Neroni v. Becker et al
Filing
19
MEMORANDUM-DECISION and ORDER - That Neroni's motion to amend is GRANTED and his Amended Complaint (Dkt. No. 12, Attach. 2) is adopted and deemed filed. That Neroni's motion for partial summary judgment (Dkt. No. 12) is DENIED. That defen dants' motion to dismiss (Dkt. No. 7) is GRANTED with the exception that defendants' request for costs and attorneys' fees is DENIED with leave to renew. That Neroni's Amended Complaint (Dkt. No. 12, Attach. 2) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 12/21/2012. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
FREDERICK J. NERONI,
Plaintiff,
3:12-cv-1226
(GLS/DEP)
v.
CARL F. BECKER et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Neroni Law Office
203 Main Street
Delhi, NY 13753
TATIANA NERONI, ESQ.
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
DOUGLAS J. GOGLIA
Assistant Attorney General
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Frederick J. Neroni commenced this action against
defendants Carl F. Becker, “in his individual capacity and in his official
capacity as Delaware County Surrogate’s Court Justice and as Acting
Supreme Court Justice, Delaware County,” and the State of New York,
alleging judicial bias and unconstitutional application of state laws in an
underlying and ongoing state action. (Compl., Dkt. No.1 ¶ 4; Am. Compl.,
Dkt. No. 12, Attach. 2 ¶ 4.) Pending are defendants’ motion to dismiss,
(see Dkt. No. 7), and Neroni’s motion seeking leave to amend his
Complaint and for partial summary judgment, (see Dkt. No. 12). For the
reasons that follow, Neroni’s motion to amend is granted and his Amended
Complaint is deemed filed, his motion for partial summary judgment is
denied, and defendants’ motion to dismiss is granted.
II. Background1
This action is predicated on purported personal vendettas, judicial
improprieties, and the unconstitutional application of New York statutes in
an underlying civil action in which Neroni is presently a defendant. (See
Am. Compl. ¶¶ 1-28.) In the underlying state case, the children of a former
Neroni client brought suit against him in Delaware County, alleging,
1
Despite the minimal revisions which it encompasses, Neroni’s
proposed Amended Complaint is adopted and deemed filed and
controlling. (See Am. Compl.) Accordingly, further filing and service
pursuant to N.D.N.Y. L.R. 7.1(a)(4) are not required. The facts are drawn
from the Amended Complaint, unless otherwise noted, and are presented
in a light most favorable to Neroni. (See Am. Compl.)
2
inter alia, violation of N.Y. Judiciary Law § 487.2 (See id. ¶¶ 6, 9); see also
Mokay v. Mokay, 67 A.D.3d 1210, 1211 (3d Dep’t 2009). Partial summary
judgment on the question of section 487 liability was entered against
Neroni and subsequently affirmed by the Appellate Division, Third
Department. (See Am. Compl. ¶ 7); see also Mokay, 67 A.D.3d at 121113. A trial on the issue of damages is pending.3 (See Dkt. No. 7, Attach. 1
at 4.)
At the time the instant action was commenced, Justice Becker
presided over the underlying state claim in his role as Acting Supreme
Court Justice. (See Am. Compl. ¶¶ 8, 44.) Neroni insists, however, that
2
N.Y. Judiciary Law § 487 provides, in relevant part:
An attorney or counselor who: (1) [i]s guilty of any deceit or
collusion, or consents to any deceit or collusion, with intent to
deceive the court or any party . . . [i]s guilty of a misdemeanor,
and in addition to the punishment prescribed therefore by the
penal law, he forfeits to the party injured treble damages, to be
recovered in a civil action.
3
Neroni’s Complaint indicated that a jury trial on damages was
scheduled for August 21, 2012. (See Dkt. No. 1 ¶ 15.) Despite bearing a
date of September 25, 2012, Neroni’s Amended Complaint contains that
same contention. (See Am. Compl. ¶ 15.) Neroni, however, has offered
no objection to defendants’ repeated explanation that the trial on damages
has been adjourned without date. (See Dkt. No. 7, Attach. 1 at 4; Dkt. No.
7, Attach. 3).
3
Justice Becker fosters a decades-old bias against him, as evidenced by a
litany of personal and professional acts of animus, including: prejudging
damages while acting as Surrogate Court Judge; allowing opposing
litigants to ignore legal requirements; disparaging Neroni in private and in
open court; using body language to show disfavor to Neroni’s legal
arguments; coaching opposing counsel; unlawfully financing the underlying
state action through the award of fees in a Surrogate Court proceeding;
and hiding transcripts. (See id. ¶¶ 16-26, 45, 47, 58-106.) After the instant
action was commenced, however, Justice Becker recused himself from the
state action. (See id. ¶ 56A; Dkt. No. 7, Attach. 1 at 1.)
III. Procedural History
On August 6, 2012, Neroni filed an Order to Show Cause seeking
various forms of preliminary and permanent injunctive relief. (See Dkt. No.
4.) After the court denied that request, Justice Becker and the State of
New York moved to dismiss Neroni’s Complaint pursuant to Fed. R. Civ. P.
12(b)(1) and (6). (See Dkt. No. 7.) In response, Neroni moved to amend
his Complaint and for partial summary judgment. (See Dkt. No. 12.)
IV. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) and 56 are well
4
settled and will not be repeated here. For a full discussion of those
standards, the court refers the parties to its prior decisions in Ellis v. Cohen
& Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010) and Wagner
v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), respectively.
V. Discussion
A.
Constitutional Arguments
Defendants contend that the abstention doctrine set forth in Younger
v. Harris, 401 U.S. 37 (1971), mandates dismissal of Neroni’s constitutional
challenges.4 (See Dkt. No. 7, Attach. 1 at 12-13.) Neroni counters that
Younger is a “politically tainted” and “shameful” opinion, and that the
4
Neroni raises multiple constitutional challenges. First, he argues
under various theories that N.Y. Judiciary Law § 487 is unconstitutional,
and that its application in the civil action against him represents a denial of
his due process rights. (See Am. Compl. ¶¶ 29-35B.) As part of this
argument, Neroni seeks partial summary judgment declaring that section
487 is criminal in nature. (See Dkt. No. 12, Attach. 1 at 3-10.) Next, he
contends that, because it precludes him from videotaping court
proceedings, and thereby preserving for appeal evidence of unfavorable
judicial body language and mannerisms, N.Y. Civ. Rights Law § 52 is
unconstitutional and violates his right to due process and a fair trial. (See
Am. Compl. ¶¶ 42-56B.) Finally, Neroni argues that, because his legal
counsel giving rise to the underlying action was not improper, he is being
deprived of due process by the continued litigation of the pending state
action. (See id. ¶¶ 107-11.) The court notes that, while Neroni references
the Equal Protection Clause of the Fourteenth Amendment in the
“Jurisdiction and Venue” section of his Amended Complaint, he articulates
no discernible Equal Protection argument. (See id. ¶ 1.)
5
doctrine of abstention which it articulates “is in itself unconstitutional.” (Dkt.
No. 12, Attach. 1 at 18.) The court agrees with defendants.
In furtherance of the principles of comity and federalism, “Younger
generally prohibits courts from taking jurisdiction over federal constitutional
claims that involve or call into question ongoing state proceedings so as to
avoid unnecessary friction.” Spargo v. N.Y. State Comm’n on Judicial
Conduct, 351 F.3d 65, 75 (2d Cir. 2003) (internal quotation marks and
citation omitted). Specifically, Younger mandates abstention “when: (1)
there is a pending state proceeding, (2) that implicates an important state
interest, and (3) the state proceeding affords the federal plaintiff an
adequate opportunity for judicial review of his or her federal constitutional
claims.” Id. Although Younger abstention originated in relation to criminal
prosecutions, it has since been extended to the civil context. See
Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992).
Even where the Younger elements are met, “a federal court may still
intervene in state proceedings if the plaintiff demonstrates bad faith,
harassment or any other unusual circumstance that would call for equitable
relief.” Spargo, 351 F.3d at 75 n.11. To invoke the “bad faith” exception,
“the federal plaintiff must show that the state proceeding was initiated with
6
and is animated by a retaliatory, harassing, or other illegitimate motive.”
Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 199 (2d Cir. 2002).
Invocation of the “unusual circumstances” exception is appropriate only
where “the state court [is] incapable of fairly and fully adjudicating the
federal issues before it.” Kugler v. Helfant, 421 U.S. 117, 124 (1975).
Here, the pending state proceeding implicates regulation of attorney
conduct, which is undoubtedly an important state interest. See Anonymous
v. Ass’n of the Bar of the City of N.Y., 515 F.2d 427, 432 (2d Cir. 1975).
Furthermore, Neroni makes no argument that he is or was precluded from
raising his constitutional challenges in the underlying state proceeding.
(See Dkt. No. 12, Attach. 1 at 17-19.) Instead, he argues that to do so
would be “an exercise in futility” because “New York state courts have too
much of an [sic] reputational interest invested in ruling against” him, and
that “too many careers and public embarrassment are on the line for the
state courts to budge and admit to clear jurisdictional mistakes made in”
the state action. (Id. at 10, 18 (emphasis in original).)
To the extent that this claim is an attempt to invoke the “unusual
circumstances” exception to Younger, it fails. Neroni has provided nothing
beyond speculation and conjecture which would inspire in the court any
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inkling that the state court is incapable of “fairly and fully adjudicating the
federal issues” raised. Kugler, 421 U.S. at 124. Additionally, Neroni’s
concerns of prejudice by Justice Becker are assuaged by his recusal, and
Neroni’s contention that, in the wake of that recusal, the “New York State
Supreme Court continues to assign to [his] cases disqualified judges” is
supported only by irrelevant and conclusory speculation. (Am. Compl. ¶
56A.) As such, Neroni has failed to meet his burden of establishing the
applicability of a Younger exception.5
Accordingly, because each of the Younger elements is satisfied, and
neither exception applies, the court must abstain from consideration of, and
therefore dismiss, Neroni’s constitutional claims.6 See Spargo, 351 F.3d at
5
In addition to the factual insufficiency of Neroni’s argument, the
legal arguments adduced by his counsel are, to put it mildly, unfounded.
For instance, the contention that “Younger abstention is a creature of the
cold war era” that “should not be on the books in the first place,” (Dkt. No.
12, Attach. 1 at 18), fails to account for the extension of that doctrine over
the subsequent four decades. Furthermore, despite Neroni’s insistence
that Younger abstention “allows the court to allow state courts to enforce
in good faith, no less, facially unconstitutional actions by the government,”
(id.), Younger “rests foursquare on the notion that, in the ordinary course,
a state proceeding provides an adequate forum for the vindication of
federal constitutional rights,” Diamond “D” Const. Corp., 282 F.3d at 198
(internal quotation marks and citations omitted).
6
Although abstention “is mandatory when the requirements for
Younger . . . are satisfied, Younger is not a jurisdictional bar based on
8
74. Because Neroni’s motion for partial summary judgment is part and
parcel of his constitutional challenge of N.Y. Judiciary Law § 487,
application of Younger abstention requires denial of that motion as well.7
B.
Remaining Requests for Relief
In addition to redress for alleged constitutional infirmities, Neroni
seeks both prospective and retrospective injunctive relief relating to Justice
Becker. (See Am. Compl. ¶ 106.) These claims, too, require dismissal.
First, despite Justice Becker’s recusal in the underlying action, Neroni
requests that he be “permanently enjoined from presiding over cases
where [Neroni] is a party.” (Id.) A party seeking permanent injunctive relief
“must demonstrate (1) irreparable harm . . . and (2) actual success on the
merits.” Ognibene v. Parkes, 671 F.3d 174, 182 (2d Cir. 2011).
“Irreparable harm is an injury that is not remote or speculative but actual
and imminent, and for which a monetary award cannot be adequate
compensation.” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d
Article III requirements, but instead a prudential limitation on the court’s
exercise of jurisdiction grounded in equitable considerations of comity.”
Spargo, 351 F.3d at 74.
7
Additionally, Neroni failed to comply with N.D.N.Y. L.R. 7.1(a)(3),
which, in and of itself, constitutes sufficient grounds for denial of his
motion for partial summary judgment.
9
27, 37 (2d Cir. 1995) (internal quotation marks and citation omitted).
Plainly, Neroni’s pleadings fail to satisfy either prong, and defendants’
motion to dismiss is granted as to this request.8 See Shelly v. Brandveen,
No. 06 CV 1289, 2006 WL 898071, at *2-3 (E.D.N.Y. Apr. 3, 2006); see
also Rosendale v. Lankenau Kovner & Bickford, No. 89 CIV. 5382, 1989
WL 151235, at *5 (S.D.N.Y. Dec. 6, 1989) (“The decision of a state judge to
recuse himself is a matter of state court concern. Plaintiff may proceed
through the appellate process of the New York state courts if he so
wishes.”).
Next, Neroni requests that “all [of Justice] Becker’s decisions in cases
where [Neroni] was a party [be] voided.” (Am. Compl. ¶ 106.) Because the
Eleventh Amendment “prohibits an action in federal court seeking
retrospective relief against a State,” this claim is also dismissed.9 Colbeth
8
The court notes that, in light of the immunity enjoyed by state court
judges relating to acts taken in their judicial capacity, at least one similar
request for prospective injunctive preclusion brought within this Circuit was
found to be frivolous. See Montesano v. New York, No. 05 CV
9574(GBD), 05 CV 10624(GBD), 2006 WL 944285, at *5 (S.D.N.Y. Apr.
12, 2006).
9
Neroni’s counsel makes multiple baseless legal arguments
regarding sovereign immunity. For example, her contention that the
Eleventh Amendment permits suits by citizens of a state against their own
State, and that any Supreme Court interpretation otherwise “does not
10
v. O’Rourke, 707 F.2d 57 (2d Cir. 1983); see Montesano v. New York, No.
05 CV 9574 (GBD), 05 CV 10624(GBD), 2006 WL 944285, at *4 (S.D.N.Y.
Apr. 12, 2006) (“Neither damages, injunctive nor declaratory relief is
available to be used as a vehicle for disgruntled litigants to reverse adverse
judgments.”); see also MacPherson v. Town of Southampton, 664 F. Supp.
2d 203, 211 (E.D.N.Y. 2009) (“[T]o the extent Plaintiffs’ declaratory claims
are retrospective in nature in that they seek a declaration that the Justices’
past [actions] violated the Constitution, they are barred by the doctrine of
absolute immunity.”)
Accordingly, Neroni’s requests that Justice Becker be permanently
enjoined from presiding over cases in which he is a party, and that any
decision made by Justice Becker in a case in which he was formerly a
party be voided, are dismissed.
C.
Costs, Attorneys’ Fees and Sanctions
control and is void,” (Dkt. No. 12, Attach. 1 at 21), is in direct conflict with
nearly 123 years of such Supreme Court precedent, see Hans v.
Louisiana, 134 U.S. 1 (1890). Neroni’s counsel takes aim next at the
Constitution itself, arguing that “the so-called ‘sovereign immunity’ does
not take into account the fact that the sovereign in the State of New York
is the People, not the government, and thus the doctrine of sovereign
immunity does not have a conceivable legal basis.” (Dkt. No. 12, Attach. 1
at 21.) To this, the court directs counsel to the text of the Eleventh
Amendment and Fed. R. Civ. P. 11(b)(2).
11
In requesting dismissal of Neroni’s claims, defendants seek costs and
reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988. (See Dkt. No. 7,
Attach. 1 at 16.) Because defendants did not provide any documentation
upon which the court could quantify costs or attorneys’ fees, however, this
request is denied with leave to renew.10
VI. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Neroni’s motion to amend is GRANTED and his
Amended Complaint (Dkt. No. 12, Attach. 2) is adopted and deemed filed;
and it is further
ORDERED that Neroni’s motion for partial summary judgment (Dkt.
No. 12) is DENIED; and it is further
ORDERED that defendants’ motion to dismiss (Dkt. No. 7) is
GRANTED with the exception that defendants’ request for costs and
attorneys’ fees is DENIED with leave to renew; and it is further
ORDERED that Neroni’s Amended Complaint (Dkt. No. 12, Attach. 2)
is DISMISSED; and it is further
10
While Neroni’s counsel argues against the imposition of sanctions,
(see Dkt. No. 9 at 3; Dkt. No. 12, Attach. 3 ¶¶ 12-13, 15-16), no Rule 11
motion is presently before the court.
12
ORDERED that the clerk close the case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
December 21, 2012
Albany, New York
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