Brady v. John Goldman, Esq. et al

Filing 79

MEMORANDUM DECISION AND ORDER adopting 70 Report and Recommendations, granting 34 Motion to Dismiss, filed by Justin Singer, Esq., John Goldman, Esq., granting 50 Motion to Dismiss/Lack of Jurisdiction, filed by Joseph P. Augus tine, Esq., granting 29 Motion to Dismiss filed by Richard M. Zuckerman, Esq., granting 45 Motion to Dismiss filed by Adam Richards, Esq., granting 22 Motion to Dismiss, filed by Daniel R. Milstein, Esq., Steven Sinatra, Esq ., granting 15 Motion to Dismiss filed by Mark K. Anesh, Esq., Jaime Wozman, Esq., granting 23 Motion to Dismiss, filed by Justin Y.K. Chu, Esq. Having reviewed Magistrate Judge Netburn's Report and Recommendation, t his Court overrules Plaintiff's objections and adopts the Report in full. Defendants' motions to dismiss are GRANTED with prejudice. Given that any amendments will not overcome Plaintiff's subject-matter jurisdiction defects, Plaintiff is denied leave to amend the Complaint. (As further set forth in this Order.) The Clerk of the Court is directed to close the motions at ECF Nos. 15, 22, 23, 29, 34, 45,and 50, and this case. (Signed by Judge George B. Daniels on 1/11/2017) (mro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JAMES H. BRADY,
Plaintiff,

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Defendants.

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MEMORANDUM DECISION
AND ORDER
16 Civ. 2287 (GBD) (SN)

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GEORGE B. DANIELS, United States District Judge:
Plaintiff James Brady initially filed this action against ten individually-named lawyers and
seven law firms who had appeared as counsel in previous actions he filed. (Compl., ECF No. 1.)
Those actions centered around Plaintiffs claims regarding the air rights appurtenant to his
cooperative unit on the twelfth floor of the property at 450 West 31st Street in Manhattan. This is
the ninth case Plaintiff has brought in relation to his cooperative's alleged air rights. Here, Plaintiff
claims that Defendants' conduct in the previous state court actions constitutes a violation of New
York Judiciary Law ("NYJL") § 487's prohibition against attorney deceit, common law fraud, and
intentional infliction of emotional distress.
Plaintiff, invoking Federal Rule of Civil Procedure 60(b)(3), seeks to vacate a July 15,
2014 state court decision by Justice Shirley Kornreich, (id.

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-againstJOHN GOLDMAN, ESQ., et al.,

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which dismissed Plaintiffs state

court complaints on collateral estoppel grounds. Plaintiff also seeks $100 million in damages
against Defendants.
This matter was referred to Magistrate Judge Sarah Netburn. (ECF No. 3.) Before this
Court is Magistrate Judge Netburn's Report and Recommendation, ("Report," ECF No. 70), noting

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that this action is a part of Plaintiff's repetitive and vexatious litigation, 1 and recommending that
this Court grant with prejudice Defendants' seven motions to dismiss for lack of subject matter
jurisdiction and for failure to state a claim pursuant to Rule 12(b)(6). 2 (Id. at 2.)
In her Report, Magistrate Judge Netburn advised the parties that failure to file timely
objections to the Report would constitute a waiver of those objections on appeal. (Id. at 21-22);

see also 28 U.S.C. § 636(b)(l)(C); Fed. R. Civ. P. 72(b). Plaintiff filed timely objections to the
Report. 3 (See Pl.'s Obj. to Report ("Pl.'s Obj."), ECF No. 71.) Defendants filed timely responses
to Plaintiff's objections. (Defs.' Responses to Pl.'s Obj. ("Defs.' Resp."), ECF No. 73.)
This Court overrules Plaintiff's objections and fully adopts Magistrate Judge Netburn's
recommendation. Defendants' motions to dismiss are GRANTED with prejudice. The Complaint
fails to allege diversity jurisdiction and is barred by the Rooker-Feldman doctrine and collateral
estoppel. Plaintiff has also failed to state a claim upon which relief can be granted pursuant to
Rule 12(b)(6).

1

Indeed, as the Report notes, Plaintiff has already been barred in New York state courts from "initiating
any further litigation as party plaintiff without prior approval of the Administrative Judge of the court in
which he seeks to bring a further motion or commence an action[.]" (Report, at 5.)
2

The relevant procedural and factual background is set forth in detail in the Report and is incorporated
herein.

3

Plaintiff objects wholesale to the Report because Magistrate Judge Netburn "simply wants me to accept
being the victim of a crime and to ride off into the sunset." (Pl.'s Obj., at 16.) Without citing to any
persuasive or binding legal authority, Plaintiff states, "That is the finality Plaintiff is not willing to go along
with." (Id.) Plaintiff's various ad hominem attacks upon the Court, (see id. at 16-17, 18-19, 23), are plainly
inappropriate and have no factual basis.

2

I. LEGAL ST AND ARD
A district court may accept, reject or modify, in whole or in part, the findings and
recommendations set forth within the Report. See 28 U.S.C. § 636(b)(l)(C). When no objections
to the Report are made, the Court may adopt the Report if "there is no clear error on the face of
the record." Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (citation
omitted).
When there are objections to the Report, this Court must make a de nova determination as
to the objected-to portions of the Report. 28 U.S.C. § 636(b)(l)(C); see also Rivera v. Barnhart,
423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). It is sufficient that this Court "arrive at its own,
independent conclusions" regarding those portions to which objections were made. Nelson v.
Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (internal citation omitted)); see United States
v. Raddatz, 447 U.S. 667, 675-76 (1980). However, where a litigant's objections are conclusory,

repetitious, or perfunctory, the standard of review is clear error. McDonaugh v. Astrue, 672 F.
Supp. 2d 542, 547---48 (S.D.N.Y. 2009).
The pleadings of parties appearing pro se are generally accorded leniency and should be
construed "to raise the strongest arguments that they suggest." See Belpasso v. Port Auth. of N. Y
& NJ, 400 F. App'x 600, 601 (2d Cir. 2010) (internal citation and quotation marks omitted).

Nonetheless, even a pro se party's objections must be specific and clearly aimed at particular
findings in the Report, such that no party is allowed a "second bite at the apple" by merely
relitigating a prior argument. Pinkney v. Progressive Home Health Servs., No. 06 Civ. 5023, 2008
WL 2811816, at *l (S.D.N.Y. July 21, 2008) (internal citation and quotation marks omitted).

3

II. LACK OF SUBJECT-MATTER JURISDICTION

Plaintiff objects to the Report's finding that Plaintiff failed to allege subject matter
jurisdiction, (Pl.' s Obj., at 23 ), on the grounds that, "[b ]y answering the Complaint, Defendants
waived whatever objections they may have had to Plaintiff's pleading of federal jurisdiction." (Id.)
In deciding a motion to dismiss "pursuant to Rule l 2(b )(1 ), ... the Court must accept as
true all material factual allegations in the complaint, but should refrain from drawing any
inferences in favor of the party asserting jurisdiction." People United for Children, Inc. v. City of
New York, 108 F. Supp. 2d 275, 283 (S.D.N.Y. 2000) (citing Atlantic Mut. Ins. Co. v. Balfour
Maclaine Int'/ Ltd., 968 F.2d 196, 198 (2d Cir. 1992)). As previously noted, "under Rule 12(b)(1 ),

[a court is] permitted to rely on non-conclusory, non-hearsay statements outside the
pleadings .... "'

MES., Inc., 712 F.3d at 671. The party invoking the benefit of federal

jurisdiction bears the burden of establishing the existence of that jurisdiction.
Quarantillo, 541 F.3d 75, 82-83 (2d Cir. 2008) (internal citation omitted).

Sharkey v.

Accordingly,

"jurisdiction must be shown affirmatively, and that showing is not made by drawing from the
pleadings inferences favorable to the party asserting it." APWU v. Potter, 343 F.3d 619, 623 (2d
Cir. 2003) (quoting Shipping Fin. Servs. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (internal
quotation marks omitted)).
A. Diversity Jurisdiction

Plaintiff's objection contending that he does not need to allege diversity jurisdiction, to the
extent it is implied in his more general objection regarding subject matter jurisdiction, is baseless.
Plaintiff fails to appreciate the procedural distinction between an answer and a motion to dismiss
pursuant to Rule 12(b )( 6), as well as the difference between diversity jurisdiction, one of the
several heads of subject matter jurisdiction, and personal jurisdiction. Furthermore, federal courts

4

have a duty to dismiss an action sua sponte where it lacks subject matter jurisdiction. See Durani,
Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) ("If
subject matter jurisdiction is lacking and no party has called the matter to the court's attention, the
court has the duty to dismiss the action sua sponte."); accord Fed. R. Civ. P. 12(h)(3) ("If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
That is, defects in subject matter jurisdiction, unlike defects in personal jurisdiction allegations,
may not be waived. Accordingly, because Plaintiff fails to plead any facts regarding both the
individual and LLP Defendants' domiciles, the Report properly found that Plaintiff has failed to
allege diversity jurisdiction. (Report at 8-9.)
B. Rooker-Feldman Doctrine
Plaintiff also objects to the Report's finding that the Complaint runs squarely into the
Rooker-Feldman doctrine, 4 primarily claiming that he did not, in fact, lose in state court, and that
the state court decision in question was a result of fraud upon the court. (Pl.' s Obj., at 4-9.)
Plaintiff continues to ask that this Court disregard the July 15, 2014 decision of Justice Kornreich,
which dismissed one of Plaintiffs state court actions on collateral estoppel grounds 5 and imposed
sanctions on Plaintiff for vexatious and frivolous litigation. (See Report, at 10.)

The Rooker-Feldman doctrine prohibits lower federal courts from reviewing state court judgments. (See
Report, at 9.) In this Circuit, application of this doctrine involves a four-part test: "First, the federal-court
plaintiff must have lost in state court. Second, the plaintiff must 'complain[] of injuries caused by [a] statecourt judgment[.]' Third, the plaintiff must 'invit[ e] district court review and rejection of [that] judgment[
] . ' Fourth, the state-court judgment must have been 'rendered before the district court proceedings
commenced' ... ."(Id. (citing Hoblock v. Albany Cty. Ed. of Elections, 422 F.3d 77, 85 (2d Cir. 2005)
(internal citation and quotation marks omitted).)

4

Specifically, Justice Kornreich found that Brady's claims were precluded by the prior 2009 litigation,
Brady v. 450 W 31st St. Owners Corp. ("Brady I"), 70 A.D.3d 469 (2010), which was resolved in favor of
the Co-Op Defendants. See Brady v. 450 West 31st Street Owners Corp. ("Brady JI"), Nos. 157779/2013,
654226/2013, 2014 WL 3515939 (Jul. 15, 2014 Sup. Ct., N.Y. Cty.), (ECF No. 44-6).

5

5

As Defendants correctly respond, (Defs.' Resp., at 5), and the Report properly noted,
Plaintiffs bald contention that he "is not a Supreme Court loser" lacks any factual basis. (See
Report, at 10.) The opinion clearly states "the complaint is dismissed in its entirety ... with
prejudice" because any claim arising out of "the issue of who owns or controls the air rights
appurtenant to the Building's lot has already been decided in favor of the Co-Op" in the earlier
state court action initiated by Plaintiff.

(Brady 11, at 14.) To argue that the opinion somehow

reads otherwise confounds reality.
Plaintiffs attempts to bypass the Rooker-Feldman doctrine by contending that Justice
Kornreich's decision is the result of "the biggest of the Big Lies Defendants have advanced," (see
Pl. 's Opp'n to Defs.' Mot. to Dismiss ("Opp'n"), ECF No. 47, at 7), also ignore clear and
controlling law in this Circuit, which does not recognize a fraud exception to the Rooker-Feldman
doctrine, see Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002); indeed, Plaintiff fails to cite
any legal authority contrary to the Second Circuit's rule and merely restates the failed theories in
his opposition brief. (See Opp'n, at 7.) The Report properly found, therefore, that the Complaint
is barred by the Rooker-Feldman doctrine.
C. Collateral Estoppel

Plaintiff also objects to the Report's findings that plaintiff is collaterally estopped from
relitigating air rights issues already addressed in the various state court actions.

(See Report, at

11.) Plaintiff contends that dictionary definitions of air rights "prove Plaintiff was not a state court
loser." Such contentions are inappropriate. Plaintiffs lack oflegal arguments aside, as Defendants
note, it would make little sense to have a federal court vacate a state court ruling that he purportedly
won. (See Defs.' Resp., at 5.) The Report properly found that collateral estoppel precludes
Plaintiff from bringing his vacatur claims. (See Report, at 11.)

6

Ill. PLAINTIFF'S CLAIMS FAIL ON THE MERITS
Finally, the Report properly held that the Complaint failed to state a claim pursuant to
12(b)(6). Upon this Court's review of the record, Plaintiff objects with conclusory assertions he
has already raised in previous briefing: Defendants "steer[ed] the case to the Commercial Division
where they knew they had quid pro quo relationships with that small group of judges," (Pl. 's Obj.,
at 2); "Attorney Defendants committed fraud on the court by presenting false instruments and
deliberately deceptive arguments," (id. at 9); "Defendants' action were [sic] certainly 'atrocious
and utterly intolerable in a civilized community."' (Id. at 9).
To survive a motion to dismiss, "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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff
must demonstrate "more than a sheer possibility that a defendant has acted unlawfully"; stating a
facially plausible claim requires pleading facts that enable the court "to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Thus,
the factual allegations pleaded "must be enough to raise a right to relief above the speculative
level." Twombly, 550 U.S. at 555.
Defendants correctly respond that Plaintiff does not offer any legal support for his
objections. (Defs.' Resp., at 6-9.) As to Plaintiff's NYJL § 487 claim, the Report properly found
that Plaintiff waived that claim when he failed to raise it in the state court proceeding, and that
Plaintiff failed to allege why representations by Defendants in that proceeding were false or
deceitful.

(See Report, at 13-14.) While Plaintiff alleges the statements, speakers, and their

context, his fraud claims also fail because he does not explain with particularity why those
statements were deceitful as required by Rule 9(b)' s heightened pleading requirement. (Id. at 15.)

7

The Report also properly concluded that Plaintiff's intentional infliction of emotional distress
allegations do not amount to a colorable claim that Defendants' oral and written advocacy on
behalf of their clients were "atrocious and utterly intolerable in a civilized community." See
Howell v. N. Y. Post Co., 81 N.Y. 2d 115, 121-22 (1993); (id. at 16-17).

IV. CONCLUSION
Having reviewed Magistrate Judge Netburn's Report and Recommendation, this Court
overrules Plaintiff's objections and adopts the Report in full. 6
Defendants' motions to dismiss are GRANTED with prejudice.

Given that any

amendments will not overcome Plaintiff's subject-matter jurisdiction defects, Plaintiff is denied
leave to amend the Complaint.
The Clerk of the Court is directed to close the motions at ECF Nos. 15, 22, 23, 29, 34, 45,
and 50, and this case.

Dated: New York, New Yot
January 10, 2017
RDERED.

J ~. N 11 2017

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This Court refrains from a final ruling regarding the recommended filing injunction against Plaintiff and
will review the relevant arguments upon receipt of the supplemental Report and Recommendation. (See

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Report, at 17-21.)

8