Nelkenbaum v. State of New York
- Vincent Briccetti
- 7:19-cv-07953
- U.S. District Court · Southern District of New York
- 2
In Nelkenbaum v. State of New York, Judge Briccetti deemed Wellington’s dismissal motion unopposed after Nelkenbaum missed repeated deadlines.
Yehuda Nelkenbaum’s ability to oppose Leigh Wellington’s pending motion to dismiss was affected. The order did not resolve the motion’s merits.
What happened
In Nelkenbaum v. State of New York, Leigh Wellington moved to dismiss Yehuda Nelkenbaum’s amended complaint. Nelkenbaum was representing himself and had not paid the filing fee.
The court extended Nelkenbaum’s deadline to oppose the motion twice and warned that another extension was unlikely. Nelkenbaum still did not file an opposition or request more time.
Judge Briccetti declined another extension and deemed Wellington’s motion fully submitted and unopposed, saying the court would decide it later. The court also denied Nelkenbaum permission to appeal without paying the filing fee.
The detailed version
- Nelkenbaum v. State of New York · No. 7:19-cv-07953
- Vincent Briccetti
- Oct. 9, 2020
Background
Leigh Wellington moved to dismiss Yehuda Nelkenbaum’s amended complaint on May 5, 2020. The opinion states that Nelkenbaum was proceeding without a lawyer and without paying the filing fee. Wellington mailed Nelkenbaum copies of the motion and supporting documents.
Nelkenbaum’s opposition was originally due May 22, 2020. After he did not respond or request an extension, the court extended the deadline to June 24 and warned that the motion would be treated as fully submitted and unopposed if he did not respond. Nelkenbaum then requested more time. The court extended the deadline to July 22, and later, after another request, extended it to September 30. The court warned that another extension was unlikely and ordered Nelkenbaum to pay the filing fee by August 7 because he had said he intended to withdraw his application to proceed without paying the fee.
Ruling
Nelkenbaum did not file an opposition, request another extension, or pay the filing fee. Judge Vincent Briccetti declined to grant another extension and deemed Wellington’s motion to dismiss fully submitted and unopposed. The order did not decide whether the motion to dismiss should be granted or denied; it stated that the court would decide the motion later.
The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and denied permission to appeal without paying the filing fee.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.