Small v. Bud-K Worldwide, Inc.

• Decision Date: 28 September 2012
• Docket Number: No. 11–CV–2471 (JFB)(AKT).,11–CV–2471 (JFB)(AKT).
• Citation: 895 F.Supp.2d 438
• Parties: Nicholas SMALL, Plaintiff, v. BUD–K WORLDWIDE, INC., Kathleen M. Rice and Lauren J. Kalaudjian, Defendants.
• Court: U.S. District Court — Eastern District of New York

895 F.Supp.2d 438

Nicholas SMALL, Plaintiff,

v.BUD–K WORLDWIDE, INC., Kathleen M. Rice and Lauren J. Kalaudjian, Defendants.

No. 11–CV–2471 (JFB)(AKT).

United States District Court,

E.D. New York.

Sept. 28, 2012.

James M. Maloney, Law Offices of James M. Maloney, Port Washington, NY, for Plaintiff.

Daniel C. Lawson, Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C., Pittsburgh, PA, for Defendant Bud–K Worldwide, Inc.

Liora M. Ben–Sorek, Nassau County, Attorney's Office, One West Street, Mineola, NY, for Defendants Kathleen M. Rice and Lauren J. Kalaydijian.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Nicholas Small (“Small” or “plaintiff”) brought this action against Bud–K Worldwide, Inc. (“Bud–K”), Kathleen M. Rice (“Rice”) and Lauren J. Kalaudjian (“Kalaudjian”) (collectively the “defendants”).¹ Plaintiff seeks a declaration from Rice and Kalaudjian (the “County defendants”) that the “Black Cat Keychain,” described infra, was and is legal to possess in New York and may not be considered “metal knuckles” for purposes of prosecution under New York Penal Law § 265.01(1) (“ Section 265.01(1)”).² Plaintiff brings this action against Bud–K alleging that Bud–K violated New York General Business Law § 349 (“ GBL 349”) and New York General Business Law § 350 (“ GBL 350”) by advertising and selling plaintiff the Black Cat Keychain. Plaintiff also claims that Bud–K violated the terms of an Assurance of Discontinuance dated October 29, 2002.

Plaintiff has moved for partial summary judgment against the County defendants alleging that Section 265.01(1) is void for vagueness. Defendant Bud–K has also moved for summary judgment on the same grounds. The County defendants cross-moved for summary judgment alleging that: (1) plaintiff has failed to state a claim upon which relief can be granted; (2) the County defendants are entitled to qualified immunity; (3) Section 265.01(1) is not unconstitutionally vague; (4) there is no Second Amendment Right to possess and carrya Black Cat Keychain; ³ and (5) because plaintiff's conviction has not been invalidated, he cannot bring this action.⁴ For the reasons set forth below, the Court finds that Section 265.01(1) is not unconstitutionally vague. Thus, the Court denies summary judgment on the claims by plaintiff and Bud–K against the County defendants and grants the County's cross-motion for summary judgment. However, plaintiff's claims against Bud–K, which are not part of the current motions, remain.

I. Background

A. Facts

The Court has taken the facts set forth below from the parties' affidavits and exhibits, and from the defendants' Rule 56.1 Statement of Facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005). Unless otherwise noted, where a party's 56.1 Statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it. ⁵

On or about June 13, 2010, plaintiff purchased a “Black Cat Keychain” from Bud–K through Bud–K's website. (Pl.'s 56.1. ¶ 1; Am. Compl. ¶ 24.) The Black Cat Keychain is advertised as an “unusual keychain” that “packs a mighty punch” such that “[t]he eyes of the cat become finger holes and the ears become spikes when clutched in the hand to create an excellent means of self-defense against an attacker.” ( Id. ¶ 2.) With the consent of all parties, Bud–K provided the Court with a Black Cat Keychain.⁶ The Black Cat Keychain is approximately 3 inches long when measured from the base of the keychain to the tip of the “ears.” The ears are approximately 1 1/2 inches long and are triangular in shape, and thus are wider towards the base of the keychain and become narrower at the end. It is approximately two inches wide and has two holes that are large enough to fit 2 fingers through. The Black Cat Keychain appears to be made of a metal material and is approximately one-quarter inch thick.

On or about September 16, 2010, plaintiff was arrested and charged with violation of Section 265.01 based on his possession of a Black Cat Keychain in a pouch on his belt that was discovered by police during a vehicle stop. ( Id. ¶ 3.) Plaintiff pled guilty to a violation of New York Penal Law § 240.20(7) and allocuted to being in possession of an instrument that could be considered metal knuckles. (County Defs.' Counter 56.1 ¶¶ 3, 4.)

B. Procedural History

Plaintiff commenced this action on May 23, 2011. Plaintiff amended his complaint on August 15, 2011.

On December 22, 2011, Small, Bud–K and the County defendants separately requested pre-motion conferences in anticipation of their motions for summary judgment. The Court held a telephone pre-motion conference on January 10, 2012 and set a briefing schedule. Plaintiff and Bud–K filed their motions on February 24, 2012. The County defendants filed their oppositions on April 6, 2012. The County defendants filed their cross-motion on April 11, 2012. Bud–K filed its reply and opposition to the cross-motion on April 27, 2012. Plaintiff filed his reply and opposition to the cross-motion on May 2, 2012. The County defendants filed their reply to the cross-motion on May 11, 2012. Oral argument was heard on June 14, 2012. By letter dated June 28, 2012, counsel for Bud–K provided the Court with supplemental authority. By letter dated July 6, 2012, plaintiff's counsel provided the Court with supplemental authority. The Court has fully considered the arguments and submissions of the parties.

II. Standard of Review

The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may only grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).

Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts .... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247–48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth “ ‘concrete particulars' ” showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). Accordingly, it is insufficient for a party opposing summary judgment “ ‘merely to assert a conclusion without supplying supporting arguments or facts.’ ” BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33).

III. Discussion

Plaintiff and Bud–K allege that Section 265.01(1) is void for vagueness as applied to the Black Cat Keychain. The County defendants argue that Section 265.01(1) is not vague, and thus, the claims against the County defendants should be dismissed. In addition, the County defendants argue that plaintiff cannot bring this action because his conviction has not been invalidated. For the reasons set forth below, this Court finds that plaintiff is not barred by the Heck doctrine from bringing this action. However, the Court finds that Section 265.01(1) is not vague, and thus, summary judgment is granted as to the County defendants and denied as to the plaintiff and Bud–K., addition, the County defendants argue that plaintiff cannot bring this action because his conviction has not been invalidated. For the reasons set forth below, this Court finds that plaintiff is not barred by the Heck doctrine from bringing this action. However, the Court finds that Section 265.01(1) is not vague, and thus, summary judgment is granted as to the County defendants and denied as to the plaintiff and Bud–K.

A. The Heck Doctrine

The County defendants argue that plaintiff is barred from bringing this action because of the...