Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

John Parent, Individually and As v. State of New York; Jonathan

May 24, 2011

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.



The opinion of the court was delivered by: David N. Hurd United States District Judge

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

LEGAL STANDARDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Motion to Dismiss.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Motion for Summary Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

New Hartford. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Federal Claims under §§ 1983, 1985, 1986. . . . . . . . . . . . . . . . . . . . . . . . . . . 12

State Law Trespass Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

State Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Personal Involvement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Eleventh Amendment Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Judicial and Quasi-Judicial Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Judge Lippman. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 20

Judge Grow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Judge Merrell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Support Magistrate Getman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Judge Daley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Judge Walsh-Hood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Gasparini, Huether, and Crankshaw.. . . . . . . . . . . . . . . . . . . . . . . . . . . 26

County Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

County of Oneida. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Soldato and Chudyk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Attorney Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Federal Claims under § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Conspiracy Claims under § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

State Law Defamation Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

State Law Legal Malpractice Claims-Koslosky. . . . . . . . . . . . . . . . . . . . . . . . 38

Remaining State Law Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Other Issues.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Sebelius. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Hawse-Koziol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Costello, Kiehle, and Kerr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Remaining State Law Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Plaintiff's Cross-Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Leon R. Koziol*fn1 ("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").*fn2

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 Supervising Judge Martha Walsh-Hood ("Judge Walsh-Hood") (collectively "State defendants") also moved to dismiss pursuant to Rule 12(b)(6). Dkt. No. 68. Plaintiff opposed and the State defendants replied.

The Commissioner of the Oneida County Department of Social Services Lucille Soldato ("Soldato"); Oneida County Investigator Darlene Chudyk ("Chudyk"); and the County of Oneida ("County") (collectively "County defendants") moved to dismiss pursuant to Rule 12(b)(6). Dkt. No. 70. Plaintiff opposed and the County defendants replied.

Defendants Keith Eisenhut ("Eisenhut") and William Koslosky*fn3 ("Koslosky") (collectively "attorney defendants") separately moved for summary judgment pursuant to Rule 56. Dkt. Nos. 84, 89. Plaintiff opposed both motions and the attorney defendants replied.

Plaintiff cross-moved for a preliminary injunction, full or partial summary judgment, and a default judgment regarding non-appearing defendants. Dkt. No. 72. The County, State, and attorney defendants opposed. Plaintiff replied. All motions were considered on their submissions without oral argument.

No appearance has been entered nor motions made on behalf of defendant Kelly Hawse-Koziol*fn4 ("Hawse-Koziol" or "ex-wife"). Secretary of Health and Human Services for the United States Kathleen Sebelius ("Sebelius") appeared in the action but no motions have been made on her behalf.*fn5 Similarly, no appearances have been entered nor motions made on behalf of defendants New York State Tax Compliance Agent Donna Costello ("Costello"), Charlotte Kiehle ("Kiehle"), and unknown enforcement agents.

II. BACKGROUND

The facts upon which these actions are based are summarized briefly below. Further details will be set forth as necessary in the analysis of each claim. Facts set forth in the complaint will be taken as true for the purpose of motions to dismiss. For summary judgment motions, facts will be viewed in the light most favorable to plaintiff, with all inferences made in his favor.

Koziol, who was a duly-licensed attorney, carried on a private law practice specializing in civil rights matters. He practiced in both state and federal court.

Plaintiff and his ex-wife had two minor daughters. Pursuant to their private separation agreements, plaintiff and his ex-wife cooperated with each other as to the custody and support of the two daughters. After eighteen months of legal separation and compliance with their separation agreements, Koziol initiated a divorce action in New York state court in September 2005.

An uncontested application for a final decree of divorce was filed approximately four months after the divorce action was initiated. In February 2006, the state court judge before whom the application was pending refused to grant the divorce without written reasons. On October 8, 2008, a letter decision was issued by the state court denying the application based upon failure to provide net worth statements and conform to the state's child support standards law.

A custody and support contest then ensued. Plaintiff alleges that the requirements imposed upon him by the state court pertaining to child custody and support, which altered the agreement between he and his ex-wife, constructively terminated his fathering rights.

Koziol did not make the child support payments as required by the state court, arguing that the designation of his ex-wife as custodial parent and the court-ordered payments violated his federal constitutional rights. The state child support collection unit became involved, as did the attorney disciplinary committee. Various other state and local enforcement authorities also performed investigatory functions.

Plaintiff's delinquencies in child support obligations eventually resulted in the suspension of his driver's license, his license to practice law, and his passport privileges. Without a license to practice law, Koziol had to close his legal practice.

Over the last five years, over twenty-one state court judges have been assigned to hear plaintiff's child custody and support issues. A minimum of fifty orders in relation to those matters have been issued. Custody, support, and visitation issues remain unresolved although plaintiff is currently making a monthly payment toward child support and arrears.

III. LEGAL STANDARDS

A. Motion to Dismiss

When deciding a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff's factual allegations must be accepted as true and all reasonable inferences must be drawn in favor of the plaintiff to asses whether a plausible claim for relief has been stated. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-61, 127 S. Ct. 1955, 1964-67 (2007); Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1953 (2008) (holding that the pleading rule set forth in Twombly applies in "all civil actions"). The factual allegations must be sufficient "to raise a right to relief above the speculative level," crossing the line from "possibility" to "probability." Twombly, 550 U.S. at 557, 127 S. Ct. at 1966. Additionally, "a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S. Ct. at 1965. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).

Thus, in reviewing the sufficiency of the pleading, a court first may identify legal conclusions that "are not entitled to the assumption of truth." Id. at 1950. The court should then "assume [the] veracity" of "well-pleaded factual allegations . . . and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.