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REISNER v. STOLLER
May 21, 1999
IDA REISNER, A/K/A IDA J. AUGELLO, DAVID REISNER AND ERIC REISNER, PLAINTIFFS,
A. STOLLER, SPRING VALLEY JUSTICE COURT, COUNTY OF ROCKLAND, J. MEARA DEPUTY SHERIFF, KENNETH MORAN, MICHAEL AUGELLO, WILLIAM E. SHERWOOD, COUNTY CLERK OF ROCKLAND COUNTY, J. GRASSELINO, LAW CLERK, VILLAGE ATTORNEY OF SPRING VALLEY, MICHAEL AUGELLO, JR., "JOHN" PELZER, WILLIAM D. FRIEDMANN, CHARLES BRIEANT, BARBARA JONES, ADLAI HARDIN, JEFFREY SAPIR, HERITAGE SAVINGS, KENSHER HOMES, INC., RONALD M. KAHN, JAMES M. FEENEY, ALBANY SAVINGS BANK AND JOHN DOES 1 TO 10, DEFENDANTS.
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
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,
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
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
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
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
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[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
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)).
The same legal standards apply to motions for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c). See Sheppard v.
Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (court must accept all
well-pleaded facts as true, draw all inferences in favor of
plaintiff, and should not dismiss unless convinced
plaintiff can prove no set of facts which would entitle him to
relief); Gleave v. Graham, 954 F. Supp. 599, 605 (W.D.N.Y. 1997)
(court may only consider pleadings, documents attached thereto or
referenced therein, and matters of judicial notice). "Pro se
complaints are to be construed particularly liberally," and
should be "interpreted to raise the strongest arguments they
suggest." Mitchell v. Keane, 974 F. Supp. 332, 338 (S.D.N Y
1997), aff'd, No. 98-2368, 1999 WL 159896 (2d Cir. March 17,
1999) (internal quotation and citations omitted). Further, in the
event the court finds that the complaint fails to state a claim
upon which relief may be granted, the court may permit the
plaintiff to amend the pleading if the requirements of
Fed.R.Civ.P. 15(a) are met. See 2 JAMES WM. MOORE ET AL.,
MOORE'S FEDERAL PRACTICE § 12.38 (3d ed. 1997); Moviecolor Ltd.
v. Eastman Kodak Co., 288 F.2d 80 (2d Cir. 1961).
I. Albank's Motion to Dismiss
The complaint contains the following allegations against
[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 ...