Eric Nicholas Vitaliano
How Judge Vitaliano decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
Under NY Labor Law 240(1) (the strict-liability 'scaffold law'), an owner/contractor cannot defeat a worker's summary-judgment motion with a 'recalcitrant worker' defense unless the worker's own conduct was the SOLE proximate cause of the accident. If the defense's own evidence (e.g., its expert report) concedes the worker's conduct was merely a contributing factor -- or that another actor (the general contractor) caused the unsafe condition -- the defense fails as a matter of law. To preserve the defense, come forward with admissible proof isolating the worker's refusal of a provided safety device as the only cause.
“Ms. Son fails, however, to offer any evidence tending to show that Kim's recalcitrance was the sole proximate cause of the incident. ... Accordingly, on her own proffered proof, Ms. Son's recalcitrant worker defense fails as a matter of law.”
Procedural preferences
He construes statutes that expressly disclaim enforceable rights strictly: a government timing or procedural requirement that Congress says creates no 'substantive or procedural right or benefit' (e.g., INA 1158(d)(7) on asylum-interview scheduling) supports no due-process claim, because there is no protected interest to deprive. Do not premise a Fifth Amendment claim on agency delay where the governing statute bars any enforceable right; plead an actual protected liberty or property interest.
“The applicants here fail in their quest because they have not adequately alleged a due process violation because they have not suffered a deprivation of a right. Section 1158(d)(7) explicitly bars the creation of any enforceable 'substantive or procedural right or benefit.'”
On a bankruptcy (or other) interlocutory appeal he applies 28 U.S.C. 1292(b) strictly: leave to appeal requires a controlling 'pure question of law' he can decide quickly without studying the record, a substantial ground for difference of opinion, and that an immediate appeal would materially advance the litigation. A non-final order that turned on case-specific facts (e.g., undeveloped conflicts of interest) is not appealable, and a mere claim that the lower court was wrong does not show substantial ground for difference of opinion.
“the bankruptcy court's action did not involve a controlling question of law. The court's action was not a final decision, nor did it involve 'pure question[s] of law' that this Court can 'decide quickly and cleanly without having to study the record.' ... the Court finds no substantial ground for a difference of opinion.”
When he dismisses every federal claim on a motion to dismiss, he routinely declines supplemental jurisdiction over the remaining state-law claims (NYSHRL/NYCHRL) and dismisses them WITHOUT prejudice to refiling in state court, rather than reaching their merits. If your federal hook is weak, expect your state employment-discrimination claims to be sent back to state court, not adjudicated here.
“Having declined to exercise supplemental jurisdiction, all of plaintiff's pendant state law claims are dismissed without prejudice to their refiling in a state court of appropriate jurisdiction.”
Cautions
Failing to oppose a summary-judgment motion is dangerous but not automatically fatal: he will still examine the record and the movant's burden, but where the unopposed motion shows probable cause (false arrest), reasonable suspicion (strip search), or that the non-movant's only evidence is contradictory self-serving testimony, he will grant it. Respond to a Rule 56 motion with admissible record evidence raising a genuine dispute.
“upon their motion, summary judgment is granted in favor of all defendants. This action is dismissed.”
Motion outcomes
Counted from classified signed orders only. Percentages are shown only where the sample is large enough to be meaningful; smaller samples are reported as raw counts.
| Motions to dismiss N = 3 |
Granted: 3 | counts only |
| Summary judgment N = 3 |
Granted: 2Denied: 1 | counts only |
| Motion for leave to appeal N = 1 |
Denied: 1 | counts only |
A "1 of 1" is one ruling, not a tendency. Treat small samples as illustrative, not predictive.
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“plaintiff Jang Uk Kim's motion for summary judgment on his fifth cause of action, brought under New York Labor Law § 240(1), is granted as to liability, and defendant Ho Jeo Son's cross-motion is denied.”
“defendant Ho Jeo Son's cross-motion is denied.”
“For all of the above reasons, upon their motion, summary judgment is granted in favor of all defendants. This action is dismissed.”
“For the reasons set forth above, the appellee's motion to dismiss is granted in its entirety.”
“Appellant's motion seeking leave to appeal to this Court is denied.”
“defendants' motion to dismiss pursuant to Rule 12(b)(1) is denied but dismissal is granted under Rule 12(b)(6). ... Leave to amend is denied. The complaint is dismissed with prejudice.”
“defendants' motion to dismiss all federal claims is granted and these claims are dismissed with prejudice. Having declined to exercise supplemental jurisdiction, all of plaintiff's pendant state law claims are dismissed without prejudice to their refiling in a state court of appropriate jurisdiction.”
Caseload & timing
From public federal docket records for this judge.
Median case duration in the sampled dockets: 444 days (N = 5).
Senior E.D.N.Y. district judge sitting in Brooklyn (suffix 'ENV'), still actively assigned despite senior status (2017). The most-recent assigned cases (Apr-May 2026) are dominated by FLSA wage suits (Tejsingh v. International Bonded Couriers, Aguilar v. 21-02 31st Food Corp., Vasquez Jacobo v. Cannon Restaurant Equipment -- 710 Labor: Fair Standards), federal criminal matters (United States v. Albokhiti, Alimehmeti, Sohail, Park), and consumer/contract collections (American Express National Bank v. Hernandez -- 190 Contract). An older (2021-filed) terminated sample mixes a 2255 motion (Dervishaj v. United States), insurance (One Sunset Park Condominium v. Clermont Insurance -- 110 Insurance), copyright (Davis v. Arcangel -- 820 Copyright), and other civil matters (Webb v. Joblove; Dejesus v. Kerins). Mix is qualitative this build (case-level metadata only).