Chan et al v. Choi et al

Filing 3

MEMORANDUM AND ORDER DISMISSING CASE: Plaintiffs, appearing pro se, filed the instant fee paid action on 4/16/2012. The Court dismisses the complaint for lack of subject matter jurisdiction and as frivolous. Although plaintiffs have p aid the filing fee to initiate this action, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Chief Judge Carol Bagley Amon, on 5/3/2012. C/mailed to pro se Plaintiffs. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

FILED

IN CLERI('S OFFICE

U.S. DlSl'R1CT COURT E.O.N.Y.

* MAY 03 2012 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

BROOKLYN OFFICE

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NOT FOR PUBLICAnON

MEE WAH CHAN; WEI-JN HUANG,
MEMORANDUM AND ORDER
12 CV 1844 (CBA)

Plaintiffs,
-againstYUI CHAN CHOI; 43-22 ROBINSON
REALTY, LLC. JOHN DOES 1-99,
Defendants.

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AMON, Chief United States District Judge.
Plaintiffs, appearing pro se, filed the instant fee paid action on April 16, 2012. For the
reasons discussed below, the Court dismisses the complaint.
Background
Plaintiffs are the owners ofa residence located at 142-17 Cherry Avenue in Queens, New
York. (Compl at ~ 1.) Defendants Choi and Robinson Realty, LLC., are the owners of an
adjacent property located at 142-15 Cherry Avenue. (CompI. at 1, ~~ 3-5.) The parties share a
driveway, over which plaintiffs state that they have an easement. (CompI. at 2, ~~ 1-2.)
Plaintiffs allege that defendants plan to build "with cantilever over the driveway and it will build
all the way up to 6 floors, which will block all plaintiffs' windows and seal off all the solar
easement right ... and damg[e] plaintiffs' driving easement right ..... " (CompI. at 2-3, ~~ 4-6.)
Plaintiffs further allege that plaintiff Huang will be adversely affected by the construction as he
is disabled from a stroke and uses the driveway to access his car. (CompI. at 2, ~ 3.) Plaintiffs
seek monetary damages and injunctive relief.

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Discussion
Plaintiffs' cause of action is remarkably similar to a complaint concerning the same
properties that plaintiffs filed in March 2008 against different defendants. This Court dismissed
that action for lack of subject matter jurisdiction, finding that "[a]t the core of plaintiffs'
complaint are property and tort law disputes over their easement, which are not sufficient to
establish federal question jurisdiction." See Chan v. Nashty, No. 08 CV 1089, slip op. at 7
(E.D.N.Y. July 31, 2009). The Second Circuit affirmed the decision by Summary Order dated
October 4,2010. See Chan v. Nashty, No. 09-3687-cv, 394 Fed. App'x 832 (2d Cir. 2010). It
appears that the defendants named in this action purchased the 142-15 Cherry Avenue property
in 2010, and are continuing with the development plans that plaintiffs believe are in violation of
their easement. (Compl. at 2, ~ 4.) Similar to the prior action, the instant complaint purports to
invoke several federal statutes, including various provisions of the Fair Housing Act and the
Americans with Disabilities Act, without articulating a proper basis for such federal claims.
Rather, the action is unquestionably based in state property and tort law, and the instant
complaint is simply a futile attempt to re-assert federal legal theories that have already been
squarely rejected by this Court.
Moreover, to the extent that plaintiffs have attempted to state a claim under an additional
federal statute, 42 U.S.C. § 1982, any such claim must similarly fail. Section 1982 provides that
"[a]ll citizens of the United States shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and
personal property." That provision "has been interpreted to prohibit 'intentional discrimination
based on race.'" Sanders v. Grenadier Realty, Inc., 367 Fed. App'x 173, 174 (2d Cir. 2010)

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(quoting Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987». There are no facts
alleged in the complaint to suggest any race-based discrimination on the part of the defendants.
Accordingly, for the reasons set forth in the Court's prior order dismissing plaintiffs' first
action, the plaintiffs claims are dismissed sua sponte for lack of subject matter jurisdiction.
Moreover, the Court concludes that a sua sponte dismissal is appropriate on the additional
grounds that the plaintiffs' attempt to resubmit claims previously decided is frivolous. See
Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362 (2d Cir. 2000) (affirming sua
sponte dismissal of the plaintiff s fee paid action alleging the same claims that were previously
dismissed by the district court).
Conclusion

The complaint is hereby dismissed for lack of subject matter jurisdiction and as frivolous.
Although plaintiffs have paid the filing fee to initiate this action, the Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore informa
pauperis status is denied for purpose ofan appeal. Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
SO ORDERED.

/Signed by Judge Amon/
CAROLB.
ON
Chief United tates District Judge

lJA..7

Dated: Brooklyn, New York

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,2012

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