Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the Department of Education has failed to show that federally-guaranteed loan records pertaining to Francis Brozzo that are held by the New York State Education Services Corporation are not in its constructive control for purposes of qualifying as agency records under FOIA. Brozzo requested his student loan records from the agency, which found records concerning his aggregate student loan history, including several default bank judgments against him, but indicated that it did not have the NYSESC records. The court noted that "when agencies have access to records for auditing and supervision purposes, those records are still considered agency records even when they are created and maintained elsewhere." The court observed that "given that [a DOE] regulation appears to signal a degree of control over lender records. . . and given that Defendant's generation or possession of those documents does not alone determine whether the records are agency records, Defendant has not met its burden of showing that the requested records are not agency records." The court allowed the agency and Brozzo an additional 90 days to supplement the record to resolve the agency records issue.
Issues: Agency Record - Constructive possession, Adequacy - Search

FOIA Project Annotation: A federal court in New York has ruled that records of Francis Brozzo's 1993 defaulted federal student loans, which were assigned to the New York State Higher Education Services Corporation and, ultimately to Education Credit Management Corporation, are not agency records of the Department of Education under FOIA. After the agency provided Brozzo with a copy of his aggregate loan history and contact information, he filed suit. The court ruled in favor of the agency except on the issue of whether the loan documents were agency records. This time around, the court found the agency did not have even constructive control of the records. Noting that the leading federal case on constructive control, Burka v. Dept of Health and Human Services, 87 F.3d 508 (D.C. Cir. 1996), had not been embraced by the Second Circuit, the court fell back on the Supreme Court's ruling in Dept of Justice v. Tax Analysts, 492 U.S. 136 (1989), as the applicable standard. The court observed that "defendant does not possess the level of supervision and control necessary for documents to be considered agency records under the constructive obtainment and control theory. . .[T]he requested documents were never used or integrated into Defendant's records or files." Brozzo argued that Education regulations suggested that the agency had the ability to request and obtain loan records. The court, however, indicated that "even if Defendant could request and obtain Plaintiff's requested records under the regulation, they would still not constitute agency records because Defendant did not use or integrate them into its file system."
Issues: Agency Record

Date Filed	Doc #	Docket Text
2014-12-29	1	COMPLAINT against U.S. Department of Education filed by Francis Brozzo. (Attachments: # 1 Cover letter and mailing envelope, # 2 Civil Cover Sheet) (see) (Entered: 12/30/2014)
2014-12-29	2	MOTION for Leave to Proceed in forma pauperis filed by Francis Brozzo. (Attachments: # 1 Proposed Summons U.S. Department of Education, # 2 Proposed Summons U.S. Attorney General, # 3 Proposed Summons U.S. Attorney) Motions referred to Therese Wiley Dancks. (see) (Entered: 12/30/2014)
2014-12-30	3	NOTICE Regarding Legal Advice and Pro se packet mailed to pltf on with instruction to read, sign, and return the document entitled "Notice". (see) (Entered: 12/30/2014)
2015-01-05	4	PRO SE HANDBOOK and NOTICE returned executed as to Francis Brozzo. (see) (Entered: 01/06/2015)
2015-01-06		Clerk mailed a file stamped copy of the 4 Pro Se Notice returned executed to Francis Brozzo on 1/6/2015 by regular mail. (see) (Entered: 01/06/2015)
2015-02-10	5	Letter dated 2/6/2015 requesting status on case by Francis Brozzo. (see) Modified on 2/12/2015 -Letter Motion (sg ). (Entered: 02/11/2015)
2015-02-12	6	TEXT ORDER : Court has reviewed Plaintiff's status inquiry of 2/6/2015 (Dkt. No. 5 ). The Court considers motions in the order in which they are received. To date, the motion is awaiting the Court's decision. There are a number of motions in other files ahead of this one. It shall be reviewed in its proper order. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 2/12/2015. (copy of this Text Order served on pro se plaintiff via regular mail) (sg ) (Entered: 02/12/2015)
2015-03-03	7	ORDER that pltf's 2 Motion for Leave to Proceed in forma pauperis is GRANTED; that the Clerk shall issue summonses to the following and forward them along with copies of the complaint and packets containing GO25 to the U.S. Marshal for service upon: the U.S. Attorney in Syracuse, NY; U.S. Attorney General in Washington, DC; and U.S. Department of Education in Washington, DC; and that the Clerk serve a copy of this Order and GO 25 on pltf. Signed by Magistrate Judge Therese Wiley Dancks on 3/3/2015. (see, ) (Entered: 03/03/2015)
2015-03-03	8	Summonses Issued as to U.S. Department of Education, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Summons for U.S. Attorney General, # 2 Summons for U.S. Department of Education) (see) (Entered: 03/03/2015)
2015-03-03	9	G.O. 25 FILING ORDER ISSUED: Initial Conference set for 6/1/2015 at 10:00 AM by telephone before Magistrate Judge Therese Wiley Dancks. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 5/26/2015. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (see) (Entered: 03/03/2015)
2015-03-03		Clerk mailed a copy of 9 G.O. 25 Filing Order and 7 Order on Motion for Leave to Proceed in forma pauperis to Francis Brozzo on 3/3/2015 by regular mail. Clerk also mailed a certified copy of the 7 Order along with 3 packets containing copies of 1 Complaint, 8 Summons Issued as to USA, 7 Order on Motion for Leave to Proceed in forma pauperis, USM-285 forms, and 9 G.O. 25 Filing Order to the U.S. Marshals for service upon defts. (see) Modified on 3/4/2015 (sg ) -This text entry served on pro se party via regular mail. (Entered: 03/03/2015)
2015-03-24	10	PROCESS RECEIPT AND RETURN of USM Returned Executed as to U.S. Attorney on 3/16/2015, re: service of summons and complaint filed by Francis Brozzo. (see) (Entered: 03/24/2015)
2015-03-24		***Answer due date updated for U.S. Department of Education answer due 5/15/2015. (see) (Entered: 03/24/2015)
2015-03-30	11	PROCESS RECEIPT AND RETURN of USM Returned Executed as to U.S. Department of Education on 3/20/2015, Re: service of summons, complaint, and GO25 filed by Francis Brozzo. (see) (Entered: 03/30/2015)
2015-03-31	12	PROCESS RECEIPT AND RETURN of USM Returned Executed as to U.S. Attorney General, re: service of summons and complaint filed by Francis Brozzo. U.S. Postal receipt signed on 3/26/2015. (see) (Entered: 03/31/2015)
2015-03-31	13	BILL OF COSTS submitted by US Marshal re: Service Fees in the amount of $81.00. (see) (Entered: 03/31/2015)
2015-05-13	14	ANSWER to 1 Complaint by U.S. Department of Education. (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 05/13/2015)
2015-05-18	15	Letter Motion dated 5/15/2015 from Francis Brozzo, requesting adjournment of initial Rule 16 conference. Submitted to Magistrate Judge Therese Wiley Dancks. (see) (Entered: 05/19/2015)
2015-05-20	16	TEXT ORDER granting Plaintiff's 15 Letter Request for extension. The Telephone Initial Conference set for 6/1/2015 has been RESCHEDULED for 6/15/2015 at 9:30AM before Magistrate Judge Therese Wiley Dancks. If Plaintiff has not already done so, he should provide in writing a telephone number where he may be reached on the date of the conference. Defendant counsel is directed to initiate the call and to contact Chambers at (315) 234-8618 once all parties are on the line. This number is a conference line and should be used only at the time of the conference. IT IS FURTHER ORDERED, that the Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 6/8/2015. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) SO ORDERED by Magistrate Judge Therese Wiley Dancks on 5/20/2015. (copy of this Text Order served on pro se party via regular mail) (sg ) (Entered: 05/20/2015)
2015-06-05	17	NOTICE to the Court of a telephone number pltf can be reached at for the telephone Rule 16 conference scheduled for June 15, 2015 at 9:30 a.m. by Francis Brozzo. (see) (Entered: 06/05/2015)
2015-06-08	18	CIVIL CASE MANAGEMENT PLAN by U.S. Department of Education. (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 06/08/2015)
2015-06-08	19	Letter Motion from William F. Larkin, AUSA for U.S. Department of Education requesting the U.S. Department of Education have an additional 10 days from today's date in which to submit its initial disclosures submitted to Judge Therese Wiley Dancks . (Attachments: # 1 Certificate of Service)(Larkin, William) (Entered: 06/08/2015)
2015-06-09	20	TEXT ORDER granting 19 Letter Request for extension of time for defendant to serve initial disclosures. Defendant's Rule 26(a)(1) Mandatory Disclosures due by 6/18/2015. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 6/9/2015. (A copy of this Text Order has been served on pro se party via regular mail.) (sg) (Entered: 06/09/2015)
2015-06-10	21	Letter/NOTICE dated 6/8/2015 by Francis Brozzo to the Court, re: 18 CIVIL CASE MANAGEMENT PLAN. (see) (Entered: 06/11/2015)
2015-06-11	22	CIVIL CASE MANAGEMENT PLAN by Francis Brozzo. (see) (Entered: 06/12/2015)
2015-06-15		TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Telephone Initial Pretrial Conference held on 6/15/2015. Appearances: Francis Brozzo, Plaintiff Pro Se; AUSA William F. Larkin for Defendant. Plaintiff has served Rule 26 Disclosures. Defendant to serve Rule 26 Disclosures by 6/18/2015. Case referred into the Assisted Mediation Program. A Declaration form will be sent to plaintiff for signature and return. No other deadlines will be set at this time. If Assisted Mediation is not successful, a subsequent conference will be scheduled to set deadlines and issue a scheduling order. Judge reminds Plaintiff that all communications with the Court must be made in writing, with copies of any filed documents provided to opposing counsel, and proof of service on opposing counsel filed with the Court. (FTR Recorded: 9:32AM-9:45AM) (A copy of this Text Minute Entry, with Declaration form and ADR informational materials has been served on pro se party via regular mail.) (sg) (Entered: 06/15/2015)
2015-06-19	23	DECLARATION of Pro Se Party by Francis Brozzo.(amt) (Entered: 06/19/2015)
2015-07-31	24	ORDER Referring Case into Assisted Mediation Program: Robert K. Weiler, Esq. is appointed special mediation counsel. Laura L. Spring, Esq. is appointed as mediator. Deadline for Assisted Mediation Session is 10/29/2015. Special mediation counsel and counsel for parties shall confer and contact the mediator to arrange for a mutually-agreed upon date for mediation within the deadline set by the Court. Signed by Magistrate Judge Therese Wiley Dancks on 7/31/2015. (A copy of this Order has been served on pro se party via regular mail and upon the mediator via email.)(sg) (Entered: 07/31/2015)
2015-07-31	25	Letter Motion from Francis Brozzo, requesting status on the assisted mediation program. Submitted to Magistrate Judge Therese Wiley Dancks. (see) (Entered: 07/31/2015)
2015-08-03	26	TEXT ORDER : Court has reviewed letter motion (Dkt. No. 25 ) from Plaintiff requesting status of Assisted Mediation Program, which is granted. Plaintiff's request crossed in the mail with Court's Order (Dkt. No. 24) referring case to Program. Court will schedule a status conference at a later date if case is not resolved through the Assisted Mediation Program. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 8/3/2015. (A copy of this Text Order has been served on pro se party via regular mail.) (sg) (Entered: 08/03/2015)
2015-10-21	27	REPORT OF MANDATORY MEDIATION - A Mandatory Mediation session was held on 10/21/15. Total Hours Spent by Mediator: 2; The outcome of Mandatory Mediation is: MEDIATION IS COMPLETE. CASE DID NOT SETTLE. The case will proceed toward trial pursuant to the Courts Uniform Pretrial Scheduling Order. (Spring, Laura) (Entered: 10/21/2015)
2015-10-23		TEXT NOTICE OF TELEPHONE CONFERENCE: A Telephone Status Conference has been set for 11/23/2015 at 10:30 AM before Magistrate Judge Therese Wiley Dancks. Defendant's counsel is directed to initiate the call and to contact Chambers at (315) 234-8618 (the dedicated conference line) once all counsel are on the line. If Plaintiff's telephone number for the time of the conference differs from (315) 287-2160, he should so advise the Court in writing no later than November 16, 2015. (A copy of this Text Notice has been served on pro se party(ies) via regular mail, along with a copy of the report of mediation) (sg) (Entered: 10/23/2015)
2015-11-17	28	MOTION for Summary Judgment Motion Hearing set for 1/19/2016 09:30 AM in Albany before Senior Judge Lawrence E. Kahn Response to Motion due by 1/4/2016 Reply to Response to Motion due by 1/8/2016. filed by U.S. Department of Education. (Attachments: # 1 Motion for Summary Judgment, # 2 Memorandum of Law, # 3 Exhibit(s) A through G, # 4 Statement of Material Facts, # 5 Declaration of William F. Larkin, # 6 Pro Se Notification, # 7 Letter to Mr. Brozzo, # 8 certifcate of service) (Larkin, William) (Entered: 11/17/2015)
2015-11-17	29	LETTER BRIEF by U.S. Department of Education. (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 11/17/2015)
2015-11-18		Reset Deadlines as to 28 MOTION for Summary Judgment. Response to Motion due by 12/30/2015. Reply to Response to Motion due by 1/4/2016. Motion Hearing is reset for 1/15/2016 at 09:30 AM in Albany before Senior Judge Lawrence E. Kahn. Deadlines adjusted to coincide with Judge Kahn's motion schedule. This motion will be considered on the submission of the motion papers, only. No oral arguments will be entertained.***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas) (Entered: 11/18/2015)
2015-11-18	30	Court NOTICE to pro se pltf advising him of his response deadline of 12/30/2015 to the 28 MOTION for Summary Judgment. {Letter mailed to pltf on 11/18/2015 by regular mail} (see) (Entered: 11/18/2015)
2015-11-18	31	Letter Motion from William F. Larkin for U.S. Department of Education requesting that in light of the Governments pending motion for summary judgment, if a status conference is requested by the Court, AUSA William F. Larkin respectfully requests that it be adjourned to sometime in December submitted to Judge Thrse Wiley Dancks . (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 11/18/2015)
2015-11-19	32	TEXT ORDER : Court has reviewed letter motion (Dkt. No. 31 ) for an adjournment of the court conference previously set for 11/23/2015. See Text Notice 10/23/2015. Letter motion granted. In light of pending summary judgment motion (Dkt. No. 28 ) telephone conference previously scheduled for 11/23/2015 is ADJOURNED WITHOUT DATE and will be rescheduled by the Court at a later date. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 11/18/2015. (A copy of this Text Order has been served on pro se party(ies) via regular mail.) (sg) (Entered: 11/19/2015)
2015-11-23	33	Letter Motion from Francis Brozzo, requesting to reschedule telephone conference. Submitted to Magistrate Judge Dancks. (see) (Entered: 11/24/2015)
2015-11-23	34	***STRICKEN pursuant to Text Order to Strike (Dkt. No. 37)***Supplemental Initial Disclosure and Affirmation of Service by Francis Brozzo.(see) Modified on 11/25/2015 (sg). (Entered: 11/24/2015)
2015-11-23	35	AFFIDAVIT of Service as to 33 letter request and 34 supplemental disclosures served on William Larkin on 11/20/2015 filed by Francis Brozzo. (see) (Entered: 11/24/2015)
2015-11-25	36	TEXT ORDER granting Plaintiff's 33 Letter Request for a telephone conference. Telephone Conference set for 12/3/2015 at 10:30 AM before Magistrate Judge Therese Wiley Dancks. Defendant's counsel is directed to initiate the call and to contact Chambers at (315) 234-8618 (the dedicated conference line) once all parties are on the line. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 11/24/2015. (A copy of this Text Order has been served on pro se party(ies) via regular mail.) (sg) (Entered: 11/25/2015)
2015-11-25	37	TEXT ORDER TO STRIKE : IT IS HEREBY ORDERED, that Dkt. 34 Request for Production of Documents filed by Francis Brozzo shall be stricken from the docket for the following reasons. Because Plaintiff's submission is being stricken from the docket it will not be considered by the Court: Pursuant to Local Rule 26.2 the Court does not accept the filing of discovery materials such as Interrogatories and Document Requests, unless the Court specifically directs such documents be filed or when submitted in support of a motion filed pursuant to Rule 37 of the Federal Rules of Civil Procedure. Since the Court has not directed the filing of Discovery in this action, nor is Plaintiff's submission in support of a motion filed pursuant to Rule 37, neither discovery materials nor certificates of service regarding the same are to be filed with the Court. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 11/24/2015. (A copy of this Text Order has been served on pro se party(ies) via regular mail.)(sg) (Entered: 11/25/2015)
2015-11-25	38	Order Terminating Case from Assisted Mediation: As it has been reported by the Mediator that the case did not settle (Dkt. No. 27), the case is now terminated from the Assisted Mediation Program. Special Mediation Counsel's assistance is complete and is hereby terminated. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 11/25/2015. (A copy of this Text Order has been served on pro se party(ies) via regular mail.)(sg) (Entered: 11/25/2015)
2015-11-30	39	Letter Motion from William F. Larkin for U.S. Department of Education requesting an adjournment of the telephone conference scheduled for December 3, 2015 at 10:30 a.m. submitted to Judge Wiley Dancks . (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 11/30/2015)
2015-12-01	40	TEXT ORDER granting Defendant's 39 Letter Request to reschedule telephone conference. The telephone conference currently scheduled for 12/3/2015 before Judge Dancks is RESCHEDULED to 12/7/2015 at 10:00AM. Defendant's counsel is directed to initiate the call pursuant to Dkt. No. 36 . SO ORDERED by Magistrate Judge Therese Wiley Dancks on 11/30/2015. (A copy of this Text Order has been served on pro se party(ies) via regular mail.) (sg) (Entered: 12/01/2015)
2015-12-07		TEXT Minute Entry for proceedings held before Magistrate Judge Therese Wiley Dancks: Telephone Conference held on 12/7/2015. Appearances: Francis Brozzo, Plaintiff Pro se; AUSA William Larking for Defendant. Court reminds Plaintiff of deadline to file response to pending summary judgment motion. Court discusses Dkt. 33. Defendant's counsel to request from defendant certain documents Plaintiff believes he requires to adequately defend the summary judgment motion. Defendant to provide status report to the Court by 12/21/2015 and include in that report whether the documents requested by Plaintiff during this conference exist and, if so, a time frame for production of these documents to Plaintiff. Court directs Mr. Brozzo to make a written request to Judge Kahn for an extension of time to respond to the pending summary judgment motion to allow for determination of whether the documents he has requested exist and, if so, allow for those documents to be provided to Mr. Brozzo. (FTR Recorded: 10:00AM-10:52AM) (A copy of this Text Minute Entry has been served on pro se party(ies) via regular mail.) (sg) (Entered: 12/08/2015)
2015-12-09	41	Letter Motion from Francis Brozzo, requesting an adjournment of the return date for the 28 Motion for Summary Judgment of at least 30 days along with an extension of time to file response papers. Submitted to Senior Judge Kahn. (see) (Entered: 12/09/2015)
2015-12-10	42	LETT REQUEST and ORDER granting plaintiff's 41 Letter Request for an adjournment of deadlines re 28 MOTION for Summary Judgment. Motion Hearing is reset for 2/19/2016 at 09:30 AM in Albany before Senior Judge Lawrence E. Kahn. Response to Motion due by 2/2/2016. Reply to Response to Motion due by 2/8/2016. Signed by Senior Judge Lawrence E. Kahn on December 10, 2015.***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas) (Entered: 12/10/2015)
2015-12-21	43	STATUS REPORT by U.S. Department of Education. (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 12/21/2015)
2015-12-22	44	TEXT STATUS REPORT ORDER: Court has reviewed status report (Dkt. No. 43 ). Defendant to provide further status report on documents requested from DOE by 1/8/2016. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 12/22/2015. (A copy of this Text Order has been served on pro se party(ies) via regular mail.)(sg) (Entered: 12/22/2015)
2016-01-08	45	STATUS REPORT in response to text entry dated December 22, 2015 by U.S. Department of Education. (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 01/08/2016)
2016-01-29	46	RESPONSE in Opposition to the 28 MOTION for Summary Judgment filed by Francis Brozzo. (Attachments: # 1 Response to Defendant's Statement of Material Facts, # 2 Statement of Material Facts, # 3 Affidavit of Service, # 4 Cover letter, # 5 Mailing envelope) (see) (Entered: 01/29/2016)
2016-02-05	47	Letter Motion from William F. Larkin for U.S. Department of Education requesting that the Government be allowed until February 19, 2016 to submit its reply to Mr. Brozzos opposition to the motion for summary judgment submitted to Judge Therese Wiley Dancks . (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 02/05/2016)
2016-02-05	48	LETTER REQUEST and ORDER granting AUSA W. Larkin's 47 Request for an extension of time to reply to 28 MOTION for Summary Judgment. Reply to Response to Motion due by 2/18/2016. Signed by Senior Judge Lawrence E. Kahn on February 05, 2016. ***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas) (Entered: 02/05/2016)
2016-02-18	49	REPLY to Response to Motion re 28 MOTION for Summary Judgment filed by U.S. Department of Education. (Attachments: # 1 Exhibit(s) M and N, # 2 certificate of service)(Larkin, William) (Entered: 02/18/2016)
2016-07-26	50	TEXT ORDERED: Plaintiff filed a Response to Defendants Motion for Summary Judgment on January 29, 2016, arguing that the declaration of Ann Marie Pedersen, dated October 13, 2015, does not meet the legal standard for agency reliance on a declaration to demonstrate that it complied with FOIA in processing Plaintiffs request. Dkt. No. 46 at 410. On February 18, 2016, Defendant submitted a Reply to Plaintiffs Response, along with a second declaration submitted by Pedersen. Dkt. Nos. 49, 49-1. Defendant asserts that the second declaration meets the legal standard that Plaintiff challenges, and supports its position with the second declaration. Dkt. No. 49 at 16. Because the second declaration was not raised in Defendants Motion for Summary Judgment, Plaintiff may optionally file a sur-reply within fourteen (14) days from the date of this order to respond to arguments and evidence raised in Defendants Reply. ***Order was served upon pro se party via US Mail. Signed by Senior Judge Lawrence E. Kahn on July 26, 2016. (sas) (Entered: 07/26/2016)
2016-08-11	51	Letter Motion from Francis Brozzo, requesting to extend the time to file sur-reply and accept for filing pltf's sur-reply. Submitted to Judge Lawrence E. Kahn. (Attachments: # 1 Affirmation of Service by Mail of Letter Request)(see) (Entered: 08/11/2016)
2016-08-11	52	SURREPLY to 28 MOTION for Summary Judgment filed by Francis Brozzo. (Attachments: # 1 Affidavit, # 2 Exhibit(s), # 3 Affidavit of Service, # 4 Copy of mailing envelope)(see) (Entered: 08/11/2016)
2016-09-09	53	MEMORANDUM-DECISION AND ORDERED, that Plaintiffs Letter Request (Dkt. No. 51) is GRANTED; and it is further ORDERED, that Defendants Motion for Summary Judgment (Dkt. No. 28) is DENIED; and it is further ORDERED, that Defendant is permitted to move for summary judgment within ninety (90) days of the date of this Memorandum-Decision and Order. In the event that Defendant moves for summary judgment, Plaintiff is permitted to cross-move for summary judgment along with his response; in the event that Defendant does not move for summary judgment, Plaintiff will have thirty (30) days after the expiration of the ninety-day period to move for summary judgment. Signed by Senior Judge Lawrence E. Kahn on September 09, 2016.***A copy of this Order was served upon pro se party via US Mail. (sas) (Entered: 09/09/2016)
2016-12-09	54	Second MOTION for Summary Judgment Motion Hearing set for 1/20/2017 09:30 AM in Albany before Senior Judge Lawrence E. Kahn Response to Motion due by 1/3/2017 Reply to Response to Motion due by 1/9/2017. filed by U.S. Department of Education. (Attachments: # 1 Motion for Summary Judgment, # 2 Memorandum of Law, # 3 Exhibit(s) S through V, # 4 Statement of Material Facts, # 5 Declaration of William F. Larkin, # 6 Pro Se Notification, # 7 certificate of service) (Larkin, William) (Entered: 12/09/2016)
2016-12-09		Set Deadlines/Hearings: Plaintiff's Summary Judgement Motion to be filed by 1/9/2017 per 53 MEMORANDUM-DECISION AND ORDERED. ***A copy of this deadline reminder was served upon pro se party via US Mail. (sas) (Entered: 12/09/2016)
2016-12-30	55	Cross-MOTION for Summary Judgment filed by Francis Brozzo. Motion Hearing set for 1/20/2017 at 09:30 AM in Albany before Senior Judge Lawrence E. Kahn. Response to Motion due by 1/9/2017. (Attachments: # 1 Plaintiff's Affidavit with Exhibits, # 2 Memorandum of Law, # 3 Statement of Material Facts, # 4 Response to Defendant's Statement of Material Facts, # 5 Cover letter, # 6 Affirmation of Service by Mail, # 7 Mailing envelope) (see) (Entered: 12/30/2016)
2016-12-30	56	Letter Motion from Francis Brozzo, requesting that the motion be determined on submission of all papers and oral argument be waived. Submitted to Judge Lawrence E. Kahn. (see) (Entered: 12/30/2016)
2017-01-04	57	Letter Motion from William F. Larkin for U.S. Department of Education requesting that the time period for DOE to reply to plaintiffs cross-motion be extended by ten (10) days from January 9, 2017 to January 19, 2017 submitted to Judge Lawrence E. Kahn . (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 01/04/2017)
2017-01-05	58	LETTER REQUEST and ORDER re Plaintiff's Request 56 waiving oral argument on the pending motion. Request is GRANTED. Signed by Senior Judge Lawrence E. Kahn on January 5, 2017. (Copy served via regular mail)(sas) (Entered: 01/05/2017)
2017-01-05	59	LETTER REQUEST and ORDER re AUSA W. Larkin's 57 Request for a 10 day extension to reply to the 55 MOTION for Summary Judgment. Request is GRANTED. Reply to Response to Motion due by 1/19/2017. Signed by Senior Judge Lawrence E. Kahn on January 5, 2017. (Copy served via regular mail)(sas) (Entered: 01/05/2017)
2017-01-19	60	RESPONSE in Opposition re 55 MOTION for Summary Judgment filed by U.S. Department of Education. (Attachments: # 1 Exhibit(s) AA and BB, # 2 Response to Plaintiff's Statement of Material Facts, # 3 certificate of service)(Larkin, William) (Entered: 01/19/2017)
2017-01-25	61	STATUS REPORT by U.S. Department of Education. (Attachments: # 1 certificate of service)(Larkin, William) (Entered: 01/25/2017)
2017-01-26	62	Letter Motion from Francis Brozzo, requesting permission to file a surreply. Submitted to Judge Lawrence E. Kahn. (see) (Entered: 01/27/2017)
2017-01-30	63	LETTER REQUEST and ORDER granting plaintiff's request 62 to file a sur-reply. Submission shall be due no later than 2/13/17. Signed by Senior Judge Lawrence E. Kahn on January 30, 2017. (Copy served via regular mail)(sas) (Entered: 01/30/2017)
2017-02-10	64	SURREPLY to Response to Motion, re: 54 Second MOTION for Summary Judgment and 55 MOTION for Summary Judgment filed by Francis Brozzo. (Attachments: # 1 Affidavit Verification of Documents by Plaintiff, # 2 Affidavit of Service, # 3 Cover letter, # 4 Copy of mailing envelope)(see) (Entered: 02/13/2017)
2017-05-11	65	MEMORANDUM-DECISION AND ORDERED, that Defendants Motion for Summary Judgment (Dkt. No. 54-1) is GRANTED; and it is further ORDERED, that Plaintiffs Cross-Motion for Summary Judgment (Dkt. No. 55) is DENIED; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED. Signed by Senior Judge Lawrence E. Kahn on May 11, 2017. (Copy served via regular and certified mail)(sas) (Entered: 05/11/2017)
2017-05-11	66	JUDGMENT: IT IS ORDERED AND ADJUDGED that in the above entitled action, the case is DISMISSED and judgment is entered in favor of the Defendant as against the Plaintiff, in accordance with the MEMORANDUM-DECISION AND DECISION AND ORDER of the Honorable Lawrence E. Kahn, U. S. District Judge, dated May 11, 2017. (Copy served via regular and certified mail) (sas) (Entered: 05/11/2017)
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