Kurtz v. Snyder

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________________________________ THOMAS KURTZ a/k/a THOMAS SHAY, Plaintiff, v. 9:22-CV-0487 (MJK) SNYDER, et al. Defendants. THOMAS KURTZ, Plaintiff, pro se JOSHUA T. TERRELL, Asst. Broome County Attorney, for Defendants MITCHELL J. KATZ, U.S. Magistrate Judge MEMORANDUM-DECSION AND ORDER Pro Se plaintiff Thomas Kurtz, a/k/a Tomas Shay, commenced this action under 42 U.S.C. § 1983, alleging that his constitutional rights were violated while incarcerated at the Broome County Jail. (Dkt. 47, Second Amended Complaint).

By Decision and Order entered on July 24, 2023, the Court accepted the Second Amended Complaint for filing, found that Plaintiff’s Fourteenth Amendment excessive force and failure-to-protect claims against Defendants Snyder, Barnhart, Valls, Tinker, and Wilcox survived sua sponte review and

required a response, and dismissed Plaintiff’s remaining claims without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). (Dkt. 50). On May 17, 2024, Defendants moved for summary judgment (Dkt. 86) which Plaintiff opposed (Dkt. 89). On February 28, 2025, the Court issued an

Order and Report-Recommendation (“R&R”) that Defendants’ motion for summary judgment: (1) be denied as to Plaintiff’s failure to exhaust his administrative remedies; (3) be denied as to Plaintiff’s Eighth Amendment

excessive force and failure to intervene claims as to Defendants Snyder, Barnhart, and Sergeant Wilcox; and (3) be granted as to Plaintiff’s excessive force and failure to intervene claims as to Defendants Tinker and Valls. (Dkt. No. 99). Judge Hurd issued an Order On Report & Recommendation on March 31, 2025, adopting and

accepting the R&R in all respects. (Dkt. 101). On April 16, 2025, Plaintiff filed a Consent to Exercise of Jurisdiction By United States Magistrate Judge. (Dkt. 105).

Presently before the Court is Plaintiff’s “Order to Show Cause for Preliminary Injunction and Temporary Restraining Order” (“OTSC”) (Dkt. 110) which Defendants oppose (Dkt. 112).1 Plaintiff seeks the following relief: [E]njoining the defendants, their successors in office, agents and employees and all other persons acting in concert and participation with them, are restrained from contact with Thomas Kurtz, refrain from gossip with other corrections officers and inmates to cause

1 The Court notes that paragraphs 1-9 of defense counsel’s July 7, 2025 affidavit is a verbatim recitation of the Court’s May 5, 2025 text order in this matter. (Dkt. 108). Counsel fails to properly attribute credit for the content of those paragraphs. This is the second time that the Court is pointing out counsel’s lack of detail in his submissions to the Court. See (Dkt. 99, fn. 3). hardship while waiting for trial and while he will be at Broome County for his trial and appeal soon.

(Dkt. 110)

The OTSC also seeks a temporary restraining order:

[E]ffective immediately and pending the hearing and determination of this order to show cause, the defendants, Snyder & Wilcox et. al. and each of their officers, agents, employees, and all persons acting in concert or participation with them, are restrained from, Snyder[’]s posse’s lawsuit pending against Thomas Kurtz in Broome County NY.

(Id.). This is Plaintiff’s third request for the same relief. Plaintiff’s prior two motions were denied. (Dkts. 51, 60, 107, 108). Plaintiff’s current application is similarly without merit and is denied in its entirety. First, Plaintiff’s application is procedurally defective. Northern District of New York Local Rule 7.1(e), which governs motions for temporary restraining orders, states that all such motions “shall conform to the requirements set forth in Local Rule 7.1(b)(1) and (2),” which require the filing of a memorandum of law and an affidavit. Local Rule 7.1(e) also requires that unless the moving party shows good cause why reasonable advance notice “cannot be used,” the moving party must give notice of the motion for a temporary restraining order to the other parties. Here, although Plaintiff filed a memorandum of law, it is titled “Plaintiff’s Memorandum of Law in Opposition to Defendants Motion for Summary Judgment.” (Dkt. 110-2). Plaintiff’s submission is more appropriately geared towards a Rule 56 motion than it is to his current request for relief. Absent from

Plaintiff’s submission is any argument that addresses the elements necessary for injunctive relief. Also, Plaintiff’s “Affidavit in Support of Temp. Restraining ORDER” (Dkt. 110-1) is defective because it is not duly notarized or otherwise

indicates that it was sworn to under the penalty of perjury. See Prudential Ins. Co. of Am. V. Payne, No. 20-CV-3683, 2024 WL 707299 (E.D.N.Y. Feb. 20, 2024). Plaintiff’s second affidavit, however, sworn to on January 29, 2025 and filed on June 13, 2025, appears to be properly notarized but is completely devoid of any

factual allegations supporting the requested relief. Second, Plaintiff has not shown a likelihood of success on the merits of his claim. Aside from the issue of immediacy, the legal standard for the issuance of a

TRO is the same as for a preliminary injunction. See Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (“It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.”). A party seeking a preliminary injunction must demonstrate: “(1) irreparable harm in

the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.” Merkos L’Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir. 2002). Plaintiff cannot make any such showing here.

Liberally construed, Plaintiff’s application seeks to enjoin Defendants and an unidentified group of individuals at Auburn Correctional Facility (Dkt. 110-3) where he is currently housed “while waiting for trial” and while he is at “Broome

County for his trial and appeal [].” (Dkt. 110). Although the purported OTSC plausibly articulates the specific relief Plaintiff seeks, his submission provides no factual detail to support the same. Plaintiff’s submission is silent as to any actual harm he has or may be currently enduring at Auburn Correctional Facility, and if

he is, whether that harm is in any manner related to Plaintiff’s claims in this action. Plaintiff’s request for injunctive relief as to any future confinement at Broome County Jail is also without merit because it is based purely on speculation,

which is insufficient, as a matter of law, to support the same. See No. 5:11-CV- 1216 (MAD/ATB), Topolski v. Cotrell, 2011 WL 6934493, at *1 (N.D.N.Y. Oct. 28, 2011) (“Speculative harm is insufficient to establish irreparable harm.”) (citation omitted). As an initial matter, Plaintiff and Defendants are not currently in

proximity to one another. Also, glaringly absent from Plaintiff’s filing is any concrete proof that he will at some future date be housed at the Broome County Jail and if he is, that he will be subjected to physical harm from Defendants or

anyone else at the Broome County Jail. Plaintiff’s perceived need for injunctive relief is also belied by the affidavit submitted by Lucas Finely, Esq., Deputy District Attorney for Broome County,

who states that Plaintiff “has no pending trial involving the Broome County District Attorney’s Office” and that although Plaintiff filed a Notice of Appeal on June 13, 2023 regarding Indictment 21-321, the appeal has not been perfected.

(Dkt. 112-1, ¶¶, 2, 3 fn. 1). Deputy District Attorney Finely also notes that to the extent any oral argument is necessitated by Plaintiff’s July 3, 2025 pro se motion to vacate his conviction related to Indictment 21-321, Plaintiff would be produced “from state prison for said appearance and then promptly returned. His presence in

Broome County is otherwise not needed.” (Id.). Finally, Plaintiff’s request that Defendants be enjoined from “contact with [him]” and from “gossip[ing] with other corrections officers and inmates,”

necessarily requires the Court to interfere with the operations of the prisons which it is reluctant to do. See Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970) (“Although Federal Courts are reluctant to interfere in the normal processes of state prison administration, they will not hesitate to intervene when action is

clearly necessary to protect a prisoner’s constitutional rights.”). Plaintiff has not made any showing that the Court’s involvement with the prison system is currently warranted. Unable to prove that he is likely to succeed on the merits, Plaintiff’s application for injunctive relief, even if procedurally proper, is nevertheless denied without prejudice. Plaintiff may choose to renew his motion at a later date if the perceived harm becomes imminent and not speculative, and if he can demonstrate a likelihood of success on the merits. Plaintiff is reminded that if he renews his motion, all filings must comply with the Local Rules for the Northern District of New York. WHEREFORE, for the reasons set forth above, it is hereby ORDERED, that Plaintiff’s motion for injunctive relief (Dkt. 110) is DENIED WITHOUT PREJUDICE; and it is further ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on Plaintiff at the address the Court has on file, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).

Dated: July 11, 2025

U.S. Magistrate Judge

2024 WL 707299 (1) the Motion; (2) Kema's Opposition to the Motion (ECF Only the Westlaw citation is currently available. No. 82); (3) Payne's Rule 56.1 Statement (Payne's 56.1 United States District Court, E.D. New York. Stmt., ECF No. 86); (4) Kema's Rule 56.1 Counterstatement with additional facts (Kema's 56.1 Counterstmt., ECF No. The PRUDENTIAL INSURANCE 88); (5) Payne's Rule 56.1 Counterstatement (Payne's 56.1 COMPANY OF AMERICA, Plaintiff, Counterstmt., ECF No. 89); and Kema's December 27 v. supplemental letter addressing standing (Am. Standing Letter, Jessica PAYNE, et al., Defendants. ECF No. 95). Additionally, at the December Hearing, the Court afforded both parties an opportunity to expand upon 20-CV-3683 (JS)(JMW) their arguments in support of, and in opposition to, summary judgment.2 Signed February 20, 2024 Attorneys and Law Firms 2 The Court finds the legal arguments: (1) contained in the parties’ Motion and Opposition; (2) For Cross-Claimant Jessica Payne: Jessica A. Payne, Pro Se, contained in Kema's Amended Standing Letter; 2625 Alcatraz Avenue, #103, Berkeley, California 94705. and (3) made on the record at the December Hearing, in conjunction with (4) the parties’ Rule For Cross-Defendant Erufadica Kema: David Schachter, Esq., 56.1 statements and counterstatements, sufficiently Law Offices of Schachter, P.C., 74-09 37th Avenue, Jackson preserves the losing party's position for purposes Heights, New York 11372. of appeal. The Court's assessment is buttressed by the fact that, after affording Kema an additional opportunity to address, in writing, MEMORANDUM & ORDER Payne's standing arguments, Kema's Standing Letter largely consisted of arguments copied and SEYBERT, District Judge: pasted from her Opposition, which failed to specifically rebut the standing issues raised by *1 Jessica A. Payne (“Payne”) moves pursuant to Rule 56 Payne. Cf. In re Best Payphones, Inc., 450 F. App'x of the Federal Rules of Civil Procedure (“Rule”) seeking 8, 15 (2d Cir. 2011) (summary order) (affirming summary judgment (hereafter, the “Motion”) (ECF No. 79),1 district court's judgment because the district court against Erufadica Kema (“Kema”). For the reasons that did not abuse its discretion in treating a pre-motion follow, Payne's Motion is GRANTED. letter as the dispositive motion when the losing party “had the opportunity to make the arguments 1 At the December 14, 2023 Motion Hearing (the necessary to preserve its [position] for appellate “December Hearing”), the parties were put on review” and “ha[d] not pointed to any additional notice that the Court could construe Payne's argument it would have made had it filed full pre-motion conference letter, the parties’ 56.1 motion papers”). statements, and any argument made on the record Unless otherwise stated, a standalone citation to a Rule as the motion itself (see Dec. 13, 2023 Elec. Order 56.1 Statement or Counterstatement denotes that either the Scheduling Proceeding.) Thus, in its discretion, parties agree, or the Court has determined, the underlying the Court does so, construing Payne's pre-motion factual allegation is undisputed. Further, citation to a party's conference request as the motion itself. Going Rule 56.1 Statement or Counterstatement incorporates by forwards, the Court refers to the pre-motion reference the document(s) cited therein. The Court deems true conference request as the “Motion.” undisputed facts averred to in a party's Rule 56.1 statement and to which the opposing party cites no admissible evidence in rebuttal. See Steward v. Fashion Inst. Of Tech., No. 18- FACTUAL BACKGROUND CV-12297, 2020 WL 6712267, at *8 (S.D.N.Y. Nov. 16, I. Materials Considered 2020) (“[P]ursuant to Local Civil Rule 56.1 [the movant's] party] has failed to specifically controvert them with citations did “not designate any beneficiaries, or if all beneficiaries to the record.” (quoting Knight v. N.Y.C. Hous. Auth., No. 03- predecease[d] [her], any balance remaining [would] be paid to CV-2746, 2007 WL 313435, at *1 (S.D.N.Y. Feb. 2, 2007))); [Bollmann's] estate.” (Information Request Forms, ECF Nos. Lumbermens Mut. Cas. Co. v. Dinow, No. 06-CV-3881, 2012 1-2, 1-3, 1-4, Exs. B-D, attached to Prudential Complaint.) WL 4498827, at *2 n.2 (E.D.N.Y. Sept. 28, 2012) (“Local Rule 56.1 requires ... that disputed facts be specifically Between September 2010 and May 2016, Bollmann “made controverted by admissible evidence. Mere denial of an various designations and changes to the beneficiaries of opposing party's statement or denial by general reference her Alliance Account.” (Payne 56.1 Stmt. ¶ 2.) The first to an exhibit or affidavit does not specifically controvert designation, made in September 2010, named “two of Ms. anything.”) “Additionally, to the extent [a party's] 56.1 Bollmann's sisters-in-law, Danyula Bollman and Dorothy statement ‘improperly interjects arguments and/or immaterial Kema, and a cousin-in-law, Sonya Mueller,” as primary facts in response to facts asserted by [the opposing party] beneficiaries. (Id. ¶ 3(a).) Then, in May 2014, Bollman without specifically controverting those facts,’ the Court designated Payne as a secondary beneficiary to the Alliance has disregarded [such] statement[s].” McFarlance v. Harry's Account.3 (Id. ¶ 3(d).) However, in July 2014, Payne Nurses Registry, No. 17-CV-6360, 2020 WL 1643781, at *1 was named a primary beneficiary of the Alliance Account, n.1 (E.D.N.Y. Apr. 2, 2020) (quoting Risco v. McHugh, 868 together with Sabina Assmus, and Kirsten Assmus. (Id. ¶ F. Supp. 2d 75, 85 n.2 (S.D.N.Y. 2012)). Moreover, to the 3(e).) The final beneficiary designation made by Bollmann, extent any party responds she “lacks information sufficient in May 2016, named Sabine Assmus, and Jessica Payne as to form a belief as to the truth of” any statement which the co-primary beneficiaries to the Alliance Account. (Id. ¶ 3(f).) opposing party has supported with citations to the record, the Each beneficiary was entitled to 50% of the proceeds. (Id.) Court deems such statement admitted. See Ezagui v. City of In that designation, Bollmann also named Kirsten Assmus N.Y., 726 F. Supp. 2d 275, 285 n.8 (S.D.N.Y. 2010) (deeming and Paul Engola as secondary beneficiaries to the Alliance statements in party's 56.1 statement admitted where opposing Account. (Id.) party responded with assertions that it denied knowledge and information sufficient to form a belief as to the truth of 3 Between September 2010 and May 2014 there were the allegations); AFL Fresh & Frozen Fruits & Vegetables, two intervening changes to the beneficiaries of the Inc. v. De-Mar Food Servs. Inc., No. 06-CV-2142, 2007 Alliance Account (see Payne 56.1 Stmt. ¶¶ 3(b)- WL 4302514, at *4 (S.D.N.Y. Dec. 7, 2007) (“A nonmovant (c)). Neither of these intervening changes named cannot raise a material issue of fact by denying statements Kema as a beneficiary (id.) which the moving party contends are undisputed for lack of ‘knowledge and information’ in part because discovery Payne is Bollmann's first cousin; the two first met “in or allows the party opposing summary judgment to obtain the around 2005 at a cousin's Christmas party.” (Id. ¶ 4.) After facts necessary to determine whether it must admit or deny the death of Payne's father in 2013, Payne's and Bollmann's them.” (quoting Stepheny v. Brooklyn Hebrew Sch. for relationship grew closer “as they attended salsa and flamenco Special Child., 356 F. Supp. 2d 248, 255 n.4 (E.D.N.Y. 2005) dance classes together.” (Id. ¶ 7.) On average, when Bollmann (internal quotations omitted))). was alive, Bollmann and Payne communicated with each other on a weekly basis. (Id. ¶ 8.) Additionally, when Payne was in New York, the two would frequently dine or shop II. Facts together. (Id. ¶ 9.) Bollmann and Payne also traveled together internationally, numerous times, “including to Hamburg, A. The Parties and the Alliance Account Germany in or around 2014, Frankfurt and Hong Kong in *2 Giselle Bollmann (hereafter, “Bollmann”) “was the or around 2016, and Scotland in 2017 and 2018.” (Id. ¶ named owner of a life insurance account” (hereafter, 10.) Payne did not have any conversations with Bollmann the “Alliance Account”) “opened and funded by Plaintiff about the Alliance Account or Bollmann's designation of Prudential Insurance Company of America” (hereafter, beneficiaries to same. (Id. ¶ 11.) “Prudential”) (Payne 56.1 Stmt. ¶ 1.) Through an Information Request Form, in the event of her death, Bollmann could Kema is Bollmann's half-sister. (Id. ¶ 12.) Despite designate beneficiaries who would receive any remaining periodically listing other siblings as beneficiaries to the (Id. ¶¶ 12-13.) Kema does not know why Bollmann never Omodi-Engola's Death Certificate, ECF No. 86-15, Ex. 15, listed her as a beneficiary. (Id. ¶ 40.) Regarding the extent attached to Payne 56.1 Stmt.) of her contacts with Bollmann, Kema testified she could not recall the nature and frequency of her contact, but that the two On or around April 18, 2018, Bollmann died intestate. (Id. ¶ contacted each other “many times.” (Id. ¶ 38.) When asked, 14.) Bollmann was survived by her biological father, Phillip Kema was unable to provide details “about ... Bollmann's E. Payne (“Phillip”) (see Phillip Assignment, Ex. G, ECF handling of her own finances and daily habits after the death No. 88-7, attached to Kema Counterstmt). Bollmann's death of [Bollmann's] husband”, and further testified such issues certificate lists her cause of death as “undetermined” and the would “be brought up by the appropriate experts in a court of manner of her death as “natural.” (Id.) It makes no mention law.” (Id. ¶ 36.) of dementia, although autopsy findings were not available to complete the cause of death. (Id.; see also Kema Counterstmt. ¶ 14.) “On or around May 16, 2018, ... Kema wrote a letter B. Bollmann's Alleged Dementia and Death to Prudential requesting that Prudential not release the funds Kema lacked personal knowledge concerning Bollmann's of the Alliance Account to any listed beneficiary, alleging,” mental competency and capabilities or any of Bollman's inter alia, that the designation was made as the result of fraud medical treatments or examinations. (Id. ¶ 42.) Similarly, and/or undue influence. (Id. ¶ 15.) On June 19, 2018, Payne Kema did not have any personal knowledge of, nor could completed and returned a claim form, which was sent to her point to any evidence that, Bollmann suffered from dementia by Prudential, asserting her claim for the account balance. (Id. or had received a diagnosis of dementia. (Id. ¶ 44.) ¶ 16.) When asked why she believed Bollmann had suffered from dementia, Kema testified that her family “has an extensive On or about July 3, 2018, the State of Connecticut history with dementia.” (Id. ¶ 45.) When asked to expound Probate Court (the “Probate Court”) “granted administration upon the dementia symptoms Kema observed in Bollmann, of the estate of ... Bollmann to ... Payne.” (Id. ¶ Kema's response was that her family “had a large extensive 17.) As Bollmann's surviving biological parent, Phillip history of dementia with many different symptoms.” (Id. ¶ “acknowledge[d], authorize[d] and assign[ed]” his niece, 46.) When pressed with specific questions about Bollmann's Payne, “to make all necessary arrangements” for Bollmann; mental capacity and her daily habits, Kema was unable to Phillip acknowledged Bollmann had previously assigned provide specific details. (Id. ¶ 47.) Payne “Power of Attorney and Executor to be in charge of” Bollmann's “affairs during her living incapacitation and *3 Relatedly, “[d]uring her first deposition, ... Kema was death.” (See Phillip Assignment.) On August 10, 2018, asked if all documents she planned to use in the case through Counsel, Kema submitted another letter to Prudential had been provided;” Kema responded in the affirmative. representing that she was preparing to file Letters of (Id. ¶ 50.) Since Kema continuously referred to “notes” Administration for Bollmann's estate and that there was she needed to review to answer certain questions at her a hearing scheduled in the Probate Court pertaining to second deposition, Payne “again requested, on the record, Kema's objections to Payne's application for Letters of that ... Kema produce any and all documents” showing Administration. (See Payne 56.1 Stmt. ¶ 21; see also Aug. Bollmann suffered from dementia “and any documentation 10, 2018 Letter to Prudential, Ex. I, ECF No. 1-9, attached regarding [Bollmann's] health that pertained to the case.” (Id. to Prudential Complaint.) Kema further represented she had ¶ 51.) In response, Kema provided: (1) a death certificate located a doctor who could testify to Bollmann's “dementia for Bollmann's mother, Rosalie Omodi-Engola (“Rosalie”); at the time of the beneficiary designation.” (Aug. 10, 2018 (2) two medication lists for Rosalie; and (3) the death Letter to Prudential.) certificate for Bollmann's uncle, Williams Stephens. (Id. ¶ 52.) Williams Stephens’ Death Certificate indicates Dementia On August 28, 2018, the Probate Court held a hearing was a significant contributing condition to his death but in connection with the administration of the Bollmann not the underlying cause. (See Williams Stephens’ Death estate. (Payne 56.1 Stmt. ¶ 19.) Kema represents, but Certificate, ECF No. 86-15, Ex. 15, attached to Payne 56.1 cites no evidence confirming, that “[t]he purpose of the Stmt.) Rosalie's Death Certificate makes no mention of August 28, 2018 hearing ... was to discuss the merits dementia; rather, it states the immediate cause of death was of ... Payne's petition and whether she was entitled to be Kema contends abandoned Bollmann and was therefore an affidavit.”). “estranged father.” (See Kema Counterstmt. ¶ 18.) As part of her efforts to challenge Payne's appointment as administrator, Kema “submitted to the Connecticut Probate Court a series of PROCEDURAL HISTORY affidavits[ 4 ] signed between May 2018 and July 2018 from *4 On August 13, 2020, Prudential brought the instant numerous individuals.” (Payne 56.1 Stmt. ¶ 18.) The findings interpleader action, asking the Court to determine to whom of the Probate Court are not part of the record; however, it the benefits of the Alliance Account should be paid. (Id. is undisputed that, after the hearing, and continuing to the ¶ 24.) In response, Kema alleged: first, the designations present, Payne remains administrator of Bollmann's estate. made by Bollman were made under duress, undue influence, (Id. ¶ 19; see also Dec. Hr'g Tr. 6:16-21.) and/or with a lack of capacity; and, second, Payne had been improperly or fraudulently appointed administrator 4 While the Court declines to address the merits of Bollmann's estate since Payne had not notified “all of Kema's claims (see infra Part.II), had it done necessary parties” of the administration proceedings. (Id. ¶ so, the “affidavits,” specifically those submitted 25; see also Kema Answer, ECF No. 10.) Kema requested by Dr. Gloria Lindsey Alibaruho (“Alibaruho”), “judgment invalidating the beneficiary designations made would have been disregarded. (See First Alibaruho by ... Bollmann on or about July 29, 2014 and May 14, 2016” Affidavit, Ex. 6, ECF No. 86-6, attached to Payne and settlement and adjustment of the claims in her favor. 56.1 Stmt.; Second Alibaruho Affidavit, Ex. 10, (Kema Answer at 2.) On December 28, 2020, Payne filed ECF No. 86-10, attached to Payne 56.1 Stmt.) her Answer to Prudential's Complaint (see Payne Answer, Neither of Alibaruho's purported “affidavits” is ECF No. 15), which she amended on January 19, 2021 (see presented in admissible form. Indeed, there is no Payne Am. Answer, ECF No. 22.) Payne argued Kema did indication that the statements contained in the not have standing to challenge the beneficiary designations “affidavits” were made under penalty of perjury; because she was never a listed beneficiary and is not an heir likewise, there is no jurat or “sworn to me to Bollmann's estate; Payne averred the proper heirs were before” language on the notary stamps affixed properly notified as to the estate's administration. (Id. ¶ 26; to Alibaruho's statements. Courts in this Circuit see also Payne Answer, ECF No. 22.) Further, Payne “cross- decline to consider such unsworn statements at the claimed against ... Kema arguing that the probate matter was summary judgment stage. barred by res judicata, as the Connecticut Probate Court had By definition, an affidavit is a sworn document, rejected ... Kema's claims[.]” (Id.) declared to be true under the penalties of perjury.... To be considered in connection with On March 18, 2022, Payne filed a pre-motion conference a summary judgment motion, the rule requires request seeking leave to file a summary judgment motion. that submissions in the form of statements Kema opposed the pre-motion conference request. On July be prepared as affidavits.... Failure to submit 1, 2022, the Court directed the parties to file their respective materials in this form will cause the submission Rule 56.1 statements, and counterstatements (see July 1, 2022 to be disregarded by the court in its consideration Min. Entry, ECF No. 84), which they did. On October 4, 2023, of the pending motion. the Court scheduled the December Hearing and put the parties DeMars v. O'Flynn, 287 F. Supp. 2d 230, on notice that, at the Court's discretion, it could construe 242 (W.D.N.Y. 2003) (quoting 11 MOORE'S the parties’ pre-motion submissions, 56.1 statements, and FEDERAL PRACTICE, § 56.14(1)(b) (Matthew arguments made on the record as the summary judgment Bender 3d ed.)); see also Persaud v. URS Midwest, motion itself. (See Oct. 4, 2023 Elec. Order Scheduling Inc., No. 06-CV-3119, 2007 WL 4556908, at *6 Proceeding.) During the December Hearing, in addition to (E.D.N.Y. Dec. 21, 2007) (noting that medical expounding upon the arguments made in her pre-motion reports were “not presented in an admissible form” submissions, Payne reiterated her standing arguments which because “[t]here is no jurat, or ‘sworn to me were previously raised in her Answer and Amended Answer. before’ language, on the notary stamp affixed to the (See Dec. Hr'g Tr. 4:1-8:14.) The Court permitted Kema the reports”); cf. Flowers v. Abex Corp., 580 F. Supp. opportunity to oppose Payne's standing argument; however, As such, the Court adjourned the December Hearing to allow dementia. the filing of supplemental briefing detailing the basis for Per New York state law, if a party alleges Kema's standing to bring her claims notwithstanding she was undue influence, it must show ‘that the influence never a listed beneficiary or Bollmann's heir. (See Dec. Hr'g exercised amounted to a moral coercion, which Tr. 16:17-25.) A status conference was scheduled in this restrained independent action and destroyed free case for February 2, 2024. (See Dec. Hr'g Tr. 23:25-24:20.) agency, or which, by importunity which could On December 27, 2023, Kema filed her Standing Letter.5 not be resisted, constrained the [victim] to do that Upon reviewing Kema's Standing Letter, the Court adjourned which was against his free will and desire, but the February 2 status conference, sine die, as it determined which he was unable to refuse or too weak to it did “not require any further filings, or arguments” to resist. render its decision (see Jan. 31, 2024 Elec. Order Adjourning Metropolitan Life Ins. Co. v. Giscombe, 19- Proceeding.)6 CV-4463, 2022 WL 2467066, at *9 (E.D.N.Y. Jan. 21, 2022) (quoting Wilton Reassurance Life Co. of N.Y. v. Smith, 21-CV-5131, 2015 WL 631973, 5 An Amended Standing Letter was filed the same at *15 (E.D.N.Y. Feb. 13, 2015)). Here, Kema day which was, in substance, identical to the provides no affidavit or testimony from any witness original. that contradicts Payne's testimony that Payne and 6 The Court notes that even had it considered the Bollmann never discussed the Alliance Account or Bollmann's designations to same. It is axiomatic merits of Kema's claims, it would have granted that if Bollmann and Payne never discussed the summary judgment to Payne. Indeed, beyond: (1) challenged beneficiary designations Payne could Kema's speculative statements that she observed not have exercised undue influence over Bollmann general symptoms of dementia in Bollmann, and to force Bollmann into changing them. Kema's (2) Alibaruho's unsworn “affidavit”, which the undue influence claim is purely speculatory, such Court would have declined to consider (see supra speculatory and unsupported assertions at this stage n.4), there was no evidence in the record that cannot create triable issues of fact. Bollmann suffered from dementia or had received a diagnosis of dementia, such that, Bollmann's “mind was so affected as to render [her] wholly DISCUSSION and absolutely incompetent to comprehend and understand the nature of the transaction.” See N.Y. I. Legal Standard Life Ins. Co. v. Brown, No. 19-CV-9437, 2021 WL 325857, at *6-7 (S.D.N.Y. Feb. 1, 2021); see also A. Summary Judgment id. (Applying the contract standard to determine *5 Pursuant to Rule 56(a), “[a] court shall grant summary whether decedent was mentally competent to judgment if the movant shows that there is no genuine dispute change the beneficiaries of his life insurance policy as to any material fact and the movant is entitled to judgment and finding that “[u]nder the contract standard as a matter of law.” FED. R. CIV. P. 56(a). “A fact is ‘material’ a person is presumed ‘competent at the time of for these purposes when it might affect the outcome of the the performance of the challenged action and the suit under the governing law.” Adamson v. Miller, 808 F. burden of proving incompetence rests with the App'x 14, 16 (2d Cir. 2020). Additionally, “ ‘[a]n issue of party asserting incapacity.’ ” (quoting Genworth fact is ‘genuine’ if the evidence is such that a reasonable jury Life Ins. Co. of N.Y. v. Dwaileebe, No. 12- could return a verdict for the nonmoving party.’ ” Id. (quoting CV-6330, 2017 WL 1046332, at *6 (W.D.N.Y. Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005)). “If, Mar. 20, 2017))). as to the issue on which summary judgment is sought, there is Likewise, Kema's undue influence claim can any evidence in the record from which a reasonable inference largely be reduced to three arguments, that is: could be drawn in favor of the opposing party, summary (1) Payne was given a power of attorney over judgment is improper.” Hetchkop v. Woodlawn at Grassmere, Bollmann and owed her a fiduciary relationship; Inc., 116 F.3d 28, 33 (2d Cir. 1997). Moreover, “the court is choices between conflicting versions of events, and weighing has “suffered an injury in fact that is concrete, particularized, of the evidence are matters for the jury.” Id. and actual or imminent,” that “was likely caused by the defendant,” and that “would likely be redressed by judicial On a motion for summary judgment, the court considers relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 “the pleadings, depositions, answers to interrogatories and (2021). “For purposes of Article III standing, an ‘injury in admissions on file, together with any other firsthand fact’ is ‘an invasion of a legally protected interest which is (a) information including but not limited to affidavits.” Nnebe concrete and particularized[ ] and (b) actual or imminent, not v. Daus, 644 F.3d 147, 156 (2d Cir. 2011). Further, while conjectural or hypothetical.’ ” Lacewell v. Off. of Comptroller the court “may consider other materials in the record,” it of Currency, 999 F.3d 130, 141 (2d Cir. 2021) (quoting Lujan “need consider only the cited materials” in ruling on a v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). summary judgment motion. FED. R. CIV. P. 56(c)(3); see also Pennington v. D'Ippolito, 855 F. App'x 779, 782 (2d Cir. 2021) (“[I]n ruling on a summary judgment motion the II. Analysis court need consider only the cited materials in the parties’ *6 Kema asserts she has standing to challenge Bollmann's submissions.” (internal citations and alterations omitted)). beneficiary designations because, although Kema was never a listed beneficiary, she is entitled to a distribution In reviewing the record, “the court is required to resolve of Bollmann's estate7 pursuant to E.P.T.L. § 4.1-1.8 all ambiguities and draw all permissible factual inferences (Am. Standing Letter at 4.) Specifically, Kema contends in favor of the party against whom summary judgment is Payne “was improperly and/or fraudulently appointed sought.” Sheet Metal Workers’ Nat'l Pension Fund v. Vardaris administrator” of Bollmann's estate because Payne, “as the Tech. Inc., No. 13-CV-5286, 2015 WL 6449420, at *2 representative of” Bollmann's “biological father, Phillip ... (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler Corp., had no standing as either a proposed administrator or 109 F.3d 130, 134 (2d Cir. 1997)). When drawing inferences distributee of the decedent's estate.” (Id.) Kema asserts from evidence in the record in favor of the non-moving party, Bollmann died intestate without spouse or issue. (Id.) In however, a court should not accord the non-moving party the an attempt to sidestep E.P.T.L. § 4.1-1(4) (see supra n.6), benefit of “unreasonable inferences, or inferences at war with Kema contends Phillip should be disqualified from inheriting undisputed facts.” Berk v. St. Vincent's Hosp. & Med. Ctr., Bollmann's estate because he “abandoned [Bollmann] as a 380 F. Supp. 2d 334, 342 (S.D.N.Y. 2005) (quoting County parent and ... abdicated his duties as the decedents [sic] of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1318 parent.”9 (Id.) Consequently, Kema claims, as Bollmann's (2d Cir. 1990)). surviving sibling and next in line to inherit Bollmann's estate through the Intestacy Statute, she is entitled to distribution of “Once the movant has ‘demonstrat[ed] the absence of a Bollmann's estate pursuant to E.P.T.L. § 4-1.1(5). (Id.) genuine issue of material fact ... the onus shifts to the party resisting summary judgment to present evidence sufficient 7 Kema does not address the fact that invalidation to satisfy every element of the claim.’ ” Pennington, 855 F. of the May 2016 designation, either on grounds App'x at 781 (alteration in original) (quoting Holcomb v. Iona of mental competency or undue influence, would Coll., 521 F.3d 130, 137 (2d Cir. 2008)). To do this, “[t]he not result in the proceeds of the Alliance Account non-moving party is required to ‘go beyond the pleadings’ automatically being paid to Bollmann's estate. and ‘designate specific facts showing that there is a genuine Instead, and as noted by Prudential, the invalidation issue for trial.’ ” Id. of a later beneficiary designation results in the proceeds of the account being distributed B. Standing in a manner consistent with the previously Article III of the Constitution extends federal courts’ valid designation. (See Prudential Complaint, ¶ jurisdiction only to cases and controversies. U.S. CONT. art. 23 (“If the Court were to determine that the III, § 2. The Supreme Court has interpreted this to mean May 2016 designation is legally invalid, the that federal jurisdiction exists only when the plaintiff has Account Balance would be payable to Sabine “a personal stake in the outcome of the controversy.” Warth Assmus, Kirsten Assmus, and Jessica Payne, in Consequently, by Prudential's understanding of to challenge the beneficiary designations in her initial the Alliance Account, invalidation of the May Answer (see Payne Answer at 6.) Payne's standing argument 2016 designation would result in the July 29, was reiterated in her Amended Answer (see Payne Am. 2014 Information Request Form becoming the Answer at 7-8), but neither Payne, nor any other party operative designation (id.) Similarly, if both the in this case, briefed the issue as part of a motion to May and July designations were invalid, then the dismiss.10 Nonetheless, Payne highlighted Kema was never prior May 28th, 2014 designation would become a beneficiary to the Alliance Account or an heir to Bollmann's the operative designation, and so on, until either: estate. (Id.) Payne further expounded that the Probate Court (1) the beneficiaries in the last valid designation had previously adjudicated Kema's administration claims.11 predeceased Bollmann; or (2) all of Bollmann's (See Dec. Hr'g Tr. 6:5-23; 18:5-6.) Payne contended that the designations were found to be invalid. Probate Court's ruling was res judicata here. (Id.) 8 E.P.T.L. § 4-1.1 is New York's intestacy statute (the “Intestacy Statute”), which provides that where 10 To the extent Kema appears to suggest that Payne's “property of a decedent is not disposed of by will”, standing argument was waived (see Am. Standing it is to be distributed as follows: Letter at 4), the Court rejects this argument since If a decedent is survived by: “[t]he question of standing is not subject to waiver.” (1) A spouse and issue, fifty thousand dollars United States v. Hays, 515 U.S. 737, 742 (1995). and one-half of the residual to the spouse, Rather, “[b]ecause the question of standing goes and the balance thereof to the issue by to the constitutional limitations on the judicial representation. Power of the United States, which is limited to (2) A spouse and no issue, the whole to the resolving Cases or Controversies, we are entitled spouse. at any time sua sponte to delve into the issue (3) Issue and no spouse, the whole to the issue, of standing even if [a party] do[es] not raise the by representation. issue.” Green Haven Prison Preparative Meeting of (4) One or both parents, and no spouse and no Religious Soc'y of Friends v. N.Y. State Dep't of issue, the whole to the surviving parent or Corr. & Cmty. Supervision, 16 F.4th 67, 78 (2d Cir. parents .... 2021) (quotation marks and case citation omitted) (5) Issue of parents, and no spouse, issue, or (quoting in part U.S. CONST. art. III); see also parent, the whole to the issue of the parents, Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 by representation (2d Cir. 2016) (explaining standing “may be raised E.P.T.L § 4-1.1(a). by a party, or by a court on its own initiative, at 9 E.P.T.L. § 4-1.4 concerns disqualification of any stage in the litigation” (quoting Arbaugh v. Y & H Corp., 546 U.S. 567, 571 (2004))); cf. Partner parents to take intestate shares of deceased Reinsurance Co. Ltd. v. RPM Mortg., Inc., No. children. In pertinent part E.P.T.L. § 4-1.4 states: 18-CV-5831, 2020 WL 2904862, at *3 (S.D.N.Y. No distributive share in the estate of a deceased June 3, 2020) (denying defendants’ motion to child shall be allowed to a parent if the parent, dismiss for lack of subject matter jurisdiction, but while such child is under the age of twenty- noting defendants had a “right to argue that [the one years: (1) has failed or refused to provide plaintiff] lacks contractual standing to pursue the for the child or has abandoned such child, relief sought here in a later motion for summary whether or not such child dies before having judgment or bench trial”); accord Conservation L. attained the age of twenty-one years, unless the Found., Inc. v. ExxonMobil Corp., 578 F. Supp. parental relationship and duties are subsequently 3d 119, 119 (D. Mass. Dec. 22, 2021) (“[S]tanding resumed and continue until the death of the can be raised at any time. For example, if a motion child[.] to dismiss for lack of standing is denied, a case E.P.T.L. § 4-1.4(a)(1). may nevertheless be properly dismissed for lack after trial.” (citation omitted)). beneficiary of Bollmann's estate. Kema contends that, as a beneficiary to the estate, she would be injured if the disputed 11 The Court understands Payne's argument in funds are paid to Payne, and the other designated beneficiaries this regard to pertain to Kema's present claims of the Alliance Account, because the funds should become regarding her status as heir, as well as Phillip's part of Bollmann's estate. However, the Court finds the injury rights, and the extent to which they were, or were Kema alleges is not personal to her, but, instead, a speculative not, forfeited, under the Intestacy Statute. (See Dec. injury to Bollmann's estate. Nor is Kema able to establish Hr'g Tr. 16:23-17:2; 18:5-6.) standing to bring her claim on behalf of Bollmann's estate *7 At the December Hearing, Payne re-emphasized (1) because she has not established her rights as a beneficiary her standing arguments, and (2) her contention that Kema's to the estate. Cf. Bartone v. Podbela, No. 17-CV-3039, 2018 arguments were previously adjudicated during the August 28 WL 1033250, at *8 (E.D.N.Y. Feb. 23, 2018) (granting status conference before the Probate Court. (Dec. Hr'g Tr. dismissal motion where plaintiff's alleged injury was that 5:18-6-23.) Payne also made clear that her administration of “the Decedent's estate was deprived of certain monies” but Bollmann's estate continues to the present day. (Id.) Despite where plaintiff had not proven he was an estate beneficiary having the opportunity to do so, Kema did not dispute that with standing to pursue a claim on behalf of the estate); see the Probate Court had previously adjudicated her arguments also Yien-Koo King v. Wang, No. 14-CV-7694, 2017 WL relating to the administration of Bollmann's estate during 2656451, at *5 (S.D.N.Y. June 20, 2017) (holding plaintiff did the August 28 Status Conference.12 Indeed, Kema's counsel not have standing to bring claims on behalf of estate where tacitly acknowledged this was the case. (See Dec. Hr'g Tr. subject wills remained contested and plaintiff's status as a 18:3-6.) beneficiary of the estate had not yet been determined). 12 Kema's silence in this regard is not unique “ o [ f A a ]b n s e e n s t t a e te x tr “ a m or a d y in a o r n y l y c ir b c e u m b s ro ta u n g c h e t s ,” b y a c a ti n o n e s x o ec n u t b o e r h a o lf r to the December Hearing, since her Rule 56.1 administrator of an estate.” Thea v. Kleinhandler, No. 13- Counterstatement, likewise, fails to dispute Payne's CV-4895, 2014 WL 2111637, at *5 (S.D.N.Y. May 13, contention that the arguments relating to the 2014) (citation omitted) (collecting cases). “[E]xtraordinary administration of Bollmann's estate, which Kema circumstances may be implicated where the executor is presently raises, were previously adjudicated by allegedly directly involved in purported egregious conduct the Connecticut Probate Court. (See Kema 56.1 and self-dealing that negatively impacts the potential assets of Counterstmt. ¶¶ 17-19.) the estate.” Id. (quoting Lewis v. DiMaggio, 115 A.D.3d 1042, Even accepting as true, for the purposes of arguendo, that: 1044 (3rd Dep't 2014) (alteration in original)). “Under those (1) the challenged beneficiary designations are invalid, either extraordinary circumstances, actions on behalf of an estate because of Bollmann's mental incompetency or due to undue must be brought by beneficiaries or legatees.” Bartone, 2018 influence; (2) any remaining designation is invalid because WL 1033250, at *8 (citing Witzenburg v. Jurgens, 2007 WL it names beneficiaries that predeceased Bollmann; and (3) as 9710763, at *9 (E.D.N.Y. Mar. 1, 2007)). a result, the balance of the Alliance Account should be paid to Bollmann's estate, the Court finds Kema cannot show a *8 Thus, while Payne is the Administrator of Bollman's concrete and particularized injury for purposes of standing. estate, because Kema is neither a beneficiary nor a See Arroyo v. PHH Mortg. Corp., No. 13-CV-2335, 2014 legatee of the estate, even if, arguendo, extraordinary WL 2048384, at *5 (E.D.N.Y. May 19, 2014) (“A plaintiff circumstances might have existed warranting challenging must allege personal injury fairly traceable to the defendant's Payne's administration of the estate, Kema would be ineligible allegedly unlawful conduct and likely to be redressed by the to bring an action on behalf of the estate to make such a requested relief.” (quoting Lujan, 504 U.S. at 560)). challenge. Moreover, and of significance, Kema does not dispute that the Probate Court previously adjudicated Kema's As an initial matter, there is no basis for Kema to argue she claims at the August 28 Hearing. Further, as stated by the was injured by the challenged designations to the Alliance Court at the December Hearing, the Probate Court's ruling Account because Kema was never, at any point, a listed on this issue is res judicata here. See Barash v. N. Tr. Corp., beneficiary with an interest in the Account. Instead, Kema's No. 07-CV-5208, 2009 WL 605182, at *7 (E.D.N.Y. Mar. 6, as claim preclusion, a final judgment on the merits of an administration of) an estate, or (3) assume in rem action precludes the parties or their privies from relitigating jurisdiction over property that is in the custody of issues that were or could have been raised in that action. The the probate court, the probate exception does not doctrine applies only if (1) the previous action involved an apply.” (citing Leftkowitz v. Bank of N.Y., 528 F.3d adjudication on the merits; (2) the previous action involved 102, 105-06 (2d Cir. 2007) (emphasis added))). the [parties] or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been, CONCLUSION raised in the prior action.” (internal quotations and citations omitted)). For the stated reasons, IT IS HEREBY ORDERED that Payne's Motion for Summary Judgment (ECF No. 79) is Additionally, even if the Probate Court's determinations were GRANTED and Kema's claims are DISMISSED. The Clerk not res judicata, this Court is without jurisdiction to: (1) of Court is directed to disburse the funds as follows: declare Phillip an “estranged parent” within the meaning of E.P.T.L. § 4-1.4(a)(1); (2) subsequently determine Kema First, in accordance with the parties’ November Settlement is a beneficiary to Bollmann's estate pursuant to E.P.T.L. Agreement (ECF No. 54): (1) $12,048.48 to Sabine Assmus; § 4-1.1; or (3) find Payne's Letters of Administration were and (2) $12,048.48 to Kirsten Assmus. Checks reflecting fraudulently obtained. Indeed, such determinations would these dispersal amounts shall be mailed to the parties at their implicate the probate exception to federal jurisdiction.13 See respective addresses of record, to wit: Kaufman v. Jetson Electric Bikes, LLC, No. 22-CV-3765, 2024 WL 66036, at *3 (E.D. Pa. Jan. 5, 2024) (declining Sabine Assmus to “apply the intestate law of forfeiture and hold that Meiner Str. 47b [biological parent] deserted [child] within the meaning of” Weinbohla 01689 the Pennsylvania intestate statute because, inter alia, “such a Germany determination is barred by the probate exception”); see also Kirsten Assmus id. (“Applying the intestate law of forfeiture to determine Meiner Str. 49 who is an heir and who is entitled to take from the estate Weinbohla 01689 places this matter squarely in the second probate exception Germany by endeavoring to administer an estate.” (citing Thorpe v. Borough of Thorpe, No. 3:CV-10-1317, 2013 WL 1703572, Second, the remaining balance of funds deposited into the at *7 (M.D. Pa. Apr. 19, 2013), rev'd on other grounds, 770 Court, including, but not limited to, any and all interest F.3d 255 (3d Cir. 2014))). accrued on the funds, if any, to Jessica A. Payne. A check reflecting these dispersal amounts shall be mailed to Jessica 13 “The probate exception reserves to state probate A. Payne at her address of record, to wit: courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes federal courts from endeavoring to *9 dispose of property that is in the custody of a state Jessica A. Payne probate court.” Architectural Body Rsch. Found. v. 2625 Alcatraz Avenue, #103 Reversible Destiny Found., 335 F. Supp. 3d 621, Berkeley, California 94705 633 (S.D.N.Y. 2018) (quoting Marshall v. Marshall, 547 U.S. 293, 311-12 (2006) (emphasis added)); cf. King v. Shou-Kung Wang, 663 F. App'x 12, 13 (2d Cir. 2016) (“Post-Marshall, the probate All Citations exception is to be construed narrowly, such that unless a federal court is endeavoring to (1) probate Not Reported in Fed. Supp., 2024 WL 707299 Title PDF Court Date Type 1. Docket 2:20-CV-03683 — E.D.N.Y. Aug. 13, 2020 Docket The Prudential Insurance Company of America v. Payne et al Direct History (1) 1. Prudential Insurance Company of America v. Payne 2024 WL 707299 , E.D.N.Y. , Feb. 20, 2024 Related References (2) 2. The Prudential Insurance Company of America v. Payne 2021 WL 3023236 , E.D.N.Y. , July 16, 2021 3. Prudential Insurance Company of America v. Payne 2022 WL 393633 , E.D.N.Y. , Feb. 09, 2022

2011 WL 6934493 statement of the facts, reference is made to the complaint. Only the Westlaw citation is currently available. United States District Court, 1 Plaintiff has attached a self-written complaint to N.D. New York. a formcivil rights complaint. (Dkt. No. 1). The court will cite to the pages assigned by the court's Paul TOPOLSKI, Plaintiff, electronic filing system (CM/ECF) because the v. first page of the narrative portion of the complaint J.J. COTRELL, Police Officer, Defendant. appears at pages 7–11 of the document. (Id.) No. 5:11–CV–1216 (MAD/ATB). III. Temporary Restraining Order (TRO) | In the body of the complaint, plaintiff states that he “also Oct. 28, 2011. request [sic] that the court Order ... pursuant to FRCP 65, a preliminary restraining order: which would permit plaintiff Attorneys and Law Firms to restrict said Officer J.J. Cottrell ... from filing chapter 11 Paul Topolski, pro se. bankruptcy ... until after this complaint is concluded.” (Id .) Although the request is a little unclear, based on the liberality with which pro se pleadings are treated,2 this court will ORDER and REPORT–RECOMMENDATION address this request. ANDREW T. BAXTER, United States Magistrate Judge. 2 Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) *1 The Clerk has sent to the court for review this complaint, (a court is to read a pro se party's “supporting together with an application to proceed in forma pauperis papers liberally, and ... interpret them to raise the (IFP) from pro se plaintiff, Paul Topolski. (Dkt.Nos.1, 2). strongest arguments that they suggest”). In order for the court to grant temporary or preliminary I. IFP Application injunctive3 relief, the party seeking the injunction has the The statute governing IFP actions provides that the court burden to show: (i) that he is likely to suffer irreparable may authorize the commencement of a civil action without injury if the injunction is not granted, and (ii) either (a) a the payment of fees, when the plaintiff files an affidavit that likelihood of success on the merits of his claim, or (b) the includes a statement that he is unable to pay the required fee or existence of serious questions going to the merits of his give security therefor. 28 U.S.C. § 1915(a)(1). Plaintiff in this claim and a balance of the hardships tipping decidedly in his case has filed a form-motion to proceed IFP. (Dkt. No. 2). A favor. NXIVM Corp. v. Ross Institute, 364 F.3d 471, 476 (2d review of the application shows that plaintiff's IFP application Cir.2004); Beal v. Stern, 184 F.3d 117, 122–23 (2d Cir.1999) may properly be granted. (citing Bery v. City of New York, 97 F.3d 689, 693–94 (2d Cir.1996)). II. Complaint 3 It is unclear what plaintiff is seeking because In his complaint, plaintiff alleges that on September 9, 2009, he calls the relief a “preliminary restraining he was assaulted during his arrest by defendant Cottrell, a order.” (Dkt. No. 1 at 8). He could be seeking Police Officer in the Town of Cicero in Onondaga County. a Temporary Restraining Order or a Preliminary (Dkt. No. 1 at 7) .1 Plaintiff also claims that defendant Injunction. Because he is asking the court to Cottrell placed the handcuffs on plaintiff “extremely” tightly. stop defendant from filing bankruptcy pending the (Id. at 7–8) Plaintiff alleges that he sustained serious, resolution of this action, rather than for a short permanent injuries as a result of this assault. (Id. at 8). The period of time, the court assumes that plaintiff is complaint lists five causes of action, based on the same requesting a preliminary injunction. The distinction incident, and raising a variety of federal and New York is not determinative because the standards are State constitutional claims. Plaintiff seeks injunctive as well proof required for either remedy. to proceed in forma pauperis has been granted, Irreparable harm is “certain and imminent harm for which a plaintiff will still be required to pay fees that he may monetary award does not adequately compensate.” Wisdom incur in the future regarding this action, including, but not limited to, copying and/or witness fees. Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 113–14 (2d Cir.2003). Speculative harm is insufficient to ORDERED, that a formal response to plaintiff's complaint establish irreparable harm. See Tom Doherty Associates, Inc. be filed by the defendant or defendant's counsel as provided v. Saban Entertainment, Inc., 60 F.3d 27, 37 (2d Cir.1995). in the Federal Rules of Civil Procedure subsequent to service The burden of proving that a TRO or a preliminary injunction of process on the defendant, and it is further should be issued rests entirely on the moving party. Fisher v. Goord, 981 F.Supp. 140, 167 (W.D.N.Y.1997) (citing Liddy v. ORDERED, that any paper sent by a party to the Court Cisneros, 823 F.Supp. 164, 173 (S.D.N.Y.1993)). Preliminary or the Clerk shall be accompanied by a certificate setting injunctions are “extraordinary and drastic” remedies and must forth the date a true and correct copy of it was mailed to be denied if the moving party has failed to meet his burden all opposing parties or their counsel. Any letter or other of proof. Id. (citing Karmikel Corp. v. May Dep't Stores Co., document received by the Clerk or the Court which does 658 F.Supp. 1361, 1367 (S.D.N.Y.1987)). not include a certificate of service which clearly states that an identical copy was served upon all opposing parties or *2 In this case, plaintiff asks this court to enjoin defendant their attorneys may be stricken by the Court. Plaintiff shall Cottrell from filing bankruptcy. Plaintiff has not established also comply with any requests by the Clerk's Office for any any of the factors required for temporary injunctive relief. documents that are necessary to maintain this action. All It is unclear why plaintiff believes that defendant Cottrell motions shall comply with the Local Rules of Practice of the would be filing for bankruptcy. This has nothing to do with the Northern District, and it is further substance of plaintiff's complaint. Plaintiff may believe that he will secure his ability to obtain monetary relief in this case RECOMMENDED, that, to the extent that plaintiff's if defendant Cottrell is “prevented” from filing bankruptcy. complaint can be read to contain a motion for a TRO or However, plaintiff has not shown that this alleged harm is preliminary injunction, it be DENIED, and it is further “certain” or “imminent. Plaintiff has not established, either that defendant Cottrell is planning on filing for bankruptcy, ORDERED, that the Clerk serve a copy of this Order upon or that plaintiff would be irreparably injured if the defendant Plaintiff in accordance with the Local Rules. did file for bankruptcy. Thus, to the extent that plaintiff's complaint may be interpreted as moving for a TRO or Pursuant to 28 U.S.C. § 636(b)(1), the parties have 14 days preliminary injunction, this court will recommend denying within which to file written objections to the foregoing report. plaintiff's motion. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN WHEREFORE, based on the above, it is 14 DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir.1993) (citing Small ORDERED, that plaintiff's In Forma Pauperis Application v. Secretary of Health and Human Services, 892 F.2d 15 (2d (Dkt. No. 2) is GRANTED.4 The Clerk shall issue a Cir.1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). summons and forward it, along with a copy of the complaint to the United States Marshal for service upon the named All Citations defendant, and it is further Not Reported in F.Supp.2d, 2011 WL 6934493 End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. Title PDF Court Date Type 1. Docket 5:11cv01216 — N.D.N.Y. Oct. 11, 2011 Docket TOPOLSKI v. COTTRELL Direct History (2) 1. Topolski v. Cotrell 2011 WL 6934493 , N.D.N.Y. , Oct. 28, 2011 Report and Recommendation Adopted by 2. Topolski v. Cottrell 2011 WL 6934268 , N.D.N.Y. , Dec. 30, 2011 Related References (1) 3. Topolski v. Cottrell 2012 WL 3264927 , N.D.N.Y. , Aug. 09, 2012