Financial Freedom Acquisition LLC v. Braunsberg et al

Filing 8

ORDER - The Court declines the Removing Defendants invitation to inject itself into this litigation at this extremely late stage for the sole purpose of effectively reversing multiple reasoned opinions of Suffolk County Supreme Court Justices, and a final judgment in favor of the Plaintiff. Simply stated, if the Removing Defendants believe that the conclusions of the state courts were reached in error, their recourse is in the Appellate Division of the New York State Supreme Court, not the feder al district court. Accordingly, the Court remands this matter to the state court for any further proceedings. The Clerk of the Court is respectfully directed to close this case. SEE ATTACHED ORDER for details. So Ordered by Judge Arthur D. Spatt on 6/7/2016. cm by cm/ecf. cm by cm/ecf; cm to state court via fcm. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FINANCIAL FREEDOM ACQUISITION LLC,
Plaintiff,

ORDER
15-cv-4408 (ADS)(ARL)

-againstLINDA C. BRAUNSBERG, Individually as Distributee and as
Executrix of the Estate of Mary Falcone, MARY DIAZ, as heir at
law of the Estate of Mary Falcone, CATHERINE SUMMA, as
heir at law of the Estate of Mary Falcone, PHILIP JAMES
COLASANTO, as alternate devisee of the Estate of Mary
Falcone, GIOVANNA MARIA COLASANTO, as alternate devisee
of the Estate of Mary Falcone, INTERNAL REVENUE SERVICE,
UNITED STATES OF AMERICA, NEW YORK STATE
DEPARTMENT
OF
TAXATION
AND
FINANCE–TAX
COMPLIANCE DIVISION–C.O.–ATC, NYS CHILD SUPPORT
ENFORCEMENT, NY STATE DEPARTMENT OF TAXATION
AND FINANCE, CITY OF NEW YORK DEPARTMENT OF
TRANSPORTATION PARKING VIOLATIONS BUREAU, CITY OF
NEW YORK ENVIRONMENTAL CONTROL BOARD, NEW YORK
CITY TRANSIT ADJUDICATION BUREAU,
Defendants.
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APPEARANCES:
Stein, Wiener & Roth, LLP
Attorneys for the Plaintiff
One Old Country Road, Suite 113
Carle Place, NY 11514
By:
Robert C. Sambursky, Esq., Of Counsel

Michael P. Braunsberg, Esq.
Attorney for the Defendants Linda C. Braunsberg, Mary Diaz, Catherine Summa, Philip James
Colasanto, and Giovanna Maria Colasanto
370 Powell Street
Staten Island, NY 10312
NO APPEARANCE:
Internal Revenue Service
Nominal Defendant

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United States of America
Nominal Defendant
NYS Department of Taxation and Finance, Tax Compliance Division, CO-ATC
Nominal Defendant
NYS Child Support Enforcement
Nominal Defendant
NYS Department of Taxation and Finance
Nominal Defendant
NYC Department of Transportation, Parking Violations Bureau
Nominal Defendant
NYC Environmental Control Board
Nominal Defendant
NYC Transit Adjudication Bureau
Nominal Defendant
SPATT, District Judge:
On November 10, 2010, the Plaintiff commenced this action in the Suffolk County
Supreme Court, seeking to foreclose a security interest in a parcel of real property owned
by one Mary Falcone, now deceased, located at 16 Fremont Road in East Hampton (the
“Residence”). The complaint named the Removing Defendants – who are the heirs and
devisees of the former homeowner, Mary Falcone – as well as numerous nominal
defendants (the “Nominal Defendants”) – who are mostly judgment creditors, and other
individuals and entities with a potential interest in the Residence.
None of the Nominal Defendants answered the state court complaint or otherwise
appeared in that action. Nonetheless, issue was joined by the Removing Defendants and
the matter proceeded to discovery and dispositive motion practice in the state court.
On April 4, 2012, Suffolk County Supreme Court Justice Elizabeth H. Emerson issued
a written opinion, which, in relevant part: (1) granted the Plaintiff summary judgment
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against the Removing Defendants; (2) struck the answers of the Removing Defendants; (3)
entered default judgments against the non-appearing Nominal Defendants; and
(4) appointed a referee to compute the amounts due under the mortgage.
On November 15, 2012, Justice Emerson denied a motion by the Removing
Defendants for reconsideration of her prior ruling.
On November 26, 2012, Justice Emerson denied a motion by the Removing
Defendants to stay the action.
It is somewhat unclear what, if anything, transpired in this case between November
2012 and late-July 2015. However, on July 27, 2015, Suffolk County Supreme Court Justice
Thomas F. Whelan issued a written opinion confirming the appointed referee’s
computation of the amounts due under the mortgage and granting in all respects the
Plaintiff’s motion for a final Judgment of Foreclosure and Sale. The court expressly found
that the Removing Defendants had “failed to demonstrate any grounds for denial of the
relief requested.”
On that same date, namely, July 27, 2015, Justice Whelan issued two additional
written orders, which, in relevant part, denied another request by the Removing
Defendants for a stay of the proceedings; denied additional requests by the Removing
Defendants to dismiss the complaint; and expressly directed the Removing Defendants “to
refrain from the interposition of further motions,” which, in that court’s view, were
“without basis in law or fact, as such conduct is frivolous” and might warrant “the
imposition of sanctions, costs and fees.”
The next day, on July 28, 2015, the Removing Defendants filed a notice of removal,
alleging that this Court has original jurisdiction over the case because complete diversity of

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citizenship exists among the parties and that the amount in controversy exceeds $75,000.
Notwithstanding the apparent final resolution of this action in state court, the Removing
Defendants seek to have this Court vacate the prior orders of Justice Whelan and Justice
Emerson because additional discovery regarding the validity of the underlying mortgage,
which the state court judges allegedly refused to permit, is needed. In this regard, the
Removing Defendants appear to contend that Justice Whelan erroneously failed to enforce
a subpoena for such information, which was served on the Plaintiff, allegedly in violation of
New York Judiciary Law § 753(A).
They also ask this Court to consider anew multiple issues already considered and
rejected by the state court, including their entitlement to a statutory settlement conference,
which Justice Emerson expressly held was legally untenable in her April 4, 2012 opinion. It
is clear that the Removing Defendants simply seek to relitigate these issues, which were
decided adversely to them once – and in some instances, more than once – before.
The Court declines the Removing Defendants’ invitation to inject itself into this
litigation at this extremely late stage for the sole purpose of effectively reversing multiple
reasoned opinions of Suffolk County Supreme Court Justices, and a final judgment in favor
of the Plaintiff. In fact, to the extent the Removing Defendants seek to have this Court
review the substantive decisions of the state courts, it is clear that subject matter
jurisdiction is lacking pursuant to the Rooker-Feldman doctrine. See, e.g., Swiatkowski v.
Citibank, 745 F. Supp. 2d 150, 163-68 (E.D.N.Y. 2010) (discussing the jurisdictional bar that
Rooker-Feldman poses to federal court review of a state court judgment of foreclosure),
aff’d, 446 F. App’x 360 (2d Cir. 2011).

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Simply stated, if the Removing Defendants believe that the conclusions of the state
courts were reached in error, their recourse is in the Appellate Division of the New York
State Supreme Court, not the federal district court.
Accordingly, the Court remands this matter to the state court for any further
proceedings. The Clerk of the Court is respectfully directed to close this case.
It is SO ORDERED
Dated: Central Islip, New York
June 7, 2016

/s/ Arthur D. Spatt_____________________________________________
ARTHUR D. SPATT
United States District Judge

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