Neal Peters McCurn

This case involves a civil rights lawsuit by JWJ Industries and its officer against Oswego County, claiming that the county's Flow Control Law, part of its solid waste regulations, effected an unconstitutional taking of their private waste transfer station property without just compensation and violated other constitutional rights. The specific motion before the court addressed the claim that the Flow Control Law is unconstitutionally vague and overbroad on its face and as applied. The court granted the plaintiffs' motion for judgment on the pleadings, ruling the law invalid on vagueness grounds, and denied the defendants' cross-motion as moot. The reasoning centered on the law's failure to clearly define terms such as processing facilities, creating uncertainty in its application to preexisting private operations, in contrast to Supreme Court precedents like United Haulers that upheld public flow control measures.

civil rightspropertybusiness & regulatoryenvironment

In this case, plaintiff Gareth D. Wood sued Capital One Bank (USA), N.A., Capital One Services, LLC, and NCO Financial Systems, alleging violations of the Fair Debt Collection Practices Act and New York General Business Law § 349 based on a "PRE-LEGAL NOTICE" letter regarding a delinquent consumer credit account that routed calls to a third-party debt collector. Capital One Bank and Capital One Services moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The court granted the motion in part, dismissing all FDCPA claims against both moving defendants because neither qualified as a "debt collector" under the statute's affiliate and false-name exceptions, and dismissing the NYGBL § 349 claim against Capital One Bank because it did not send the letter. The court denied the motion as to the NYGBL § 349 claim against Capital One Services, holding that the complaint sufficiently alleged a materially misleading practice that caused the plaintiff non-pecuniary harms.

business & regulatoryprocedure

This case was a Federal Tort Claims Act action brought by Thomas Dockery and his wife against the United States after Dockery fell approximately ten feet from an unmarked retaining wall at a U.S. Military Academy paintball event site in September 2005, resulting in multiple fractures and other serious injuries. Plaintiffs claimed the government negligently failed to warn of or secure the hazard on its property, and after a bench trial the court entered judgment for the plaintiffs. The court awarded damages for past and future medical expenses, past and future pain and suffering, and loss of consortium, applying New York negligence standards to conclude that the unmarked wall created an unreasonable risk under the circumstances.

torts & liability

The case involved plaintiff Eileen Malay suing the City of Syracuse, its police chief, and officers under 42 U.S.C. § 1983 and New York law after police responded to a gunfire report at her apartment building on March 17, 2007; she alleged that officers fired explosive rounds and deployed CS gas into her apartment without warning, then detained and questioned her for hours without medical treatment for gas exposure or guidance to safety. Defendants moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The court granted the motion in part, dismissing Fifth Amendment claims because the Amendment applies only to federal actors, dismissing official-capacity claims against individual defendants, and dismissing New York Constitution claims, while denying the motion as to the remaining federal constitutional and state tort claims on the grounds that they were adequately pleaded under the applicable standards. The court also retained supplemental jurisdiction over the state-law claims because the federal claims survived.

civil rightsproceduretorts & liability

This case involved plaintiffs Thunder Island Amusements, Inc., and its owners suing IRS Special Agent Kelly Ewald and other federal agents under Bivens for alleged violations of the Fourth Amendment and New York Constitution stemming from searches of their business and residence in connection with a tax investigation. The investigation, which concluded without charges, involved undercover operations and search warrants based on statements made by one plaintiff about tax matters. The court granted the defendants' motion for summary judgment, dismissing the claims. It reasoned that the search warrants were supported by probable cause under the totality of circumstances, and any alleged inaccuracies or omissions in the warrant affidavit were not material to that finding.

criminal lawtaxesfederal powerprocedure

Plaintiff Angelita Kercado-Clymer, the only female officer in the Amsterdam Police Department and of Puerto Rican national origin, sued the City and Police Chief Brownell under Title VII for gender, national origin, and religious discrimination creating a hostile work environment, as well as retaliation for her complaints about Brownell's alleged offensive comments and unequal discipline; she also asserted §1983 claims for violations of due process, free speech, religion, and association, plus state human rights law claims. The defendants moved for summary judgment on all counts. The court granted the motions in part and denied them in part, finding triable issues on certain Title VII and Monell municipal liability claims based on evidence of Brownell's conduct and the City's response, while dismissing others for lack of sufficient factual support or legal grounds.

labor & employmentcivil rights

The case was a civil rights action brought by a pro se plaintiff against Syracuse City Police Department, Onondaga County Sheriff's Office, and related defendants, alleging violations of Fourth, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983, along with New York common law tort claims, based on events surrounding his arrest and detention for aggravated harassment in May 2008. The court addressed the County Defendants' motion to dismiss under Fed. R. Civ. P. 12(b)(6) and the City Defendants' motion for judgment on the pleadings under Fed. R. Civ. P. 12(c), applying identical standards that require accepting factual allegations as true and assessing whether the complaint states plausible claims. It liberally construed the pro se filings to raise the strongest arguments suggested, while limiting review to the complaint, attached or incorporated documents, and matters of public record such as arrest reports. The court granted dismissal of claims against the County of Onondaga and John Does for failure to state claims upon which relief could be granted.

civil rightsprocedurecriminal lawtorts & liability

This case is a trademark infringement action in which Audi AG and Volkswagen sued Shokan Coachworks and its owner for alleged improper use of Audi's registered marks, including AUDI and the Audi Ring Logo, on letterhead, advertisements, and parts related to Shokan's business recycling and selling Audi vehicle components. The claims included federal trademark infringement and dilution under the Lanham Act, false designation of origin, cyberpiracy, and common law infringement, stemming from conduct that plaintiffs argued exceeded the limits of a 1991 settlement agreement resolving a prior similar lawsuit. On cross-motions for summary judgment, the court dismissed the false advertising and trade dress claims due to plaintiffs' failure to address them, confirmed Volkswagen's standing as exclusive licensee, overruled objections to discovery orders regarding third-party trademark uses and coexistence agreements, and analyzed the remaining claims under standards for likelihood of confusion and the scope of the prior settlement.

business & regulatoryprocedure

This case involved an employee, Richard Picinich, who sued his employer UPS and several supervisors under the Americans with Disabilities Act and New York Human Rights Law, claiming failure to provide reasonable accommodation for his disability and discriminatory discharge. After a bench trial, the district court initially found in Picinich's favor on liability and awarded back pay through February 2002 plus compensatory damages, but denied further front pay on mitigation grounds. On appeal, the Second Circuit affirmed liability but remanded on the mitigation issue. On remand, the court held that defendants failed to carry their burden of proving Picinich did not mitigate his damages, given evidence of his job searches, networking, vocational assistance efforts, and real estate work, leading to an expanded award of back pay through the date of judgment, front pay until age 65, and continued pension contributions.

labor & employmentcivil rights

The case involves plaintiffs Constance and Marshay Hines bringing a civil rights action under 42 U.S.C. § 1983 against the City of Albany, its police department, police chief, and unidentified officers, alleging violations of Fourth, Fifth, and Fourteenth Amendment rights. Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), and plaintiffs later moved to amend the complaint to add allegations supporting their Monell municipal liability claim and to drop the police department as a defendant. The court addressed the amendment motion first, finding no undue delay or prejudice to defendants but evaluating whether the proposed amendments were futile, and it granted the request to remove the police department while analyzing the sufficiency of the Monell allegations under pleading standards from Bell Atlantic v. Twombly.

civil rightsprocedure

In Fink v. Bennett, petitioner Jay Fink sought federal habeas corpus relief under 28 U.S.C. § 2254 after his New York state conviction for second-degree depraved indifference murder arising from the 1995 killing of Michael Murray. Fink had been acquitted of intentional murder but convicted at trial, with his state appeals unsuccessful; he then raised claims in federal court including ineffective assistance of counsel, insufficient evidence, improper jury instructions, and other trial errors. The district court denied the petition, holding that several claims were procedurally defaulted or unexhausted, others failed to show prejudice or cause for default, and the state court's rulings did not contravene clearly established federal law under AEDPA standards.

criminal lawprocedure

This case concerns petitioner Larry Whitehurst, who was investigated and arrested in connection with the 1995 disappearance of seven-year-old Rickel Knox in Kingston, New York. Whitehurst entered a written cooperation agreement with the Ulster County District Attorney's office, under which he would lead police to the child in exchange for a guilty plea to first-degree kidnapping, a sentence of ten to fifteen years, and no murder charges; the agreement included an addendum rendering it void if he chose to go to trial. After the child's body was discovered, the District Attorney repudiated the agreement, Whitehurst was indicted on murder and other charges, and he ultimately pleaded guilty to first-degree murder with a sentence of life without parole. Whitehurst later filed a federal habeas petition challenging the prosecution and plea on grounds that the cooperation agreement should have barred the murder charge. The court denied relief, holding that the District Attorney was not bound by the agreement once the child was found dead and that Whitehurst's plea was knowing, intelligent, and voluntary.

criminal law

The case involves Keith Gillis's federal habeas corpus petition challenging his New York state convictions for first- and second-degree assault and resisting arrest. These convictions stemmed from an incident in which Gillis, while intoxicated on cocaine and PCP, fired shots at firefighters and police officers responding to a fire at his home, injuring two people and biting an officer during his arrest. The district court denied the petition in full, rejecting claims of ineffective assistance of trial and appellate counsel related to mental health defenses, including arguments about lack of intent due to intoxication and unpresented evidence of fetal alcohol syndrome. The court reasoned that counsel had made substantial efforts to establish Gillis's lack of criminal responsibility, that the proposed additional evidence was speculative and not shown to be outcome-determinative, and that the state courts' rulings were neither contrary to nor an unreasonable application of clearly established federal law.

criminal lawprocedure

Campbell v. Greene is a federal habeas corpus petition filed by Alan Campbell after his state court convictions for attempted first-degree assault and reckless endangerment. The convictions stemmed from a 1998 incident in which police officers and a caseworker entered Campbell's home, he pointed a revolver at them, and he fired shots during a standoff, leading to his arrest and trial. The district court denied the petition in full. It rejected claims including ineffective assistance of counsel, denial of a fair trial due to evidentiary rulings and missing evidence, prosecutorial misconduct, and competency issues, finding that the state proceedings did not violate clearly established federal law and that many arguments were meritless or unpreserved.

criminal lawprocedure

The case involved Ronald D. Bourdon's federal habeas corpus petition challenging his New York state conviction for driving while intoxicated, aggravated unlicensed operation of a vehicle, and criminal possession of stolen property. Bourdon argued that inadequate notice of the grand jury proceedings prevented him from testifying in his own defense and that his pretrial counsel was ineffective. The state trial court denied his motion to dismiss the indictment as untimely under New York's Criminal Procedure Law § 190.50(5)(c) after multiple attempts to serve notice at addresses provided by Bourdon were returned as undeliverable. The federal opinion recounts the state court proceedings in detail, including Bourdon's failure to appear for arraignment and subsequent arrest on a warrant.

criminal lawprocedure

In Coleman v. B.G. Sulzle, Inc., the plaintiff, a longtime employee terminated from his role as Vice President of Human Resources, filed this action under 42 U.S.C. § 1981 alleging retaliatory discharge and a hostile work environment, after having already brought consolidated suits under the FMLA, ADEA, and ADA based on the same events. The defendants moved to dismiss under Rules 12(b)(6) and 12(c), arguing claim splitting, untimeliness, insufficient causal allegations, and conclusory pleading of the hostile environment claim. The court denied the motions, holding that the pro se complaint, liberally construed, sufficiently stated both claims by alleging facts that could support a prima facie case and imputing conduct to the employer. It applied the standard of accepting the pleaded facts as true and drawing inferences in the plaintiff's favor, while noting reservations about the claims' ultimate viability at trial.

labor & employmentcivil rights

The case involves a non-party, Kanion’ke:haka Kaianerch’korwa Kanon’sesmeh, filing a 'Notice of Jurisdictional Suggestion' under Fed. R. Civ. P. 12(h)(3) in the ongoing litigation between the Canadian St. Regis Band of Mohawk Indians and New York, which the court treated as a motion to dismiss for lack of subject matter jurisdiction. The magistrate judge recommended denying the motion after analyzing the standards for such challenges, including the burden on the party asserting jurisdiction and the sufficiency of supporting affidavits. The district court adopted the report and recommendation in full, finding the non-party's objections meritless and concluding that jurisdiction was properly established. The core reasoning centered on Rule 12(h)(3) procedures allowing courts to address jurisdictional issues at any time but requiring the asserting party to prove jurisdiction by a preponderance of the evidence, without drawing favorable inferences from the pleadings alone.

civil rightspropertyprocedurefederal power

The case involved health care organizations challenging New York Labor Law § 211-a, which bars recipients of state funds including Medicaid from using those funds to encourage or discourage union organizing and imposes related recordkeeping and penalty provisions. Plaintiffs claimed the statute was preempted by the National Labor Relations Act (NLRA) and the Labor Management Reporting and Disclosure Act, and also raised First and Fourteenth Amendment challenges. The court granted plaintiffs summary judgment on their NLRA preemption claim, holding that the law regulates activity protected by NLRA Sections 7 and 8(c) and is not saved by any market-participant exception, while dismissing the remaining causes of action. Judgment was entered for plaintiffs declaring the statute preempted as to covered employers.

labor & employmentfederal powerhealthcare

This case involved a §1983 civil rights action by three sisters against New York DEC officers, arising from their 2002 arrests at a state campground for noise violations, resisting arrest, and related offenses; the plaintiffs alleged Fourth Amendment unreasonable seizures, Fourteenth Amendment due process violations, and state-law tort claims including false arrest, battery, malicious prosecution, and negligence. The court had already dismissed several defendants and claims by agreement, and it granted the remaining defendant's motion for summary judgment on qualified immunity grounds as to the arrest-related claims. On the due process and malicious prosecution counts, the court found that the assault charges were supported by probable cause and that the officer's conduct did not shock the conscience. With all federal claims resolved, the court dismissed the remaining state-law negligence claim and counterclaim for lack of subject-matter jurisdiction. The opinion therefore entered judgment for the defendants on the entire complaint.

civil rightscriminal lawproceduretorts & liability

This case involved a law firm and one of its attorneys suing their professional liability insurer after the insurer denied coverage for a legal malpractice action brought against them by former clients. The underlying malpractice suit arose from the firm's handling of a personal injury case, including issues with expert witnesses and a denied adjournment request that led to a preclusion order and an unfavorable outcome for the clients. Following a bench trial, the court ruled in favor of the plaintiffs, declaring that the insurer was obligated to defend and indemnify them up to policy limits. The core reasoning was that the attorneys' good-faith belief that they were not liable excused their delay in providing notice of a potential claim under the policy terms.

business & regulatorytorts & liability