Neroni v. Becker et al
Filing
46
MEMORANDUM-DECISION and ORDER - That defendants' 7 motion to dismiss is GRANTED. That Neroni's amended complaint (Dkt. No. 12, Attach. 2) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 6/5/2014. (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.) On December 21, 2012, the court granted
defendants’ motion to dismiss. (Dkt. No. 19.) On appeal, the Second
Circuit affirmed in part, but vacated the court’s decision to abstain from
Neroni’s constitutional claims pursuant to Younger v. Harris, 401 U.S. 37
(1971), and remanded the case with instructions to reconsider this issue.
(Dkt. No. 42.) For the reasons that follow, the court concludes that
abstention remains proper.
II. Background1
A.
Facts
This action is predicated, in part, on the alleged unconstitutional
application of New York statutes in an underlying state civil action, Mokay
v. Mokay, No. 2007-695, in which Neroni, a former attorney, is a defendant.
(Am. Compl. ¶¶ 1-28.) In Mokay, the children of a former Neroni client
1
Familiarity with the underlying facts is presumed, but, for context,
the court provides a brief recitation of the relevant facts. The facts are
drawn from Neroni’s amended complaint and presented in the light most
favorable to him.
2
brought suit against him in Delaware County, alleging, among other things,
a violation of N.Y. Judiciary Law § 487, which generally states that an
attorney who intentionally deceives the court or a party is both guilty of a
misdemeanor and liable to the injured party for treble damages in a civil
proceeding. (Id. ¶¶ 6, 9); see also Mokay v. Mokay, 67 A.D.3d 1210, 1211
(3d Dep’t 2009).
At the time this action was commenced, Justice Becker presided over
the underlying state claim in his role as Acting Supreme Court Justice.
(Am. Compl. ¶¶ 8, 44.) After the instant action was commenced, however,
Justice Becker recused himself from the state action. (Dkt. No. 7, Attach. 1
at 1.) Ultimately, in Mokay, partial summary judgment on the question of §
487 liability was entered against Neroni and subsequently affirmed by the
Appellate Division, Third Department. (Am. Compl. ¶ 7); see also Mokay,
67 A.D.3d at 1211-13. A trial on the issue of damages remains pending.
(Dkt. No. 7, Attach. 1 at 4; Dkt. No. 45 at 4.) Ultimately, Neroni was
disbarred based in large part on the misconduct at issue in Mokay. See In
re Neroni, 86 A.D.3d 710, 710-11 (3d Dep’t 2011).
B.
Procedural History
On August 6, 2012, Neroni moved for various forms of preliminary
3
and permanent injunctive relief by order to show cause. (Dkt. No. 4.) After
the court denied that application, (Dkt. No. 6), defendants moved to dismiss
Neroni’s complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6). (Dkt. No.
7.) In response, Neroni moved to amend his complaint and for partial
summary judgment. (Dkt. No. 12.)
On December 21, 2012, the court granted Neroni’s motion to amend,
deemed his amended complaint filed, denied his partial motion for
summary judgment, and granted defendants’ motion to dismiss. (Dkt. No.
19.) First, the court dismissed Neroni’s constitutional claims after finding
that it must, under the doctrine set forth in Younger, abstain from
considering those claims. (Dkt. No. 19 at 5-9.) Second, the court held that
Neroni’s claims for retrospective relief relating to Justice Becker are barred
by the Eleventh Amendment and his claims for prospective injunctive relief
fail because Neroni could not demonstrate irreparable harm or success on
the merits. (Id. at 9-11.)
Neroni appealed, (Dkt. No. 30), and while his appeal was pending,
the Supreme Court decided Sprint Communications, Inc. v. Jacobs, 134 S.
Ct. 584, 591 (2013), which clarified the limited circumstances under which
abstention is proper. Consequently, the Second Circuit affirmed the court’s
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dismissal of Neroni’s requests for prospective and injunctive relief relating
to Justice Becker, but vacated the court’s decision to abstain from Neroni’s
constitutional claims pursuant to Younger, and remanded with instructions
to consider whether abstention remains appropriate in light of the Supreme
Court’s recent decision in Sprint. (Dkt. No. 42.) Following remand, the
court permitted the parties to brief the issue identified by the Circuit, (Dkt.
No. 43); each party submitted a brief, (Dkt. Nos. 44, 45).
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of this standard, the
court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz,
LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
Defendants contend that abstaining from considering the
constitutionality of certain New York statutes 2 was appropriate because
2
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. (Am. Compl. ¶¶ 29-35B.) 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. Civil Rights Law § 52 is unconstitutional and violates his
5
Mokay is a state civil enforcement proceeding that is quasi-criminal in
nature. (Dkt. No. 44 at 6-7.) Neroni, however, counters that abstention is
improper because Mokay does not fit within any of the three circumstances
under which the Supreme Court has held that abstention is mandated.
(Dkt. No. 45 at 3-10.) The court agrees with defendants.
A.
Younger Jurisprudence
Because “Sprint was merely a restatement of the abstention
principles found in the Court’s existing precedent,” ACRA Turf Club, LLC v.
Zanzuccki, No. 13-3064, 2014 WL 1272859, at *3 (3d Cir. Mar. 31, 2014), a
brief overview of Younger and its progeny is useful. In Younger, the
Supreme Court held that federal courts may not enjoin pending state court
criminal prosecutions absent special circumstances such as bad faith or
harassment. 401 U.S. at 41, 54. Later, in Huffman v. Pursue, Ltd., 420
U.S. 592 (1975), the Court expanded application of the abstention doctrine
right to due process and a fair trial. (Id. ¶¶ 42-56B.) Finally, Neroni
argues that, because the legal counsel that he provided that gave rise to
the underlying action was not improper, he is being deprived of due
process by the continued litigation of the pending state action. (Id. ¶¶ 10711.) 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. (Id. ¶ 1.)
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to civil proceedings. The Court reasoned that the nuisance proceeding at
issue in Huffman, to which the state was a party, was “in important
respects . . . more akin to a criminal prosecution than are most civil cases.”
Id. at 604. Later still, the Court further expanded Younger to civil cases in
which a state is not a party, but which involve the authority of the state
judicial system to enforce its orders and judgments. See Juidice v. Vail,
430 U.S. 327, 336 n.12 (1977) (applying Younger to challenges to civil
contempt orders).
Next, in Middlesex County Ethics Committee v. Garden State Bar
Association, 457 U.S. 423, 425 (1982), the Court addressed the
applicability of Younger abstention to state bar administrative proceedings.
The Court set out three factors in considering this question: “first, do state
bar disciplinary hearings . . . constitute an ongoing state judicial
proceeding; second, do the proceedings implicate important state interests;
and third, is there an adequate opportunity in the state proceedings to raise
constitutional challenges.” Middlesex, 457 U.S. at 432. After Middlesex,
“courts demonstrated greater and greater willingness to abstain from
adjudicating federal claims in deference to ongoing state proceedings” and
“strictly and mechanically applied the three-part test from Middlesex.”
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ACRA Turf Club, 2014 WL 1272859, at *6.
In Sprint, however, relying on its most recent Younger decision, New
Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S.
350 (1989), the Court explained that Younger is not generally applicable to
all cases that involve parallel state and federal proceedings. 134 S. Ct. at
590-91. Instead, the Court noted that federal intrusion into ongoing state
proceedings is precluded, and abstention is warranted, only in three
“exceptional circumstances”: (1) “ongoing state criminal prosecutions”; (2)
“certain civil enforcement proceedings”; and (3) “pending civil proceedings
involving certain orders [that are] uniquely in furtherance of the state courts’
ability to perform their judicial functions.” Id. at 591 (internal quotation
marks and citations omitted). The Court further clarified that “[t]he three
Middlesex conditions . . . [are] not dispositive; they [are], instead, additional
factors appropriately considered by the federal court before invoking
Younger.” Id. at 593.
B.
Application
Here, the question before the court is whether the underlying state
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proceeding, Mokay,3 fits within one of the three “exceptional
circumstances” identified in Sprint. Id. at 591. Specifically, the court must
determine whether Mokay fits within the second circumstance—civil
enforcement proceedings. 4 As explained below, the court concludes that it
does.
As an initial matter, the Supreme Court’s decisions applying Younger
to instances of civil enforcement actions have generally concerned state
proceedings “akin to a criminal prosecution” in “important respects.”
Huffman, 420 U.S. at 604; see Middlesex, 457 U.S. at 432 (holding that
Younger abstention was appropriate where “noncriminal proceedings bear
a close relationship to proceedings criminal in nature”). “Such enforcement
3
In his brief, Neroni contends that there are, in fact, two additional
underlying state proceedings that are relevant to this analysis. (Dkt. No.
45 at 4-10.) Neroni’s amended complaint, however, makes no mention of
these two state proceedings, and instead, focuses solely on Mokay. (See
generally Am. Compl.) Because the two additional state proceedings have
no relevance to this action, the court does not consider them.
4
Defendants also contend that Mokay fits within the third
circumstance identified in Sprint. (Dkt. No. 44 at 7-8.) Because
defendants fail to point to any specific orders issued in Mokay that are
“uniquely in furtherance of the state courts’ ability to perform [its] judicial
functions,” Sprint, 134 S. Ct. at 591 (internal quotation marks and citations
omitted), the court disagrees. Defendants do not argue that Mokay fits
within the first circumstance.
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actions are characteristically initiated to sanction the federal plaintiff, i.e.,
the party challenging the state action, for some wrongful act.” Sprint, 134
S. Ct. at 592 (citing Middlesex, 456 U.S. at 433-34). The Court has also
stated that “[i]n cases of this genre, a state actor is routinely a party to the
state proceeding and often initiates the action.” Id. (citations omitted).
Further, “[i]nvestigations are commonly involved, often culminating in the
filing of a formal complaint or charges.” Id. A final consideration is
“whether the State could have alternatively sought to enforce a parallel
criminal statute.” ACRA Turf Club, 2014 WL 1272859, at *9.
As mentioned above, in Mokay, the children of Neroni’s former client
brought suit against him based on § 487 of the Judiciary Law. Mokay, 67
A.D.3d at 1210-12. 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.
Mokay, therefore, was commenced in order to sanction Neroni for wrongful
conduct—committing a fraud upon the court. See Sprint, 134 S. Ct. at 592.
Furthermore, in addition to the fact that the plain language of § 487
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criminalizes deceitful or fraudulent conduct by attorneys, New York state
courts have consistently recognized that § 487 is rooted in criminal law.
See Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14 (2009) (“As this history
shows, section 487 is not a codification of a common-law cause of action
for fraud. Rather, section 487 is a unique statute of ancient origin in the
criminal law of England.”); People v. Canale, 240 A.D.2d 839, 841 (3d
Dep’t 1997) (noting that “there is a dearth of criminal cases brought under
Judiciary Law § 487”); Dupree v. Voorhees, 876 N.Y.S.2d 840, 847 (N.Y.
Sup. Ct. 2009) (stating that “the history of Judiciary Law § 487 is rooted in
criminal law, not tort law”). Accordingly, the state could have sought to
commence criminal proceedings under § 487. See ACRA Turf Club, 2014
WL 1272859, at *6; Canale, 240 A.D.2d at 841.
In fact, the judgment against Neroni in Mokay led directly to the filing
of formal disciplinary charges and a proceeding brought by the state
against Neroni, which culminated in Neroni’s disbarment—another factor
that nudges this court to lean toward abstention. See In re Neroni, 86
A.D.3d at 710-11 (“Respondent’s misconduct was set forth in Mokay v.
Mokay, 67 A.D.3d 1210, 889 N.Y.S.2d 291 [2009].”); see also Sprint, 134
S. Ct. at 592. Indeed, as the Supreme Court has noted, states “ha[ve] an
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extremely important interest in maintaining and assuring the professional
conduct of the attorneys it licenses” and “traditionally have exercised
extensive control over the professional conduct of attorneys.” Middlesex,
457 U.S. at 434.
As Neroni points out, however, Mokay was not state-initiated, nor
was the state a party to the proceeding. (Dkt. No. 45 at 6.) Nevertheless,
in Sprint, the Supreme Court stated only that “a state actor is routinely a
party . . . and often initiates the action” in civil enforcement actions; it did
not hold that this is a necessary element. Sprint, 134 S. Ct. at 592
(emphasis added). In fact, aside from this fact, Mokay bears much of the
indicia of a civil enforcement proceeding as it is described in Sprint: (1) it
was commenced to sanction Neroni for his wrongful conduct; (2) given the
criminal element of § 487, the state could have brought a criminal action
against Neroni based on the same conduct; and (3) it culminated, albeit
through a separate action, in the filing of formal disciplinary charges and
additional sanctions against Neroni.
Accordingly, Mokay is properly categorized as a civil enforcement
proceeding, and the court may rightfully invoke Younger. Finally, because
the court already found that Mokay meets the “additional” Middlesex
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factors, (Dkt. No. 19 at 5-9); Sprint, 134 S. Ct. at 593 (emphasis removed),
and finds no reason to disrupt that finding now, it is satisfied that it properly
abstained from considering Neroni’s constitutional claims in granting
defendants’ motion to dismiss.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion to dismiss (Dkt. No. 7) is
GRANTED; and it is further
ORDERED that Neroni’s amended complaint (Dkt. No. 12, Attach. 2)
is DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
June 5, 2014
Albany, New York
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