Furman v. Cirrito

I respectfully dissent. Not only does the majority fail to assume the facts are as plaintiffs allege them to be, as is required on a motion to dismiss, but it compounds this error by making determinations that are directly contrary to those of the district court and of a unanimous panel of this court on the prior appeal in this case, Furman v. Cirrito, 741 F.2d 524 (2d Cir.1984) (“Furman I”), vacated and remanded, 473 U.S. 922,105 S.Ct. 3550, 87 L.Ed.2d 672 (1985), on remand, 779 F.2d 36 (2d Cir.1985). Moreover, the majority fails to heed recent circuit precedent that should control this…