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May 21, 1999


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


Pro se plaintiffs Ida Reisner, David Reisner and Eric Reisner brought this action under, inter alia, 42 U.S.C. § 1983 and 18 U.S.C. § 1962 alleging that the defendants have engaged in a pattern of racketeering activity and conspired to deprive them of title to and possession of their home at 53 Gerow Avenue, Spring Valley, New York (the "Premises"). Plaintiffs have named as defendants in this action Michael Augello ("Augello"), the individual who allegedly took title to the Premises by fraudulent means, his son, Michael Augello, Jr., and his attorney, Kenneth Moran ("Moran") (collectively the "Augello defendants"); Albany Savings Bank, now known as Albank, FSB, and its predecessor in interest Heritage Savings Bank (collectively "Albank"), the institution that issued a mortgage loan to Augello in connection with his alleged purchase of the Premises; Andrew Stoller,*fn1 the Village of Spring Valley Justice who issued the warrant evicting plaintiffs from the Premises, and the Village Attorney of the Village of Spring Valley*fn2 (collectively the "village defendants"); William E. Sherwood, Justice of the Supreme Court of the State of New York, Rockland County, Gregory C. Grasselena, law clerk to Justice Sherwood,*fn3 James Pelzer, Supervisor of the Decision Department of the Appellate Division, Supreme Court of the State of New York, Second Judicial Department,*fn4 and William D. Friedmann, Associate Justice of the Appellate Division, Supreme Court of the State of New York, Second Judicial Department (collectively the "state defendants"); Jeffrey L. Sapir ("Sapir"), the Standing Chapter 13 Trustee for the Southern District of New York, who was the duly appointed Trustee for Ida Reisner in connection with her Chapter 13 bankruptcy filing; and finally, Charles L. Brieant, United States District Judge, Barbara S. Jones, United States District Judge, and Adlai S. Hardin, United States Bankruptcy Judge (collectively the "federal judicial defendants").*fn5

This matter is now before the Court on a variety of motions. The Augello defendants have moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings on the grounds that the court lacks subject matter jurisdiction and the action (i) is barred by the doctrine of res judicata, (ii) fails to state a claim upon which relief may be granted, (iii) is barred by the statute of limitations, and (iv) is barred by the statute of frauds.*fn6 The Augello defendants further request that the Court issue an order canceling the notice of pendency.

Albank has moved for an order dismissing the complaint (i) pursuant to Fed. R.Civ.P. 12(b)(1), on the ground that the Court lacks subject matter jurisdiction, and (ii) pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that the complaint fails to state a claim upon which relief may be granted and the action is barred by the applicable statute of limitations.

The village defendants have moved for (i) an order dismissing the complaint pursuant to Fed.R.Civ.P. 12(c), on the grounds that the Court lacks subject matter jurisdiction and the complaint fails to state a claim upon which relief may be granted; and/or (ii) for an order pursuant to Fed. R.Civ.P. 56(b), granting the village defendants summary judgment on the basis of judicial immunity and quasi-judicial immunity.*fn7

The state defendants have moved for an order dismissing the complaint pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that (i) the complaint fails to state a claim upon which relief may be granted, and (ii) judicial immunity, abstention and comity require its dismissal.

Sapir has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c),*fn8 on the grounds that (i) the complaint fails to state a claim upon which relief may be granted, (ii) Sapir as Bankruptcy Trustee is entitled to quasi-judicial immunity, and (iii) plaintiffs failed to seek permission to name the Chapter 13 Trustee as a defendant.

Lastly, the federal judicial defendants have moved for an order dismissing the complaint (i) pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, and (ii) pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted and the doctrine of absolute immunity.

For the reasons stated below, the motions of Albank, the village defendants, the state defendants, Sapir and the federal judicial defendants are granted. The Augello defendants' motion to dismiss is granted only insofar as it seeks: (1) dismissal of all claims against Michael Augello, Jr.; (2) dismissal of the RICO claims against Augello and Moran; and (3) dismissal of the abuse of process claim against Moran, subject to repleading by plaintiffs within 30 days of the date of this Order.


Some time prior to 1977, plaintiff Ida Reisner, then widowed, sold her home in Portchester, New York and moved with her two sons, plaintiffs David Reisner and Eric Reisner, to Greenridge Avenue in White Plains, New York. While living in White Plains, Ms. Reisner claims, and Augello does not dispute, that she and Augello were involved in an intimate relationship. Although Augello had allegedly informed Ms. Reisner that he was divorced, at all relevant times, Augello was living with his wife Rosario at their residence in Monsey, New York.

Exactly what transpired next is unclear at this stage of the litigation. Ms. Reisner alleges that she wanted to purchase a home in Spring Valley, New York (defined above as the "Premises") using the proceeds from the sale of her prior home as a downpayment, but was told by either Augello or Albank that she would need a male cosigner on the mortgage because she was a widow. It is clear that Kensher Homes, Inc., the seller of the property, initially believed that Ms. Reisner and Augello were going to purchase the property as man and wife because the letter confirming the time and place of the closing was sent to "Mr. and Mrs. Michael Augello" at Ms. Reisner's address on Greenridge Avenue, White Plains.

Ms. Reisner and Augello attended the closing on July 26, 1977. Ms. Reisner claims that Augello would not allow her to obtain legal counsel or to have an attorney present on her behalf at the closing. Ms. Reisner presented herself as Ida J. Augello and pretended to be Augello's wife. It appears that the deed was originally drafted to convey the Premises to "MICHAEL AUGELLO and IDA AUGELLO, his wife, both residing at 212 Greenridge Avenue, White Plains, New York" but the portion reading "and IDA AUGELLO, his wife, both" has been crossed-out. Ms. Reisner alleges that her name was deleted outside her presence and without her knowledge. Augello claims that she was aware that all documents executed at the closing were executed solely in his name.

It is undisputed that Ms. Reisner paid approximately $10,000 as a downpayment on the Premises; however, Augello claims that Ms. Reisner had loaned him that money. Augello executed a mortgage on the Premises for the remainder of the purchase price ($47,440.00) in his name only. Both the deed and mortgage were filed in the Rockland County Clerk's Office on July 28, 1977.

Ms. Reisner and her sons moved into the Premises in August of 1977. For approximately the next twenty years, Ms. Reisner made all mortgage payments to Augello in cash for which no receipts were given. Augello then forwarded such payments to Albank, presumably in the form of a personal check drawn on his own bank account. Ms. Reisner claims that she also paid for all utilities, expenses and maintenance of the Premises. Here, again the parties dispute the nature of the arrangement. Ms. Reisner believed that she was the owner of the Premises. Augello claims that he had an oral agreement with Ms. Reisner that she and her sons could live on the Premises, which was owned by him alone, for as long as they continued to make all mortgage, tax and expense payments.

In or about June of 1992, Ms. Reisner learned for the first time that her name had been removed from the deed. She claims that she confronted Augello and demanded a receipt for all cash payments made to him but that he refused to provide her with receipts. There is no indication of what explanation Augello offered with respect to the removal of her name from the deed, or what assurances he may have given with respect to her ownership or possessory interests in the Premises; however, it appears that Ms. Reisner continued to make some payments until Augello instituted an eviction proceeding in 1996.

On September 16, 1996, Augello commenced a summary proceeding in the Justice Court of the Village of Spring Valley, New York, by service of a Notice of Petition and Petition, Index No. 573/96, seeking (i) a judgment against Ms. Reisner for unpaid rent in the amount of $52,465.00*fn9 with interest thereon from January 1, 1988, (ii) a judgment awarding him possession of the Premises, and (iii) issuance of a warrant of eviction to remove Ms. Reisner and her sons from the Premises. Moran was retained by Augello in 1996 to institute the eviction proceeding.

On October 3, 1996, Ms. Reisner commenced an action in the Supreme Court of the State of New York, County of Rockland, seeking to remove the Justice Court proceeding to the Supreme Court and asking the Supreme Court to set aside or reform the deed so that it reflect Ms. Reisner as the owner of the Premises.*fn10 Augello moved to dismiss the action arguing that it was an action for common law fraud in connection with the execution of the deed and was therefore time-barred. The Supreme Court agreed and, on January 13, 1997, Justice Sherwood issued an Order granting Augello's motion to dismiss pursuant to N YC.P.L.R. § 3211(a)(5) (the "1997 Sherwood Order"). The Order cited the New York statutes of limitations for common law fraud, N YC.P.L.R. §§ 213(8) and 203(g), which require the action to be brought within six years of the fraudulent act or two years from discovery, whichever is longer. Given that the alleged forgery occurred in 1977, and that Ms. Reisner admitted to having learned of the forgery in June of 1992, Justice Sherwood dismissed the action.*fn11

The Spring Valley Justice Court then scheduled a March 11, 1997 trial date for the summary proceeding. The day before trial was to commence, Ms. Reisner attempted to remove the proceeding to the United States District Court for the Southern District of New York. By order dated June 18, 1997, Judge Barbara S. Jones remanded the proceeding to the Justice Court finding that the petition for removal was untimely under 28 U.S.C. § 1446, and the court otherwise lacked subject matter jurisdiction over the action.

On August 18, 1997, a trial was held in the eviction proceeding in Justice Court and judgment was rendered in favor of Augello. Prior to the issuance of a written decision, however, Ms. Reisner filed a Petition under Chapter 13 of the U.S. Bankruptcy Code in the United States Bankruptcy Court, Southern District of New York, In re Ida Reisner, Index No. 97 B 22163. Shortly thereafter, Ms. Reisner initiated an adversary proceeding against Augello asserting the same allegations regarding the fraudulent execution of the deed, and alleging a conspiracy among Augello and the New York State courts to deprive her of title to the Premises. On December 3, 1997, the Bankruptcy Petition was dismissed by Judge Hardin for failure to comply with a pre-confirmation order, and the adversary proceeding was thereby rendered moot. Judge Brieant subsequently upheld the dismissal on appeal.

The bankruptcy stay having been lifted, on January 6, 1998 the Justice Court issued a Judgment in favor of Augello and Warrant of Eviction, terminating any possessory interest in the Premises that Ms. Reisner and her sons may have had (the "1998 Judgment and Warrant of Eviction").*fn12

Ms. Reisner then brought an Article 78 proceeding in the Supreme Court of the State of New York, County of Rockland, seeking a review of the adverse determination of the Justice Court in the summary proceeding. Reisner v. Stoller, Index No. 1595/98. On April 16, 1998, Justice Sherwood dismissed the Article 78 proceeding on the grounds that the court lacked personal jurisdiction over the defendants and lacked subject matter jurisdiction because, under the Uniform Justice Court Act, it did not have appellate jurisdiction over the Justice Court of the Village of Spring Valley.

In a final, desperate lunge for relief, Ms. Reisner instituted the within action on May 6, 1998 alleging, inter alia, a conspiracy among all named defendants to deprive her of title to her property, due process and equal protection of the law. As the defendants' proposed grounds for dismissal of the complaint vary, we will address each motion separately.


A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). All well-pleaded factual allegations will be accepted as true and all reasonable inferences must be drawn in favor of the plaintiff. See Wright v. Ernst & Young LLP, 152 F.3d 169, 173 (2d Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 870, 142 L.Ed.2d 772 (1999). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[1][b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). However, the pleadings of pro se plaintiffs are held "to less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and must be liberally construed. See Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982).

In assessing the legal sufficiency of a claim, the Court may consider not only the facts alleged in the complaint, but also any document attached as an exhibit or incorporated by reference. See Fed. R.Civ.P. 10(c); Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). Attached to plaintiffs complaint as exhibits are copies of: (1) the deed dated July 26, 1977; (2) a signature page of Augello's mortgage of the Premises dated July 26, 1977; and (3) a letter from Kahn & Feeney, attorneys for Kensher Homes, Inc., addressed to Mr. and Mrs. Michael Augello at Ms. Reisner's address in White Plains, New York and dated July 18, 1977, advising of the date and time for closing of title to the Premises. To the extent that plaintiffs' allegations are contradicted by these exhibits, the exhibits control. See Sazerac Co. v. Falk, 861 F. Supp. 253, 257 (S.D.N.Y. 1994). The court may also take judicial notice of matters of public record, such as pleadings and court orders from prior litigation between the parties. See Hirsch, 72 F.3d at 1092; Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (court can consider previously dismissed complaint upon which defense of res judicata was based in motion pursuant to Fed.R.Civ.P. 12(b)(6)).

I. Albank's Motion to Dismiss

The complaint contains the following allegations against Albank:

    [D]efendant Heritage Savings bank required a `male
  co-signer' because of its gender discrimination
  policy. [Therefore,] in response to defendant
  Heritage's requirement for a `male co-signer,' [Ms.
  Reisner and Augello] took title by deed . . . in both
  [of their] names on July 28, 1977. (Compl. ¶ 2).
    The defendant Heritage Savings Bank ostensibly gave
  a mortgage to the said Michael Augello rather than
  Ida Reisner aka [sic] Ida J. Augello as agreed on the
  said premises having discriminated against plaintiff
  and illegally and deceptively required a `male
  co-signer' because plaintiff was a widow. This was
  the result of a fraudulent and criminal conspiracy by
  defendants Augello and Heritage. Augello, Heritage
  and other defendants forged the conveyance by
  attemptin[g] to strike out the name of Ida J. Augello
  aka [sic] of Ida Reisner. (Compl. ¶ 3).
    Heritage Savings Bank and Michael Augello . . .
  acting in concert, colluded, conspired, connived and
  plotted to forge the conveyance of the premises above
  referenced to attempt to strike the name of plaintiff
  from the said conveyance and to receive purported
  `mortgage' installments from the plaintiff without
  informing plaintiff of the forged deed . . . in
  support of illegal `gender' discrimination policies
  of the civil rights laws and the banking law, all to
  the plaintiff's damage. (Compl. ¶ 20).

From the long list of statutes pursuant to which plaintiffs allege that this Court has jurisdiction, those seemingly applicable to plaintiffs' claims against Albank are 42 U.S.C. § 2000e, 42 U.S.C. § 1983, 18 U.S.C. § 1961, and 15 U.S.C. § 1601. (Compl. ¶ 1).*fn13

First, Ms. Reisner alleges that Albank discriminated against her on the basis of her gender by requiring widows to have a "male co-signer" when applying for a mortgage loan. These allegations fail to support a claim under 42 U.S.C. § 2000e because the purported gender-discrimination did not arise in the employment context. A civil rights claim under 42 U.S.C. § 1983 is also not stated here because Albank (known as Heritage Savings Bank at the time) was not a state agency. Further, Ms. Reisner cannot establish a claim for violation of the Truth-in-Lending Act under 15 U.S.C. § 1601 which applies only to false statements or omissions with respect to loans, interest rates and related matters. It is undisputed that Ms. Reisner never personally applied for a mortgage loan from Albank. She admits that Augello alone applied for and ...

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