Salten v. United States of America et al
ORDER: SO ORDERED that plaintiffs complaint, as well as his request for a temporary restraining order are dismissed for lack of subject matter jurisdiction. The stay of the sale imposed by the Court's October 14,2014 Signed Order to Show Cause is hereby lifted. The Clerk of the Court shall enter judgment accordingly and close this case. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 11/3/2014. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HOWARD SAL TEN,
-againstUNITED STATES OF AMERICA, ERIC HOLDER,
LORETTA LYNCH, STATE OF NEW YORK, ERIC
SCHNEIDERMAN, CITY OF NEW YORK,
TAVISTOCK GROUP, JOSEPH C. LEWIS, RASESH
THAKKAR, JOSEPH G. GOLIA, ROSECKI,
ROSECKI & ASSOCIATES, CYNTHIA ROSECKI,
TOM ROSECKI, ANDREW MORGANSTERN,
DANIELLE MASTRIANO, NFN SINGH, PRIVATE
CAPITAL GROUP, ROUNDPOINT MORTGAGE
SERVICE CORPORATION, ROUNDPOINT
MORTGAGE CORPORATION, "JOHN DOE #I"
through "JOHN DOE #I 0" inclusive, such names being
fictitious and unknown to plaintiff; the persons or parties
intended being natural persons, corporations, or other
legal entities, involved in or having or claiming an interest
in or lien upon the premise described in the premises
located at 95-14 671h Avenue, Forest Hills, NY 11374,
each individually or in their official capacities, if any.
IN CLERK"S OFFICE
US DISTRICT COURTED NY
i '/ 03 Z014
LONG iZ>Voi'!D OFFICE
On October 14, 2014,pro se plaintiff Howard Salten ("Salten" or "plaintiff') filed the
instant Complaint [Docket Entry No. 1 ("Compl.")], Motion for a Temporary Restraining Order
[Docket Entry No.2], and an Order to Show Cause [Docket Entry No.3], seeking to prevent the
foreclosure sale by defendants of property located at 95-14 67th Avenue, Forest Hills, New York
11374 (the "Property"). On October 14,2014, the Court directed defendants to show cause why
an order should not be issued enjoining defendants during the pendency of this action from the
sale of the Property, and temporarily restraining and enjoining defendants from selling the
Property pending the submission of papers on October 28,2014. Docket Entry No.5 (Signed
Order to Show Cause). For the reasons set forth below, the Court sua sponte dismisses
plaintiff's complaint and lifts the stay of the sale imposed by its October 14, 2014 Signed Order
to Show Cause.
The instant complaint stems from an action commenced by Greenpoint Bank
("Greenpoint") in the Supreme Court for the State of New York, Queens County (the "State
Court") to foreclose a mortgage on the Property. On March 28, 2013 a Judgment of Foreclosure
and Sale was entered by Justice Gavrin in the State Court in that action. 1 See Docket Entry No.
9-1 (Defendants' Memorandum in Opposition to Request for a Stay ("Def. Mem.")), at I;
Morganstern Aff., Ex. C (State Court Judgment of Foreclosure and Sale, dated March 28, 2013).
The history of the foreclosure action in the State Court dates back to 2004, when Greenpoint
commenced an action in the State Court to foreclosure on the mortgage plaintiff had obtained from
Greenpoint in 1998. See Morganstern Aff. '1[4; Compl., at 4. On June 8, 2005, the State Court issued an
order granting summary judgment in favor of Green point and against Salten, and referred the matter to
referee to compute the amount due to Greenpoint. Morganstern Aff., Ex. A (State Court Order of
Summary Judgment and Appointing Referee, dated June 8, 2005). Greenpoint subsequently brought a
motion to confirm the referee's report and to obtain a judgment of foreclosure. Morganstern Aff. 'If 5.
Salten opposed the motion and requested a conference. /d. Justice Golia of the State Court granted the
request and held numerous conferences in an attempt to resolve the matter which proved unsuccessful.
/d. Justice Golia then set the matter down for a "special and unique hearing solely for an offer of proof
and to allow Salten to establish ( l) that he had made timely mortgage payments into his self-styled
'escrow' account as well as, (2) that he had made other related payments, such as real estate taxes, water
bills, insurance, etc." Morganstern Aff., Ex. B (State Court Memorandum, dated December 29, 2011), at
2. As noted by Justice Golia in his subsequent decision, "[d]uring the entire course of[the] special offer
ofproofhearing .... Mr. Salten did not submit a single item of proof to establish what he assert[ed]." /d. at
8. After the proof of hearing came to an end, "the parties were given an opportunity to submit posthearing memoranda ... but Mr. Salten chose not to submit." /d. at I I. Justice Golia thus entered an order
finding that "plaintiff's Judgment of Foreclosure shall stand and that defendant has failed to establish any
claims for an offset." /d. at I 1-12.
A foreclosure sale was scheduled for August 16,2013, but was stayed based upon Salten's claim
that he had applied for a reverse mortgage and intended to satisfy the subject mortgage.
Morganstern Aff. ~~ I 0-12. On April 24, 2014, finding that Salten had "had ample opportunity
to apply for secondary financing to satisfY the mortgage," Justice Gavrin lifted the stay granted
by the order to show cause and allowed the mortgagee to proceed with the foreclosure and sale.
Morganstern Aff., Ex. D (State Court Order, dated April 24, 2014), at I. The April 24,2014
order also eJ1ioined Salten from filing additional motions or commencing additional proceedings
in the State Court without first obtaining leave of the court. Id at 2. A new foreclosure sale was
scheduled to take place on November 7, 2014 but was enjoined by the temporary stay granted by
this Court on October 14,2014. Morganstern Aff. ~ 14; Def. Mem., at 2.
In the instant action, plaintiff claims he "has been denied access to the New York State
trial and appellate courts, subjected to fraud, illegality and denied equal rights under the
Constitution and laws of the State ofNew York and the United States of America." Compl., at
3-4.2 Plaintiff does not identifY which laws of the State of New York and the United States of
America give rise to his claims, and in the section of the civil cover sheet accompanying the
complaint titled "Nature of Suit," plaintiff has inexplicably selected
"Securities/Commodities/Exchange." Docket Entry No. 1-1 (Civil Cover Sheet). In the
complaint, plaintiff alleges that the defendants "individually and in concert have conspired to
deny [him] his rights under the of [sic] the Constitution and laws of the United States and the
State of New York for due process in furtherance of their own frauds and grand thefts for their
own unjust enrichment." Compl., at 4. Plaintiff alleges federal question jurisdiction based upon
Because the Complaint lacks paragraph or page numbers, citations to the Complaint cite to the
page numbers in the ECF printout of the Complaint.
"denial of Civil and Constitutional rights, denial of due process, seizure of personal property
without due process, and laws of the defendant United States of America and defendant State of
New York" and diversity jurisdiction. 3 Compl., at 2.
Plaintiff objects to various procedural aspects of the State Court proceedings, including
that "an action was commenced by sewer service of a summons and complaint by a New York
City process server licensed by defendant City of New York who failed to punish server and
employer" (Compl., at 4), and that defendant Joseph G. Golia of the State Court "ignored"
plaintiffs Motion for a Traverse that addressed this "fraudulent filed affidavit of purported
personal service" and "merely entered summary judgment against plaintiff as was his previous
practice for his and his co-conspirators own unjust enrichment, assigning to his friend as referee
to determine monies owed which took approximately five years for a determination without
requisite input from herein plaintiff." Compl., at 4-5. Plaintiff's complaint also contains
allegations that defendant Danielle Mastriano, "could not produce any papers in the action
including the [sic] standing of defendant Rosecki, Rosecki & Associates PC or the alleged
mortgage holder defendant Private Capital Group or Roundpoint Mortgage Servicing
Corporation" (Compl. at 5), that defendant NMN Singh "twice appeared and told Golia that there
This Court does not have diversity jurisdiction over this action. Plaintiff states that the basis for
diversity jurisdiction is that "the citizenship of plaintiff is in the State of New York ... and the defendants
in various states as heretofore listed above in Washington, DC, Windermere, Florida, Solon, Ohio, and
Charlotte, Nortb Carolina." Campi., at 3. However, at least one, if not more, ofthe defendants, the City
of New York, is a citizen ofNew York State. See Schiavone Const. Co. v. City ofNew York, 99 F.3d 546,
548 (2d Cir. 1996) ("The City of New York is, not surprisingly, a citizen of the State of New York").
Because 28 U.S.C. § 1332 "require[s] complete diversity between all plaintiffs and all defendants," and
because plaintiffSalten and defendant City of New York are both citizens of New York state, there is not
complete diversity and the Court does not have diversity jurisdiction. Taldone v. Barbash, No. 14-civ2147, 2014 WL 1800794, at *5 (E.D.N.Y. May 5, 2014) (citing Lincoln Property Co. v. Roche, 546 U.S.
81, 89, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005)); see also Schiavone Const. Co., 99 F.3d at 547 ("It is well
settled that diversity of citizenship jurisdiction does not exist if any plaintiff is a citizen of the same state
as any defendant.").
were no records although ordered by defendant Joseph G. Golia to produce them" (!d.), and that
Andrew Morganstern "produced boiler plate documents purported to be those of plaintiffs [sic]
mortgage which in fact were not the papers signed by plaintiff." !d. 4
Plaintiffs complaint seeks the following relief: "a stay the [sic] sale three days hence on
October 17'h 2014 ... ofplaintiffs [sic] home located at 95-14 67th Avenue, Forest Hills, NY,
11374" (Compl., at 7); "an Order for a permanent injunction pending the decision upon the trial
of the substantive issues" (!d.); and for the Court to "consolidate the hearing with the trial
heretofore denied plaintiff by defendant Joseph G. Golia and defendant State ofNew York on the
merits, facts and law." !d.
Standard of Review
In reviewing plaintiffs submissions, the Court is mindful that because plaintiff is
proceeding prose, his submissions should be held "to less stringent standards than formal
pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163
(1980). Submissions by pro se plaintiffs are to be construed liberally and "interpret[ed] ... to raise
the strongest arguments that they suggest." Scott v. Rock, 2013 WL 360398 (E.D.N.Y. Jan. 30,
2013) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).
Additionally, plaintiff makes allegations against defendants that are at best irrelevant, including
that "[d]efendant Andrew Morganstern twice arrested for felony mortgage fraud, refused to sign the
ordered affidavit ordered by the administrative judge Jonathan Lippman to curtain the criminal frauds
perpetrated by attorneys and their clients documented in the literature" (Compl., at 6), that "Joseph G.
Golia was accused of complicity in the murder of prose litigant Sonny Sheu who came before him in
2001 and had evidence of unjust enrichment of defendant Joseph G. Golia" (!d.), and that "(a] former
Russian KGB member submitted evidence of bribes in excess of$100,000 to herein defendant Joseph G.
Golia." !d. In any event, evidence has been submitted that questions the truth of some of these
allegations. Andrew Morganstern has sworn that he has "never been arrested for mortgage fraud or any
other crime." Morganstern Aff. '1[16.
However, "[i]t is axiomatic that federal courts are courts of limited jurisdiction and may
not decide cases over which they lack subject matter jurisdiction. Unlike failure of personal
jurisdiction, failure of subject matter jurisdiction is not waivable and may be raised at any time
by a party or by the court sua sponte. If subject matter jurisdiction is lacking, the action must be
dismissed." Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000)
(citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d
50! (1986)); see also Henderson ex rei. Henderson v. Shinseki,- U.S.-, 131 S.Ct. 1197, 1202,
179 L.Ed.2d 159 (2011) ("[F]ederal courts have an independent obligation to ensure that they do
not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional
questions that the parties either overlook or elect not to press ... Objections to subject matter
jurisdiction ... may be raised at any time."). Accordingly, "before deciding any case we are
required to assure ourselves that the case is properly within our subject matter jurisdiction."
Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001) (citations omitted).
The Rooker-Feldman doctrine precludes the Court from exercising jurisdiction in this
matter. See Rooker v. Fid Trust Co., 263 U.S. 413,44 S.Ct. 149, 68 L.Ed. 362 (1923); Dist. of
Columbia Court ofAppeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303,75 L.Ed.2d 206 (1983).
Under the Rooker-Feldman doctrine, a federal district court does not have subject matter
jurisdiction "over suits that are, in substance, appeals from state-court judgments." Hoblock v.
Albany Cnty. Bd ofEiecs., 422 F.3d 77,84 (2d Cir. 2005). "The doctrine applies when a litigant
seeks to reverse or modify a state court judgment or asserts claims that are 'inextricably
intertwined' with state court determinations." Park v. City ofNY., No. 99--civ-2981, 2003 WL
133232, at *7 (S.D.N.Y. Jan. 16, 2003) (citations omitted). The doctrine precludes a district
court from hearing "cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the federal district court proceedings commenced and inviting
district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280,284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005).
The Second Circuit has delineated four requirements for the application of the Rooker-
Feldman doctrine: (I) "the federal-court plaintiff must have lost in state court"; (2) "the plaintiff
must complain of injuries caused by a state-court judgment"; (3) "the plaintiff must invite district
court review and rejection of that judgment"; and (4) "the state-court judgment must have been
rendered before the district court proceedings commenced." Murphy v. Riso, No. 11-civ-0873,
2012 WL 94551, at *6 (E.D.N.Y. Jan. 12, 2012) (citing Hob/ock, 422 F.3d at 83).
All four requirements are met here. With respect to the first and fourth requirements, the
procedural requirements, it is clear that plaintiff lost in state court when the Judgment of
Foreclosure was entered against him (see Morganstern Aff., Exs. C and D), and that the statecourt judgment was rendered before plaintiff filed the instant action on October 14,2014. See
Morganstern Aff., Ex. C (Judgment of Foreclosure and Sale entered by the State Court on March
28, 2013), Ex. D (State Court order lifting stay of foreclosure sale entered on April24, 2014).
With respect to the second and third prongs, the substantive requirements, the Court notes
that although plaintiff's complaint is far from a model of clarity, construing the complaint
liberally and to raise the strongest arguments it suggests, plaintiff has alleged injuries, such as
"seizure of personal property without due process" (Compl., at 3), resulting from the Judgment
of Foreclosure entered by the State Court and/or from the State Court proceeding itself. Compl.,
at 3-7. The second requirement for application of the Rooker-Feldman doctrine is satisfied
because these alleged injuries are all traceable directly to, and inextricably intertwined with the
State Court proceeding and the State Court's decision. See Johnson v. Myers, No. 1O-civ-1964,
2014 WL 2744624, at *8 (E.D.N.Y. June 16, 2014) (holding that Rooker-Feldman doctrine
divested the court of jurisdiction over plaintiffs procedural due process claim which was
traceable directly to the family court orders); Cogswell v. Rodriguez, 304 F.Supp.2d 350, 355-56
(E.D.N.Y. 2004) (holding that plaintiffs due process and equal protection claims against state
court hearing examiner and county deputy sheriffs "were inextricably intertwined with the
Family Court's determinations regarding child support and could have been raised in state court,
either in the Family Court or on appeal" and thus were barred by the Rooker-Feldman doctrine).
The third requirement for application of the Rooker-Feldman doctrine is met because
adjudication of plaintiffs claims would require this Court to review the State Court proceedings
and the basis for the State Court's Judgment of Foreclosure. See Sanchez-Preston v. Luria, No.
civ-96-2440, 1996 WL 738140, at * 1-3 (E.D.N. Y. Dec. 17, 1996)(holding that Court lacked
subject matter jurisdiction over plaintiffs claim that defendant state court judge deprived her of a
fair hearing because the claim arose "out of an allegedly erroneous or unconstitutional
proceeding in New York Family Court" and "[a]djudication of plaintiffs§ 1983 claim would
necessarily require this Court to review the basis of the Family Court's determinations and the
validity of the challenged orders themselves"); Jaeger v. Cellco P'ship, No. 13-1751, 542 F.
App'x 78, 80 (2d Cir. 2013), cert. denied, No. 13-1383,2014 WL 2115546 (U.S. Oct. 6, 2014)
("By challenging the dismissal of her Connecticut state-court appeal as a violation of her due
process and equal protection rights, [plaintiff] seek[s] federal-court review and rejection of the
state-courtjudgment ... Accordingly, this claim is barred by the Rooker-Feldman doctrine."
(internal citations and quotations omitted)); see also Kaminski v. Comm 'r of Oneida Cnty. Dept.
ofSoc. Servs, 804 F. Supp. 2d 100, 105-06 (N.D.N.Y. 2011) (holding that plaintiffs' due process
claim that complained of "false evidence, contradicting statements, and perjured declarations" in
the underlying Family Court proceeding was barred by Rooker-Feldman).
This decision is consistent with the numerous courts in this Circuit that have held that
attacks on a judgment of foreclosure are barred by the Rooker-Feldman doctrine, 5 as well as the
numerous courts in this Circuit that have held that constitutional claims involving review of state
court proceedings are barred by the Rooker-Feldman doctrine. 6 Moreover, as in the case here,
"the fact that [a] plaintiff alleges that the state court judgment was procured by fraud does not
remove his claims from the ambit of Rooker-Feldman." Parra v. Greenpoint Mortgage Co., No.
01-civ-2010, 2002 WL 32442231, at *2 (E.D.N.Y. Mar. 26, 2002) (citations omitted). "Under
Rooker-Feldman, even if the state court judgment was, in fact, wrongfully procured the state
court judgment remains in full force and effect until it is reversed or modified by an appropriate
state court." Jd (citations omitted).
Based upon the foregoing, plaintiffs complaint, as well as his request for a temporary
restraining order are dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).
See, e.g., Wu v. Levine, No. 05-civ-1234, 2005 WL 2340722, at *2 (E.D.N.Y. June 3, 2005),
a.ff'd, 314 F. App'x 376 (2d Cir. 2009) ("Courts in this Circuit have consistently held that any attack on a
judgment of foreclosure is clearly barred by the Rooker-Feldman doctrine") (collecting cases).
See, e.g., Sanchez-Preston, 1996 WL 738140, at *3 ("federal courts are prohibited from
exercising jurisdiction over challenges to state court decisions arising out of judicial proceedings, even if
those challenges alleged that the state court actions [themselves] were unconstitutional" (citations
omitted)); MacPherson v. Town of Southampton, 738 F. Supp. 2d 353, 365 (E.D.N.Y. 20 I 0) ("a finding
by this Court that Defendants' conduct violated Plaintiffs' due process rights would necessarily involve a
review of the state court's determination ... [s]uch a review would be barred by the Rooker-Feldman
doctrine"); Bernstein v. New York, No. 06-civ-568, 2007 WL 438169, at *6 (S.D.N.Y. Feb. 9, 2007)
(holding that the Rooker-Feldman doctrine divested the court of jurisdiction over plaintiff's claim that he
was "denied due process in the course of. .. the judicial proceedings that led to the state court judgment"
because if the court "were to declare that [plaintiff] was denied due process during the state court
proceedings, it would effectively be reversing a judgment of the state court.").
The stay of the sale imposed by the Court's October 14,2014 Signed Order to Show Cause is
hereby lifted. The Clerk of the Court shall enter judgment accordingly and close this case.
s/ Sandra J. Feuerstein
Sandra J. FeuerUein
United States District Judge
Dated: November 3, 2014
Central Islip, New York
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