Johnson v. Robert N. Daveoren Complex

Filing 43

MEMORANDUM AND ORDER: For the reasons set forth in the attached Memorandum and Order, the application of non-party Taquesha Jackson (Doc. No. 42) is granted, and the Court hereby ORDERS that each of the notices of pendency attached to this Order and filed in this action at Document Numbers 29 , 30 , and 31 , are CANCELLED, and further directs that the County Clerks of Queens, Kings, and Bronx Counties take the necessary steps to reflect this Court's cancellation of such notices in the records of their respective offices. The Clerk of this Court is directed to send a copy of this Memorandum and Order to petitioner Rohan Johnson at the address listed for him on the docket, and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 2/12/2018. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------X
ROHAN JOHNSON,
Petitioner,
MEMORANDUM AND ORDER
15-CV-890 (RRM)

- against ROBERT N. DAVOREN COMPLEX,
Respondent.
------------------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.
BACKGROUND

On February 17, 2015, Petitioner Rohan Johnson filed a writ of habeas corpus under 28
U.S.C. § 2254, seeking to challenge an ongoing criminal action in Queens County and to be
released from custody. (See Pet. (Doc. No. 1).) On March 21, 2016, by written decision, the
Court dismissed the petition because Johnson had been neither convicted nor sentenced. (See
Mem. & Order (Doc. No. 35).) Judgment entered the same day. (See Judgment (Doc. No. 36).)
Prior to the dismissal of his case, Johnson filed three notices of pendency in the County
Clerks Offices in Queens, Kings and Bronx Counties, each of which lists numerous properties in
which Petitioner Johnson claims an interest. (See Queens Cty. Not. (Doc. No. 29); Kings Cty.
Not. (Doc. No. 30); Bronx Cty. Not. (Doc. No. 31).)1 On January 31, 2018, the Court received a
letter from non-party Taquesha Jackson asking the Court to direct the Queens County Clerk to
cancel the notice of pendency filed in this case against a property she owns located at 137-55
Bedell Street, Springfield Gardens, New York. (Jackson Ltr. (Doc. No. 42) at 1.) Jackson is

1

The three notices of pendency as filed on the docket in this Court are attached to this Memorandum and Order.

currently in foreclosure proceedings and is unable to sell the property due to the notice of
pendency.2 (Id. at 2.)
For the reasons set forth below, this Court hereby ORDERS that each of the notices of
pendency attached to this Order are CANCELLED, including the notice of pendency that
includes Ms. Jackson’s property.
DISCUSSION
Article 65 of the N.Y. Civil Practice Law and Rules allows a plaintiff, who brings a
lawsuit claiming interest in real property, to file a notice of pendency (also called a “lis
pendens”), which alerts future buyers or interest holders of a prior claim to a pending lawsuit that
may affect title to that property. N.Y. C.P.L.R. §§ 6501–6516; see also Diaz v. Paterson, 547
F.3d 88, 90–91 (2d Cir. 2008) (describing New York law governing notices of pendency). The
notice may be filed only “[i]n an action in which the plaintiff asserts a pre-existing interest in
defendant’s real property” and “prevents a potential transferee or mortgagee of the property from
acquiring the status of innocent purchaser for value while the action is pending.” Alexander,
Practice Commentary, McKinney’s, N.Y. C.P.L.R. § 6501. It must be “filed in the office of the
clerk of any county where property affected is situated.” N.Y. C.P.L.R. § 6511. The notice is a
unique provisional remedy in that it permits a plaintiff, albeit in a narrow set of cases, to “file
without advance notice or prior judicial review.” Diaz v. Paterson, 547 F.3d at 91 (internal
quotation marks omitted). “Where a notice of pendency of action is filed in a county clerk’s
office, but the action is brought in the United States Court, the application to cancel should be
brought in the United States court and not in the state court.” Frederick v. Baxter Arms Corp.,

2

The Queens County Supreme Court has already vacated a fraudulent deed filed against this property, which
purported to convey title from Jackson to A Fi Wi Lan-Ting Trust, with Johnson listed as trustee. (Jackson Ltr.at
5.) However, the notice of pendency filed in this habeas case remains.

2

39 F. Supp. 609, 610 (E.D.N.Y. 1941); see also N.Y. C.P.L.R. § 6514; Cayuga Indian Nation v.
Fox, 544 F. Supp. 542, 548–49 (N.D.N.Y. 1982) (finding that the federal court was the proper
forum for challenges to the notices of pendency).
In the instant matter, all of the notices of pendency filed by Johnson, including that
related to Jackson’s property, are invalid. In his federal action, Johnson sought relief pursuant to
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking to be released from custody in
connection with a then-pending criminal action in Queens County. The relief sought by Johnson
in the underlying action is wholly unrelated to any right, title or interest in property that could be
asserted through the provisional remedies available through Article 65 of the CPLR. Moreover,
the underlying action has been dismissed, which mandates cancellation of a notice of pendency.
See N.Y. C.P.L.R. § 6514(a) (“Mandatory cancellation: The court, upon motion . . . shall direct
any county clerk to cancel a notice of pendency . . . if the action has been settled, discontinued or
abated . . .); see also Adams v. Smith, No. 07-CV-0452 (LEK) (RFT), 2010 U.S. Dist. LEXIS
90729, at *65 (N.D.N.Y. Sept. 1, 2010) (vacating notices of pendency where the underlying
action has been dismissed).
CONCLUSION
For the reasons stated herein, the Court hereby ORDERS that each of the notices of
pendency attached to this Order and filed in this action at Document Numbers 29, 30, and 31, are
CANCELLED, and further directs that the County Clerks of Queens, Kings, and Bronx Counties
take the necessary steps to reflect this Court’s cancellation of such notices in the records of their
respective offices.

3

The Clerk of this Court is directed to send a copy of this Memorandum and Order to
petitioner Rohan Johnson at the address listed for him on the docket, and note the mailing on the
docket.

SO ORDERED.
Roslynn R. Mauskopf

Dated: Brooklyn, New York
February 12, 2018

____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

4

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Robert N. Daveron Complex, et. al,
Respondent

no: BANK OF Nl:W YORK MELLON,
DEUTSClll: BANK NATIONAL TRUST COMPANY, AS TRUSTEE,
OCWEN LOAN SERVICING, LLC,
GRUN STONE HOMES, L.LC,
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER.
STATE OF NEW YORK, CITY OF NEW YORK, EAST COAST PROPERTIES AND
DEVELOPMENT GROUP INC.,
BAYPORT FUNDING, LLC, MOGAL ENTERPRISES INC,
EASTERN SAVINGS BANK. FLUSHING BANK. 8702MANAGEMENT, LLC.
ELIZABETH GILL, ESQ., REFEREEE,
WEU3 FARGO BANK. NATIONAL ASSSOCIATION,
SELENE FINANCE. LP, SRMOF 2009-1 TRUST, ET. AL
AND ALL OTHER PARTIES OF INTEREST,
1-541 JOHN and JANE DOES.
Libellees

•••••••••••••••••••••••••••••••••••••••••••••••••••••••
TO: Queens county clerk;
The clerk of Queens County is directed to Index this Notice to the names of the Respondents/libellees
and property/land above:

NOTICE IS HERE BY GIVEN that an action has been commenced and Is now pending In the
claim and demand of the above named
petltloner/dalmant(s), ROHAN JOHNSON A/KIA: (a flwl Ian-ting trust), and against the above1'19111ed Respondent(s)/Ubellees for a judgment (1) enjoining the use of the property (land);
(2) dlrec:lina the restoration of the grades thereof to the extent that the court shall deem
..,.. a11 vand (3) Impressing a lien as of the commencement of this adion upon the property
upon the property (Land) to - r e the performance of the acts and things directed or
required by this court to be done by the Respondent(s)/Ubellees and that the real property In
Queens County affected thereby Is partlcularty desa'ibed as: All that certain Plot, Piece or
Parcel of land with the Buildings and Valuable Improvements Structurally SoUnd and Water
Tight, thereon erected, situated, lying, resting and being In Queens County and N- York
above-captioned

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Case 1:15-cv-00890-RRM Document 29 Filed 12/17/15 Page 2 of 2 PageID #: 365

T• 11tow'ies and Pa 11111•._ of the united states (~) and fled In the oflke of the a.k
of~ county as: real pwoperty/allodlal land described as:

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(Refer- CRFN#2013000u7541)

With eec:h Ind every part of the land sMwfl thereOIL

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o.tie: 09 O&c:ember 2015 (A.O.)

Afllnned _ , SHled bythefree-afmy-MndthlsJ!!...cblyaf
United 5tlltes, without prejudice.

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Noble El, UCCl-308
Authorized Representative

C/0: Johnson
General Post 311315
Jamaica, New York (111431)

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Case 1:15-cv-00890-RRM Document 30 Filed 12/17/15 Page 1 of 2 PageID #: 366

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IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

district court for the united states
Eastern District of New York - administrative venue

Rohan Johnson, et. al
Claimant

Robert N. Daveron Complex, et. al,
Respondent

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THE BANK OF NEW YORK MELLON,
GREENPOINT MORTGAGE FUNDING, INC.,
HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE,
FREMONT INVESTMENT & LOAN,
METLIFE HOME LOANS,
U.S. BANK, N.A., WATERFALL VICTORIA MASTER FUND 2008-1, KEY BANK, N.A.,
CHAMPION MORTGAGE, CALIBER HOME WANS, INC.
OCWEN LOAN SERVICING, LLC,
EASTERN SAVINGS BANK, FSB, KRISS & FEUERSTEIN LL, MERs, MAK.OVER, EINAV,
ET.AL
AND ALL OTHER PARTIES OF INTEREST,
1-50 JOHN and JANE DOES,
Libellees

*******************************************************
TO: kings county clerk;
The clerk of Kings County is directed to Index this Notice to the names of the Respondents/libellees and
property/land above:

NOTICE IS HERE BY GIVEN that an action has been commenced and Is now pending in the
Court upon the dalm and demand of the above-named
petltloner/dalrnant(s), ROHAN JOHNSON A/K/A: (a fiwl Ian-ting trust), and against the
above-named Respondent(s)/Ubellees for a judgment (1) enjoining the use of the property
(Land); (2) directing the restoration of the grades thereof to the extent that the court shall
deem necessary and (3) Impressing a Hen as of the commencement of this action upon the
property (land) to assure the performance of the acts and things directed or required by this
court to be done by the Respondent(s)/Ubellees and that the real property in Kings County
affected thereby is particularly described as: All that certain Plot, Piece or Parcel of land with
the Buildings and Valuable improvements Structurally Sound and Water Tight, thereon
erected, situated, lying, resting and being in Kings County and N- York Territories and
Possessions of the united states (nalogous) and flied in the office of the aerk of kings county
as: real property/allodial-land described as:
above-captioned

Case 1:15-cv-00890-RRM Document 30 Filed 12/17/15 Page 2 of 2 PageID #: 367

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048 4778 - [4701) Foster Avenue (road) Brooklyn, New York state Republic
(Reference CRFN # 2013000423854).
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:tll20 - [11o6] Bergen~ (road) Brooklyn, NewYork-te Republic

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1826 - [46o] Madison street (road) Brooklyn, New York state Republic

With each and every part of the land shown thereon.

Authorized Representative
C/O: Johnson
General Post 311315
Jamaica, New York (111431)

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LONG ISLAND OFFICE
Rohan Johnson, et. al
Claimant

cause No.: 15-cv-00890 RR M
related Index : 35130/2012

15-cv-5674(gbd)
Robert N. Daveoren Complex, et. al,
Respondent

NOTICE OF PENDENCY

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TO: Bronx county clerk;
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The clerk of Bronx County is directed to Index this Notice to the names of the respondents/li~~I~ and

property/land above:

NOTICE IS HERE BY GIVEN that an action has been commenced and is now pending In the
above-captioned Court upon the daim and demand of the above-named
petitioner/daimant(s), Rohan Johnson, A/K/A: (a fiwi Ian-ting trust), and against the abovenamed Respondent(s)/Ubellees for a judgment (1) enjoining the use of the property (land);
(2) directing the restoration of the grades thereof to the extent that the court shall deem
necessary and (3) Impressing a lien as of the commencement of this action upon the property
(land) to assure the performance of the acts and things direded or required by this court to
be done by the Respondent(s)/Ubellees and that the real property in Bronx county affected
thereby is particularly described as: All that cenain Plot, Piece or Parcel of land with the
Buildings and Valuable improvements Structurally Sound and Water Tight, thereon erected,
situated, lying, resting and being in Bronx County and New York Tenitories and Possessions of
the united states (nalogous) and filed in the office of the Oerk of Bronx county as real
pro~rty/allodial-land desaibed as:
Sec:

Lot:

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2287 - (419) East 142 street (road) Bronx, New York state RepubUc ( Reference CRFN #

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Case 1:15-cv-00890-RRM Document 31 Filed 01/11/16 Page 2 of 2 PageID #: 369
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With each and every part of the land shown thereon.

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Date: 09 December 2015 (A.O.)

Affinned and sealed by the free act of my own hand this
Without the United States, without prejudice.

1Q__ clay of ~ 21115.

Noble El, UCCl-308
Authorized Representative
C/O: Johnson
General Post 311315
Jamaica, New York [111431)

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