Rodriguez v. Winski

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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YDANIS RODRIGUEZ, et al.,

Plaintiffs,

MEMORANDUM AND ORDER

- against –

12 Civ. 3389 (NRB)

EDWARD WINSKI, et al.,

Defendants.

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NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE

This case arises from the so-called “Occupy Wall Street”

protests. After years of litigation since this case was commenced

in 2012, the National Press Photographers Association (the “NPPA”

or “plaintiff”), which was added as a plaintiff in the First

Amended Complaint filed on October 16, 2012, is now the sole

remaining plaintiff. The only remaining defendants in this action

are the City of New York; former New York City Mayor Michael

Bloomberg; former New York City Police Commissioner Raymond Kelly;

and several officers of the New York City Police Department

(“NYPD”) (collectively, “defendants”). On May 16, 2019, the Court

granted in part and denied in part NPPA’s motion for leave to amend

its First Amended Complaint, and NPPA filed a Second Amended

Complaint (“SAC”) on June 7, 2019. Subsequently, defendants moved

to dismiss the SAC. For the following reasons, defendants’ motion

is granted.

I. BACKGROUND

A. Occupy Wall Street Protests

The claims NPPA seeks to assert in this action are based on

defendants’ alleged “mistreatment of [NPPA members] during their

press coverage of protests and demonstrations” that took place at

various locations in New York City in 2011 as part of the “Occupy

Wall Street” (“OWS”) protests. SAC (ECF No. 247) ¶ 2. Plaintiff

NPPA, a 501(c)(6) tax exempt New York corporation “dedicated to

the advancement of visual journalism,” id. at ¶ 10, alleges on

behalf of its approximately five thousand (5,000) active members

that the City of New York (the “City”) and other individuals who

are formerly or currently associated with the City in various

capacities denied its members’ rights. Specifically, NPPA alleges

that defendants infringed its members’ rights under the First

Amendment to the United States Constitution (“First Amendment”)

and Sections 8 and 12 of Article I of the New York State

Constitution by (1) interfering with its members’ efforts to record

certain police actions in connection with the OWS protests, id. at

¶¶ 18-19; and (2) preventing them from reaching publicly

accessible spaces where the OWS protests were taking place. Id.

at ¶¶ 18, 24-25, 44.

In pleading its purported claims, NPPA identifies two of its

members by name. First, NPPA member Stephanie Keith was allegedly

arrested on October 1, 2011 while she was covering an OWS

demonstration on the Brooklyn Bridge. Id. at ¶ 44. In addition,

defendant NYPD Lieutenant Daniel Albano used physical force

against Keith while she was covering a different demonstration on

September 15, 2012. Id. at ¶ 47. Second, NPPA alleges that, on

December 12, 2011, its member Robert Stolarik was physically

blocked by NYPD officers when he attempted to take photos of NYPD

officers arresting protesters at the Winter Garden. Id. at ¶ 41.

NPPA also alleges that defendants infringed its members’

rights by taking action on November 15, 2011 to clear its members

out of the Zuccotti Park (the “Park”), which was then the primary

location of the OWS protests and by restricting access to the Park

for the remainder of the day. Id. at ¶¶ 18, 25. According to

NPPA, some journalists were arrested on the night of November 15,

2011 while attempting to reach the Park. Id. at ¶ 25. However,

NPPA does not identify any of its own members who were arrested

that night. NPPA alleges that it expended time and resources

representing its members who were arrested or criminally charged

in the course of covering the OWS protests. Id. at ¶¶ 39; 49.

B. Procedural History

Fifteen individual plaintiffs commenced this action on April

30, 2012. See ECF No. 1. A few months later, on October 16, 2012,

NPPA joined this case when the First Amended Complaint (“FAC”) was

filed. See ECF No. 33. Following the Court’s Memorandum and Order

of September 26, 2013, which dismissed certain claims and severed

claims brought against a subset of defendants, see ECF No. 80, the

remaining parties engaged in over a year of fact discovery before

jointly requesting referral to a magistrate judge for settlement

discussions. See ECF No. 116. While the Court referred the case,

see ECF No. 118, it denied defendants’ subsequent request for a

stay of any further discovery in the hope that the parties would

“focus on discovery that will advance the settlement process.”

See ECF No. 146. Targeted discovery and several rounds of

settlement negotiations ensued.

By April 24, 2018, every plaintiff except NPPA had either

reached a settlement in principle with defendants or withdrawn her

claims. See ECF No. 209. On June 15, 2018, defendants filed a

letter seeking leave to file a motion for judgment on the pleadings

against NPPA, arguing that NPPA lacked standing to bring this

action and, alternatively, had failed to adequately plead any

claim. See ECF No. 218. In response, NPPA moved for leave to

amend its FAC in advance of defendants’ proposed motion. See ECF

No. 225. On May 16, 2019, the Court issued a Memorandum and Order,

granting in part and denying in part NPPA’s motion. See ECF No.

237. In granting leave, the Court allowed NPPA only to add “a

claim for damages suffered directly by the NPPA” because any other

substantive amendment following an unjustified delay of six years

would cause unfair prejudice to defendants. Id. at 7-8, 11.

NPPA filed the SAC on June 7, 2019, see ECF No. 241, invoking

28 U.S.C. § 1331 for the Court’s jurisdiction over the claims it

seeks to assert under 42 U.S.C. § 1983. See SAC ¶ 5. As to the

claims it seeks to assert under New York law, NPPA has relied on

the Court’s supplemental jurisdiction. Id. Defendants moved to

dismiss the SAC on August 16, 2019. See ECF No. 246.

II. DISCUSSION: STANDING

At the outset, the Court addresses whether NPPA has standing

to bring the claims it seeks to assert in the SAC. Standing “is

the threshold question in every federal case, determining the power

of the court to entertain the suit.” Denney v. Deutsche Bank AG,

443 F.3d 253, 263 (2d Cir. 2006). Article III of the United States

Constitution limits the Court’s jurisdiction to an “actual case or

controversy.” U.S. Const. art III, § 2. The doctrine of standing

animates this constitutional limitation by requiring a plaintiff

to establish “a personal stake in the outcome of the controversy

as to warrant his invocation of federal-court jurisdiction and to

justify exercise of the court’s remedial powers on his behalf.”

Warth v. Seldin, 422 U.S. 490, 498-99 (1975).

As the party invoking federal jurisdiction, NPPA bears the

burden of establishing standing. Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992). Under current standing jurisprudence,

an organization may assert two distinct types of standing: (1)

organizational standing, and (2) associational standing. Under

the organizational standing theory, “an association may have

standing in its own right to seek judicial relief to itself and to

vindicate whatever rights and immunities the association itself

may enjoy.” Warth, 422 U.S. at 511. In contrast, under the

associational standing theory, “an association has standing to

bring suit on behalf of its members.” Hunt v. Wash. St. Apple

Advert. Commission, 432 U.S. 333, 343 (1977). NPPA asserts both

types of standing in bringing this action. Defendants maintain

that NPPA has neither.

A. Organizational Standing

As just discussed, “an association may have standing in its

own right to seek judicial relief to itself and to vindicate

whatever rights and immunities the association itself may enjoy”

under the organizational standing theory. Warth, 422 U.S. at 511.

To establish organizational standing, an organizational plaintiff

“must meet the same standing test that applies to individuals.”

Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir.

1998). Accordingly, NPPA bears the burden of showing: (1) a

distinct and palpable injury in fact to itself as an organization;

(2) that is fairly traceable to the challenged action; and (3)

that a favorable decision would redress its injuries. Nnebe v.

Daus, 644 F.3d 147, 156 (2d Cir. 2011).

The relief NPPA seeks in this action includes money damages

as well as injunctive and declaratory relief. However, the only

injury allegedly suffered by NPPA as an organization is that NPPA

“dedicated significant time, money, and resources towards

advocating for its members’ rights and getting criminal charges

against its members dismissed after its members were arrested” as

a result of the challenged conduct by defendants. SAC ¶¶ 39, 49.

The SAC does not contain allegations suggesting any infringement

of NPPA’s own rights—as opposed to its members’ rights—protected

by either of the Federal and the New York State Constitutions.

1. Claim for Injunctive and Declaratory Relief

The alleged injury of “resources expended in advocating its

members’ rights and representing its members against criminal

charges” is insufficient to establish organizational standing to

pursue a claim for injunctive or declaratory relief. On this

point, the Second Circuit’s decision in Knife Rights, Inc. v.

Vance, 802 F.3d 377 (2d Cir. 2015), is instructive and controlling.

In Knife Rights, the plaintiff Knife Rights was a membership

organization advocating the right to carry and use knives and

tools. Id. at 381-82. Knife Rights brought a lawsuit for

injunctive and declaratory relief against the City’s application

of New York Penal Law provisions criminalizing possession of

“gravity knives,” alleging that the City had applied those

provisions in an overly vague manner. Id. at 379. In bringing

that lawsuit, Knife Rights asserted both associational and

organizational standing. Id. at 387-88. In its effort to

establish organizational standing, Knife Rights cited “the

expenses [it] incurred in opposing [the City’s] application” of

the provisions at issue in a manner that infringed its members’

due process rights under the United States Constitution as the

injury it suffered on its own as an organization. Id. at 379,

388. Regarding this injury, the Second Circuit concluded that:

Even assuming that such expenditures “perceptively

impaired” [Knife Rights’] activities, they at best

demonstrate past injury. Such injury might admit

standing to sue for compensatory damages. But it is not

an injury that can be redressed through the prospective

declaratory and injunctive relief sought in this action.

Id. at 388 (emphasis in original). Thus, under the Second

Circuit’s reasoning in Knife Rights, the injury alleged by NPPA

does not provide NPPA organizational standing to pursue a claim

for the sought after injunctive or declaratory relief. SAC ¶¶ 39,

49.

NPPA attempts to convert its alleged injury dating back to

2011 into a prospective one by citing a FINEST Message issued by

the NYPD on September 14, 2018 (the “Message”). See SAC ¶ 50;

SAC, Ex. H (NYPD FINEST Message, dated September 14, 2018). “The

NYPD’s ‘FINEST’ messaging system allows the transmission of legal

directives to the NYPD’s commands.” Floyd v. City of New York,

959 F. Supp. 2d 668, 684 n.61 (S.D.N.Y. 2013). In the Message,

NYPD reminded its officers to review their responsibilities when

dealing with members of the press, such as “not interfer[ing] with

photographing or videotaping by properly credentialed members of

the press.” SAC, Ex. H. The Message also reminded officers that

“parking of police (or other agency vehicles) . . . in areas that

are reserved by sign for the parking of press vehicles . . . [was]

strictly prohibited absent urgent or necessary police action.”

Id. Despite the fact that the Message as a whole states a policy

that NPPA would presumably find unobjectionable, NPPA appears to

focus on the phrase “[i]n light of recent events regarding

recording of police actions” at the beginning of the Message.

According to NPPA, the inclusion of this phrase necessarily

suggests that there had been a number of instances that constituted

violations of press members’ rights. This argument is without

merit. The relied upon statements in the Message are non-specific

and consequently cannot be used to establish a violation of any

NPPA member’s rights, upon which an injury to NPPA could be

predicated. Further, the SAC is devoid of any allegation

suggesting that the alleged conduct by defendants had persisted—

and that NPPA had repeatedly been injured as a consequence—during

the period of years between the incidents described in the SAC and

the issuance of Message.1 The Message is not a substitute for such

1 Even were we to assume, contrary to the Message, that the alleged

“continuous and ongoing nature of the Constitutional violations at issue,” SAC

¶ 67, has created a prospect of NPPA expending additional resources in

an allegation. Moreover, given the clear policy of non-

interference that is currently in effect, there is no basis for

asserting a claim for equitable relief against the City, its former

officials and individual NYPD officers. Therefore, the Court

dismisses NPPA’s claim that it seeks to assert on its own for lack

of standing to the extent it seeks any form of equitable relief.

2. Claim for Compensatory Damages

As discussed above, the Second Circuit’s reasoning in Knife

Rights indicates that the injury alleged by NPPA might provide

NPPA organizational standing to pursue a claim for compensatory

damages. However, NPPA has failed to proffer sufficient facts to

sustain its assertion of organizational standing to pursue any

such claim. The Second Circuit has repeatedly observed that, in

contrast to a motion to dismiss for failure to state a claim, “when

the question to be considered is one involving the jurisdiction of

a federal court, jurisdiction must be shown affirmatively, and

that showing is not made by drawing from the pleadings inferences

favorable to the party asserting it.” Shipping Fin. Serv. Corp.

v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Therefore, in order

to pursue a claim to recover compensatory damages for resources it

allegedly expended, NPPA must adduce sufficient facts that

advocating its members’ rights going forward, NPPA still has failed to establish

organizational standing to pursue a claim for equitable relief because it has

failed to show that such expenditures are “certainly impending” and not merely

possible. Knife Rights, 802 F.3d at 389.

establish an injury-in-fact on their face and without the benefit

of any inference that may be drawn therefrom.

To establish an injury-in-fact, an organizational plaintiff

must show that it has suffered “a ‘perceptible impairment’ of [its]

activities.” Nnebe, 644 F.3d at 157. NPPA’s allegation of injury

is, in essence, that it “dedicated significant time, money, and

resources towards advocating for its members’ rights and getting

criminal charges against its members dismissed after its members

were arrested by the NYPD for doing nothing more than performing

the responsibilities of their jobs.” SAC ¶ 49.2 Defendants argue

that the resources NPPA allegedly expended in advocating its

members do not amount to legally cognizable injury. Contrary to

defendants’ contention, the Second Circuit has “explicitly

rejected the argument that litigation expenses are insufficient to

demonstrate an injury in fact for the purposes of Article III

standing.” Mental Disability Law Clinic, Touro Law Ctr. v. Hogan,

519 F. App’x 714, 717 (2d Cir. 2013).

However, NPPA still has failed to satisfy its burden to

affirmatively show that it has suffered injury-in-fact sufficient

2 NPPA’s conclusory allegation that it expended time and resources in

“supporting” its members in connection with the challenged conduct by

defendants, see, e.g., SAC ¶¶ 86, 94, does nothing to enhance its standing. To

establish organizational standing, an entity must sufficiently allege that “the

defendant’s conduct or policy interferes with or burdens an organization’s

ability to carry out its usual activities.” De Dandrade v. U.S. Dep’t of

Homeland Sec., 367 F. Supp. 3d 174, 182 (S.D.N.Y. 2019) (emphasis added). The

SAC is completely devoid of any allegation detailing how the general support

that was purportedly provided by NPPA was inconsistent with NPPA’s ordinary

operations of advocating its members’ rights.

for organizational standing. As discussed earlier, the SAC focuses

on four incidents: the NYPD’s operation to expel protesters from

and deny them access to the Zuccotti Park on November 15, 2011; an

NYPD officer’s interference with NPPA member Stolarik’s attempt to

record police actions at the Winter Garden on December 12, 2011;

an NYPD officer’s arrest of Keith on the Brooklyn Bridge on October

1, 2011; and an encounter between defendant NYPD Lieutenant Daniel

Albano and Keith on September 15, 2012. NPPA has failed to

establish any injury based on the incidents involving Stolarik and

Keith because the SAC provides no information as to how—or even

whether—NPPA expended any resources or time assisting either of

them in connection with these incidents. The same defect applies

to NPPA’s pleading of injury-in-fact based on the November 15,

2011 Zuccotti Park incident. The SAC does not provide any

information—such as the number of members it assisted, the names

of arrested NPPA members who it assisted or any estimate of the

amount of time and money it expended in assisting its members—that

would help us determine that it actually expended any resources in

defending its members who were arrested or criminally charged in

connection with the Zuccotti Park incident.

NPPA’s failure to provide at this late date any specifics to

support its assertion of injury-in-fact requisite for

organizational standing is dispositive and inexcusable. First,

NPPA was well aware from the defendants’ pre-motion letter, which

preceded NPPA’s motion for leave to amend, that defendants were

challenging NPPA’s standing. Second, the absence of data to

support injury-in-fact is particularly striking since the record

of NPPA members who were represented by it should presumably be in

NPPA’s possession. Third, it is noteworthy that NPPA has already

obtained a significant amount of discovery materials from

defendants. Discovery between NPPA and defendants began on May 1,

2014. See ECF No. 99. On November 19, 2014, on a motion to compel

by plaintiffs, the Court issued an order, requiring defendants to

produce certain documents “including arrest records.” See ECF No.

114. Defendants subsequently requested a stay of discovery with

respect to documents not covered by the Court’s Order of November

19, 2014, citing ongoing settlement discussions. See ECF No. 144.

However, the Court denied the request. See ECF No. 146. By August

2016, the parties had already completed a substantial portion of

deposition discovery. See ECF No. 176.

In sum, having failed to establish that the alleged conduct

by defendants caused any “perceptible impairment,” or even any

adverse effect, to its ordinary advocacy operations, NPPA has

failed to satisfy its burden to affirmatively show an injury-in-

fact requisite for organizational standing. Therefore, NPPA’s

claim for compensatory damages is dismissed for lack of standing.

B. Associational Standing

As previously discussed, under the associational standing

theory, “an association has standing to bring suit on behalf of

its members” under qualifying circumstances. Hunt v. Wash. St.

Apple Advert. Commission, 432 U.S. 333, 343 (1977). To establish

associational standing, an organizational plaintiff must show that

“(1) its members would otherwise have standing to sue in their own

right; (2) the interests it seeks to protect are germane to the

organization’s purpose; and (3) neither the claim asserted nor the

relief requested requires the participation of individual members

in the lawsuit.” Id. (numberings modified). The Supreme Court

has treated this test as requiring, inter alia, “an organization

suing as representative to include at least one member with

standing to present, in his or her own right, the claim (or the

type of claim) pleaded by the association.” United Food and Com.

Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555

(1996). While the first prong of the test prescribed in Hunt does

not go as far as requiring an organizational plaintiff asserting

associational standing to identify any member with standing in his

or her own right by name, the organizational plaintiff must at a

minimum “make specific allegations establishing that at least one

identified member had suffered or would suffer harm.” Summers v.

Earth Island Inst., 555 U.S. 488, 498 (2009).3

1. Pleading of Associational Standing

NPPA’s pleading of associational standing fails to satisfy

the Hunt test. In the SAC, NPPA identifies two of its members by

name, Stephanie Keith and Robert Stolarik. However, the

allegations with respect to those members are insufficient to

support NPPA’s associational standing. Stephanie Keith does not

have standing in her own right because, although she was an

original plaintiff, see ECF No. 1 (Complaint) at ¶ 23, Keith

eventually settled with defendants and consented to the dismissal

of all of her claims with prejudice. See ECF No. 205. Therefore,

allegations about any harm that Keith may have suffered cannot

provide any support to NPPA’s assertion of associational standing.

See Summers, 555 U.S. at 494 (rejecting an organizational

plaintiff’s assertion of associational standing based on a harm

3 We note that there is a split in this District as to whether the

associational standing doctrine requires identification by name of a member

with standing. Compare Equal Vote Am. Corp. v. Congress, 397 F. Supp. 3d 503,

509 (S.D.N.Y. 2019) (McMahon C.J.) (Stating “in order to bring claims on behalf

of its members under the ‘associational standing’ doctrine, an organizational

plaintiff . . . must identify, by name, at least one member with standing.”),

with Nat. Resources Def. Council, Inc. v. Wheeler, 367 F. Supp. 3d 219, 227

(S.D.N.Y. 2019) (Pauley J.) and New York v. U.S. Dep’t of Com., 351 F. Supp. 3d

502, 606 n.48 (S.D.N.Y. 2019) (Furman J.), rev’d on other grounds, 139 S. Ct.

2551 (2019) (Concluding that an organizational plaintiff must establish that at

least one identified member has suffered or would suffer harm but need not

identify by name any member with standing in his or her own right). We need

not address this issue in resolving this motion because NPPA’s pleading of

associational standing fails under either standard. Thus, we will proceed under

the more lenient standard.

allegedly suffered by its member who settled with respect to that

harm).

Nor are the allegations about Robert Stolarik sufficient to

establish NPPA’s associational standing. NPPA alleges that NYPD

officers physically blocked its member Robert Stolarik while he

was attempting to record police actions in connection with a

demonstration that took place at the Winter Garden on December 12,

2011. SAC ¶¶ 40-42.4 Even were we to assume that Stolarik

sustained a harm sufficient under the first prong of the Hunt test,

NPPA’s assertion of associational standing based on Stolarik still

fails because of the third prong of the Hunt test, which requires

a showing that “neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.”

Hunt, 432 U.S. at 343. Insofar as the claim NPPA seeks to assert

on behalf of its members is predicated solely on the interaction

between Stolarik and the NYPD on December 12, 2011 at the Winter

Garden, facts involving Stolarik as an individual would have to

4 Defendants argue that NPPA does not have standing to pursue any claim

based on allegations involving Stolarik because he filed a separate lawsuit on

his own, went to trial, and received a non-prevailing jury verdict. See Defs.’

Opp’n at 10. This argument does not withstand close analysis. In his own

lawsuit, Stolarik did not make any allegation as to the December 12, 2011

incident at Winter Garden and only asserted claims under the Fourth and

Fourteenth Amendments to the United States Constitution based on his arrest on

August 4, 2012 in the Bronx in a context completely unrelated to the OWS

protests. See Stolarik v. City of New York, et al., 15 Civ. 5858 (RMB), First

Amended Complaint (ECF No. 18). Accordingly, Stolarik’s individual action has

no bearing on this action, which is a lawsuit based on the alleged violations

of his First Amendment rights, and similar rights under the New York State

Constitution, in connection with the December 12, 2011 incident as part of the

OWS protests.

dominate, and Stolarik “would have to be involved in the proof of”

NPPA’s associational standing claim. Bano v. Union Carbide Corp.,

361 F.3d 696, 714-15 (2d Cir. 2004).

Therefore, NPPA has failed to satisfy Article III’s

requirements for associational standing, and any claims it seeks

to assert on behalf of its members are dismissed.

2. Lack of Subject Matter Jurisdiction

Separate from NPPA’s failure to satisfy Article III’s

requirements for associational standing, the claims NPPA seeks to

assert on behalf of its members should alternatively be dismissed

for lack of subject matter jurisdiction. “It is the law of [the

Second] Circuit that an organization does not have standing to

assert the rights of its members in a case brought under 42 U.S.C.

§ 1983, as [the Second Circuit has] interpreted the rights § 1983

secures to be personal to those purportedly injured.” Nnebe v.

Daus, 644 F.3d 147, 156 (2d Cir. 2011) (citing League of Women

Voters of Nassau Cty. v. Nassau Cty. Bd. of Supervisors, 737 F.2d

155, 160 (2d Cir. 1984)). While acknowledging different approaches

adopted by other circuits, the Second Circuit recently reaffirmed

this doctrine in Centro de la Comunidad Hispana de Locus Valley v.

Town of Oyster Bay, 868 F.3d 104, 122-24 (2d Cir. 2017).

Accordingly, NPPA cannot assert on behalf of its members any claim

under § 1983. Thus, the only remaining claims are those predicated

on alleged violations of its members’ rights under the New York

State Constitution.5 NPPA relies on supplemental jurisdiction, as

it must, in invoking the Court’s jurisdiction over these claims.

Pursuant to 28 U.S.C. § 1367(c)(3), a district court “may decline

to exercise supplemental jurisdiction over a claim” where “the

district court has dismissed all claims over which it has original

jurisdiction.” See also Carnegie-Mellon Univ. v. Cohill, 484 U.S.

343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law

claims are eliminated before trial, the balance of factors to be

considered under the pendent jurisdiction doctrine—judicial economy,

convenience, fairness, and comity—will point toward declining to

exercise jurisdiction over the remaining state-law claims.”).

Therefore, we decline to exercise supplemental jurisdiction over the

claims predicated on NPPA members’ rights under New York law that

NPPA seeks to assert on behalf of its members.

5 “The New York State Constitution provides a private right of action

where remedies are otherwise unavailable at common law or under § 1983.” Allen

v. Antal, 665 F. App’x 9, 13 (2d Cir. 2016). Given the New York Court of

Appeals’ conclusion that an individual’s rights regarding the freedom of

expression and press under Article I, Section 8 of the New York State

Constitution are broader than those under the First Amendment to the United

States Constitution, Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249 (N.Y.

1991), the NPPA members might have private causes of action under the New York

State Constitution that are distinct from the claims they might have been able

to bring under 42 U.S.C. § 1983. In resolving the pending motion, we assume

that NPPA members do have separate private causes of action under the New York

State Constitution without expressing any view as to the merits of this

proposition.

TET. CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss

NPPA’s Second Amended Complaint is granted for lack of standing.

This Memorandum and Order resolves ECF Docket Entry No. 246. As

there are no remaining plaintiffs, the Clerk of Court is

respectfully directed to enter judgment for defendants and close

the "case:

SO ORDERED.

Dated: New York, New York

March £&, 2020

NAOMI REI BUCHWA

UNITED STATES DISTRICT JUDGE

1A