Nina Gershon
How Judge Gershon decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
A concrete factual allegation of discriminatory intent (not just labels) survives a Rule 12(b)(6) motion even after Twombly: a specific, quoted discriminatory statement attributed to the defendant gives rise to a plausible inference of bias.
“The allegation in the amended complaint that defendants sent a reference letter to a prospective employer that identified plaintiff as a 'black incompetent resident physician' and stated that 'black doctors perform inferiorly' would, if true, clearly give rise to a plausible inference that defendants' alleged actions were motivated by racial bias.”
Even on an unopposed default and an adopted R&R, she scrutinizes the liability of each defendant separately and will deny default relief against an individual whose personal liability is not established, granting it only against the corporate defendant.
“plaintiff's motion for a default judgment is granted in part and denied in part. Plaintiff's motion is granted with respect to defendant El Sonador Cafe Restaurant Inc.'s ... liability under the Federal Communications Act of 1934, 47 U.S.C. 605, and denied with respect to defendant Jose A. Bernal. The complaint is dismissed as to Mr. Bernal.”
Procedural preferences
She will convert a Rule 12(b)(6) motion to one for summary judgment when both sides submit extrinsic material AND the movant has served the pro se opponent the required Local Rule 56.2 notice -- but not otherwise.
“Because the City Defendants provided plaintiff notice pursuant to Rule 56, and because both parties have submitted extrinsic material in support of their arguments, the court will treat the City Defendants' motion as a motion for summary judgment.”
Conversely, a bare attorney declaration is not enough to convert a motion to dismiss into summary judgment; she requires properly supported Rule 56 affidavits from people with personal knowledge.
“this declaration by counsel is an insufficient basis on which this court could convert the motion to dismiss into one for summary judgment. Denial of the motion to dismiss is, of course, without prejudice to defendants filing a properly supported motion for summary judgment including sworn affidavits of individuals with personal knowledge of the facts pertinent to their Rule 56 motion.”
On an unopposed magistrate Report and Recommendation she reviews for clear/plain error and adopts it; objections must be filed to get more searching review.
“No objections having been filed, the court has reviewed the R&R for plain error, and finds none. Judge Levy's well considered conclusions are adopted in their entirety.”
Cautions
Do not use a motion for reconsideration to relitigate: reiterating previously rejected arguments without identifying an overlooked matter or controlling decision will be denied under Local Civil Rule 6.3 -- and a second such motion fares no better.
“Plaintiff does not set forth any matters or controlling decisions that were overlooked by the court; instead, he reiterates arguments he made previously, which were considered by the court and rejected. Accordingly, plaintiff's motion is denied.”
On summary judgment you cannot defeat a well-documented motion with conclusory assertions; the non-movant must point to specific facts (here, specifically identify the falsity in a warrant affidavit).
“In the face of plaintiff's conclusory allegations of falsity, defendants were not required to go beyond the supporting materials. ... plaintiff's conclusory statement that defendants' affidavits were false is insufficient to raise an issue of material fact about whether there was probable cause to search.”
She resolves subject-matter jurisdiction first: a Rule 12(b)(1) challenge is addressed before the merits, and claims outside the court's statutory/constitutional power are dismissed regardless of how they are pled.
“Because subject matter jurisdiction is a threshold matter, the court must address defendants' Rule 12(b)(1) motion first.”
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: 2Denied: 1 | counts only |
| Default judgment N = 3 |
Granted: 1Granted in part: 2 | counts only |
| Summary judgment N = 2 |
Granted: 1Moot / procedural: 1 | counts only |
| Motion for reconsideration N = 2 |
Denied: 2 | counts only |
| Motion for sanctions 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.
“Accordingly, the government's motion for summary judgment is granted and this action seeking the return of Rosario's property is dismissed with prejudice. The Clerk of Court shall enter judgment and close this case.”
“Since plaintiff fails to set forth any matters or decisions not taken into account by the court's February 24, 2006 order, the motion for reconsideration is denied. See Local Civil Rule 6.3.”
“Plaintiff does not set forth any matters or controlling decisions that were overlooked by the court; instead, he reiterates arguments he made previously, which were considered by the court and rejected. Accordingly, plaintiff's motion is denied.”
“For the reasons set forth above, defendants' motion to dismiss is granted. The Clerk of Court is directed to enter judgment in favor of defendants and close this case.”
“Defendants' motion to dismiss is denied.”
“Their motion for sanctions and their request for an order barring plaintiff from filing any further pleadings or motions against them without leave of court are also therefore denied.”
“For the reasons stated above, plaintiff's complaint is dismissed in its entirety. The Clerk of Court is directed to enter judgment in favor of defendants and against plaintiff.”
“Finally, as the court has dismissed all of plaintiff's claims, plaintiff's motion for summary judgment-held in abeyance pending resolution of defendants' motions-is dismissed as moot.”
“As recommended by Judge Tiscione, plaintiff's motion for a default judgment is granted in part and denied in part. Plaintiff[']s motion is granted with respect to defendant Johnny's Restaurant, Bar & Lounge, Inc.'s ... liability under the Federal Communications Act of 1934, 47 U.S.C. 605, and denied with respect to defendant Savatri Lall. The complaint is dismissed as to Ms. Lall.”
“As recommended by Judge Scanlon, plaintiff's motion for a default judgment is granted in part and denied in part. Plaintiff's motion is granted with respect to defendant El Sonador Cafe Restaurant Inc.'s ("El Sonador's") liability under the Federal Communications Act of 1934, 47 U.S.C. 605, and denied with respect to defendant Jose A. Bernal. The complaint is dismissed as to Mr. Bernal.”
“On November 1, 2019, Judge Levy issued a Report and Recommendation ("R&R") recommending that plaintiff's motion be granted. No objections having been filed, the court has reviewed the R&R for plain error, and finds none. ... The Clerk of Court is directed to enter default judgment against defendant Solar Energy Initiatives, Inc.”
Adopted Magistrate Judge Lois Bloom's R&R recommending dismissal under Fed. R. Civ. P. 37(b)(2)(c) for plaintiff's failure to appear at two scheduled initial conferences and to comply with a show-cause order. This is a non-motion disposition (no party motion ruled on); recorded as an order read but EXCLUDED from motion stats per the runbook.
Caseload & timing
From public federal docket records for this judge.
Median case duration in the sampled dockets: 311 days (N = 7).
Senior E.D.N.Y. district judge sitting in Brooklyn (suffix 'NG'), still actively assigned despite senior status (2008). The sampled civil docket skews toward (a) ADA Title III public-accommodation access suits, which terminate quickly by settlement (Cantwell v. Jewelry By Garo, Duncan v. Scott Barnes, Dunston v. 468 Myrtle Ave, Kiler v. Heritage Home Group), (b) Federal Tort Claims Act / pro se suits against the United States (Soto Palencia v. U.S., Alexander v. U.S., Allen v. U.S.) and a 28 U.S.C. 2255 vacate-sentence petition tied to her own criminal trial (Siraj v. United States -- the Herald Square subway-bombing defendant), (c) commercial / contract / insurance disputes (Snap Developers v. Tabak, Prime Insurance v. LB Wake, Cross Sound Cable v. Long Island Lighting), (d) environmental matters (Liberty Utilities (NY Water) v. U.S.), (e) antitrust and miscellaneous letters-rogatory/subpoena dockets (P&L Development v. Gerber, Bobbie Baby v. P&L Development, Conry v. Gerber), and (f) consumer-finance and product-liability suits (Feinzeig v. JPMorgan Chase, Rosenbaum v. Selene Finance, Glover v. PRRC). Mix is qualitative this build (case-level metadata only).