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denying motion to strike an affirmative defense where it was “in effect a denial that plaintiff will be able to prove an element of his claim and thus amount[ed] to a denial of the allegations of the complaint”
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21 Civ. 3835 (AT) (GWG)
2022-10-04
Benjamin Samuel RICH fka Samuel Guillaume, Plaintiff, v. Detective Michael MILLER and Detective Vincent Corrando, Defendants.
Benjamin Samuel Rich, Brooklyn, NY, Pro Se. Andrew B. Spears, New York City Law Department, New York, NY, for Defendants.
Benjamin Samuel Rich, Brooklyn, NY, Pro Se. Andrew B. Spears, New York City Law Department, New York, NY, for Defendants. ORDER ANALISA TORRES, District Judge:
Having received no objections to the Report and Recommendation (the "R&R"), ECF No. 86, of the Honorable Gabriel W. Gorenstein, the Court reviewed the R&R for clear error and found none. Oquendo v. Colvin, No. 12 Civ. 4527, 2014 WL 4160222, at *2 (S.D.N.Y. Aug. 19, 2014).
The Court, therefore, ADOPTS the R&R in its entirety. Accordingly, Plaintiff's motion to strike is DENIED.
SO ORDERED.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge BENJAMIN SAMUEL RICH, formerly known as Samuel Guillaume Plaintiff, -v.- STATE OF NEW YORK et al., Defendants.
Plaintiff pro se Benjamin Samuel Rich brought this action under 42 U.S.C. § 1983 against Defendants NYPD Detectives Michael Miller and Vincent Corrando, alleging that they violated Rich's civil rights in relation to Rich's arrest and prosecution, leading to his imprisonment and seizure of his vehicle. See First Amended Complaint, filed May 5, 2022 (Docket # 55) ("FAC"). Miller and Corrando asserted nine affirmative defenses in their answer to the first amended complaint, Answer to Amended Complaint, filed June 17, 2022 (Docket # 62) ("Answer"), and Rich has now moved to strike all of them. For the reasons that follow, the motion to strike should denied.
Notice of Motion to Strike, filed June 30, 2022 (Docket # 73); Motion to Strike, filed June 30, 2022 (Docket # 74) ("Pl. Mot."); Opposition to Motion, filed July 29, 2022 (Docket # 83) ("Def. Opp."); Reply to Defendants' Opposition, filed Aug. 3, 2022 (Docket # 84) ("Pl. Reply").
I. BACKGROUND
A. Facts As Alleged by the Parties
According to the first amended complaint, Rich attended an employee holiday party at the Highline Ballroom, a nightclub in Manhattan, on January 6, 2016, as a guest of Ballroom employee Wasief Quahtan. FAC ¶ 13. While Rich was in the bathroom, Quahtan and the owner of the Ballroom argued about Rich's presence at the party, and on Rich's return, Ballroom security and an individual named Avery Jackson asked him to leave. FAC ¶¶ 14-15. Jackson was "belligerent and aggressive" to Rich, and Rich was "forcibly escorted" out of the Ballroom. FAC ¶ 16. After this exit, someone fired gunshots outside of the Ballroom toward Jackson. FAC ¶ 16. After Rich's exit, he entered a white Rolls Royce and drove away, chased by Jackson in a black sedan. FAC ¶ 24. The complaint also refers to the statements of a 911 caller, who lived next door to the Ballroom and told the 911 operator that she heard gunshots and witnessed a man enter a black sedan "speeding down the street." FAC ¶ 23.
Defendant Miller investigated the gunshots and interviewed Jackson, who told Miller that Rich had taken a gun from the trunk of the Rolls Royce and fired at the Ballroom. FAC ¶ 17. Jackson previously told the first responding police officers that people from the Ballroom escorted Rich from the club because Rich was intoxicated and that Rich fired gunshots when he got to his car. FAC ¶ 18. Jackson would later tell Miller that Rich fought with the club manager and was "belligerent" with Jackson and claimed to have a gun before being forced out of the club through its back exit. FAC ¶¶ 19-20.
Miller would later report that Rich was escorted out the front of the building and that a canvass turned up no additional witnesses. FAC ¶¶ 21-22. However, Rich contends that, in fact, surveillance video shows he left the club peacefully, while Jackson was the aggressor, and that "numerous witnesses," including the 911 caller, would have been available to Miller that would have contradicted Jackson's account. FAC ¶¶ 17-25, 28.
Although Miller obtained surveillance footage contradicting Jackson's narrative and recorded conflicting statements by Jackson, Miller disregarded the footage and embellished Jackson's statements in an effort to pursue Rich alone for the incident. FAC ¶¶ 26-32, 36-37. Miller also obtained search and arrest warrants against Rich based on false or outright fabricated information. FAC ¶¶ 31-34. Miller would later admit to using "embellished, false and misleading information" in his reports and warrant applications. FAC ¶ 35. Miller later testified that DNA evidence found on the shell casings did not match Rich's DNA, that police officers recovered the casings down the street from the Ballroom, rather than the front of it, as his reports had claimed, and that an interview with Quahtan corroborated Rich's side of the story. FAC ¶¶ 66-68, 70-73. Miller focused solely on Rich as a suspect despite this evidence, and Rich alleges that Miller set up a misleading photo array and lineup to further his case, which led to Rich's improper arrest and prosecution. FAC ¶¶ 75-79.
Rich was arrested on January 27, 2016 and was out on bond until Jackson provided a false statement that led to his bond revocation for witness tampering. FAC ¶¶ 83-84. Rich then spent approximately eight-and-a-half months in jail until the case was dismissed after the judge declared a mistrial. FAC ¶¶ 83-85. Additionally, as a result of the investigation, the NYPD impounded Rich's Rolls Royce, to which police inflicted $10,000 in damage. FAC ¶ 89.
There are no substantive allegations that describe the conduct of defendant Corrando other than a statement that he along with others "[willfully], maliciously[,] and intentionally fabricated statements of witnesses, ignored evidence, or the lack thereof, against Plaintiff, and used that fabricated [evidence] to pursue a wrongful conviction against Plaintiff." FAC ¶¶ 10, 80.
In their Answer, Defendants Miller and Corrando deny the bulk of the complaint's factual claims or deny knowledge or information sufficient to form a belief as to the truth of those allegations. Answer ¶¶ 1-127. It is common ground that Rich was at least "in the vicinity" of the Ballroom on January 6, 2016, and that he was forced to leave a staff holiday party there, after which a "shooting incident" occurred outside. See Answer ¶¶ 13-14, 16. Additionally, parties agree that Miller interviewed Jackson, who told Miller that Rich had gotten into an argument at the Ballroom and threatened Jackson on his way out, that Jackson did not tell Miller he had chased Rich, that Miller did obtain surveillance videos, and that Jackson later identified Rich in a photo array and at a lineup. Answer ¶¶ 19-21, 27, 53, 77.
B. Procedural History
Rich filed his complaint in this matter initially on March 12, 2021, naming parties since removed from the case. The Court issued an order granting in part and denying in part a motion to dismiss on March 31, 2022, which eliminated many of Rich's initial claims, but gave him leave to file an amended complaint. See Mar. 31, 2022 Order at 2 (Docket # 50) ("Order"). On May 4, 2022, Rich filed the first amended complaint against Miller, Corrando, and other parties since dismissed from the case. See FAC. The complaint alleges three violations of 42 U.S.C. § 1983: malicious prosecution; "denial of a fair trial"; and "conspiracy to violate civil rights" and the "fabrication of reports/evidence." FAC at 15, 16, 17. Rich seeks monetary, injunctive, and declaratory relief. See FAC.
Miller and Corrando filed an answer on June 17, 2022, asserting nine affirmative defenses. Answer ¶¶ 128-136. Rich thereafter filed the instant motion. See Pl. Mot. The defendants' response is somewhat confusing in that it argues that plaintiff's motion should be denied as to all the defenses, Def. Opp. at 1, but then discusses only five of the defenses with any specificity. See Def. Opp. at 3-4. While Rich appears to assume that Miller and Corrando are conceding that the remaining four defenses should be stricken, Pl. Reply ¶ 3, we do not so construe the defendants' letter.
II. LEGAL STANDARD
Fed. R. Civ. P. 12(f) provides that a court may strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Courts disfavor motions to strike, United States ex rel. Raffington v. Bon Secours Health Sys., Inc., 285 F. Supp. 3d 759, 774 (S.D.N.Y. 2018), and "should not tamper with the pleadings unless there is a strong reason for so doing," Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976). The moving party bears the burden on a motion to strike. Jablonski v. Special Couns., Inc., 2020 WL 1444933, at *3 (S.D.N.Y. Mar. 25, 2020).
Recognizing that the standard for a motion to strike an affirmative defense has undergone a "curious evolution" in this circuit, the Second Circuit recently set forth the standards a court should use in considering a motion to strike an affirmative defense. GEOMC Co. v. Calmare Therapeutics Inc., 918 F.3d 92, 95 (2d Cir. 2019). It held that a court must determine if the party moving to strike the defense has shown the following three elements: (1) that "there is no question of fact which might allow the defense" to meet the plausibility standard applied to pleadings, see Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); (2) that "there is no question of law which might allow the defense to succeed;" and (3) that "the plaintiff would be prejudiced by inclusion of the defense." GEOMC Co., 918 F.3d at 95-96 (citing S.E.C. v. McCaskey, 56 F.Supp.2d 323, 326 (S.D.N.Y. 1999)); accord Trustees of New York City Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. M.C.F. Assocs., Inc., 530 F. Supp. 3d 460, 464 (S.D.N.Y. 2021).
As to the first requirement, GEOMC Co. makes clear that the plausibility standard for pleadings applies to affirmative defenses, but GEOMC Co. emphasizes that the application of the plausibility standard must be a "context-specific" one. GEOMC. Co., 918 F.3d at 98 (quoting Iqbal, 556 U.S. at 679, 129 S. Ct. 1937). Thus, courts must consider the nature and role of affirmative defenses in the application of pleading standards. Id. This involves a consideration of (a) the brief period in which a defendant must file an answer in contrast with the much longer window during which a plaintiff can gather the facts necessary for their complaint and (b) the nature of the affirmative defense at issue. Id. As GEOMC Co. noted, "the facts needed to plead a statute-of-limitations defense will usually be readily available; the facts needed to plead an ultra vires defense, for example, may not be readily known to the defendant, a circumstance warranting a relaxed application of the plausibility standard." Thus, courts "apply a lower plausibility threshold" to affirmative defenses "because the pleader has less time to gather facts and craft a response." Sec. & Exch. Comm'n v. Ripple Labs, Inc., 2022 WL 748150, at *4 (S.D.N.Y. Mar. 11, 2022).
Case law holds that even if an affirmative defense is presented without accompanying factual allegations, a court may still decline to strike it where "sufficient factual content is pled elsewhere" to support the defense." Town & Country Linen Corp. v. Ingenious Designs LLC, 2020 WL 3472597, at *12 (S.D.N.Y. June 25, 2020) (quoting Jablonski, 2020 WL 1444933, at *4). For example, in Town & Country Linen Corp., the court did not strike a threadbare affirmative defense because the court found that allegations elsewhere in the defendants' pleadings supported the defense. Id.
As to the second factor, GEOMC Co. held that "an affirmative defense is improper and should be stricken if it is a legally insufficient basis for precluding a plaintiff from prevailing on its claims." GEOMC Co., 918 F.3d at 98. However, "a motion to strike should not be used as an opportunity for the determination of disputed, substantial questions of law." E.E.O.C. v. Kelley Drye & Warren, LLP, 2011 WL 3163443, at *2 (S.D.N.Y. July 25, 2011) (quoting Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984)), vacated on other grounds, 471 U.S. 1098, 105 S.Ct. 2318, 85 L.Ed.2d 837 (1985).
As to the third factor, prejudice "will normally depend on when the defense is presented" GEOMC Co., 918 F.3d at 98. "A factually sufficient and legally valid defense should always be allowed if timely filed even if it will prejudice the plaintiff by expanding the scope of the litigation." Id. "On the other hand, prejudice may be considered and, in some cases, may be determinative, where a defense is presented beyond the normal time limits of the Rules, especially at a late stage in the litigation, and challenged by a motion to dismiss or opposed by opposition to a Rule 15(a) motion." Id.
Some defenses are not governed by the test set forth in GEOMC Co. because the defense essentially amounts to a denial of the factual allegations supporting the opposing party's claim, rather than constituting an "affirmative" defense, which is defined as an "assertion of facts and arguments that, if true, will defeat the plaintiff's . . . claim, even if all allegations in the claim are true", see Defense, Black's Law Dictionary (11th ed. 2019). As one recent case notes, "a denial is not required to be pled in conformance with GEOMC." Town & Country Linen Corp., 2020 WL 3472597, at *11. This makes logical sense. Just as there is no reason or mechanism for a court to review a defendant's denials of factual allegations in an answer, there is similarly no more reason to call upon the resources of a court to strike defenses that essentially amount to denials of facts pled. Thus, in a patent infringement case, Town & Country Linen Corp. denied a motion to strike a defense called "absence of willful infringement" on the ground that it amounted to a claim that they did not engage in any patent infringement and thus "need not have been pled as an affirmative defense in the first place" Id.
Finally, there is abundant case law holding that a defense of a "failure to state a claim" should not be the subject of a motion to strike because, like a denial of factual allegations, the defense functions as a general denial of liability. See Unicorn Glob., Inc. v. DGL Group, Ltd., 2022 WL 3132863, at *2 (E.D.N.Y. Aug. 4, 2022) ("[I]t is well settled that the failure-to-state-a-claim defense is perfectly appropriate affirmative defense to include in the answer."); Coach, Inc. v. Kmart Corps., 756 F. Supp. 2d 421, 432 (S.D.N.Y. 2010) ("[A] failure-to-state-a-claim defense is not vulnerable to motions to strike because the defense is analogous to a general denial and its inclusion, although likely redundant, does not prejudice plaintiffs."); S.E.C. v. Toomey, 866 F. Supp. 719, 723 (S.D.N.Y. 1992) ("A plaintiff suffers no prejudice when the failure-to-state-a-claim defense is used in the pleadings."); Aros v. United Rentals, Inc., 2011 WL 5238829, at *4 (D. Conn. Oct. 31, 2011) ("[A] party may include failure to state a claim as an affirmative defense in its answer, and that such a defense is . . . invulnerable as against the [12(f)] motion.") (citations and quotations omitted).
III. DISCUSSION
We address each defense next.
A. First Affirmative Defense: Failure to State a Claim
The first affirmative defense is that the first amended complaint fails "in whole or in part, to state a claim upon which relief can be granted." Answer ¶ 128. As just noted, this defense is not vulnerable to a motion to strike. E.g., Coach, Inc., 756 F. Supp. 2d at 432. Rich argues, however, that the court has already ruled on the defendant's motion to dismiss for failure to state a claim, so the defense is improper. Pl. Reply ¶ 4. While this may be true, we see no reason to depart from the usual rule. The presence of the defense does not prejudice plaintiff as there would be no change to plaintiff's prosecution of the action depending on whether the defense is listed or not, so Rich suffers no prejudice from its continued inclusion. Whether Miller and Corrando should succeed on another motion (perhaps articulating different grounds) should not depend on whether it was listed as an affirmative defense. In light of the fact that motions to strike are "disfavor[ed]," Bon Secours Health Sys., Inc., 285 F. Supp. 3d at 774, the motion to strike the defense should be denied.
B. Second Affirmative Defense: Negligence of Plaintiff and Others
The second affirmative defense states that "[a]ny injury alleged to have been sustained from plaintiff's own culpable or negligent conduct and/or the intervening conduct of third parties and was not the proximate result of any act of defendants." Answer ¶ 129. On the basis of this statement alone it is not clear what — or whose — conduct caused Rich's injuries rather than Miller and Corrando's conduct. Rich argues this defense is conclusory and without factual support in the pleadings. Pl. Mot. ¶ 9. Nonetheless, "the law is somewhat unsettled as to whether the culpable conduct defenses of contributory negligence and comparative negligence apply to Section 1983 claims," Kochan v. Kowalski, 478 F. Supp. 3d 440, 453 (W.D.N.Y. 2020) (quotation omitted). As the court noted in Kochan, "it is well established that close or new questions of law should not be resolved on a motion to strike." Id. at 453-54 (quotation and emphasis omitted). Accordingly, in light of the early stage of this case and plaintiff's failure to show prejudice from the inclusion of the defense, the motion to strike should be denied.
C. Third Affirmative Defense: No Violation of Rights
The third affirmative defense asserts that Miller and Corrando did not violate "any rights, privileges, or immunities under the Constitution of law of the United States or the State of New York or any political subdivision thereof, nor have defendants violated any acts of Congress providing for the protection of civil rights." Answer ¶ 130. This is a simply a denial by defendants that plaintiff will be able to prove his claims. Thus, the motion to strike this defense should be denied.
D. Fourth Affirmative Defense: Notice of Claim Requirement
The fourth affirmative defense states that "[t]o the extent that the FAC alleges any claims arising under New York State law, such claims may be barred in whole or in part, for failure to comply with New York General Municipal Law §§ 50-(e), et. seq." Answer ¶ 4. Rich appears to argue that the court's prior order on the motion to dismiss found his claims were timely and satisfied the requirements of § 50-e. Pl. Mot. ¶ 8.
N.Y. Gen. Mun. Law § 50-e sets out the notice of claim requirements for New York state law claims, and the prior Order on the motion to dismiss dismissed all of plaintiff's state law claims either on substantive grounds or on the ground that the notice of claim requirement had not been met. See Order at 15, 19, 23. Perhaps unwittingly, however, plaintiff's First Amended Complaint states that he seeks relief for violation of the New York State Constitution, although it improperly includes the claim as arising under 42 U.S.C. § 1983. See FAC ¶ 107. In the event a court later interprets plaintiff's amended complaint as arising under New York State law, the defendants should be permitted to raise the same notice of claim defense that they did before. Accordingly, this defense should not be stricken.
E. Fifth Affirmative Defense: Existence of Probable Cause
The fifth affirmative defense asserts that the government had probable cause for Rich's prosecution. Answer ¶ 132. In his motion to strike, Rich argued that he had already "alleged sufficient fact[s] to negate this affirmative defense." Pl. Mot. ¶ 12. But a party cannot eliminate a defense merely by alleging facts when those facts are contested. In the Answer, Miller and Corrando deny many if not all of the facts alleged by plaintiff purportedly showing a lack of probable cause. Answer ¶¶ 1-127. Additionally, the plaintiff's claims regarding the circumstances of his arrest obviously must be a subject of discovery anyway, so the inclusion of the defense will cause plaintiff no prejudice. Thus, the motion to strike the fifth affirmative defense should be denied
F. Sixth Affirmative Defense: Statute of Limitations
The sixth affirmative defense claims Rich's case "may be barred, in whole or in part, by the applicable statute of limitations." Answer ¶ 133. In their the opposition letter, Miller and Corrando have conceded that Rich's malicious prosecution and denial of right to fair trial claims are not time-barred, Def. Opp. at 3-4, which is consistent with the holding of the decision denying the defendants' motion to dismiss, see Order at 21.
The Amended Complaint asserts a conspiracy claim under 42 U.S.C. § 1983, however. FAC ¶¶ 114-123. The district court's decision on the motion to dismiss had liberally construed Rich's previous complaint to state a § 1985(3) claim (that is, a conspiracy claim), and found the claim to be untimely. Order at 22-23. Given that the First Amended Complaint again includes a conspiracy claim and in light of Rich's failure to demonstrate any prejudice from the defense remaining, the motion to strike the statute of limitations defense should be denied. See, e.g., Kochan v. Kowalski, 478 F. Supp. 3d 440, 452 (W.D.N.Y. 2020) (denying motion to strike where "there is no prejudice to Plaintiff from the inclusion of the statute of limitations defense"); Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313, 338 (N.D.N.Y. 2003) (where it was unclear whether a claim violated the appropriate statute of limitations, the court found it "premature" to strike the defense).
G. Seventh Affirmative Defense: Mitigation of Damages
The seventh affirmative defense says only that Rich "may" have failed to mitigate his damages. Answer ¶ 134. "Courts have held that the duty to mitigate damages applies to plaintiffs in § 1983 actions." Alvarez v. Haywood, 2011 WL 13130851, at *4 (N.D.N.Y. Aug. 29, 2011) (citation omitted). Miller and Corrando have not pointed to facts in support of this defense, and it is thus unclear how, if at all, defendants contend that Rich failed to mitigate. On the other hand, this is just the sort of defense where the facts regarding plaintiff's conduct would not necessarily be within the defendants' knowledge and may become known only through discovery. Plaintiff has not shown how he is prejudiced through the inclusion of this defense. Thus, the motion to strike should be denied.
H. Eighth Affirmative Defense: Personal Involvement
The eighth affirmative defense asserts that Rich has not "adequately established the personal involvement of each individual defendant named in the FAC." Answer ¶ 135. "[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations and quotations omitted). Thus, it is the burden of plaintiff to show the personal involvement of each defendant in the violations alleged. Viewed in this light, the defense of "personal involvement" is in effect a denial that plaintiff will be able to prove an element of his claim and thus amounts to a denial of the allegations of the complaint. Accordingly, the motion to strike should be denied.
I. Ninth Affirmative Defense: Qualified Immunity
The ninth affirmative defense invokes qualified immunity, arguing that Miller and Corrando "have not violated any clearly established constitutional or statutory rights of which a reasonable person would have known, and therefore, are protected by qualified immunity." Answer ¶ 136. While Rich argued in his motion to strike that "sufficient evidence exists to demonstrate that Defendants Miller and Corrando did not act in good faith and took actions that they knew or should have known that they violated [Plaintff's] civil rights as Plaintiff has alleged in his First Amended Complaint," Pl. Mot. ¶ 13, the issue before us does not turn on not what plaintiff has alleged.
Defendants argue that the Court should not strike this defense because it requires more factual development. Def. Opp. at 4. Case law supports this view. For example, in Tardif v. City of New York, 302 F.R.D. 31, 35-36 (S.D.N.Y. 2014), the qualified immunity defense was phrased in language similar to that used here. The Court denied a motion to strike the defense because the statement of the defense was enough to give the plaintiff "fair notice of the nature of the defense," noting that there were "questions of fact and law that could have allowed the defense to succeed." Id. at 36. Additionally, in Kiss v. Cook, 2017 WL 3738646, at *3-4 (N.D.N.Y. Aug. 29, 2017), the court denied a motion to strike a qualified immunity defense on the ground that qualified immunity is fact intensive and that the defense should be challenged by "developing a factual record through discovery," Id. *3-4.
When a party asserts a qualified immunity defense, the facts supporting the defense are necessarily intertwined with the factual allegations supporting the alleged violation being claimed. Thus, the defense requires factual development along with plaintiff's contentions, and there is no prejudice from allowing the party invoking the defense to develop it as part of the discovery process. Thus, the motion to strike should be denied.
IV. CONCLUSION
For the reasons set forth above, plaintiff's motion to strike (Docket # 74) should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Torres. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Fed. R. Civ. P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: September 15, 2022