Rosen et al v. North Shore Towers Apartments, Inc.

Filing 52

ORDER granting 43 Motion to Dismiss: SEE ATTACHED ORDER. Defendant's motion to dismiss is GRANTED and plaintiffs' complaint is DISMISSED in its entirety for lack of subject matter jurisdiction. Leave to amend is DENIED as futile. The Clerk of Court is directed to enter Judgment accordingly and to close the case. The Clerk is further directed to transmit a copy of this Order to both plaintiffs pro se via U.S. Mail at the addresses listed on the docket for each plaintiff. Ordered by Judge Roslynn R. Mauskopf on 6/27/2011. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
SOL ROSEN and FLORENCE ROSEN,
Plaintiffs,

MEMORANDUM AND ORDER
11-CV-00752 (RRM) (LB)

- against NORTH SHORE TOWERS APARTMENTS,
INC.,

Defendant.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiffs, husband and wife, both appearing pro se,1 bring this action to recover
possession of a cooperative apartment appurtenant to shares of defendant North Shore Towers
Apartments, Inc., from which they were evicted pursuant to an order of Queens County Housing
Court Judge Anne Katz. (Am. Compl. (Doc. No. 6) at ¶¶ 3, 5; Decl. of Jerry A. Montag in Supp.
of Mot. to Dismiss (“Montag Decl.”), Ex. E (Doc. No. 43-2) at 2 (Decision and Order of
Housing Court Judge Katz).) Presently before the Court is defendant’s motion to dismiss for
lack of subject matter jurisdiction under 12(b)(1) of the Federal Rules of Civil Procedure. (Mot.
to Dismiss (Doc. No. 43) at 1–2.) For the reasons set forth below, defendant’s motion is
GRANTED.
BACKGROUND
On February 15, 2011, plaintiffs filed this action together with an affidavit in support of
an Order to Show Cause for temporary and preliminary injunctive relief, seeking an order
compelling defendant to restore plaintiffs to possession of the apartment. (Compl. (Doc. No. 1)

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Plaintiff did not file this action in forma pauperis, and, therefore, the sua sponte screening procedures of 28 U.S.C.
§ 1915 do not apply.

at ¶¶ 4–5; Aff. in Supp (Doc. 1-2) at 1–2). The following day, plaintiffs filed an amended
complaint, expanding on the circumstances of their eviction. (Am. Compl. at ¶¶ 3–5.)
On February 17, 2011, the Court held a lengthy hearing on plaintiffs’ request for
injunctive relief. (See Minute Entry dated Feb. 17, 2011 (Doc. No. 5).) Present at the hearing
were both plaintiffs, and then-counsel for defendant, Errol Brett, an attorney with North Shore
Towers who represented defendant in prior state court proceedings against plaintiffs. The
parties, at times contentiously, revealed a protracted history relating to plaintiffs’ non-payment of
maintenance and other charges, which culminated in plaintiffs’ eviction and the forced sale of
plaintiffs’ apartment pursuant to order of both the Queens County Housing Court and the Queens
County Supreme Court. In addition, plaintiff Sol Rosen presented a rambling, unfocused
allegation that defendant’s directors, officers and accountants had defrauded defendant and its
shareholders of $44,000,000 through the levying of fraudulent capital assessments, and the
fraudulent valuation of revenue, expenses and surplus. (See, e.g., Minute Entry dated Feb. 17,
2011, Pls.’ Ex. 4 (Doc 5-10), at 1–32.) These allegations, not included in the original or amended
complaints, comprise much of plaintiff Sol Rosen’s opposition to the instant Motion to Dismiss,
and which are, themselves, confused discursions, comprised of printouts, photocopies, diagrams,
documents from other litigation, and other miscellany, many accompanied by scrawled
handwritten notes and annotations. (See, e.g., Notice to the Court (Doc. No. 10) at 4–6, 16–20,
27–28; Letter dated Mar. 25, 2011 from Sol Rosen (Doc. No. 21) at 8–14).
The Court denied plaintiffs’ request for injunctive relief, finding that questions
surrounding this Court’s subject matter jurisdiction rendered success on the merits unlikely. (See

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Reference to pages of Plaintiffs’ submissions use the page numbers assigned by the Court’s Electronic Case Filing
system.

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Minute Entry dated Feb. 17, 2011; Mem. and Order dated March 7, 2011 (Doc. No. 16)
(denying, inter alia, Plaintiffs’ Mot. for Recons.).)
Plaintiffs’ eviction followed a July 2010 non-payment proceeding in Queens County
Housing Court, in which Judge Ann Katz granted Defendant’s motion for summary judgment,
awarding defendant possession and an order of eviction, as well as a money judgment for back
rent. (Montag Decl., Ex. E at 2.)
Shortly after Judge Katz issued that decision, on July 30, 2010, plaintiffs commenced an
action in New York Supreme Court for Queens County, seeking an order temporarily and
preliminarily enjoining the eviction, as well as damages for the same fraud and accounting
claims raised at the preliminary injunction hearing in this Court. Rosen v. N. Shore Towers
Apartments, Inc., No. 19301-2010, slip op. 2 (Sup. Ct. Queens Cnty. Sept. 15, 2010). That court
granted the temporary injunction restraining execution of the warrant of eviction pending the
disposition of plaintiffs’ allegations of fraud. Id. In January 2011, Supreme Court Judge Alan
Weiss dismissed the complaint, finding that plaintiffs had failed to state a claim for fraud, and
vacated the temporary injunctive relief. Id. at 4–6. On February 14, 2011, City Marshal George
Essock executed the warrant of eviction. (See Montag Decl., Ex. I (Doc. No. 43-11) (warrant of
eviction).)
Pursuant to an amended briefing schedule established by this Court’s Order dated May
13, 2011 (Doc. No. 37), defendant submitted the instant motion to dismiss on May 27, 2011. On
May 31, 2011, plaintiff Sol Rosen submitted several untimely responses to defendant’s motion.
(Pl.’s Opp’n to Defs.’ Mot. to Dismiss (Doc. No. 45) (“Pl.’s Opp’n I”); Pl.’s Opp’n to Defs.’
Mot. to Dismiss (Doc. No. 47) (“Pl.’s Opp’n II”); Pl.’s Opp’n to Defs.’ Mot. to Dismiss (Doc.
No. 48) (“Pl.’s Opp’n III”); Pl.’s Reply to Defs.’ Mot. to Dismiss (Doc. No. 50) (“Pl.’s Reply”).)

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In light of plaintiff’s pro se status, the Court accepts plaintiff Sol Rosen’s untimely opposition
papers, and has considered them in deciding the instant motion as though they were timely.
Plaintiff Florence Rosen does not oppose defendant’s motion to dismiss. (Decl. of Florence
Rosen (Doc. No. 42) at 1). For the reasons below, defendant’s motion is GRANTED and
plaintiffs’ amended complaint is dismissed in its entirety.
STANDARD OF REVIEW
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)); see also Oscar
Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir. 2003) (“Failure of subject matter
jurisdiction, of course, is not waivable and may be raised at any time by a party or by the court
sua sponte.”) In considering a motion to dismiss for lack of subject matter jurisdiction, a district
court “must accept as true all material factual allegations in the complaint, but [is] not to draw
inferences from the complaint favorable to plaintiffs.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386
F.3d 107, 110 (2d Cir. 2004) (citation omitted). This Court, however, “may consider affidavits
and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely
on conclusory or hearsay statements contained in the affidavits.” Id. (citations omitted). “The
plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.” Aurecchione v. Schoolman Transp. Sys. Inc., 426 F.3d 635, 638 (2d Cir. 2005).
Furthermore, when considering a motion to dismiss a pro se complaint, the Court must
interpret the complaint liberally to raise the strongest claims that the allegations suggest. See
Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000); see also Hughes v. Rowe, 449 U.S. 5, 9 (1980)
(per curiam) (noting that courts should hold pro se pleadings “to less stringent standards than

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formal pleadings drafted by lawyers” (internal quotation marks omitted)). However, mere
“conclusions of law or unwarranted deductions” need not be accepted. First Nationwide Bank v.
Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994) (quoting 2A Moore & Lucas, Moore's
Federal Practice ¶ 12.08, at 2266–69 (2d ed. 1984)).
DISCUSSION
The rambling, largely incoherent amended complaint, read together with plaintiffs’
equally confusing subsequent submissions, seeks, in essence, an order vacating both the Housing
Court’s judgment of eviction and the Supreme Court’s dismissal of plaintiffs’ complaint on the
grounds that the state court decisions were wrongly decided. (See, e.g., Am. Compl at ¶¶ 3–5;
Notice to the Court (Doc. No. 10) at 1–3.) Although not stated in the pleadings, plaintiffs also
attempt to raise the haphazard claims of fraud and accounting malpractice mentioned above,
through submissions fraught with recycled state court documents, scribbled rants, Internet
postings, jumbled calculations, and demands that the Court appoint lawyers and accountants to
investigate and recover $44,000,000 which is alleged to have been taken from the coffers of
North Shore Towers. ((See, e.g., Notice to the Court at 4–6, 16–20, 27–28; Letter dated March
25, 2011 from Sol Rosen (Doc. No. 21) at 8–14; Letter dated March 29, 2011 from Sol Rosen
(Doc. No. 24) at 2; Letter dated April 5, 2011 from Sol Rosen (Doc. No. 23) at 3–10; see
generally Pl.’s Opp’n I–III; Pl.’s Reply; Letters from Sol Rosen dated April 13, 2011 (Doc. No.
25), April 16, 2011 (Doc. No. 26), April 26, 2011 (Doc. No. 32), April 29, 2011 (Doc. No. 33),
April 30, 2011 (Doc. No. 34), May 5, 2011 (Doc. No. 36), May 16, 2011 (Doc. No. 41)).
Defendants move to dismiss for lack of subject matter jurisdiction under the Rooker-Feldman
doctrine.

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I.

Rooker-Feldman

The Rooker-Feldman doctrine provides that “federal district courts lack jurisdiction over
suits that are, in substance, appeals from state-court judgments.” Hoblock v. Albany Cnty. Bd. of
Elections, 422 F.3d 77, 84 (2d Cir. 2005); see Rooker v. Fid. Trust Co., 263 U.S. 413 (1923);
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); see also Gyadu v. Unemployment
Compensation, 173 F.3d 844 (unpublished table decision), No. 98-7594, 1999 WL 132179, at *1
(2d Cir. Mar. 9, 1999) (“ ‘[L]ower federal courts possess no power whatever to sit in direct
review of state court decisions.’ ” (quoting Atl. Coast Line R.R. v. Bhd. of Locomotive Eng’rs,
398 U.S. 281, 296 (1970))). The Rooker-Feldman doctrine operates to bar subject matter
jurisdiction in “ ‘cases brought by state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced and inviting district court
review and rejection of those judgments.’ ” McKithen v. Brown, 481 F.3d 89, 96 (2d Cir. 2007)
(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
The Second Circuit has set forth four requirements necessary for Rooker-Feldman to
apply to bar an action: 1) the federal-court plaintiff must have lost in state court; 2) the plaintiff
must be complaining of injuries caused by a state-court judgment; 3) the plaintiff must be
inviting district court review and rejection of that judgment; and 4) the state-court judgment must
have been rendered before the district court proceedings commenced. Hoblock, 422 F.3d at 85.
Here, the gravamen of plaintiffs’ claims is that the Housing Court judgment of eviction,
and subsequent Supreme Court order, were wrongly decided, and that the plaintiffs should,
therefore, be returned to possession. All four Hoblock requirements are met here. First,
plaintiffs lost in state court when the Housing Court judgment awarded possession to defendants,
and the Supreme Court dismissed plaintiffs’ complaint. See Rosen, No. 19301-2010, slip op. 2–

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3, 5–6 (Sup. Ct. Queens Cnty. Sept. 15, 2010); Montag Decl., Ex. E, at 2). Second, plaintiffs’
principal injury – dispossession from their home – was caused by the Housing Court judgment
because, but for the judgment, plaintiffs would remain in possession of their home. Third,
plaintiffs seek “review and rejection” of the judgment because a judgment in plaintiffs’ favor
necessarily would require the district court to “determine that a state-court judgment was
erroneously entered or was void” or “fraudulently procured.” See Kropelnicki v. Siegel, 290 F.3d
118, 129 (2d Cir. 2002). Fourth, the Housing Court judgment and Supreme Court order were
issued before this action was commenced.
The Court notes that plaintiffs’ claims are indistinguishable from others brought by statecourt losers seeking vacatur of Housing Court judgments of eviction, which courts in this Circuit
routinely dismiss for lack of subject matter jurisdiction under Rooker-Feldman. See Torres v.
City of N.Y., No. 09-CV-1894 (KAM), 2009 WL 1346396, at *2 (E.D.N.Y. May 13, 2009)
(district court lacks jurisdiction to vacate “the orders of the state courts regarding [plaintiff’s]
upcoming eviction from her home”); Trang v. Concris Realty Co., No. 05-CV-5441 (RJD)(LB),
2005 WL 1398004, at *2 (E.D.N.Y. June 14, 2005) (federal court lacks jurisdiction over eviction
proceedings); McAllan v. Malatzky, No. 97-CV-8291 (JGK), 1998 WL 24369, at *2-3 (S.D.N.Y.
Jan. 22, 1998) (no subject matter jurisdiction where plaintiff attempted to recloak his charges
regarding a state housing matter as a violation of his constitutional rights), aff’d, 173 F.3d 845
(2d Cir. 1999); see also Ashby v. Polinsky, No. 06-CV-6778 (DLI), 2007 WL 608268, at *1
(E.D.N.Y. Feb. 22, 2007) (“[C]ourts in this Circuit . . . consistently [hold] that any attack on a
judgment of foreclosure is clearly barred by the Rooker-Feldman doctrine.”) (internal quotation
marks omitted), aff’d, 328 F. App’x 20 (2d Cir. 2009); Swiatkowski v. Citibank, No. 10-CV-114
(JFB), 2010 WL 3951212, at *11 (E.D.N.Y. Oct. 7, 2010).

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Moreover, even giving plaintiffs the benefit of the doubt as pro se litigants, plaintiffs
wholly fail to present in the amended complaint an independent federal question or other basis
for invoking the jurisdiction of this Court. Although plaintiffs have couched their amended
complaint, in part, in terms of “various civil and constitutional rights violations, [it] essentially
amounts to an [appeal of] the disposition of the [Housing Court] action.” Swiatkowski, 2010 WL
3951212, at *11 (quoting Swiatkowski v. New York, 160 F. App’x 30, 32 (2d Cir. 2005)). For all
of these reasons, the Court lacks subject matter jurisdiction over plaintiffs’ amended complaint
under the Rooker-Feldman doctrine.
II.

Leave to amend

To the extent that plaintiffs seek to amend their complaint through the hundreds of pages
of disjointed and confused submissions, such leave is similarly DENIED. The standard
governing leave to amend, flexible to begin with, is further liberalized for pro se plaintiffs. See
Fed R. Civ. P. 15(a)(2); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Even under this
broad standard, however, the Court maintains its discretion to deny leave to amend “in instances
of futility.” Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). Here, plaintiffs’ claims were presented to the
Supreme Court and dismissed. Again, having lost in state court, plaintiffs’ attempt to
accomplish in this Court what they failed to do in state court, and have failed to establish any
independent federal question. As with plaintiffs attempts to re-litigate their eviction, these
claims fail as a matter of law for lack of subject matter jurisdiction, and repleading would thus be
futile. See Cuoco, 222 F.3d at 112 (“The problem with [plaintiff’s claims] is substantive; better
pleading will not cure it. . Such a futile request to replead should be denied.”).

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Moreover, having taken great pains to review these submissions in their entirety, the
Court concludes that, even if the claims were not barred under the Rooker-Feldman doctrine, a
complaint amended to include plaintiffs’ muddled fraud and malpractice claims would not
survive a motion to dismiss for failure to state a claim under the Twombly and Iqbal plausibility
standard for federal pleading, let alone the heightened standard applicable to fraud pleadings
under Federal Rule of Civil Procedure 9(b). See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’ ”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)));
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (dismissal appropriate where “complaint is
so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well
disguised.”); Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (per curiam) (dismissal
appropriate where complaint is a “labyrinthian prolixity of unrelated and vituperative charges
that defied comprehension”); Iwachiw v. N.Y.C. Bd. of Elections, 273 F. Supp. 2d 224, 227
(E.D.N.Y. 2003) (dismissing complaint as “hopelessly unintelligible”). And even in those few
snippets where intelligible, plaintiffs’ claims are conclusory and wholly unsupported by factual
allegations. Indeed, plaintiff Sol Rosen implicitly concedes this point through his multiple
requests that this Court aid him in his “investigation” to gather evidence of his alleged fraud .
See, e.g., Letter dated April 29, 2011 (requesting that the Court order the appointment of
accountants and law firms to investigate and recover losses occasioned by the alleged fraud).

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CONCLUSION
For the above reasons, defendant’s motion to dismiss is GRANTED and plaintiffs’
complaint is DISMISSED in its entirety for lack of subject matter jurisdiction. Leave to amend
is DENIED as futile. The Clerk of Court is directed to enter Judgment accordingly and to close
the case. The Clerk is further directed to transmit a copy of this Order to both plaintiffs pro se
via U.S. Mail at the addresses listed on the docket for each plaintiff.
SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
June 27, 2011

___________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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