
can pursue a claim against his attorney for legal malpractice
arising out of the criminal proceeding. Britt, 95 N.Y.2d at 447.
Thus, a plaintiff cannot assert a cognizable malpractice claim
under New York law so long as his conviction stands. See id.;
see also D'Amato v. Bray, 83 F. App'x 380, 381 (2d Cir. 2003).
In this case, Plaintiff admits that he possessed drugs and
a knife when he was arrested and pled guilty to a charge
stemming from this arrest. (Compl. at 8-9, 12-13.) Thus,
Plaintiff fails to plead a colorable claim of innocence of
the underlying offense. Britt, 95 N.Y.2d at 447. Nothing
in Plaintiff's Complaint suggests that his conviction was
overturned or will be overturned due to his innocence.
Rather, because he pled guilty, this Court finds that
Plaintiff's conviction was due to his admitted guilt—not
Defendant Wasserstein's actions. The Court also notes that
Plaintiff filed a grievance against his attorney, which was
investigated by the Disciplinary Committee of the New
York Supreme Court, Appellate Division, First Department.
According to a document that Plaintiff annexed to his
Complaint, the Disciplinary Committee found no evidence
of attorney misconduct. (Compl. at 19.) Accordingly, the
Court recommends that Plaintiff's legal malpractice claim be
dismissed.
CONCLUSION
*4 For the reasons set forth above, this Court respectfully
recommends that Defendant Wasserstein's Motion to Dismiss
be GRANTED and the claims against him be dismissed.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 3543906
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McKiver v. City of New York, Not Reported in Fed. Supp. (2018)
2018 WL 3543906
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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McKiver v. City of New York
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Filings (2)
Title PDF Court Date Type
1. Docket 18-2369
MCKIVER v. NYC PD MIDTOWN S MANHATTAN POL
— C.A.2 Aug. 10, 2018 Docket
2. Docket 1:17-CV-04411
McKiver v. NYC PD Midtown S Manhattan Police
Department et al
— S.D.N.Y. June 12, 2017 Docket
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McKiver v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (11)
Direct History (9)
1. McKiver v. City of New York
2018 WL 3543906 , S.D.N.Y. , Feb. 16, 2018
Report and Recommendation Adopted by
2. McKiver v. City of New York
2018 WL 3628840 , S.D.N.Y. , July 23, 2018
Appeal Dismissed by
3. McKiver v. Gerding
2019 WL 13397103 , 2nd Cir.(N.Y.) , Aug. 06, 2019
4. McKiver v. City of New York
2018 WL 3543907 , S.D.N.Y. , May 16, 2018
Report and Recommendation Adopted by
5. McKiver v. City of New York
2018 WL 3628840 , S.D.N.Y. , July 23, 2018
Appeal Dismissed by
6. McKiver v. Gerding
2019 WL 13397103 , 2nd Cir.(N.Y.) , Aug. 06, 2019
7. McKiver v. City of New York
2018 WL 3471814 , S.D.N.Y. , July 19, 2018
Opinion Amended and Superseded by
8. McKiver v. City of New York
2018 WL 3628840 , S.D.N.Y. , July 23, 2018
Appeal Dismissed by
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McKiver v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
9. McKiver v. Gerding
2019 WL 13397103 , 2nd Cir.(N.Y.) , Aug. 06, 2019
Related References (2)
10. McKiver v. City of New York
2019 WL 7602171 , S.D.N.Y. , July 17, 2019
Report and Recommendation Adopted by
11. McKiver v. Gerding
2019 WL 4784658 , S.D.N.Y. , Oct. 01, 2019
Case 6:25-cv-01495-MAD-MJK Document 9 Filed 12/17/25 Page 68 of 87

McKiver v. City of New York
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Case 6:25-cv-01495-MAD-MJK Document 9 Filed 12/17/25 Page 69 of 87

Applied Energetics, Inc. v. Gusrae Kaplan Nusbaum PLLC, Not Reported in Fed. Supp....
2022 WL 956119
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 956119
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
APPLIED ENERGETICS, INC.,
a Delaware Corporation, Plaintiff,
v.
GUSRAE KAPLAN NUSBAUM
PLLC, and Ryan Whalen, Defendants.
21cv382 (DF)
|
Signed 03/30/2022
Attorneys and Law Firms
Brendan M. Sheehan, Bond, Schoeneck & King, PLLC,
Syracuse, NY, for Plaintiff.
Mark Kenneth Anesh, Lewis, Brisbois, Bisgaard & Smith,
LLP, New York, NY, for Defendants.
MEMORANDUM AND ORDER
DEBRA FREEMAN, United States Magistrate Judge:
*1 In this legal malpractice case, which is before this
Court on consent of the parties pursuant to 28 U.S.C. §
636(c), plaintiff Applied Energetics, Inc. (“Plaintiff” or the
“Company”) alleges that defendants Gusrae Kaplan Nusbaum
PLLC (“GKN”) and Ryan Whalen, Esq. (“Whalen”), a partner
in GKN (collectively, “Defendants”): (1) engaged in acts
constituting legal malpractice, and (2) violated Rules 1.5, 1.7,
and 1.8 of the New York Rules of Professional Conduct (the
“NYRPC”), causing Plaintiff injury.
Currently before the Court is Defendants' motion to dismiss
Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. For the reasons discussed below,
Defendants' motion (Dkt. 25) is granted in part and denied in
part.
BACKGROUND
A. Factual Background
Although Plaintiff's claims in this case arise out of
Defendants' representation of Plaintiff in early 2018 (see
Complaint and Jury Demand, dated Jan. 15, 2021 (“Compl.”)
(Dkt. 1) ¶ 3), the claims are directly tied to Defendants' 2017
representation of Plaintiff's former principal executive officer
and sole director, George Farley (“Farley”) (see id.), and the
Court will therefore summarize Plaintiff's pleaded allegations
regarding both representations.
In January 2017, Farley hired Defendants to represent him
individually “in a shareholder derivative lawsuit filed against
him in the Delaware Court of Chancery.” (See id. (citing
Superius Sec. Grp, Inc., v. Farley, C.A. No. 2017-0024-
TMR)) (the “Superius Litigation”.) In that suit, the plaintiff
shareholders alleged that Farley had breached his fiduciary
duties to Plaintiff by issuing 25 million shares, at a value of
$0.001 per share, to himself. (Id.) The shareholders eventually
voluntarily dismissed the suit without prejudice in July 2017.
(Id.; see also id. ¶ 17.)
In light of the dismissal, Farley was considered to have been
“successful on the merits” of the suit, such that he was entitled
to indemnification from the Company under Section 145(c)
(1) of the Delaware General Corporation Law (“DGCL”),
which states:
To the extent that a present or
former director or officer of a
corporation has been successful on
the merits or otherwise in defense
of any action ... such person shall
be indemnified against expenses
(including attorneys' fees) actually and
reasonably incurred by such person in
connection therewith.
(Compl. Ex. I (E-mail from Whalen to Farley, dated Jan.
22, 2018 (Dkt. 1-9)); see also 8 Del. C. § 145; Compl.
¶ 18.) Plaintiff alleges that, “according to GKN, the fees
and expenses incurred in defending Farley in the Superius
Litigation [totaled] $33,324.26.” (Compl. ¶ 19.) Plaintiff
also alleges, however, that, despite its asking Defendants
for “detailed billing statements showing the work and
hours spent,” Defendants did not provide them, rendering
Plaintiff “unable to determine whether [the] claimed fees were
‘reasonably incurred,’ ” as required for indemnification under
the DGCL. (Id. ¶¶ 19-20.)
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Plaintiff further alleges that, in January 2018, “a different
group of [the Company's] shareholders filed proxy
solicitation materials with the Securities and Exchange
Commission (“SEC”) seeking to remove Farley as a
director.” (Id. ¶ 4.) According to Plaintiff, “[t]he proxy
solicitation materials explained that shareholders ought to
vote to remove Farley for cause for the exact same
conduct alleged in the Superius Litigation.” (Id. (emphasis
in original).) Plaintiff alleges that Farley, “acting in his
capacity as sole director and officer of [the Company], hired
[Defendants] to represent [the Company] in connection with
the proxy solicitation” on or around January 23, 2018. (Id. ¶¶
4, 29.) Plaintiff asserts that the negotiations by which Farley
retained Defendants to represent it occurred “exclusively”
between Farley (purportedly acting on Plaintiff's behalf) and
Defendants, and that “[n]o independent attorney representing
[Plaintiff] was involved in th[o]se communications.” (Id. ¶
29.)
*2 At the time Defendants agreed to represent it in
connection with the proxy solicitation, Defendants had
allegedly still not received payment for their representation
of Farley in the Superius Litigation. (Id. ¶ 6.) Critical to
Plaintiff's claims here, Plaintiff alleges that, shortly after
accepting the second representation, Defendants “negotiated
with Farley to be paid in [Plaintiff's] stock in lieu of cash
[both] for the fees incurred in defending Farley in the Superius
Litigation,” totaling $33,324.26 (fees for which, to the extent
reasonable, the Company owed Farley indemnification), “and
for fees incurred thus far in [Defendants'] representation of
[Plaintiff] in the proxy solicitation matter,” totaling another
$5,200. (Id. (emphasis in original).) Plaintiff further alleges
that Defendants and Farley agreed that, for the fees owed,
Plaintiff would pay Defendants in stock “at a 50% discount
to the then public trading price.” (Id. ¶ 36.) Plaintiff alleges
that, “at no time did [Defendants] disclose to [Plaintiff] the
inherent conflict of interest of accepting an ownership interest
in its corporate client [ ] in lieu of cash payment for fees,
nor did [Defendants] advise [Plaintiff] in writing that seeking
advice from independent counsel [was] desirable in such a
transaction, nor did [Plaintiff] ever give its informed written
consent to [Defendants'] role in the transaction.” (Id. ¶ 37.)
Plaintiff alleges that, after the agreement was made to pay
Defendants in stock, Farley emailed Stephen McCommon
(“McCommon”), Plaintiff's then-accountant, to inform him of
the agreement, and to request that McCommon prepare a letter
of intent for the Company to issue the shares. (Id. ¶ 40.) Farley
noted, in that email, that Mary O'Hara (“O'Hara”) 1 would
issue the necessary opinion to the transfer agency, Continental
Transfer & Trust Company (“Continental”). (Id.; see also id.,
Ex. J (Email from Farley to McCommon, dated Jan. 23, 2018
(Dkt. 1-10)).) Plaintiff asserts, however, that O'Hara was “not
involved in any of the negotiations.” (Compl. ¶ 40.) Plaintiff
also asserts that, in reaching the agreement to pay Defendants
in stock, Farley and Defendants “necessarily agreed that
100% of [Defendants'] claimed fees defending Farley in the
Superius Litigation were ‘reasonably incurred’ ... under [the]
DGCL.” (Id. ¶ 41.) Plaintiff additionally alleges that the
agreement between Farley and Defendants to pay Defendants
in Plaintiff's stock occurred “in the middle of a proxy
contest whereby [Plaintiff's] shareholders were seeking to
remove Farley as an [ ] officer and director,” and, therefore,
“both [Defendants] and Farley had incentives to maximize
the amount of stock to be issued to [Defendants]: for
[Defendants], to get the most shares at the least price per
share; for Farley, to issue shares to friendly parties to
potentially vote against the proxy contest and save Farley's
job and control of [Plaintiff].” (Id. ¶ 43.) Plaintiff claims
that “these incentives were directly contrary to [Plaintiff's]
interests in ensuring only those fees ‘reasonably incurred’
were compensated and to get the best price per share of its
stock.” (Id.)
1 The Complaint fails to describe O'Hara's role
in relation to Plaintiff, other than to allege
that O'Hara “did not, nor was she asked to,
fulfil[l] the role of independent counsel to
[Plaintiff] ... when [Defendants] entered into a
business transaction with a client.” (Compl. ¶
57). Based on exhibits to the Complaint, O'Hara
was, at the time, an attorney with the firm then
known as Masur Griffitts+ (“MG+”). (See Compl.,
Exs. P (Dkt. 1-16), N (Dkt. 1-14), Q (Dkt.
1-17).) According to a February 5, 2018, Opinion
Letter from MG+ to Continental, “regarding the
issuance of 1,242,711 shares of the Company's
common stock, par value $0.001 per share,” MG
+ served, at the time, as “counsel to Applied
Energetics, Inc.” (See Compl. Ex. R (Opinion
Letter from MG+, dated Feb. 5, 2018 (“Opinion
Letter”)) (Dkt. 1-18).) Based on a publicly
available press release, it appears that, effective
January 1, 2022, Plaintiff appointed O'Hara to
serve as its General Counsel and Chief Legal
Officer. See https://www.globenewswire.com/
news-release/2022/01/12/2365875/0/en/Applied-
Energetics-Announces-Appointment-of-General-
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Counsel-and-Other-Corporate-
Developments.html.
In late January 2018, Farley apparently sent Henry Farrell
(“Farrell”), an agent at Continental, a letter of intent for the
stock issuance. (Id. ¶ 49.) The letter, a copy of which is
attached to the Complaint (see id., Ex. M (Letter of Intent,
dated Jan. 24, 2018 (“Letter of Intent”))) (Dkt. 1-13, at ECF
2-3 2 ), instructed Continental to issue 1,242,710 of shares of
the Company's common stock, with 60% of those shares to be
issued to GKN, and 40% to be issued to Whalen (see Letter of
Intent), and, in a cover email, Farley mentioned that O'Hara's
opinion letter would follow (Compl., Ex. M (cover email))
(Dkt. 1-13, at ECF 1). In February 2018, O'Hara sent Farrell
an opinion letter regarding the issuance of shares (id., Ex. R
(“Opinion Letter”) (Dkt. 1-18)), which expressed the opinion
that the shares had been “duly authorized, validly issued,
fully paid and non-assessable, as compensation for services
rendered by” Defendants (id. ¶ 54; see also Opinion Letter). 3
Plaintiff alleges, though, that O'Hara's role in the issuance of
Plaintiff's shares to Defendants “was strictly to provide an
opinion of the legality of [Plaintiff's] issuance of shares from
a corporate power perspective,” and that “[a]t no time did she
represent, explicitly or implicitly, that she was evaluating the
issuance of shares ... pursuant to the NYRPC [or] the fairness
of the transaction ..., or [that she was] providing any other
legal advice,” (Id. ¶ 57.)
2 Page citations herein to “ECF___” are to the page
numbers affixed to the referenced document by the
Court's Electronic Case Filing (“ECF”) system.
3 The Opinion Letter states that 1,242,711 shares
of Plaintiff's common stock were to be issued,
as opposed to the 1,242,710 shares mentioned
in Farley's letter of intent to Farrell. (See Letter
of Intent; Opinion Letter.) For the purposes of
Defendants' motion to dismiss, the Court will
take as true that the number of shares that were
eventually issued was 1,242,711, as stated in
Plaintiff's Complaint. (See Compl. ¶ 80.)
*3 Plaintiff alleges that, in February 2018, Defendants
“assisted [Plaintiff] in preparing and filing an opposition to
the proxy solicitation materials in the form of an 8-K filed
with the SEC.” (Id. ¶ 34; see also id., Ex. E (Form 8-K,
dated Feb. 28, 2018 (“Form 8-K”)) (Dkt. 1-5).) The Form
8-K, as described by Plaintiff in its Complaint, “defended
the propriety of Farley[’s] [having] issuing himself [the] 25
million shares of stock.” (Id. ¶ 34.) The document specifically
expressed the view that the proposals contained in the proxy
solicitation “would result in great harm to [Plaintiff] and its
shareholders.” (Form 8-K.)
On March 1, 2018, while the proxy contest was going on (see
Compl. ¶ 62), Farley emailed Farrell to request the issuance
of Plaintiff's shares to Defendants (id. ¶ 58; see also id., Ex.
S (email chain including email from Farley to Farrell, dated
Mar. 1, 2018) (Dkt. 1-19)). Farrell responded that Continental
would not be able to issue the shares before a wet-signed
opinion letter had been received. (Compl. ¶ 59; see also id.,
Ex. S (email from Farrell to Farley, dated Mar. 1, 2018,
stating: “We cannot [accept] an electronic signature[.]”).)
Plaintiff alleges that Whalen then sent O'Hara an email on
March 5, 2018, “requesting that her firm send Farrell a signed
opinion letter as soon as possible,” and “further express[ing]
his urge to complete the transaction quickly ‘given the current
state of things.’ ” (Compl. ¶ 62; id., Ex. U (Dkt. 1-21).)
According to Plaintiff, Defendants knew that “the current
state of things,” as referenced by Whalen, was that the “proxy
contest was on the verge of success in obtaining enough
shareholder votes to remove Farley as [Plaintiff's] officer and
director.” (Id.) Continental proceeded to issue the shares to
Defendants on March 8, 2018. (Id. ¶ 63.)
Plaintiff claims that, in agreeing to represent it in connection
with the proxy solicitation and in agreeing to accept Plaintiff's
stock as payment, Defendants “failed to comply with New
York[ ] Rules of Professional Conduct (“NYRPC”)” 1.5, 1.7,
and 1.8. (Id. ¶¶ 5, 8.) In this regard, Plaintiff asserts that,
“[b]ecause of [Defendants'] former representation of Farley
in the Superius Litigation, and [Defendants'] continuing
duties to Farley under the NYRPC, there was a significant
risk that [Defendants'] professional judgment on behalf of
[Plaintiff] would be adversely affected.” (Id. ¶ 31.) Further,
Plaintiff alleges that “at no time did [Defendants] disclose
to [Plaintiff], in writing, the conflict of interest presented by
its representation of Farley in the Superius Litigation and
subsequently representing [Plaintiff] in the proxy solicitation
concerning the very same conduct,” and that “[a]t no time did
[Plaintiff] waive [Defendants'] conflict in writing.” (Id.)
Plaintiff also alleges that Defendants' “conflict proved
materially harmful to [Plaintiff] and its shareholders.” (Id.
¶ 32.) According to Plaintiff, had it “retained counsel in
connection with the proxy solicitation who did not owe
continuing duties of confidentiality and loyalty to Farley, [it]
would have had the benefit of unbiased and non-conflicted
counsel,” and such counsel “would have concluded that
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Farley likely did breach his fiduciary duties to [Plaintiff] by
issuing himself 25 million shares of stock.” (Id.) Plaintiff
alleges that such an assessment would have “supported the
shareholders[’s] seeking to remove Farley for cause and, at
a minimum, that ... [Plaintiff] should not take a position
in connection with the proxy solicitation.” (Id.) Not having
had the benefit of non-conflicted counsel, Plaintiff alleges
that, to its detriment, it took “a position opposing the proxy
solicitation.” (Id.) In doing so, it allegedly “spent many
thousands of dollars, primarily in fees to [Defendants] ... [for]
preparing and filing a form 8-K with the SEC urging [ ]
shareholders to vote against the resolutions urged in the proxy
solicitation.” (Id.)
*4 Plaintiff further alleges that Defendants “knew [that] the
circumstances under which they agreed to accept [Plaintiff's]
stock via an agreement negotiated with Farley came in the
middle of a shareholder proxy solicitation seeking to remove
Farley,” and that they knew the proxy contest “could succeed
in resulting in Farley's removal and replacement with new
management likely adverse to Farley.” (Id. ¶ 38.) In fact,
Plaintiff alleges that, on the same day as the stock was issued
to Defendants, it received sufficient written consents of its
shareholders to approve the stockholder proposals (id. ¶ 64),
including the proposal to remove Farley from the Board
of Directors, with cause (id.). Thomas Dearmin, who was
approved to replace Farley as the Company's Chief Executive
Officer, eventually terminated Defendants' services on March
11, 2018. (Id. ¶ 66; see also id., Ex. V (Dkt. 1-22).)
Plaintiff additionally alleges that Defendants represented it
in connection with the proxy contest, even though, if the
contest were to succeed in ousting Farley, then Defendants'
“ownership of [Plaintiff's] stock would [ ] conflict with
[Plaintiff's] pursuit of claims against Farley.” (Id. ¶ 38.) On
this point, Plaintiff states that, in July of 2018, after Farley
had been removed as director through the shareholder proxies,
it proceeded to file a lawsuit against Farley in the Delaware
Court of Chancery. (Id.) (citing Case No. 2018-0489 (“the
Farley Litigation”).) Over Plaintiff's objection, Defendants
represented Farley in that action. (Id.) Plaintiff alleges that,
although the Vice Chancellor denied Plaintiff's motion to
disqualify Defendants as “untimely,” she stated on the record,
that, in denying the motion, she was making “no decision as to
the merits of the claims,” nor was she “declar[ing] that GKN
ha[d] no conflict of interest.” (Id.)
B. Relevant Procedural History and Defendants'
Motion to Dismiss
1. Plaintiff's Complaint
Plaintiff filed its Complaint in this action on January 15, 2021,
and pleaded two claims: (1) for legal malpractice (see Compl.
¶¶ 67-82 (First Cause of Action)); and (2) based on claimed
violations of Rules 1.5, 1.7, and 1.8 of the NYRPC, for
rescission of the stock issuance to Defendants, voiding of the
stock transaction, and restitution or recoupment of legal fees
paid to Defendants in an amount in excess of the reasonable
amount due for services rendered (see id. ¶¶ 83-124 (Second
Cause of Action)). On February 5, 2021, the parties consented
to proceed before this Court for all purposes, pursuant to 28
U.S.C. § 636(c). (Dkt. 15.)
With respect to its first claim, Plaintiff alleges that, as
its counsel, Defendants owed it a duty to exercise the
reasonable competence and diligence commonly expected
from attorneys, and also fiduciary duties to act with the
utmost good faith, to avoid conflicts of interest, to advance
Plaintiff's lawful objective, and to place Plaintiff's interest
above its own. (See Compl. ¶¶ 69-74.) Plaintiff asserts that
Defendants committed legal malpractice by breaching these
duties, specifically by failing to disclose its conflicts of
interest; by entering into the stock transaction without the
Company's informed, written consent; by failing to advance
Plaintiff's interests based upon independent judgment; and
by advancing Farley's individual interests in opposing the
proxy solicitation, over Plaintiff's contrary interests. (See
generally id. ¶¶ 75-80.) Plaintiff contends that, as a “direct
and proximate result” of these breaches of duty, Defendants
“were issued a total of 1,242,711 of [the Company's] shares
at below market value and caused other monetary harm to
[Plaintiff]” (id. ¶ 80), and Plaintiff incurred legal expenses
in seeking to rescind the shares issued to Defendants (id. ¶
81). Further, Plaintiff contends that, due to their malpractice,
Defendants are “not entitled to any fees for any services
rendered to [Plaintiff]” (id. ¶ 82).
*5 With respect to its second claim, grounded in violations
of the NYRPC, Plaintiff first asserts that Defendants violated
NYRPC Rule 1.5, under which, as discussed further below
(see Discussion, infra, at Section I(C)(1)), they generally had
a duty “not to make an agreement for, charge, or collect an
excessive fee” from Plaintiff for its legal services (Compl.
¶¶ 112-13). Plaintiff states that Defendants billed $33,324.26
in legal fees for its representation of Farley in the Superius
Litigation, and $5,200 in legal fees for the work performed on
the proxy solicitation matter, for a total of $38,524.26. (Id. ¶¶
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115-16.) As payment for their services, Plaintiff alleges that
Defendants accepted 1,242,711 shares of Plaintiff's stock that
were supposedly issued to them at 50% of the stock's then-
public trading price. (Id. ¶ 117.) Plaintiff maintains, though,
that, “on March 8, 2018, the day of issuance, [Plaintiff's] stock
opened and closed at $0.0752 per share,” and, therefore, “the
[market] value of [Plaintiff's] shares on the day of issuance of
$93,451.86” (id. ¶ 118), thus suggesting that Defendants were
given an even greater than 50% discount on the stock price. 4
In any event, Plaintiff claims that, in light of the stock's market
value, the issuance to Defendants represented “an excessive
fee for $38,524.26 worth of work.” (Id. ¶ 119.) Plaintiff claims
that Defendants “must return the excessive fee.” (Id. ¶ 120.)
4 Although ultimately immaterial to its reasoning
on the motion to dismiss, the Court notes that, if
the legal fees at issue in fact totaled $38,524.26
at the date of the stock's issuance, then shares
“purchased” at a 50% discount should have resulted
in Defendants' being issued shares valued in the
market, on that date, at $77,048.52 (i.e., twice
$38,524.26), rather than $93,451.86. In their reply
memorandum, Defendants explain that the terms
of the stock transaction were actually negotiated
and accepted on January 22, 2018, prior to the
date when the shares were eventually issued, and
they further ask the Court to take judicial notice of
the fact that the market share price as of January
22, 2018 was between $0.0625 and $0.0700 per
share. (See Reply Memorandum of Law Submitted
by Defendants Gusrae Kaplan Nusbaum PLLC and
Ryan Whalen, Esq. in Support of Their Motion To
Dismiss Plaintiff's Complaint, dated July 13, 2021
(“Def. Reply Mem.”) (Dkt. 33), at 6 n.3 (citation
omitted).) The Court notes that, at a per-share price
of $0.0625, the value of 1,242,711 shares would
have been $77,699.44, which is at least close to
twice the value of the legal fees stated to have been
owed to Defendants.
Plaintiff also asserts that Defendants violated NYRPC Rule
1.7, which, as discussed below (see Discussion infra, at
Section I(C)(2)), limits the extent to which counsel may
represent a client when counsel's interest are conflicted.
Specifically, Plaintiff asserts that Defendants violated this
rule by failing to “advise [Plaintiff] of their conflicts of
interest in representing [it] in a situation where [its] interests
were adverse to the interests of another client, Farley, to
whom [Defendants] owed continuing duties of loyalty and
confidentiality under NYRPC 1.9.” (Compl. ¶ 5.) Further,
Plaintiff asserts that Defendants did not obtain its written
consent to these conflicts and that, “even if Farley – acting
as the sole officer, director, representative of AE – purported
to give signed consent to [Defendants'] conflicts,” his consent
would have been ineffective as a conflict waiver “because
Farley himself was conflicted.” (Id.)
Plaintiff claims that Defendants additionally violated Rule
1.8, which, as discussed below (see Discussion, infra,
at Section I(C)(3)), limits the circumstances in which an
attorney may enter into business transactions with a client,
when their interests are not aligned. Plaintiff asserts that
Defendants violated this rule when they “negotiated with
Farley to be paid in [Plaintiff's] stock in lieu of cash
for the fees incurred” in the Superius Litigation and in
connection with the proxy solicitation. (Id. ¶ 6.) According
to Plaintiff, the “business transaction between [Plaintiff] and
[Defendants] was not fair and reasonable to [Plaintiff],”
and Defendants “did not disclose ... the conflicts of interest
created by their negotiations and acceptance of [ ] stock as
payment for services rendered.” (Id. ¶¶ 102-04.) Plaintiff also
asserts that Defendants did not advise it “in writing of the
desirability of obtaining advice from independent counsel”
and “did not obtain an independent valuation of the [ ] shares
before accepting such shares.” (Id. ¶¶ 105, 107.)
*6 On its claims, Plaintiff seeks several types of relief,
but principally damages for its claimed monetary losses and
“rescission of the [stock] issuance [to Defendants] and return
of all 1,242,711 shares issued to them.” (Compl. at ECF 25
(Prayer For Relief).)
2. Defendants' Motion to Dismiss
Defendants filed their motion to dismiss Plaintiff's Complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
on May 28, 2021. (See Defendants GKN and Whalen's
Notice of Motion to Dismiss the Complaint, dated May 28,
2021 (Dkt. 25).) In support of their motion to dismiss, the
Defendants also filed a memorandum of law (Defendants
GKN and Whalen's Memorandum of Law in Support re:
Motion to Dismiss the Complaint, dated May 28, 2021
(“Def. Mem.”) (Dkt. 26)) and an attorney declaration
(see Declaration of Mark K. Anesh, Esq., in Support re:
Defendants GKN and Whalen's Motion to Dismiss the
Complaint, dated May 28, 2021 (“Anesh Decl.”) (Dkt. 27)).
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a. Defendants' Arguments
In their motion, Defendants argue that Plaintiff's malpractice
claim should be dismissed because “the Complaint fails
to allege[ ] facts sufficient to establish the elements of
proximate cause or damages.” (Def. Mem., at 12.) In
particular, Defendants argue that, because they did not
represent Plaintiff in the Superius Litigation, Plaintiff “was
not in privity of contract with the [ ] Defendants for the
Superius Litigation and therefore cannot sue for malpractice
related to that representation.” (Id., at 13.) On this point,
Defendants maintain that Plaintiff has “utterly failed to show
how a subsequent alleged conflict (arising from the Proxy
Solicitation) could proximately cause [ ] damages in the
amount of legal fees already incurred (for the Superius
Litigation), when no alleged conflict of interest existed during
the Superius Litigation.” (Id.) Defendants also point out that
“the proxy solicitation was ultimately successful,” and argue
that this “effectively precludes [Plaintiff] from being able
to argue that the [ ] Defendants' efforts in response to the
same caused any harm to [Plaintiff].” (Id., at 14.) Defendants
also assert that Plaintiff had “retained independent counsel
to offer an opinion on the reasonableness of the shares of
stock offered as compensation” – presumably referring to
O'Hara – and that “this cuts off any proximate cause from any
actions of the [ ] Defendants in accepting the issuance of such
shares.” (Id.) Further, with respect to their receipt of stock
during the proxy contest, Defendants argue that, as they “did
not receive their shares until March 8, 2018, the same day that
[Plaintiff] received the written consents from the shareholders
and the proposals went into effect[,] ... the issuance of these
shares had no effect on the likelihood of the proposals being
adopted.” (Id.)
Defendants also argue that they did not violate the NYRPC
rules that Plaintiff cites. As to Rule 1.5, they contend that their
fees were reasonable and that O'Hara, acting as “independent
counsel,” reviewed the issuance of the shares and “authored
an opinion letter approving the issuance.” (Id., at 14-15.)
As to Rule 1.7, Defendants argue that the “Complaint does
not allege that ... Defendants represented ‘differing interests’
because there was no simultaneous representation,” and
further argue that “the Complaint has failed to allege that
there was significant risk that ... Defendants' representation
of [Plaintiff] would be adversely affected by their personal
or business interests, including any continuing duties owed
to Farley.” (Id., at 16-17.) Defendants emphasize the fact that
“the Superius Litigation ended by voluntary dismissal on July
24, 2017, whereas the proxy solicitation did not begin until
on or around January 18, 2018.” (Id., at 17.)
*7 As to Rule 1.8, Defendants argue that Plaintiff fails
to state a claim because MG+, “acting as [Plaintiff's]
independent, outside legal counsel ... consented to the
issuance [of the shares to Defendants].” (Id., at 19.)
Defendants also contend that Plaintiff's allegation that the
price of the shares was unreasonable is inconsistent with the
statements Farley made to McCommon in an email, in which
he described “the issuance of shares at a 50% discount as
‘the [same] discount given to John Shultz and his clients.’ ” 5
(Id. (citing Anesh Decl., Ex. 4).) Defendants further maintain
that, even if Plaintiff had not provided “informed, written
consent” to the issuance of the stock to them, Plaintiff would
still not be entitled to relief for an alleged violation of Rule 1.8
because “[Plaintiff's] new management (appointed pursuant
to the Proxy Solicitation proposals), independently ratified
the issuance of this stock by making numerous filings with
the SEC, including [a] Form 10-K for year ending in 2017 ...,
which states ‘[o]n January 24, 2018, we issued 1,242,710
shares of common stock in settlement of invoices valued at
$38,524,26 with a vendor [GKN].’ ” (Id. (citing Anesh Decl.,
Ex. 11).)
5 Defendants note that “John Shultz was one of the
individuals who initiated the Proxy Solicitations
and eventually became a member of the Board after
new management took over in 2018.” (Id., at 4 n.6.)
Finally, Defendants assert that Plaintiff's claim for “rescission
and restitution/recoupment [as pleaded under the NYRPC]
must be dismissed” because “there is no private right of action
for a violation of the Rules of Professional Conduct” and
because it is “duplicative of the legal malpractice claim.” (Id.,
at 20-21.)
b. Plaintiff's Arguments in Opposition
Plaintiff filed an opposition to Defendants' motion on June 25,
2021. (See Memorandum of Law in Opposition to Defendants'
Motion to Dismiss the Complaint, dated June 25, 2021 (“Pl.
Mem.”) (Dkt. 30).) In its opposition, Plaintiff asserts that both
its legal malpractice claim and its claim alleging violations of
Rules 1.5, 1.7, and 1.8 of the NYRPC are adequately pleaded.
(See generally id.)
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With respect to its malpractice claim, Plaintiff states that
it has not attempted to claim that it was in “privity of
contract” with Defendants for the Superius Litigation, but,
rather, that Defendants entered into a “shares for fees”
agreement with Plaintiff, including for fees incurred from
the Superius Litigation, “after Defendants began formally
representing [Plaintiff].” (Id., at 8 (emphasis in original).)
Plaintiff maintains that the right of indemnity for the Superius
Litigation “belonged to Farley, not Defendants, and as
such, Farley was adverse to [Plaintiff] in negotiating what
fees he had ‘reasonably incurred.’ ” (Id., at 8-9.) Further,
Plaintiff argues, “Defendants could not adequately represent
[Plaintiff's] interests in negotiating the amount of their
claimed unpaid fees, or the propriety of a ‘shares for fees’
transaction, because Defendants were the direct beneficiaries
of Farley's indemnity rights,” and, therefore, “both parties to
the negotiations (Defendants and Farley) had an incentive to
pay all 100% of the remaining balance allegedly owed.” (Id.,
at 9.)
Plaintiff next maintains that the “business transaction between
[Plaintiff] and Defendants was not fair and reasonable
to [Plaintiff] and [its] shareholders in that ... Defendants
were issued shares of [ ] stock at a 50% discount to
the public trading price without any independent valuation
by a non-conflicted person.” (Id.) Plaintiff asserts that
Defendants negotiated this agreement knowing that Farley,
their former client, had “personal incentives directly contrary
to [Plaintiff's] interests, to maximize the amount of [ ] shares
issued to those friendly to Farley and expected to vote
against the resolutions proposed to remove Farley.” (Id.)
Plaintiff further asserts that the Complaint sufficiently alleges
proximate cause and damages, in that Defendants received
shares at a discount, that the shares had a valuation of
$93,451.86 in exchange for only $38,524.26 of work, that
Plaintiff had to “incur substantial legal expenses” to attempt
to rescind the shares, and that Defendants “charged [Plaintiff]
(and were compensated) for opposing a proxy solicitation
alleging Farley's misconduct, when [Plaintiff] should have
supported the challenge ... or, at a minimum, not taken any
position.” (Id., at 12.)
*8 Turning to its claims under the NYRPC, Plaintiff
contends that, under Rule 1.5, the question of whether a fee
is excessive is a “question of fact, and cannot be determined
on a motion to dismiss.” (Id., at 14 (citing Seippel v. Jenkens
& Gilchrist, P.C., 341 F. Supp. 2d 363, 381 (S.D.N.Y. 2004),
amended on reconsideration on other grounds, No. 03cv6942
(SAS), 2004 WL 2403911 (S.D.N.Y. Oct. 26, 2004)).)
Plaintiff next maintains that Rule 1.7's “conflict waiver
requirement includes conflicts with former clients” and
that, therefore, “Defendants could not adequately exercise
professional judgment in representing [it] ... in the proxy
solicitation, because [Defendants'] duties to ... Farley[ ]
precluded Defendants from taking any position adverse to
Farley.” (Id., at 16.)
Lastly, with regard to Rule 1.8, Plaintiff emphasizes its
allegations that Defendants did not advise it in writing “of
the desirability of seeking the advice of independent counsel,
[ ] negotiated all terms of the ‘shares for fees’ transaction
without providing [Plaintiff] an opportunity to obtain such
independent advice,” and “did not obtain the written informed
consent of [Plaintiff] ... as to the essential terms of the
transaction and Defendants' role in the transaction.” (Id.,
at 20.) Challenging Defendants' contention that O'Hara's
opinion letter somehow relieved Defendants of the need to
comply with both Rules 1.7 and 1.8, Plaintiff highlights that
O'Hara's letter was “addressed to [Plaintiff's] transfer agent,
not [Plaintiff's] management, [and] did not amount to the
client's informed consent to the conflict of interest or the
business transaction.” (Id.) Plaintiff also asserts that O'Hara
“was not asked to, nor did she purport to, represent [Plaintiff]
in the shares-for-fees transaction” (id., at 21), and that “the
purpose of an opinion letter to a stock transfer agent is
[merely] to confirm the corporation has complied with the
requirements of 8 Del. C. §§ 151-154 in the issuance of stock
– e.g., board approval in conformity with the certificate of
incorporation.” (id., n.4).
Apart from arguing that its allegations are sufficient to support
both its legal-malpractice and NYRPC claims, Plaintiff argues
that those claims are not duplicative. (See id., at 23-24.)
On this point, Plaintiff argues that the remedies sought on
the two types of claims are distinct, as, on its malpractice
claims, it seeks money damages, whereas on its claim under
the NYRPC, it seeks rescission of the transaction by which
Defendants were paid for their services in stock, and return
of the shares issued to Defendants in that transaction. (Id., at
24.) Plaintiff contends that its ability to maintain a claim for
rescission based solely on the asserted NYRPC violations is
supported by case law. (See id., at 23 (citing Seippel, 341 F.
Supp. 2d at 380).)
c. Defendants' Reply
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Defendants filed a reply on July 13, 2021, largely reiterating
their opening arguments as to why, in their view, Plaintiff has
failed to state a claim for legal malpractice. (See generally
Def. Reply Mem. (Dkt. 33), at 4-15.) In addition, Defendants
challenge Plaintiff's reading of the law with respect to the
availability of a private right of action for NYRPC violations,
contending that Plaintiff has particularly misrepresented the
holding of Seippel. (Id., at 15-17.)
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
*9 Neither Plaintiff nor Defendants raise the issue of which
state's substantive law applies to this case. (See generally
Def. Mem.; Pl. Mem.) “Where, as here, the parties do not
raise choice-of-law as an issue, ‘it can be said that they
have consented to the application of the forum state's law.’
” Scharnikow v. Siracuse, No. 15cv6991 (DRH) (SIL), 2016
WL 7480360, at *3 (E.D.N.Y. Dec. 6, 2016), report and
recommendation adopted, 2016 WL 7480364 (Dec. 29, 2016)
(citing Mangual v. Pleas, No. 02cv8311 (CBM), 2005 WL
2179083, at *2, n.1 (S.D.N.Y. Sept. 8, 2005)). Accordingly,
this Court will apply New York law.
A. Rule 12(b)(6)
A complaint may be dismissed pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure where it fails to state
a claim upon which relief can be granted. Fed. R. Civ. P.
(12)(b)(6). In deciding a motion to dismiss, the Court must
“accept as true all factual statements alleged in the complaint
and draw all reasonable inferences in favor of the non-moving
party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,
191 (2d Cir. 2007); accord Jaghory v. New York State Dep't
of Ed., 131 F.3d 326, 329 (2d Cir. 1997). The issue is not
whether the plaintiff will ultimately prevail, but whether the
plaintiff's claim, as pleaded, is sufficient to afford him or her
the opportunity to proceed on the evidence. See Chance v.
Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
Thus, the court's function on a motion to dismiss is “not
to weigh the evidence that might be presented at trial but
merely to determine whether the complaint itself is legally
sufficient.” Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir.
1991) (citing Goldman v. Belden, 754 F.2d 1059, 1067 (2d
Cir. 1985)). At the same time, “conclusory allegations or
legal conclusions masquerading as factual conclusions will
not suffice to defeat a motion to dismiss.” Achtman v. Kirby,
McInerney, & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006)
(internal alteration and citation omitted). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Starr v. Sony BMG Music Entm't, 592
F.3d 314, 321 (2d Cir. 2010) (internal alteration omitted)
(quoting Iqbal, 556 U.S. at 678).
In general, on a motion to dismiss, a court must limit its
consideration to: “(1) the factual allegations in the complaint,
which are accepted as true; (2) documents attached to the
complaint as an exhibit or incorporated in it by reference;
(3) matters of which judicial notice may be taken; and (4)
documents upon whose terms and effect the complaint relies
heavily, i.e., documents that are ‘integral’ to the complaint.”
See Calcutti v. SBU, Inc., 273 F. Supp. 2d 488, 498 (S.D.N.Y.
2003) (citing Brass v. American Film Techs., 987 F.2d 142,
150 (2d Cir. 1993); Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir. 2002)). If, on a Rule 12(b)(6) motion,
“matters outside the pleadings are presented to and not
excluded by the court,” then “the motion must be treated as
one for summary judgment under Rule 56[,] [and] [a]ll parties
must be given a reasonable opportunity to present all the
material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).
B. Legal Malpractice
*10 Whether a pleading is sufficient to state “a cause of
action for legal malpractice pose[s] a question of law which
[can] be determined on a motion to dismiss.” Achtman, 464
F.3d at 337 (citing Rosner v. Paley, 65 N.Y.2d 736, 738
(1985)). To state a claim for legal malpractice, a plaintiff
must allege “1) an attorney-client relationship, and 2) attorney
negligence, 3) which is the proximate cause of, 4) actual
damages.” Applied Energetics, Inc. v. Stein Riso Mantel
McDonough, LLP, No. 19cv1232 (AJN), 2020 WL 2833686,
at *2 (S.D.N.Y. May 31, 2020) (citing Achtman 464 F.3d at
337).
As to attorney negligence, a plaintiff must establish that the
defendant attorney “failed to exercise the ordinary reasonable
skill and knowledge commonly possessed by a member of
the legal profession ....” AmBase Corp. v. Davis Polk &
Wardwell, 8 N.Y.3d 428, 434 (2007); accord L. Prac. Mgmt.
Consultants, LLC v. M & A Couns. & Fiduciaries, LLC, 599
F. Supp. 2d 355, 359 (E.D.N.Y. 2009); Katsoris v. Bodnar
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& Milone, LLP, 186 A.D.3d 1504, 1505 (2d Dep't 2020).
An attorney, however, “is not held to the rule of infallibility
and is not liable for an honest mistake of judgment, where
the proper course is open to reasonable doubt.” Bernstein
v. Oppenheim & Co., P.C., 160 A.D.2d 428, 489 (1st Dep't
1990) (citing Grago v. Robertson, 49 A.D.2d 645, 646 (3d
Dep't 1975)). For this reason, “selection of one among several
reasonable courses of action does not constitute malpractice.”
Id. (quoting Rosner, 65 N.Y.2d at 738).
As to causation, a plaintiff “must plausibly allege that,
but for the malpractice, the plaintiff would have received
a more advantageous result, would have prevailed in the
underlying action, or would not have sustained some actual
and ascertainable damage.” Prout v. Vladeck, 316 F. Supp.
3d 784, 799 (S.D.N.Y. 2018) (citing Schwartz v. Olshan
Grundman Frome & Rosenzweig, 302 A.D.2d 193, 198 (1st
Dep't 2003)). In response to a Rule 12(b) motion, the plaintiff
need not establish causation, but only point to allegations
from which proximate cause may be plausibly inferred. See
Even Street Prods., Ltd. v. Shkat Arrow Hafer & Weber, LLP,
643 F. Supp. 2d 317, 322 (S.D.N.Y. 2008) (“At this early stage
of the litigation, [ ] Plaintiff need only allege, not prove, the
proximate cause element of the legal malpractice claim.”).
With regard to the element of actual damages, once again
Rule 12(b)(6) looks only to the plaintiff's allegations and does
not require proof. Nonetheless, “[c]onclusory allegations of
damages or injuries predicated on speculation cannot suffice
for a malpractice action, and dismissal is warranted where
the allegations in the complaint are merely conclusory and
speculative.” Katsoris, 186 A.D.3d at 1506 (quoting Bua v.
Purcell & Ingrao, P.C., 99 A.D.3d 843, 848 (2d Dep't 2012)).
C. NYRPC
Although the legal profession is largely “self-governing,”
“[e]very lawyer is responsible for observance of the Rules
of Professional Conduct and also should aid in securing
their observance by other lawyers.” NYRPC Preamble. Still,
“[v]iolation of a Rule should not itself give rise to a cause of
action against a lawyer nor should it create any presumption
in such a case that a legal duty has been breached.” Id.; see
also Cohen v. Kachroo, 115 A.D.3d 512, 513 (1st Dep't 2014)
(“To the extent that plaintiff seeks to allege malpractice based
on a violation of the New York Rules of Professional Conduct,
such an alleged violation does not, without more, support a
malpractice claim.”) (citing Schafrann v. N.V. Famka, Inc., 14
A.D.3d 363, 364 (1st Dep't 2005)).
*11 Nonetheless, while a violation of a disciplinary rule
“does not in and of itself amount to actionable negligence on
the part of an attorney ... liability can follow where the client
can show that he or she suffered actual damage as a result
of the violation.” Applied Energetics, 2020 WL 2833686, at
*3 (emphasis in original) (quoting Brown Rudnick, LLP v.
Surgical Orthomedics, Inc., No. 13cv4348 (JMF), 2014 WL
3439620, at *5 (S.D.N.Y. July 15, 2014)). In other words,
where proximate cause and actual damages can be shown to
have flowed from a rule violation (including violation of a
conflict-of-interest rule), the violation may support a legal
malpractice claim. See id.; see also Pillard v. Goodman, 918
N.Y.S.2d 461, 462 (1st Dep't 2011) (“While [ ] allegations of a
conflict of interest or a violation of attorney disciplinary rules
alone could not support a cause of action, liability can follow
where the divided loyalty results in malpractice.” (citations
omitted)); Tabner v. Drake, 780 N.Y.S.2d 85, 89 (3d Dep't
2004) (“Although ... a violation of a disciplinary rule does
not in and of itself amount to actionable negligence on the
part of an attorney ..., liability can follow where the client
can show that he or she suffered actual damage a result of the
conflict.” (citations omitted)).
Separately, even without proof of the elements of a
malpractice claim, a violation of a rule prohibiting an attorney
from entering into an agreement for excessive fees may
entitle a client to the equitable remedies of rescission of
the fee agreement and restitution or recoupment of the fees
paid under that agreement. See Seippel, 341 F. Supp. 2d at
380 (holding that a claim for rescission of an excessive fee
agreement and restitution of fees, based on the invalidity
or unenforceability of the agreement under New York and
Virginia rules of professional conduct, was “distinct from
the [plaintiff's] malpractice claim, as it [did] not require
any finding of malpractice on the part of the [attorney
defendants],” and denying motion to dismiss the rescission/
restitution claim).
1. Rule 1.5
Rule 1.5 of the NYRPC provides that “[a] lawyer shall not
make an agreement for, charge, or collect an excessive or
illegal fee or expense.” NYRPC Rule 1.5(a). Multiple factors
are to be considered in determining whether a fee is excessive,
including:
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(1) the time and labor required, the novelty and difficulty of
the questions involved, and the skill requisite to perform
the legal service properly;
(2) the likelihood, if apparent or made known to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar
legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by
circumstances;
(6) the nature and length of the professional relationship
with the client;
(7) the experience, reputation and ability of the lawyer or
lawyers performing the services; and
(8) whether the fee is fixed or contingent.
Id. The rule also provides that a lawyer shall “communicate to
a client the scope of the representation and the basis or rate of
the fee and expenses for which the client will be responsible.”
NYRPC Rule 1.5(b).
As noted above, a violation of this rule may entitle the client to
rescission of the prohibited fee agreement, and the restitution
or recoupment of fees paid under that agreement. See Seippel,
341 F. Supp. 2d at 380.
2. Rule 1.7
Rule 1.7 of the NYRPC provides that “a lawyer shall not
represent a client if a reasonable lawyer would conclude that
either”:
(1) the representation will involve the lawyer in
representing differing interests; or
(2) there is a significant risk that the lawyer's professional
judgment on behalf of a client will be adversely affected
by the lawyer's own financial, business, property or other
personal interests.
NYRPC Rule 1.7(a). Under this rule, however, a lawyer may
still represent a client despite the “existence of a concurrent
conflict of interest” if:
*12 (1) the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent representation
to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a
claim by one client against another client represented
by the lawyer in the same litigation or other proceeding
before a tribunal; and
(4) each affected client gives informed consent, confirmed
in writing.
NYRPC Rule 1.7(b). Although Rule 1.7 of the NYRPC
mentions “concurrent” conflicts of interest, Comment 1 to the
rule indicates that “[c]oncurrent conflicts of interest, which
can impair a lawyer's professional judgment, can arise from
the lawyer's responsibilities to another client, a former client
or a third person, or from the lawyer's own interests.” NYRPC
Rule 1.7, cmt. 1.
3. Rule 1.8
Rule 1.8(a) of the NYRPC provides that a “lawyer shall not
enter into a business transaction with a client if they have
different interests therein and if the client expects the lawyer
to exercise professional judgment therein for the protection of
the client, unless”:
(1) the transaction is fair and reasonable to the client
and the terms of the transaction are fully disclosed and
transmitted in writing in a manner that can be reasonably
understood by the client;
(2) the client is advised in writing of the desirability
of seeking, and is given a reasonable opportunity to
seek, the advice of independent legal counsel on the
transaction; and
(3) the client gives informed consent, in a writing signed
by the client, to the essential terms of the transaction and
the lawyer's role in the transaction, including whether the
lawyer is representing the client in the transaction.
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NYRPC Rule 1.8(a). These requirements must ordinarily be
met when “a lawyer agrees to take stock (or stock options) in
the client in lieu of cash fees.” Applied Energetics, Inc., 2020
WL 2833686, at *3 (quoting NYRPC Rule 1.8, cmt. 4D).
II. DEFENDANTS' MOTION TO DISMISS
A. Plaintiff Has Adequately Pleaded a Claim For
Legal Malpractice.
As set out above, to state a viable claim for legal malpractice
under New York law, a plaintiff must allege: “1) an attorney-
client relationship, and 2) attorney negligence, 3) which is the
proximate cause of, 4) actual damages.” Applied Energetics,
2020 WL 2833686, at *2 (citing Achtman 464 F.3d at 337).
As to the first of these elements – the existence of an
attorney-client relationship – Plaintiff plainly alleges that
Defendants were retained to represent it “on or about January
19, 2018” (Compl. ¶ 68), and Defendants do not appear to
challenge that allegation (see Def. Mem., at 2). Defendants
argue, however, that Plaintiff's legal-malpractice claim should
be dismissed “because the facts alleged do not support a
violation of the New York Rules of Professional Conduct,
or other deviation from the standard of care giving rise to
liability.” (Def. Mem. at 14-15.) Upon review the totality of
Plaintiff's allegations, the Court rejects this argument, and
concludes that the Complaint does state a claim for legal
malpractice.
1. Plaintiff Has Adequately Alleged Attorney Negligence.
*13 With respect to the second element – attorney
negligence – Plaintiff must plead that Defendants “failed
to exercise the ordinary reasonable skill and knowledge
commonly possessed by a member of the legal profession.”
AmBase, 8 N.Y.3d at 434. Plaintiff has pleaded this in a
number of ways, principally related to Defendants' having
acted – both in representing Plaintiff in connection with
the proxy solicitation and in negotiating their agreement
to be paid for their services in stock – from a conflicted
position, allegedly in violation of NYRPC Rules 1.7 and 1.8,
respectively.
With respect to the conflict inherent in Defendants'
representing and advising Plaintiff in the proxy contest,
Plaintiff's opposition summarizes the allegations of the
Complaint as “specif[ying] in detail how Defendants'
purported representation of [Plaintiff] actually amounted to
representing Farley's individual interests in direct opposition
to [Plaintiff]’s interests, by [,inter alia,] assisting [Plaintiff]
(at Farley's direction) to oppose a proxy solicitation seeking
Farley's removal for malfeasance, while disparaging the
claims of the proxy soliciting shareholders as ‘meritless.’
” (Pl. Mem., at 1.) According to Plaintiff, “Defendants could
not adequately exercise professional judgment in representing
[Plaintiff] in addressing the allegations against Farley in
the proxy solicitation, because Defendants' duties to its
former client, Farley, precluded Defendants from taking any
position adverse to Farley.” (Id. at 16; see, e.g., Compl. ¶
75 (alleging that, “due to their past representation of Farley
in the Superious Litigation,” Defendants “did not advance
[Plaintiff's] interests [in the later proxy contest] based on their
own independent judgment, but [rather] advanced Farley's
individual interests in opposing the proxy solicitation”).)
Plaintiff alleges that a “reasonable lawyer” would have
concluded that taking on this representation of Plaintiff would
“pose[ ] a significant risk that the lawyer's professional
judgment on behalf of [the Company] would be adversely
affected by the lawyer's responsibilities to Farley, a former
client.” (Compl. ¶ 89; see NYRPC Rule 1.7 (proscribing client
representation “if a reasonable lawyer would conclude” either
that it would “involve the lawyer in representing differing
interests” or would pose a “significant risk that the lawyer's
professional judgement on behalf of a client [would] be
adversely affected by the lawyer's own ... interests”).)
In addition, Plaintiff maintains that Defendants failed to
“disclose this conflict to [Plaintiff] in writing, and [Plaintiff]
never waived this conflict in writing.” (Pl. Mem., at 16;
Compl. ¶ 92.) Plaintiff further contends that, “even if it
had been expressly disclosed to Farley and purportedly
waived in writing by Farley, no representative of [Plaintiff]
was sufficiently disinterested in the conflict to consent
thereto.” (Pl. Mem., at 16 (emphasis in original) (citing In re
Oracle Sec. Litig., 829 F. Supp. 1176, 1189 (N.D. Cal. 1993));
see Compl. ¶ 79(c) (alleging that the conflict of interest could
not have been “cured by consent because Farley, as the sole
director of [the Company] and the one charged with having an
adverse interest, was unable to provide adequate consent”).)
Although Defendants argue that their purportedly “limited
representation” of the Company in connection with the proxy
contest, and “their decision to provide [Plaintiff] feedback
on its proposed Form 8-K response” were “not motivated by
supposed conflicted duties to a former client, but rather, by
an entirely reasonable conclusion that the allegations [in the
proxy solicitation] themselves were weak” (Def. Mem. at 18),
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the Court finds that it is certainly plausible that a reasonable
lawyer would have concluded that, once Defendants had
represented Farley in shareholder derivative suit in which he
was accused of breaching his fiduciary duties to the Company
by issuing himself 25 million shares of Company stock for
par value (Compl. ¶ 3), Defendants' independent judgment
would have been impaired in then representing the Company
in connection with a proxy solicitation in which the soliciting
shareholders were making the exact same allegations against
Farley, and were seeking to remove him from office based on
those allegations (id. ¶ 4).
*14 Plaintiff pleads that “[h]ad [Plaintiff] retained counsel
in connection with the proxy solicitation who did not owe
continuing duties of confidentiality and loyalty to Farley,
[Plaintiff] would have had the benefit of unbiased and non-
conflicted counsel to investigate and analyze the allegations
made against Farley in the proxy solicitation materials,”
and that non-conflicted counsel “would have concluded that
Farley likely did breach his fiduciary duties to Plaintiff.” 6
(Id. ¶ 32.) Instead, Plaintiff alleges that, with Defendants
acting as its counsel, it “t[ook] a position opposing the proxy
solicitation” and incurred attorneys' fees for Defendants'
“substantial[ ] and material[ ] assist[ance]” in “preparing
and filing a Form 8-K with the SEC urging [Plaintiff's]
shareholders to vote against the resolutions urged in the proxy
solicitation.” (Id. ¶¶ 25, 32; see Form 8-K).
6 In support of this allegation, Plaintiff references
the fact that, in a suit that it later brought against
Farley, Applied Energetics, Inc. v. Farley, C.A. No.
2018-0489-TMR, 2019 WL 334426, at *1 (Del.
Ch. Jan. 24, 2019), the court granted its request
for a preliminary injunction to prevent Farley from
selling the 25 million shares that he had issued
to himself, finding that the Company had “met its
burden to show a reasonable probability of success
on the merits in its claim against Farley for breach
of the fiduciary duty of loyalty,” id. at *9; see
Compl. ¶ 32.
Defendants argue in their motion that, even if their
representation of Plaintiff in connection with the proxy
solicitation was conflicted under NYRPC Rule 1.7, the
Court should nonetheless recognize that “Rule 1.7(b) permits
representation ... if the lawyer reasonably believes he
or she will be able to provide competent and diligent
representation to the client and the client gives informed
consent in writing” (Def. Mem., at 18), and that “[a]dvance
waiver of potential conflicts of interest need not be in
writing if informed consent can be found under the
circumstances” (id.). Defendants then seem to suggest that the
opinion letter provided by O'Hara (described by Defendants
as Plaintiff's “independent counsel”) sufficed to demonstrate
Plaintiff's informed consent to the representation. (See id.)
This argument regarding implied “consent,” however, like
Defendants' contention that they had a reasonable belief that
they could provide Plaintiff with competent representation,
merely raises issues of fact, and does not affect the
adequacy of Plaintiff's pleading. As held in Flycell, Inc. v.
Schlossberg LLC, No. 11cv0915 (CM), 2011 WL 5130159
(S.D.N.Y. Oct. 28, 2011), “[w]hether or not Defendants could
reasonably have thought [their] conflicts would not affect
their representation of Plaintiff, the[ ] conflicts were never
disclosed, and therefore Plaintiff has adequately alleged a
conflict of interest,” id. at *5.
On the element of negligence, Plaintiff additionally pleads
that Defendants' separate alleged conflict – in the transaction
by which it agreed to accept shares of Company stock in lieu
of monetary payment for their services – violated NYRPC
Rule 1.8, which, as set out above, prohibits an attorney
from “enter[ing] into a business transaction with a client if
they have different interests therein and if the client expects
the lawyer to exercise professional judgment therein for the
protection of the client,” absent full disclosure and written
informed consent. NYRPC Rule 1.8. A Comment to that rule
makes clear that it generally applies to transactions in which
“the lawyer accepts an interest in the client's business ... as
payment of all or party of the lawyer's fee.” Id. cmt. 4D.
Here, Plaintiff alleges that, without its informed consent,
Defendants improperly engaged in a transaction with Farley
by which Defendants agreed to be paid in stock, in lieu
of cash, both “for the fees incurred in defending Farley
in the Superius Litigation and for fees incurred [as of that
point] in their representation of [Plaintiff] in the proxy
solicitation matter.” (Compl. ¶ 6 (emphasis in original); see
also id. ¶ 7 (alleging that “at no time did [Defendants]
advise [Plaintiff] in writing to seek independent counsel in
reviewing the propriety of the stock issuance [or] advise
[Plaintiff] of the several conflicts of interest such stock
ownership would create,” and that “[Plaintiff]s consent was
not obtained to waive such conflicts”); see also id. ¶¶
79(h)-(j).) Plaintiff also alleges that, in connection with
the shares-for-fees transaction, Defendants did not “obtain
an independent valuation of the [Company's] shares before
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accepting [them] at half the public trading price at the time of
the agreement.” (Id. ¶ 79(g).)
*15 Perhaps most significantly, Plaintiff alleges that
Defendants negotiated this payment agreement with Farley
“in the middle of a proxy contest whereby [the Company's]
shareholders were seeking to remove Farley as a [Company]
officer and director.” (Id. ¶ 43 (emphasis added).) Of course,
the ownership of Company shares would have afforded
Defendants the right to take a position in the proxy contest.
As argued by Plaintiff in opposition to Defendants' motion,
Defendants allegedly negotiated the fee agreement
knowing that Farley – their former
client in the Superius Litigation – had
personal incentives, directly contrary
to [Plaintiff]’s interests, to maximize
the amount of [Plaintiff's] shares
issued to those friendly to Farley
and expected to vote against the
resolutions proposed to remove Farley
in the proxy solicitation – even if that
meant diluting the value of [Plaintiff]’s
stock by issuing new shares at a
dramatic discount to their public
trading price.
(Id., at 9.)
Some of the precise issues raised by Defendants' motion were
addressed in Applied Energetics, Inc. v. Stein Riso Mantel
McDonough, LLP, a case which again involved conduct by
Farley, purportedly acting on behalf of Plaintiff, although
in a transaction with a different law firm. See generally
Applied Energetics, Inc., 2020 WL 2833686. There, Farley
signed a retainer agreement with the firm of Stein Riso
Mantel McDonough, LLP (“Stein Riso”). Id. at *1. Under
that agreement, Stein Riso was to provide legal services to
Plaintiff for “general business and tax matters” and “such
other matters” as the Company might refer to the firm “from
time to time.” Id. Plaintiff alleged that, after that retainer
agreement was executed, “Farley, on behalf of [Plaintiff],
negotiated with Stein Riso to pay for $5,000 of Stein Riso's
legal services via stock in [the Company].” Id. Stein Riso
allegedly “represented [Plaintiff] in preparing the Common
Stock Subscription Agreement [“Subscription Agreement”]
pursuant to which the firm would subscribe to purchase shares
of [the Company's] common stock at [$0.001] per share.” Id.
At the time the Subscription Agreement was being prepared,
the Company's stock was trading publicly at approximately
$0.004 per share. See id. Prior to finalizing the Subscription
Agreement, however, Plaintiff – which had been a shell
company – publicly disclosed plans to restart its business
activities, and, four days after that disclosure (made in a Form
10-K filed with the SEC), its stock closed 10 times higher
– at $0.04 per share. Id. at *1-2. Nonetheless, Stein Riso
allegedly proceeded to execute the Subscription Agreement
for 10 million Company shares at $0.001 per share. Id. at *1.
In finding, in that case, that Plaintiff's allegations “sufficiently
allege[d] a violation of Rule 1.8 [of the NYRPC],” the court
highlighted that Stein Riso (1) “negotiated with Farley to
receive payment for some of its legal services via [Company]
stock,” and Stein Riso “represented [the Company] in
preparing the ... Subscription Agreement by which it would
purchase shares of common stock from [the Company]”;
(2) “did not at any point advise [the Company] to consult
independent legal counsel to review the [transaction] and
neither sought nor obtained a written waiver of this potential
conflict from [the Company]”; (3) “did not investigate
whether its purchase of [Company] shares at $[0].001 was
fair to [the Company] and its shareholders”; and (4) “did not
engage the services of an investment professional to value
[the Company's] shares, and it knew that Farley had not
obtained any such independent advice.” Id. at *3.
*16 Similarly, Plaintiff has alleged in this case that
Defendants: (1) negotiated with Farley to receive payment for
their legal services in Plaintiff's stock (Compl. ¶¶ 36, 40); (2)
did not advise Plaintiff to consult independent legal counsel
to review the transaction and neither sought nor obtained a
written waiver of this potential conflict from Plaintiff (id. ¶¶
33, 37, 77); (3) did not investigate whether its purchase of
Plaintiff's shares was fair to Plaintiff and its shareholders (id.
¶ 79(f)); and (4) did not engage the services of an investment
professional to value Plaintiff's shares (id. ¶ 79(g)). Moreover,
as noted above, the allegations here take on an even more
troubling cast, given that the transfer of shares to Defendants
would have allegedly given them the opportunity to vote in
the proxy solicitation and presumably diluted the value of
the other shareholders' stock holdings. (See id. ¶ 43 (alleging
that it was in the interest of Defendants' former client, Farley,
“to issue shares to friendly parties to potentially vote against
the proxy contest and save Farley's job and control of [the
Company]”).)
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Based on all of these allegations, the Court concludes
that Plaintiff has adequately pleaded that Defendants acted
negligently, both in representing Plaintiff in the proxy
solicitation and in entering into the shares-for-fees agreement.
2. Plaintiff Has Adequately Alleged
Proximate Cause and Damages.
As for the remaining elements of a legal malpractice claim
– proximate causation and damages – Plaintiff alleges in
its Complaint that, “[a]s a direct and proximate result of
each [ ] [Defendant]’s failure to exercise the required care,
skill, and diligence [in connection with the shares-for-fees
transaction], [Defendants] were issued a total of 1,242,711
of [Plaintiff's] shares at below market value.” (Compl. ¶ 80.)
Plaintiff alleges that, as a result of Defendants' negligence,
they were “not entitled to any fees for any services rendered
to [Plaintiff]” (id. ¶ 82), but, in any event, the stock issuance
– which, as described above, Defendants allegedly negotiated
from a conflicted position (see Discussion, supra, at Section
II(A)(1)); see also Compl. ¶¶ 79(e)-(k) – resulted in their
being paid a “grossly disproportionate” and “excessive fee”
for the legal services they provided (id. ¶¶ 79(l)-(m).) More
specifically, Plaintiff alleges that, as a proximate result of their
negligent conduct (see id. ¶ 80), Defendants received shares
valued “on the day of issuance at $93,451.86 in exchange
for only $38,524.26 of legal work” (Compl. ¶ 117-19).
Plaintiff also alleges that, as a “direct and proximate result” of
Defendants' negligence, “[Plaintiff] has been required to incur
substantial legal expenses in rescinding the shares issued to
Defendants.” (Id. ¶ 81.)
Defendants argue that “the Proxy Solicitation was ultimately
successful, which effectively precludes [Plaintiff] from being
able to argue that ... Defendants' efforts in response to the
same caused any harm to [Plaintiff].” (Def. Mem., at 14.) Yet,
regardless of whether the proxy solicitation was ultimately
successful, Plaintiff need only plausibly allege that “but for
the malpractice, ... [it] would not have sustained some actual
and ascertainable damage,” Prout, 316 F. Supp. 3d at 799
(citing Schwartz, 302 A.D.2d at 198), and it has done this.
At a minimum, Plaintiff's “allegations raise a reasonable
inference that [Defendants] would not have entered into the
[shares-for-fees transaction] had it complied with its Rule 1.8
obligations.” Applied Energetics, Inc., 2020 WL 2833686, at
*4 (finding that “had Stein Riso done a proper investigation
into the true fair market value of [Plaintiff's] stock, it would
have realized that the ... Subscription Agreement ... was not
fair to [Plaintiff]”).
As, if nothing else, Plaintiff allegedly “suffered the direct
loss of the value of the shares that it improperly issued to
[Defendants],” Applied Energetics, Inc., 2020 WL 2833686,
at *4, the Court concludes that Plaintiff has adequately
pleaded that it sustained damages proximately caused by
Defendants' negligence, see id.; see also Even Street Prods.
Ltd., 643 F. Supp. 2d at 322 (noting, in the context of a Rule
12(b)(6) motion, that, “[a]t this early stage of the litigation,”
the plaintiff “need only allege, not prove, the proximate
cause element of the legal malpractice claim”). Accordingly,
Defendants' motion to dismiss Plaintiff's legal-malpractice
claim must be denied.
B. To the Extent Plaintiff's Claim Under the NYRPC
Is Based on Alleged Violations of Rules 1.7 and 1.8,
the Claim Is Dismissed as Duplicative of Plaintiff's
Legal-Malpractice Claim.
*17 Plaintiff's separate claim for “rescission and restitution/
recoupment” of the shares issued to Defendants is based
solely on Defendants' alleged violations of NYRPC Rules
1.5, 1.7, and 1.8. (See Compl. ¶¶ 83-124.) Although, standing
alone, Rules 1.7 and 1.8 (addressing attorney conflicts
of interest) do not create a private right of action, see
Cohen, 115 A.D.3d at 513, Plaintiff's allegations regarding
Defendants' violations of these rules may, as discussed above,
support Plaintiff's legal-malpractice claim, on the element of
negligence, see, e.g., Applied Energetics, 2020 WL 2833686,
at *3. Thus, those allegations are properly raised within the
context of Plaintiff's pleaded malpractice claim, and any
separate claim that Plaintiff may be trying to assert based on
the asserted violations of Rules 1.7 and 1.8 is appropriately
dismissed as duplicative. See Applied Energetics, 2020 WL
2833686, at *5.
C. Under NYRPC 1.5, Plaintiff Has Adequately
Pleaded a Claim For Rescission of Its Fee Agreement
With Defendant, and Restitution or Recoupment of
Fees Paid.
The Court's analysis is different with respect to Rule 1.5. That
Rule, as set out above, prohibits an attorney from entering
into an agreement with a client for “an excessive or illegal fee
or expense,” NYRPC Rule 1.5(a), and, as previously noted,
a violation of the rule may give rise to a claim, by the client,
for rescission of the agreement (see Discussion, supra, at
Section I(C)(1); see also Seippel, 341 F. Supp. 2d at 380) –
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an equitable remedy that Plaintiff says it is not seeking on
its legal-malpractice claim (see Pl. Mem., at 24). In addition,
or in the alternative, a violation of Rule 1.5 may permit the
client to claim “restitution or recoupment of legal fees paid
in excess of the reasonable amount due to the attorney for
services actually rendered.” Seippel, 341 F. Supp. 2d at 380.
Defendants' contention that Plaintiff's citation to Seippel
misrepresents the decision's holding (see Def. Reply Mem.,
at 15-17) is convincing only to the extent that Plaintiff has
sought to rely on Seippel to support a free-standing claim for
relief based on violations of all three of the rules that Plaintiff
cites – Rules 1.5, 1.7, and 1.8. The relevant portion of Seippel
relates specifically to fee agreements, not to conflict-of-
interest rules, and it lends no support to Plaintiff's contention
that the violation of any of the NYRPC rules could support
an independent claim for relief, wherever the violation would
“not amount to malpractice.” (Pl. Mem., at 23.) Such a notion
would entirely swallow the well-established precedent that,
as a general matter, violations of the rules of professional
conduct do not, in and of themselves, give rise to private
rights of action. While the Court finds Seippel persuasive on
the narrow point that, where an attorney has entered into an
agreement for excessive fees, the client may sue to rescind the
agreement and/or recover the excessive fees paid thereunder,
the Court does not read Seippel to stand for any broader
principle, and the Court will not expand existing law here.
As to whether Plaintiff has adequately pleaded a claim
for rescission of Defendants' shares-for-fees agreement (or
restitution/recoupment) based on Rule 1.5, the Court finds
that it has. The Complaint alleges, inter alia, that the value
of the shares issued to Defendants was worth, on the market,
more than twice the amount of the fees that were then said
by Defendants to be owed for their services. (See Compl.
¶¶ 115-19.) Although Defendants emphasize that the stock
it received was “restricted” (see Def. Mem., at 3, 4, 6, 8,
19), and also assert in their motion papers that the discount
they received on the market price-per-share was the same or
similar to that offered by Plaintiff to others at the time (see
id., at 19), these are issues of fact regarding the fairness of
the transaction that do not render the claim for rescission
and/or restitution and recoupment inadequately pleaded, for
purposes of Rule 12(b)(6).
*18 Accordingly, Plaintiff's second cause of action is
appropriately dismissed to the extent it is based on Rule 1.7
and 1.8, but not to the extent it is based on Rule 1.5.
CONCLUSION
For all of the foregoing reasons, Defendants' motion to
dismiss (Dkt. 25) is granted in part and denied in part.
Specifically:
(1) the motion is granted as to Plaintiff's second cause
of action (for rescission and restitution/recoupment for
alleged violations of the NYRPC), to the extent that
claim is based on alleged violations of NYRPC Rules 1.7
and 1.8; but
(2) the motion is denied as to Plaintiff's first cause of action
(for legal malpractice) and is also denied as to Plaintiff's
second cause of action, to the extent that claim is based
on an alleged violation of NYRPC Rule 1.5.
All Citations
Not Reported in Fed. Supp., 2022 WL 956119
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Applied Energetics, Inc. v. Gusrae Kaplan Nusbaum PLLC
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (11)
Title PDF Court Date Type
1. Plaintiff's Memorandum of Law in Reply to
Defendant's Opposition to Plaintiff's Motion for
Summary Judgment
APPLIED ENERGETICS, INC., a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC, and
Ryan Whalen, Defendants.
2025 WL 2346924
— S.D.N.Y. Apr. 24, 2025 Motion
2. Plaintiff's Memorandum of Law in Support of
Motion for Summary Judgment
APPLIED ENERGETICS, INC., a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC, and
Ryan Whalen, Defendants.
2024 WL 6472250
— S.D.N.Y. Oct. 28, 2024 Motion
3. Memorandum of Law Submitted By Defendants
Gusrae Kaplan Nusbaum PLLC and Ryan Whalen,
Esq. in Support of Their Motion for Summary
Judgment
APPLIED ENERGETICS, INC., a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC, and
Ryan Whalen, Defendants.
2024 WL 6472251
— S.D.N.Y. Oct. 28, 2024 Motion
4. Reply Memorandum of Law Submitted by
Defendants Gusrae Kaplan Nusbaum PLLC and Ryan
Whalen, Esq. in Support of their Motion to Dismiss
Plaintiff's Complaint
APPLIED ENERGETICS, INC, a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC, and
Ryan Whalen, Defendants.
2021 WL 7707639
— S.D.N.Y. July 13, 2021 Motion
5. Memorandum of Law in Opposition to Defendants'
Motion to Dismiss Plaintiff's Complaint
APPLIED ENERGETICS, INC., a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC and Ryan
Whalen, Defendants.
2021 WL 7707637
— S.D.N.Y. June 25, 2021 Motion
6. Memorandum of Law Submitted by Defendants
Gusrae Kaplan Nusbaum PLLC and Ryan Whalen,
Esq. in Support of their Motion to Dismiss Plaintiff's
Complaint
APPLIED ENERGETICS, INC, a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC, and
Ryan Whalen, Defendants.
2021 WL 7707638
— S.D.N.Y. May 28, 2021 Motion
7. Expert Rebuttal Report of Professor Roy D. Simon,
Jr.
APPLIED ENERGETICS, INC., a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC, and
Ryan Whalen, Defendants.
2025 WL 1237823
— S.D.N.Y. Feb. 26, 2025 Expert
Materials
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Applied Energetics, Inc. v. Gusrae Kaplan Nusbaum PLLC
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Title PDF Court Date Type
8. Supplemental Expert Report of Nicole I. Hyland
APPLIED ENERGETICS, INC., a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC, and
Ryan Whalen, Defendants.
2025 WL 1237825
— S.D.N.Y. Feb. 26, 2025 Expert
Materials
9. Expert Report of Nicole I. Hyland
APPLIED ENERGETICS, INC., a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC, and
Ryan Whalen, Defendants.
2024 WL 5672037
— S.D.N.Y. Oct. 28, 2024 Expert
Materials
10. Expert Report of Professor Roy D. Simon, Jr.
APPLIED ENERGETICS, INC., a Delaware Corporation,
Plaintiff, v. GUSRAE KAPLAN NUSBAUM PLLC, and
Ryan Whalen, Defendants.
2023 WL 12093876
— S.D.N.Y. Aug. 16, 2023 Expert
Materials
11. Docket 1:21-CV-00382
Applied Energetics, Inc. v. Gusrae Kaplan Nusbaum PLLC
et al
— S.D.N.Y. Jan. 15, 2021 Docket
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Applied Energetics, Inc. v. Gusrae Kaplan Nusbaum PLLC
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (1)
1. Applied Energetics, Inc. v. Gusrae Kaplan Nusbaum PLLC
2022 WL 956119 , S.D.N.Y. , Mar. 30, 2022
Related References (1)
2. Applied Energetics, Inc. v. Gusrae Kaplan Nusbaum PLLC
2025 WL 2662330 , S.D.N.Y. , Sep. 17, 2025
Case 6:25-cv-01495-MAD-MJK Document 9 Filed 12/17/25 Page 87 of 87