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RICHTER v. RUSSO

October 1, 1986

ANNA RICHTER, by her next best friend CHRISTINA REEDMAN, Plaintiff,
v.
ALICE RUSSO & EUGENE GROSS & JOHN J. LAMENDOLA, Defendants



The opinion of the court was delivered by: GOETTEL

GOETTEL, D.J.:

The defendants move to dismiss this action for lack of federal jurisdiction. Upon the facts, as set forth below, we conclude that the defendants' motions must be granted.

 Anna Richter, a woman in her 80's, was a resident of the Yorkville area of Manhattan for fifty years. She was generally regarded as a neighborhood eccentric who spent a lot of time walking her two dogs. She owned the building in which she lived at 315 East 85th Street, as well as an adjacent building, 317 East 85th Street. Christina Reedman alleges that she rented an apartment at 317 East 85th Street in 1964, and claims to have known Anna Richter since that time. In 1972, Richter sold 317 East 85th Street; Reedman still lived there. In December 1980, Reedman was seeking a new apartment and spoke to Richter about moving into 315 East 85th Street. According to Reedman, Richter allowed her and her three children to move into the fourth floor apartment if Reedman agreed to repair the boiler. *fn1" In January 1981, Richter accused Reedman of stealing boiler parts and evicted her. Reedman and her three children then moved in with attorney Thomas J. Kavanagh, who lived a few blocks away. Reedman married Kavanagh a few months later.

 Reedman contends that, despite being evicted and accused of theft by Richter, she continued to help the elderly woman. On September 25, 1981, Reedman brought Mrs. Richter to Metropolitan Hospital because of the latter's poor physical and mental condition. After doctors treated Richter for vermin bites and cleaned her up, she was referred for a psychiatric evaluation. The psychiatrist determined that Richter was somewhat senile and needed a structured, supervised setting because she was unable to care for herself. Reedman, with Kavanagh as her attorney, initiated a proceeding to have conservators appointed for Richter.

 On December 8, 1981, a competency hearing took place before Justice Blangiardo, of the Supreme Court, New York County. Justice Blangiardo appointed Alice Russo and Eugene Gross as co-conservators of the property of Anna Richter pursuant to Article 77 of the New York State Mental Hygiene Law. Alice Russo is Mrs. Richter's niece. Eugene Gross owned a dry cleaning store on East 85th Street, and had apparently become friendly with Mrs. Richter over the years. Richter had been living in his home in Queens since October 22, 1981, when she was released from Metropolitan Hospital. Reedman and Kavanagh opposed these appointments. *fn2"

 Kavanagh believed that he should get the legal work resulting from the conservatorship. His application was rejected and plaintiff now charges the Appellate Division, First Department with widespread corruption, fraud, and "cronyism." The plaintiff alleges that highly placed, influential members of the First Department are involved in Richter's affairs. These charges are based upon the fact that Robert P. McGreevy, Chief Law Assistant to the Justices of the Appellate Division, First Department, met Mrs. Richter through a friend of his wife who was concerned with Richter's plight. He referred Mrs. Richter to defendant John J. Lamendola, former law secretary to Justice Sandler of the First Department, for representation at the 1981 competency hearings. Reedman and Kavanagh believe they were superceded and then ousted by Lamendola in those proceedings. Since then, they have participated in an emotional and dramatic campaign to have her conservators removed for failure to comply with the orders issued at that time.

 Reedman, by her attorney Kavanagh, commenced this action on July 2, 1985, claiming that she could not get a fair trial in State Court. Christina Reedman was the named plaintiff; conservators Russo and Gross, and attorney Lamendola were the named defendants. The complaint sought removal of the conservators, appointment of a new conservator, and a judgment against Lamendola for $30,000 in fees for legal services which, according to the complaint, "LAMANDOLA N-E-V-E-R R-E-N-D-E-R-E-D." Complaint P 1. *fn3" The basis for federal jurisdiction was not clearly stated. However, it appeared that plaintiff relied upon diversity jurisdiction under 28 U.S.C. § 1332. Since all of the parties were New York citizens, diversity jurisdiction clearly did not exist.

 Plaintiff immediately moved for the appointment of a temporary receiver and a guardian ad litem. We denied that motion and expressed doubt that federal jurisdiction could be maintained merely because plaintiff contended that the state courts were operating on a patronage basis. *fn4"

 The defendants then moved to dismiss for lack of federal jurisdiction. Before that motion could be considered, the plaintiff amended her complaint. In the amended complaint, the plaintiff was designated as "Anna Richter, by her next best friend, Christina Reedman." Plaintiff claimed that although Richter had lived in the United States for more than sixty years, she had originally been born in Austria and had never been naturalized. Accordingly, plaintiff asserted diversity jurisdiction based upon Richter's foreign citizenship. The defendants again moved to dismiss the complaint. *fn5"

 The question of whether, for purposes of determining diversity, we should consider the citizenship of the incompetent or that of her next best friend is not clear-cut. See generally, 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3606 at 427-30 (2d ed. 1984). However,

 the manufacturing of federal jurisdiction by the use of guardians and next best friends as named plaintiffs is clearly frowned upon. Id. at 429. Here, we have the reverse, i.e., the representative asks us to consider not her citizenship but that of the incompetent in order to maintain federal jurisdiction. Since evidence strongly suggested that Mrs. Richter had been naturalized (she had voted in New York elections), the Court directed the parties to explore the factual issue, which would moot the legal question.

 Over a prolonged period of time, *fn6" the defendants obtained a number of documents clearly establishing the naturalized citizenship of Anna Richter. The plaintiff objected to this documentary evidence because of purported inconsistencies concerning the identity of the naturalized person and her various married names. Plaintiff insisted upon, and was granted, the opportunity to depose Anna Richter.

 The deposition was conducted on June 26, 1986. Plaintiff's counsel began by advising Mrs. Richter that if she answered questions properly she might be allowed to return to her old home and her dogs. The deposition was not fruitful. Richter was obviously senile or otherwise mentally incompetent. She stoutly maintained that she was a naturalized citizen, but denied that she had ever been married to a man named Kamlach. Her citizenship petition was in the name Anna Kamlach. A copy of her marriage certificate to her last husband, Gunter Richter, lists Alex Kamlach as her prior husband, from whom she was divorced in 1944. This deposition testimony, together with the citizenship papers, marriage certificates, and voter registration, establish beyond peradventure that Anna Richter is a naturalized American citizen and a citizen of New York. Consequently, there is clearly no federal diversity jurisdiction.

 We will consider briefly whether there are any other bases for federal jurisdiction. Reedman has alleged that Richter was "imprisoned" in Gross's home, but the report of a caseworker from the Department of Social Services contradicts that allegation. Russo and Gross have been charged with both nonfeasance and malfeasance, and criminal neglect in their care of Mrs. Richter. In addition, as mentioned above, plaintiff seeks to recover a money judgment of $30,000 against Lamendola, for legal fees for services they allege he never performed. Plaintiff Reedman charges that Mrs. Richter was not well cared for at the Gross home, and was held there against her will, as evidenced by her three-day escape in May 1984 (which attempt, Reedman says, was concealed from the courts). In addition, Reedman claims the defendants made a fraudulent attempt to "undersell" Anna Richter's property at ...


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