# New v. M&T Bank Corporation

> District Court, W.D. New York · January 2, 2024

URL: https://www.frixlaw.com/law-library/cases/10366748

## Case

- **Court:** District Court, W.D. New York
- **Decided:** January 2, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10366748

## How later opinions describe it (automated extraction)

- noting that a complaint is deemed to include any written instrument that is incorporated by reference or “integral” to the complaint
- finding that defendant’s statement that an agreement “would accomplish [p]laintiffs’ goals” was “not a statement of existing fact but an opinion . . . of the future value of the agreement”
- noting that credit ratings are “based on an analysis of underlying facts conducted by respected rating organizations”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ISAIAH THOMAS NEW,

Plaintiff,
21-CV-1186-LJV
v. DECISION & ORDER

M&T BANK CORPORATION, et al.,

Defendants.

On November 2, 2021, the pro se plaintiff, Isaiah Thomas New, commenced this
action under 42 U.S.C. § 1981, the New York State Human Rights Law, and New York
State common law. Docket Item 1; see Docket Item 6 (amended complaint). New, a
former employee of M&T Bank Corporation (“M&T” or “M&T Bank”), alleges that the
defendants—M&T, Manufacturers and Traders Trust Company, M&T Deputy Counsel
Arthur H. Salman, and several John Does—discriminated against him on the basis of
race and unlawfully retaliated against him when he complained about the discrimination.
Id.
On September 6, 2022, the defendants moved to dismiss the amended
complaint, Docket Item 11; on September 28, 2022, New responded, Docket Item 17;
and on October 12, 2022, the defendants replied, Docket Item 18.
For the reasons that follow, the defendants’ motion to dismiss will be granted
unless New files a second amended complaint correcting the deficiencies identified
below.
FACTUAL BACKGROUND1

From July 2017 to June 2018, New—a Black man with “a bachelor’s degree in
economics from an Ivy League university,” Docket Item 6 at ¶¶ 5, 7—worked in M&T’s
Finance Division as a “Management Trainee and Corporate Analyst,” id. at ¶ 10. He
was “the only [B]lack employee” out of “approximately 75 staff” members on the floor
where he worked, id. at ¶ 7, and “one of less than eight” Black employees “in the entire
350-person Finance Division,” id. at ¶ 8.
Shortly after he started at M&T, New began to experience “daily harassment,
verbal abuse[,] and racist jokes.” Id. at ¶ 17. For example, New’s manager—a white
man—“yelled at [New] for various petty and insignificant things,” id. at ¶ 18, but “did not

treat other bank employees . . . in such a manner,” id. at ¶ 19. New repeatedly raised
concerns about his manager’s conduct and documented those concerns in writing. Id.
at ¶¶ 20-22, 25. M&T’s human resources department (“HR”) met with New and
conducted an investigation but found “no evidence of misconduct or discrimination.” Id.
at ¶¶ 25-26. HR assigned New to a different manager but took no other “remedial
action.” Id. at ¶ 26 (emphasis omitted).

1 In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
the court “accept[s] all factual allegations as true and draw[s] all reasonable inferences
in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt.,
843 F.3d 561, 566 (2d Cir. 2016).
The following facts are taken from the amended complaint, Docket Item 6, and
the separation agreement referenced throughout the amended complaint, Docket Item
11-3; see Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (noting that a complaint is
deemed to include any written instrument that is incorporated by reference or “integral”
to the complaint).
In the following months, the harassment “increased in frequency and severity.”
Id. at ¶ 28. For example, a white secretary “spread[] rumors that [New] was ‘brown-
nosing’ favor and ‘sucking[ ]up to’ managers,” causing New “reputational harm.” Id. at
¶ 29. And a group of white employees “would regularly congregate in front of [New’s]

cubicle and make lewd, offensive jokes about African-Americans.” Id. at ¶ 33.
New continued to report the harassment to HR. Id. at ¶¶ 31-32, 36. Eventually,
he brought his concerns about the racist jokes to M&T Deputy Counsel Salman, who
told New to “call [him] when it happens again” but did not take any other action to
address the harassment. Id. at ¶¶ 36-37 (emphasis omitted); see id. at ¶ 14. A few
months later, New requested another meeting with Salman to report “racist graffiti” that
New had seen in the workplace. Id. at ¶¶ 37-38. Again, Salman took no action. Id. at
¶ 39.
Then, on June 7, 2018, Salman told New that M&T was terminating New’s
employment due to “performance” and “trust” issues. Id. at ¶ 46. New believed those

“issues” were pretextual because neither New’s manager nor the department head
would “enumerate a single performance issue” when asked. See id. at ¶¶ 46-59, 62.
And despite M&T’s policy “to provide employees with . . . escalating feedback, written
warnings[,] and corrective action notices before terminating an employment
relationship,” New had received no warnings regarding any performance issues prior to
the termination meeting. Id. at ¶ 63.
During the meeting, Salman presented New with a separation agreement that
“was intended to release M&T Bank from any claims arising from [New’s] employment.”
Id. at ¶ 76. It included the following language:
You, for and in consideration of the promises set forth in this Agreement,
hereby agree to release and discharge, and not to institute any suit or action
. . . , against M&T Bank . . . , on your behalf and on behalf of any person or
entity claiming by or through you, from any and all claims of any kind, known
and unknown, which you may now have or have ever had against M&T
Bank, including claims . . . arising from your employment with M&T Bank or
the termination of your employment with M&T Bank, whether based on
contract, tort, statute, local ordinance, regulation[,] or any comparable law
in any jurisdiction (“Released Claims”). By way of example and not in
limitation, the Age Discrimination in Employment Act of 1967. . . , Title VII
of the Civil Rights Act of 1964 . . . , the Americans with Disabilities Act of
1990 . . . , the Equal Pay Act of 1963 . . . , the New York Human Rights Law,
and the Family and Medical Leave Act of 1993 . . . , as well as any claims
asserting wrongful termination, breach of contract, breach of the covenant
of good faith and fair dealing, negligent or intentional infliction of emotional
distress, negligent or intentional misrepresentation, . . . and any other
federal, state or local law, rule, regulation, executive order[,] or guidelines
relating to discrimination . . . .
This Agreement covers both claims that you know about and those that you
may not know about at this time. This Agreement does not waive or release
any rights or claims that may arise after you sign this Agreement.
Docket Item 11-3 at 4-5 (emphasis in original). It also provided that New could “revoke”
the agreement “within seven [] calendar days” of signing it. Id. at 2.
As New “perused” the separation agreement, he asked Salman “what he thought
of the many claims” New had reported. Docket Item 6 at ¶ 76. Salman responded,
“[T]hey’re all in your head.” Id. (emphasis omitted). That statement convinced New that
he was “imagining the abuse and discrimination he suffered.” Id. at ¶ 77 (emphasis
omitted).
New’s original deadline to sign the agreement was June 15, 2018, Docket Item
11-3 at 6, but he requested and received a five-day extension, Docket Item 6 at ¶¶ 82-
83. Although New contacted multiple attorneys during that time, he was unable to find
“competent counsel” to advise him. Id. Some attorneys he spoke to “were hesitant to
litigate a discrimination case against M&T” and would not give New “adequate advice.”
Id. at ¶ 82. Others “required prohibitive sums of money for consultation.” Id. And one
“refused” to speak with New because the attorney was “an acquaintance of a former
M&T Bank executive.” Id. at ¶ 83.
New finally signed the separation agreement on June 22, 2018, 15 days after the

termination meeting. Docket Item 11-3 at 6; see Docket Item 6 at ¶ 76. In exchange,
he received payment of 60 days’ wages after his employment ended, compensation for
accrued vacation days, 60 days’ continuation of his health insurance, and some
continuation of his life insurance and personal accident insurance. See Docket Item 11-
3 at 2-3.
In October 2021—more than three years later—New learned that he had “valid
claims of racial harassment and discrimination” related to his employment at M&T,
Docket Item 6 at ¶ 84, and he unsuccessfully “offered to tender back the consideration
he [had] received” under the separation agreement, id. at ¶ 88. New then commenced
this action alleging that the defendants fraudulently induced him into signing the

separation agreement. See id. at ¶¶ 84-86.
LEGAL PRINCIPLES

“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

DISCUSSION
The defendants argue that the amended complaint must be dismissed because
New “released all employment-related claims against M&T, M&T’s affiliates, and those

companies’ employees and agents” when he signed the separation agreement. Docket
Item 11-1 at 5. New responds that his claims are not barred because he “was
fraudulently induced into [signing] the separation agreement.” Docket Item 17 at 5.
Because New has not plausibly alleged that he was fraudulently induced into signing an
enforceable separation agreement, that separation agreement bars New’s claims.

I. FRAUDULENT INDUCEMENT
A plaintiff alleging fraudulent inducement must show that “(1) the defendant
made a material false representation, (2) the defendant intended to defraud the plaintiff
thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff
suffered damage as a result of such reliance.” NRW, Inc. v. Bindra, 775 F. App’x 22, 24
(2d. Cir. 2019) (summary order) (citing Wall v. CSX Transp., Inc., 471 F.3d 410, 415-16
(2d Cir. 2006)).
New alleges that Salman fraudulently induced him into signing the separation
agreement by stating that New’s “claims” were “all in [his] head.” Docket Item 6 at ¶ 76
(emphasis omitted); see id. at ¶¶ 108-13. The defendants argue that New has not

plausibly alleged two elements of a fraudulent inducement claim: (1) a material false
representation and (2) reasonable reliance. Docket Item 11-1 at 17-20.
A. Material False Representation
For purposes of fraudulent inducement, a material false representation must be
“either a misrepresentation or [] material omission of a fact.” Robinson v. Deutsche
Bank Tr. Co. Ams., 572 F. Supp. 2d 319, 322 (S.D.N.Y. 2008) (emphasis added)
(citation omitted). “Expressions of mere opinion or puffery are not actionable

representation of fact sufficient to state a claim for fraud.” Spin Master Ltd. v. Bureau
Veritas Consumer Prods. Servs., Inc., 2011 WL 1549456, at *10 (W.D.N.Y. Mar. 7,
2011) (internal quotation marks omitted) (collecting cases).
The defendants argue that Salman’s statement was “not a misrepresentation of
an existing fact.” Docket Item 11-1 at 19. New responds that the defendants draw an
“artificial distinction between fact and opinion.” Docket Item 17 at 2. But the defendants
are correct: Salman’s statement was an expression of opinion about the merit of New’s
potential legal claims. Cf. Von Turkovich v. APC Cap. Partners, LLC, 259 F. Supp. 2d
314, 321-22 (D. Vt. 2003) (finding that defendant’s statement that an agreement “would

accomplish [p]laintiffs’ goals” was “not a statement of existing fact but an opinion . . . of
the future value of the agreement”).
New argues that Salman intended to deceive him and “that opinions may be
actionable if they are disbelieved when made.” Docket Item 17 at 2 (emphasis in
original). But as the defendants note, see Docket Item 18 at 7-8, New bases that
argument on a series of cases finding that credit ratings are a “hybrid” of fact and
opinion and thus can be a material misrepresentation, see, e.g., Abu Dhabi Com. Bank
v. Morgan Stanley & Co. Inc., 888 F. Supp. 2d 431, 454-55 (S.D.N.Y. 2012) (noting that
credit ratings are “based on an analysis of underlying facts conducted by respected
rating organizations”). Salman’s statement was not a “hybrid” of fact and opinion
analogous to a credit rating, so those cases are inapposite.
Indeed, while New argues that Salman’s experience lent his opinion credibility
and caused New to believe that Salman had “analyzed data, conducted an assessment,

and reach a fact-based conclusion” as to the merits of any potential claims, Docket Item
17 at 2, New does not allege facts suggesting he believed that Salman conducted such
an assessment. To the contrary, New alleges that Salman took no action to investigate
his complaints. See Docket Item 6 at ¶ 36. So it is unclear why New would think that
Salman’s opinion was based on any factual analysis. In other words, even if Salman’s
statement was disingenuous, it was not a factual misrepresentation.
New therefore has not plausibly alleged that Salman made a material false
representation, a required element of a fraudulent inducement claim.

B. Reasonable Reliance
“Claimants alleging reasonable reliance must plead that they actually relied on
the alleged misrepresentation[]” at issue. Travelex Currency Servs., Inc. v. Puente
Enter., Inc., 449 F. Supp. 3d 385, 399 (S.D.N.Y. 2020) (citation omitted). “In assessing
the reasonableness of a plaintiff’s alleged reliance, [courts] consider the entire context
of the transaction, including factors such as its complexity and magnitude, the
sophistication of the parties, and the content of any agreements between them.”

Emergent Cap. Inv. Mgmt., LLC v. Stonepath Grp., Inc., 343 F.3d 189, 195 (2d Cir.
2003) (citations omitted).
“Often, whether or not reliance on alleged misrepresentations is reasonable in
the context of a particular case is intensely fact-specific and generally considered
inappropriate for determination on a motion to dismiss.” Robinson, 572 F. Supp. 2d at
322-23 (alteration and internal quotation marks omitted) (collecting cases). But “under
certain circumstances, dismissal is appropriate at this stage in the litigation.” Id. at 323.
New argues that “he felt compelled to sign the separation agreement based on

[Salman’s] statement[].” Docket Item 17 at 4. But as the defendants note, Docket Item
11-1 at 19, New did not sign the separation agreement immediately after he heard
Salman’s statement. In fact, New did not sign the agreement during the termination
meeting or even by the original deadline M&T set. Rather, after New left the meeting,
he requested and received an extension of time and contacted multiple attorneys to
seek legal advice about the merits of his claim. See Docket Item 6 at ¶¶ 82-83. He
signed the separation agreement more than two weeks after Salman made the
statement that allegedly induced New to release his claims. See Docket Item 11-3 at 6.
Even viewed in the light most favorable to New, that sequence of events does
not raise a plausible inference that New actually relied on Salman’s statement. On the

contrary, it suggests that New was skeptical of Salman’s statement and felt the need to
obtain an objective opinion about the merits of his potential claims from an attorney not
associated with M&T. The fact that New now says he was unable to find an attorney to
advise him does not change that analysis, especially because the separation agreement
included an acknowledgment that New “availed” himself of his right to seek legal
counsel “to the extent [he] desired.”2 Id. at 5.

2 What is more, even if New actually relied on Salman’s statement, that reliance
likely was not reasonable. Salman clearly was incentivized to minimize M&T’s liability
and discourage New from pursuing legal action, and New should have known that given
his education and experience. See, e.g., Von Turkovich, 259 F. Supp. 2d at 322-23
(“[G]iven [p]laintiffs’ business and financial sophistication, no rational trier of fact could
New therefore has not plausibly alleged that he reasonably relied on Salman’s
statement. And for that reason as well, he has failed to state a claim for fraudulent
inducement.

II. VOLUNTARY RELEASE OF CLAIMS
In addition to arguing that New was not fraudulently induced, the defendants say
that the separation agreement is enforceable because New signed it knowingly and
voluntarily. Docket Item 11-1 at 10-17. New does not dispute that contention. See
Docket Item 17 at 3 (arguing that New’s knowledge and voluntariness “does not
preempt” his fraudulent inducement claim). Nevertheless, the Court considers whether
the separation agreement is enforceable.

“Federal courts have articulated a strong policy in favor of enforcing settlement
agreements and releases.” Levine v. Bd. of Educ. of City of N.Y., 152 F.3d 919, 1998
WL 386141, at *2 (2d Cir. 1998) (summary order) (collecting cases). Under federal law,
a release generally is enforceable if the party’s waiver of his claims “was ‘knowing and
voluntary’ under the totality of the circumstances.” Pucilowski v. Spotify USA, Inc.
(“Pucilowski I”), 2022 WL 836797, at *4 (S.D.N.Y. Mar. 21, 2022), aff’d, 2022 WL
16842926 (quoting Bormann v. AT&T Commc’ns, Inc., 875 F.2d 399, 400-03 (2d Cir.
1989)); see id. (explaining that a release that is enforceable under federal law “will
necessarily” be enforceable under New York law (citations omitted)).

conclude that they justifiably relied on an opinion from another business person, with
whom they were in an adversarial relationship, that the transaction would accomplish
their goals.”); Century Pac., Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d 206, 230
(S.D.N.Y. 2007) (with regard to transaction for sale of company, finding that “no
reasonable factfinder” could find it reasonable to rely on defendant’s statement that
“everything’s going to be fine”).
Courts in this Circuit consider several factors when evaluating whether a release
was entered into knowingly and voluntarily, including:
1) the plaintiff’s education and business experience, 2) the amount of time
the plaintiff had possession of or access to the agreement before signing it,
3) the role of [the] plaintiff in deciding the terms of the agreement, 4) the
clarity of the agreement, 5) whether the plaintiff was represented by or
consulted with an attorney, . . . 6) whether the consideration given in
exchange for the waiver exceeds employee benefits to which the employee
was already entitled by contract or law . . . [and 7)] whether an employer
encourages or discourages an employee to consult an attorney . . . and
whether the employee had a fair opportunity to do so.
Bormann, 875 F.2d at 403 (citations omitted); see Pucilowski I, 2022 WL 836797, at *4.
That list is not exhaustive, and all factors need not be satisfied for a release to be
enforceable. Long v. Corning Inc., 2020 WL 1467278, at *5 (W.D.N.Y. Mar. 26, 2020),
aff’d, 847 F. App’x 74 (citation omitted).
Here, the Bormann factors and the totality of the circumstances weigh in favor of
enforcement.
A. New’s Understanding of the Agreement
First, the Court considers the factors bearing on New’s ability to understand the
separation agreement: (1) New’s education and experience and (2) the clarity of the
agreement itself.
New’s education and experience weigh in favor of enforcing the separation
agreement. New describes himself as “highly-educated,” Docket Item 6 at ¶ 81, and
notes that he earned a bachelor’s degree from an Ivy League university, id. at ¶ 5.
Those qualifications suggest that New had the experience to “understand the
[a]greement and assess the costs and benefits of signing it.” See Westbrooke v.
Bellevue Hosp. Ctr., 2018 WL 4189514, at *4 (S.D.N.Y. Aug. 31, 2018). In fact, courts
have found plaintiffs with significantly less education and experience capable of
understanding the terms of a release. See Bachiller v. Turn On Prods., Inc., 2003 WL
1878416, at *4 (S.D.N.Y. Apr. 14, 2003) (holding that plaintiff with high school
equivalency diploma was capable of understanding release); see also Pucilowski I,

2022 WL 836797, at *5 (collecting cases).
The clarity of the agreement itself—which “may be the most important” Bormann
factor, Pucilowski I, 2022 WL 836797, at *4—also weighs in favor of enforcement. The
release section of the separation agreement is “clear, concise, and written in plain
language.” See Phillips v. Orleans County, 2019 WL 3088051, at *7 (W.D.N.Y. July 15,
2019). It “unambiguous[ly]” states that by signing, New forfeited the right to bring any
claims—known or unknown—against M&T arising from his employment, see Pucilowski
I, 2022 WL 836797, at *4, and New does not allege that he did not understand the
agreement’s terms, see generally Docket Item 6.
So both factors bearing on New’s understanding of the agreement favor

enforcement.
B. New’s Time to Consider the Agreement and Opportunity to Consult
Counsel
Next, the Court considers whether New had sufficient time to consider the
separation agreement and consult counsel.
Although there is no bright line rule for what constitutes sufficient time for a
plaintiff to evaluate an agreement, courts in this Circuit “have concluded that a period of
months will suffice, that a few days will suffice, and that even a few hours will suffice.”
Mandavia v. Columbia Univ., 912 F. Supp. 2d 119, 130 (S.D.N.Y. 2012) (collecting
cases) (internal citations omitted). The Second Circuit itself has noted that a two-week
period to consider an agreement in combination with a seven-day revocation period
“preclude[s] any finding that [a plaintiff] was not given sufficient time to knowingly and
voluntarily release her claims.” Pucilowski v. Spotify USA, Inc. (“Pucilowski II”), 2022
WL 16842926, at *1 (2d Cir. Nov. 10, 2022).
Here, New signed the agreement 15 days after it was presented to him.3 See

Docket Item 6 at ¶¶ 76-77; Docket Item 11-3 at 6. That period included a five-day
extension giving New additional time to consult counsel, Docket Item 6 at ¶ 82, and the
agreement included a seven-day revocation period, Docket Item 11-3 at 1. The time
New had to consider the agreement therefore favors enforcement. See Pucilowski II,
2022 WL 16842926, at *1.
Moreover, New spoke to multiple attorneys during that time, Docket Item 6 at
¶¶ 82-83, demonstrating that he had a fair opportunity to consult counsel. While New
says that he was unable to obtain counsel for a variety of reasons, id., the separation
agreement stated that by signing, New acknowledged that he had consulted counsel “to

the extent and for the purposes [he] desired,” Docket Item 11-3 at 6. So even though
New now suggests that he did not obtain sufficient legal counsel, that “does not
automatically render” the agreement invalid. See Rozenfeld v. Dep’t of Design &
Constr. of City of N.Y., 875 F. Supp. 2d 189, 200 (E.D.N. Y. 2012); Pucilowski I, 2022
WL 836797, at *6 (finding that although plaintiff was not counseled by an attorney, the
defendant gave plaintiff “fair opportunity to seek out counsel by providing her with plenty

3 In response to the motion to dismiss, New says that he “was held in a room that
he was told he could not leave.” Docket Item 17 at 3. But clearly, New was permitted to
leave the meeting without signing the release.
of time—fourteen days before signing—to do so” (citation and internal quotation marks
omitted)).
For those reasons, the time New had to consider the agreement and consult
counsel favors enforcement.

C. Consideration
The Court also considers the consideration New received in exchange for
releasing his claims, which included payment of 60 days’ wages after his employment
ended, compensation for accrued vacation days, 60 days’ continuation of his health
insurance, and some continuation of his life insurance and personal accident insurance.
See Docket Item 11-3 at 2-3. Those are “benefits to which [New] was not otherwise

entitled,” favoring enforcement of the agreement. See Phillips, 2019 WL 3088051, at
*7.
D. New’s Role in Drafting the Terms of the Agreement
Finally, the Court considers the fact that New apparently took no part in the
drafting of the terms of the separation agreement, see generally Docket Item 6, which

weighs against enforcement. Nevertheless, a plaintiff’s role in drafting the terms of a
waiver cannot alone raise an issue of voluntariness. Bormann, 875 F.2d at 403 n.1.
And here, based on the totality of the circumstances, the other Bormann factors
indicate that New entered into the separation agreement knowingly and voluntarily. The
separation agreement therefore is enforceable and bars New’s claims.
III. LEAVE TO AMEND
Generally, a court will afford a pro se plaintiff an opportunity to amend or to be
heard prior to dismissal “unless the court can rule out any possibility, however unlikely it
might be, that an amended complaint would succeed in stating a claim.” Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citation omitted); see also Cuoco v. Moritsugu,

222 F.3d 99, 112 (2d Cir. 2000) (“A pro se complaint is to be read liberally. Certainly
the court should not dismiss without granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a valid claim might be stated.”
(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999))). But
leave to amend pleadings may be denied when amendment would be “futile.” Cuoco,
222 F.3d at 112.
New requests leave to amend his complaint to assert a claim for negligent
misrepresentation. Docket Item 17 at 5. But the separation agreement explicitly bars
New from asserting such a claim, see Docket Item 11-3 at 4, so that claim would fail

unless the agreement is unenforceable. And for the reasons noted above, that does not
appear to be the case.
Nevertheless, and in light of his pro se status, see Cuoco, 222 F.3d at 112, New
may amend his complaint to add facts establishing that the agreement is not
enforceable. To do that, New must allege facts showing either (1) that he reasonably—
and actually—relied on a material misrepresentation of fact made by the defendants
other than Salman’s statement that New’s claims were all in his head, or (2) that the
waiver of his claims was not knowing and voluntary.
New is advised that an amended complaint is intended to completely replace
the prior complaint in the action and thus “renders [any prior complaint] of no legal
effect.” Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (citations
omitted); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).
Therefore, any second amended complaint must include all allegations against each
of the defendants so that the second amended complaint stands alone as the only

complaint that the defendants must answer in this action. Further, New is advised that
the factual allegations in his first amended complaint do not raise a plausible inference
that he is entitled to relief, and he therefore should amend his complaint a second time
only if he can plead additional facts in support of his claims.
CONCLUSION

For the reasons stated above, the defendants’ motion to dismiss, Docket Item 11,
will be granted unless New files a second amended complaint within 30 days of the
date of this order. If New does not file a second amended complaint within that time,
the defendants’ motion to dismiss will be granted and the Clerk of the Court shall close
this case without further order.

SO ORDERED.

Dated: January 2, 2024
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366748. Public record. Not legal advice.