Serrano v. Ziegler et al

Filing 16

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED, that the Zieglers' Motion to Dismiss/Summary Judgment, Dkt. No. 6, is GRANTED; and Serrano's Complaint, Dkt. No. 1, is DISMISSED. Signed by Magistrate Judge Randolph F. Treece on 6/14/2011. (a copy of this order has been sent to pro se plaintiff via regular mail, and certified mail/return receipt requested.(sg )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HILDA SERRANO,
Plaintiff,
-v-

Civ. No. 1:10-CV-1560
(RFT)1

THOMAS L. and CAROLE M. ZIEGLER
Defendants.
R

APPEARANCES:

OF COUNSEL:

HILDA SERRANO
Pro se Plaintiff
P.O. Box 3047
Crofton, Maryland 21114

F

CONNOR, CONNOR LAW FIRM
Attorney for the Defendants
P.O. Box 427, Green Street
Hudson, New York 12534

JOHN CONNOR, JR., ESQ.

RANDOLPH F. TREECE
United States Magistrate Judge
MEMORANDUM-DECISION and ORDER
T

Presently before this Court is Thomas and Carole Ziegler’s (hereinafter “the
Zieglers”) Motion to Dismiss/Summary Judgment. Initially, the Zieglers filed a
Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6),

Pursuant to 28 U.S.C. § 636(c), on April 27, 2011, the parties consented to this Court
conducting any and all proceedings in this case and the Honorable Mae D’Agostino, United States
District Judge, reassigned this matter to this Court. Dkt. No. 10.
1

Dkt. No. 6. Realizing that the parties had provided submissions far beyond what is
required to determine a Rule 12 motion to dismiss and therefore created an extensive
factual record,2 the Court issued an Order converting the Motion to Dismiss to a
Motion for Summary Judgment and giving the parties notice of the motion change, the
issues to be considered, and a reasonable period of time to submit further facts by
R

either affidavits or exhibits, if they wish. See Dkt. No. 15, Order, dated May 23, 2011.
Further, the Court waived provisions of the District’s Local Rules requiring the filing
of a statement of material facts and memorandum of law. Id. at p. 3. Even though this
Court gave the parties an opportunity to submit further facts, neither party availed
themselves of this opportunity. For the following reasons, Zieglers’ Motion for

F

Summary Judgment is granted.
I. STATEMENT OF FACTS
On December 22, 2010, Serrano filed a civil rights Complaint, pursuant to 42

The Zieglers’ original Motion to Dismiss, Dkt. No. 6, is comprised of the following: (1)
John Connor, Jr., Esq.’s Aff., dated Apr. 6, 2011, with Exs. A-D; and (2) Dkt. No. 6-1, Defs.’ Mem.
of Law.
2

T

Serrano’s Opposition to the original Motion to Dismiss, Dkt. No. 8, is comprised of the
following: (1) Dkt. No. 8-1, Hilda Serrano’s Aff., dated Apr. 20, 2011; and (2), Dkt. No. 8-2, Pl.’s
Mem. of Law; with Exs. A-H.
Zieglers’ Reply to Serrano’s Opposition, Dkt. Nos. 11 and 12, is comprised of the following:
(1) Dkt. No. 11, Defs.’ Reply Mem. of Law; (2) Dkt. No. 12-1, John Connor Jr., Esq.’s Aff., dated
May 4, 2011, Thomas Ziegler’s Aff., dated May 4, 2011, with Exs. A, Thomas L. Ziegler’s Aff.,
dated Jan. 7, 2009, & B-D.
-2-

U.S.C. § 1983, by which this Court presumes she is attempting to raise a violation of
her due process rights as protected by the Fourteenth Amendment of the United States
Constitution. Dkt. No. 1.3 The events and occurrences pertinent to this litigation span
twenty-eight years. Even with such an extended chronology, there is no material
disagreement with the salient facts of this case, only their applicability, relevancy, and
R

construction.4 To appreciate the multi-faceted issues of this case, it is necessary to
draw upon the entire historical narrative.

A. Pre-1985

F
T

Attached to an already comprehensive Complaint are: (1) Serrano’s entire Motion Seeking
Leave to Appeal, including the record, to the New York Court of Appeals and the Court of Appeals
Order, dated November 23, 2010, denying Serrano’s leave to appeal; (2) Serrano’s appeal to the
New York State Supreme Court, Appellate Division, Third Department, including the entire record
and the Appellate Division Memoranda and Orders, dated June 17 and August 20, 2010; (3) the
Honorable Christopher E. Cahill, Justice of the Supreme Court, Decision and Order, dated February
4, 2009; (4) the Honorable George L. Cobb, Justice of the Supreme Court, Order, dated November
5, 1994, and the entire record presented to that Court; (5) the New York State Supreme Court,
Appellate Division Third Department Memorandum and Order, dated October 29, 1992; (6)
pleadings and documents related to Caesar Serrano v. Hilda Serrano, Index No. 84-3160, including
the Honorable Vincent Bradley, Justice of the Supreme Court, Order, dated January 23, 1985; (7)
the pleadings and record in Serrano v. Ziegler, et. al., Index No. 92-3729; and (8) the pleadings and
record in Ziegler, et. al., v. Serrano, Index No. 08-4746. The 538 pages of Attachments ostensibly
represent the twenty-eight years of litigation related to this lawsuit. Dkt. No. 1, Compl.
Notwithstanding this unabridged record, the parties have nonetheless replicated many of these same
documents as attachments to their Affidavits and/or Memoranda of Law. Even with the abundance
of record, the Complaint remains somewhat ambiguous as to which constitutional right is alleged
to have been violated, thus requiring the Court to presume that that right at issue is due process.
3

Because the parties are in such an agreement on the facts, the Court will not cite to any
specific record, unless deemed absolutely essential, and will rather provide a general summary of
the agreed upon facts.
4

-3-

In 1972, Caesar and Hilda Serrano purchased 9 Michelle Drive, Gardiner, New
York, the real property in question, from Christian and Rose Ecker. In or about
February 1982, Hilda Serrano left her husband and their marital home but inexplicably
did not advise him of her destination nor at any later moment her whereabouts.
Caesar Serrano commenced a divorce action against Hilda Serrano in 1983.
R

Representing that he was unable to accomplish personal service upon his wife because
he did not know of her whereabouts, Caesar Serrano was granted permission to serve
the summons and complaint of divorce by publication. In March 1984, the Honorable
John G. Connor, Justice of New York State Supreme Court, granted Caesar Serrano
a default judgment of divorce. Shortly thereafter, in November 1984, Caesar Serrano

F

commenced an action for partition of the marital residence, 9 Michelle Drive,
Gardiner, New York, against Hilda Serrano. Apparently for similar reasons, the Court
granted an order allowing Caesar Serrano to serve the summons and complaint for
partition by publication. In January 1985, the Honorable Vincent G. Bradley, Justice
T

of the New York State Supreme Court, granted Caesar Serrano a default judgment of
partition and awarded him exclusive rights to the martial property. On February 22,
1985, Caesar Serrano transferred title to 9 Michelle Drive to the Zieglers for the sum
of $76,000. The Zieglers have occupied this residence ever since.
B. Post-1985
-4-

In December 1989, Hilda Serrano moved to vacate the judgments of divorce
and partition. On March 6, 1991, Serrano’s motion to vacate the default judgment of
divorce was denied and, on May 3, 1991, her motion to vacate the default judgment
of partition was likewise denied. Consequently, Serrano appealed both decisions and,
on September 14, 1992, the Appellate Division, Third Department, finding that the
R

service by publication was improper, reversed both decisions and vacated both
judgments.
On November 10, 1992, Serrano commenced a lawsuit, pursuant to Article 15
of the New York State Real Property Actions and Proceedings Law, against the
Zieglers as well as Norstar Mortgage Company, seeking to compel a determination of

F

her claim to 9 Michelle Drive, Gardiner, New York, as well as money damages. Two
years later, on November 10, 1994, the Honorable George L. Cobb, Justice of the New
York State Supreme Court, dismissed Serrano’s Article 15 Action, finding, inter alia,
that Serrano had unreasonably neglected to prosecute her action. Apparently, Serrano
T

did not appeal Judge Cobb’s Order and the Zieglers continued to occupy 9 Michelle
Drive.
In 2008, in order to quiet title to 9 Michelle Drive and to have it deemed free,
clear, and absolute for the purpose of selling 9 Michelle Drive, the Zieglers
commenced an action, pursuant to Article 15 of the Real Property Actions and
-5-

Proceedings Law, against Serrano. The Zieglers laid claim to this property by virtue
of (1) their purchase in 1985, (2) the November 10, 1994 Order and their reliance
upon the doctrines of res judicata and collateral estoppel, and, (3) the doctrine of
adverse possession. In filing an answer, Serrano asserted her legal claim to the
property and further sought monetary compensation at the rate of $1,000 per month
R

from February 4, 1985 until judgment and an additional $500,000. Eventually, the
Zieglers filed a motion for summary judgment, which included Thomas Ziegler’s
Affidavit averring how he and his wife openly, notoriously, and exclusively occupied
the premises as their martial residence and performed numerous acts consistent with
ownership of the real property. See Dkt. No. 12, Thomas Ziegler Aff., dated May 4,

F

2011. Opposing that motion, Serrano argued that the Zieglers obtained the property
through a fraudulent conveyance and that she had not relinquished title to the property
in any respect. On March 19, 2009, the Honorable Christopher E. Cahill, New York
State Supreme Court Justice, awarded summary judgment to the Zieglers based upon
T

the doctrines of res judicata, collateral estoppel, and adverse possession. Regarding
the doctrine of adverse possession, which is currently promulgated in New York Real
Property Actions and Proceedings Law § 511, Judge Cahill found that the Zieglers had
demonstrated continuous occupation and possession of the property for a period
greater than ten years, paid all of the taxes, maintained the property, and established
-6-

all other indicia of ownership.
Judge Cahill’s Decision and Order was appealed by Serrano to the Appellate
Division, Third Department. Although the Appellate Division found that Judge Cahill
had erred in granting the Zieglers summary judgment on the principle of res judicata,
it nonetheless found that they were entitled to a judgment quieting title based upon the
R

doctrine of adverse possession. It was the Appellate Division’s view that the record
undisputedly established that the Zieglers had continuously and exclusively possessed
9 Michelle Drive for more than ten years. In addressing Serrano’s claim that the
Zieglers obtained the property through a fraudulent conveyance, the Appellate
Division found that “[Serrano] has failed to provide any evidence that [the Zieglers]

F

had knowledge of the purported fraudulent conveyance at the time it was made, and
a deed by one purporting to have authority to convey provides the requisite color of
title to support an adverse possession claim[.]” Dkt. No. 6, Connor Aff., Ex. C, Mem.
& Order, dated June 17, 2010. Serrano’s motion for re-argument was denied as well.
T

Id. at Ex. D., Dec. & Order, dated Aug. 19, 2010. And, on November 23, 2010, the
New York Court of Appeals denied Serrano’s motion for leave to appeal the Appellate
Division’s memorandum and order. Id. at Ex. E.
C. Serrano’s Civil Rights Complaint
In her federal Complaint, besides reiterating the entire twenty-eight year history
-7-

of the personal and litigation struggle over the title to 9 Michelle Drive, Serrano posits
that fraud had so infected the Zieglers’ claim and title to this property to the extent
that the Zieglers “were knowledgeable of the fraud” and have “displayed ‘bad faith
and ‘unclean hands’” in falsely claiming adverse possession of the premises. Dkt. No.
1 at ¶¶ 12, & 17-20. Serrano continues by assailing Judge Cahill’s March 2009
R

Decision and Order as “defective” and, in essence, perpetuating the fraud. Id. at ¶ 22.
There are five Causes of Action which appear to be challenging the validity of the
State Court’s decisions relative to this property :
First Cause of Action:

F

Second Cause of Action:

Third Cause of Action:

T

Fourth Cause of Action:
Fifth Cause of Action:

“‘Defective’ rulings by the Ulster County Supreme
Court are the genesis of this action, which serve[d]
to deny protection to Hilda Serrano’s civil rights
(martial and property).” See id. at ¶¶ 23-26;
“Due to ‘defective’ rulings, statutory restitution for
damages to the aggrieved party is required; Ulster
County Supreme Court 1994 ‘dismissal’ was without
merit.” Id. at ¶¶ 27-31;
“Material issue of restitution unresolved by the
Ulster County Supreme Court precluding summary
judgment; judgment based on erroneous premises.”
Id. at ¶¶ 32-38;
“2010 Appellate Division contradicts 1992 Appellate
Division Order.” Id. at ¶¶ 39-48;
“There is no limitation on restitution; Appellate
Division and Ulster County Supreme Court does not
render statutory restitution.” Id. at ¶¶ 49-51.

As a result of the State Courts’ action or inaction, Serrano seeks a combined $700,000
in monetary damages as well as punitive damages in the amount of $3,000,000.
-8-

II. Discussion
Originally, the Zieglers moved to dismiss Serrano’s Complaint, pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), the
Zieglers assert that the court lacks subject matter jurisdiction, and they raise Rule
12(b)(6) inasmuch as they claim Serrano has failed to state a cause of action. Because
R

of the extravagant details set forth in the Complaint along with an equally unbridled
record attached, as well as the comprehensive record, including Affidavits, filed in
conjunction with the Motion, and in order for the Court to read and consider the entire
record before it, the Court converted the Motion to Dismiss to a Motion for Summary
Judgment, pursuant to FED. R. CIV. P. 56. Because both Federal Rule of Civil

F

Procedure 56 and Rule 12(b)(1) are operational here, the Court will review both
review standards.
A. Standards of Review
1. Summary Judgment Standard
T

Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The moving party bears the burden to demonstrate
through “pleadings, depositions, answers to interrogatories, and admissions on file,
together with [ ] affidavits, if any,” that there is no genuine issue of material fact.
-9-

F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). “When a party has moved for summary judgment
on the basis of asserted facts supported as required by [Federal Rule of Civil
Procedure 56(e)] and has, in accordance with local court rules, served a concise
statement of the material facts as to which it contends there exist no genuine issues to
R

be tried, those facts will be deemed admitted unless properly controverted by the
nonmoving party.” Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the non-movant must set out
specific facts showing that there is a genuine issue for trial, and cannot rest merely on
allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see

F

also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or
denials are ordinarily not sufficient to defeat a motion for summary judgment when
the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v.
Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are
T

“more than mere conclusory allegations subject to disregard . . . they are specific and
detailed allegations of fact, made under penalty of perjury, and should be treated as
evidence in deciding a summary judgment motion” and the credibility of such
statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d
-10-

865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the non-movant. Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).
“[T]he trial court’s task at the summary judgment motion stage of the litigation is
R

carefully limited to discerning whether there are any genuine issues of material fact
to be tried, not to deciding them. Its duty, in short, is confined at this point to issuefinding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs.,
Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is
proceeding pro se, the court must “read [his or her] supporting papers liberally, and

F

. . . interpret them to raise the strongest arguments that they suggest.” Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173
(2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record,
are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi,
T

923 F.2d 18, 21 (2d Cir. 1991).
Exclusive of the preponderance of conclusions enunciated by Serrano, this
Court finds that there are no genuine issue of material fact.
2. Motion to Dismiss Standard
In contemplating a motion to dismiss for lack of subject matter jurisdiction
-11-

pursuant to Rule 12(b)(1), the Court must “accept as true all material factual
allegations in the complaint[,]” though “argumentative inferences favorable to the
party asserting jurisdiction should not be drawn.” Atl. Mut. Ins. Co. v. Balfour
MacLaine Int’l Ltd., 968 F.2d 196 (2d Cir. 1992) (citing Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) & Norton v. Larney, 266 U.S. 511, 515 (1925)). A motion to dismiss
R

pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction may include evidence
outside the pleadings, e.g., affidavit(s) or otherwise competent evidence, and cannot
be converted to a Rule 56 motion for summary judgment. See Kamen v. Am. Tel. &
Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). Plaintiff brings this action pro se, thus
her submissions should be held “to less stringent standards than formal pleadings

F

drafted by lawyers . . . .” Hughe v. Rowe, 449 U.S. 4, 9 (1980) (per curium) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)).
B. Rooker-Feldman Doctrine
The record is an exhaustive legal narrative, spanning twenty-eighty years,
T

pertaining to 9 Michelle Drive and Serrano’s efforts to unravel the Zieglers’ title
thereto, all of which played out before three New York State Supreme Court Justices
in the County of Ulster and two State Appellate Courts. All of this legal wrangling
over this property between Serrano and the Zieglers reached finality in the New York
State Court System when the New York Court of Appeals, on November 23, 2010,
-12-

denied Serrano’s motion for leave to appeal from the Appellate Division, Third
Department June 17, 2010 Memorandum and Order, which affirmed Justice Cahill’s
award of quiet title to the Zieglers under the doctrine of adverse possession. See Dkt.
No. 6, Exs. C-E.
Within a month of the New York Court of Appeals Decision, on December 22,
R

2010, Serrano filed a civil rights action, pursuant to 42 U.S.C. § 1983. Dkt. No. 1,
Compl. Because Serrano’s Complaint is mostly an historical exposé of a series of
events that unfolded within the New York State Court System, it is understandable,
even predictable, that her five causes of action would be directed, as result of the
eventual consequences that had befallen her, against those courts’ rulings and

F

decisions. As such, the ostensible nucleus of Serrano’s purported constitutional
violations are (1) the “defective rulings” of the Ulster County Supreme Court, (2)
“materially unresolved legal issues,” (3) conflicting New York State Appellate
Division Orders, and (4) the inability of State Courts to render statutory restitution.
T

Id. at ¶¶ 23-51; see supra Part I.C.
The Zieglers assert that Serrano’s five causes of actions impermissibly
challenge the validity of those State Court Decisions. Thus, the Zieglers move to
dismiss this Complaint, pursuant to FED. R. CIV. P. 12(b)(1), because, under the
Rooker-Feldman Doctrine, this Court lacks subject matter jurisdiction.
-13-

This Doctrine’s eponym derives from two United States Supreme Court
decisions entitled Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Since 1923, the United
States Supreme Court has consistently held that, in most circumstances, district courts
do not have subject matter jurisdiction to review final judgments of state courts, only
R

the Supreme Court, itself, is vested with the authority to review state court judgments.
Skinner v. Switzer, _ U.S. _, 131 S.Ct. 1289, 1291 (2011); Feldman, 460 U.S. at 482.
Yet the Supreme Court also made manifestly clear that this is a narrowly construed
doctrine. Skinner v. Switzer, 131 S.Ct. at 1297. The Rooker-Feldman Doctrine is
“confined to cases . . . brought by state-court losers complaining of injuries caused by

F

state-court judgment rendered before the 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 (2005) (finding that parallel or
concurrently pending state and federal action are not precluded by the Doctrine).
T

There are four requirements a district court must consider before invoking the
Rooker-Feldman Doctrine:
First, the federal-court plaintiff must have lost in state court. Second, the
plaintiff must ‘”complain[ ] of injuries caused by [a] state-court
judgment [.]” Third, the plaintiff must “invit[e] district court review and
rejection of [that] judgment[ ].” Fourth, the state-court judgment must
have been “rendered before the district court proceedings commenced”i.e., Rooker-Feldman has no application to federal-court suits proceeding
-14-

in parallel with ongoing state-court litigation. The first and fourth of
these requirements may be loosely termed procedural; the second and
third may be termed substantive.
Morrison v. City of New York, 591 F.3d 109, 112 (2d Cir. 2010) (quotation marks and
alteration in the original) (quoting Exxon Mobil Corp. v. Saud Basic Indus. Corp., 544
U.S. at 284); see also Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 & 89
(2d Cir. 2005) & Green v. Mattingly, 585 F.3d 97, 101 (2d Cir. 2009) (noting that the
four requirements must be met for the Rooker-Feldman Doctrine to apply).
In her Complaint, Serrano assails each State Court decision rendered relative
R

to 9 Michelle Drive. The predominate, and maybe the sole, discussion in her
Complaint, Affidavit, and Memorandum of Law takes considerable issue with each
of the relevant rulings. The Attachments to Serrano’s Complaint and the Exhibits
presented in support of her Opposition to the pending Motion are the court records and

F

rulings of the various related State Supreme Court Decisions. Dkt. No. 8-2, Exs. A-G.
Notwithstanding Serrano’s attempts to frame this federal litigation as a “new,
independent claim,” the record and her arguments expound upon her attempt to
vindicate her rights against wrongly decided State Court rulings. The following
commentary by Serrano evinces that she is seeking either an appellate review or a

T

collateral attack of final state court decisions:
! “Honorable Christopher E. Cahill[‘s] summary judgment approved
[Zieglers’] adverse claim in error . . . and neglected to resolve the fraud
in their holding . . . . The State Court decisions do not review the effect
of the Defendants’ conduct.” Dkt. No. 8-2, Pl.’s Mem of Law at p. 2.
! “The Court’s prior misrulings that caused the loss of property.” Id. at
p. 3.
-15-

! “Whether the review of [1994 Ulster County Decision] is
accomplished by the District Court or the Supreme Court is an issue for
review herein.” Id. at p. 5.
! “Plaintiff exhausted remedy by the State judiciary . . . . Plaintiff asserts
five causes of action, which there is no valid evidence with the State
Court decisions, have been definitively ‘litigated and decided’ based on
the factual and legals disputes set forth.” Id. at p. 6.

R

! “By a preponderance of the State’s decisions and Plaintiff’s claims,
adverse possession was approved in error. . . . the decisions neglected
Plaintiff’s superior, clean title status, neglected to statutory restitution
and further prejudiced Plaintiffs’ [sic] rights.” Id. at p. 12.
! “The issues of the present action pertain to misrulings by the State
court, errors in application of law and statutory provisions that the Court
neglected to provide, which further prejudiced the Plaintiff’s rights.” Id.
at p. 14.

F

! Plaintiff . . . seeks to rectify State Court error and secure relief from
the harm caused . . . [and] to ‘reverse and modify’ State Court decisional
errors.” Id. at p. 16.
When applying the four requirements of the Rooker-Feldman Doctrine to the
facts and circumstances of this case, the Court can only conclude that it lacks subject
matter jurisdiction over this case. First, setting aside for the moment all of the court

T

decisions prior to 2009, Serrano lost her claim of a property interest in 9 Michelle
Drive when Justice Cahill determined that the Zieglers had title under the doctrine of
adverse possession. That aspect of Cahill’s determination was upheld by the
Appellate Division, Third Department, and came to a final repose when the New York
State Court of Appeals denied her leave to appeal. Second, Serrano complains, via her
-16-

five causes of action, that she sustained the loss of monthly restitution in the amount
of $1,000 a month, title to 9 Michelle Drive, and other monetary damages, all of
which are attributable to the erroneous state court judgments. More specifically,
Serrano alleges that she is “being battered and suffering from the [State] Court’s
hollow explanations and trumped-up reasons ab initio that only substantiate the [State]
R

Court’s lack of fair ruling and equitable consideration to render [to her] what is the
Court’s responsibility under the law to provide: restitution for the [State] Court’s
defective rulings that prejudiced [her] rights and caused [her] to be destitute and
homeless during [her] twilight years.” Compl. at ¶ 50. Third, the specific tone and
texture of Serrano’s Complaint is an invitation to this Court to review the alleged

F

misrulings of the State Courts, correct them, and provide the relief that those State
Decisions denied her. Serrano’s importune that she “will suffer the effects of harm
until an equitable measure of relief is provided,” id. at ¶ 51, evinces a solicitation to
this Court to review, reject, or modify all of those offending State Court Judgments.
T

Fourth, and finally, considering her admissions, as noted above, Serrano fully litigated
and fully exhausted all of her New York State litigation avenues before turning to this
Federal Court for legal relief.
Serrano’s interjection of the element of fraud, which was considered at both the
State Trial and Appellate Court levels, into this federal litigation does not alter our
-17-

conclusion. Recently, the Second Circuit, when addressing the application of the
Rooker-Feldman Doctrine, was confronted with an analogous set of facts in
Castiglione v. Papa, _ Fed. Appx. _, 2011 WL 1938666 (2d Cir. May 23, 2011)
(unpublished decision). In Castiglione, the plaintiff therein claimed that she was
raising an independent constitutional claim, albeit supported by an allegation of fraud
R

perpetrated by the defendants. However, the Second Circuit found the defendants and
plaintiff’s allegation of their fraudulent efforts to probate a will and codicil were the
very same parties and issues raised before the state surrogate court proceedings. After
confirming that the district court properly applied the four Rooker-Feldman Doctrine
requirements, the Circuit affirmed the district court’s dismissal for lack of subject

F

matter jurisdiction. Here, Serrano raises the matter of her husband’s fraud and argues
that such fraud was transmittable to the Zieglers thereby sullying their title. Yet, the
Appellate Division dispatched all notions of fraud by finding that Serrano “ha[d]
failed to provide any evidence that [the Zieglers] had knowledge of the purported
T

fraudulent conveyance at the time [title] was made. . . . In the absence of any
competent proof raising a triable issue of fact as to any of the elements of [the
Zieglers’] adverse possession claim, summary judgment was properly awarded.” Dkt.
No. 6, Ex. C at p. 4. Hence the issues before this Court are exactly the same as those
addressed by the New York State Courts. Accordingly, this Court finds that there is
-18-

no independent claim and thus does not have subject matter jurisdiction over this
litigation. Therefore, the Court dismisses the Complaint pursuant to FED. R. CIV. P.
12(b)(1).
C. Preclusive Effect
The Zieglers also move to dismiss Serrano’s Complaint, pursuant to FED. R.
R

CIV. P. 12(b)(6), based upon the doctrines of preclusive effect. However, as stated
above, the Court has converted the Motion to Dismiss to a Motion for Summary,
pursuant to FED. R. CIV. P. 56.
Often the Rooker-Feldman Doctrine is raised in conjunction with issues of
preclusive effect. Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77. However,

F

“[the Rooker-Feldman Doctrine] does not supplant preclusion doctrine or augment the
circumscribed doctrines that allow federal courts to stay or dismiss proceedings in
deference to state court actions.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. at 284. Although this Court has already decided that it lacks subject matter
T

jurisdiction, it will, nonetheless substantively discuss whether the doctrines of res
judicata and collateral estoppel have any consequence to this action.
The concepts of res judicata and collateral estoppel, based in consideration of
judicial time and economy, are by no means novel concepts. Generally res judicata,
or claim preclusion, is an affirmative defense to be pleaded in the defendant's answer.
-19-

See FED. R. CIV. P. 8(c). “However, when all relevant facts are shown by the court’s
own records, of which the court takes notice, the defense may be upheld on a Rule
12(b)(6) motion without requiring an answer.” Day v. Moscow, 955 F.2d 807, 811 (2d
Cir. 1992); see also Thompson v. Cnty. of Franklin, 15 F.3d 245, 253 (2d Cir. 1994).
Thus, in this case, the grounds for preclusion must be apparent on the face of the
R

Complaint. When a judgment on the merits is entered in a case, the doctrine of res
judicata commands preclusive effect not only on matters of law already decided, but
also those which could have been raised. Allen v. McCurry, 449 U.S. 90, 94 (1980)
(cited in Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994)). This preclusive effect
applies only to future cases involving the same parties and their privies. In this

F

Circuit, res judicata applies “to preclude later litigation if the earlier decision was (1)
a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case
involving the same parties or their privies, and (4) involving the same cause of
action.” In re Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir. 1985) (citations
T

omitted). On the other hand, under collateral estoppel, or issue preclusion, “once a
court has decided an issue of fact or law necessary to its judgment, that decision may
preclude relitigation of the issue in a suit on a different cause of action involving a
party to the first case.” Allen v. McCurry, 449 U.S. at 94 (quoted in Burgos v.
Hopkins, 14 F.3d at 789). Notably, with collateral estoppel, the party who is to be
-20-

estopped from relitigating an issue must have been afforded due process in the prior
litigation, or in other words, notice and an opportunity to be heard on the matter.
Blonder-Tongue Labs., Inc. v. Univ. of Illinois Found., 402 U.S. 313, 329 (1971).
More succinctly, res judicata bars claims regardless of what issues were actually
presented, whereas collateral estoppel bars only those issues which have been litigated
R

and resolved.
The key to both doctrines is a party’s involvement in the prior action and
without a doubt Serrano has been an active party in the above-described legal actions.
With the exception of Caesar Serrano’s involvement in 1982-84, Hilda Serrano and
the Zieglers have been in litigation mode since 1994, culminating into a 2009

F

judgment quieting title for the Zieglers. On June 17, 2010, the Appellate Division,
reviewing the entire record, affirmed Justice Cahill’s Decision and Order, finding, de
novo, that the Zieglers were entitled to a judgment quieting title to the premises based
upon adverse possession and, moreover, Serrano did not provide evidence that the
T

Zieglers had knowledge of a purported fraudulent conveyance. Dkt. No. 6, Ex. C at
p. 4. When the New York Court of Appeals declined to review Serrano’s motion for
leave to appeal, the Zieglers’ title in 9 Michelle Drive was quieted forever. Id. at Ex.
E.
Even though collateral estoppel would have some effect, res judicata is the
-21-

most applicable principle here. Although Serrano has cast this action as a § 1983
action, in virtually every respect, this litigation involves the same cause(s) of action
and the same parties, concluding with a final judgment on the merits by state courts
of competent jurisdictions. The relief sought here is not distinct from the relief sought
in state court. Attempting to shape monetary damages as “restitution” is unavailing.
R

And, the only threads that barely bind Serrano’s five causes of action together are the
purportedly erroneous court rulings themselves.

Actually, this litigation is a

transparent effort to simply re-litigate that which was decided against Serrano. Thus,
the preclusive effect of res judicata applies to this subsequent case. And, should there
be any reservation about the issue of fraud not being fully resolved, the Appellate
F

Division resoundingly answered that legal issue. Thus, Serrano is collaterally
estopped from raising it again with this Court.5 For these preclusive reasons, the
Zieglers’ Motion is granted and Serrano’s Complaint is dismissed.
D. Failure to State a § 1983 Action
T

Calling a lawsuit a “civil rights action” pursuant to 42 U.S.C. § 1983 does not
necessarily suffice that such a cause of action has been clearly stated or even exists.

The claim of fraud is the only conceivable nexus co-joining the State Courts and the
Zieglers to the denial of proper title to Serrano. Yet, there are no facts, exclusive of those presented
to the Appellate Division, that support the proposition that the Zieglers in fact committed or
knowingly participated in a fraud. Specific facts are required when a party alleges fraud. FED. R.
CIV. P. 9(b).
5

-22-

Notwithstanding the Complaint’s prolix, there are several pleading defects, primary
of which is Serrano’s suggestion, in conclusory fashion, that the State Courts and the
Zieglers’ violated her constitutional rights. Since the State Courts, who have rendered
the ultimate decision against Serrano’s property rights and interest, are not named as
a party, the Court will only address the Complaint’s futility against the Zieglers.6
R

It is well-settled that parties may not be held liable under § 1983 unless it can
be established that they have acted under the color of state law. See, e.g., Rounseville
v. Zahl, 13 F.3d 625 (2d Cir. 1994) (noting state action requirement under § 1983);
Wise v. Battistoni, 1992 WL 380914, at *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations
omitted). State action is an essential element of any § 1983 claim. See Gentile v.

F

Republic Tobacco Co., 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (citing
Velaire v. City of Schenectady, 862 F. Supp. 774, 776 (N.D.N.Y. 1994) (citation
omitted). Traditionally, the definition of acting under color of state law requires that
the section 1983 defendant “exercised power possessed by virtue of state law and
T

made possible only because the wrongdoer is clothed with the authority of state law.”

Section 1983 permits a plaintiff to commence suit in federal court against a “person” who
has, under color of law, violated Plaintiff’s federal rights. “A state, or a state agency, is not a
‘person’ within the meaning of § 1983.” Perry v. State, 2003 WL 22992293, at *1 (D. Conn. Nov.
21, 2003) (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64 (1989) & Spencer v. Doe,
139 F.3d 107, 111 (2d Cir. 1998)). Since New York State Supreme Court and the Appellate
Division Third Department are not a “person” as defined by Section 1983, they are not amenable
to suit under Section 1983 and would be dismissed on this basis alone.
6

-23-

Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (quoting West v. Atkins, 487
U.S. 42, 49 (1988) (internal quotation marks and citation omitted)).
There are no factual allegations, nor could there be, that the Zieglers were
acting under the color of state law or even had the authority of law. At best, the
Zieglers were on equal footing with Serrano in their legal proceedings and subject to
R

the same operation of law; the Zieglers were neither promoters, promulgators, nor
governmental players in either rendering the decisions and orders or enforcing them.
Moreover, this Court stretched, as it must, the boundaries of liberality in favor of the
non-movant Serrano in order to determine if a plausible, or even conceivable, federal
right was violated, and none was found. In the absence of a state actor in this

F

litigation, Serrano’s Complaint shall be dismissed.
III. CONCLUSION
Accordingly, for all of the reasons stated above, it is hereby
ORDERED, that the Zieglers’ Motion to Dismiss/Summary Judgment, Dkt. No.
T

6, is granted and Serrano’s Complaint, Dkt. No. 1, is dismissed.
IT IS SO ORDERED.
Albany, New York
June 14, 2011

-24-

R
F
T

-25-