Ackerman v. Ackerman
Filing
34
MEMORANDUM OPINION AND ORDER re: 29 MOTION for Sanctions. filed by Norman Mactas Ackerman, 22 MOTION for Extension of Time. filed by Norman Mactas Ackerman, 19 MOTION to Dismiss. filed by John Herbert Ackerman. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. The defendants motion to dismiss is granted, and the Complaint is dismissed without prejudice to the filing of an Amended C omplaint within 30 days. The plaintiffs motion for sanctions is denied. The defendants application for a filing injunction against the plaintiff is denied. The defendants motion to vacate the notices of pendency is denied without prejudice to renewal. The Clerk is directed to close Docket Nos. 19, 22 and 29, and to close this case. (Signed by Judge John G. Koeltl on 2/7/2012) (djc)
United States District Court
Southern District of New York
__________________________________
NORMAN MACTAS ACKERMAN,
10 Civ. 6773 (JGK)
Plaintiff,
MEMORANDUM OPINION AND
ORDER
- against JOHN HERBERT ACKERMAN,
Defendant.
__________________________________
JOHN G. KOELTL, District Judge:
This action is a bitter intra-family dispute in which the
pro se plaintiff, Norman Ackerman, sued his son, the defendant
John Ackerman.
The plaintiff alleges that he entrusted certain
property to the defendant when the plaintiff was sent to prison.
The defendant allegedly sold the property and the plaintiff now
seeks to impose a constructive trust on the proceeds from that
sale.
The defendant has moved to dismiss the Complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure as time
barred, and pursuant 28 U.S.C. § 1915(e), based on the alleged
misstatements in the plaintiff’s application to proceed in forma
pauperis.
Jurisdiction is alleged pursuant to 28 U.S.C. § 1331
based on diversity of citizenship. 1
1
The defendant asserts that the plaintiff is defrauding the
Court by claiming that he is a Florida resident, or else
defrauding the state of New York, because the plaintiff
continues to receive food stamps from the state of New York.
The plaintiff disputes this and asserts that he is a Florida
1
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the Complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff's favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007).
The Court's function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.”
1985).
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.”
U.S. 544, 570 (2007).
Bell Atl. Corp. v. Twombly, 550
“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.”
(2009).
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.”
Id.
resident, and that there is nothing unlawful about his receiving
food stamps through the State of New York. The Court need not
decide the issue of the plaintiff’s residence, because, as
explained below, the plaintiff’s claim is dismissed.
2
When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.”
Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (brackets and internal
quotation marks omitted).
“Even in a pro se case, however, ...
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(internal quotation marks omitted).
Id.
Thus, although the Court is
“obligated to draw the most favorable inferences” that the
complaint supports, it “cannot invent factual allegations that
[the plaintiff] has not pled.” Id.; see also Mallet v. Johnson,
No. 09 Civ. 8430, 2011 WL 2652570, at *1 (S.D.N.Y. July 7,
2011).
II.
The following allegations are assumed to be true for the
purposes of this motion:
In 1968, the plaintiff purchased a brownstone building at
27 West 74th Street in Manhattan (the “Brownstone”), and he
thereafter used the Brownstone to conduct his medical practice.
(Compl. ¶ 7.)
In September of 1991, the plaintiff, who was then
under indictment for Medicaid fraud in New York County,
transferred the Brownstone and its contents to the defendant.
(Compl. ¶¶ 8-9.)
3
The plaintiff alleges that he affected this transfer
because he was “concerned for his ability . . . to manage and
maintain” the Brownstone if he were incarcerated.
(Compl. ¶ 8.)
The plaintiff alleges that he transferred the Brownstone, and
its contents and furnishings, for no consideration, and in
reliance on a fiduciary relationship that existed between
himself and the defendant.
(Compl. ¶¶ 4-6, 9-11.)
The
defendant was to hold the Brownstone and its contents “intrust
[sic] for the plaintiff, to be returned to plaintiff” upon his
release. (Compl. ¶ 9.)
The defendant sold the Brownstone while the plaintiff was
incarcerated, using the proceeds to purchase other properties.
(Compl. ¶ 12a.)
The plaintiff was released from incarceration in November
of 1996.
(Compl. ¶ 11.)
Thereafter, “on various dates,
plaintiff did demand from defendant” the return of the
Brownstone and its contents, or the proceeds from the sale.
However, these demands were refused. (Compl. ¶ 12b.)
The plaintiff filed this lawsuit in September of 2010.
He
seeks a constructive trust upon the Brownstone and its contents,
or upon the proceeds from their sale, including the properties
subsequently purchased by the defendant.
(Compl. ¶ 13.)
The
defendant has moved to dismiss the Complaint pursuant to Rule
12(b)(6) as time barred, and pursuant 28 U.S.C. § 1915(e), based
4
on the alleged misstatements in the plaintiffs application to
proceed in forma pauperis.
III.
An action to impose a constructive trust is subject to a
See, e.g., Pate v. Pate, 791
six year statute of limitations.
N.Y.S.2d 849, 849 (App. Div. 2d Dep’t 2005); see also N.Y.
C.P.L.R. § 213(1).
In a case where, as here, the trust property
was transferred to a third party in violation of the alleged
trust, the statute of limitations begins to run when the
defendant “convey[s] the property out of the plaintiffs' reach.”
Delango v. Delango, 609 N.Y.S.2d 680, 681 (App. Div. 2d Dep’t
1994).
Here, the Complaint alleges that the property was sold
to a third party some time before November of 1996.
The six
year statute of limitations plainly had run by September of
2010, almost fourteen years later, when the plaintiff filed this
action.
Dismissal is proper when a claim is time-barred based
on the allegations in the Complaint.
See, e.g., Ghartey v. St.
John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989).
The
motion to dismiss the current Complaint must therefore be
granted.
The issue is whether dismissal with prejudice is
proper.
In certain circumstances, New York law provides that an
otherwise time-barred claim to recover a debt can proceed when
5
there is a later acknowledgement or partial payment of the debt
by the defendant.
See, e.g., Scheuer v. Scheuer, 126 N.E.2d
555, 557 (N.Y. 1955) (“At common law, an acknowledgment or
promise to perform a previously defaulted contract obligation
was effectual, whether oral or in writing, at least in certain
types of cases, to start the statute of limitations running
anew.”).
The common law rule has been qualified by a statute
that provides that, to take an action outside the operation of
the statute of limitations, there must be “an acknowledgment [of
the debt] or promise [to pay it] contained in a writing signed
N.Y. GEN. OBLIG. LAW § 17-101.
by the party to be charged.”
This
rule may apply in the context of breach of fiduciary duty and
constructive trust claims.
See, e.g., Scheuer, 126 N.E.2d at
557 (noting that “[t]here is some doubt whether the commonlaw
rule, as modified by the legislature, encompasses a right of
action to enforce a promise by way of constructive trust” but
applying the rule); Zuch v. Zuch, 503 N.Y.S.2d 343, 349 (App.
Div. 1st Dep’t 1986); cf. Goldrick v. Goldrick, 417 N.Y.S.2d
410, 414 (N.Y. Sup. Ct. 1979) (applying the rule but noting that
“the statute excepts an action to recover real property such as
the instant constructive trust action from the rehabilitative
effects of this statute. . . . [because] the public policy of
this state is to put to rest clouds on title, thereby
facilitating their free transfer.”).
6
In his papers in opposition to the motion to dismiss, the
plaintiff alleges that, “sometime in 2004,” the defendant began
paying him $500 a month “as a subsidy from Trust Property
funds.”
(Ackerman Aff. ¶ 7.)
The plaintiff asserts that these
payments continued until “late 2005,” at which point the
plaintiff “suspected a breach of fiduciary duty and fraud” and
“demanded a Trust Property financial accounting” from the
defendant.
(Ackerman Aff. ¶ 7.)
These allegations are somewhat
inconsistent with the allegations in the Complaint that the
defendant was to return the property when the plaintiff was
released from prison and that the plaintiff began making demands
for the return of the property when he was released from
incarceration.
In any event, the new allegations are not
contained in the Complaint.
However, because the plaintiff may
be able to plead, in an Amended Complaint, that there was an
acknowledgement or promise in 2004 sufficient to create a new or
continuing contract, the Complaint cannot be dismissed with
prejudice.
Therefore, the plaintiff’s claims must be dismissed
without prejudice.
However, to the extent that the plaintiff
files an Amended Complaint alleging the existence of a written
acknowledgement or promise sufficient to establish a timely new
or continuing contract, the plaintiff is reminded of the
pleading requirements of Rule 11 of the Federal Rules of Civil
Procedure.
7
Because this action is dismissed without prejudice on the
basis of the statute of limitations, it is unnecessary to
address the defendants’ argument that this action should be
dismissed pursuant to 28 U.S.C. § 1915(e).
The defendant’s
motion to dismiss on that basis is denied as moot.
IV.
The defendant asks that the plaintiff be barred from
bringing further lawsuits without the permission of the Court.
This application is denied.
“While a district court may impose,
sua sponte, an injunction on a party who abuses the judicial
process, such a party must be given notice and an opportunity to
respond.”
Moates v. Rademacher, 86 F.3d 13, 15 (2d Cir. 1996)
(citing In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir.
1984).
In this case, the plaintiff has not yet had an
opportunity to specifically brief and argue the application for
a filing injunction against him.
In any event, the plaintiff’s
actions in filing this lawsuit, and a separate lawsuit in the
Southern District of Florida, do not constitute the type of
abuse of the judicial process that warrant the imposition of a
filing injunction.
Compare Moates, 86 F.3d at 14-15
(incarcerated pro se plaintiff had “clearly abused the judicial
process” when he had filed at least twelve § 1983 actions
against prison officials and submitted “perjured testimony and
8
altered documents” in at least four of them); Martin-Trigona,
737 F.2d at 1259 (plaintiff had “filed over 250 civil actions,
appeals, and other matters throughout the United States, which
have been pursued with persistence, viciousness, and general
disregard for decency and logic”) (internal quotation marks
omitted).
Accordingly, the defendant’s application to enjoin
the plaintiff from filing further actions against him without
prior court approval is denied.
V.
The defendant asks the Court to remove the notices of
pendency that the plaintiff has placed on the defendant’s
properties.
New York law allows federal courts to direct the
relevant county clerk to cancel any notices of pendency filed in
relation to federal actions “if the plaintiff has not commenced
or prosecuted the action in good faith.”
N.Y. C.P.L.R. §
6514(b); see, e.g., Adams v. Smith, No. 07 Civ. 0452, 2010 WL
3522310, at *20 (N.D.N.Y. Sept. 1, 2010) (“[T]he proper forum
for affected property owners who seek to cancel or correct a
notice of pendency is the court in which the land claim is
pending.”) (quoting Cayuga Indian Nation v. Fox, 544 F. Supp.
542, 548 (N.D.N.Y. 1982)).
The Court also must order the
cancellation of the notices of pendency if there has been a
final judgment in the underlying action, and the time to file an
9
appeal of that judgment has expired.
See N.Y. C.P.L.R. §
6514(a); see, e.g., LaMotte v. National Patent Development
Corp., No. 95 Civ. 3317, 1996 WL 492998, at *6 (S.D.N.Y.)
(S.D.N.Y. Aug. 28, 1996).
In this case, there is no dispute that the underlying
action for a constructive trust is one that has the potential to
affect the title to real property, because the plaintiff’s
action sought to impose a constructive trust on three properties
allegedly purchased by the defendant with the proceeds from the
sale of the Brownstone.
The Court cannot yet determine that the
lawsuit has been pursued in bad faith.
The time to appeal this
Order has not expired, and, in any event, the current Complaint
is being dismissed without prejudice.
The application to this
Court to cancel the notices of pendency is therefore denied
without prejudice to renewal when the requirements of N.Y.
C.P.L.R. § 6514 have been satisfied.
VI.
The plaintiff has also moved to sanction the defendant’s
counsel pursuant to Rule 11 of the Federal Rules of Civil
Procedure for having filed the motion to dismiss because of the
plaintiff’s submission of an allegedly false application to
proceed in forma pauperis.
District courts have “broad
discretion’ to ‘tailor appropriate and reasonable sanctions
10
under Rule 11.”
Lawrence v. Wilder Richman Securities
Corp., 417 F. App’x 11, 15, (2d Cir. 2010) (internal quotation
marks, citation and alterations omitted).
Nevertheless, Courts
considering the imposition of Rule 11 sanctions should take care
to avoid chilling zealous litigation.
See, e.g., Lipiro v.
Remee Products, 75 F. Supp. 2d 174, 178 (S.D.N.Y. 1999).
Here,
notwithstanding the plaintiff’s allegation that the defendant’s
counsel used documents that he should have known were taken from
the defendant’s apartment by another family member, there is no
indication that the defendants’ motion to dismiss pursuant to §
1915(e) was groundless or that it was made for an improper
purpose.
The plaintiff’s motion for sanctions is denied.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit.
The defendant’s motion to
dismiss is granted, and the Complaint is dismissed without
prejudice to the filing of an Amended Complaint within 30 days.
The plaintiff’s motion for sanctions is denied.
The defendant’s application for a filing injunction against
the plaintiff is denied.
The defendant’s motion to vacate the notices of pendency is
denied without prejudice to renewal.
11
The Clerk is directed to close Docket Nos. 19, 22 and 29,
and to close this case.
SO ORDERED.
Dated:
New York, New York
February 7, 2012
Koelt1
District Judge
12
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