The opinion of the court was delivered by: Sand, District Judge.
In April of 1991, plaintiff brought this latest action in a
series of litigations challenging this judgment in the New York
Supreme Court, Bronx County, and filed a Notice of Pendency
with the County Clerk of Westchester County. On April 30,
defendants GHJV, Purvis, and Estate of Jack York removed the
action to this Court. Defendants now move to dismiss the
complaint with prejudice primarily on the ground of res
judicata and to cancel the Notice of Pendency. They also seek
a permanent injunction, costs and sanctions against plaintiff.
For the reasons discussed below, the motion to dismiss the
complaint and cancel the Notice of Pendency is granted.
Defendants' request for an injunction, costs and sanctions is
In August of 1986, GHIC purchased five Houston shopping
centers from GHJV, and assumed the mortgages and notes on these
properties which were payable to other lenders, including a
$5,507,966.51 promissory note due to the Sunrise Savings & Loan
Association [hereinafter "Sunrise"]. However, defendants
remained responsible for the mortgages if GHIC failed to meet
its obligations. Complaint ¶ 15; Memorandum Opinion,
CA4-87-205-K, Gold Hawk Joint Venture v. Gold Hawk Investments
Co., (N.D.Tex. March 7, 1988), at 2 [hereinafter "Memorandum
Opinion"]. At some point thereafter, GHIC defaulted on the note
due to Sunrise. Complaint ¶ 17. The lenders then accelerated
the mortgages and instituted foreclosure proceedings on the
shopping centers, as well as other property owned by the
defendants which had served as additional collateral on the
Sunrise note. Complaint ¶¶ 9-13; Memorandum Opinion at 2.
On March 26, 1987, GHJV sued GHIC, Carlin, Vlad Stevens and
Steve Stevens, Jr. in the United States District Court for the
Northern District of Texas for damages suffered from GHIC's
default. On May 19, 1987, after an inquest hearing, judgment
was entered against all the defendants in that action jointly
and severally in the amount of $7,903,519.42 with interest at
11.5% per annum from the date of judgment, and $25,000 in
attorneys' fees. [hereinafter "the Judgment"]. The Judgment was
docketed in the United States District Court for the Southern
District of New York on July 14, 1987, and in the Supreme Court
of the State of New York, Westchester County, on July 23, 1987.
See Etkin Affidavit in Support of Motion to Dismiss Complaint,
Cancel Notice of Pendency and for a Permanent Injunction, May
7, 1991, at 2-3 [hereinafter "Etkin Affidavit"].
In September 1987, GHJV commenced enforcement proceedings on
the Judgment in the Supreme Court of the State of New York,
Westchester County in an action directed at real property owned
there by Carlin. In his answer to the Complaint filed in that
enforcement action, Carlin challenged the validity of the
Judgment and on October 29, 1987, he obtained a stay of
execution while he moved in Federal Court in the Northern
District of Texas to vacate the Judgment. See Proceedings
before the Honorable Vincent A. Gurahian, Supreme Court of the
State of New York, County of Westchester, Application of Gold
Hawk Joint Venture for a Judgment Pursuant to CPLR 5206 for a
Sale of Homestead Exceeding Ten Thousand Dollars
v. Martin Carlin, Index No. 18232/87, (Oct. 29, 1987), at 2,
annexed to Etkin Affidavit as Exhibit B [hereinafter
"Application of Gold Hawk Joint Venture"].
On November 16, 1987, Carlin and the other defendants in the
Texas action moved to set aside the Judgment by Order to Show
Cause in the Northern District of Texas. See Order to Show
Cause, Gold Hawk Joint Venture v. Gold Hawk Investments Co.,
CA4-87-205-K, (N.D.Tex. Nov. 6, 1987), annexed to Etkin
Affidavit as Exhibit C. On March 7, 1988, the Court denied
Carlin's motion and upheld the Judgment. See Memorandum
Opinion. To execute on the Judgment, one of plaintiff's New
York properties, 175 Crary Avenue, Mt. Vernon, NY, was sold at
a Sheriff's sale, at which GHJV was the successful bidder.
Carlin appealed the district court's decision to the United
States Court of Appeals for the Fifth Circuit, which affirmed
the lower court. See Gold Hawk Venture v. G. H. Investment,
869 F.2d 1486 (5th Cir. 1989). Judge Gurahian subsequently granted
GHJV summary judgment in the enforcement action.
On April 5, 1990, Carlin filed a complaint in the Supreme
Court of the State of New York, Westchester County, challenging
the Judgment on the grounds that the cause of action was not
ripe for adjudication. This complaint was dismissed on the
grounds of res judicata and that the Judgment was not subject
to collateral attack. See Decision and Order, Carlin v. Gold
Hawk Joint Venture, Free Lunch, Inc., the State of New York,
and the United States of America, No. 6113-1990, Supreme Court
of the State of New York, County of Westchester, (Feb. 28,
1991), annexed to Etkin Affidavit as Exhibit E.
On April 1, 1991, Carlin filed the present complaint in the
New York Supreme Court, Bronx County and a Notice of Pendency
on the Crary Avenue property with the County Clerk of
Westchester County. In the present action, plaintiff asks for
indemnification from any judgment entered against him by the
FDIC as receiver of Sunrise in a suit now pending against both
plaintiff and defendants, and asks that GHJV be enjoined from
selling the Crary Avenue property and other New York property
obtained from him unless and until judgment is entered against
GHJV in the FDIC action. Plaintiff further requests that if
judgment is entered against GHJV in that action, GHJV be
directed to partially satisfy that judgment by transferring its
interest in the New York properties to the FDIC. Finally,
plaintiff asks that if the FDIC suit is dismissed or satisfied
for less than the fair market value of his New York properties,
that those properties, or the difference in value, be returned
to him. The action was removed to this Court on April 30, 1991.
On May 7, 1991 defendants GHJV, Purvis, and Estate of Jack H.
York moved to dismiss the complaint, cancel the Notice of
Pendency, and award a permanent injunction against plaintiff
under Fed.R.Civ.P. 65. Plaintiff has not responded to this
In considering a motion to dismiss for failure to state a
claim, the Court must take plaintiff's allegations as true.
See Hospital Building Co. v. Trustees of Rex Hospital,
425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976); Miree v.
DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2,
53 L.Ed.2d 557 (1977). The Court must construe the complaint in
a manner favorable to the non-moving party. See Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90
(1974). The Court should dismiss the complaint only if "it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
101-02, 2 L.Ed.2d 80 (1957) (footnote omitted); Goldman v.
Belden, 754 F.2d 1059, 1065 (1985).