Diaconu v. County of Franklin et al

Filing 81

MEMORANDUM-DECISION and ORDERED, that the County Defendants Motion (Dkt. No. 29) to dismiss is GRANTED; and it is further ORDERED, that Defendants Community Bank and Tryniskis Motion (Dkt. No. 50) to dismiss is GRANTED; and it is further ORDERED, tha t Plaintiffs Motion (Dkt. No. 40) for summary judgment and Amended Motion (Dkt. No. 68) for summary judgment are DENIED as moot; and it is further ORDERED, that Plaintiffs Request (Dkt. No. 58) for reconsideration of the Clerks denial of Plaintiffs r equest for entry of default against Defendants Miller and LaVoie is DENIED; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED without leave to amend; and it is further ORDERED, that the Clerk of the Court close this case. Signed by Senior Judge Lawrence E. Kahn on August 28, 2014. ***A copy of this order was served upon the pro se plaintiff by Certified US mail. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
EUFROSINA DIACONU,
Plaintiff,
-against-

8:13-CV-0317 (LEK/RFT)

COUNTY OF FRANKLIN, et al.,
Defendants.

MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
Pro se Plaintiff Eufrosina Diaconu (“Plaintiff”) alleges that she was defrauded at a tax

foreclosure real estate auction in 2005 by Defendants County of Franklin (“Franklin County”),
Office of Jonathan J. Miller, Esq. (“Miller”), Bryon A. Varin (“Varin”), and Earl J. LaVoie
(“LaVoie”) (collectively, the “County Defendants”); Community Bank System, Inc. and Mark E.
Tryniski (collectively “Community Bank”); and Ocwen Federal Bank FSB, Ocwen Financial
Corporation, and Randal M. Farris (collectively “Ocwen”). Dkt. No. 1 (“Complaint”). Presently
before the Court are: (1) Motions to Dismiss by the County Defendants and Community Bank; (2)
Plaintiff’s Motions for summary judgment; and (3) Plaintiff’s request for reconsideration of the
Clerk’s denial of her request for a default entry. Dkt. Nos. 29 (“County Motion”); 50 (“Community
Motion”); 40 (“Plantiff’s Motion”); 68 (“Plaintiff’s Amended Motion”); 58 (“Plaintiff’s Request”).
For the following reasons, the County Defendants’ and Community Bank’s Motions to dismiss are
granted, Plaintiff’s Motions are denied, and the Complaint is dismissed in its entirety.

II.

BACKGROUND1
A. Factual Background
On October 26, 2005, Plaintiff attended a real estate auction in which a number of properties

held by Franklin County were to be sold. Compl. ¶ 29. Franklin County employed a professional
real estate auctioneer to market and sell the foreclosed properties. See id. In preparation for the
auction, the auctioneer published a brochure, which included a description and picture of the
available properties. Id. ¶ 31. The brochure also indicated that all parcels were sold “as is,”
included no personal property, and no warranty was made by Franklin County concerning the
condition of the property or any defect in title. Id. ¶¶ 33, 35. Additionally, in order to participate in
the auction, each attendee was required to sign the “Terms and Conditions of the Auction,” which
included these same provisions. See id. ¶ 31.
At issue are two properties that Plaintiff successfully purchased at the auction: a parcel
located in the Town of Dickinson, NY (the “Dickinson property”), and another parcel in the Village
of Malone, NY (the “Malone property”). Compl. ¶¶ 36-43. Plaintiff claims that the Dickinson
property was listed as including a mobile home; but, in September 2010, she discovered that the
mobile home was not actually located on the Dickinson property, and that it belonged to Ocwen. Id.
¶¶ 36-37. With respect to the Malone property, in 2006 Plaintiff evicted its long-time tenant and
discovered that the Malone property contained a large amount of hazardous waste that had not been
previously disclosed to her. Id. ¶ 41. Plaintiff incurred significant expense in removing the waste

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In deciding a motion to dismiss for failure to state a claim, the allegations of the Complaint
are accepted as true. See Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 408 (2d Cir. 2000); see
also Matson v. Bd. of Educ., 631 F.3d 57, 72 (2d Cir. 2011) (noting that, in addressing a motion to
dismiss, a court must view a plaintiff’s factual allegations “in a light most favorable to the plaintiff
and draw[] all reasonable inferences in her favor”).
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from the Malone property and claims that the County Defendants are liable to reimburse her. See
id. ¶ 42.
B. Procedural History
Plaintiff originally brought suit only against Franklin County in New York Supreme Court,
County of Franklin. Compl. ¶ 46. Plaintiff alleged that she was defrauded by Franklin County
because the Dickinson property did not include the mobile home as advertised, and the condition of
the Malone Property was not disclosed prior to the auction. Dkt. No 31-7 at 4. Plaintiff’s complaint
was dismissed for failure to state a claim because fraud is an intentional tort, and the brochure and
Terms and Conditions, both of which clearly indicated that properties were sold “as is” and did not
include any personal property, negated any possible finding of intent to defraud by Franklin County.
Id. Plaintiff did not appeal the state court’s decision. See Dkt. No. 67 (“Plaintiff’s Response”) at 2.2
Plaintiff then commenced this action on March 20, 2013. Compl.
III.

LEGAL STANDARD
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). A court must accept as true
the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff. See
Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed

2

Plaintiff claims that Miller and the County of Franklin Clerk’s Office “intentionally
sabotaged the case” by refusing to process her appeal in May 2012. Pl.’s Resp. at 3. However,
Plaintiff has not provided any factual allegations to support her claim. Furthermore, even accepting
Plaintiff’s allegation as true, as discussed infra, Plaintiff has failed to state a claim upon which relief
may be granted.
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pursuant to Rule 12(b)(6) only where it appears that there are not “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570. Plausibility requires “enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct].”
Id. at 556. The plausibility standard “asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he pleading
standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at
555). Where a court is unable to infer more than the mere possibility of the alleged misconduct
based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the
action is subject to dismissal. See id. at 678-79.
IV.

DISCUSSION
A. Claims Against the County Defendants
The County Defendants argue that Plaintiff’s Complaint should be dismissed because: (1)

her claims are barred under the applicable statute of limitations; (2) she failed to comply with notice
of claim requirements; (3) Plantiff’s Complaint fails to state a claim; and (4) her claims are barred
by the doctrines of collateral estoppel and res judicata. See generally Cnty. Mot.
1. Statute of Limitations
Under New York Civil Practice Law and Rules § 213(8), the statute of limitations for a
claim of fraud is (1) “six years from the commission of the fraud” or (2) “two years from the time
the plaintiff discovered, or could with reasonable diligence have discovered, the fraud, whichever is
later.” “[A] plaintiff ‘could, with due diligence, have discovered’ the fraud when provided
sufficient facts to place [her] on ‘inquiry notice.’” Gander Mountain Co. v. Islip U-Slip LLC, 923 F.

4

Supp. 2d 351, 364 (N.D.N.Y. 2013) (quoting Aldrich v. Marsh & McLennan Cos., Inc., 861
N.Y.S.2d 30, 31 (App. Div. 2008)). “A plaintiff need not be aware of all aspects of the alleged
fraud to be on inquiry notice; rather, a plaintiff is on inquiry notice at ‘the time at which the plaintiff
should have discovered the [fraud].’” In re Merrill Lynch Ltd. P’ships Litig., 7 F. Supp. 2d 256, 266
(S.D.N.Y. 1997), aff’d, 154 F.3d 56 (2d Cir. 1998) (quoting In re Integrated Res., Inc. Real Estate
Ltd. P’ships Sec. Litig., 851 F. Supp. 556, 568 (S.D.N.Y. 1994). The Second Circuit has stated that
“[t]he test as to when fraud should have with reasonable diligence been discovered is an objective
one.” Armstrong v. McAlpin, 699 F.2d 79, 88 (2d Cir. 1983).
“On a motion to dismiss, when the facts alleged in the complaint indicate that, with
reasonable diligence, plaintiffs should have uncovered the alleged fraud prior to the limitations
period, the claim will be time-barred.” Griffin v. McNiff, 744 F. Supp. 1237, 1255 (S.D.N.Y.
1990), aff’d, 996 F.2d 303 (2d Cir. 1993) (citing Armstrong, 699 F.2d at 88). “A party seeking to
avoid the bar of the statute [of limitations] on account of fraud must aver and show that [s]he used
due diligence to detect it.” Abercrombie v. Andrew Coll., 438 F. Supp. 2d 243, 266 (S.D.N.Y.
2006) (citing Moll v. U.S. Life Title Ins. Co. of N.Y., 700 F. Supp. 1284, 1293 (S.D.N.Y. 1988)).
“General assertions of ignorance and due diligence without more specific explanation . . . will not
satisfy the [ ] pleading requirements.” Philip Morris v. Heinrich, No. 95 CIV 0328, 1996 WL
363156, at *12 (S.D.N.Y. June 28, 1996).
With respect to the Dickinson property, Plaintiff argues that her claim is not barred by the
statute of limitations because her legal cause of action did not accrue until 2010, when she
discovered that the mobile home was not on her property, and that she has six years from that date
to bring her claim for fraud. Pl.’s Resp. at 2. The Court is mindful that “[w]hen assessing the

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sufficiency of a complaint . . . particular deference should be afforded to a pro se litigant.”
Abdullah v. Goord, No. 06-CV-0622, 2007 WL 2789479, at *4 (N.D.N.Y. Sept. 24, 2007) (Kahn,
J.); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“[A] pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). However,
Plaintiff’s argument is in direct conflict with well-settled law. N.Y. C.P.L.R. § 213(8) is clear that
in a real estate transaction, the “commission of the fraud” occurs at the time of conveyance, not
when the fraud is discovered. See, e.g., Island Holding, LLC v. O’Brien, 775 N.Y.S.2d 72, 74 (App.
Div. 2004) (noting, in relevant part, that under § 213(8), “where actual fraud is alleged, the statute
of limitations is six years from the fraudulent transfer”); Piedra v. Vanover, 579 N.Y.S.2d 675, 679
(App. Div. 1992) (finding claim for fraudulent deed conveyance brought more than six years after
transfer of deed barred by applicable statute of limitations).
Here, both property deeds were conveyed shortly after the auction on November 3, 2005.
Dkt. No. 31, Ex. C-D.3 Therefore, the “commission of the fraud” occurred in 2005, not 2010. See
O’Brien, 775 N.Y.S.2d at 74. Under the first provision of § 213(8) the statute of limitations is six
years from the date the fraud was committed, N.Y. C.P.L.R. § 213(8), and thus Plaintiff was

3

The Court notes that Plaintiff did not attach the property deeds to the Complaint; rather,
they were submitted with the County Motion to dismiss. See Dkt. No. 31. In deciding a motion to
dismiss, ordinarily the Court may not consider matters outside of the complaint. See Global
Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006). However, the
Court may consider extrinsic materials that are “integral to the plaintiff’s complaint or materials
subject to judicial notice.” See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.
1991); see also Fed. R. Evid. 201(c)(1). “On a motion to dismiss, courts may take judicial notice of
public records, such as properly recorded deeds.” Awan v. Ashcroft, No. 09-CV-1653, 2010 WL
3924849, at *2 (E.D.N.Y. Sept. 28, 2010. Accordingly, the Court takes judicial notice of the
existence and date of the deeds at issue here.
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required to file her claim by November 2011.
Under the second provision of § 213(8), Plaintiff’s claim would not be barred if brought
within two years of when she actually, or with due diligence could have, discovered the purported
fraud. N.Y. C.P.L.R. § 213(8). Plaintiff states in September 2010 she learned that the mobile home
was not located on the Dickinson property, but rather on another owner’s parcel. See Compl. ¶ 37.
Even accepting as true that Plaintiff was unable to discover the discrepancy regarding the mobile
home prior to September 2010, she was required to bring her claim by September 2012. See N.Y.
C.P.L.R. § 213(8). Therefore, because Plaintiff did not commence this action until March 2013, six
months after the two-year statute of limitations had expired, Plaintiff’s claim concerning the
Dickinson property is time-barred.
Regarding the Malone property, Plaintiff appears to argue that her legal claim did not accrue
until May 2007, when the Malone building inspector informed her that the home located on the
property was unfit for human habitation. Pl.’s Resp. at 3; Compl. ¶ 43. As stated supra, the alleged
fraud occurred in 2005, when the deed was conveyed to her. Thus, under the first provision of
§ 213(8), Plaintiff’s claim was barred after November 2011.
Under the second provision of § 213(8), accepting as true that Plaintiff could not have
discovered the fraud until 2007, her claim was barred after 2009. Under C.P.L.R. § 213(8),
Plaintiff’s claim is barred by the “later of” six years from the commission of the fraud (November
2005) and two years from when she discovered the alleged fraud (May 2007). Therefore, at the
latest, Plaintiff’s claim regarding the Malone property was barred by November 2011.
Additionally, with respect to Plaintiff’s claims against Franklin County, General Municipal
Law § 50-i(1) states that a tort claim “against a city, county, town, [or village,] . . . shall be

7

commenced within one year and ninety days after the happening of the event upon which the claim
is based.” As stated supra, the “happening of the event” occurred on November 3, 2005; yet,
Plaintiff did not commence this action until March 2013. Thus, Plaintiff’s Complaint was filed well
after the one-year-and-ninety-day limitation, and her claims with respect to Franklin County are
therefore subject to dismissal on those grounds as well.
2. Notice of Claim
It is well-settled under New York law that, “a notice of claim, pursuant to [General
Municipal Law] § 50-e is a mandatory condition precedent to the bringing of a tort claim against a
public corporation, or any of its officers, appointees, or employees.” Brown v. Metro. Transp.
Auth., 717 F. Supp. 257, 259 (S.D.N.Y. 1989). The notice of claim must state the nature of the
action and remedy sought, and be served “within 90 days after the claim arises.” N.Y. GEN. MUN.
LAW§ 50-e(1)(a). “Absent a showing of such a notice of claim, the [plaintiff’s] complaint may be
dismissed for failure to state a cause of action.” Brown, 717 F. Supp. at 259 (citing Wrenn v. New
York City Health & Hosps., 104 F.R.D. 553, 557 (S.D.N.Y. 1985).
As stated supra, Plaintiff’s claim arose on November 3, 2005, when she took title to the
Dickinson and Malone properties. However, Plaintiff did not serve her notice of claim until
September 9, 2010. Cnty. Mot. at 6. Thus, Plaintiff’s notice of claim was served well beyond the
time limitation set forth in General Municipal Law § 50-e. Plaintiff does not contest her failure to
comply with the notice of claim filing requirements, but merely states that she waited for a response
from the County Defendants, and after receiving none, commenced this action. Pl.’s Resp. at 2.
Mindful of Plaintiff’s pro se status, the Court notes that “upon application, the court, in its
discretion, may extend the time to serve a notice of claim.” N.Y. GEN. MUN. LAW § 50-e(5).

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However, “[t]he extension shall not exceed the time limited for the commencement of an action by
the claimant against the public corporation.” Id. As stated supra, Plaintiff was required to bring her
claim against Franklin County within one year and ninety days of November 3, 2005. Thus, any
extension granted almost nine years later would be unable to cure Plaintiff’s deficiency in her notice
of claim.
3. Failure to State a Claim
Under New York law, to state a claim for fraud a plaintiff must establish that: (1) defendant
made a representation as to a material fact; (2) such representation was false; (3) defendant intended
to deceive plaintiff; (4) plaintiff believed and justifiably relied upon the statement and was induced
by it to engage in a certain course of conduct; and (5) as a result of such reliance plaintiff sustained
pecuniary loss. Amusement Indus., Inc. v. Stern, 786 F. Supp. 2d 758, 778 (citing Ross v. Louise
Sise Servs., 868 N.E.2d 189, 193 (N.Y. 2007)).
The County Defendants argue that the explicit disclaimers in the brochure and Terms and
Conditions, which explained that all properties were sold “as is,” contained no warranties as to the
condition or title of properties, and did not include any personal property firmly establish a lack of
intent to deceive Plaintiff. Cnty. Mot. at 9. The Court agrees. With respect to the Dickinson
property, the terms of sale are unambiguous that no personal property is included in the sale of real
property. See Compl. ¶ 33. Similarly, regarding the Malone property, the terms are clear that no
warranty is made with respect to the property’s condition and it is sold “as is.” See id. Thus, on its
face, the Complaint makes clear that Defendants did not intend to defraud Plaintiff. See generally
Compl.; see also Amusement Indus., Inc., 786 F. Supp. 2d at 778. Therefore, even accepting

9

Plaintiff’s allegations as true, she has failed to state a claim.4
B. Claims Against Community Bank
Plaintiff appears to allege that Community Bank serves as the property tax collector for
Franklin County, and as such, is the party able to reimburse her for property taxes she should not
have been required to pay regarding the mobile home. See generally Pl.’s Resp. In support,
Plaintiff has included a copy of a tax bill from a local school district indicating that tax payments
should be made to the tax collector’s account at Community Bank. Dkt. No. 59-2, Ex. 1.
Community Bank argues that Plaintiff is mistaken; the tax bill reveals that Community Bank is
merely the bank at which the tax collector for Franklin County maintains an account, but
Community Bank otherwise has no connection to the real estate auction or the collection of property
taxes. Dkt. No. 62 at 3. The Court agrees. Aside from Plaintiff’s failure to allege fraud by
Community Bank, she also has failed to otherwise demonstrate any connection between Community
Bank and her claims. Accordingly, Plaintiff has failed to state a claim against Community Bank.
C. Claims Against Ocwem
Plaintiff alleges that Ocwen, as owner of the mobile home at issue, knew that it was not
located on the Dickinson property, yet allowed Franklin County to fraudulently convey the mobile
home and assess property taxes against Plaintiff accordingly. Compl. ¶¶ 64, 73. Ocwen has yet to
appear or otherwise respond to the Complaint. See generally Docket.

4

Because the Court finds that Plaintiff’s claims against the County Defendants are barred by
the applicable statute of limitations, her failure to timely serve the notice of claim, and for failure to
state a claim, the Court need not reach the County Defendants’ final argument that Plaintiff’s claims
are barred by the doctrines of collateral estoppel and res judicata. See Cnty. Mot. at 7-8.
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Plaintiff previously requested an entry of default against all Defendants, including Ocwen,
for failure to timely appear. Dkt. No. 10. After the Clerk of the Court denied Plaintiff’s request,
Dkt. No. 11, Plaintiff requested reconsideration of her request from the Court, Dkt. No. 12. In the
Court’s Order dated July 2, 2013, Plaintiff was advised that she had not completed service of
process upon Defendants. Dkt. No. 15 at 2. Specifically, because Plaintiff elected to serve
Defendants by mail, service was not complete until she provided a signed acknowledgment of
receipt from Defendants. Id. Plaintiff was instructed that if she wished to continue pursuing this
action, she must re-attempt service of process by one of the other methods set forth in Federal Rule
of Civil Procedure 4(c)(3) or (e)(2). Id. Plaintiff eventually completed service of process as to all
Defendants other than Ocwen. See Dkt. Nos. 19-23, 25, 49.
Subsequently, the Court granted Plaintiff’s request to direct the U.S. Marshals to serve
Ocwen by mail. Dkt. No. 27 at 5. On October 1, 2013, the summons issued for Ocwen was
returned as “unexecuted” because the address provided by Plaintiff was “vacant” and no forwarding
address was provided. Dkt. No. 38. Plaintiff was instructed that, if service could not be completed
at the address provided by Plaintiff, she could request personal service by the U.S. Marshals. See
Dkt. No. 27 at 4-5. However, Plaintiff has not requested personal service on Ocwen. See Docket.
28 U.S.C. § 1915(e)(2) directs that, when a plaintiff seeks to proceed in forma pauperis,
“[t]he court shall dismiss the case at any time if the court determines that . . . the action . . . fails to
state a claim on which relief may be granted.” Thus, although a court has a duty to show liberality
toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and should exercise
“extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party
has been served and both parties (but particularly the plaintiff) have had an opportunity to respond,”

11

Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (citations omitted and emphasis in original), a
court also has a responsibility to determine that a claim is viable before permitting a plaintiff to
proceed with an action in forma pauperis. Moreover, a Court may perform § 1915(e)(2) review
more than once. See 28 U.S.C. § 1915(e)(2) (noting that a court may dismiss a case “at any time”);
Cusamano v. Sobek, 604 F. Supp. 2d 416, 434-35 (N.D.N.Y. 2009).
Although Plaintiff’s claim against Ocwen survived initial review under § 1915(e)(2), see
Dkt. No. 5 at 1-2, the Court, upon further review, finds that Plaintiff’s claims against Ocwen are
subject to dismissal. First, under Federal Rule of Civil Procedure 4(m), a court may sua sponte
dismiss a complaint for failure to serve a defendant within the required 120-day period, after notice
is given to the plaintiff. See FED. R. CIV. P. 4(m). Here, Plaintiff has been notified repeatedly, most
recently in October 2013, that Ocwen was not properly served. See Dkt. Nos. 15; 27; 35.
Moreover, mindful of Plaintiff’s pro se status, the Court has liberally granted several extensions for
Plaintiff to serve Ocwen. Dkt. Nos. 27; 35. However, Plaintiff has not attempted to re-serve Ocwen
over the past ten months, which is well beyond the 120-day period under Rule 4(m). Therefore,
Plaintiff’s claims against Ocwen are subject to sua sponte dismissal for her failure to timely serve
them.
In addition, Plaintiff has not alleged that Ocwen participated in any fraudulent activity;
Plaintiff merely alleges that Ocwen permitted the purported fraud by Franklin County to continue
without intervening. See generally Pl.’s Resp. However, even accepting Plaintiff’s allegations as
true, as discussed supra, fraud is an intentional tort. Plaintiff has not alleged that Ocwen intended to
defraud Plaintiff, nor has she advanced any alternative theory of liability against Ocwen. Thus,
Plaintiff has failed to state a claim for fraud against Ocwen.

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Finally, Plaintiff’s claims against Ocwen arise out of the same deed transfer, and are
governed by the statute of limitations discussed supra. Accordingly, Plaintiff’s claims against
Ocwen would also be barred by the statute of limitations. See Pino v. Ryan, 49 F.3d 51 (2d Cir.
1995) (affirming district court’s dismissal of a complaint sua sponte as time-barred where the
complaint was “based on an indisputably meritless legal theory” and no additional facts could cure
the failure to comply with the statute of limitations). Therefore, Plaintiff has failed to state a claim
against Ocwen.
D. Plaintiff’s Request for Reconsideration
On October 10, 2013, Plaintiff requested an entry of default against LaVoie and Miller. Dkt.
No. 48. Plaintiff’s request was denied by the Clerk of the Court because “[t]he docket reflects that
the defendants upon whom [Plaintiff] request[s] entry of default have not defaulted.” Dkt. No. 51.
Plaintiff then filed a request for consideration of the Clerk’s denial. Pl.’s Req. Plaintiff asserts that
LaVoie and Miller have defaulted because they have not responded to her Complaint. Id. at 2.
However, Plaintiff appears to misunderstand that LaVoie and Miller were included in the County
Defendants’ Motion to dismiss. See Cnty. Mot. at 1. Thus, LaVoie and Miller have not defaulted,
and Plaintiff’s request for reconsideration is without merit.5
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the County Defendants’ Motion (Dkt. No. 29) to dismiss is GRANTED;

and it is further

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Lastly, because the Court finds that Plaintiff’s Complaint should be dismissed as against all
Defendants, it need not reach the merits of Plaintiff’s Motions for summary judgment. See Dkt.
Nos. 40; 68.
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ORDERED, that Defendants Community Bank and Tryniski’s Motion (Dkt. No. 50) to
dismiss is GRANTED; and it is further
ORDERED, that Plaintiff’s Motion (Dkt. No. 40) for summary judgment and Amended
Motion (Dkt. No. 68) for summary judgment are DENIED as moot; and it is further
ORDERED, that Plaintiff’s Request (Dkt. No. 58) for reconsideration of the Clerk’s denial
of Plaintiff’s request for entry of default against Defendants Miller and LaVoie is DENIED; and it
is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED without leave to
amend;6 and it is further
ORDERED, that the Clerk of the Court close this case; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:

August 28, 2014
Albany, NY

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When dismissing a complaint filed by a pro se plaintiff, courts must be generous in
granting leave to amend deficiencies in the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000). However, when leave to amend would be futile, it is not necessary. See id. Here,
leave to amend would be futile, as Plaintiff would be unable to remedy the untimeliness of her
claims, she has failed to re-attempt proper service upon Ocwen, and her extensive filings fail to
plausibly allege a viable claim against any Defendants.
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