Steinberg v. Elkman et al
Filing
39
MEMORANDUM OPINION AND ORDER re: 20 MOTION to Dismiss the Amended Complaint, filed by Andrew A. Cuomo, 29 JOINT MOTION to Dismiss the Amended Complaint or in the Alternative for Summary Judgment in Favor of Alan Gerst, Robert E . Michael and the Estate of Steven M. Elkman, filed by Stephen M. Elkman, Alan Gerst, Robert E. Michael. For the foregoing reasons, Defendants' motions to dismiss the Amended Complaint are granted. This Memorandum Opinion and Order resolves Docket Entry Numbers 20 and 29. The Clerk of Court is respectfully requested to enter judgment dismissing the case for lack of jurisdiction and close this case. The Court certifies, pursuant to 28 U.S.C. 1915(a)(3), that any appeal from this Memoran dum Opinion and Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Laura Taylor Swain on 2/22/2016) Copies Mailed By Chambers. (spo)
UNITED STATES DISTRICT COURT
SOUTHER DISTRICT OF NEW YORK
-----------------------------------------------------x
JONATHAN STEINBERG,
Plaintiff,
-v-
No. 15CV278-LTS-DCF
STEPHEN M. ELKMAN, ALAN GERST,
ROBERT E. MICHAEL & ANDREW A. CUOMO
Defendants.
------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Plaintiff Jonathan Steinberg (“Plaintiff” or “Steinberg”) brings this pro se action
against Defendants Stephen Elkman (“Elkman”), Alan Gerst (“Gerst”), Robert Michael
(“Michael”) and Governor Andrew Cuomo in his official capacity (“Governor Cuomo” and,
collectively “Defendants”), asserting causes of action pursuant to 42 U.S.C. § 1983 and 18
U.S.C. § 1951 (the Hobbs Act), as well as several common law tort claims. Plaintiff alleges,
inter alia, that his rights to: a republican form of government, free speech, due process and equal
protection under the federal Constitution were violated throughout the course of proceedings in
the Supreme Court of the State of New York, New York County (the “State Court
Proceedings”). Before the Court are the motion of Defendants Elkman, Gerst and Michael and
the motion of Governor Cuomo to dismiss the Complaint pursuant to Rules 8(a), 12(b)(1),
12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons explained below,
Governor Cuomo is immune from suit and the Court lacks jurisdiction of this action. The Court
has considered the parties’ submissions carefully and, for the following reasons, the Defendants’
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motions are granted in their entirety.
BACKGROUND1
Plaintiff at one time owned both an Aston Martin DB5 (“DB5”) and an Aston
Martin DB6 (“DB6”). (Am. Compl. ¶ 1.) In 1999, Plaintiff entered into a contract with Gerst
(the “1999 Contract”), the owner of Queens Import Motors, whereby Plaintiff agreed to transfer
title of the DB5 to Gerst. (Id. ¶¶ 2, 4, 10.) For reasons that are not entirely clear, Plaintiff
thereafter sued Defendant Gerst in the aforementioned State Court Proceedings to rescind the
sale contract. (Id. ¶¶ 2, 10.) Plaintiff’s claim for rescission was denied. (Id. ¶ 12.) However,
due to Gerst’s failure to answer Plaintiff’s complaint in that matter, Plaintiff obtained a default
judgment against Gerst in the amount of $186,000. (Id.)
In 2006, Plaintiff sought to enforce the default judgment as against Gerst’s home.
(Am. Compl. ¶¶ 16-17.) Gerst responded by successfully moving to vacate the default judgment
against him. (Id. ¶ 18.) The matter was subsequently restored to active status in the Supreme
Court of the State of New York, New York County (id.), and the case was transferred to the
docket of Justice Shirley Werner Kornreich.2 (Id. ¶ 21.) Plaintiff alleges that, throughout the
course of the ensuing State Court Proceedings, Justice Kornreich was motivated by bias and that
her actions “reflected some seeming background contact” between herself and Gerst’s attorney,
Michael. (Id.) Plaintiff cites several alleged actions by Justice Kornreich as examples in support
1
The facts stated herein are drawn from Plaintiff’s Amended Complaint and are
assumed to be true for the purposes of this motion practice.
2
The matter was originally heard, and the default judgment granted, by thenJustice Sheila Abdus-Salaam in Supreme Court of the State of New York, New
York County. (Am. Compl. ¶¶ 10, 12.)
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of his contention that she rendered the State Court Proceedings unconstitutional: at a conference,
Justice Kornreich “cut the [P]laintiff’s address to the court . . . [w]ithout letting the [P]laintiff
address the court” (Am. Compl. ¶ 23); Justice Kornreich denied Plaintiff’s request to amend his
complaint to plead recently discovered alleged thefts by Gerst (id.)3; Justice Kornreich refused to
re-sign the default judgment already entered by Justice Abdus-Salaam, instead granting Gerst
permission to file an answer to Plaintiff’s 1999 complaint (id. ¶ 24); Justice Kornreich denied
Plaintiff’s request to allow discovery of Gerst’s business records, thereby depriving Plaintiff of
an opportunity to prove the theft of the DB6 parts (id. ¶ 25); Justice Kornreich granted Gerst’s
“fact-less and legally unarguable and convoluted” sanctions motion (id. ¶ 28), going as far as to
“call[] a private conference with Michael [on August 21, 2008,] to determine the whole action
and to extort money from the [P]laintiff by way of purported sanctions for bringing the action
(id. ¶¶ 28-29); and, finally, Justice Kornreich “allow[ed] Michael to write her judgment [for her]
in the same entirely baseless and unsupported defamatory terms . . . and she agreed with Michael
to attempt to extort over $25,000 from the [P]laintiff . . . influencing the Special Referee to fix
that sum in supposed sanctions.” (Id. ¶ 30.)
In May 2009, Plaintiff brought an Article 78 petition in the New York Supreme
Court Appellate Division, First Department, challenging Justice Kornreich’s decisions as biased
and corrupt, and arguing that the case should be remanded to the Supreme Court and referred to
a “fair and impartial judge.” (Id. ¶ 44.) Plaintiff’s Article 78 petition was denied. (Id. ¶ 45.)
See Steinberg v. Kornreich, 63 A.D.3d 634, 634 (N.Y. App. Div. 1st Dep’t 2009). Plaintiff then
3
Plaintiff alleges that, while the Aston martin DB6 was stored at Queens Imports
Motors, Gerst stole parts from the vehicle, including the engine, to sell to other
Aston Martin owners. (Am Compl. ¶ 14.)
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appealed from certain of Justice Kornreich’s specific determinations, including her decisions not
to recuse herself, to dismiss all of Plaintiff’s claims against Gerst and to grant Gerst’s motion for
sanctions and costs in the amount of $25,000. (Am. Compl. ¶ 55.) The Appellate Division
affirmed each of the challenged decisions. (Id. ¶ 59-60.) See Steinberg v. Queens Import
Motors, 74 A.D.3d 493, 493-94 (N.Y. App. Div. 1st Dep’t 2010).
After exhausting all potential avenues of relief from the result of the State Court
Proceedings, Plaintiff sought to trigger an investigation into corruption within the New York
judiciary, sending reports to the State Committee on Judicial Conduct and the Departmental
Disciplinary Committee. (Am. Compl. ¶ 40-42.) Both committees declined to open
investigations. (Id.) Plaintiff also wrote to Governor Cuomo’s Moreland Commission,
requesting an investigation into corruption within the Appellate Division’s First Department.
(Id. ¶ 63.) Plaintiff alleges that, in order to prevent the exposure of judicial corruption, Governor
Cuomo “knowingly and willfully shut down the Moreland Commission with knowledge of the
plaintiff’s complaint in order that no investigation be promulgated into either corruption within
the court system, the Inspector General’s Office nor the State Commission on Judicial Conduct
. . . [and] to prevent the plaintiff recovering damages in the Supreme Court of the State of New
York for losses arising as a result of the illegal ‘Kornreich adjudications.’” (Am. Compl. ¶ 65.)
In 2014, following the conclusion of the State Court Proceedings, Plaintiff
learned of the publication of Justice Kornreich’s decision (Am. Compl. ¶¶ 71, 72, 75, 78, 83),
which he alleges contained defamatory statements about him. (Id. ¶¶ 30, 60, 70, 79.) Plaintiff
also learned that ownership of the Aston Martin DB5 had been transferred from Gerst to Elkman
via auction. (Id. ¶¶ 7, 8, 66-67.) Plaintiff wrote to Elkman, outlining what had occurred in the
State Court Proceedings and claiming that he was the true owner of the Aston Martin DB5. (See
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Plaintiff’s Affirmation in Reply to Defendant’s Motion to Dismiss (“Plaintiff Opp.”), Docket
Entry No. 36, Ex. A.)
Plaintiff thereafter filed this action, on January 14, 2015. (See Docket Entry No.
1.) Plaintiff filed an Amended Complaint on May 4, 2015, claiming that corruption pervading
the State Court Proceedings led to a violation of his constitutional rights, that the sale of the
Aston Martin DB5 from Gerst to Elkman was a fraudulent conveyance, and that publication of
Justice Kornreich’s decision by the Defendants was part of a conspiracy to defame and injure the
Plaintiff. (Am. Compl. ¶¶ 66-84.)
DISCUSSION
Plaintiff’s Amended Complaint
Plaintiff’s Amended Complaint asserts fourteen Causes of Action. In his First
Cause of Action, Plaintiff alleges that, because the State Court Proceedings upholding the 1999
Contract were unconstitutional, Plaintiff remains the true owner of the Aston Martin DB5,
rendering Gerst’s transfer of the vehicle to Elkman a fraudulent conveyance. (Am. Compl.
¶ 67).
Plaintiffs’ Second, Third, Fourth, Fifth, Sixth and Seventh Causes of Action
allege that the written opinions stemming from the State Court Proceedings contained
defamatory lies about the Plaintiff and described Plaintiff’s role in the litigation wrongfully and
maliciously. (See generally id. ¶¶ 68-84.) Plaintiff further alleges that Gerst and Michael:
purposefully published those opinions where they could be viewed by anyone in order to defame
Plaintiff (id. ¶ 70); intentionally interfered with Plaintiff’s business relations (id. ¶ 73); conspired
to injure the Plaintiff (id. ¶ 76); intentionally interfered with Plaintiff’s contractual relations
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(Am. Compl. ¶ 79); intentionally inflicted emotional distress on the Plaintiff (id. ¶ 81); and
intentionally interfered with Plaintiff’s future business relations (id. ¶ 84).
Plaintiff’s Eighth Cause of Action alleges that, as a result of Gerst and Michael’s
actions, Plaintiff was forced “needlessly to spend a large number of hundreds of hours trying to
rectify the wrongs set out [in Plaintiff’s complaint],” causing plaintiff “loss and damage.” (Id. ¶
86.)
Plaintiff’s Ninth, Tenth, Twelfth, Thirteenth, and Fourteenth Causes of Action
allege that, as a result of Governor Cuomo’s failure to prevent corruption within the First
Department – as evinced by the Governor’s dissolution of the Moreland Commission prior to an
investigation of the Judiciary pursuant to Plaintiff’s report – Plaintiff was deprived of his
constitutional rights to freedom of speech (id. at ¶ 88-89), a republican form of government (id.
¶ 91-92), equal protection under the Fourteenth Amendment (id. ¶ 101), due process (id. ¶ 107),
and all other “basic rights ensured by U.S. Code § 1983.” (Id. ¶ 115-116.)
Plaintiff’s Eleventh Cause of Action alleges that Justice Kornreich’s $25,000
award of sanctions and costs constituted extortion in violation of the Hobbs Act on the part of
Justice Kornreich, Gerst and Michael, as well as the Special Referee who affixed the fee. (Id.
¶¶ 30-31, 93-99.)
Subject-Matter Jurisdiction
The Defendants’ motions raise numerous grounds for dismissal of the Amended
Complaint. As an initial matter, however, the Court must address whether Plaintiff has
established the Court’s subject matter jurisdiction of these claims because “[d]etermining the
existence of subject matter jurisdiction is the threshold inquiry and a claim is properly dismissed
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for lack of subject matter jurisdiction under [Federal Rule of Civil Procedure] Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Arar v.
Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008) (vacated on other grounds) (internal citations and
quotation marks omitted). In reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
“the court must take all facts alleged in the complaint as true and draw all reasonable inferences
in favor of plaintiff.” Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir.
2008) (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006)).
However, “[a] plaintiff asserting subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists,” Morrison, 547 F.3d at 170 (quoting Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000)), and such a showing may not be “made by
drawing from the pleadings inferences favorable to the party asserting” subject matter
jurisdiction. Morrison, 547 F.3d at 170 (quoting APWU v. Potter, 343 F.3d 619 623 (2d Cir.
2000)). In determining whether subject matter jurisdiction of the claims exists, the court may
consider evidence outside the pleadings. Morrison, 547 F.3d at 170.
Governor Cuomo’s Eleventh Amendment Immunity
The Supreme Court has held unequivocally that “regardless of the nature of the
relief sought,” suits in federal court which name states as defendants are proscribed by the
Eleventh Amendment, unless Congress has abrogated that state’s Eleventh Amendment
immunity, or the state has waived such immunity by unambiguously consenting to the suit. See
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984); see also College
Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Board, 527 U.S. 666, 670 (1999)
(“we have recognized only two circumstances in which an individual may sue a State. First,
Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth
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Amendment . . . Second, a State may waive its sovereign immunity by consenting to suit”);
McGinty v. State of New York, 251 F.3d 84, 91 (2d Cir. 2001). Such immunity unquestionably
extends to agencies of the state. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144 (1993) (“Absent waiver, neither a State or agencies acting under
its control may be subject to suit in federal court”) (internal quotation marks and citations
omitted); see also Mamot v. Board of Regents, 367 F. App’x 191, 192 (2d Cir. 2010) (summary
order) (“The Eleventh Amendment bars such a federal court action against a state or its agencies
absent a waiver of immunity or congressional legislation specifically overriding immunity.”).
Furthermore, it is “well settled that the ambit of the Eleventh Amendment’s immunity includes a
governor, in his official capacity.” See Nunez v. Cuomo, No. 11CV3457-DLI-LB, 2012 WL
3241260, at *20 (E.D.N.Y. Aug. 7, 2012) (internal quotation marks and citation omitted).
In the instant case, Plaintiff has asserted claims against the Governor in his
official capacity, alleging that Cuomo failed to properly execute the laws of the State of New
York, thereby permitting corruption to permeate both the judiciary and state agencies, ultimately
causing injury to Plaintiff. (See, e.g., Am. Compl. ¶¶ 9, 28, 35, 40, 42, 51, 63-65.) However,
Plaintiff has failed to plead a single fact demonstrating that either of the two exceptions to
Eleventh Amendment Immunity is applicable here. (See generally Am. Compl.) “It is
well-established that New York has not consented to § 1983 suits in federal court . . . and that
§ 1983 was not intended to override a state’s sovereign immunity.” Mamot, 367 F. App’x at 192
(internal quotation marks and citations omitted). Moreover, the Supreme Court has made it clear
that neither the State, nor a governor acting in his or her official capacity, is a “person” for the
purposes of a Section 1983 suit. See Will v. Mich. Department of State Police, 491 U.S. 58, 71
(1989) (“neither a State nor its officials acting in their official capacities are “persons” under
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§ 1983.”). Thus, Governor Cuomo is immune from suit under the Eleventh Amendment, and
any claims asserted against him by Plaintiff must be dismissed.4
Rooker-Feldman Doctrine
Plaintiff’s Amended Complaint must be dismissed for lack of subject-matter
jurisdiction in light of the applicability of the Rooker-Feldman doctrine to this case. See Lipin v.
National Union Fire Ins. Co. Of Pittsburgh, Pa., 202 F. Supp. 2d 126, 132-33 (S.D.N.Y. 2002)
(“The Rooker-Feldman doctrine is a judicially-created doctrine of abstention based on principles
of comity. The doctrine precludes federal district court jurisdiction where the suit is in fact a
collateral attack on a final state court judgment. District courts thus “do not have jurisdiction . . .
over challenges to state-court decisions in particular cases arising out of judicial proceedings
even if those challenges allege that the state court’s action was unconstitutional”) (quoting
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)). Pursuant to the
Rooker-Feldman doctrine, federal district courts lack subject matter jurisdiction of suits “that
are, in substance, appeals from state-court judgments.” Hoblock v. Albany County Bd. Of
Elections, 422 F.3d 77, 84 (2d Cir. 2005). “Underlying the Rooker-Feldman doctrine is the
principle, expressed by Congress in 28 U.S.C. § 1257, that within the federal judicial system,
only the Supreme Court may review state-court decisions.” Id. at 85.
Federal courts lack subject matter jurisdiction of a case pursuant to the RookerFeldman doctrine when four requirements are met: 1) the federal court plaintiff has lost in state
court; 2) the plaintiff complains of injuries caused by the state court judgment; 3) the plaintiff
4
The Court further notes that Plaintiff’s constitutional claims would, in any event,
likely fail under the Rooker-Feldman doctrine, as they turn on the proposition that
the State Court Proceedings were wrongly decided as well as corrupt. See
discussion infra.
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invites district court review and rejection of that judgment; and 4) the state court judgment was
rendered before the district court proceedings commenced. Hoblock, 422 F.3d at 85. Each of
these factors is present in the instant case. The State Court Judgment was rendered before the
instant proceedings were commenced. See Steinberg v. Queens Import Motors, 74 A.D.3d 493,
493-94 (N.Y. App. Div. 1st Dep’t 2010) (Plaintiff’s appeal, citing February 11, 2010, as
approximate date of Justice Kornreich’s original Judgment) (see also generally Am. Compl.,
indicating completion of multiple appeals prior to filing of this action). Steinberg lost in state
court when Justice Kornreich dismissed his claims and granted Gerst’s motion for sanctions and
attorneys fees, a decision that was later affirmed on appeal. Steinberg, 74 A.D. 3d 493. The
instant suit complains of injuries caused by the outcome of the State Court Proceedings (loss of
the car, subjection to sanctions, and alleged deprivations of constitutional rights), which Plaintiff
argues were unconstitutional for reasons that were rejected by the Appellate Division.
Finally, Plaintiff has invited the Court to review and reject the state court’s
conclusions by declaring the State Court Proceedings unconstitutional, granting relief from the
decisions rendered therein and removing the judge who rendered them. In order for the Court to
grant Plaintiff any of the relief that he seeks here, the Court would necessarily be forced to
analyze and reverse or overturn decisions made in the Supreme Court Proceedings before Justice
Kornreich, as well as the Appellate Division’s affirmance of those decisions. In order to grant
Plaintiff relief pursuant to his first Cause of Action, this Court would be required to determine
that Plaintiff was in fact the true owner of the Aston Martin DB5, a finding that would be in
direct conflict with the outcome of the State Court Proceedings, in which Plaintiff’s claim for
rescission of the 1999 Contract was dismissed. In order to grant Plaintiff relief pursuant to any
of the claims he asserts in Causes of Action Two through Seven this Court would, at a minimum,
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be required to find that the written decision rendered by Justice Kornreich as part of the State
Court Proceedings, which was later published pursuant to the ordinary course of operations of
the New York Supreme Court, in fact contained defamatory lies about the Plaintiff, thereby
rendering its publication and dissemination tortious conduct. In order to grant Plaintiff relief
pursuant to the Section 1983 claims asserted in Causes of Action Nine, Eleven, Twelve, and
Fourteen, this Court would need to find that Justice Kornreich’s conduct throughout the State
Court Proceedings denied Plaintiff his constitutional rights to free speech, due process, equal
protection, and a republican form of government, which would necessarily lead to examination
and alteration of the outcome of those proceedings. Finally, in order to grant Plaintiff relief on
his Eleventh Cause of Action, this Court would be required to find that Justice Kornreich sought
to extort money from Plaintiff, under the guise of sanctions she awarded in favor of Gerst and
Michael, which would ultimately lead to reversal of a decision rendered in the State Court
Proceedings. Thus, in order for this Court to award Plaintiff any of the relief he seeks in his
Amended Complaint, the Court would necessarily need to review and reverse aspects of the
State Court Proceedings, an outcome that is expressly foreclosed by the Rooker-Feldman
doctrine.
Because Plaintiff’s case satisfies each of the four criteria recognized by the
Second Circuit, the Rooker-Feldman doctrine bars any inquiry into the State Court Proceedings.
Therefore, Plaintiff’s complaint must be dismissed for lack of subject matter jurisdiction. See
Bourabah v. New York State Div. Housing and Cmty. Renewal, No. 08CV5693-LTS, 2009 WL
81157, at *1-2 (S.D.N.Y. Jan. 12, 2009) (dismissing case for lack of subject matter jurisdiction
pursuant to Rooker-Feldman doctrine where Plaintiff lost in state Court, lost on appeal, and filed
a suit on the same grounds in federal district court).
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In light of the Court’s conclusions that the action cannot be maintained against
Governor Cuomo and that the Court lacks subject-matter jurisdiction of Plaintiff’s claims, the
Court need not address Defendants’ remaining arguments for dismissal.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss the Amended
Complaint are granted.
This Memorandum Opinion and Order resolves Docket Entry Numbers 20 and
29. The Clerk of Court is respectfully requested to enter judgment dismissing the case for lack
of jurisdiction and close this case.
The Court certifies, pursuant to 28 U.S.C. 1915(a)(3), that any appeal from this
Memorandum Opinion and Order would not be taken in good faith, and therefore in forma
pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
SO ORDERED.
Dated: New York, New York
February 22, 2016
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
Copy Mailed To:
Jonathan Steinberg, Esq.
200 East 90th Street, Apt. 17A
New York, New York 10129
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