Ralin v. The City of New York et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons stated in the attached Order, the court respectfully denies plaintiff's objections to the R&R, and adopts Judge Tiscione's R&R in its entirety, pursuant to 28 U.S.C. § 636(b)( 1). Accordingly, the court GRANTS defendants' motion to dismiss. The Clerk of Court is respectfully directed to enter judgment in favor of defendants; send plaintiff copies of this decision, the judgment, and an appeals packet; note service on the docket; and close this case. Ordered by Judge Kiyo A. Matsumoto on 9/30/2017. (Tata, Vivek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ORDER ADOPTING REPORT
CITY OF NEW YORK, et al.
KIYO A. MATSUMOTO, United States District Judge:
Presently before the court are plaintiff’s objections
to the Report and Recommendation of United States Magistrate
Judge Steven L. Tiscione, filed on August 28, 2017, recommending
that defendants’ motion to dismiss the complaint should be
(Report and Recommendations re Notice of Motion to
Dismiss for Failure to State a Claim, dated August 28, 2017
(“R&R”), ECF No. 53 at 1.)
to the R&R.
Plaintiff pro se Brad Ralin objected
(Plaintiff’s Objections to Report and
Recommendations, filed on September 25, 2017 (“Obj.”), ECF No.
For the reasons set forth below, the court adopts and
affirms Judge Tiscione’s thorough and well-reasoned R&R in its
The court assumes familiarity with the factual and
procedural background of this case, which is set forth in Judge
(R&R at 2-5.)
As relevant here, plaintiff’s
Third Amended Complaint1 (the “complaint” or “Compl.”) describes
what plaintiff alleges is a 15-year campaign of harassment,
during which he has received more than 50 improper notice of
parking violations for improper registration of his 1993 Ford E150 van.
(See Compl. at ¶¶ 3, 19, 27.)
approximately $8.3 million in damages.
(Compl. at ¶ 235.)
In his R&R, Judge Tiscione concluded that the majority
of plaintiff’s federal claims were precluded by an earlier state
case in which plaintiff had sought relief for the same issues,
and recommended that plaintiff’s other federal claims be
dismissed for failure to state a claim.
(See R&R at 4, 29.)
Plaintiff requested, and was partially granted, two extensions
of time to file his objections to the R&R.
Pursuant to the
extension, plaintiff timely filed his objections on September
25, 2017, 28 days after issuance of the R&R.2
As Judge Tiscione notes, plaintiff did not file an Amended
Complaint between his initial Complaint and Second Amended
Complaint. (See R&R at 1 n.1)
In his objections, plaintiff incorrectly claims he received
only 10 days from the issuance of the R&R until his objections
were due, and accuses the court of “bias and prejudice.” (Obj.
at 4.) Based on the August 28, 2017 entry of the R&R,
plaintiff’s objections were initially due on September 11, 2017.
Plaintiff requested an extension to September 28, 2017, which
the court granted in part by setting a revised deadline of
September 20, 2017. (ECF No. 55; ECF Order of September 8,
2017.) In a letter received on September 14, 2017, plaintiff
again requested an extension, mentioning, for the first time,
A. Review of R&R
A district court reviews those portions of a Report and
Recommendation to which a party has timely objected under a de
novo standard of review, and “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
28 U.S.C. § 636(b)(1)(C).
The court notes that plaintiff’s complaint, opposition
to defendant’s motion, and objections to the R&R are redundant,
conclusory, and allege facts in no discernable order.
Notwithstanding the confusing and repetitive nature of plaintiff’s
briefing, the court has undertaken a comprehensive de novo review
of the R&R and record pursuant to 28 U.S.C. § 636(b)(1)(C).
Motions to Dismiss
A plaintiff’s complaint must be dismissed if it fails
to state a claim upon which relief can be granted.
Fed. R. Civ.
In deciding a motion to dismiss under Rule
12(b)(6), the court evaluates the sufficiency of a complaint
under a “two-pronged approach.”
Ashcroft, 556 U.S. 662, 679
First, courts are not bound to accept legal conclusions
when examining the sufficiency of a complaint.
See id. at 678
medical issues that made it difficult for him to file his
objections. The court then granted plaintiff an additional
extension until September 25, 2017. (See ECF No. 57 and Order
of September 14, 2017.)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555
Second, the court must assume all well-pleaded facts
are true and then “determine whether they plausibly give rise to
an entitlement to relief.”
550 U.S. at 555-56.
Ashcroft, 556 U.S. at 679; Twombly,
A claim is plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
Ashcroft, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556).
Judge Tiscione construed plaintiff’s complaint to
assert the following claims:
(1) intentional infliction of
emotional distress (“IIED”); (2) harassment; (3) violations of
the Racketeer Influenced and Corrupt Organizations Act (“RICO”);
(4) violations of the Hobbs Act; (5) malicious abuse of process;
(6) malicious prosecution; (7) violations of the First, Fourth,
Fifth, and Fourteenth Amendments to the United States
Constitution; (8) negligence; (9) municipal liability; (10)
libel; and (11) slander.
(R&R at 2-3.)
The court agrees with
Judge Tiscione that, particularly given the liberal pleading
standards afforded to pro se litigants, see Williams v.
Correction Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016),
the complaint can be fairly construed to allege these claims.
Plaintiff, however, referring the court to the “separately
stated and numbered” causes of action in the complaint, objects
that he never alleged causes of action for slander and libel,
and so this court will restrict its review of the R&R to the
(Obj. at p. 4, ¶ 5 (citing Compl. at ¶ 108 –
In the state case, plaintiff brought claims of IIED,
harassment, defamation, slander, abuse of process, malicious
prosecution, enforcement of an illegal ticket quota in violation
of RICO, and related § 1983 claims.
(See Ralin v. City of New
York, et al., Sup. Ct., Queens County, July 5, 2005, Flug, J.,
index No. 1284-2005 at 3, ECF No. 47-2.).
As in the instant
action, plaintiff’s claims in his state case were predicated on
a theory that the City and individual defendants were engaged in
a revenue-generating scheme.
See id. at 2-3.
The causes of action specifically alleged in plaintiff’s
complaint are identical to Judge Tiscione’s list, with the
exception of libel and slander. (See Compl. at ¶¶ 108-224
(listing the causes of action as (1) intentional infliction of
emotional distress (Compl. at ¶ 108); (2) harassment (id. at
¶ 120); (3) RICO and Hobbs Act violations (id. at ¶ 138);
(4) malicious abuse of process (id. ¶ 150); (5) malicious
prosecution (id. at ¶ 158); (6) violations of the Fourteenth
Amendment (id. at ¶ 169); (7) violations of the Fourth Amendment
(id. ¶ 189); (8) violations of the Fifth Amendment (id. at ¶
201); (9) violations of the First Amendment (id. at ¶ 209); (10)
gross negligence (id. at ¶ 218); and (11) municipal liability
claims (id. at ¶ 224).) Although Judge Tiscione referred to
plaintiff’s claim of “Gross Negligence” as a claim of
“negligence,” the essence of the analysis, that plaintiff had
not sufficiently alleged breach of a duty, is dispositive of any
claims sounding in negligence. (See R&R at 21.)
Flug granted summary judgment for the defendants.
Id. at 5-8.
Plaintiff availed himself of appellate review, but the Appellate
Division affirmed Justice Flug’s decision and judgment.
v. City of New York, 44 A.D.3d 838, 839 (N.Y. App. Div. 2007).
In his R&R, Judge Tiscione carefully reviewed each of
plaintiff’s claims in the instant action, and concluded that
many were precluded by the state case.4
On its independent de novo review of the record and
Justice Flug’s opinion, the court concurs with Judge Tiscione
that plaintiff’s prior state action precludes most of
plaintiff’s federal claims in the instant action.5
Although the R&R did not explicitly address plaintiff’s First
Amendment claim (see Compl. at ¶¶ 209-217), the court concludes,
after a de novo review, that this claim must be dismissed for
failure to state a claim on which relief can be granted.
Plaintiff’s retaliation claims are redundant to his other
claims. Furthermore, based on the facts alleged, such as the
failure of various city officials to respond to plaintiff’s
complaints regarding his parking tickets, plaintiff does not
state a First Amendment claim.
“Issues of . . . collateral estoppel may be decided on a motion
to dismiss,” and a district court may review matters of public
record, such as Justice Flug’s decision, in deciding a motion.
See Peralta v. St. Luke’s Roosevelt Hosp., No. 14 CIV. 2609 KPF,
2015 WL 3947641, at *4 (S.D.N.Y. June 26, 2015) (citing Cameron
v. Church, 253 F.Supp.2d 611, 617–24 (S.D.N.Y.2003) and Pani v.
Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998));
accord Maysonet v. Citi Grp., Inc., No. 10 CIV. 4616 SAS, 2011
WL 476610 (S.D.N.Y. Feb. 9, 2011) (“When a motion to dismiss is
premised on the doctrine of collateral estoppel, a court is
permitted to take judicial notice of and consider the complaints
and the record generated in both actions without having to
convert the motion to dismiss into a summary judgment motion”
also agrees with Judge Tiscione that plaintiff’s remaining
allegations do not state federal claims on which relief can be
(See R&R at 26-27 (discussing Hobbs and Negligence-
As Judge Tiscione recommended, the court will
deny plaintiff leave to re-plead.
Re-pleading cannot cure the
central defect affecting the majority of the claims in
plaintiff’s complaint, which is that his claims are precluded by
the adverse decision in his prior state case.
discussed below, plaintiff’s theory of the case appears to rest
on a flawed understanding of the interplay between the New York
City parking rules and New York State registration requirements.
The Definition of “Commercial Vehicle”
In his objections, plaintiff repeatedly reiterates
arguments concerning the proper definition of a “commercial
vehicle” for the purposes of New York City parking enforcement.
Plaintiff refers to this issue as the “crux of the case,” and
argues that it distinguishes the instant action from the prior
state court case.
(See, e.g., Obj. at pp. 2, 13-15.)
argues that parking enforcement agents, administrative law
judges, his lawyer and the judge in the prior state case, and
Judge Tiscione, have all intentionally or negligently ignored
(quoting Griffin v. Goldman, Sachs & Co., No. 08 Civ. 2992, 2008
WL 4386768, at *2 (S.D.N.Y. Sept. 23, 2008)).
applicable law relating to the proper definition of a
(See, e.g., Obj. at pp. 2, 6, 7, 13, 18,
21, 28; Compl. at ¶¶ 12, 35, 44.)
The court respectfully
The court’s analysis of this issue, which does not
alter the application of collateral estoppel, is set forth below
for the benefit of the parties.
In New York State, pursuant to Department of Motor
Vehicle (“DMV”) regulations, vans must be registered as
commercial vehicles, unless they have at least one “permanently
installed” “seat or seat fitting . . . behind the driver,” in
which case they may be registered as a passenger vehicle.
15 NYCRR § 106.3(d).
New York City Department of Transportation
(“NYC DOT”) rule 4-08(j)(1) makes it a violation to “park a
vehicle . . . unless it is properly registered in accordance
with the laws and rules of New York.”
DOT rule 4-08(j)(1)”).
34 RCNY 4-08(j)(1) (“NYC
Plaintiff has been repeatedly – and
erroneously – ticketed for improper vehicle registration
pursuant to NYC DOT rule 4-08(j)(1); on the tickets, parking
agents incorrectly claim that plaintiff's van has no “rear
Because plaintiff’s van does have a rear seat, it is in
compliance with the applicable registration requirements for a
passenger vehicle (see 15 NYCRR § 106.3(d)), and plaintiff has
successfully challenged the tickets he has received.
Plaintiff’s complaint, however, is not simply that he
has received parking tickets despite proper registration.
Plaintiff contends that parking enforcement agents should only
seek to enforce the definition of “commercial vehicle” found in
the New York City parking rules, which define a commercial
vehicle as one that has, inter alia, commercial plates.
Plaintiff’s theory is that because his vehicle
clearly has regular passenger plates, not commercial plates,
parking enforcement agents should be able to tell immediately
that he is not in violation of NYC parking laws and, therefore,
he should never have received any tickets under NYC DOT rule 408(j)(1), regardless of whether or not his van has a back seat.
(See Comp. at ¶ 4; Obj. at p. 6 (“To properly enforce § 408(j)(1)  agents do not need vehicle access they simply need
to look at the license plate bolted to the exterior of the
Plaintiff believes that enforcement of rule 4-
08(j)(1) based on the state registration rules, rather than on
the city’s definition of “commercial vehicle,” is indicative of
a conspiracy to enforce unlawful ticket quotas.
Obj. at p. 2 (“The NYPD and NYC D[epartment of Finance Parking
Violations Bureau] ALJs acted in concert in a ticket quota
They suppressed, rewrote and mis-cited
material . . . in their enforcement and adjudication of
plaintiff’s improper registration commercial vehicle [notices of
Plaintiff’s theory rests on a misunderstanding of the
different roles played by the State DMV, which regulates
registration, and the City DOT, which regulates city parking
rules that may incorporate State DMV regulations.
parking enforcement agents enforce NYC DOT rule 4-08(j)(1),
which prohibits parking in New York City without being “properly
registered in accordance with the laws and rules of New York,”
they necessarily must do so by reference to the relevant state
See 15 NYCRR § 106.3 (setting
requirements for registration of a passenger vehicle).
definition of “commercial vehicle” in NYC DOT rule 4-01(b)
applies to rules governing where commercial vehicles may park,
and does not override New York State requirements for the types
of vehicles that must be registered as “commercial.”
plaintiff's van should not receive registration-related tickets
if is properly registered, parking enforcement agents must
consider New York State registration requirements when enforcing
For the foregoing reasons, the court respectfully
denies plaintiff’s objections to the R&R, and adopts Judge
Tiscione’s R&R in its entirety, pursuant to 28 U.S.C.
Accordingly, the court grants defendants’ motion
The Clerk of Court is respectfully directed to
enter judgment in favor of defendants; send plaintiff copies of
this decision, the judgment, and an appeals packet; note service
on the docket; and close this case.
September 30, 2017
Brooklyn, New York
Hon. Kiyo A. Matsumoto
United States District Judge
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