Brodsky v. New York Department of Housing Preservation & Development
MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however the Complaints are sua sponte DISMISSED WITH PREJUDICE for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT in accordance with this Order. The Clerk of the Court shall CLOSE the cases assigned docket numbers 17-CV-6032 , 17-CV-6033, 17- CV-6555, 17-CV-6556, and 17-CV-7085 and no further entries shall be made in any of those closed dockets. If Plaintiff does not file an Amended Complaint within the time allowed, judgment shall enter without further notice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 4/9/2018. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JAY B. BRODSKY,
MEMORANDUM & ORDER
FIRST AMERICAN TITLE INSURANCE
COMPANY OF NEW YORK,
ROCHELL CARROLL BRODSKY,
LIBERTY MUTUAL INSURANCE COMPANY,
-againstNEW YORK STATE DEPARTMENT OF
HOUSING PRESERVATION AND
NEW YORK STATE DEPARTMENT OF
FAMILY COURT, NASSAU COUNTY,
NEW YORK, STATE OF NEW YORK,
NASSAU COUNTY, and
ROCHELLE CARROLL BRODSKY,
Jay B. Brodsky, pro se
240 East Shore Road
Great Neck, NY 11023
SEYBERT, District Judge:
On October 16, 2017, pro se plaintiff Jay B. Brodsky
(“Plaintiff”) filed: (1) a 46-page Complaint, with an additional
209 pages of exhibits, against First American Title Insurance
Company of New York (“First American”) together with an application
to proceed in forma pauperis (Docket No. 17-CV-6031 (“Brodsky I”));
(2) a 35-page Complaint, with an additional 124 pages of exhibits,
against his ex-wife, Rochelle Carroll Brodsky (“R. Brodsky”),
together with an application to proceed in forma pauperis (Docket
No. 17-CV-6032 (“Brodsky II”)); and (3) a 37-page Complaint, with
Insurance Company (“Liberty”) together with an application to
proceed in forma pauperis (Docket No. 17-CV-6033 (“Brodsky III”)).
On November 9, 2017, Plaintiff filed two more in forma
pauperis Complaints: (1) a 47-page Complaint, with an additional
229 pages of exhibits, against the New York Department of Housing
Preservation and Development (“NYDOHPD”) (Docket No. 17-CV-6555
(“Brodsky IV”)); and (2) a 37-page Complaint with an additional 221
pages of exhibits, against the New York Department of Finance
(“NYDOF”) (Docket No. 17-CV-6556 (“Brodsky V”)).
On December 4, 2017, Plaintiff filed another voluminous
in forma pauperis Complaint.
The December 4th Complaint is 93-
pages with an additional 338 pages of exhibits, against R. Brodsky
as well as New York State (“NYS”), the Family Court of Nassau
County, New York (“Family Court”), and Nassau County (“Nassau”)
(Docket No. 17-CV-7085 (“Brodsky VI”)).
applications to proceed in forma pauperis filed together with the
Second Complaint, the Court finds that Plaintiff is qualified to
commence these actions without prepayment of the filing fees.
28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s requests to proceed
in forma pauperis are GRANTED. In addition, the Court CONSOLIDATES
Plaintiff’s Complaints under the first-filed Complaint, 17-CV-6031,
and DIRECTS that the cases assigned docket numbers 17-CV-6032, 17CV-6033, 17-CV-6555, 17-CV-6556, and 17-CV-7085 be CLOSED.
future filings shall be made only under docket number 17-CV-6031.
However, for the reasons that follow, Plaintiff’s claims are sua
sponte DISMISSED for the reasons that follow.
As noted above, Plaintiff’s Complaints are voluminous.
In total, since October 16, 2017, Plaintiff has filed approximately
1600 pages with the Court.
As the Court can best discern from
Plaintiff’s submissions, he largely seeks to challenge prior state
court litigation arising from: (1) the distribution of certain real
property from his father’s estate,2 and (2) his 1990 divorce from
R. Brodsky and his child support obligations.
The gravamen of
Plaintiff’s claims regarding his father’s estate is that because
“inscriptions by Bob Brodsky are subiectio, fake, counterfeit or
The following facts are taken from Plaintiff’s Complaints and
are presumed to be true for the purposes of this Memorandum and
Order. Excerpts from the Second Complaint as reproduced here
exactly as they appear in the original. Errors in spelling,
punctuation, and grammar have not been corrected or noted.
Plaintiff alleges that following his father’s January 13, 2013
death, Plaintiff commenced an action “at the Queens County
Courthouse, Jamaica, New York, Surrogate’s Division” wherein he
“discovered that “Innumerable Irregularities had been
perpetrated.” (See Compl. 17-CV-6031 at ECF p. 9.) Plaintiff
also alleges that the Surrogate’s Court case was settled in 2016.
Defendants and Plaintiff is entitled to recover approximately $32
(See Complaints, generally, in Brodsky I, III, IV, and
Plaintiff’s claims relating to his divorce proceeding
Plaintiff seeks to impose liability on his ex-wife for “negligent
infliction of emotional distress” because she allegedly exacerbated
unnecessary stress during such proceedings.
generally, in Brodsky II and Brodsky VI.)
Plaintiff’s lengthy and repetitive Complaints (exclusive
“Ubicunque Est Injuria, Ibi Damnum Sequitur”, “Void Ab Initio”,
“Acta Exteriora Indicant Interiora Secreta”, “Nunc Pro Tunc”, “In
Propria Causa Nemo Judex”, “Bonafide et Fidelis”), excerpts from
the Restatement (Second) of Torts, Web MD, and Psychology Today
Magazine, citations to federal and state cases, statutory law and
the New York State and Federal Constitutions. And, Plaintiff seeks
to solely press felony criminal charges against Defendants in
Brodsky I, III, IV, V.3
Plaintiff purports to press felony charges under state law for
Grand Larceny in the First Degree, Forgery in the First Degree,
Identity Theft in the First Degree and Scheme to Defraud in the
First Degree, as well as federal felony charges pursuant to 18
U.S.C. § 37 (Violence at International Airports), 18 U.S.C.
§ 1028 (Fraud and Related Activity in Connection with
Identification Documents, Authentication Features, and
In Forma Pauperis Applications
Upon review of Plaintiff’s declarations in support of his
applications to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence these actions without prepayment
of the filing fees.
See 28 U.S.C. § 1915(a)(1). Therefore,
Plaintiff’s requests to proceed in forma pauperis are GRANTED.
Under Federal Rule of Civil Procedure 42, “[i]f actions
before the court involve a common question of law or fact, the
court may: (1) join for hearing or trial any or all matters at
issue in the actions; (2) consolidate the actions; or (3) issue any
other orders to avoid unnecessary cost or delay.” FED. R. CIV. P.
“The trial court has broad discretion to determine whether
consolidation is appropriate.”
Johnson v. Celotex Corp., 899 F.2d
1281, 1284-85 (2d Cir. 1990).
Consolidation of cases with common
questions of law or fact is favored “to avoid unnecessary costs or
delay,” Johnson, 899 F.2d at 1284, and to “expedite trial and
eliminate unnecessary repetition and confusion,” Devlin v. Transp.
“The Second Circuit has long adhered to the first-filed
Information), and 26 U.S.C. § 7206 (Fraud and False Statements).
competing litigations. Where there are several competing lawsuits,
the first suit should have priority, absent the showing of balance
of convenience or special circumstances giving priority to the
Kellen Co. v. Calphalon Corp., 54 F. Supp. 2d 218, 221
citations omitted); accord Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.
1991); First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d 76,
79 (2d Cir. 1989). The first-filed rule seeks to conserve judicial
resources and avoid duplicative litigation.
See Jacobs, 950 F.2d
at 92; First City Nat’l Bank & Trust Co., 878 F.2d at 80; Kellen,
54 F. Supp. 2d at 221.
difficult to comprehend, appear to allege challenge underlying
state court litigation and the facts involved in several of the
Complaints are the same.
Accordingly, in the sound exercise of
its discretion, the Court orders that Plaintiff’s Complaints be
CONSOLIDATED pursuant to Federal Rule of Civil Procedure 42 into
the first filed case, 17-CV-6031.
The Clerk of Court is DIRECTED
to: (1) consolidate these actions; and (2) mark the Complaints
assigned docket numbers 17-CV-6032, 17-6033, 17-CV-6555, 17-CV6556, and 17-CV-7085 CLOSED. Any future filings are to be docketed
in only 17-CV-6031.
Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to
dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
from such relief.
See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Court is required to dismiss the action as soon as it makes such a
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).
However, a complaint must plead sufficient
facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).
“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).
plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”
Id. at 678; accord Wilson v.
Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011).
“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
678 (quoting Twombly, 550 U.S. at 555).
Iqbal, 556 U.S.
Rule 8 of the Federal Rules of Civil Procedure
Pursuant to Rule 8(a)(2) of the Federal Rules of Civil
Procedure, a pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
CIV. P. 8(a)(2); Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512,
122 S. Ct. 992, 152 L. Ed. 2d 1 (2002).
This short and plain
statement must be “sufficient to give the defendants fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.”
Jones v. Nat’l Commc’ns. and Surveillance Networks, 266 F. App’x
31, 32 (2d Cir. Feb. 21, 2008) (internal citations and quotation
marks omitted) (unpublished opinion).
“The statement should be
plain because the principal function of pleadings under the Federal
Rules is to give the adverse party fair notice of the claim
asserted so as to enable him to answer and prepare for trial.”
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
statement should be short because unnecessary prolixity in a
pleading places an unjustified burden on the court and the party
who must respond to it because they are forced to select the
quotation marks and citation omitted)).
Under the now well-established Iqbal/Twombly standard, a
complaint satisfies Rule 8 only if it contains enough allegations
of fact to state a claim for relief that is “plausible on its
Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678.
“plausibility standard” is governed by “[t]wo working principles.”
Iqbal, 556 U.S. at 670, 678; accord Harris v. Mills, 572 F.3d 66,
71–72 (2d Cir. 2009).
First, although the Court must accept all
conclusions;” thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice,” Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at
555, 557 (a pleading that offers “labels and conclusion” or “naked
assertion[s]” devoid of “further factual enhancement” does not
satisfy Rule 8).
Second, only complaints that state a “plausible
claim for relief” can survive a motion to dismiss. Iqbal, 556 U.S.
context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id.; accord Harris, 572
F.3d at 72.
Rule 8 of the Federal Rules of Civil Procedure also
requires that “[e]ach allegation must be simple, concise, and
Fed. R. Civ. P. 8(d)(1).
Indeed, pleadings must give
“‘fair notice of what the plaintiff’s claim is and the grounds upon
which it rests’” in order to enable the opposing party to answer
and prepare for trial, and to identify the nature of the case.
Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346, 125 S. Ct. 1627,
1643, 161 L. Ed. 2d 577 (2005) (quoting Conley v. Gibson, 335 U.S.
41, 47 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), overruled in part on
other grounds by Twombly, 550 U.S. at 544)).
“When a complaint does not comply with the requirement
that it be short and plain, the court has the power, on its own
initiative or in response to a motion by the defendant, to strike
any portions that are redundant or immaterial . . . or to dismiss
Salahuddin, 861 F.2d at 42; see also Shomo v.
State of New York, 374 F. App’x 180, 182 (2d Cir. Apr. 22, 2010)
(unpublished opinion)(“a court has the power to dismiss a complaint
that is ‘prolix’ or has a ‘surfeit of detail’ ”); Gonzalez v. Wing,
113 F.3d 1229, *1 (2d Cir. 1997) (unpublished opinion) (affirming
dismissal of pro se plaintiffs’ 287–page “incredibly dense and
verbose” complaint); Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir.
1972) (per curium) (affirming dismissal of pro se plaintiff’s
88–page, single-spaced complaint that “contained a labyrinthian
comprehension[,] fail[ing] to comply with the requirement of Rule
Here, as is readily apparent, Plaintiff’s Complaints do
not comport with the pleading requirements of Rule 8, are frivolous
pursuant to 28 U.S.C. § 1915, and fail to state a claim upon which
relief may be granted even when read liberally.
nonsensical, disjointed, and do not allege any plausible claims.
displeasure with the outcome of underlying state court proceedings
relating to the distribution of property from his father’s estate
and his divorce and child support obligations.
fails to connect his often incoherent allegations relating to these
matters to the various Defendants in any concrete way such that the
Court (or a potential Defendant) could ascertain the nature of his
claims or effectively respond to the Complaints.
And, Brodsky I,
III, IV, and V only seek to press felony criminal charges against
Defendants notwithstanding Plaintiff’s demand for millions of
prosecutions in the United States.”
See, e.g., Sosa v. Lantz, 660
F. Supp. 2d 283, 287 n.3 (D. Ct. 2009) (citing
Act of Sept. 24,
1789, ch. 20, § 35, 1 Stat. 92-93 (Judiciary Act of 1789) (creating
prosecute in such district all delinquents for crimes and offences,
cognizable under the authority of the United States”); see also
Leeke v. Timmerman, 454 U.S. 83, 102 S. Ct. 69, 70 L. Ed. 2d 65
constitutional right to initiate or compel the initiation of
criminal proceedings against another individual).
As a result, Plaintiff’s Complaints fail to state any
cognizable claims against any Defendant.
The submissions do not
comprise “a short and plain statement of the claim showing that the
pleader is entitled to relief” pursuant to Rule 8, and wholly fail
to state a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915.
See Rosa v. Goord, 29 F. App’x 735, 735 (2d Cir.
Feb. 27, 2002) (affirming dismissal of prolix complaint and amended
filings which “remained prolix and not susceptible of a responsive
pleading”) (internal citations omitted); Prezzi, 469 F.2d at 692
(affirming dismissal of voluminous pro se complaint that contained
a “labyrinthian prolixity of unrelated and vituperative charges
requirement of Rule 8,” and affirming dismissal of shorter amended
Accordingly, the Complaints are DISMISSED
WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B).
Leave to Amend
For the reasons set forth above, Plaintiff’s Complaints--
even under the very liberal reading we accord pro se pleadings-fail to conform with the dictates of Rule 8.
That is, none of the
Complaints present a cognizable claim and demand for relief. It is
well-within a district court’s discretion to deny leave to amend a
prolix complaint if it is so voluminous and incomprehensible that
no claims can be gleaned from it.
See, e.g., Jones v. Nat’l
Commc’ns and Surveillance Networks, 06–CV–1220, 266 F. App’x 31,
2008 WL 482599 (2d Cir. 2008) (unpublished opinion) (finding that
single-spaced complaint with 87 pages of attachments, alleging over
twenty separate causes of action against more than 40 defendants
was not an abuse of discretion); see also In re Merrill Lynch &
Co., Inc., 218 F.R.D. 76, 77–78 (S.D.N.Y. 2003) (“When a complaint
is not short and plain, or its averments are not concise and
direct, the district court has the power, on motion or sua sponte,
to dismiss the complaint or to strike such parts as are redundant
or immaterial.”) (internal quotation marks and citation omitted).
Here, in an abundance of caution and given Plaintiff’s
pro se status, the Court GRANTS LEAVE TO FILE AN AMENDED COMPLAINT.
Complaint, bearing only Docket Number 17-CV-6031, and shall file
any Amended Complaint within thirty (30) days from the date of this
Memorandum and Order.
Plaintiff shall not seek to press criminal
charges in any Amended Complaint and shall include a “short and
plain statement of the claim” and “[e]ach allegation must be
simple, concise, and direct.
Fed. R. Civ. P. 8(a)(2), 8(d)(1).
Plaintiff is advised that because an Amended Complaint completely
replaces the original Complaint, all claims Plaintiff seeks to
pursue against any Defendant(s) must be included in the Amended
If Plaintiff does not file an Amended Complaint within
the time allowed, judgment shall enter without further notice.
Plaintiff is cautioned, however, that Rule 11 of the
Federal Rule of Civil Procedure applies to pro se litigants (see
Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989) (“Rule
11 applies both to represented and pro se litigants...”), and
should he file an incoherent, prolix, frivolous Amended Complaint,
it is within the Court’s authority to consider imposing sanctions
upon him, including monetary sanctions and, after notice and an
opportunity to be heard, an injunction enjoining Plaintiff from
filing any further complaints relating to the subject matters
contained in the instant pleadings.
See FED. R. CIV. P. 11; Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S. Ct. 2447, 2454,
110 L. Ed. 2d 359 (1990) (“[T]he central purpose of Rule 11 is to
deter baseless filings in District Court and . . . streamline the
administration and procedure of the federal courts.”); Safir v.
U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986) (“‘A district
court not only may but should protect its ability to carry out its
multiplicitous, and baseless litigation.’”) (quoting Abdullah v.
Gatto, 773 F.2d 487, 488 (2d Cir. 1985) (per curiam)).
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the
are sua sponte DISMISSED WITH PREJUDICE for failure to state a
claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). Plaintiff is
GRANTED LEAVE TO FILE AN AMENDED COMPLAINT in accordance with this
Any Amended Complaint shall be clearly labeled “Amended
consolidated action, 17-CV-6031.
The Clerk of the Court shall
CLOSE the cases assigned docket numbers 17-CV-6032, 17-CV-6033, 17CV-6555, 17-CV-6556, and 17-CV-7085 and no further entries shall be
made in any of those closed dockets.
If Plaintiff does not file an
Amended Complaint within the time allowed, judgment shall enter
without further notice.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose of
See Coppedge v. United States, 369 U.S. 438, 444-45,
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is further directed to mail a copy
of this Memorandum and Order to the pro se Plaintiff.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
9 , 2018
Central Islip, New York
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