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  • Writer's pictureDaniel Schneider

Nunez Defendants Vindicated

Farber Schneider Ferrari LLP ("FSF") just vindicated three individuals, FSF clients, Yadira Nunez, Charles Nunez and Ayanna Sabb (the "Nunez Defendants") from civil liability when they were sued for witnessing an alleged crime, for calling and talking to the police and for cooperating in the police's investigation. In 2015, Calvin Waite was accused of various felonies against a family member of Yadira and Charles Nunez. He was ultimately never convicted due to a hung jury and has never been retried. Emboldened by the failure of the criminal action, Mr. Waite sued the Nunez Defendants, and others. See Waite v. Gonzalez, 22-cv-1318(PMC)(RLM)(E.D.N.Y., March 31, 2023).

In essence, the Nunez Defendants were sued for observing an alleged crime, calling the police and cooperating with a police investigation. Id. at pp. 25-27. These manifested in Fourteen Claims which included, but were not limited to, Civil Rights Violations in violation of 42 U.S.C. § 1983, municipal (Monell) liability, malicious prosecution, conspiracy, fraud, defamation/slander/libel, punitive damages, intentional infliction of emotional distress and negligent infliction of emotional distress. Id. at pp. 5-6.

The Nunez Defendants hired Daniel J. Schneider, Managing Partner of FSF to defend them in this lawsuit. Following review, FSF and the Nunez Defendants determined that making a pre-answer and pre-discovery application to dismiss, pursuant to Fed. R. Civ. P. 12(b), was the most prudent first response to the Complaint. Said application was successful in all respects and the case—all counts against the Nunez Defendants—was dismissed was with prejudice.

The Court held that the Federal Law Claims failed because the Complaint failed to show that the Nunez Defendants were state actors, or were acting under the "color of state law," or had any agreement with the police, at least one of which would have been required for the Federal Law Claims to succeed. See Waite, 22-cv-1318 at pp. 25-27. The particular claims made by Mr. Waite require "state action" which means that the allegations must have been done by someone who is part of the government, acting on behalf of the government and/or someone who is sufficiently connected to the government to be called a state actor. The term of art is acting under the "color of state law."

The Nunez Defendants are private citizens, have no connection to any governmental agency and simply called the police and cooperated with an investigation. They are wholly private actors. Since the Complaint contained no facts to refute this, the Court held that there could be no liability as against them under any theory that required state action. Id. Accordingly, the Complaint was dismissed with prejudice as against them. Id.

Likewise, the State Law Claims were dismissed because the District Court declined to hear them after the Federal Law Claims were dismissed. Id. at p. 27.

This dismissal demonstrates the strategic acumen of FSF in Federal Court together with the zealousness in advocacy to be successful in winning dismissals on all counts. Farber Schneider Ferrari LLP is overjoyed that it has secured such decisive victories for its clients. Absent any appeal, this case should be over.


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