Anthony v. Murphy

Filing 7

ORDER AND REPORT-RECOMMENDATION: It is Ordered that the # 2 Motion to proceed in forma pauperis is DENIED AS MOOT, further Ordered that the # 5 Second Motion to proceed in forma pauperis is GRANTED solely for the purpose of this initial review, p laintiff's # 1 Complaint was superseded by the # 4 Amended/Supplemental Complaint filed by Charles J. Anthony, Sr., It is Recommended that the # 4 Amended/Supplemental Complaint be DISMISSED WITH PREJUDICE pursuant to 28 USC section 1915(e). (Objections to R&R due by 5/15/2015, Case Review Deadline 5/19/2015) Signed by Magistrate Judge Therese Wiley Dancks on 4/28/2015. {Copy of this Order sent to the pro se plaintiff by regular mail} (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
CHARLES J. ANTHONY, SR.,
Plaintiff,
5:15-CV-00450
(DNH/TWD)

v.
HON. JAMES P. MURPHY,
Defendant.
_____________________________________________
APPEARANCES:
CHARLES J. ANTHONY, SR.
Plaintiff pro se
8819 Gaskin Road
Clay, New York 13041
THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION
Plaintiff Charles J. Anthony, Sr., submitted a pro se complaint against Defendant New
York State Supreme Court Justice James P. Murphy on April 15, 2015. (Dkt. No. 1.) Plaintiff
also submitted an application to proceed in forma pauperis (“IFP application”). (Dkt. No. 2.)
Before the Court issued its Order and Recommendation on Plaintiff’s IFP application and on its
initial review of Plaintiff’s complaint, Plaintiff filed a superseding amended/supplemental
complaint (Dkt. No. 4) and a second IFP application (Dkt. No. 5), which the Clerk has submitted
to the Court for review.1

1

Even though Plaintiff’s original complaint is superseded by his amended/supplemental
complaint, in light of Plaintiff’s pro se status, the Court has considered the allegations in, and
attachments to, both Plaintiff’s original and amended/supplemental complaints upon its initial
review.

I.

PLAINTIFF’S IFP APPLICATION
Plaintiff’s second IFP application is the same application initially submitted. (See Dkt.

Nos. 2 and 5.) It is a New York State court IFP application form rather than the IFP application
used in the Northern District of New York.2 The application reveals monthly Social Security
benefits of $1,802 and a monthly pension payment of $ 663.92 for an annual income of
$29,591.04. (Dkt. No. 6 at 1.) Plaintiff has listed no income from other sources. Id. Plaintiff
has listed a bank account with approximately $27.00. Id. at 2. For all property with an estimated
value over $300.00, Plaintiff has listed two real properties in which he has no equity. Id. One of
the properties, located at 4268 Gemini Path, Liverpool, New York, is the subject of the
underlying foreclosure action. Id.
Unlike the IFP application used in the Northern District of New York, the New York
State IFP application requires that only extraordinary out-of-pocket expenses, not housing,
utilities, or loan payments, or other regular monthly expenses be disclosed. Therefore, most of
the information on expenses required in the federal IFP application has not been included. Id.
Plaintiff has indicated in his State IFP application that he is several months behind in utility bills,
he cannot work, and the Gemini Path property is in foreclosure. Id.
Because Plaintiff’s application is incomplete in that it fails to include information
regarding his regular expenses, the Court cannot determine whether his expenses, when

2

The IFP application used in the Northern District of New York is Form AO 240 (Rev.
07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form).
2

considered with his lack of assets and other circumstances, warrant in forma pauperis status
despite the regular monthly income disclosed by him. Nonetheless, because the Court will
recommend dismissal of the action on initial review under 28 U.S.C. § 1915(e), the Court grants
Plaintiff’s second IFP application (Dkt. No. 6) solely for purposes of initial review.
II.

LEGAL STANDARDS FOR INITIAL REVIEW
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C.

§ 1915(e) directs that when a plaintiff proceeds in forma pauperis, “the court shall dismiss the
case at any time if the court determines that . . . the action . . . (I) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the
complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989). “An action is frivolous when either: (1) the factual contentions are clearly baseless such
as when the claims are the product of delusion or fantasy; or (2) the claim is based on an
indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437
(2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution
should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse
party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin,
700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not
frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260
(2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua
sponte if the complaint is frivolous).
3

To survive dismissal for failure to state a claim, a complaint must plead enough facts to
state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(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 misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil
Procedure, which sets forth the general rules of pleading, “does not require detailed factual
allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation.” Id.
In determining whether a complaint states a claim upon which relief may be granted, “the court
must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)
(citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to
raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed “without
giving leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.
1999) (citation and internal quotation marks omitted). An opportunity to amend is not required
where “the problem with [the plaintiff’s] causes of action is substantive” such that “better
pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

4

III.

PLAINTIFF’S COMPLAINT AND AMENDED/SUPPLEMENTAL COMPLAINT
The Bank of America commenced a mortgage foreclosure action against Plaintiff in the

New York State Supreme Court, County of Onondaga, on June 26, 2013. (Dkt. No. 1 at 6.) The
Index No. for the state court action is 2013-3396. Id. The property being foreclosed upon in the
action is located at 4268 Gemini Path, Liverpool, New York. Id. According to Plaintiff, no
payments have been made on the mortgage since 2008, and an earlier foreclosure action,
commenced in 2009, was previously dismissed. Id. at 13. Although the details of the state
foreclosure action and its present status are not entirely clear from the complaint and
amended/supplemental complaint and other submissions, it appears that a default judgment has
been entered in the foreclosure action, and that Plaintiff attempted to file a notice of appeal.
(Dkt. Nos. 1 at 6, 13-14; 4 at 4-8.)
Justice Murphy was assigned to the state foreclosure action. (Dkt. No. 4 at 1.) He is
being sued by Plaintiff for judicial malpractice and treason3 in connection with his handling of
the foreclosure action. Id. Plaintiff contends that Justice Murphy acted in the clear absence of
jurisdiction because the Bank of America is incorporated in the State of Delaware where the
statute of limitations on a foreclosure action is three years, and Bank of America is bound by the
statute of limitations in the state in which it is located. Id. Plaintiff also claims that Justice
Murphy committed error in handling a dispute over the adequacy of service of process in the

3

Plaintiff added a treason cause of action in his amended/supplemental complaint. (Dkt.
No. 4 at 1.) However, there is nothing in either the original complaint or the
amended/supplemental complaint that supports a claim for treason, and the Court finds the claim
to be frivolous. See Neitzke, 490 U.S. at 325.
5

foreclosure action.
Id. at 12.
IV.

ANALYSIS
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen

Equip. & Erec. Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal jurisdiction exists only when a
“federal question” is presented (28 U.S.C. § 1331), or where there is “diversity of citizenship”
and the amount in controversy exceeds $75,000.00 (28 U.S.C. § 1332). See Perpetual Sec., Inc.
v. Tang, 290 F.3d 132, 136 (2d Cir. 2002). Federal question jurisdiction exists where the
“complaint established either that federal law creates the cause of action or that plaintiff’s right to
relief necessarily depends on resolution of a substantial question of federal law.” Greenberg,
Bear, Stearns & Co., 220 F.3d 22, 25 (2d Cir. 2000) (internal quotation marks omitted). There
are no allegations in the complaint or amended/supplemental complaint suggesting diversity of
citizenship between Plaintiff and Justice Murphy, and even if there were a recognized claim for
judicial malpractice, it would be a state law claim over which the federal court is without subject
matter jurisdiction.4
Furthermore, even if the federal district court had subject matter jurisdiction over
Plaintiff’s judicial malpractice claim, it is well-established that judges have absolute immunity
from suit for acts performed in their judicial capacities. Bradley v. Fisher, 13 Wall 335, 80 U.S.

4

In Multani v. U.S. Dept. of Justice Solicitor General-U.S.A., No. 97-CV-628A, 1998
WL 951813, at * 1, 1998 U.S. Dist. LEXIS 20770, at * 5 (W.D.N.Y. July 20, 1998) (Heckman,
M.J.), the court, noting that a judge cannot be held liable for damages on account of actions
performed in the exercise of judicial duties, even if the action was in error, was done maliciously,
or was in excess of authority, unless the action was taken in clear absence of all jurisdiction,
rejected the plaintiff’s claim for judicial malpractice asserted against state and federal courts.
6

335 (1871); accord, Mireles v. Waco, 502 U.S. 9, 10 (1991) (per curiam) (holding that “judiciary
immunity is an immunity from suit, not just from the ultimate assessment of damages”) (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Immunity from suit is overcome in only two
narrow circumstances. “First, a judge is not immune from liability for non-judicial actions, i.e.,
actions not taken in a judge’s judicial capacity.” Mireles, 502 U.S. at 11. “Second, a judge is not
immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.”
Id.
The Supreme Court has “generally concluded that acts arising out of, or related to,
individual cases before the judge are judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d
Cir. 2009). Judges enjoy absolute immunity even when a plaintiff offers allegations of “bad faith
or malice.” Mireles, 502 U.S. at 11. A judge cannot “be deprived of immunity because the
action he took was in error . . . or was in excess of authority.” Id. at 13 (quoting Stump v.
Sparkman, 435 U.S. 349, 356 (1978)).
Plaintiff claims that because the statute of limitations has expired, Justice Murphy is
presiding over the foreclosure action in the clear absence of subject matter jurisdiction and can,
therefore, be sued and held liable for damages. (Dkt. No. 1 at 1.) However, a complete absence
of jurisdiction means that a court acts “when it does not have any statutory or constitutional
power to adjudicate the case.” Gross v. Rell, 585 F.3d 72, 84 (2d Cir. 2009).
It is fundamental that Article VI, § 7 of the New York Constitution establishes the State
Supreme Court as a court of “general jurisdiction in law and equity.” Const. art. VI, §7(a).
Under the state constitution’s grant of authority, “the Supreme Court is competent to entertain all
causes of action unless its jurisdiction has been specifically proscribed.” Sohn v. Calderon, 579
7

N.Y.S.2d 940, 944 (1991). “That [the Supreme Court’s] original jurisdiction extends to
mortgage foreclosure actions is unquestionable.” Bank of America, NA v. Simon, No.
63558/2014, 2015 WL 1343092, at * 1, 2015 U.S. Dist. LEXIS 844, at * 4-5 (N.Y. Sup. Ct.
March 24. 2015).
Based upon the foregoing, the Court recommends that Plaintiff’s amended/supplemental
complaint be dismissed for lack of subject matter jurisdiction, judicial immunity, and failure to
state a claim.5 The Court further recommends that the dismissal be with prejudice inasmuch as
the problems with Plaintiff’s claim are substantive and cannot be cured by a better pleading.6
ACCORDINGLY, it is hereby
ORDERED, that Plaintiff’s original IFP application (Dkt. No, 2) is DENIED AS
MOOT; and it is further
ORDERED, that Plaintiff’s second IFP application (Dkt. No. 5) is GRANTED
SOLELY FOR THE PURPOSE OF THIS INITIAL REVIEW; and it is further
ORDERED, that Plaintiff’s original complaint (Dkt. No. 1) is superseded by his
amended/supplemental complaint (Dkt. No. 4); and it is
RECOMMENDED, that Plaintiff’s amended/supplemental complaint (Dkt. No. 4) be
DISMISSED WITH PREJUDICE upon initial review under 28 U.S.C. § 1915(e); and it is

5

The Court’s recommendation would be the same were its initial review directed solely
to Plaintiff’s original complaint. (Dkt. No. 1.)
6

Because the status of the state foreclosure action is not clear from the complaint or
amended/supplemental complaint, the Court cannot consider the applicability of the RookerFeldman doctrine at this point. See Hoblock v. Albany Cnty. Bd. of Elecs., 422 F.3d 77, 84 (2d
Cir. 2005) (a federal district court does not have subject matter jurisdiction “over suits that are, in
substance, appeals from state-court judgments.”)
8

ORDERED, that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions in Multani v. U.S. Dept. of
Justice Solicitor General-U.S.A., No. 97-CV-628A, 1998 WL 951813 (W.D.N.Y. July 20, 1998)
and Bank of America, NA v. Simon, No. 63558/2014, 2015 WL 1343092 (N.Y. Sup. Ct. March
24. 2015) in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.

Dated: April 28, 2015
Syracuse, New York

9

Page 1
Slip Copy, 47 Misc.3d 1202(A), 2015 WL 1343092 (N.Y.Sup.), 2015 N.Y. Slip Op. 50363(U)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2015 WL 1343092 (N.Y.Sup.))

NOTE: THIS OPINION WILL NOT APPEAR IN A
PRINTED VOLUME. THE DISPOSITION WILL
APPEAR IN A REPORTER.
Supreme Court, Suffolk County, New York.
BANK OF AMERICA, NA, Plaintiff,
v.
Mirtha SIMON and “John Doe” and “Jane Doe” the
last two names being fictitious, said parties intended
being tenants or occupants, if any, having or claiming
an interest in, or lien upon the premises described in
the complaint, Defendants.
No. 63558/2014.
March 24, 2015.
Kozeny, mccubbin & katz, Melville, for Plaintiff.
Barry N. Frank & Assoc., PC, Whitestone, for Defendant Simon.
THOMAS F. WHELAN, J.
*1 Upon the following papers numbered 1 to 5
read on this motion by the defendant to dismiss this
action; Notice of Motion/Order to Show Cause and
supporting papers 1–3; Opposing Papers: 4–5; Reply
papers; it is,
ORDERED that this motion (# 001) by the defendant in this mortgage foreclosure action for an
order dismissing this action pursuant to CPLR
3211(a)(2) and/or (a)(8) is considered thereunder and
under CPLR 3012 and is denied.
The plaintiff commenced this action on May 12,
2014 to foreclose the lien of a June 2, 2008 mortgage
given by defendant Simon to a predecessor-in-interest

of the plaintiff to secure a mortgage note of the same
date in the principal amount of $362,137.00. Defendant Simon defaulted in answering the summons
and complaint which was served upon her on June 2,
2014 pursuant to CPLR 308(2), as did others persons
served as unknown defendant occupants of the mortgaged premises.
Following the initialization of this action, a settlement conference of the type mandated by CPLR
3408 was scheduled by quasi-judicial personnel assigned to the specialized mortgage foreclosure conference part for December 15, 2014. Defendant Simon's failed to appear for such conference and such
failure was duly noted in the record maintained in this
action. On December 16, 2014, this action was assigned to the case inventory of this court.
On February 3, 2015, defendant Simon appeared
by the uploading of a notice of appearance by her
counsel in the NYS Courts E–Filing System and the
simultaneous upload of the instant motion to dismiss
the complaint. The grounds for the motion relief are
two in number, the first being a purported lack of
personal jurisdiction over defendant Simon due to
improper service pursuant to CPLR 3211(a)(8). The
second ground is characterized by defense counsel as
one to dismiss for lack of subject matter jurisdiction
pursuant to CPLR 3211(a)(2). The plaintiff opposes
the motion in papers which challenge each predicate
ground for the relief requested as lacking in merit. For
the reasons stated below, the motion is denied.
“A process server's affidavit of service constitutes
prima facie evidence of proper service” ( Scarano v.
Scarano, 63 AD3d 716, 716, 880 N.Y.S.2d 682
[2dDept 2009]; see NYCTL 2009–A Trust v. Tsafatinos, 101 AD3d 1092, 1093, 956 N.Y.S.2d 571 [2d
Dept 2012] ). “Although a defendant's sworn denial of

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Slip Copy, 47 Misc.3d 1202(A), 2015 WL 1343092 (N.Y.Sup.), 2015 N.Y. Slip Op. 50363(U)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2015 WL 1343092 (N.Y.Sup.))
receipt of service generally rebuts the presumption of
unenforceability of the mortgage due to purported
proper service established by the process server's
violations of federal regulatory underwriting standaffidavit and necessitates an evidentiary hearing, no
ards on the part of the originator of the subject loan
hearing is required where the defendant fails to swear
and its purported acts of fraud in violation of federal
to specific facts to rebut the statements in the process
Fair Housing and Predatory Lending statutes.
server's affidavits” ( Countrywide Home Loans Serv.,
LP v. Albert, 78 AD3d at 984–985, 912 N.Y.S.2d 96
However, the court rejects this claim as wholly
[2d Dept 2010; internal quotation marks and citation
lacking in merit. “Subject matter jurisdiction has been
omitted]; see Mortgage Elec. Registration Sys., Inc. v.
defined as the power to adjudge concerning the genLosco, 125 AD3d 733, 2015 WL 542795 [2d Dept
eral question involved, and is not dependent upon the
2015]; JPMorgan Chase v. Todd, 125 AD3d 953,
state of facts which may appear in a particular case,
2015 WL 775077 [2d Dept 2015]; Emigrant Mtge.
arising, or which is claimed to have arisen, under that
Co., Inc. v. Westervelt, 105 AD3d 896, 897, 964
general question” ( Thrasher v. United States Liab.
N.Y.S.2d 543 [2d Dept 2013]; Countrywide Home
Ins. Co., 19 N.Y.2d 159, 166, 278 N.Y.S.2d 793
Loans Serv., LP v. Albert, 78 AD3d 983, 984–985,
[1967], quoting Hunt v. Hunt, 72 N.Y. 217, 229 [1878]
supra ).
). As “a court of original, unlimited and unqualified
*2 Here, the affidavit of service of the plaintiff's
process server constituted prima facie evidence of
proper service pursuant to CPLR 308(2) (see ACT
Prop., LLC v. Garcia, 102 AD3d 712, 957 N.Y.S.2d
884 [2d Dept.2013]; Bank of N.Y. v. Espejo, 92 AD3d
707, 708, 939 N.Y.S.2d 105 [2d Dept 2012]; US Natl.
Bank Assn. v. Melton, 90 AD3d 742, 743, 934
N.Y.S.2d 352 [2d Dept 2011] ), and the affidavit
submitted by the defendant Simon was insufficient to
rebut the presumption of proper service (see JPMorgan Chase v. Todd, 125 AD3d 953, supra; Carver
Fed. Sav. Bank v. Supplice, 109 AD3d 572, 970
N.Y.S.2d 706 [2d Dept 2013]; Bank of N.Y. v. Espejo,
92 AD3d 707, 708, supra ). Those portions of this
motion wherein defendant Simon seeks a dismissal of
the complaint pursuant to CPLR 3211(a)(8) is thus
denied.
The remaining portions of the this motion to
dismiss the complaint are also denied. Therein, defendant Simon claims that the court lacks subject
matter jurisdiction over the plaintiff's pleaded claim
for foreclosure and sale and thus demands dismissal of
the complaint pursuant to CPLR 3211(a)(2). Underlying this claim are allegations as to the invalidity or

jurisdiction” (Matter of Fry v. Village of Tarrytown,
89 N.Y.2d 714, 718, 658 N.Y.S.2d 205 [1997], quoting Kagen v. Kagen, 21 N.Y.2d 532, 537, 289
N.Y.S.2d 195 [1968] ), this court is vested with general original jurisdiction and is competent to entertain
all causes of actions (see McKinney's N.Y. Const. Art.
6, § 7[a] ), and it may do so unless it is specifically
proscribed elsewhere in our State Constitution or in
the Constitution of the United States or under some
pre-emptive federal statute (see Thrasher v. United
States Liab. Ins. Co., 19 N.Y.2d 159, supra ). Neither
an act of our state legislature nor contractual terms
between parties can divest this court of its general
original jurisdiction (see Pollicina v. Misericordia
Hosp. Med. Ctr., 82 N.Y.2d 332, 604 N.Y.S.2d 879
[1993]; Lischinskaya v. Carnival Corp., 56 AD3d 116,
865 N.Y.S.2d 334 [2d Dept 2008] ).
That this court's general original jurisdiction extends to mortgage foreclosure actions is unquestionable (see Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 242–244, 837 N.Y.S.2d 247 [2d
Dept 2007]; Security Pacific Natl. Bank v. Evans, 31
AD3d 278, 820 N.Y.S.2d 2 [1st Dept 2006] ). The
moving papers of defendant Simon failed to allege, let
alone demonstrate, that this court has been divested of

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
Slip Copy, 47 Misc.3d 1202(A), 2015 WL 1343092 (N.Y.Sup.), 2015 N.Y. Slip Op. 50363(U)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2015 WL 1343092 (N.Y.Sup.))
its general, original, subject matter jurisdiction over
this mortgage foreclosure by competent constitutional
provisions or acts of federal law.
*3 Defendant Simon's attempt to recast any
claims or defenses predicated upon federal statutory/regulatory violations she may have into a jurisdictional one sounding in a lack of subject matter jurisdiction so as to avoid the consequences of her default
in answering and her concomitant waiver of her right
to assert any standing defense or others premised upon
alleged statutory/regulatory violations to support this
motion to dismiss the complaint is flatly rejected by
this court as unmeritorious (see Deutsche Bank Trust
Co. Americas v. Cox, 110 AD3d 760, 973 N.Y.S.2d
662 [2d Dept 2013]; see also Browne v. Board of
Educ., 122 AD3d 563, 996 N.Y.S.2d 96 [2d Dept
2014]; Southstar III, LLC v. Enttienne, 120 AD3d
1332, 992 N.Y.S.2d 548 [2d Dept 2014]; New York
Commercial Bank v. J. Realty F Rockaway, Ltd., 108
AD3d 756, 969 N.Y.S.2d 796 [2d Dept 2013]; Aurora
Loan Serv., LLC v. Dimura, 104 AD3d 796, 962
N.Y.S.2d 304 [2d Dept 2013]; Ferri v. Ferri, 71 AD3d
949, 896 N.Y.S.2d 890 [2d Dept 2010] ).
In view of the foregoing, the instant motion (#
001) by defendant Simon to dismiss the complaint
served in this foreclosure action is in all respects denied.
N.Y.Sup.,2015.
Bank of America, NA v. Simon
Slip Copy, 47 Misc.3d 1202(A), 2015 WL 1343092
(N.Y.Sup.), 2015 N.Y. Slip Op. 50363(U)
END OF DOCUMENT

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 1
Not Reported in F.Supp., 1998 WL 951813 (W.D.N.Y.)
(Cite as: 1998 WL 951813 (W.D.N.Y.))

Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Gurdev MULTANI, Plaintiff,
v.
U.S./DEPARTMENT OF JUSTICE, et al., Defendants.
No. 97–CV–628A.
July 20, 1998.
ORDER
ARCARA.
*1 The above-referenced case was referred to
Magistrate Judge Carol E. Heckman pursuant to 28
U.S.C. § 636(b)(1)(B), on September 12, 1997. On
June 18, 1998, Magistrate Judge Heckman filed a
Report and Recommendation, recommending that
defendants' motions to dismiss should be granted,
plaintiff's motion for default judgment should be denied, and the complaint should be dismissed with
prejudice.
The Court having carefully reviewed the Report
and Recommendation, the record in this case, as well
as the pleadings and material submitted by the parties;
and no objections having been timely filed, it is hereby
ORDERED, that pursuant to 28 U.S.C. §
636(b)(1), and for the reasons set forth in Magistrate
Judge Heckman's Report and Recommendation, defendants' motions to dismiss are granted, plaintiff's
motion for default judgment is denied and the complaint is dismissed with prejudice.
IT IS SO ORDERED.

REPORT AND RECOMMENDATION
This case was referred to the undersigned by Hon.
Richard J. Arcara for pretrial matters and to hear and
report on dispositive motions, in accordance with 28
U.S.C. § 636(b). Defendants have moved to dismiss
the complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim
upon which relief can be granted, and plaintiff has
moved for default judgment. For the following reasons, it is recommended that the defendants' motions
be granted, and that plaintiff's motion be denied.
BACKGROUND
On August 8, 1997, plaintiff filed a complaint in
this court alleging “judicial malpractice” against various state and federal courts, agencies and officials for
dismissing a case originally brought by plaintiff in
New York State Supreme Court, Erie County. See
Multani v. U.S. Dept. of Justice, 233 A.D.2d 965, 649
N.Y.S.2d 311 (4th Dep't 1996), appeal dismissed, 89
N.Y.2d 938, cert. denied, ___ U.S.___, 117 S.Ct.
1701, 137 L.Ed.2d 827, 65 USLW 3753, reh'g denied,
___ U.S.___, 117 S.Ct. 2498, 138 L.Ed.2d 1004, 65
USLW 3839 (1997). In his federal court complaint,
plaintiff seeks one hundred trillion dollars in damages,
as demanded in the state court complaint, plus the
additional amount of five hundred trillion dollars, with
interest and costs. FN1
FN1. On March 17, 1998, plaintiff filed a
similar action in this court seeking five hundred trillion dollars in damages for “judicial
malpractice” based on the dismissal of an
action brought in New York State Supreme
Court, New York County (Multani v. Ross
University, et al., 98–CV–180A(H)).
Attached to the complaint are copies of orders
entered in the Multani v. U.S. Dept. of Justice case
indicating that on June 5, 1996, New York State Su-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Not Reported in F.Supp., 1998 WL 951813 (W.D.N.Y.)
(Cite as: 1998 WL 951813 (W.D.N.Y.))
preme Court Justice Robert J. Whelan dismissed the
action with prejudice, without opinion (Item 1, Ex. C).
On November 8, 1996, the Appellate Division, Fourth
Department, affirmed (id., Ex. D). On January 9,
1997, the New York Court of Appeals dismissed
plaintiff's appeal (id., Ex. E). On May 12, 1997, the
United States Supreme Court denied plaintiff's petition for certiorari review, and on June 23, 1997, denied plaintiff's petition for rehearing (id., Ex. A).
Plaintiff has not attached a copy of the complaint in
the state court case, and his federal court complaint
contains no allegations explaining the basis for that
lawsuit. Plaintiff simply alleges here that “[t]his instant case questions whether plaintiff, under the due
process [clause], was deprived of rights to know why
default Judgment was denied, b) have the issue examined on the basis of the theory” (id., p. 8).
*2 On September 10, 1997, the Attorney General
of the State of New York, on behalf of defendant
“Supreme Court of the State of New York, Appellate
Division, Fourth Department,” moved to dismiss the
complaint for failure to state a claim upon which relief
can be granted, and for lack of personal jurisdiction
(Item 3). On October 23, 1997, the Attorney General's
motion was refiled on behalf of all “state defendants”
(Item 9). On October 10, 1997, the United States Attorney, on behalf of defendant “U.S.A/Department of
Justice Solicitor General—U.S.A.” moved to dismiss
the complaint for failure to state a claim upon which
relief can be granted, and for lack of subject matter
jurisdiction (Item 7). On November 3, 1997, plaintiff
filed a motion for default judgment against all named
defendants (Item 11). For the following reasons, defendants' motions to dismiss should be granted, plaintiff's motion for default judgment should be denied,
and the complaint should be dismissed with prejudice.
DISCUSSION
I. Failure to State a Claim Upon Which Relief Can Be
Granted.
Under Rule 12(b)(6), the court is authorized to
dismiss a complaint for failure to state a claim upon

which relief can be granted where it is “beyond doubt
that the plaintiff can prove no set of facts in support of
his claims which would entitle him to relief.” Conley
v. Gibson, 355 U.S. 41, 45–46 (1957)(quoted in Cortec Industries, Inc. v. Sum Holding, L.P., 949 F.2d 42,
47 (2d Cir.1991)). While complaints filed by pro se
litigants are to be held to less stringent standards than
formal pleadings drafted by lawyers, see Haines v.
Kerner, 404 U.S. 519 (1972), the court should dismiss
a pro se compiaint on a Rule 12(b)(6) motion, without
granting leave to amend, where “statute or controlling
precedent clearly forecloses the pleading, liberally
construed.” Cameron v. Fogarty, 705 F.2d 676, 678
(2d Cir.1983).
As stated in Mallon v. Bartle, 1992 WL 276678
(E.D.Pa. September 30, 1992), a claim for “ ‘judicial’
malpractice ... is absurd, since this category of activity
is nonexistent.” Id. at *1; see also McDaniel v. Decastro, 1990 WL 106568 (N.D.Ill. July 12, 1990) (no
arguable basis for “judicial malpractice” claim). A
judge, or a court, cannot be held liable for damages on
account of actions performed in the exercise of judicial duties, even if the action was in error, was done
maliciously, or was in excess of authority, unless the
action was taken in “clear absence of all jurisdiction.”
Stump v. Sparkman, 435 U.S. 349, 356–57 (1978);
Tucker v. Outwater, 118 F.3d 930, 933 (2d Cir.1997).
Clearly, a ruling in a case is a matter within that court's
jurisdiction.
In addition, the complaint contains no factual allegations with respect to any conduct on the part of the
individual defendants named as “Solicitor General—U.S.A.” and “Solicitor General—State of New
York” upon which the court can determine whether
plaintiff's claims against those individuals are “sufficiently substantial” to confer federal subject matter
jurisdiction. See McDaniel v. Decastro, supra, 1990
WL 106568, at *2.
*3 To the extent that plaintiff's complaint can be
construed to allege a claim for damages suffered as a

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
Not Reported in F.Supp., 1998 WL 951813 (W.D.N.Y.)
(Cite as: 1998 WL 951813 (W.D.N.Y.))
result of a deprivation of due process by federal or
state government agencies or employees acting in an
official capacity, it is barred by the doctrine of sovereign immunity. See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949)
(damages claim against United States or its officers
serving in official capacity barred by sovereign immunity); Armstrong v. Sears, 33 F.3d 182, 185 (2d
Cir.1994) (same); New York City Health & Hospitals
Corp. v. Perales, 50 F.3d 129, 135 (2d Cir.1995)
(Eleventh Amendment forecloses award of money
damages required to be paid from state funds to
compensate for past violations of federal law by state
or its officers serving in official capacity).

Justice Solicitor General—U.S.A.” was filed on October 10, 1997. Taking into account the 3–day mail
rule as provided in Fed.R.Civ.P. 6(e), this motion was
timely filed in lieu of responsive pleadings. See
Fed.R.Civ.P. 12(a).

Accordingly, because plaintiff can allege or prove
no set of facts that would entitle him to damages
against the defendants named in the complaint, the
complaint should be dismissed for failure to state a
claim upon which relief can be granted, without leave
to amend.

Accordingly, plaintiff is not entitled to entry of
judgment by default against any of the defendants
named in the complaint.

II. Plaintiff's Motion for Default Judgment.
Under the procedural steps contemplated by the
federal rules, default judgment is available only upon
(1) entry of default by the Clerk of the Court when the
party against whom judgment is sought “has failed to
plead or otherwise defend ... and that fact is made to
appear by affidavit or otherwise ...,” Fed.R.Civ.P.
55(a), and (2) entry of default judgment by the court
after the defendant has had the opportunity to set aside
the entry of default, Fed.R.Civ.P. 55(c), or by the
Clerk if the defendant has not appeared. Fed.R.Civ.P.
55(b); Meehan v. Snow, 652 F.2d 274, 276 (2d
Cir.1981). In this case, the initial step of securing the
entry of a default was omitted. Plaintiff is therefore
not entitled to a default judgment.
In addition, the record reflects that the summons
and complaint were served on all defendants on August 8, 1997, by certified mail only (Item 2; see also
Item 10, Ex. A). The United States Attorney's motion
to dismiss on behalf of the “U.S.A./Department of

Finally, service of the summons and complaint on
the federal and state defendants by certified mail only
was defective under Fed.R.Civ.P. 4(i) and (j), and the
court therefore lacks personal jurisdiction over those
defendants who did not answer or move to dismiss.
See Krank v. Express Funding Corp., 133 F.R.D. 14,
16 (E.D.N.Y.1990); Gibbs v. Hawaiian Eugenia
Corp., 581 F.Supp. 1269, 1271 (S.D.N.Y.1984).

CONCLUSION
For the foregoing reasons, defendants' motions to
dismiss (Items 3, 7 & 9) should be granted, plaintiff's
motion for default judgment (Item 11) should be denied, and the complaint should be dismissed with
prejudice.
*4 Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court
within ten (10) days after receipt of a copy of this
Report and Recommendation in accordance with the
above statute, Fed.R.Civ.P. 72(b) and Local Rule
72.3(a)(3).
The district court will ordinarily refuse to consider on de novo review arguments, case law and/or
evidentiary material which could have been, but was
not presented to the magistrate judge in the first in-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4
Not Reported in F.Supp., 1998 WL 951813 (W.D.N.Y.)
(Cite as: 1998 WL 951813 (W.D.N.Y.))
stance. See, e.g., Patterson–Lietch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840
F.2d 985 (1st Cir.1988).
Failure to file objections within the specified time
or to request an extension of such time waives the
right to appeal the District Court's Order. Thomas v.
Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); Wesolek, et al. v. Canadair Ltd., et al., 838
F.2d 55 (2d Cir.1988).
The parties are reminded that, pursuant to Rule
72.3(a)(3) of the Local Rules for the Western District
of New York, “written objections shall specifically
identify the portions of the proposed findings and
recommendations to which objection is made and the
basis for such objection and shall be supported by
legal authority.” Failure to comply with the provisions
of Rule 72.3(a)(3), or with the similar provisions of
Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the
District Court's refusal to consider the objection .
Let the Clerk send a copy of this Order and a copy
of the Report and Recommendation to the plaintiff and
to the attorneys for the defendants.
SO ORDERED.
W.D.N.Y.,1998.
Multani v. U.S./Department of Justice Solicitor General-U.S.A.
Not Reported in F.Supp., 1998 WL 951813
(W.D.N.Y.)
END OF DOCUMENT

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.