Marom v. Town of Greenburgh et al

Filing 187

OPINION AND ORDER re: 183 MOTION to Set Aside . filed by Keira Knoesel, John Herighty. Based on the foregoing, Defendants' motion is granted. Plaintiff's in forma pauperis status is deemed revoked, without prejudice to renew. The Clerk of Court is respectfully directed to terminate the motion at Doc. No. 183. This constitutes the Court's Opinion and Order. (Signed by Judge Nelson Stephen Roman on 10/11/2017) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL MAROM,
Plaintiff,
OPINION AND ORDER

-againstTOWN OF GREENBURGH, POLICE OFFICER
JOHN HERIGHTY, POLICE OFFICER KEIRA
KNOESEL, et al.

13 CV 4733 (NSR)

Defendants.

NELSONS. ROMAN, United States DistrictJudge:
Michael Marom, prose Plaintiff ("Marom" or "Plaintiff'), commenced this action
against Defendants asse1ting claims, inter a/ia, under 42 U.S.C. § 1983, alleging he was
unlawfolly arrested, detained and criminally prosecuted. By order dated August 7; 2013,
Plaintiff was granted inJorma pauperis status (Doc. No. 3). Defendants moves to revoke
Plaintiffs in Jonna pauperis status on the basis Plaintiff did not fully and truthfolly disclose his
finances in his supporting financial affidavit ("financial affidavit") (Doc. No. 183). For the
following reasons, Defendants' motion is GRANTED.
28 U.S.C. § 1915(l)(a) provides, in relevant part, that any court of the United States may
authorize the commencement and prosecution of a civil suit without prepayment of fees by a
person who submits an affidavit that includes a statement of all assets such person possesses and
demonstrates an inability to pay the requisite fees. lnJorma pauperis status is not a
constitutional right but rather a statutorily created benefit to assist those who lack the financial
resources to access the courts. See Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (citing

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1176, 1180 (9 111 Cir. 1999)). A litigant seeking in Jonna pauperis

status need not demonstrate "absolute destitution" to qualify. See Po/nick v. E. State Hosp., 701
F.2d 243, 244 (2d Cir. 1983). The court may rescind or revoke the informa pauperis status that it
previously bestowed upon a plaintiff, ifthe court discovers that the status had been
improvidently granted. Welch v. Char/an, No. 9:06-CV-0061(GTS/DEP),2008 WL 5382353, at
*I (N.D.N.Y. Dec. 16, 2008). Whether to grant or deny informa pauperis status rests within the
sound discretion of the court. Monti v. McKeon, 600 F. Supp. 112, 113 (D. Conn. 1984) (citing

United States v. Jeff-Lewis Savings & Loan Association, 530 F.Supp. 623, 628 (N.D.N.Y.
1982)), affd, 788 F.2d I (2d Cir. 1985); Venable v. }.!eyers, 500 F.2d 1215, 1216 (9th Cir. 1974),

cert. denied, 419 U.S. 1090 (1974).
Defendants seek a court order revoking Plaintiffs in Jonna pauperis status on the basis
that Marom did not disclose all of his financial assets. In paiticular, Defendants assert that
Marom failed to disclose that he and his wife jointly own a home located at 2574 Central
Avenue, Baldwin, NY ("the Baldwin Property") and realty located at 11 Elizabeth Street,
Greenburgh, NY ("the Greenburgh Property"). Defendants assert Marom misled the comt by
failing to disclose the amount of equity he held or accumulated in his properties. Additionally,
Defendants infer that Marom minimized his position and earnings as an employee of MM
Telcom Corp., located at 2574 Central Avenue, Baldwin, NY (same address as his residence).
In suppo1t of their application, Defendants submit the affidavit of Ellen Franzese
("Franzese"), a paralegal, who conducted a search of municipal records. Her search revealed
Plaintiff owns two properties: the Baldwin Property and the Greenburgh Prope1ty. 1 The Fair

1

According to Franzese, the Greenburgh Property, 11 Elizabeth Street, Greenburgh, NY, is also
known as 201 South Healy Avenue, Scarsdale (Town of Greenburgh), NY. The prope1ty is
located at the intersection of South Healey and Elizabeth Street.

Market Value Assessment for the Baldwin Property is $343,600.00 and the Greenburgh Property
is $480,000.00. There is no recorded mortgage on the Greenburgh Properly but it has a
$25,707.40 tax lien. The Baldwin Property has a recorded mortgage lien in the amount of
$354,750.00 and a $35,724.75 tax lien.
Plaintiff asse1ts that he did not make any material misrepresentation in his financial
affidavit which warrants granting Defendants' request. Marom avers he correctly revealed that
he owned a home, referring to the Baldwin Property, which was "FULLY MORTGAGED"
(meaning 80% of its purchase price was mo1tgaged), and that such representation is consistent
with the information he previously provided. He acknowledges owning the Greenburgh Property,
but provides no explanation for not including it in his financial affidavit. Marom, however, does
aver that construction on the Greenburgh Propetty "halted in 2013," causing it to be a liability
because he has to pay taxes. The Greenburgh Prope1ty was purpo1tedly appraised for
$828,800.00 "as completed and not as in the current uncompleted status." Lastly, Marom avers
his financial situation has only worsened since he prepared the financial affidavit in July 2013.
His current debts are in excess of $300,000.00. In the past twelve months, his household income
was $11, 163 .30 (or $930.28 per month).
A review of Plaintiffs financial affidavit reveals he purportedly earned no ("O") income
from his position2 at MM Telcom Corp., that he received $27,400.00 from family members
within the past twelve months of his application, and his home was purportedly fully mortgaged
in the amount of $440,000.00. The Court agrees with Defendants that Marom's affidavit fails to

2

Defense counsel suggest that Plaintiff is the President of MM Telcom Corporation but provides
no proof to support its contention.

adequately and fully disclose his finances. The document makes no mention of the Greenburgh
Property, which appears to have considerable value, and makes no mention of any equity he
accumulated on the two prope1ties. Of significance, Plaintiff now represents that the actual
outstanding m01tgage debt on the Baldwin Property is less than he represented to the comt.
In lvfathis v. New York Life Ins. Co., 133 F.3d 546 (7 1h Cir. 1997), the circuit court upheld
the district comt' s revocation of in form a pauper is status and dismissal of the complaint as a
sanction for the plaintiffs intentional misrepresentation of his financial status. Plaintiffs failure
to disclose that he owned a home with approximately $14,00.00 of equity and that he was
previously represented by appointed counsel, were deemed "intentional misrepresentations"
warranting such sanctions. Id at 54 7. The court found plaintiffs explanation, that he did not own
the house "free and clear," and that he misunderstood the questions regarding legal counsel,
lacking in credibility and unpersuasive. Id
The Court determines that Plaintiffs financial affidavit failed to adequately and fully
disclose his finances and that such failure was intentional. Plaintiff does not provide an
explanation for not including the Greenburgh Property in his financial affidavit. Although in the
opposition to the instant motion Plaintiff acknowledges that he owns the Greenbugh Property, he
provides no assessment of the current value of the property. His representation that construction
on the property has yet to be completed, begs the question. Similarly, his conclusory statement
that it "became a liability rather than an equity asset" fails to provide sufficient information for
the Comt to make an informed decision regarding Plaintiffs finances such that informa

pauperis status should not be revoked. Based on Plaintiffs lack of candor and his intentional
withholding of relevant financial information, Plaintiffs informa pauperis status must be

revoked. This revocation is without prejudice to renew. Plaintiff is referred to 28 U.S.C. § 1915
and Rule 24 of the Federal Rules of Appellate Procedure.
CONCLUSION
Based on the foregoing, Defendants' motion is granted. Plaintiffs informa pauper is
status is deemed revoked, without prejudice to renew. The Clerk of Court is respectfully directed
to terminate the motion at Doc. No. 183. This constitutes the Court's Opinion and Order.

Dated:

October 111 2015
White Plains, New York

SO ORDERED:

c:V

NELSON S. ROMAN
United States District Judge