Parent v. State , s. 6:09–CV–233

• Decision Date: 24 May 2011
• Docket Number: 6:10–CV–1361.,Nos. 6:09–CV–233,s. 6:09–CV–233
• Parties: John PARENT, individually and as natural parent of Child “A” and Child “B,” and on behalf of parents similarly situated, also known as Leon R. Koziol, Plaintiffs,v.State of NEW YORK; Jonathan Lippman, individually and as Chief Administrative Officer of the New York Unified Court System; Unified Court System of the State of New York; John W. Grow, individually and as State Court Judge; Charles C. Merrell, individually and as Family Court Judge; George S. Getman, individually and as Support Magistrate; Michael Daley, individually and as Acting Judge for the State of New York; Justices of the Appellate Division, Fourth Department; Fifth Judicial District Grievance Committee; Mary Gasparini, individually and as investigator/attorney for the Grievance Committee; Sheryl Crankshaw, individually and as investigator for the Grievance Committee; Kathleen Sebelius, Secretary of Health and Human Services for the United States; David J. Swarts, individually and as Commissioner of Motor Vehicles for the State of New York; Brian J. Wing, individually and as Commissioner of the Office of Temporary and Disability Assistance for the State of New York; Lucille Soldato, individually and as Commissioner of the Oneida County Support Collection Unit; Darlene Chudyk, individually and as “Investigator” for Oneida County; Jane Doe, individually and as “Custodial Parent” for the State of New York; Keith Eisenhut; William Koslosky, individually and as “Attorney for the Child” for the State of New York; and Martha Walsh–Hood, individually and as Acting State Court Judge, Defendants.Leon R. Koziol, individually and as natural parent of Child “A” and Child “B,” and on behalf of parents similarly situated, Plaintiffs,v.Jonathan Lippman, individually and as Chief Administrative Officer of the New York Unified Court System; New York Unified Court System; State of New York; John W. Grow, individually and as State Supreme Court Judge; Charles Merrell, individually and as Family Court Judge; George S. Getman, individually and as Support Magistrate; Michael Daley, individually and as Acting Judge; Justices of the Appellate Division Third/Fourth Departments; Fifth Judicial District Grievance Committee; Gregory Huether, individually and as Chief Counsel/Complainant of the Fifth Judicial District; Mary Gasparini, individually and as investigator/attorney for the Fifth District; Kathleen Sebelius, U.S. Secretary of Health and Human Services; Brian J. Wing, individually and as Commissioner of the Office of Temporary and Disability Assistance; David J. Swarts, as Commissioner of Motor Vehicles; Lucille Soldato, individually and as Commissioner of the Oneida County Department of Social Services; Darlene Chudyk, individually and as “Investigator” for Oneida County; Kelly Hawse–Koziol, individually and as “Custodial Parent” for the State of New York; Keith Eisenhut; William Koslosky, individually and as the state's “Attorney for the Child”; Martha Walsh–Hood, individually and as Acting Judge; C. Duncan Kerr, individually and as Deputy Tax Commissioner; Donna Costello, Charlotte Kiehle and unknown enforcement agents of the state, County of Oneida and New Hartford Police; County of Oneida; and Town of New Hartford, Defendants.
• Court: U.S. District Court — Northern District of New York

786 F.Supp.2d 516

John PARENT, individually and as natural parent of Child “A” and Child “B,” and on behalf of parents similarly situated, also known as Leon R. Koziol, Plaintiffs,

v.State of NEW YORK; Jonathan Lippman, individually and as Chief Administrative Officer of the New York Unified Court System; Unified Court System of the State of New York; John W. Grow, individually and as State Court Judge; Charles C. Merrell, individually and as Family Court Judge; George S. Getman, individually and as Support Magistrate; Michael Daley, individually and as Acting Judge for the State of New York; Justices of the Appellate Division, Fourth Department; Fifth Judicial District Grievance Committee; Mary Gasparini, individually and as investigator/attorney for the Grievance Committee; Sheryl Crankshaw, individually and as investigator for the Grievance Committee; Kathleen Sebelius, Secretary of Health and Human Services for the United States; David J. Swarts, individually and as Commissioner of Motor Vehicles for the State of New York; Brian J. Wing, individually and as Commissioner of the Office of Temporary and Disability Assistance for the State of New York; Lucille Soldato, individually and as Commissioner of the Oneida County Support Collection Unit; Darlene Chudyk, individually and as “Investigator” for Oneida County; Jane Doe, individually and as “Custodial Parent” for the State of New York; Keith Eisenhut; William Koslosky, individually and as “Attorney for the Child” for the State of New York; and Martha Walsh–Hood, individually and as Acting State Court Judge, Defendants.Leon R. Koziol, individually and as natural parent of Child “A” and Child “B,” and on behalf of parents similarly situated, Plaintiffs,

v.Jonathan Lippman, individually and as Chief Administrative Officer of the New York Unified Court System; New York Unified Court System; State of New York; John W. Grow, individually and as State Supreme Court Judge; Charles Merrell, individually and as Family Court Judge; George S. Getman, individually and as Support Magistrate; Michael Daley, individually and as Acting Judge; Justices of the Appellate Division Third/Fourth Departments; Fifth Judicial District Grievance Committee; Gregory Huether, individually and as Chief Counsel/Complainant of the Fifth Judicial District; Mary Gasparini, individually and as investigator/attorney for the Fifth District; Kathleen Sebelius, U.S. Secretary of Health and Human Services; Brian J. Wing, individually and as Commissioner of the Office of Temporary and Disability Assistance; David J. Swarts, as Commissioner of Motor Vehicles; Lucille Soldato, individually and as Commissioner of the Oneida County Department of Social Services; Darlene Chudyk, individually and as “Investigator” for Oneida County; Kelly Hawse–Koziol, individually and as “Custodial Parent” for the State of New York; Keith Eisenhut; William Koslosky, individually and as the state's “Attorney for the Child”; Martha Walsh–Hood, individually and as Acting Judge; C. Duncan Kerr, individually and as Deputy Tax Commissioner; Donna Costello, Charlotte Kiehle and unknown enforcement agents of the state, County of Oneida and New Hartford Police; County of Oneida; and Town of New Hartford, Defendants.

Nos. 6:09–CV–233

6:10–CV–1361.

United States District Court, N.D. New York.

May 24, 2011.

John Parent, Utica, NY, Plaintiff Pro se.Leon R. Koziol, Utica, NY, Plaintiff Pro se.Eric T. Schneiderman, Attorney General for the State of New York, Of Counsel: Christopher W. Hall, Esq., Megan M. Brown, Esq., Assistant Attorneys General, Albany, NY, Attorneys for Defendants State of New York, Lippman, Unified Court System, Grow, Merrell, Getman, Swarts, Wing, Daley, Justices of the Appellate Division Fourth Department, Fifth Judicial District Grievance Committee, Huether, Gasparini, Crankshaw, and Walsh–Hood.Gorman, Waszkiewicz, Gorman & Schmitt, Of Counsel: Bartle J. Gorman, Esq., Utica, NY, Attorneys for Defendants Soldato, Chudyk, and County of Oneida.Sugarman Law Firm, Of Counsel: Paul V. Mullin, Esq., Syracuse, NY, Attorneys for Defendant Town of New Hartford.Costello, Cooney & Fearon, PLLC, Of Counsel: Jennifer L. Nuhfer, Esq., Paul G. Ferrara, Esq., Christopher G. Todd, Esq., Syracuse, NY, Attorneys for Defendants Eisenhut and Koslosky.Richard S. Hartunian, United States Attorney, Of Counsel: Charles E. Roberts, Esq., Ass't United States Attorney, Syracuse, NY, Attorneys for Defendant Sebelius.

MEMORANDUM–DECISION and ORDER

DAVID N. HURD, District Judge.

+-----------------+
                ¦TABLE OF CONTENTS¦
                +-----------------+
                

                INTRODUCTION                                                            524
                BACKGROUND                                                              526
                LEGAL STANDARDS                                                         526
                

      Motion to Dismiss                                                 526
                      Motion for Summary Judgment                                       527
                

                ANALYSIS                                                                527
                

      New Hartford                                                      527
                

          Federal Claims under §§ 1983, 1985, 1986                      527
                          State Law Trespass Claim                                      529
                

      State Defendants                                                  529
                

          Personal Involvement                                          529
                          Eleventh Amendment Immunity                                   530
                          Judicial and Quasi–Judicial Immunity                          531
                

              Judge Lippman                                             532
                              Judge Grow                                                532
                              Judge Merrell                                             533
                              Support Magistrate Getman                                 533
                              Judge Daley                                               534
                              Judge Walsh–Hood                                          534
                              Gasparini, Huether, and Crankshaw                         535
                

      County Defendants
                

          County of Oneida                                              536
                          Soldato and Chudyk                                            536
                

      Attorney Defendants                                               538
                

          Federal Claims under § 1983                                   538
                          Conspiracy Claims under § 1983                                539
                          State Law Defamation Claims                                   540
                          State Law Legal Malpractice Claims–Koslosky                   541
                          Remaining State Law Claims                                    542
                

      Other Issues                                                      543
                

          Sebelius                                                      543
                          Hawse–Koziol                                                  543
                          Costello, Kiehle, and Kerr                                    543
                          Remaining State Law Claims                                    544
                          Plaintiff's Cross–Motions                                     544
                

                CONCLUSION                                                              544
                

I. INTRODUCTION

Plaintiff Leon R. Koziol ¹ (“plaintiff” or “Koziol”), individually and as natural parent of Child “A” and Child “B,” and on behalf of parents similarly situated, brings these actions asserting a total of forty-two causes of action under the United States Constitution and state law.

Plaintiff filed the initial complaint in Civil Action No. 6:09–CV–233 (“lead case”) on February 26, 2009. Dkt. No. 1. He later served an amended complaint and second amended complaint (“lead complaint”). Dkt. Nos. 7, 13. Defendants filed various motions to dismiss in the lead case. Dkt. Nos. 19, 22, 33, 38. Oral argument was heard regarding those motions on September 16, 2010, in Utica, New York. Decision was reserved.

On November 10, 2010, plaintiff filed Civil Action No. 6:10–CV–1361 (“member case”).² The member case was reassigned to the undersigned on November 12, 2010, when it was discovered that the lead case was pending and related. A comparison of the two cases revealed they involve common questions of law and fact. On November 23, 2010, the two cases were consolidated and the initial action designated as the lead case. Dkt. No. 54. The pending motions were dismissed without prejudice to renew to incorporate arguments with regard to the new causes of action in the member case.

Following consolidation, defendant Town of New Hartford (“New Hartford”) moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) ( “Rule ––––”). Dkt. No. 60. Plaintiff opposed.

Defendants the State of New York (“New York”); Chief Judge of the State of New York Jonathan Lippman (“Judge Lippman”); the Unified Court System of the State of New York (“UCS”); retired New York State Supreme Court Judge John W. Grow (“Judge Grow”); Lewis County Family Court Judge Charles C. Merrell (“Judge Merrell”); Herkimer County Family Court Support Magistrate George S. Getman (“Getman”); New York State Commissioner of Motor Vehicles David J. Swarts (“Swarts”); New York State Commissioner of the Office of Temporary and Disability Assistance Brian J. Wing (“Wing”); New York State Deputy Tax Commissioner C. Duncan Kerr (“Kerr”); Herkimer County Supreme Court Judge Michael E. Daley (“Judge Daley”); the Justices of the Appellate Division, Third Department (“Third Department”); the Justices of the Appellate Division, Fourth Department (“Fourth Department”); the Fifth Judicial District Grievance Committee (“Grievance Committee”); Fifth Judicial District Chief Counsel/Complainant Gregory Huether (“Huether”); Grievance Committee Investigator/Attorney Mary Gasparini (“Gasparini”); Grievance Committee Investigator Sheryl Crankshaw (“Crankshaw”); and Fifth Judicial District Family Court...