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SRUBAR v. RUDD

December 9, 1994

Luise Srubar, Plaintiff, -
v.
- Rudd, Rosenberg, Mitofsky, Hollender, Andrew Hoffman and Onda D'Urso, Defendants.



The opinion of the court was delivered by: RONALD L. ELLIS

 AND

 RECOMMENDATION

 TO THE HONORABLE KIMBA M. WOOD, United States District Judge:

 This is a federal civil rights action alleging a conspiracy by private parties to deprive pro se plaintiff Luise Srubar of her interest in a rent-controlled apartment. Plaintiff invokes the Fourth Amendment, procedural due process, and 42 U.S.C. §§ 1983 and 1983 in her complaint. The case is before the court on defendants' motion for judgment on the pleadings under Rules 12(c) and 12(h)(2), Federal Rules of Civil Procedures, for failure to state a claim upon which relief can be granted, or for summary judgment under Rule 56(b) or (c). For the reasons stated below, plaintiff's complaint should be dismissed.

 BACKGROUND

 Plaintiff Luise Srubar commenced this federal action on November 14, 1992, during the course of a holdover proceeding against, her in the Housing Part of the Civil Court of the City and County of New York. She named as defendants Onda D'Urso and Andrew Hoffman, "partners" in Armed Realty Co., the landlord; and Rudd, Rosenberg, Mitofsky and Hollender, the law firm which represented the landlord in the proceedings against plaintiff. The landlord commenced a holdover proceeding against plaintiff on or about February 5, 1992.

 Plaintiff's federal complaint, in relevant part, states:

 
1) That Defendants' filing in Fraud Holdover Proceeding seeking eviction of Plaintiff from her rent controlled apartment is an obstruction of justice and intimidation of Plaintiff in Court . . . [and as 42 U.S.C. § 1985 is] . . . aimed at conspiracies to obstruct justice . . . when Defendants tamper in fraud with the summons issued by the Civil Court of the city of New York and such corresponds with obstruction of justice, and when intimidation which directly affects Plaintiff in the Court is an actual transgression of Plaintiff's Civil Rights under [ 42 U.S.C. § 1985 and the Fourth Amendment];
 
2) Defendants' fraud committed in the name of the Civil Court . . . is deprivation of Procedural Due Process, a civil right, which might ultimately lead to the loss of Srubar's tenancy in her rent-controlled apartment . . . wherefore complaint . . . came within the grant of jurisdiction under [ 42 U.S.C. § 1985];
 
3) Allegation of pro se Plaintiff . . . must be considered under [ 42 U.S.C. § 1983 and liberally construed and] accepted as true in testing their sufficiency.

 Complaint at 1-2. In her "Statement of Facts," plaintiff alleges that the defendant litigants and their lawyers were "co-conspirators." She amplifies her claims by stating that defendants "fraudulently tampered with the [summons] ... in mailing them in fraud, and delivering them by hand to the Plaintiff's address," apparently believing that the Summons was "certified" and "mailed" to her by the court on February 5, 1992. She characterizes this alleged conduct as a "scare tactic" meant "to intimidate Plaintiff in obstruction of justice." She suggests that defendants, by serving her with the summons and complaint "issued by the Civil Court of the City of New York, County of New York," perpetrated "fraud" in the name of the court. She states that the defendant lawyers engaged in this conduct for the purpose of freeing their clients of "legal harassment charges [plaintiff had] formerly filed with the H.D.C.R."(presumably the State Division of Housing and Community Renewal). Complaint at 3.

 Defendants answered the complaint on December 4, 1992, and asserted as their second affirmative defense that plaintiff had failed to state a claim upon which relief could be granted. On November 10, 1993, plaintiff moved for leave to proceed in forma pauperis. On November 16, 1993, District Judge Kimba M. Wood referred the case to the undersigned for General Pretrial and Dispositive Motions. Defendants filed their motion for judgment on the pleadings on for summary judgment on June 14, 1994, and plaintiff submitted a cross-motion opposing dismissal and requesting trial by jury and additional relief on June 25, 1994. Plaintiff also commenced another federal action alleging violations of 18 U.S.C. §§ 1341 and 1342 (Mail Fraud Statute) on March 16, 1992, which Judge Wood dismissed on March 18, 1992 for lack of subject matter jurisdiction under Rule 12(b)(1), Federal Rules of Civil Procedures. For the reasons stated below, the plaintiff's civil rights complaint should also be dismissed.

 DISCUSSION

 The gravamen of plaintiff's complaint is that defendants conspired to obstruct justice through intimidating plaintiff, and that they conspired to deprive her of her civil rights. In addition to 42 U.S.C. §§ 1983 and 1985, she ...


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