Barry Nemhard v. New York City Office of Child Support

CourtDistrict Court, S.D. New York
DecidedSeptember 3, 2025
Docket1:25-cv-00073
StatusUnknown

This text of Barry Nemhard v. New York City Office of Child Support (Barry Nemhard v. New York City Office of Child Support) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barry Nemhard v. New York City Office of Child Support, (S.D.N.Y. 2025).

Opinion

E L E C T R O N I C A L L Y F I L E D DOC #: _________________ UNITED STATES DISTRICT COURT DATE FILED: 09/03/2025 SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------- X : : : BARRY NEMHARD, : : Plaintiff, : 1:25-cv-73-GHW : -v- : MEMORANDUM : OPINION & ORDER : NEW YORK CITY OFFICE OF CHILD : SUPPORT, : : : Defendant. : : : : ----------------------------------------------------------------- X GREGORY H. WOODS, United States District Judge: In August 2002, Defendant New York City Office of Child Support allegedly garnished the wages of Plaintiff Barry Nemhard without first providing him with notice or a hearing. As a result of his reduced wages, Plaintiff struggled financially and emotionally. He alleges that he was evicted, and that his car was repossessed. He also experienced emotional distress. Now, over two decades later, Plaintiff commenced this action under 42 U.S.C. § 1983, alleging that Defendant violated the due process clause of the Fourteenth Amendment by garnishing his wages without notice or an opportunity to be heard. Defendant moved to dismiss the case as time barred. Because more than twenty years have elapsed since Plaintiff knew or had reason to know that Defendant garnished his wages without prior notice, Defendant’s motion to dismiss is granted. However, Plaintiff is granted thirty days’ leave to amend his complaint. I. BACKGROUND A. Facts1 On or about August 1, 2002, the New York City Office of Child Support garnished Plaintiff Barry Nemhard’s wages without “prior notice or a hearing to determine the validity or necessity of the garnishment . . . .” Id. ¶ 6. As “a direct result of the garnishment,” he “suffered extreme financial hardship.” Id. ¶ 7. For example, Plaintiff “was unable to pay rent for his apartment,

leading to his eviction.” Id. He also alleges that his car was repossessed. Id. Plaintiff’s “inability to maintain control of his income deprived him of the means to meet his basic obligations, causing him severe emotional and financial harm,” including “long-term economic damages, pain, suffering, and emotional distress.” Id. ¶¶ 8–9. B. Procedural History Plaintiff commenced this lawsuit on January 3, 2025. He appears in this action pro se. He sues the New York City Office of Child Support. Id. ¶ 5. Plaintiff brings a claim under 42 U.S.C. § 1983 (“Section 1983”) based on Defendant’s alleged violation of the due process clause of the Fourteenth Amendment. Id. ¶¶ 10–15. Plaintiff alleges that “Defendant’s actions, including garnishing wages without notice or a hearing, deprives Plaintiff of due process as guaranteed under the Fourteenth Amendment,” and that “Defendant deprived Plaintiff of constitutional rights, including due process, by enforcing garnishments without proper legal procedures.” Id. ¶¶ 11, 14.2

1 The facts are taken from the complaint, Dkt. No. 1, and are accepted as true for the purposes of this motion. See, e.g., Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012). However, “[t]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 2 Plaintiff also purports to assert a claim directly under the Fourteenth Amendment based on the same allegations that underpin his Section 1983 claim. See Compl. ¶¶ 10–12. However, “when [Section] 1983 provides a remedy, an implied cause of action grounded on the Constitution is not available.” Pauk v. Bd. of Trs. of City Univ. of New York, 654 F.2d 856, 865 (2d Cir. 1981); see Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979) (“[T]here is no place for a cause of action against a municipality directly under the [Fourteenth] Amendment, because the plaintiff may proceed against the [municipal defendant] under [Section] 1983,” following the Supreme Court’s decision in Monell v. Department of Social Services, 436 U.S. 658 (1978)); see also Lehman v. Doe, 66 F. App’x 253, 254–55 (2d Cir. 2003) (summary order) (affirming the dismissal Because Plaintiff is proceeding pro se, the Court liberally construes the complaint to assert a claim under state law for a violation of the New York State Constitution’s due process clause. N.Y. Const. art. I, § 6. On April 24, 2025, Defendant filed a motion to dismiss. Dkt. No. 8; Dkt. No. 9. (“Mem.”). On May 27, 2025, Plaintiff filed his opposition. Dkt. No. 12 (“Opp.”). The motion was fully briefed when Defendant filed its reply on June 30, 2025. Dkt. No. 16 (“Reply”).

II. LEGAL STANDARD To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), “a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). To determine plausibility, courts follow a “two-pronged approach.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (alterations and internal quotation marks omitted). Second, a court determines “whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 679). Determining whether a complaint states a plausible claim is a “context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

of a claim when “[t]he only difference between the [dismissed claim] and the [other] causes of action is that in the [dismissed claim, Plaintiff] includes the Fourteenth Amendment as a basis for his action” and “when [Section] 1983 provides a remedy, an implied cause of action grounded directly in the Constitution is not available.”) (citing Pauk, 654 F.2d at 865). In this case, Defendant argues that Plaintiff’s claim is time barred. “The lapse of a limitations period is an affirmative defense that a defendant must plead and prove.” Michael Grecco Prods., Inc. v. RADesign, Inc., 112 F.4th 144, 149 (2d Cir. 2024), cert. denied, 2025 WL 1678984 (U.S. June 16, 2025). “However, a defendant may raise an affirmative defense in a pre-answer Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Id. “Of course, affirmative defenses, like the statute of limitations, ‘often require[ ] consideration of facts outside of the

complaint and thus [are] inappropriate to resolve on a motion to dismiss.’” Id. at 149–50 (alterations in original).

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Bluebook (online)
Barry Nemhard v. New York City Office of Child Support, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-nemhard-v-new-york-city-office-of-child-support-nysd-2025.