Straight Line, L.L.C. v. Madigan

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________

STRAIGHT LINE, L.L.C. et al.,

Appellants, 3:18-cv-601

(GLS)

v.

ADAM M. MADIGAN,

Appellee.

________________________________

APPEARANCES: OF COUNSEL:

FOR THE APPELLANTS:

Selbach Law Offices, P.C. JAMES F. SELBACH, ESQ.

8809 Daylight Drive

Liverpool, NY 13090

FOR THE APPELLEE:

Orville & McDonald Law, P.C. PETER A. ORVILLE, ESQ.

30 Riverside Drive

Binghamton, NY 13905

Gary L. Sharpe

Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Appellants Straight Line, L.L.C., Jeffrey E. Barber, Jean B. Barber,

Emily J. Barber, Paul T. Barber, and Bethany A. Barber appeal from a

Memorandum-Decision and Order of Bankruptcy Court (Cangilos-Ruiz, J.),

(Dkt. No. 2 at 11-42) (hereinafter “Bankr. MDO”1), which, among other

things, dismissed appellants’ 11 U.S.C. § 523(a)(2)(A) claim against

appellee Adam M. Madigan after a bench trial, (Bankr. MDO at 2, 28, 32).

For the reasons that follow, Bankruptcy Court’s corresponding May 8, 2018

Judgment, (Dkt. No. 2 at 43), is vacated, and the case is remanded.

II. Background

Straight Line is a business that provides financing to dealers who buy

vehicles at auctions run by State Line Auto Auction, Inc., a related

business also owned by appellants. (Bankr. MDO at 3 & nn. 4-5.)2 In

October 2008, Jeffrey Barber, manager and president of State Line, hired

Madigan; after eight months of training under the outgoing credit manager,

Madigan became the credit manager. (Id. at 3 n.4, 4.)3

Madigan allowed Joseph and Chauncy Strevell (hereinafter “the

Strevells”), third parties who had been doing business with Straight Line for

1 Citations to Bankruptcy Court’s Memorandum-Decision and Order

refer to its internal page numbers. All other citations to Dkt. No. 2 refer to

the CM/ECF-generated page number(s).

2 The court assumes the parties’ familiarity with the underlying facts.

3 Technically, Madigan was hired to work at State Line, but State

Line employees also run Straight Line, which has no employees. (Bankr.

MDO at 4 & n.7.)

2

a month and had not yet made any payments, to substantially exceed their

$200,000 credit limit. (Id. at 6, 7.) When the Strevells began to finance

cars on behalf of RJC Trading with Straight Line, Madigan never

established a credit line, performed a credit check on RJC, or required the

Strevells to sign a financing agreement. (Id. at 7-8.) Moreover, Madigan

routinely released vehicle titles to the Strevells before they paid, (id. at 8),

which was something Straight Line only did in limited circumstances

inapplicable here, (id. at 5-6).

During the time the Strevells had an active business relationship with

Straight Line, Madigan did not disclose to appellants that the Strevells

were in excess of their credit limit and lacked a financing agreement for

RJC. (Id. at 8.) Madigan also did not disclose that he was releasing titles

to the Strevells before payment; he did so for seventy-eight vehicles that

were converted by the Strevells during the relevant time period. (Id. at 8,

11.)

Despite Barber asking Madigan numerous times about the Strevells,

Madigan failed to disclose any of this information. (Id. at 8-9, 20.)

Specifically, when Barber asked numerous times if the Strevells were

“okay,” Madigan “regularly responded that ‘[t]hey pay like clockwork.’” (Id.

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at 8.) Madigan also reported to appellants at weekly management

meetings but never filled them in on the Strevells. (Id. at 8.)

Appellants terminated all business with the Strevells when they

learned from an auction owner that they appeared to be legal risks. (Id. at

9.) Thereafter, Madigan engaged in a cover-up; he falsified business

records and lied to Barber and the police about how much the Strevells

owed Straight Line. (Id. at 10.) Madigan eventually pleaded guilty to

nineteen misdemeanor counts of falsifying business records under

§ 175.05 of the New York Penal Code. (Id.)

III. Standard of Review

District courts have jurisdiction to hear both interlocutory and final

appeals from bankruptcy court orders and judgments. See 28 U.S.C.

§ 158(a). In exercising its appellate jurisdiction, the district court reviews

findings of fact for clear error and conclusions of law de novo. See In re

Charter Commc’ns, Inc., 691 F.3d 476, 483 (2d Cir. 2012). Causation is a

finding of fact that is subject to clear error review. See Maricultura del

Norte v. Umami Sustainable Seafood, Inc., 769 F. App’x 44, 50 (2d Cir.

2019); CARCO GRP., Inc. v. Maconachy, 718 F.3d 72, 79 (2d Cir. 2013)

(citing Cont’l Ins. Co. v. Lone Eagle Shipping Ltd., 134 F.3d 103, 104 (2d

4

Cir. 1998) (per curiam)). “Clear error exists when although there is

evidence to support a finding, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake has been

committed.” Glossip v. Gross, 135 S. Ct. 2726, 2786 (2015) (internal

quotation marks and citation omitted). “On an appeal, a district court may

affirm, modify, or reverse a bankruptcy judge’s judgment, order, or decree

or remand with instructions for further proceedings.” Kohout v. Nationstar

Mortg., LLC, 576 B.R. 290, 295 (N.D.N.Y. 2017) (internal quotation marks,

footnote, and citations omitted).

IV. Discussion

The sole issue on appeal concerns appellants’ $1.5 million fraud

claim against Madigan pursuant to § 523(a)(2)(A), (Dkt. No. 7 at 6 (citing

Bankr. MDO at 17)), which Bankruptcy Court dismissed, (Bankr. MDO at

28, 32), for a lack of causation, (id. at 26, 28). The fraudulent

misrepresentations4 at issue are Madigan’s failures to fully respond to

4 Bankruptcy Court refers to Madigan’s fraudulent misrepresentation,

singular. (See, e.g., Bankr. MDO at 24, 26, 27.) However, Bankruptcy

Court found that Madigan answered multiple inquires by Barber about the

Strevells. (Id. at 8 (“Barber . . . approached [Madigan] numerous

times . . . and asked him [about the Strevells] . . . to which [Madigan]

regularly responded that ‘[t]hey pay like clockwork.’”); 20 (“The record

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Barber’s inquiries regarding the Strevells, (Id. at 21; Dkt. No. 7 at 8, 9-10),5

which do not include his subsequent cover-up.6

Bankruptcy Court analyzed the five elements of a § 523(a)(2)(A)

fraud claim: 1) material false representation, 2) scienter, 3) intent to

defraud, 4) justifiable reliance, and 5) causation. (Bankr. MDO at 18-19

(internal citations omitted).) Bankruptcy Court held that appellants

established the first four elements. (Id. at 22-23.)7 However, it also held

that appellants failed to establish the final element, causation. (Id. at 26,

reflects that Jeffrey Barber inquired of [Madigan] concerning the Strevells

on numerous occasions[.]”).) Thus, the court refers to Madigan’s

fraudulent misrepresentations, plural.

5 Bankruptcy Court correctly noted that “under well-established

principles . . . , a wholly truthful statement can qualify as a fraudulent

misrepresentation if ‘the maker knows or believes [the statement] to be

materially misleading because of his failure to state additional or qualifying

matter[s].’” (Bankr. MDO at 21 (quoting Restatement (Second) of Torts §

529).)

6 Appellants brought a second claim under § 523(a)(2)(A) regarding

Madigan’s cover-up. (Bankr. MDO at 19-20; 28-29.) Bankruptcy Court

dismissed this second § 523(a)(2)(A) claim. (Bankr. MDO at 29, 32.)

Appellants did not appeal that dismissal or Bankruptcy Court’s finding that

there was no evidence that Madigan was acting in concert with the

Strevells. (Id. at 20; Dkt. No. 7.)

7 Bankruptcy Court correctly noted that the burden here is

preponderance of the evidence. (Bankr. MDO at 18 (citing Grogan v.

Garner, 498 U.S. 279, 287 (1991)).)

6

28; Dkt. No. 7 at 6.) Causation is comprised of causation in fact and legal

causation, (Bankr. MDO at 18-19, 24-25, 27 (internal citations omitted)),

and Bankruptcy Court held that appellants failed to establish either, (id. at

26, 28), which is the subject of this appeal.

1. Causation in Fact

Causation in fact requires appellants’ reliance to be “a substantial

factor in determining the course of conduct that results in [their] loss.”

Restatement (Second) of Torts § 546 (Restatement).8 Bankruptcy Court

recognized as much but held appellants to a stricter “but-for” standard.

(Bankr. MDO at 24-25.) The Restatement explicitly rejects a but-for

standard in this context:

For a misrepresentation to be a cause in fact of the pecuniary

loss that results from the plaintiff’s action or inaction, the plaintiff

must have relied upon the misrepresentation in incurring the loss.

It is not, however, necessary that his reliance upon the truth of the

fraudulent misrepresentation be the sole or even the predominant

or decisive factor in influencing his conduct. It is not even

necessary that he would not have acted or refrained from acting

as he did unless he had relied on the misrepresentation. It is

enough that the representation has played a substantial part, and

so has been a substantial factor, in influencing his decision. Thus

it is immaterial that he is influenced by other considerations, such

8 As Bankruptcy Court correctly noted, the Supreme Court has

looked to the Restatement when faced with a § 523(a)(2)(A) claim.

(Bankr. MDO at 23-24 (citing Field v. Mans, 516 U.S. 59, 70 (1995)).)

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as similar misrepresentations from third persons, if he is also

substantially influenced by the misrepresentation in question.

Restatement § 546 cmt. b (emphasis added) (internal citation omitted).

Specifically, Bankruptcy Court concluded that “[t]he record is

devoid . . . of any evidence to support a finding of a point in time at which

any remedial actions taken by [appellant]s would have prevented or even

mitigated their loss.” (Bankr. MDO at 25.) “Without those facts in

evidence, . . . [Bankruptcy] [C]ourt cannot find that [Madigan] deprived

[appellant]s of a valuable remedial action, or, said another way, that

[appellant]s’ course of conduct (inaction) resulted in their loss.” (Id.)

This court is mindful that “[a]ssessments of the credibility of the

witnesses and the weight to be given to particular pieces of evidence are

peculiarly within the province of the trier of fact and are entitled to

considerable deference.” Cont’l Ins. Co., 134 F.3d at 104 (internal citation

omitted). However, as argued by appellants, (Dkt. No. 7 at 10-12), it was

clearly erroneous for Bankruptcy Court to find that there was no evidence

that remedial actions by appellants would have mitigated their loss. Jeffrey

Barber testified that had Madigan made him aware of the full truth, he

would have curtailed lending to the Strevells—he “would have shut them

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off,” (Dkt. No. 3, Attach. 11 at 78)—and would have repossessed vehicles,

(Bankr. MDO at 25). Barber also testified that appellants are able to

repossess vehicles on their own and could have done so in this instance.

(Dkt. No. 3, Attach. 11 at 78-79.)9

Importantly, this testimony was unrebutted; there is no reference to

any contrary testimony or evidence. (Dkt. No. 7 at 13); cf. First Fed. Sav.

& Loan Ass’n of Pittsburgh v. Oppenheim, Appel, Dixon & Co., 629 F.

Supp. 427, 437 (S.D.N.Y. 1986) (rejecting defendant’s causation argument

because “plaintiffs’ suggestion that they would have removed their

securities from [third party]’s control had they learned of the fraud [earlier] .

. . should control” and “had plaintiffs learned of the fraud at any time prior .

. . they would have at least refrained from depositing additional securities”).

The conclusion that “whether remedial actions taken at any given point in

time would have had any value and succeeded to any extent to stem the

loss” was “[m]issing,” (Bankr. MDO at 25), thus goes against Barber’s

unrebutted testimony.

9 This testimony refutes Bankruptcy Court’s conclusion that it

“cannot speculate that at a particular point in time [during the relevant time

period], [appellant]s would have acted to do something that would have

prevented their loss.” (Bankr. MDO at 25.)

9

Moreover, at trial, Madigan admitted his role in causing appellants’

damages:

At trial [Madigan] was asked . . . “And [appellants] were damaged

by your deception; were they not?[”] [Madigan] answered[,] “Yes.”

[Appellant]s’ counsel [also] asked[,] “And they were damaged in

the sum of $1.5 million?[”] [Madigan] answered, “Sounds about

right.” [Appellant]s’ counsel went on to ask [Madigan,] “You

deceived [Jeffrey Barber]. You committed fraud; didn’t you?[”]

[Madigan] answered[,] “If that’s your definition of fraud, then yes.”

(Id. at 23 n.15 (internal citations omitted).) Bankruptcy Court “consider[ed]

[Madigan]’s statements for what they [we]re worth, but d[id] not find them

to be beyond rebuttable proof of causation of [appellant]s’ damages.” (Id.

at 23 (internal footnote omitted).) However, there is no mention of how this

testimony was ever rebutted.

Bankruptcy Court also posited “alternative scenarios” that “could

have unfolded,” and offered, as examples, what might have happened in

2013 or February 2014. (Id. at 25.) However, Bankruptcy Court

determined the relevant time period during which appellants suffered their

loss to be from March 28 to May 23, 2014. (Id. at 11, 21.) The court

agrees with appellants that these alternative scenarios amount to

speculation outside the relevant time period. (Dkt. No. 7 at 15.)

Bankruptcy Court also noted that, after ending their business relationship

10

with the Strevells, appellants “made two fruitless attempts to limit their

exposure” and “even when [appellant]s knew of the Strevells’ duplicitous

conduct and attempted to repossess vehicles for which they held titles,

they still suffered a loss.” (Bankr. MDO at 26.) But, as appellants argue,

after the relationship with the Strevells ended, the loss had already

occurred; the question is whether anything could have been done during

the relevant time period, not afterward when it was too late. (Dkt. No. 7 at

15.)

Bankruptcy Court explained that it “d[id] not find that the self-serving

statements by [appellant]s about their hypothetical conduct, made with the

benefit of hindsight, are sufficient to meet their burden of proof.” (Bankr.

MDO at 26.) However, the fact that Barber’s unrebutted testimony is self-

serving is not, standing alone, a basis to disregard it. See Genn v. New

Haven Bd. of Educ., 219 F. Supp. 3d 296, 313 (D. Conn. 2016) (“The fact

that testimony is self-serving does not render it useless to the [c]ourt.

Were it otherwise, courts could rarely rely upon any evidence offered by

either side in a litigated matter.”); cf. Shon v. Sayres Corp., No. 93 Civ.

7654, 1995 WL 244582, at *2 n.3 (S.D.N.Y. Apr. 26, 1995) (“The fact that

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[evidence] is self-serving does not mean it is false.”). Moreover, the court

agrees with appellants that an analysis of causation in fact necessarily

entails looking back with the benefit of hindsight. (Dkt. No. 7 at 16.) In a

similar case cited by Bankruptcy Court, (Bankr. MDO at 23), the First

Circuit analyzed causation in fact—using hindsight—and reasoned that

“had [debtor] not lied to [plaintiff] about the building-permit status . . .

[plaintiff] would have canceled the construction contract and gotten back all

or most of [his] initial . . . payment.” In re Goguen, 691 F.3d 62, 69 (1st

Cir. 2012) (internal quotation marks omitted).

In sum, appellants established that their reliance on Madigan’s

fraudulent misrepresentations was a substantial factor in determining their

inaction to curtail lending and repossess vehicles, which resulted in the

loss, and Bankruptcy Court’s contrary finding is clear error.

2. Legal Causation

Despite concluding that there was no causation in fact, Bankruptcy

Court prudently continued its analysis by examining legal causation.

(Bankr. MDO at 27.) Legal causation hinges on reasonable foreseeability.

(Id. at 24, 27 (internal citations omitted)); see Restatement § 548A (“A

fraudulent misrepresentation is a legal cause of a pecuniary loss resulting

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from action or inaction in reliance upon it if, but only if, the loss might

reasonably be expected to result from the reliance.”) (emphasis added).

Bankruptcy Court determined that Madigan “could not have

reasonably foreseen that his misrepresentation . . . would open the door for

nefarious actors such as the Strevells to steal $1.5 million from

[appellants].” (Bankr. MDO at 27.) However, it also found that Madigan’s

conduct

gave rise to a situation (i) where the Strevells were significantly

beyond the credit limit set . . . , (ii) there was no credit limit set for

RJC Trading nor any guaranty in place, (iii) titles were

haphazardly loaned without adherence to company policy and

proper tracking, (iv) deposits were not made[,] and (v) proper fees

were not charged.

(Id. at 27-28). Even so, Bankruptcy Court reasoned that holding Madigan

liable for $1.5 million is “disproportionate to his culpability, especially in

light of the criminal acts of the Strevells.” (Id. at 28.) It also posited an

analogy: “[W]ere a bank employee to negligently leave a vault unlocked

and lie to their employer about the error, that lie could not reasonably be

considered the legal cause of the loss suffered when a third party robbed

the vault through the unlocked door.” (Id. at 28 n.17.)

For the following reasons, the court is left with the definite and firm

13

conviction that a mistake has been committed, and Bankruptcy Court’s

finding of no legal causation constitutes clear error. See Glossip, 135 S.

Ct. at 2786.

First, the analogy is flawed because Madigan did not act negligently

but—as Bankruptcy Court found—fraudulently. (Bankr. MDO at 21-23,

26.) Moreover, the analogy ignores that appellants’ loss might reasonably

be expected to result from their reliance on Madigan’s fraudulent

misrepresentations, which kept them from curtailing lending and

repossessing vehicles. See Restatement § 548A; cf. In re Parmalat Sec.

Litig., 501 F. Supp. 2d 560, 580 (S.D.N.Y. 2007) (“It is reasonably

foreseeable that misrepresenting a company’s financial condition, and thus

hiding from its innocent managers that the company is being driven into the

ground, will cause the company harm.”). In terms of the analogy,

appellants could have acted to prevent their loss while the vault that

Madigan left unlocked was being robbed by the Strevells, but Madigan’s

fraudulent misrepresentations kept them from doing so.

In a similar case cited by Bankruptcy Court, (Bankr. MDO at 23), the

First Circuit determined that legal causation existed. See Goguen, 691

F.3d at 70-72. There, the debtor was a contractor whom the plaintiff hired

14

to build an addition; the plaintiff stressed the importance of pouring the

concrete foundation before winter to prevent cracking. See id. at 64. “As

[the debtor] strung [the plaintiff] along with lies about the permit application,

[the debtor] could have reasonably foreseen that his deceit would delay the

project, which would lead to his pouring concrete in cold weather, which in

turn would lead to the foundation’s cracking.” Id. at 70. In other words, the

debtor “foresaw that, without adequate precautions, pouring concrete in

cold weather could lead to cracking,” which is what ultimately happened.

Id. at 71. The same reasoning applies here. Madigan’s

misrepresentations prevented appellants from knowing that they were

vulnerable to being ripped off by the Strevells, and it was reasonably

foreseeable that appellants would be unable to protect themselves once

the Strevells started ripping them off.

Safeguards such as credit limits and a policy of requiring payment

before releasing vehicle titles are meant to protect against the very harm

that the Strevells inflicted, i.e., stealing vehicle titles and failing to pay.

(Bankr. MDO at 4-6 (describing credit limit and title policy); 11 (describing

Strevells’ conversion of seventy-eight vehicles); 13-14 (noting “obvious

importance of Straight Line’s retention of title documents pending receipt of

15

payment” (emphasis added)).) It is thus especially foreseeable that the

loss would result from appellants’ reliance on Madigan’s repeated

fraudulent mispresentations concerning the Strevells. Cf. Charney v.

Wilkov, 734 F. App’x 6, 11 (2d Cir. 2018) (reasoning defendant’s lack of

knowledge that third parties would commit criminal acts irrelevant because

“[t]he loss of [real estate] investments was a foreseeable outcome from her

failure to do any due diligence or to monitor the properties”); Oei v.

Citibank, N.A., 957 F. Supp. 492, 509 (S.D.N.Y. 1997) (reasoning third

party’s fraud did not break chain of causation because it was “one of the

evils [defendant] was supposed to guard against” and “the harm was

foreseeable”); Kush v. City of Buffalo, 59 N.Y.2d 26, 33 (1983) (“When the

intervening, intentional act of another is itself the foreseeable harm . . . ,

the defendant who fails to guard against such conduct will not be relieved

of liability when that act occurs.”)

Bankruptcy Court also focused on “policy considerations that serve to

place manageable limits upon the liability that flows from

negligent conduct.” (Bankr. MDO at 28 (internal quotation marks and

citation omitted) (emphasis added).) But fraudulent misrepresentation is

an intentional tort, see Field 516 U.S. at 70, and the same policy

16

considerations do not apply, see Meyers v. Epstein, 282 F. Supp. 2d 151,

154 (S.D.N.Y. 2003) (“[R]esponsibility for harmful consequences should be

carried further in the case of one who does an intentionally wrongful act

than in the case of one who is merely negligent or is not at fault.”) (quoting

Restatement § 435B cmt. a) (internal citations omitted). “For an intended

injury, the law is astute to discover even very remote causation.”

Associated Gen. Contractors of Calif, Inc. v. Calif State Council of

Carpenters, 459 U.S. 519, 548 n.3 (1983) (internal quotation marks and

citation omitted); see also Knepper v. Brown, 345 Or. 320, 330 (2008)

(“Courts have noted that, when an intentional tort is involved, the range of

legal causation can be quite broad[.]”) (internal citations omitted).

Bankruptcy Court considered $1.5 million to be “an amount

disproportionate to [Madigan’s] culpability” and “too out of proportion to

[his] misrepresentation[s].” (Bankr. MDO at 28 & n.17.) But legal

causation turns on reasonable foreseeability, not proportionality. See

Restatement § 548A. Bankruptcy Court also determined that legal

causation in this case “would overly burden employees for third-party

misconduct, would allow employers to fraudulently pursue remuneration

from employees rather than appropriate third-party bad actors, and there

17

would be no reasonable stopping point to the employee’s liability.” (Bankr.

MDO at 28 n.17.) But the reasonable stopping point to liability is the

applicable standard—reasonable foreseeability. And Madigan would not

be burdened by the misconduct of third-party bad actors if he had not

made fraudulent misrepresentations about those actors.

Finally, Bankruptcy Court reasoned that “holding employees

personally liable for the conduct of third parties, even where they lie to their

employers about their conduct, would wrongly absolve employers of their

responsibility to supervise adequately their employees.” (Id.) But

Bankruptcy Court found that Madigan trained for eight months under

Straight Line’s long-time credit manager and “was well aware that he was

violating company policy” as to the Strevells. (Id. at 4, 21.) Furthermore,

“[i]t was [Madigan]’s job to be on top of the very issues he hid from

[appellants,] and [appellant]s were justified in relying upon [him] to perform

the core responsibilities attendant to the position.” (Id. at 23.) It is thus

difficult to say that appellants failed to adequately supervise Madigan.

3. Damages

As explained above, appellants established causation in fact and

legal causation. However, what remains to be determined is how much of

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their $1.5 million loss was caused by Madigan’s fraudulent

misrepresentations. Bankruptcy Court defined the relevant period as

March 28 to May 23, 2014, during which the Strevells converted seventy-

eight vehicles with a value of $1,500,580.00. (Id. at 11, 21.) But even

appellants recognize that Madigan is not responsible for all of their $1.5

million loss. (Dkt. No. 7 at 12 (“Had [Barber] known the truth early in [the

relevant] [p]eriod, the majority of the damages would have been

prevented.”) (emphasis added).)

After concluding on appeal that causation had been established for a

§ 523(a)(2)(A) claim, in Goguen the First Circuit remanded for a

determination of how much of the loss at issue was attributable to the

debtor’s fraudulent misrepresentations. See 691 F.3d at 72 (deciding “[a]t

least some portion of . . . damages is attributable to the [the debtor’s

fraudulent misrepresentations]” and remanding because “the bankruptcy

judge made no findings on that score, which is not surprising given that

[the plaintiff] simply offered a ballpark estimate . . . [and] provid[ed] no

precise figures”). A remand here is necessary for the same reasons. See

id.

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Thus, Bankruptcy Court’s May 8, 2018 Judgment, (Dkt. No. 2 at 43),

is vacated, and the case is remanded to Bankruptcy Court for further

proceedings consistent with this Memorandum-Decision and Order.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Bankruptcy Court’s May 8, 2018 Judgment (Dkt. No.

2 at 43) is VACATED; and it is further

ORDERED that the case is REMANDED to Bankruptcy Court for

further proceedings consistent with this Memorandum-Decision and Order;

and it is further

ORDERED that the clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT IS SO ORDERED.

August 19, 2019 : | =

Albany, New York ;

Disinct Judge

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