Nelkenbaum v. State of New York

Background

Yehuda Nelkenbaum, who was representing himself, sent the court two letters dated July 20, 2020. In the first, he said he wanted to withdraw his application to proceed without paying the filing fee, pay the fee, and serve the defendants himself. In the second, he asked the court to delay Assistant County District Attorney Leigh Wellington’s motion to dismiss so he could seek permission to amend his complaint by October 15, 2020. Alternatively, he asked for 60 days after receiving copies of unpublished cases cited in Wellington’s motion to file his opposition. He also asked the court to order Wellington’s counsel to provide those cases.

Wellington’s counsel opposed amending the complaint as to Wellington. Counsel did not oppose an extension of time to file an opposition but said that nearly three additional months was excessive because Nelkenbaum had already received a two-month extension. Counsel also stated that the unpublished cases had already been sent to Nelkenbaum and offered to send them again if required.

Court’s Orders

The court noted that Nelkenbaum’s letters did not comply with Judge Briccetti’s Individual Practices, which require an extension request to state whether the opposing party consents and, if not, to identify the reasons given for refusing consent. Because Nelkenbaum was representing himself, the court did not require him to refile the letters, but warned that future requests not complying with those practices would not be considered. The court also said the parties should communicate in good faith before asking the court to intervene.

The court ordered Wellington’s counsel to mail Nelkenbaum the unpublished cases cited in the motion to dismiss by July 31, 2020, and to file proof of service. It directed Nelkenbaum to pay the filing fee by August 7, 2020.

The court denied without prejudice Nelkenbaum’s request to file a motion to amend his complaint. It denied his request to hold Wellington’s motion to dismiss in abeyance. The court extended his deadline to oppose that motion to September 30, 2020, stated that it was unlikely to grant another extension, and set October 7, 2020, as the deadline for Wellington’s reply, if any.

The Clerk was directed to issue summonses for Police Officer Jordy, Police Officer Chavalier, and Sergeant Schevering. Nelkenbaum was directed to serve each defendant with the summons and complaint within 90 days after the summonses were issued. The court stated that it might dismiss the claims against those defendants under Rules 4 and 41 of the Federal Rules of Civil Procedure if he did not serve them or request an extension within that period.

The court certified that an appeal would not be taken in good faith and denied permission to proceed without paying the filing fee for purposes of an appeal. The order did not decide the underlying claims or Wellington’s motion to dismiss.