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DOCKERY v. CULLEN & DYKMAN

March 30, 2000

ALGIA DOCKERY, PLAINTIFF
V.
CULLEN & DYKMAN, THE GREENPOINT SAVINGS BANK, GREENPOINT SAVINGS BANK, CITIBANK N.A., WILSHIRE CREDIT CORPORATION, GIRARD SAVINGS BANK, FIRST BANK OF BEVERLY HILLS, WMFC 1997-4, JOSE DIAZ, OCI MORTGAGE CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Gershon, District Judge

ORDER

Pro se plaintiff Algia Dockery commenced this action against defendants to "dismiss" a state court action in which a judgment of foreclosure and sale has been rendered and for punitive damages in the amount of $250,000 for fraud and mental distress. Defendants Greenpoint Savings Bank ("Greenpoint"), its attorneys Cullen and Dykman, Citibank N.A. ("Citibank"), and O.C.I. Mortgage Corporation ("O.C.I.") have now moved for dismissal on a variety of grounds.

Procedural Background

Plaintiff's complaint makes reference to two separate foreclosure actions commenced by defendant Greenpoint, through its attorneys, defendant Cullen & Dykman, in Supreme Court, Kings County. Greenpoint commenced, by Summons and Complaint dated November 25, 1991 (Supreme Court Index No. 45171/91), a foreclosure action on 237 Lexington Avenue, Brooklyn, N.Y. The action was based upon a default with respect to a mortgage extended by Greenpoint in the amount of $60,000. Greenpoint had previously commenced a foreclosure action on 215A Lexington by Summons and Complaint, dated May 8, 1991, (Supreme Court Index No. 14073/91) based upon a default with respect to a mortgage extended by Greenpoint in the amount of $47,500.

In Supreme Court, Kings County, Dockery continued to resist foreclosure by filing a motion to dismiss. In Dockery's affidavit dated March 18, 1996, Dockery made arguments based upon lack of due process, improper service, non-joinder of necessary parties and willful violation of the bankruptcy stay. By order dated October 31, 1996, the Supreme Court, Kings County, denied Dockery's motion to dismiss the complaint and the judgment of foreclosure. The Court also barred Dockery from seeking the same relief again because it had been denied on previous occasions. The Court held that violation of this order by Dockery would result in contempt of court and sanctions.

On May 19, 1998, the Supreme Court, Kings County, entered a final judgment of foreclosure and sale regarding 237 Lexington Avenue.

The Complaint

Plaintiff invokes the jurisdiction of this court pursuant to 28 U.S.C. § 1331. The complaint alleges that Greenpoint and Cullen & Dykman, and also defendant OCI, willfully violated plaintiff's bankruptcy stay on November 14, 1994, in order to accomplish a fraudulent scheme concerning the premises at 237 Lexington Avenue. The complaint further asserts that the judgment of foreclosure against 237 Lexington Avenue was obtained improperly, in violation of New York C.P.L.R. 201; non-joinder of an indispensable party; improper delivery and service of the initial Summons and Complaint; abuse of discretion and process; failure to file timely proof of service; "denial of the signing and entering of a second judgment on the merits, after violation of a court order"; improper vacating of a final judgment; and fraud.

The plaintiff demands relief dismissing the Supreme Court Action Index No. 45171/91 (the foreclosure action on 237 Lexington Avenue with prejudice and punitive damages of $250,000 for aggravated fraud and mental distress).

Subject Matter Jurisdiction

In addressing the motions to dismiss, the Court is mindful that the plaintiff is proceeding pro se, and that her submissions should be 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). "However inartfully pleaded," a pro se complaint can only be dismissed for failure to state a claim if it appears "`beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 520-21, 92 S.Ct. 594 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). When considering a motion to dismiss, the court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Gant v. Wallingford Bd. Education, 69 F.3d 669, 673 (2d Cir. 1995) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)).

Based upon a liberal reading of the complaint, it is clear that this court cannot proceed because it lacks subject matter jurisdiction. Under the Rooker-Feldman doctrine, this court lacks subject matter jurisdiction over an action if the exercise of jurisdiction would result in the reversal or modification of a state court judgment. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) (only the Supreme Court can entertain a direct appeal from a state court judgment); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483, n. 3, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) (federal courts do not have jurisdiction over claims which are "inextricably intertwined" with prior state court determinations); 18 Moore's Federal Practice § 133.30[3] (3d ed. 1999); see Hachamovitch v. DeBuono, 159 F.3d 687, 693-94 (2d Cir. 1998).

Under the Rooker-Feldman doctrine, a plaintiff may not initiate a federal court action that: (1) directly challenges a state court holding or decision; or (2) indirectly challenges a state court holding or decision by raising claims in federal court that are inextricably intertwined with the state court judgment, even if the claim is that the state court's action was unconstitutional. Feldman, 460 U.S. at 486, 103 S.Ct. 1303; see Moccio v. New York State Office of Court Admin., 95 F.3d 195, 198-200 (2d Cir. 1996); Smith v. Wayne Weinberger P.C., 994 F. Supp. 418, 423 (E.D.N.Y. 1998). Thus, plaintiff cannot avoid dismissal of the complaint by suggesting civil rights violations. Plaintiff claims that the action of the state judge constitutes the state action that allows the bringing of this federal action, presumably pursuant to 42 U.S.C. ยง 1983, but this is incorrect. See Drew v. Chase Manhattan Bank, N.A., 1998 WL 430549, at *7 (S.D.N.Y. July 30, 1998); Goldberg v. Merrill Lynch, ...


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