    15-2819
    Koziol v. King


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 7th day of July, two thousand sixteen.

    PRESENT:
                CHESTER J. STRAUB,
                RICHARD C. WESLEY,
                CHRISTOPHER F. DRONEY,
                            Circuit Judges.
    _____________________________________________

    LEON R. KOZIOL, individually and as natural
    parent of Child A and Child B,

                     Plaintiff-Counter-Defendant-Appellant,

                     v.                                                   15-2819

    DANIEL KING, individually and as New York
    State Family Court Judge, JAMES GORMAN,
    individually and as Family Court Magistrate,
    JAMES TORMEY, individually and as
    Administrator for the Fifth District, ROBERT
    ROSE, individually and as member of New York
    Appellate Division, Third Department, JOHN A.
    LAHTINEN, individually and as member of the
    New York Appellate Divison, Third Department,
    EDWARD SPAIN, individually and as member
    of the New York Appellate Division, Third
    Department, LESLIE STEIN, individually and as
    member of the New York Appellate Division,
    Third Department, MONICA DUFFY,
individually and as Chairwoman/Counsel for the
New York Committee on Professional Standards,
STEVEN ZAYAS, as an individual and
investigator for said Committee, NICOLE
CHRISTENSEN, individually and as supervisor
for the Oneida County Support Collection Unit,
JOHN CENTRA, individually and as member of
the New York Appellate Division, KELLY
HAWSE-KOZIOL, individually and as Custodial
Parent for the state,

             Defendants-Appellees,

WILLIAM KOSLOSKY, individually and as state
“Attorney for the Child,”

           Defendant-Counter-Claimant-Appellee.
_____________________________________________

FOR PLAINTIFF-COUNTER
DEFENDANT-APPELLANT:                              Leon R. Koziol, pro se, New
                                                  Hartford, NY.
FOR DEFENDANT-APPELLEE
KELLY HAWSE-KOZIOL:                               Kelly Hawse-Koziol, pro se, New
                                                  Hartford, NY.


FOR DEFENDANT-APPELLEE
NICOLE CHRISTENSEN:                               William P. Schmitt, Schmitt &
                                                  Lascurettes, LLC, Utica, NY.


FOR REMAINING DEFENDANTS-APPELLEES:               Laura Etlinger, Assistant Solicitor
                                                  General (Barbara D. Underwood,
                                                  Solicitor General, and Andrew D.
                                                  Bing, Deputy Solicitor General, on
                                                  the brief), for Eric T. Schneiderman,
                                                  Attorney General of the State of New
                                                  York, New York, NY.


FOR PLAINTIFF-COUNTER
CLAIMANT-APPELLEE:                                Paul G. Ferrara, Costello, Cooney &
                                                  Fearson, PLLC, Syracuse, NY.
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Appellant Leon R. Koziol, pro se, appeals from an August 10, 2015 order of the United

States District Court for Northern District of New York (Sharpe, C.J.) denying his motion for an

extension of time to file a notice of appeal under Federal Rule of Appellate Procedure (“FRAP”)

4(a)(5). We assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the arguments on appeal.

       We review the denial of a motion for an extension of time under FRAP 4(a)(5) for abuse of

discretion. In re Johns-Manville Corp., 476 F.3d 118, 124 (2d Cir. 2007). Under this standard, a

district court’s decision “cannot be set aside by a reviewing court unless it has a definite and firm

conviction that the court below committed a clear error of judgment in the conclusion that it

reached upon a weighing of the relevant factors.” Silivanch v. Celebrity Cruises, Inc., 333 F.3d

355, 362 (2d Cir. 2003) (internal citation and quotation marks omitted).

       FRAP 4(a)(5) gives the district court discretion to extend the time to file a notice of appeal

upon a showing of “excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(ii). In deciding

whether neglect is excusable, courts focus on “‘the reason for the delay, including whether it was

within the reasonable control of the movant . . . .’” Silivanch, 333 F.3d at 366 (quoting Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).

       Our review of the district court decision does not result in a “definite and firm conviction”

that it “committed a clear error of judgment in the conclusion that it reached upon a weighing of

the relevant factors.” Id. at 362 (internal quotation marks omitted). The district court applied the

correct test and reasonably concluded that Appellant failed to demonstrate excusable neglect or


                                                 3
good cause because the stated reasons for the delay were entirely within his control. See id. at

366. Because the district court’s determination falls within the range of permissible decisions, it

did not abuse its discretion in denying Appellant’s FRAP 4(a)(5) motion.

       We have considered all of Appellant’s arguments and find them to be without merit.

Accordingly, the order of the district court is AFFIRMED.


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




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