DeMartino et al v. State of New York et al
Filing
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OPINION & ORDER: SO ORDERED that (1) the IRS's motion to dismiss the complaint as against it pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure is granted and the complaint is dismissed in its entirety without prejudice as against the IRS for lack of subject matter jurisdiction; (2) the State defts' motion to dismiss the complaint pursuant to Rules 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure is granted to the extent that (a) plaintiffs' Section 198 3 claims seeking damages as against the State defts, with the exception of the Doe defts in their individual capacity, and any state law claims against the State defts, with the exception of any state law claim seeking damages against the Doe defts i n their individual capacity, are dismissed in their entirety without prejudice for lack of subject matter jurisdiction, (b) plaintiffs' sixth cause of action is dismissed in its entirety as barred by the principle of comity, without prejudice to recommencing any appropriate action in state court, and (c) the complaint is otherwise dismissed in its entirety with prejudice for failure to state a claim for relief; and (3) Frank's application for leave to amend the complaint is denied. The Clerk of the Court shall enter judgment in favor of defts, close this case and, pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this order upon all parties as provided in Rule S(b) of the Federal Rules of Civil Procedure, including mailing copies of this order to plaintiffs at their last known address. CM to pro se plaintiffs. Ordered by Judge Sandra J. Feuerstein on 6/24/2013. (Florio, Lisa)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------)(
THOMAS DEMARTINO and FRANK
DEMARTINO,
Plaintiffs,
-against-
OPINION AND ORDER
12-CV-3319 (SJF)(AKT)
STATE OF NEW YORK, TOWN OF
HUNTINGTON, INTERNAL REVENUE
SERVICE, STATE OF NEW YORK
COMMISSIONER OF T A)(ATION AND
FINANCE, and JOHN DOES# 1-5,
FILED
IN CLERI\'S OFFICE
US DISTRICT COURTED NY
*
Defendants.
,JUN 2 4 2013
*
LONG ISLAND OFFICE
--------------------------------------------------------)(
FEUERSTEIN, J.
On July 3, 2012,pro se plaintiffs Thomas DeMartino ("Thomas") and Frank DeMartino
("Frank") (collectively, "plaintiffs") commenced this civil rights action pursuant to 42 U.S.C. §
1983 ("Section 1983") against defendants State ofNew York ("the State"), State ofNew York
Commissioner of Taxation and Finance and "John Does #1-5" ("the Doe defendants"), identified
only as employees of the State,' (Compl., ~ 13), (collectively, "the State defendants"); the Town
1
Although plaintiffs identifY the Doe defendants as "natural persons who at all times
relevant herein were each an employee, agent, representative and/or servant of the State of New
York and/or the Town of Huntington, (Compl., ~ 13), plaintiffs assert both the first and fifth
causes of action against only the State and all of the Doe defendants, and not the Town. In both
the first and fifth causes of action, plaintiffs allege that "[t]he actions of the State ofNew York
and its employees, agents, representatives and/or servants deprived Thomas DeMartino of his
liberty and property interests without due process of law***," (Compl., ~~ 42, 71). In addition,
in the second and third causes of action, plaintiffs allege that "[i]n 2004, the State of New York
and its employees, agents, representatives and/or servants acting under color of state law
commenced a baseless criminal proceeding against Thomas * * *," (Compl., ~~ 45, 52), and in
the sixth cause of action, plaintiffs allege that "[t]he actions of the State ofNew York and its
employees, agents, representatives and/or servants deprived Thomas DeMartino and Frank
DeMartino of his [sic]liberty and property interests without due process of law***." (Compl.,
I
......
-of Huntington ("the Town"); and the Internal Revenue Service ("IRS"), alleging violations of
their constitutional rights. Pending before the Court are: (I) a motion by the IRS to dismiss the
complaint as against it pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure for lack
of subject matter jurisdiction; and (2) a motion by the State defendants to dismiss the complaint
pursuant to Rules 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of
subject matter jurisdiction and failure to state a claim for relief, respectively. For the reasons set
forth below, the motions are granted.
I.
Background'
A.
Factual Background
In 2001, D&D Mason Contractors, Inc. (D&D), of which Thomas was the sole principal,
commenced a lawsuit in the Supreme Court of the State of New York, County of Suffolk against
the Town alleging breach of contract regarding a project known as "Sidewalk Improvements and
Requirements Contract, Main Street, Huntington-Phase I" ("the breach of contract action").
(Compl., '1[14). Plaintiffs allege that in response to the breach of contract action, Richard
Dickstein ("Dickstein"), the Town's project manager, indicated that the Town "would use their
political connections to 'destroy' D&D * * *Thomas * * * and anybody else that was involved
with litigation against the Town * * *." (Compl., '1[15).
On or about May 28, 2004, a desk appearance ticket was issued charging Thomas with
'1[76). There is no similar reference to any employees, agents, representatives and/or servants of
the Town in any of the causes of action. Thus, it is clear that the Doe defendants are comprised
only of State employees, agents, representatives and/or servants.
2
The following facts are taken from the pleadings and do not constitute findings of fact
by the Court.
2
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..... ,.
one (1) count of offering a false instrument for filing in the first degree in violation of Section
175.35 of the New York State Penal Law in relation to his filing of written complaints with the
New York State Department of Environmental Conservation ("DEC") alleging that the Town
knowingly buried fuel tanks in the sidewalks on Main Street without undertaking the appropriate
remedial measures provided by the law. (Compl., ~ 16). Specifically, Thomas was charged with
filing a "Supporting Deposition" purportedly executed by Ivano Valenti ("Valenti") on or about
August 23, 2001, with the knowledge that the instrument was false and that it would be filed, and
become a record of a public office, and with the intent that it would defraud the DEC. (Compl., ~
17). The criminal charge was dismissed against DeMartino pursuant to Section 30.30(1)(a) of
the New York Criminal Procedure Law due to a speedy trial violation. (Compl., ~ 20). Plaintiffs
allege that the criminal prosecution "was in bad faith and part of a campaign and pattern of
harassment against D&D * • *Thomas* * *,and others associated with D&D * • • ." (Compl.,
~
21).
In 2003 or 2004, the New York State Department of Labor ("DOL") initiated
administrative proceedings against D&D, Thomas "and others for alleged violations of the
prevailing wage laws." (Compl.,
~
22). Plaintiffs allege that "[t]he baseless administrative
proceedings resulted in an order and determination, dated April 7'\ 2005, and filed April 8'\
2005, that was obtained by way of default, i.e., respondents were not present at the hearing to
defend the allegations." (Compl.,
~
23). D&D and Thomas subsequently filed an Article 78
petition in the Supreme Court of the State ofNew York, Appellate Division, Second Judicial
Department ("the Appellate Division"), seeking to annul, vacate and set aside the April 2005
order. (Compl., ~ 24). Valenti and another witness, DiBenedetto, both of whom had participated
in the default hearing, submitted sworn affidavits as part of the Article 78 petition which
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-contradicted their testimony at the hearing. (Compl.,
~ 25).
Pursuant to a stipulation of
settlement, the April 2005 order against D&D, Thomas and others was annulled, vacated and set
aside. (Compl., ~ 24). Plaintiffs contend that the DOL administrative proceedings "were
asserted in bad faith and part of campaign and pattern of harassment against D&D ***,Thomas
* * *,and others." (Compl., ~ 26).
On or about January 3, 2007, D&D obtained a judgment against the Town in the breach
of contract action. (Compl., ~ 27). D&D subsequently sold the judgment to DeMartino Property
Management, Inc., which is owned and controlled by Frank. (Compl., ~ 34). Thereafter, the
judgment was assigned to Frank personally and he sold a fifty percent (50%) share in the
judgment to Thomas personally. (Compl.,
~
35).
"[I]n the latter portion of 2007 and continu[ing] to 2008," the State commenced
additional administrative proceedings against Thomas alleging prevailing wage violations ("the
2007-2008 administrative proceedings"). (Compl.,
~
29). According to plaintiffs, the State
"moved forwarded [sic] with these administrative proceedings because they knew that they can
succeed in sustaining the administrative charges in a forum they controlled, i.e., a kangaroo
court, at the same time aiding the Town * • *, in intimidating, exacting revenge, gaining an
advantage in the litigation between D&D and the Town * * * whereby the Town * * * would and
could evade its legal obligations and avoid paying the money judgment obtained against it with
all of the accrued interest." (Compl., ~ 30). The State "succeeded in nearly all of the
administrative charges asserted against* * * D&D • • * and Thomas • * * [and] received a
significant money award accruing at a high interest rate, a civil penalty, and findings that D&D •
• * and Thomas * * • knowingly and willingly committed prevailing wage violations • * *
[which] caused (D&D and Thomas] to be debarred from public works contracts for a period of at
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least five years." (Compl., ~ 31). According to plaintiffs, "[t]he administrative proceedings were
a complete mockery of the judicial process and the United States Constitution," (Compl., ~ 32),
and the State "obtained relief in the administrative proceedings by violating the constitutional
[sic] protected rights of the parties." (Compl., ~ 33). D&D's and Thomas's subsequent Article
78 petition relating to the 2007-2008 administrative proceedings was denied by the Appellate
Division and the New York State Court of Appeals denied their application for leave to appeal to
that Court.
C!!!J
According to plaintiffs, their collection of the judgment against the Town "has
been frustrated by the [State's] bad faith administrative attack on [D&D and Thomas]" and the
Town "has illegally withheld and avoided paying the judgment against it plus all of the accrued
interest with the help of the State
* * *."
(Compl.,
~
36).
Plaintiffs further allege that they are both indebted to the IRS and the New York State
Department of Taxation and Finance ("DTF"). (Compl., ~ 37). According to plaintiffs, "[w]hile
the State * * * on one hand has frustrated [their] ability to collect money judgments due and
owing, on the other hand the [DTF] has taken measures to enforce and collect taxes due and
owing to the State. Nevertheless, the federal and state tax agencies have selectively elected not
to pursue the money judgment, with all of the accrued interest, owed by the Town*
* *.
This
double standard is clearly unconstitutional." (Compl., ~ 37).
B.
Procedural Background
On July 3, 2012, plaintiffs commenced this civil rights action pursuant to Section 1983
against the State defendants, the Town and the IRS alleging: (1) violations of their due process
rights under the Fifth and Fourteenth Amendments to the United States Constitution (first and
fifth causes of action against the State and Doe defendants and sixth cause of action against all
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-.
.
d cause of action against the State, Town and Doe
_.-defendants); (2) malicious prosecutiOn (secon
defendants); (3) abuse of criminal process (third cause of action against the State, Town and Doe
defendants); and (4) false arrest (fourth cause of action against the State, Town and Doe
defendants). With respect to their first cause of action, plaintiffs allege that the State defendants
.
ainst Thomas * * * regarding falsification of payroll records charge
"made derogatory fimd mgs ag
[sic] without providing him written notice of these charges in advance of the hearing in violation
of his constitutionally protected rights" and that "[a]s a direct result [of] these findings without
due process oflaw, Thomas * * * suffered debarment from public works contracts for at least
five years and a tangible burden on its [sic] future employment prospects." (Compl., ~~ 40-41 ).
With respect to both their second and third causes of action, plaintiffs allege that the State
defendants "vindictively and maliciously commenced the [2004 criminal] proceeding to retaliate
against Thomas * * * for his breach of contract litigation with the Town* * *"in violation of his
rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.
(Compl., ~~ 47, 49, 54, 56). With respect to their fourth cause of action, plaintiffs allege that the
Town and State defendants "conspired, instigated and played an active role in procuring
[Thomas's] desk appearance [ticket] in 2004 as part of the campaign to harass him for his breach
of contract litigation against the Town* * *"in violation of his rights under the Fourth, Fifth and
Fourteenth Amendments to the United States Constitution. (Compl.,
~~59,
64). With respect to
their fifth cause of action, plaintiffs allege that the State defendants "made derogatory findings
against Thomas * * * regarding prevailing wage violations without providing him the right to
confront witnesses" when it failed to call Valenti and DiBenedetto as witnesses at the hearing in
the 2007-2008 administrative proceedings. (Compl.,
~~
68-69). With respect to their sixth cause
of action, plaintiffs allege that the State defendants and Town "have illegally frustrated their
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......-ability to collect their judgment and meet their tax obligations" and that "[t]he State and Federal
tax authorities are selectively attempting to collect taxes from the parties while not pursuing all
available assets due and owing from the Town * * *." (Compl., ~ 75). Plaintiffs seek: (1) a
"[ d]eclaratory judgment vacating the administrative judgment" against them; (2) "[i]njunctive
relief enjoining the State
* * * from enforcing the administrative judgment" against them; (3)
damages; and (4) costs and attorney's fees.
The State defendants and IRS now move to dismiss the complaint against them pursuant
to Rule 12(b)(l) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction,
and the State defendants also move to dismiss the complaint in its entirety pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief. Although
plaintiffs did not timely serve opposition to the motions, the Court has considered the arguments
raised by Frank, who only has standing to assert the sixth cause of action, in his letters to the
Court dated January 7 and February 7, 2013 since he is proceedingpro se. Thomas has not
opposed the motions.
II.
Discussion
A.
Rule 12(b)(1)
1.
Standard of Review
Federal courts are courts of limited jurisdiction, see Gunn v. Minton, 133 S. Ct. 1059,
1064, 185 L. Ed. 2d 72 (2013); Mims v. Arrow Financial Services. LLC, 132 S. Ct. 740,747,
181 L. Ed. 2d 881 (2012), and may not preside over cases absent subject matter jurisdiction. See
Exxon Mobil Com. v. Allapattah Services. Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L. Ed.
2d 502 (2005) (holding that federal courts may not exercise jurisdiction absent a statutory basis);
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.....- Kokkonen v. Guardian Life Ins. Co. of Americ
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