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Chesney v. Valley Stream Union Free School District No. 24

October 1, 2009

KEVIN CHESNEY AND LORRAINE CHESNEY, PLAINTIFFS,
v.
VALLEY STREAM UNION FREE SCHOOL DISTRICT NO. 24; VALLEY STREAM UNION FREE SCHOOL DISTRICT NO. 24 BOARD OF EDUCATION; JOSEPH CONRAD, PRESIDENT; CAROLE MEANEY, VICE PRESIDENT; HENRIETTA CARBONARO, PAUL DEPACE, ANTHONY IADEVAIO, FRANK NUARA, AND LAWRENCE TROGEL; EACH IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; EDWARD M. FALE, PH.D., SUPERINTENDENT OF SCHOOLS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; LISA K. CONTE, PRINCIPAL; CHARLES BROCEAUR, MAINTENANCE SUPERVISOR, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; STEPHEN HARAMIS, CUSTODIAN AND UNION REPRESENTATIVE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; LOCAL 74 SEIU; "JOHN DOES AND JANE DOES A THROUGH D", THE LATTER BEING PERSONS AND/OR ENTITIES UNKNOWN TO COMPLAINANT, AND THE NASSAU COUNTY DIVISION OF THE CIVIL SERVICE COMMISSION OF NEW YORK STATE, DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Presently before the Court is Plaintiff Kevin Chesney's ("Plaintiff")*fn1 application dated May 16, 2009 and filed May 17, 2009 (Docket No. 138). In that application, Plaintiff seeks reconsideration of the Court's Memoranda and Orders, dated May 7, 2009 (Dkt No. 135) and May 14, 2009 (Dkt. No. 136) and vacatur of the Judgment entered on May 15, 2009 (Dkt. No. 137). In the May 7, 2009 Memorandum and Order, the Court denied Plaintiff's applications for (a) reconsideration of the Court's Memorandum & Order dated March 31, 2009 and (b) the Court's recusal and the vacatur of all orders under Federal Rule of Civil Procedure 60. In the May 14, 2009 Memorandum and Order the Court denied Plaintiff's motion for leave to file his Second Amended Complaint.

Procedural Background

Kevin Chesney and Lorraine Chesney brought the present suitagainst Valley Stream Union Free School District No. 24 (the "District"); Valley Stream Union Free School District No. 24 Board of Education; Joseph Conrad; Carole Meaney; Henrietta Carbonaro; Paul DePace; Anthony Iadevaio; Frank Nuara; Lawrence Trogel; Edward M. Fale; Lisa K. Conte; Charles Broceaur; Stephen Haramis (hereinafter, collectively, "District Defendants"); Local 74 Service Employee International Union ("Local 74"); "John Does and Janes Does A through D"; and the Nassau County Civil Service Commission (the "Commission") in the Supreme Court of the State of New York County of Nassau alleging violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq.; the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. § 1166; the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12131 et seq; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 1983 and 1985; the Equal Protection clause of the Fourteenth Amendment; the "Eighth Amendment right to confront his accusers"; and six state law claims. The action was removed to this Court in November 2005.

Subsequent to the removal of the action from state court, the District Defendants moved to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b) (4), (5), and (6). Defendant Local 74 moved separately to dismiss the Amended Complaint pursuant to Rule 12(c).

By Memorandum and Order dated September 22, 2006, the Court (1) dismissed all claims against Defendant Local 74 and (2) granted the District Defendants' motion to dismiss the claims against them with the exception of Plaintiff's COBRA claim.

Thereafter, the Commission moved to dismiss the Amended Complaint as to the claims asserted against it. By Memorandum and Order dated April 30, 2007, the Commission's motion was granted.

As a result of the two decisions set forth above, the lone surviving claim was Plaintiff's COBRA claim against District Defendants.

On October 29, 2006, Plaintiff moved for an extension of time until November 8, 2006 to move for reconsideration of the Court's September 22, 2006 Memorandum & Order. The application was granted. No motion for reconsideration was filed. Rather, on November 12, 2006, Plaintiff's counsel filed an "affirmation of actual engagement." In that affirmation, counsel stated she would be on trial and therefore unavailable to move to amend the complaint, move for reconsideration, or to proceed with discovery in this case "until further notice" and requested that "all activity' in this case be temporarily stayed pending counsel's availability. On November 13, 2006 the Court denied a further extension of time to move for reconsideration and denied the request for a stay of these proceedings.

By application dated February 13, 2008, Plaintiff sought permission to file a motion for leave to serve his proposed Second Amended Complaint. The Court addressed that application in an Order dated April 2, 2008 ( the "2008 Order"). In its Order the Court noted that, in fact, the application sought two forms of relief, to wit (1) reconsideration of the September 22, 2006 Memorandum and Order, and (2) leave to amend the complaint to add three new causes of action. The Court denied the motion for reconsideration as untimely and because Plaintiff could not meet the strict standard for reconsideration. The Court granted Plaintiff leave to make a motion to serve the Proposed Amended Second Complaint with respect to three new causes of action proffered by Plaintiff, to wit (1) "fraud and record tampering;" (2) violations of the "ADA of 1990 and its New York counterpart;" and (3) violations of Section 504 of the Rehabilitation Act of 1973, as amended, and set a briefing schedule therefor. (See 2008 Order at 5-6.)

Pursuant to the briefing schedule, as amended, motion papers were filed on August 4, 2008. Thereafter, the Court discovered that Plaintiff's initial moving papers were absent from the motion papers filed electronically on August 4, 2008. Which is to say, only the opposition and reply papers were filed. Pursuant to the Court's direction, the moving papers for Plaintiff's motion were filed by counsel for Defendants on March 31, 2009. At the time of the Court's direction, Plaintiff was proceeding pro se and therefore the Court, by ECF order, directed that the missing moving papers be filed by Defendants. By letter dated April 1, 2009, Plaintiff informed the Court that the papers filed by Defendant were incomplete and provided copies of the documents omitted. (See Docket No. 123.)

By Memorandum and Order dated March 31, 2009 and entered on April 3, 2009, the Court granted the District Defendant's motion for summary judgment on Plaintiff's COBRA claim. However, the Court directed that the Order on the motion for summary judgment not take effect until forty-five days from the date thereof to allow for a decision on the motion to amend.

By Memorandum and Order dated May 7, 2009, the Court denied Plaintiff's application for (a) reconsideration of the Memorandum and Order, dated March 31, 2009; (b) for the Court's recusal; and (c) the vacatur of all orders pursuant to Rule 60 of the Federal Rules of Civil Procedure.

By Memorandum & Order dated May 14, 2009, the Court denied Plaintiff's motion for leave to serve a second amended complaint on the grounds that the motion to amend was untimely and the proposed amendments were futile. The Court also directed the Clerk of Court to close this case on or after May 15, 2009, the date on which the ...


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