U.S. District Court, Western District of N.Y. Case Summaries: August

Daily Record (Rochester, NY), Aug 25, 2008

U.S. District Court, Western District of N.Y.

Fraud

Discovery

FLB, LLC v. 5Linx

06-CV-6463

Judge Siragusa

Background: In this diversity case alleging fraud, defendant Jerabeck has moved for summary judgment. The suit originally named a number of cellular companies as defendant but now only 5Linx and Jerabeck are defendants. The plaintiff seeks to pierce the corporate veil and hold Jerabeck personally liable for the actions of his company @Wireless. No discovery has been conducted in the case.

Ruling: Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery. The court concludes that this is not the rarest of cases and that discovery may result in evidentiary proof in support of plaintiffs' theory that the corporate veil should be pierced.

Jules L. Smith, of Blitman & King, and Eddi Z. Zyko for the plaintiff and Ellen J. Coyne for the defendant

Failure to Prosecute

Sanctions

Joseph v. Schlegel Systems, Inc.

05-CV-6161

Judge Siragusa

Background: The plaintiff in this job discrimination suit, who resides in Georgia, appeared in Rochester for a deposition in May 2006 but failed to appear for the completion of the deposition in January 2007. Defendants Schlegel Systems, Inc. and Scott Page filed a notice of motion seeking on order dismissing the complaint against them pursuant to Federal Rules of Civil Procedure 37 and 41, and granting them attorneys' fees and costs. No responding papers were filed by the plaintiff. Earlier in 2008, the plaintiff was directed to appear at a location in Georgia to complete his deposition and he never appeared.

Ruling: Defendants Schlegel and Page demonstrated that the plaintiff was warned by court order that his failure to appear for his deposition, arranged for his convenience in Georgia, could result in dismissal with prejudice. The court dismisses the case against Page and Schlegel and awards Scott Page $570.00 in attorney's fees and $1,197.50 in costs. It also awards Schlegel Systems, Inc., $285.00 in attorney's fees and $1,197.50 in costs. The case continues against Defendant Union of Needletrades, Industrial and Textile Employees.

Carlton Joseph, plaintiff pro se, Lucinda Odell Lapoff, of Harter, Secrest & Emery LLP, for defendant Schlegel Systems, Inc., Erin M. Sobkowski, of Chamberlain D'Amanda Oppenheimer & Green- field, LLP, for defendant Union of Needletrades, Industrial and Textile Employees, and Paul F. Keneally, of Underberg & Kessler LLP, for defendant Scott Page

Social Security

Prescribed Treatment

Harris v. Barnhart

06-CV-6523

Judge Telesca

Background: The plaintiff seeks judicial review of the denial of his claims for disability and SSI benefits. The ALJ found that the plaintiff retained the residual functional capacity to perform work that exists in significant numbers in the national economy and was therefore not disabled. Plaintiff was 47 years old when he filed his claim and Harris stated that he was unable to work due to bipolar disorder, back pain, and left knee surgery. Based on these alleged impairments, plaintiff claims that he was unable to stand for long periods of time, lift over 20 pounds, and could not perform repeated movements.

Ruling: The record is replete with examples of the plaintiff's non-compliance with taking prescribed medications for his mental problems, and with no-shows for appointments for therapy. The failure to follow prescribed treatment without good reason will lead to a finding of no disability. The plaintiff's complaint is dismissed.

Kevin Bambury, of Jeffrey Freedman Attorneys at Law, for the plaintiff and John J. Field, of the U.S. Attorney's Office, for the defendant

Mental Hygiene

Supervised Release

United States v. Martin

07-CR-6059

Judge Larimer

Background: The defendant, who had been charged with intimidating and assaulting a United States federal law enforcement agency while engaged in the performance of official duties, was sentenced on June 10 to a term of imprisonment. He was also placed on supervised release for three years with several special conditions, including a condition that he reside at the Community Corrections Center for three months and that he continue his treatment with anti-psychotic medication. On Aug. 15, Martin was released from incarceration but, because he had neglected or refused to take his prescribed medication while in custody, he presented with serious mental health issues and was taken to Strong Memorial Hospital. This court signed a petition alleging a violation of supervised release on Aug. 19. The principal basis for the violation was that the defendant had refused to take the necessary antipsychotic medication and, because of that, the Community Corrections Center refused to admit him.

Ruling: The court orders Martin to take the medication prescribed for him which was a condition of his term of supervised release. Defendant is directed and ordered to cooperate with the treating physicians and take the prescribed anti-psychotic medication.