United States District Court, S.D. New York
July 30, 2004.
MARY FACELLA, Plaintiff,
FEDERATION OF JEWISH PHILANTHROPIES OF NEW YORK, INC., FIRST COLONY LIFE INSURANCE CO., and MONTEFIORE MEDICAL CENTER, Defendants. FOJP SERVICE CORP., s/h/a FEDERATION OF JEWISH PHILANTHROPIES OF NEW YORK, INC. and MONTEFIORE MEDICAL CENTER, Third-Party Plaintiffs, v. STEPHEN FACELLA, a/k/a STEPHEN R. FACELLA, and LEWIS E. ALPERIN, Third-Party Defendants.
The opinion of the court was delivered by: DEBORAH BATTS, District Judge
Plaintiff Mary Facella brought this action against Defendants
Federation of Jewish Philanthropies of New York, Inc. ("FOJP"),
Montefiore Medical Center ("Montefiore"), and First Colony Life
Insurance Company ("First Colony") for claims arising from
alleged violations of a state court settlement, which resolved a
medical malpractice case between Plaintiff and Defendants FOJP
and Montefiore (collectively "FOJP Defendants"). Plaintiff, FOJP
Defendants, and Third-Party Defendant Lewis E. Alperin ("Alperin") have moved for summary
judgment. Defendant First Colony Life Insurance Company ("First
Colony") has also moved to have the FOJP Defendants' cross-claims
In 1978, Meredith Facella was born to Mary Facella and her
then-husband Stephen Facella. (Joint Rule 56.1 Statement ("56.1
Stmt.") ¶ 1.)*fn1 Meredith Facella lived her entire life in
a vegetative state, and her parents, alleging medical
malpractice, filed suit against Defendant Montefiore (and other
individual defendants not named in the instant case) in Supreme
Court, Bronx County in 1980. (Id. ¶¶ 1, 2; Compl. ¶¶ 8, 9.)
The parties to the state court case settled the matter in a
Stipulation of Settlement ("Stipulation"), executed on September
17, 1982 by Stephen Facella. (56.1 Stmt. ¶ 3; Compl. ¶
11.)*fn2 This Stipulation was later incorporated into an
Infant's Compromise Order, dated October 8, 1982 ("Compromise
Order") and approved by Justice Louis Fusco, Jr. of the Supreme Court,
Bronx County as required by New York state law. (56.1 Stmt. ¶ 4;
Compl. ¶ 12; Compromise Order at 1 ("Comp. Order").) The parties
subsequently appeared before Justice Fusco at a November 17, 1982
Hearing ("Hearing") in which both attorneys indicated on the
record that they were effectuating a settlement agreement,
(11/17/82 Trans at 1-3), and in which a Release ("Release"),
signed by both Mary and Stephen Facella on November 15, 1982, was
given to opposing counsel. This Release specifically stated that:
STEPHEN FACELLA and MARY FACELLA, as parents and
natural guardians of MEREDITH FACELLA, . . . as
RELEASOR, in consideration of the amounts of money to
be paid pursuant to the Order of Judge Louis Fusco
entered on the 8th day of October, 1982. . . .
releases and discharges Montefiore Hospital . . .
from all actions, causes of action . . . claims, and
demands whatsoever, in law, admiralty or equity which
the . . . RELEASOR . . . ever had, now have, or
hereafter can, shall or may, have for, upon, or by
reason of any matter, cause or thing whatsoever from
the beginning of the world to the day of the date of
this RELEASE. . . .
/s/ Stephen Facella,
/s/ Mary Facella.
(Release, Nov. 15, 1982.)
The Compromise Order established and detailed a payment scheme
whereby Montefiore would purchase an annuity contract (the
"Annuity") to make monthly payments of approximately $4,166,
totaling $50,000 per annum, to Stephen Facella within 30 days of the date of the Compromise Order. (56.1 Stmt. ¶ 8;
Comp. Order at 3.) This payment was to last the longer of ten
years or Meredith's life. (56.1 Stmt. ¶ 8; Comp. Order at 4.)
The Annuity was also to provide for five lump-sum payments of
$150,000, paid to Stephen Facella and beginning five years after
the first monthly payment to Stephen Facella and then every five
years after that until 2007. (56.1 Stmt. ¶¶ 4-8; Comp. Order at
5-7.) These payments were guaranteed even if Meredith Facella
died before the payout dates. (56.1 Stmt. ¶ 6; Comp. Order at 6.)
According to the Compromise Order, each lump-sum payment:
shall be paid to STEPHEN FACELLA as parent and
natural guardian of MEREDITH FACELLA, jointly with an
officer of the [eight] respectively designated bank
as herein specified with payment to be distributed in
the following amounts:
$18,750.00 to be deposited in Dollar Savings Bank
located at 2530 Grand Concourse, Bronx, NY.
$18,750.00 to be deposited in Eastern Savings Bank
located at 888 Grand Concourse, Bronx, NY.
. . . [listing four other banks]
$18,750.00 to be deposited in Greenwich Savings Bank
located at 950 Third Avenue NY, NY.
(Comp. Order at 8.)
Justice Fusco further stipulated that "[a]ll payments are to be
deposited in the highest interest-bearing account to the credit
of the infant plaintiff, subject to the further Order of the
Court." (Id.) The Compromise Order stipulated that Meredith Facella was to be
named the beneficiary of the Annuity. In the case of her death,
the named beneficiaries would be both her parents. (Comp. Order
at 4-5, 7.) The Order also required Montefiore to guarantee all
the payments under the Annuity in the event of default by the
insurance company. (56.1 Stmt. ¶ 10; Comp. Order at 8.) Finally,
Stephen Facella was to apply to be appointed Conservator of
Meredith Facella's estate pursuant to Article 77 of the Mental
Hygiene Law. (56.1 Stmt. ¶ 11; Comp. Order at 9.)
In accordance with the Compromise Order, FOJP, Montefiore's
fiduciary, purchased an annuity from First Colony to make the
monthly and lump-sum payments as mandated by Judge Fusco. (56.1
Stmt. ¶ 9.) It appears that the monthly payments were disbursed
in a timely manner. (Kearney Decl., Exh. B. (indicating that
monthly "payments . . . commenced on December 20, 1982, which was
30 days after the receipt of the [C]ompromise [O]rder").) By the
time of the first lump-sum payment in 1987, all the banks listed
in the Compromise Order no longer existed. (Saretsky Aff., Exh.
G, Exh. 2 at 2.) FOJP made the payments solely to Stephen and by
1993, the first two lump-sum payments were made. (56.1 Stmt. ¶¶
13, 14, 17.)
Plaintiff, Stephen Facella, and their three other minor
children moved to Florida sometime in 1986 or 1987 (Pl. Depos. at 19.); however, Meredith Facella stayed in New York in the care
of St. Margaret's Children's Hospital in Albany New York. (56.1
Stmt. ¶ 16.) Her care was apparently paid for first by the
family's medical insurance and then by the state.*fn3
Lewis Alperin ("Alperin") was appointed as a referee pursuant
to the state's Mental Hygiene Law by court order. (56.1 Stmt. ¶
30.) Meredith Facella died on March 24, 1993 in New York. (56.1
Stmt. ¶ 15.) Several days after her death, Stephen Facella
brought Alperin the death certificate. (56.1 Stmt. ¶ 34.) From
1993 to 1996, Stephen Facella continued to receive the monthly
payments, which totaled $183,348 over the period. (56.1 Stmt. ¶
23.) At no time before 1996 did Stephen or Mary Facella, or
Alperin inform FOJP Defendants of Meredith Facella's death. (56.1
Stmt. ¶ 22.)
Stephen and Mary Facella entered into divorce proceedings in
Florida sometime in 1996. (56.1 Stmt. ¶¶ 19, 22.) At this time, FOJP Defendants became aware for the first time that the
monthly payments should not have been made. They accordingly
offset the total amount of those monthly payments ("post-death
monthly payments") from the lump-sum payment due in 1997; the
entire payment was offset. (FOJP Def. Memo. of Law at 8; Ellmer
Depos. at 52-56.)
In 1998, Plaintiff's divorce from her husband became final.
(56.1 Stmt. ¶ 19.) In their divorce settlement, Stephen Facella
gave Plaintiff his share of the remaining two payments in 2002
and 2007. (Id. ¶ 20.) Neither of those payments, to the Court's
knowledge, have been made.
Plaintiff then brought this diversity action pursuant to
28 U.S.C. § 1332, alleging four causes of action against the FOJP
Defendants. Specifically, she seeks monetary damages from
Defendants based on: 1) purported violations of the Compromise
Order, 2) breach of fiduciary duty, 3) breach of contract, and 4)
negligence. (Compl. ¶¶ 30-48.) On December 16, 1999, Plaintiff
dismissed her claims against First Colony with prejudice;
however, First Colony remains a defendant in the case because the
FOJP Defendants brought counterclaims against it. (Stip. of
Withdrawal, Dec. 16, 1999; FOJP Def. Ans. ¶¶ 78-81.) They also
served a Third-Party Complaint against Stephen and Alperin,
alleging a violation of the Appointment Order and a claim of
contribution or indemnity. (3d Party Compl. ¶¶ 48-58.) Finally, the FOJP Defendants obtained a default judgment against
Stephen Facella on April 30, 1999.
Pursuant to the Court's Scheduling Order, Plaintiff and FOJP
Defendants cross moved for Summary Judgment on all four claims
contained in the Complaint; Third Party Defendant Alperin moved
for Summary Judgment on Third Party Plaintiffs FOJP and
Montefiore's claims. (Sch. Order, Mar. 28, 2002.). Defendant
First Colony also moved for summary judgment on FOJP Defendants'
counterclaims. For the reasons that follow, Plaintiff's Motion is
DENIED; FOJP's Motion is GRANTED. Because FOJP Defendants' Motion
has been granted, the Court does not reach the merits of Alperin
or First Colony's Motions.
I. Summary Judgment Standard
A district court should grant summary judgment when there is
"no genuine issue as to any material fact," and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c); see also Hermes Int'l v. Lederer de Paris Fifth Ave.,
Inc., 219 F.3d 104, 107 (2d Cir. 2000). Genuine issues of fact
cannot be created by mere conclusory allegations; summary
judgment is appropriate only when, "after drawing all reasonable
inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party." See Heublein
v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (citing
Matsushita Elec. Industr. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587-88 (1986)).
In assessing when summary judgment should be granted, "there
must be more than a `scintilla of evidence' in the non-movant's
favor; there must be evidence upon which a fact-finder could
reasonably find for the non-movant." Id. (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A court must
always "resolv[e] ambiguities and draw reasonable inferences
against the moving party," Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 11 (2d Cir. 1986); however, the non-movant may not rely
upon "mere speculation or conjecture as to the true nature of the
facts to overcome a motion for summary judgment." Id. at 12.
Instead, when the moving party has documented particular facts in
the record, "the opposing party must, `set forth specific facts
showing that there is a genuine issue for trial.'" Williams v.
Smith, 781 F.2d 319, 323 (2d Cir. 1986) (quoting Fed.R.Civ.P.
56(e)). Establishing such facts requires going beyond the
allegations of the pleadings, as the moment has arrived "`to put
up or shut up.'" Weinstock v. Columbia University, 224 F.3d 33,
41 (2d Cir. 2000) (citation omitted). Accordingly, unsupported allegations in the pleadings cannot create a material issue of
For cases in which both sides move for summary judgment, a
district court need not grant judgment as a matter of law for
one side or the other. Schwabenbauer v. Bd. of Educ. of Olean,
667 F.2d 305, 313 (2d Cir. 1981). Instead, it must evaluate "each
party's motion on its own merits, taking care in each instance to
draw all reasonable inferences against the party whose motion is
under consideration." Id. at 314.
A. Violation of a Court Order
The first claim contained in the Complaint seeks monetary
damages for alleged violations of the Compromise Order. It is not
clear, however, whether such a violation is actionable here.
Plaintiff relies on Siroty v. Nelson, 75 N.Y.2d 957 (1990), in
which the New York Court of Appeals determined that a bank's
failure to comply with a court order in an interpleader action
involving competing claims over deposited funds rendered it
liable for the misappropriation of funds that purportedly
resulted from its noncompliance. Id. at 958-59. The lower court
had, pursuant to Civil Practice Law and Rules ("CPLR") § 1006,
issued a discharge order, which as the law explicitly states
"shall not discharge the stakeholder from liability to any
claimant until" such order "is complied with." CPLR § 1006(f). The Court of Appeals concluded that the
bank remained liable since it had failed to obey the directives
of the lower court and the statute explicitly did not release it
from liability. Id. at 959.
Plaintiff contends that a violation of a state court order
similar to the one in Siroty has occurred. It was, after all,
the failure of the FOJP Defendants to follow the Compromise Order
that allowed Stephen Facella to dissipate the funds. While they
"may have claims against Stephen Facella, they cannot avoid
liability to Mary Facella due to his conduct." (Pl. Memo. of Law
in Oppos. at 3.)
Siroty, however, is clearly inapposite to the facts of this
case. That case involved an interpleader action, which was
resolved by the Court rather than settled by the agreement of the
parties. It was also the same court in Siroty, rather than
different ones, that both issued the discharge order and refused
to relieve the bank's liability for non-compliance with the
initial order. More importantly, the defendant bank in Siroty
was liable for the violation of a court order only because §
1006's very text discharged liability only with direct compliance
with the court order.
Plaintiff's claim seeks to have this Court determine that the
state court's Compromise Order has been violated and to force
compliance with it. This is tantamount to a civil contempt claim, which is a court's attempt to vindicate "its
legal authority to enter the initial order" and "to give effect
to the law's purpose of modifying the contemnor's behavior to
conform to the terms required in the order." International
Union, UMWA v. Bagwell, 512 U.S. 824, 828, 114 S.Ct. 2252,
129 L.Ed.2d 642 (1994) (citing Hicks v. Feiock, 485 U.S. 624, 632,
109 S.Ct. 1423, 1431, 99 L.Ed.2d 721 (1988)).
Federal courts have long recognized that such claims may only
be decided by the court that issued them not only because of
concerns for inherent judicial power, see Fed.R.Civ.P. 4.1
Advisory Committee Notes ("Contempt proceedings, whether civil or
criminal, must be brought in the court that was allegedly defied
by a contumacious act."); Bagwell, 512 U.S. at 831 ("[C]ivil
contempt proceedings leave the offended judge solely responsible
for identifying, prosecuting, and sanctioning contumacious
conduct."), but also for issues of comity. See Juidice v.
Vail, 430 U.S. 327, 335-36, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977)
("A State's interest in the contempt process, through which it
vindicates the regular operation of its judicial system . . . is
an important interest. . . . [F]ederal-court interference with
the State's contempt process is `an offense to the State's
interest. . . .'"). Courts faced with such situations have
refused to decide the claim. See Hodge ex Rel. Skiff v.
Hodge, 66 F. Supp.2d 342, 345 (N.D.N.Y. 1999) (refusing to rule on the
contempt claim and remanding it to the state court that issued
it); Rhulen Agency, Inc. v. Ins. Co. of North America, 87 Civ.
7682 (RJW), 1992 WL 58932 at *1 (S.D.N.Y. Mar. 19, 1992) (finding
that the court was "not a proper forum to determine whether the
orders of the bankruptcy were willfully violated" and dismissing
Because Plaintiff's claim requires the Court to adjudicate a
contempt claim that stems from an order not its own, the Court as
a matter of law cannot hear the claim. The Court accordingly
DISMISSES the claim without prejudice.
B. Breach of Fiduciary Duty
The elements of a claim of breach of duty are that "there is
(1) a fiduciary relationship between the parties" and "(2) the
fiduciary duty has been breached." Cramer v. Devon Group, Inc.,
774 F. Supp. 176, 184 (S.D.N.Y. 1991) (citations omitted).
In determining when a fiduciary relationship exists, New York
courts conduct a fact-specific inquiry into whether a party
reposed confidence in another and reasonably relied on the
other's superior expertise or knowledge. United States v.
Chestman, 947 F.2d 551, 568 (2d Cir. 1991) (finding a fiduciary
relationship "exists when confidence is reposed on one side and
there is resulting superiority and influence on the other") (citation omitted); Wiener v. Lazard Freres & Co.,
672 N.Y.S.2d 8, 14 (1st Dep't 1998) (citing New York cases). From
this, a distinct legal duty arises because "[i]n relying on a
fiduciary to act for his benefit, the beneficiary of the relation
may entrust the fiduciary with custody over property of one sort
or another . . . and [the fiduciary] becomes duty-bound not to
appropriate the property for his own use." Chestman, 947 F.2d
at 569. Finally, "[a] cause of action for breach of fiduciary
duty which is merely duplicative of a breach of contract claim
cannot stand" William Kaufman Organization, Ltd. v. Graham &
James LLP, 703 N.Y.S.2d 439, 442 (1st Dep't 2000) (citations
FOJP Defendants argue that there is no evidence that any
fiduciary relationship existed here. They argue that there was no
confidential relationship between the parties and that at no time
did Plaintiff entrust FOJP Defendants with any property, trust,
Plaintiff remains silent in her papers on this claim. She makes
no arguments nor cites any case law that would demonstrate the
presence of an additional factor distinguishing this claim from
being merely duplicative of her breach of contract action.
Moreover, she cites no evidence that would support the existence
of a fiduciary relationship. Indeed, the Compromise Order arose
from a lawsuit in which Plaintiff and FOJP Defendants were adversaries hardly a
situation demonstrating a relationship of trust or confidence.
The Order by its terms, furthermore, does not create a
relationship of confidence between the parties. The Court finds
that no evidence of such a relationship ever existed.
Accordingly, the Plaintiff's Motion is DENIED and the FOJP
Defendant's Motion is GRANTED.
C. Breach of Contract
Plaintiff brings a breach of contract claim here under the
theory that the Compromise Order is a valid contract at New York
common law. Such a claim under New York state law requires "proof
of (1) a contract; (2) performance of the contract by one party;
(3) breach by the other party; and (4) damages." First Investors
Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998)
(citation omitted); Ledain v. Town of Ontario, 746 N.Y.S.2d 760,
763 (N.Y.Sup.Ct. 2002).
To form a contract under New York law, "there must be an offer,
acceptance, consideration, mutual assent and intent to be bound."
Register.Com, Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir.
2004) (citations omitted). Traditionally, settlements have been
treated as contracts for purposes of interpretation and
enforcement, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522,
525 (2d Cir. 1994) ("A settlement agreement is to be construed according to general principles of
contract law."); c.f. CPLR § 2104 Practice Commentaries C2104:3
("Nevertheless, a stipulation is a contract. . . ."), even in
cases when an agreement has not been fully executed by both
sides. Ciaramella v. Reader's Digest Ass'n, Inc., 131 F.3d 320,
323 (2d Cir. 1997).
FOJP Defendants argue that the Compromise Order does not meet
the requirements of an enforceable contract since it was not
executed by any of the parties and fails to establish the
required elements of offer, acceptance, and consideration.
Furthermore, the "Compromise Order contains provisions
specifically ordered by the Court and not negotiated by the
parties." (FOJP Def. Memo. of Law at 14.)
Plaintiff contends that the Compromise Order represents a
court-approved settlement in which the Facellas agreed with FOJP
Defendants to give up their legal claims in return for structured
monetary payments over a period of years. Such agreement,
Plaintiff argues, clearly demonstrates the necessary
prerequisites of an enforceable contract.
It is clear to the Court that the Compromise Order is signed by
the state court judge alone; no parties have signed the
Compromise Order. While stipulations of settlement are often
treated as contracts at New York law, the Compromise Order is not
such a stipulation merely so ordered by Justice Fusco but is a judicial order. (Comp. Order at 9 (ordering
various actions to be undertaken by the parties).)
Plaintiff does not cite to a single case in which a court has
determined that a court-drafted order constituted a contract. The
cases which the Court has found involve situations where the
parties themselves drafted a stipulation of settlement and one
party seeks to enforce that agreement as though it were a
contract. See, e.g., Collins v. Harrison-Bode, 303 F.3d 429,
431-32 (2002) (involving a disagreement over a settlement
agreement drafted by parties); Ciaramella 131 F.3d at 321
(seeking enforcement of a settlement agreement, which was drafted
by parties but unsigned by one party); Rexnord Holdings, 21
F.3d at 524 (involving the alleged violation of a stipulation
drafted and executed by the parties themselves).
Moreover, to permit the Plaintiff in this case to bring a cause
of action under a breach of contract theory would essentially
allow her to make an end run around the Court's previous
determination that it could not adjudicate a claim for a
violation of a state court order. If the Court cannot determine
whether part of the Order has been violated by FOJP Defendants'
compliance or noncompliance, the Court shall not do so under the
guise of contract law. Because the Compromise Order is not a contract, Plaintiff
cannot recover under a breach of contract claim. Accordingly, the
Plaintiff's Motion for Summary Judgment is DENIED and the FOJP
Defendants' Motion is GRANTED.*fn4
Under New York law, a plaintiff must establish three elements
to prevail on a negligence claim: "(1) the existence of a duty on
defendant's part as to plaintiff; (2) a breach of this duty; and
(3) injury to the plaintiff as a result thereof." Alfaro v.
Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000); Stagl
v. Delta Airlines, Inc., 52 F.3d 463 (2d Cir. 1995). It is
well-established, nevertheless, that "a simple breach of contract
is not to be considered a tort unless a legal duty independent of
the contract itself has been violated." Clark-Fitzpatrick, Inc.
v. Long Island R. Co., 70 N.Y.2d 382, 389 (1987); North Shore
Bottling Co. v. C. Schmidt & Sons, Inc., 22 N.Y.2d 171, 179
(1968) (holding a contracting party may not assert a tort claim
in addition to a breach of contract one unless the party alleged
additional factors that resulted in "a breach of a duty distinct
from, or in addition to, the breach of contract"); see also In re
Mid-Island Hosp., Inc., 276 F.3d 123 (2d Cir. 2002) (holding
that a party cannot sustain a claim against another based "on
negligence unless public policy imposed an additional duty on
Empire beyond those imposed by the contract and regulation");
U.S. for Use and Benefit of Evergreen Pipeline Const. Co., Inc.
v. Merritt Meridian Const. Corp., 95 F.3d 153, 162 (2d Cir.
1996) (dismissing a tort claim where no legal duty independent of
the contract existed). Such an independent legal duty "must
spring from circumstances extraneous to, and not constituting
elements of, the contract, although it may be connected with and
dependent upon the contract." Clark Fitzpatrick, 70 N.Y.2d at
389. Finally, in making such a determination, New York courts
have required that personal injury or loss result; otherwise,
"where the injury alleged is solely economic and where there was
no cataclysmic occurrence, New York courts have rejected
negligence claims." TD Waterhouse Investor Services, Inc. v.
Integrated Fund Services, Inc., 01 Civ. 8986 (HB), 2003 WL 42013
at *12 (S.D.N.Y. Jan. 6, 2003) (citation omitted).
FOJP Defendants claim that they owe no common law duty to
Plaintiff. Because of this, Mary Facella may not assert a
negligence claim. As with her fiduciary claim, Plaintiff cites no
case law or evidence in support of this claim. The Court agrees that Plaintiff has demonstrated no evidence in
the record nor any case law that would support a finding of any
common law duty here owed to Plaintiff by FOJP Defendants.
Furthermore, Plaintiff cannot proceed on a negligence theory in
reference to the Compromise Order as New York case law makes
explicitly clear that the absence of a legal duty independent of
the contract precludes the assertion of negligence. Indeed, there
is no enforceable contract even at issue here. Moreover, the
Court notes that Plaintiff seeks only economic damages, which do
not give rise to a tort claim in these circumstances. Plaintiff's
negligence claim, therefore, "is essentially seeking enforcement
of the bargain," and "the action should proceed under a contract
theory." Sommer v. Federal Signal Corp., 29 N.Y.2d 540, 552
(1992) (citations omitted).
Accordingly, Plaintiff's Motion for Summary Judgment is DENIED
on the negligence claim, and Defendant's Motion is
GRANTED.*fn5 E. Alperin's and First Colony's Motions for Summary Judgment
Alperin and First Colony both move the Court to grant them
summary judgment on the respective claims asserted against them
by FOJP Defendants. However, since Plaintiff's claims have been
dismissed as determined by the Court above, both Alperin's and
First Colony's Motions are essentially moot. Accordingly, the
Court declines to reach the merits of either Motion.
As discussed in this Opinion, the Court DENIES Plaintiff's
Motion for Summary Judgment and GRANTS FOJP Defendants' Motion
for Summary Judgment except as to Plaintiff's claim of a
violation of a court order, which is DISMISSED without prejudice.
Given this, the Court DISMISSES the case and DIRECTS the Clerk of
Court to close the docket in this case.