Guerrera Tooker v. Guerrera et al

Filing 84

MEMORANDUM AND ORDER terminating 49 Motion to Dismiss for Failure to State a Claim; granting 66 Motion to Dismiss for Failure to State a Claim; granting 67 Motion to Dismiss for Failure to State a Claim; granting 67 Motion to Dismiss f or Lack of Jurisdiction; granting 68 Motion to Dismiss; denying 79 Motion for Leave to File; denying 83 Motion for Hearing. For the foregoing reasons, the Town's motion to dismiss (Docket Entry 49) is TERMINATED AS MOOT. The motions t o dismiss filed by Reilly, Guerrera, and DeRosa, (Docket Entries 66, 67, and 68) are GRANTED and Plaintiff's Amended Complaint is DISMISSED. Plaintiff's motion for leave to file a motion to amend or Second Amended Complaint (Docket Entry 79 ) and request for an evidentiary hearing (Docket Entry 83) are DENIED. The Clerk of the Court is directed to mail a copy of this Order to pro se Plaintiff and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 8/11/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MARIE GUERRERA TOOKER,
Plaintiff,
-against-

MEMORANDUM & ORDER
15-CV-2430(JS)(ARL)

SALVATORE GUERRERA, QUEST VENTURES LTD.,
DAVID DEROSA, DIRECTIONAL LENDING LLC,
DAVID REILLY, TOWN OF RIVERHEAD, and
SOCIETY FOR PREVENTION OF CRUELTY TO
ANIMALS,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Marie Guerrera Tooker, pro se
1040 Flanders Road
Flanders, NY 11901
For Defendants:
Salvatore Guerrera
and Quest Ventures

Raymond R. Grasing, Esq.
Law Firm of Grasing and Associates, P.C.
99 Smithtown Blvd., Suite 6
Smithtown, NY 11787

David DeRosa

Christopher H. Thompson, Esq.
Law Offices of Christopher Thompson
33 Davison Lane East
West Islip, NY 11795

David Reilly

Daniel K. Cahn, Esq.
Cahn & Cahn, P.C.
105 Maxess Road, Suite 124
Melville, NY 11747

Town of Riverhead

Daniel P. Barker, Esq.
Christopher B. Abbott, Esq.
Smith, Finkelstein, Lundberg, Isler and
Yakaboski LLP
456 Griffing Avenue
Riverhead, NY 11901

SPCA

David Charles Blaxill, Esq.
Hardin Kundala McKeon & Poletto P.A.
110 William Street
New York, NY 10038

SEYBERT, District Judge:
On

April

29,

2015,

plaintiff

Marie

Guerrera

Tooker

(“Plaintiff”) commenced this action pursuant to the Racketeer
Influenced

and

§§ 1961 et. seq.

Corrupt

Organizations

Act

(“RICO”),

18

U.S.C.

Presently pending before the Court are: (1) the

Town of Riverhead’s (the “Town”) motion to dismiss, (Docket Entry
49), (2) David Reilly’s (“Reilly”) second motion to dismiss,
(Docket Entry 66), (3) Salvatore Guerrera (“Guerrera”) and Quest
Ventures, Ltd.’s (“Quest”) second motion to dismiss, (Docket Entry
67), (4) David DeRosa’s (“DeRosa”) motion to dismiss the Amended
Complaint, (Docket Entry 68), (5) Plaintiff’s motion for leave to
file a motion to amend or Second Amended Complaint, (Docket
Entry 79), and (6) Plaintiff’s request for an evidentiary hearing,
(Docket Entry 83).
is

TERMINATED

AS

For the following reasons, the Town’s motion
MOOT,

Reilly,

Guerrera,

and

DeRosa’s

(collectively, “Defendants”) motions are GRANTED, and Plaintiff’s
motions are DENIED.
BACKGROUND
The Court assumes familiarity with the underlying facts
of this matter, which are set forth in its Memorandum and Order
dated August 15, 2016 (the “August 2016 Order”).

2

See Tooker v.

Guerrera, No. 15-CV-2430, 2016 WL 4367956 (E.D.N.Y. Aug. 15, 2016).
Briefly, Plaintiff commenced this action against Guerrera, DeRosa,
Directional Lending LLC (“Directional”), Reilly, the Town Police
Department, Society for Prevention of Cruelty to Animals (“SPCA”),
and Child Protective Services (“CPS”).
Complaint,

Plaintiff

alleged

that

the

Id.

In her initial

defendants

“performed

criminal acts in the name of working for the interest of the
corporations, Quest Ventures, [and] Directional Lending.”

Id.

at *1. Plaintiff alleged that Guerrera was the President of Quest,
DeRosa was an employee of Directional, and Reilly was appointed
receiver of Quest. Id. The crux of Plaintiff’s Complaint centered
on allegations that Guerrera stole certain rental profits, and he
and his co-defendants unlawfully took possession of Plaintiff’s
property, stole her personal belongings, and tortured her farm
animals.

Id.
The Court addressed motions to dismiss filed by Guerrera

and Quest, DeRosa and Directional, Reilly, SCPA, and CPS in its
August 2016 Order.

The Court dismissed the Complaint against

Directional based on insufficient service of process.

Id. at *5.

With respect to the remaining defendants, the Court held that the
Complaint failed to state a RICO claim under 18 U.S.C. Section
1962(a)

and

(b)

based

on

Plaintiff’s

failure

to

allege

the

existence of a separate entity purchased with funds raised through
racketeering.

Id. at *7.

The Court also found that Plaintiff
3

failed to state a RICO claim under 18 U.S.C. Section 1962(c).
Particularly,

the

Court

held

that:

(1)

Plaintiff

failed

to

establish that the defendants comprised an association-in-fact
enterprise, (2) while Quest constituted an enterprise based on its
corporate status, Plaintiff failed to sufficiently plead that any
defendants aside from Guerrera exercised control over Quest, and
(3) Plaintiff failed to plausibly allege that Guerrera committed
any racketeering activity.

Id. at *8-9.

The Court also dismissed

the Complaint against CPS due to the absence of municipal liability
under RICO.
RICO

Id. at *10.

conspiracy

claim

Finally, the Court dismissed Plaintiff’s
in

substantive RICO violation.

light

of

her

Id. at *11.

failure

to

plead

a

The Court granted

Plaintiff limited leave to replead her RICO and RICO conspiracy
claims against Guerrera, Quest, DeRosa, Reilly, and SPCA, and
denied Plaintiff leave to replead her claims against CPS.

Id. at

*11.
I.

The Amended Complaint1
On November 21, 2016, Plaintiff filed a 116-page Amended

Complaint naming only Guerrera, DeRosa, and Reilly as defendants
in the caption. Throughout the Amended Complaint, Plaintiff refers

The following facts are taken from the Amended Complaint, (Am.
Compl., Docket Entry 54), and presumed to be true for the
purposes of this Memorandum and Order. Due to Plaintiff’s
repetition of paragraph numbers, the Court has included both the
page and paragraph citation for ease of reference.
1

4

to numerous non-parties as “defendants” and asserts a plethora of
allegations against these individuals.

(See generally Am. Compl.)

Plaintiff alleges that beginning in 2001, Defendants
formed an enterprise that she refers to as the “Suffolk Crime
Family,” which engaged in a pattern of racketeering activity that
included

“kickbacks,

bribery,

aiding

and

abetting,

witness

tampering and Fraud” as well as “[e]xtortion, robbery, bribery,
attempted kidnapping, tampering with a witness and obstructing
justice.”
Plaintiff

(Am. Compl. at 2-3 ¶¶ 3-7, 9.)
became

the

target

of

numerous

Beginning in 2002,
code

violations

and

frivolous lawsuits and was “slander[ed]” by members of local
government when she tried to hold an event.
69-70.)

(Am. Compl. at 15 ¶¶

From 2008 to the present, Defendants engaged in unfair

debt collection to collect monies that were not owed.
at 58 ¶ 163.)

(Am. Compl.

In December 2009, Plaintiff was “attacked and

raided” by Suffolk County and the Town in connection with a
Christmas light show and lost income of over $30,000.
at 38 ¶ 178; 39 ¶ 180.)

(Am. Compl.

Defendants also filed false police reports

and Plaintiff was charged with various crimes between 2011 and
2014.

(Am. Compl. at 42-43 ¶¶ 197-202; at 57 ¶ 158.)
Guerrera’s corporation, Quest, became the “main Criminal

enterprise” by claiming to hold title to the Plaintiff’s farm (the
“Farm”).

(Am. Compl. at 7 ¶ 29.)

Additionally, in or about April

2011, DeRosa and Guerrera formed a partnership.
5

(Am. Compl. at 11

¶ 49.)

Plaintiff appears to allege that SPCA is an enterprise

that gained donations through extortion and robbery.
at 11 ¶ 45; at 62 ¶ 173.)

(Am. Compl.

Plaintiff also alleges that IPA Asset

Management IV, a non-party, is an enterprise that DeRosa is
affiliated with and maintains “some” control over.

(Am. Compl. at

21 ¶ 99.)
Plaintiff alleges that one of the “enterprise’s” goals
was to steal the Farm from her.

(Am. Compl. at 8 ¶ 32.)

To that

end, in March 2008, Guerrera commenced a foreclosure action with
respect to the Farm even though he and Quest lacked standing (the
“Foreclosure Action”).

(Am. Compl. at 16 ¶¶ 73-74; at 35 ¶ 164.)

Reilly was appointed receiver of the Farm and violated court order
by appointing DeRosa as manager of the Farm.
¶ 100.)

(Am. Compl. at 21

Reilly was appointed receiver of 90 acres that were not

part of the Foreclosure Action and collected rental revenue of
$72,000 on those 90 acres.

(Am. Compl. at 48 ¶ 122.)

On February

23, 2009, a default judgment was entered in the Foreclosure Action.
(Am. Compl. at 36 ¶ 168.)
Plaintiff asserts that Defendants exerted influence over
public officials, used fraudulent documents, and bribed a judge to
claim title to the Farm.
¶ 80.)

(Am. Compl. at 6 ¶ 21; at 12 ¶ 53; at 17

Guerrera conspired with one of the state court judges who

presided over the Foreclosure Action and Defendants submitted
false representations.

(Am. Compl. at 38, ¶ 175; at 45 ¶ 211.)
6

Defendants also submitted a false appraisal that misrepresented
the value of the agricultural property. (Am. Compl. at 54, ¶ 149.)
Additionally, Town police officers guarding the main gate to the
Farm threatened and detained Plaintiff.

(Am. Compl. at 12 ¶ 54.)

These crimes have not been prosecuted due to “corruption in the
District Attorney’s Office and the [T]own of Riverhead.”

(Am.

Compl. at 43 ¶ 203.)
In April 2010, Plaintiff “stop[ped] the foreclosure sale
by filing a bankruptcy petition.”

(Am. Compl. at 59 ¶ 167.)

On

or about May 27, 2010, Plaintiff’s horses were found down the road.
(Am. Compl.

at 60 ¶ 168.)

From 2010 through 2011, Plaintiff’s

horses were purposely let out of the Farm and, on one occasion,
horses were found on the Long Island Expressway.
60 ¶¶ 168-70; at 63 ¶ 181.)

Plaintiff showed SPCA the cut fence

on the Farm but their agent failed to investigate.
63 ¶ 178.)

(Am. Compl. at

(Am. Compl. at

Plaintiff alleges that in 2015, Guerrera “confessed”

that DeRosa hired someone to cut the fence and put the horses on
the expressway.
unspecified

(Am. Compl. at 63 ¶ 179.)

year,

SPCA

“raided”

the

On April 29th of an

Farm

after

complaint from Reilly.

(Am. Compl. at 69 ¶ 213.)

through

2013,

September

17,

“constant[ly]

taken

down.”

September 17,

2013,

one

of

the
(Am.

fences
Compl.

Plaintiff’s

7

for
at

receiving

From May 2013

the
74

ponies

a

horses

were

¶

246.)

On

was

led

to

a

dangerous road; that pony was later killed.

(Am. Compl. at 75

¶¶ 247, 252.)
In

February

2011,

DeRosa

and

Reilly’s

employees

trespassed on Plaintiff’s property and Allied Security stationed
security guards on the property.

(Am. Compl. at 47 ¶ 218.)

Reilly

communicated with a polo team and told them that Plaintiff did not
own the property and the team should not give her a $20,000
deposit.

(Am. Compl. at 79 ¶ 263.)

In or about August 2011,

DeRosa and Reilly harvested Plaintiff’s hay crop, which had a
wholesale market value of $15,000, even though DeRosa did not have
the legal right to be on the property or take Plaintiff’s assets.
(Am. Compl. at 47 ¶ 218.)
Plaintiff has been deprived of rental revenue collected
by DeRosa and his agents.

Additionally, DeRosa, Reilly, and

Guerrera bribed Plaintiff’s tenants at the Farm to stop paying
rent. (Am. Compl. at 47 ¶ 221; at 56 ¶ 156; at 93 ¶ 404.) DeRosa’s
employees also damaged Plaintiff’s automatic watering system and
the pumping system to her well.

(Am. Compl. at 51 ¶ 135.)

Reilly

oversaw the Farm and permitted “criminals to come on the farm and
terrorize,

steal

the

water

system,

steal

everything

[they]

own[ed.]” (Am. Compl. at 80 ¶ 268.) DeRosa also paid an individual
to remove the Farm’s water system.

(Am. Compl. at 89 ¶ 299.)

Guerrera and DeRosa persuaded Plaintiff’s ex-husband to seek full

8

custody of Plaintiff’s two sons as a means of applying pressure on
Plaintiff.

(Am. Compl. at 82 ¶¶ 275-76.)
Ultimately,

including

her

belongings.

real

Defendants

acquired

property,

farm

2

Plaintiff’s

animals,

(Am. Compl. at 4 ¶ 9; at 6 ¶ 21.)

and

assets,
personal

The Farm was sold

to Quest for $500 in connection with the Foreclosure Action.
Compl.

at

46

¶

212.)

The

Farm

was

raided

and

(Am.

Plaintiff’s

belongings were “taken by an armed robbery, while the animals were
being tortured and [she and her] children [ ] were thrown in the
street homeless[.]”

(Am. Compl. at 17 ¶ 79.)

The Town threatened

Plaintiff that she would be arrested if she set foot on the Farm.
(Am. Compl. at 66 ¶ 193.)
In or about July 2015, Guerrera confessed to bribery and
criminal activity after being threatened by the Suffolk Crime
Family. (Am. Compl. at 17 ¶ 81.) Particularly, Guerrera confessed
that “the 4 1/2 acres and [Plaintiff’s] home at the farm never had
a mortgage,” (Am. Compl. at 46 ¶ 213), and that DeRosa and his
“agents”

were

responsible

for

cutting

the

fence

and

leading

Plaintiff’s horses onto the Long Island Expressway in May 2010.
(Am. Compl. at 68 ¶ 204.)

Plaintiff references property located at the following
addresses: 3605, 3561, 3581 Middle Country Road, Calverton, NY;
112 Dayton Avenue, Manorville, NY; 114 South Street, Manorville,
NY; and 1040 Flanders Road, Flanders, NY. (Am. Compl. at 4
¶ 9.)
2

9

The

Amended

Complaint

also

annexes

an

purportedly executed by Guerrera (the “Affidavit”).
at 114-117.)

Affidavit
(Am. Compl.

The Affidavit alleges that in 2009, DeRosa took

control of the litigation and management of the Farm and Guerrera’s
role was “restricted.” (Am. Compl. at 114.) The Affidavit further
alleges that Guerrera was “pressured and intimidated” to accept
DeRosa as an investor in 2011. (Am. Compl. at 114.) Additionally,
the Affidavit alleges that: (1) DeRosa worked with Reilly and
others to “rob [Plaintiff] and drive her off her own property by
threats of violence and fear of her life and [Guerrera’s] grand
children3 and over 60 animals,” (2) Reilly was appointed receiver
of 90 acres that were not part of the Foreclosure Action, (3) from
February 2011 through September 2011, Reilly and DeRosa took
possession of those 90 acres and stole over $72,000 from Plaintiff,
(4) in August 2011, DeRosa collected money from bales of hay that
belonged to Plaintiff, and (5) in or about April 2011, DeRosa hired
individuals to remove the water system on the Farm.
at 115-116.)

(Am. Compl.

The Affidavit also states that DeRosa submitted

fraudulent court papers to “steal” a parcel of land that was not
covered under the relevant mortgages, and DeRosa and Reilly’s acts
were part of “an ongoing plan to steal the farm from [Plaintiff]
and now Quest Ventures.”

3

(Am. Compl. at 116-117.)

Guerrera is Plaintiff’s father.
10

(Am. Compl. at 7 ¶ 28.)

II.

Pending Motions
On September 6, 2016, prior to the filing of the Amended

Complaint, the Town filed a motion to dismiss.
Docket Entry 49.)

(Town’s Mot.,

Subsequently, Reilly, Guerrera, and DeRosa each

filed motions to dismiss the Amended Complaint.

(Reilly’s Mot.,

Docket Entry 66; Guerrera’s Mot., Docket Entry 67; DeRosa’s Mot.,
Docket Entry 68.)

Reilly and DeRosa seek dismissal of the Amended

Complaint for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6).

(See Reilly’s Mot.; DeRosa’s Mot.)

Guerrera seeks dismissal of the Amended Complaint for lack of
subject-matter jurisdiction pursuant to Rule 12(b)(1), as well as
failure to state a claim pursuant to Rule 12(b)(6).4

With respect

to subject matter jurisdiction, Guerrera argues that Plaintiff’s
claims are barred by the Rooker Feldman doctrine.
Plaintiff

filed

opposition

to

Reilly

and

DeRosa’s

motions, (see Pl.’s Opp. to Reilly and DeRosa, Docket Entry 71),
as well as opposition to Guerrera’s motion, (see Pl.’s Opp. to
Guerrera, Docket Entry 76).

Guerrera’s Notice of Motion also references dismissal pursuant
to Rule 12(b)(2) for lack of personal jurisdiction. (Guerrera’s
Mot.) However, his memorandum of law only references Rule
12(b)(1) and (b)(6) and fails to posit any arguments regarding
personal jurisdiction. (See Guerrera’s Br., Docket Entry 67-2,
at 2.) The Court assumes that Guerrera’s reference to Rule
12(b)(2) is a typographical error.
4

11

DISCUSSION
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
United States, 201 F.3d 110, 113 (2d Cir. 2000).

Makarova v.

The plaintiff

bears the burden of demonstrating by a preponderance of the
evidence

that

resolving

a

jurisdiction,
pleadings.”

subject
motion
the

matter

to

Court

jurisdiction

dismiss
“may

for

lack

consider

exists.
of

Id.

subject

evidence

In

matter

outside

the

See Morrison v. Nat’l Austl. Bank, Ltd., 547 F.3d

167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247, 130 S. Ct. 2869,
177 L. Ed. 2d 535 (2010) (citation omitted).
To withstand a motion to dismiss, a complaint must
contain factual allegations that “‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007)).

This plausibility standard is

not a “probability requirement” and requires “more than a sheer
possibility that a defendant has acted unlawfully.”

Id. (internal

quotation

that

marks

and

citation

omitted).

To

regard,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.

The Court’s plausibility determination is a “context-specific task
12

that

requires

the

reviewing

experience and common sense.”

court

to

draw

on

its

judicial

Harris v. Mills, 572 F.3d 66, 72

(2d Cir. 2009) (internal quotation marks and citation omitted).
A complaint filed by a pro se litigant is to be construed
liberally and “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.
Ed. 2d 1081 (2007) (internal quotation marks and citation omitted).
See also Hiller v. Farmington Police Dep’t, No. 12-CV-1139, 2015
WL 4619624, at *7 (D. Conn. July 31, 2015) (noting that the
dismissal of a pro se complaint pursuant to Rule 12(b)(6) is not
appropriate “unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief”) (internal quotation marks and citation omitted).
Nevertheless, a pro se complaint must state a plausible claim for
relief and comply with the minimal pleading standards set forth in
Federal Rule of Civil Procedure 8.

Id.

Additionally, RICO

predicate acts sounding in fraud “must be pled with particularity
under [Federal Rule of Civil Procedure] 9(b), and a plaintiff must
allege facts giving rise to a strong inference of fraudulent
intent.”

Wood v. Gen. Motors Corp., No. 08-CV-5224, 2015 WL

1396437, at *4 (E.D.N.Y. Mar. 25, 2015).
Generally, the Court’s consideration of a Rule 12(b)(6)
motion to dismiss is “limited to consideration of the Complaint
13

itself.”
135

Dechberry v. N.Y. City Fire Dep’t, 124 F. Supp. 3d 131,

(E.D.N.Y.

2015)

(internal

quotation

marks

and

citation

omitted). “A complaint is deemed to include any written instrument
attached to it as an exhibit, materials incorporated in it by
reference,

and

documents

that,

although

reference, are integral to the complaint.”

not

incorporated

by

Sira v. Morton, 380

F.3d 57, 67 (2d Cir. 2004) (internal quotation marks and citations
omitted.)
In her opposition papers, Plaintiff fails to directly
respond

to

Defendants’

respective

motions

and

instead

posits

additional facts and exhibits. (See generally Pl.’s Opp. to Reilly
and DeRosa; Pl.’s Opp. to Guerrera.)

Accordingly, the Court will

not consider Plaintiff’s opposition to Defendants’ Rule 12(b)(6)
motions to the extent Plaintiff references new facts and documents
not included in the Amended Complaint.

The Court similarly

declines to consider documents proffered by Defendants that fall
outside the Amended Complaint in its Rule 12(b)(6) analysis.

(See

generally Reilly’s Mot.; Guerrera’s Mot.)
I.

Additional Parties
As

previously

noted,

the

August

2016

Order

granted

Plaintiff limited leave to amend her Complaint to replead her RICO
and

RICO

conspiracy

Reilly, and SPCA.

claims

against

Guerrera,

Quest,

Tooker, 2016 WL 4367956, at *11.

DeRosa,

However, the

Amended Complaint only names Guerrera, DeRosa, and Reilly as
14

defendants, and Plaintiff’s affidavit of service indicates that
those were the only defendants served with the Amended Complaint.
(Am. Compl. at 118.)
Notwithstanding
Complaint

contains

the

numerous

Court’s

directive,

allegations

with

the

respect

Amended
to

non-

parties Plaintiff refers to as “defendants,” as well as allegations
regarding the SPCA.
¶¶ 101-25.)

(See, e.g., Am. Compl. at 3 ¶ 7; at 22-29

Plaintiff

has

also

requested,

without

further

elaboration, that the Court amend the Complaint to “substitute
John and Jane Doe 1 through 35 with the defendants herein and upon
discovery will find the unknown John and Jane Doe defendants
names.”

(Am. Compl. at 104 ¶ 447.)
The Court declines to deem the plethora of non-parties

referenced in Plaintiff’s Amended Complaint to be defendants in
this action.

As previously noted, Plaintiff was given limited

leave to amend her Complaint against specific defendants. Further,
the Court construes the Amended Complaint as being asserted against
Guerrera, DeRosa, and Reilly only in light of the caption of the
Amended Complaint and Plaintiff’s failure to serve the Amended
Complaint on Quest, SPCA, and/or the Town.

(See also Pl.’s Opp.

to Guerrera at 17 (“Quest is the criminal enterprise and is no
longer a defendant if you can read my amended complaint front
page”).)

15

Even if the Court were to construe the Amended Complaint
as asserting claims against the Town, Plaintiff’s claims fail based
on the absence of municipal liability under RICO.
City of N.Y., 359 F. App’x 201, 204 (2d Cir. 2009).
the Town’s motion to dismiss is TERMINATED AS MOOT.

See Rogers v.
Accordingly,
Additionally,

Plaintiff’s claims against Quest and the SPCA fail for the same
reasons set forth in the August 2016 Order.

See Tooker, 2016 WL

4367956, at *8.
II.

Rooker Feldman
Guerrera argues that Plaintiff’s claims are barred under

the Rooker Feldman doctrine.

(Guerrera’s Br. at 7-9.)

The Court

disagrees.
Pursuant to the Rooker Feldman doctrine, this Court
“lack[s]

jurisdiction

over

cases

appeals of state court judgments.”

that

essentially

amount

to

Vossbrinck v. Accredited Home

Lenders, Inc., 773 F.3d 423 (2d Cir. 2014).

This doctrine applies

where four requirements are met: “(1) the federal-court plaintiff
lost in state court; (2) the plaintiff complain[s] of injuries
caused by a state court judgment; (3) the plaintiff invite[s] . .
. review and rejection of that judgment; and (4) the state judgment
was rendered before the district court proceedings commenced.”
Id. (internal quotation marks and citation omitted; alterations in
original).

16

While
Feldman,

Guerrera

res

judicata,

discusses
and

the

collateral

doctrines
estoppel

of

Rooker
somewhat

interchangeably, the Court construes Guerrera’s motion as arguing
that this action is barred by Rooker Feldman because Plaintiff is
essentially trying to appeal the state court judgments entered in
the Foreclosure Action as well as what Guerrera refers to as the
“Partition Action,” the matter of Salvatore Guerrera v. Marie
Tooker, et. al., Suffolk County Index Number 10-24429. (Guerrera’s
Aff., Docket Entry 67-1, ¶¶ 13-22.)

The Partition Action involved

Guerrera’s claims against Plaintiff for: (1) partition of real
property located at 144 South Street, Manorville, NY, and 871
Little East Neck Road, West Babylon, NY, and (2) breach of contract
regarding an oral agreement in which Guerrera loaned Plaintiff
money to satisfy her personal bankruptcy debts and prevent the
sale of her home at 1040 Flanders Road, Flanders, NY.

(Partition

Action Order, Guerrera’s Ex. D, Docket Entry 67-9, at 3-10.)

The

state court found in favor of Guerrera after a bench trial5 and
dismissed Plaintiff’s counterclaims.6

(See generally Partition

Action Order.)

However, the state court held that Guerrera’s claim for unjust
enrichment was not viable in light of its determination that
Plaintiff and Guerrera entered into an express and implied
agreement. (Partition Order at 9.)
5

Plaintiff’s counterclaims are difficult to characterize.
However, they appear to relate to Guerrera’s alleged failure to
remit Plaintiff’s share of rental proceeds as well as his
6

17

The Court finds that Plaintiff has not invited review or
rejection of the respective judgments in the Foreclosure Action
and Partition Action.

In the case at bar, Plaintiff is seeking

monetary damages for her RICO claims, (see Am. Compl. at 112-13),
which, in turn, does not require that the Court review and reject
the judgments in these actions.

Thus, Plaintiff’s RICO claims are

not barred by Rooker Feldman.

See Vossbrinck, 773 F.3d at 427

(liberally construing the pro se complaint to assert fraud claims
not barred by Rooker Feldman “because they seek damages from
[d]efendants for injuries [the plaintiff] suffered from their
alleged fraud, the adjudication of which does not require the
federal court to sit in review of the state court judgment”);
Toohey v. Portfolio Recovery Assocs., LLC, No. 15-CV-8098, 2016 WL
4473016,

at

*4

(S.D.N.Y.

Aug.

22,

2016)

(holding

that

the

plaintiff’s Fair Debt Collection Act, RICO, and state law claims
were not barred by Rooker Feldman because they “merely seek[ ]
damages

based

on

[d]efendants’

alleged

independent

wrongful

conduct”).
III. RICO Claims
The Court construes the Amended Complaint as asserting
RICO claims under 18 U.S.C. Sections 1962(a), (b), and (c), and a

failure to follow through with a project to construct affordable
housing for homeless veterans. (Pl.’s Partition Action
Counterclaims, Guerrera’s Mot. at Ex. D, Docket Entry 67-9, at
34-47.)
18

RICO conspiracy claim under 18 U.S.C. Section 1962(d).
will

address

the

Guerrera

Affidavit

before

turning

The Court
to

each

statutory provision in turn.
A.

Guerrera Affidavit
As

contains

addressed

an

Affidavit

“Guerrera Affidavit”).

above,

Plaintiff’s

purportedly

executed

Amended
by

(Am. Compl. at 114-17.)

Complaint

Guerrera

(the

Reilly argues

that the Court should disregard the Guerrera Affidavit and strike
it from the Amended Complaint since such affidavit “appears to be
offered for the truth of the matters asserted therein, and not to
simply state a RICO claim.”
9.)

(Reilly’s Br., Docket Entry 66-9, at

Puzzlingly, Guerrera fails to address or even acknowledge the

existence of this Affidavit.

(See generally Guerrera’s Br.;

Guerrera’s Reply Br., Docket Entry 77.)
motion

to

dismiss

stage,

the

Court

In any event, at the
does

not

“assess

admissibility or weight that should be afforded to evidence.”

the
In

re Palermo, No. 08-CV-7421, 2011 WL 446209, at *5 (S.D.N.Y. Feb. 7,
2011) (internal quotation marks and citation omitted).

Cf. DLJ

Mortg. Cap., Inc. v. Kontogiannis, 726, F. Supp. 2d 225, 235
(E.D.N.Y. 2010) (“whether the statements from other proceedings
[excerpted in the complaint] . . . might constitute inadmissible
hearsay when relied upon for the truth of the matters asserted is
simply irrelevant”).

Thus, the Court will consider the Guerrera

Affidavit as part of the Amended Complaint.
19

B.

Section 1962(a) and (b)
Section

1962(a)

prohibits

the

investment

of

income

obtained from a pattern of racketeering activity in an enterprise.
Wood, 2015 WL 1396437, at *8.

“Section 1962(b) prohibits the

acquisition or maintenance of an interest in an enterprise through
a pattern of racketeering activity.”

Id. at *9.

However, the

“enterprise” referenced in Sections 1962(a) and (b) “must be
something acquired or invested in through illegal activities or by
the use of money obtained from illegal activities.”

USA Certified

Merchs., LLC v. Koebel, 262 F. Supp. 2d 319, 330 (S.D.N.Y. 2003).
Unlike Section 1962(c), the Section 1962(a) and (b) “enterprise”
is “not intended to be the vehicle through which a pattern of
racketeering is undertaken, but a separate, legitimate entity
purchased through moneys raised through racketeering.”

Id. at

330-31.
The Amended Complaint fails to remedy the defects in
Plaintiff’s claims under Section 1962(a) and (b).

Plaintiff again

relies on vague, conclusory allegations that do not plausibly plead
the existence of a separate entity purchased with funds raised
through racketeering.

(See, e.g., Am. Compl. at 48 ¶ 124 (“DeRosa

knowingly invests any proceeds derived from unlawful conduct, or
any proceeds derived from the investment or use of those proceeds,
in an enterprise”).)

Accordingly, Plaintiff’s Section 1962(a) and

(b) claims are DISMISSED.
20

C.

Section 1962(c)
To

establish

a

RICO

violation,

the

plaintiff

“must

plausibly allege that a defendant, through the commission of two
or more acts constituting a pattern of racketeering activity,
directly

or

indirectly

participated

in

an

enterprise,

the

activities of which affected interstate or foreign commerce.”
Lynch

v.

Amoruso,

232

F.

Supp.

3d

460,

465

(S.D.N.Y.

(internal quotation marks and citation omitted).

2017)

See also 18

U.S.C. § 1962(c) (“[i]t shall be unlawful for any person employed
by or associated with any enterprise engaged in, or the activities
of which affect, interstate or foreign commerce, to conduct or
participate,

directly

or

indirectly,

in

the

conduct

of

such

enterprise’s affairs through a pattern of racketeering activity or
collection of unlawful debt”).
1. Enterprise
There can be no RICO violation in the absence of an
enterprise.

BWP Media USA Inc. v. Hollywood Fan Sites, LLC, 69 F.

Supp. 3d 342, 359 (S.D.N.Y. 2014).
an

“enterprise”

are

not

defined

While the outer boundaries of
by

statute,

“partnerships,

corporations, and other legal entit[ies], as well as associationsin-fact, may be RICO enterprises.”
843

F.

Supp.

2d

358,

367-68

Allstate Ins. Co. v. Lyons,

(E.D.N.Y.

2012)

original; internal quotation marks omitted).

(alteration

in

The Court liberally

construes the Amended Complaint as alleging that the operative
21

enterprises are as follows: (1) an association-in-fact enterprise
comprised of Guerrera, DeRosa, and Reilly,7 (2) Quest, (3) SPCA,
and (4) IPA Asset Management IV (“IPA”).

(Am. Compl. at 3 ¶¶ 6-

7; 5 ¶ 19; at 7 ¶ 29; at 11 ¶ 45; at 62 ¶ 173.)
a. Association in Fact
An association-in-fact must have “‘both interpersonal
relationships and a common interest’ to show that an alleged group
‘functions as a continuing unit.’” Abbott Labs. v. Adelphia Supply
USA, No. 15-CV-5826, 2017 WL 57802, at *3 (E.D.N.Y. Jan. 4, 2017)
(quoting Boyle v. U.S., 556 U.S. 938, 946, 129 S. Ct. 2237, 173 L.
Ed. 2d 1265 (2009)).

In analyzing whether the complaint alleges

an association-in-fact enterprise, courts look to “‘hierarchy,
organization,

and

activities

of

the

alleged

association

determine whether its members functioned as a unit.’”

to

BWP Media,

69 F. Supp. 3d at 360 (quoting Cont’l Petroleum Corp. Inc. v. Corp.
Funding Partners, LLC, No. 11-CV-7801, 2012 WL 1231775, at *5
(S.D.N.Y. Apr. 12, 2012)).

Merely including a “‘conclusory naming

of a string of entities’” does not suffice.

BWP Media, 69 F. Supp.

3d at 360 (quoting Cont’l Petroleum, 2012 WL 1231775, at *5).

As previously noted, the Court declines to deem the non-parties
referenced in the Amended Complaint to be defendants in this
action. Accordingly, the Court will not consider whether the
Amended Complaint plausibly pleads that these non-parties
comprise an extensive association-in-fact as alleged by
Plaintiff. (See generally Am. Compl. at 22-29 ¶¶ 101-25.)
7

22

Particularly,

an

association-in-fact

enterprise

must

include, at the very least, the following structural features:
“(1) a purpose, (2) relationships among those associated with the
enterprise,

and

(3)

longevity

sufficient

to

associates to pursue the enterprise’s purpose.”

permit

these

BWP Media, 69 F.

Supp. 3d at 359-60 (internal quotation marks and citation omitted).
To satisfy the first structural feature, “the individuals that
[compose] the enterprise must share a common purpose to engage in
a particular fraudulent course of conduct and work together to
achieve such purposes.”

Abbott Labs., 2017 WL 57802, at *3

(internal quotation marks and citation omitted) (alteration in
original). To satisfy the second structural feature, the plaintiff
must show “the relationships between the various members and their
roles in the purported RICO scheme.” Id. (internal quotation marks
and citation omitted).
The Court liberally construes the Amended Complaint to
assert

that

the

common

purpose

of

the

association-in-fact

enterprise was to steal the Farm from Plaintiff.
8 ¶ 32.)

(Am. Compl. at

However, Plaintiff has failed to plausibly allege

relationships among the Defendants and instead relies on a series
of conclusory allegations.
(“each

of

the

Defendants

(See, e.g., Am. Compl. at 30 ¶ 128
acted

as

the

principal,

agent,

or

representative of each of the other Defendants, and in doing the
acts herein alleged, each Defendant was acting within the course
23

and scope of the agency relationship with each of the other
Defendants, and with the permission and ratification of each of
the other Defendants”);

at 3 ¶ 8 (“All the members share a common

purpose all have a continuity of structure and personnel distinct
from

the

pattern

of

association-in-fact
individuals

that

racketeering”);

enterprise,

‘function

as

is
a

at
an

57

¶

159

informal

continuing

unit’

(“[t]he

entity

of

engaged

in

receiving revenue obtained by committing real estate fraud”); at
72 ¶ 235 (“Defendant David DeRosa and Sal Guerrera engaged in a
pattern of racketeering with the SPCA up until on or about March
2013.”); at 30-32 ¶¶ 131, 136, 140.)

Thus, Plaintiff’s “failure

to plead with any specificity as to the nature of the defendants’
common interests and the mechanics of the alleged ongoing working
relationship among defendants is fatal” and she has failed to
allege an association-in-fact enterprise.

Cont’l Petroleum, 2012

WL 1231775, at *6.
Parenthetically,
notion

that

Guerrera

was

the

Guerrera

involved

enterprise with his co-defendants.
states

that

DeRosa

maintained

in

Affidavit
an

belies

the

association-in-fact

Indeed, the Guerrera Affidavit
“complete

control”

over

the

Foreclosure Action, Guerrera had no role in the appointment of
Reilly as receiver for the Farm, and Guerrera was “unable to
control any future misconduct that occurred by Mr. DeRosa and
carried out through his agents.”
24

(Am. Compl. at 114.)

b. Legal Entities
As previously noted, the Amended Complaint asserts that
Quest, SPCA, and IPA constitute RICO enterprises.

As “any legal

entity may qualify as a RICO enterprise,” Plaintiff has adequately
plead that these entities are “enterprise[s] within the meaning of
RICO.”

D. Penguin Bros. Ltd. v. City Nat’l Bank, 587 F. App’x

663, 666-67 (2d Cir. 2014) (internal quotation marks and citation
omitted).
However, Plaintiff must also allege that Defendants
“participat[ed], directly or indirectly,” in the conduct of the
affairs of the enterprises.
participate

directly

or

18 U.S.C. § 1962(c).

indirectly,

in

the

“[I]n order to

conduct

of

[the]

enterprise’s affairs, one must have some part in directing those
affairs,

that

is,

one

must

participate

in

the

operation

or

management of the enterprise itself.” Abbott Labs., 2017 WL 57802,
at *6 (internal quotation marks and citation omitted).

However,

“it is not enough to allege that a defendant provided services
that were helpful to an enterprise, without alleging facts that,
if proved, would demonstrate some degree of control over the
enterprise”

Elsevier Inc. v. W.H.P.R., Inc., 692 F. Supp. 2d 297,

307-08 (S.D.N.Y. 2010).
The Court finds that Plaintiff has failed to plausibly
allege that Defendants participated in the conduct of SPCA and
IPA.

Plaintiff alleges that “SPCA agents conspired with all
25

defendants in this complaint consummating the [RICO] enterprise
and more than two predicate acts in violation of a R[ICO] claim,”
(Am. Compl. at 72 ¶ 235), but fails to allege that Defendants
participated in SPCA’s affairs.

With respect to IPA, Plaintiff

alleges that in 2011 IPA formed a “partnership” and “relationships
with the other enterprises [Q]uest [V]entures in the Suffolk crime
family,” (Am. Compl. at 7 ¶ 30).
is

“one

of

David

DeRosa[’s]

Plaintiff also asserts that IPA

shell

companies”

“affiliated with having some control of” IPA.
¶ 99; at 24 ¶ 106.)

and

DeRosa

is

(Am. Compl. at 21

These vague allegations do not suffice to

plead participation in the operation or control of IPA.

See

D. Penguin Bros., 587 F. App’x at 667 (“a complaint does not state
a RICO claim merely by alleging racketeering and denominating a
legal entity a ‘RICO enterprise’”).
As to Quest, Plaintiff has failed to allege that Reilly
or DeRosa directed Quest’s affairs.

Plaintiff alleges that Reilly

was appointed receiver of the Farm, and indicates that he is
somehow affiliated with or receiver of Island Property Associates.
(Am. Compl. at 21 ¶ 100 (“David Reilly was appointed receiver from
Judge Baisley and the arm of the court at the 134-acre farm in
Calverton”); at 48 ¶ 122; at 84 ¶¶ 285-86 (“David R[e]illy of
Island Property Associates [ ] is overseeing the property during
the foreclosure process . . . they claim [Reilly] is the receiver
for Island Property Associates . . . .”).)
26

Reilly’s role as

receiver in the Foreclosure Action and/or his alleged connection
to Island Property Associates does not establish that he had some
part in directing the affairs of Quest.8
Plaintiff alleges that a partnership between DeRosa and
Guerrera was established in or about April 2011, (Am. Compl. at 11
¶ 49), and DeRosa “in the name of Quest committed the crime of
larceny by false pretense when he acted with criminal intent to
deprive [P]laintiff of her occupancy and ownership of her real and
personal properties” and “seize[d] possession under Quest[’s]
name” as a result of certain misrepresentations, (Am. Compl. at 51
¶ 136).

However, Plaintiff does not allege that DeRosa directed

Quest’s affairs or exercised some degree of control over Quest.9
Indeed, Plaintiff’s list of the entities DeRosa is affiliated with
does not include Quest.

(Am. Compl. at 21 ¶ 99 (“[s]ome of the

The Court acknowledges that Plaintiff’s initial Complaint
alleged that Reilly was the receiver of Quest. Tooker, 2016 WL
4367956, at *8. The Amended Complaint does not contain that
allegation. In any event, this Court previously held, in
relevant part, that notwithstanding Reilly’s alleged role as
receiver for Quest, the Complaint failed to allege that he had
any role in directing Quest’s affairs. Id. While the Amended
Complaint contains additional allegations regarding Reilly’s
actions as receiver, the Court continues to conclude that
Plaintiff has not plausibly pled that Reilly had any role in
directing Quest’s affairs.
8

While the Guerrera Affidavit states that Guerrera was
“pressured and intimidated . . . to agree to accept [DeRosa] as
an investor on April 13, 2011,” (Am. Compl. at 114), this
Affidavit does not indicate what entity DeRosa allegedly
invested in.
9

27

enterprises that DeRosa is affiliated with having some control of
[are]

Directional

Lending,

Island

[P]roperties,

Peter

DeRosa

[I]ncorporated, [and IPA]”).)
However, as the Court noted in its August 2016 Order,
Plaitniff has alleged that Guerrera was President of Quest, (Am.
Compl. at 20 ¶ 98), which suffices to plausibly plead that Guerrera
exercised control over Quest and was involved in its operation or
management.
2. Pattern of Racketeering Activity
A pattern of racketeering for RICO purposes requires
that at least two racketeering acts be committed within ten years
of each other. Price v. Benjamin, No. 13-CV-4426, 2014 WL 3653440,
at *5 (E.D.N.Y. Jul. 22, 2014). “The acts of racketeering activity
that constitute the pattern must be among the various criminal
offenses listed in § 1961(1), and they must be related, and
[either]

amount

activity.”

to

or

pose

a

threat

of

continuing

criminal

Id. (alteration in original; internal quotation marks,

citations, and emphasis omitted).

Section 1961 provides, in

relevant part, that racketeering activity includes: “any act or
threat involving murder, kidnapping, gambling, arson, robbery,
bribery, extortion. . . which is chargeable under State law and
punishable by imprisonment for more than a year,” as well as any
act indictable under 18 U.S.C. §§ 201 (bribery), 1341 (mail fraud),
or 1343 (wire fraud).

18 U.S.C. § 1961(1)(A), (B).
28

The Court liberally construes the Amended Complaint as
alleging that Guerrera engaged in the following predicate acts:
extortion, mail fraud, robbery, and bribery.10

The Court will

address each predicate act in turn.
a. Extortion
The Court finds that Plaintiff has failed to plead a
predicate act based on extortion, as her sole allegation regarding
this claim is vague and conclusory.

(Am. Compl. at 6 ¶ 21

(“Defendants and their co-conspirators have illegally obtained the
farm by using defendant police officers to detain me the plaintiff
from entering my home and the protection of over 60 animals through
extortion,

bribery,

tampering

with

a

witness

and

obstructing

justice”).)
b. Mail Fraud
As addressed above, where fraud is the predicate act,
RICO claims must be pled with particularity pursuant to Fed. R.
Civ. P. 9(b).

Wood, 2015 WL 1396437, at *4.

To successfully

allege that mail or wire fraud constitutes a predicate act under
RICO, the Plaintiff must assert: “(1) the existence of a scheme to
defraud, (2) the defendant’s knowing or intentional participation
in the scheme, and (3) the use of interstate mails or transmission

To the extent Plaintiff references harassment and removal of
farm animals, those acts are not among the criminal offenses
listed in Section 1961(1). See generally 18 U.S.C. § 1961(1).
10

29

facilities in furtherance of the scheme.” Est. of Izzo v. Vanguard
Funding, LLC, No. 15-CV-7084, 2017 WL 1194464, at *8 (E.D.N.Y.
Mar. 30, 2017).

Additionally, “[a]llegations failing to specify

the time, place, speaker, and sometimes even the content of the
alleged misrepresentations, lack the particulars required by Rule
9(b).”

Wood, 2015 WL 1396437, at *4 (internal quotation marks and

citation omitted).

See also Babb v. Capitalsource, Inc., 588 F.

App’x 66, 68 (2d Cir. 2015) (to state a RICO claim based on mail
or wire fraud, the plaintiff must “specify the statements it claims
were false or misleading, give particulars as to the respect in
which plaintiffs contend the statements were fraudulent, state
when and where the statements were made, and identify those
responsible for the statements”) (internal quotation marks and
citation omitted).
Nevertheless, in cases where the plaintiff alleges that
the mailings were “simply used in furtherance of a master plan to
defraud, the mailings need not contain fraudulent information, and
a detailed description of the underlying scheme and the connection
therewith of the mail and/or wire communications is sufficient to
satisfy Rule 9(b).”

Curtis & Assocs. v. Law Offs. of David M.

Bushman, Esq., 758 F. Supp. 2d 153, 177 (E.D.N.Y. 2010), aff’d,
443 F. App’x 582 (2d. Cir. 2011) (internal quotation marks and
citation omitted).

However, in those cases, Rule 9(b) requires

“adequate particularity in the body of the complaint [as to] the
30

specific

circumstances

scheme.”

constituting

the

overall

fraudulent

Id. (internal quotation marks and citation omitted;

alteration in original).
Here, Plaintiff alleges that Guerrera committed mail
fraud by making misrepresentations in papers assumedly submitted
in the Foreclosure Action, including that “the 4 1/2 acres was
encumbered by a mortgage when it was in fact [ ] unencumbered by
any mortgage.”
that

(Am. Compl. at 45 ¶ 211.)

Guerrera’s

filing

of

the

Plaintiff also alleges

Foreclosure

Action

itself

was

fraudulent, (Am. Compl. at 35 ¶ 164), and Guerrera also “use[d]
fraudulent documents to claim legal entitlement to the whole 134acre farm . . . .”

(Am. Compl. at 12 ¶ 53).

However, the Court

finds that Plaintiff fails to plead a predicate act based on mail
fraud.
First, Plaintiff’s allegations do not satisfy the level
of specificity required by Rule 9(b).

Plaintiff has not included

information regarding the time these alleged misrepresentations
were made, their specific content, or the particulars as to how
these statements were false or misleading.
failed

to

posit

specific

allegations

Plaintiff has also

regarding

an

overall

fraudulent scheme.11

To the extent Plaintiff’s allegations that Guerrera falsely
accused her of crimes and made false statements to the Town
police department, (Am. Compl. at 9 ¶¶ 37-38; at 16 ¶ 78; at 40
¶ 184; at 55 ¶ 152; at 57 ¶ 158), could be construed as
11

31

Second,

“‘litigation

activities’

pleaded

in

the

Complaint cannot constitute predicate acts for the purposes of
RICO.”

Curtis & Assocs., 758 F. Supp. 2d at 174.

See also Est.

of Izzo, 2017 WL 1194464, at *11 (“the service and filing of
litigation

documents

plausibly

support

a

in

the

[f]oreclosure

cognizable

claim”

[a]ction

(collecting

cannot
cases)).

Plaintiff’s allegations regarding mail fraud center on Guerrera’s
commencement of the fraudulent Foreclosure Action and his alleged
misrepresentations to the state court during the course of that
proceeding.

These “allegations based on defendants’ allegedly

‘frivolous’ and ‘phony’ litigation activities cannot, alone give
rise to viable predicate acts of mail [ ] fraud.” Curtis & Assocs.,
758 F. Supp. 2d at 176.
c. Robbery
New York Penal Law Section 160.00 provides that:
A person forcibly steals property and commits
robbery when, in the course of committing
larceny, he uses or threatens the immediate
use of physical force upon another person for
the purpose of:
1.
Preventing or overcoming resistance to
the taking of the property or to the retention
thereof immediately after the taking; or
2.
Compelling the owner of such property or
another person to deliver up the property or
to engage in other conduct which aids in the
commission of the larceny.
supporting a predicate act of mail or wire fraud, any such claim
similarly fails based on the lack of requisite specificity.
32

N.Y. PENAL LAW § 160.00.

While robbery is considered a predicate

act to the extent it is chargeable under state law and punishable
by imprisonment for more than one year, see 18 U.S.C. § 1961(1)(A),
larceny does not constitute a racketeering activity for RICO
purposes, Price, 2014 WL 3653440, at *5 (collecting cases).
The Court finds that the Amended Complaint fails to
remedy the defects in Plaintiff’s attempt to plead the predicate
act of robbery.

Plaintiff’s allegations regarding robbery are

vague, conclusory, and fail to comply with the more lenient
pleading standard under Federal Rule of Civil Procedure 8.

(See

Am. Compl. at 44 ¶ 204 (“[a]ll defendants here are alleged to be
guilty of article 155 larceny to 155.42 grand larceny . . . [and]
willingly and knowingly used armed forces to [r]ob all our personal
belongings”); Am. Compl. at 54 ¶ 150 (“[o]n or about April 27 2011
until present Defendants [Guerrera] and DeRosa under NYPL § 165.54
allegedly are guilty of criminal possession of stolen property in
the first degree (class B felony) as demonstrated to be a material
fact by the land records of title”); Am. Compl. at 88 ¶¶ 296, 299.)
Parenthetically, to the extent the Guerrera Affidavit vaguely
references alleged theft committed by DeRosa and/or Reilly, it
does not allege that Guerrera engaged in anything approaching
robbery.

(See generally Am. Compl. at 115-16.)

33

d. Bribery
Plaintiff also fails to plausibly plead bribery as a
predicate act.

“In order for bribery to constitute a predicate

act under 18 U.S.C. § 1961(1), the acts alleged must violate either
18 U.S.C. § 201 or constitute conduct ‘chargeable under State law
and punishable by imprisonment for more than one year.’”
2017 WL 543232, at *4 (quoting 18 U.S.C. § 1961(1)).

Lynch,

18 U.S.C.

Section 201 provides, in relevant part, that an individual will be
fined or imprisoned where they:
[D]irectly or indirectly, corruptly gives,
offers or promises anything of value to any
public official . . . with intent—
(A)

to influence any official act; or

(B) to influence such public official . . . to
commit or aid in committing, or collude in, or
allow, any fraud, or make opportunity for the
commission of any fraud, on the United States;
or
(C) to induce such public official . . . to do
or omit to do any act in violation of the
lawful duty of such official or person[.]
18 U.S.C. § 201(b).
Additionally, the Amended Complaint references three New
York Penal Law (“NYPL”) provisions: Section 200.11, 200.20, and
215.00.

(Am. Compl. at 55 ¶¶ 153-54; at 56 ¶ 155.)

NYPL Section

200.00 provides that a person is guilty of bribery in the third
degree “when he confers, or offers or agrees to confer, any benefit
upon a public servant upon an agreement or understanding that such
34

public servant’s vote, opinion, judgment, action, decision or
exercise

of

discretion

influenced.”

as

a

public

N.Y. PENAL LAW § 200.00.

servant

will

thereby

be

NYPL Section 200.20 provides

that a person is guilty of rewarding official misconduct in the
second degree “when he knowingly confers, or offers or agrees to
confer, any benefit upon a public servant for having violated his
duty as a public servant.”

N.Y. PENAL LAW § 200.20.

NYPL Section

215 provides that a person is guilty of bribing a witness “when he
confers, or offers or agrees to confer, any benefit upon a witness
or a person about to be called as a witness in any action or
proceeding

upon

an

agreement

or

understanding

that

(a)

the

testimony of such witness will thereby be influenced, or (b) such
witness will absent himself from, or otherwise avoid or seek to
avoid appearing or testifying at, such action or proceeding.” N.Y.
PENAL LAW § 215.00.
First, to the extent Plaintiff alleges that Guerrera
bribed her tenants at the Farm, the previously noted federal and
state statutes are inapplicable as they address bribery of public
officials.

(See Am. Compl. at 56 ¶¶ 155-56; at 93 ¶ 404.)

Additionally, while Plaintiff references NYPL Section 215.00,
Plaintiff does not allege that her tenants were scheduled to
testify as witnesses in any proceedings.
Second, Plaintiff’s allegations regarding Defendants’
bribery of “key public officials” consists of vague statements
35

and/or apparent quotations from the law.

(See Am. Compl. at 13

¶ 59

corrupted

(“Defendants

covertly

bribed

and

key

public

officials to control the illegal acts and have power over the farm
and

plaintiff

with

substantial

assistance

from

the

Riverhead

Police Department”); at 18 ¶ 84 (“Defendants induce[d] key public
officials to violate their fiduciary duty to the town . . . they
also induced those same key officials to violate the laws to the
detriment of the farm and the public and for the benefit of
Defendants

and

the

racketeering

enterprise”);

at

55

¶

154

(“Defendants rewarded the police officers with gifts, coffee, food
at the horse farm while they were detaining me and threatening my
freedom and to take my children”).)

To the extent Plaintiff names

particular public officials who were allegedly bribed--namely,
state court Judges Baisley and Spinner--her allegations do not
plausibly plead a bribery claim pursuant to any of the previously
noted federal or state statutes.

(See Am. Compl. at 12 ¶ 53

(“[Guerrera] and David DeRosa use[d] fraudulent documents to claim
legal entitlement to the whole 134-acre farm by Judge Baisley who
has been accused of taking a bribe by defendant [Guerrera]”); at
17 ¶ 80 (“Baisley took a bribe for the benefit of the enterprise
. . . .”); at 38 ¶ 175 (“[Guerrera] work[ed] on [J]udge [S]pinner’s
personal home repairing windows without pay in exchange for legal
help”).)

Thus,

Plaintiff

has

failed

predicate act.
36

to

plead

bribery

as

a

Accordingly, Plaintiff’s RICO claims are DISMISSED based
on her failure to allege a pattern of racketeering activity.12
IV.

RICO Conspiracy
The “failure to plead a substantive RICO violation is

[ ] fatal to plaintiff[’]s RICO conspiracy claim under § 1962(d).”
Franzone v. City of N.Y., No. 13-CV-5282, 2015 WL 2139121, at *10
(E.D.N.Y. May 4, 2015) (internal quotation marks and citation
omitted).

Accordingly, Plaintiff's claim for RICO conspiracy is

DISMISSED.
V.

Leave to Replead
The Court should not dismiss a pro se complaint “without

granting leave to amend at least once when a liberal reading of
the complaint gives any indication that a valid claim may be
stated.”

Perri v. Bloomberg, No. 11-CV-2646, 2012 WL 3307013, at

*4 (E.D.N.Y. Aug. 13, 2012) (internal quotation marks and citations
omitted).
freely

See also FED. R. CIV. P. 15(a)(2) (“[t]he court should

give

leave

[to

amend]

when

justice

so

requires”).

Nevertheless, it is within the Court’s discretion to deny leave to
amend where there is no indication from a liberal reading of the

In light of the Court’s determination that the Amended
Complaint fails to state a RICO claim, the Court need not
address Guerrera’s arguments regarding the applicability of the
doctrines of res judicata and collateral estoppel. (Guerrera’s
Br. at 7-17.)
12

37

complaint that the plaintiff may state a valid claim.

Perri, 2012

WL 3307013, at *4.
Plaintiff requests the opportunity to file a second
amended complaint to “cure [her] procedural defects,” and include
additional information regarding police reports she is trying to
retrieve, bankruptcy fraud pleadings, DeRosa’s “over 80 shell
dummy companies,” and other victims of DeRosa’s “criminal activity
of stealing people’s homes.”

(Pl.’s Opp. to Reilly and DeRosa at

53; Pl.’s Opp. to Guerrera at 18-19.)

However, Plaintiff has

already been accorded one opportunity to replead her RICO claims
and the Court finds that further amendment of the Amended Complaint
would be futile.

As set forth more fully above, the Amended

Complaint--while five times the length of the original complaint-relies on vague and conclusory statements of purported criminal
activity, much of which centers around the actions of non-parties.
Thus,

notwithstanding

Plaintiff’s

pro

se

status,

the

Court

declines to grant Plaintiff an additional opportunity to amend, as
there is no indication from a liberal reading of the Amended
Complaint that Plaintiff may state a valid claim.
Plaintiff also filed a letter motion requesting leave to
file a motion to amend or a Second Amended Complaint, (Docket Entry
79), and a request for an evidentiary hearing regarding “new”
evidence, (see Docket Entry 83, at 4).

The Court DENIES Plaintiff

leave to file a motion to amend or a subsequent Amended Complaint.
38

Plaintiff’s letter motion fails to annex a proposed Second Amended
Complaint, identify any new allegations, or indicate how these
unspecified
Complaint.

amendments

will

cure

the

defects

in

her

Amended

In the absence of a viable pleading or any discernible

basis for a hearing, the Court similarly DENIES Plaintiff’s request
for an evidentiary hearing.
CONCLUSION
For the foregoing reasons, the Town’s motion to dismiss
(Docket Entry 49) is TERMINATED AS MOOT.

The motions to dismiss

filed by Reilly, Guerrera, and DeRosa, (Docket Entries 66, 67, and
68) are GRANTED and Plaintiff’s Amended Complaint is DISMISSED.
Plaintiff’s motion for leave to file a motion to amend or Second
Amended Complaint (Docket Entry 79) and request for an evidentiary
hearing (Docket Entry 83) are DENIED.

The Clerk of the Court is

directed to mail a copy of this Order to pro se Plaintiff and mark
this case CLOSED.
SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:

August
11 , 2017
Central Islip, New York

39