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SINGH v. PARNES
April 29, 2002
DWARIKA SINGH, PLAINTIFFS,
HOWARD BARNES, ET AL., DEFENDANTS.
The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
The numerous defendants in this action, represented by counsel in four
groupings, have each filed a motion to dismiss the complaint filed by
plaintiff Dwarika Singh ("Singh"): (1) defendant HSBC Bank USA filed its
motion on July 2, 2001; (2) defendant Justice Douglas McKeon filed his
motion on September 10, 2001; (3) defendants Howard L. Parnes, James G.
Houlihan, Houlihan Parnes LLC, Frank T. Chiarello, WRA Properties Inc.,
Gates Assets Inc., Novick, Lubel, et al., Patricia A. Friederich, and
Peter M. Rivera filed their motion on October 4, 2001; and (4) defendants
1930 Grand Concourse, David Green, and 1056 Boynton Realty filed their
motion on October 17, 2001. On April 26, 2002, the Court heard oral
argument on the matter. For the reasons set forth in the statement made
by the Court on the record at the April 26, 2002 Hearing, a copy of which
is attached hereto and incorporated herein, the Court grants defendants'
motion. In addition, for the reasons set forth on the record, the Court
concludes that Singh has had a full and fair opportunity to litigate the
claims presented in this case and that the five other related actions
filed by Singh or his privies against substantially the same defendants
grounded on claims that essentially derive from the same core events
raise serious questions as to Singh's good faith in prosecuting these
actions. Accordingly, it is hereby
ORDERED that defendants' motions to dismiss the complaint filed by
Dwarika Singh are GRANTED; and it is further
ORDERED that Singh is hereby enjoined from filing, without leave of
this Court, further actions in federal courts in New York against any
defendant named in this action arising out of or relating to the events
and transactions involving the purchase, financing, foreclosure,
receivership or sale of the property located at 1930 Grand Concourse,
Bronx, New York by Singh, Mithila Realty, Inc., and any other parties in
privity with them, or out of the instant litigation before this Court.
The Clerk of the Court is directed to close this case.
SING v. PARNES, ET AL
01 Civ. 2449
Statement of the Court Regarding
Defendants's Motion to Dismiss
VICTOR MARRERO, United States District Judge.
Plaintiff Dwarika Singh ("Singh") brought this action, pro se, against
various defendants alleging violations of the Racketeering Influenced and
Corrupt Organization Act, 18 U.S.C. § 1961-68 ("RICO"). The events
and transactions that gave rise to Singh's complaint relate to: (1) the
purchase and mortgage financing of a property located at 1930 Grand
Concourse, Bronx, New York (the "Building") by Mithila Realty, Inc.
("Mithila"), of which Singh claims to be the assignee; (2) a foreclosure
and receivership proceeding with respect to the Building in 1996-97; and
(3) the subsequent sale of the Building by Mithila in 1997. Defendants
comprise of several entities and individuals involved at various times in
different aspects of those events and transactions. In responding to
Singh's complaint, defendants divided themselves into four groupings,
each of which filed a separate motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). For the purposes of the matter now before
it, the Court considers the sufficiency of Singh's claims in accordance
with the defendants' groupings. The Court notes that defendants' motions
to dismiss, following several extensions to answer in response to Singh's
multiple amendments to his complaint, were filed after defendants had
interposed their answers. Despite this untimeliness, the Court may
construe a Rule 12(b)(6) motion filed after the answer as one made
under Rule 12(c) for a judgment on the pleadings, the standard of review
for which is identical to that which applies to Rule 12(b)(6) motions.
See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 124
(2d Cir. 2001). The Court elects to so treat defendants' motions in this
case. For the reasons indicated, the motions are granted.
A. TRANSACTIONS RELATED TO THE BUILDING
The first group of defendants consists of persons and entities that
allegedly were parties in the purchase and mortgage financing of the
Building by Mithila in 1986. Some of these defendants had continuing
roles, along with others, in the subsequent foreclosure, receivership and
ultimate sale of the Building by Mithila to other defendants. These
defendants, here referred to as the "HP Defendants", include: Gates
Assets Inc, ("Gates"); Howard L. Parnes
("Parnes"); James G. Houlihan
("Houlihan"); Houlihan Parnes Realtors LLC ("HP Realtors"); Frank T.
Chiarello ("Chiarello"), WRA Properties, Inc. ("WRA"); Novick,
Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C. ("Novick");
Patricia A. Friederich ("Friederich"); and Peter M. Rivera ("Rivera").
Singh alleges that he was repeatedly defrauded by the HP Defendants in
connection with various transactions regarding the Building,
specifically: (1) Mithilas's purchase of the Building from Gates in
December 1986 and the related mortgage financing provided by Gates; (2)
the later assignment of the mortgage by Gates to Parnes and Chiarello and
collection of the mortgage debt and Building rents by them; (3) the
foreclosure action filed by Parnes and Chiarello in 1996 in which
attorneys Novick and Friederich, in violation of ethical standards,
represented Parnes and Chiarello and advanced their fraudulent purposes;
(4) the receivership proceeding in which Rivera was appointed a receiver
by a state court in 1997 and (5) the sale of the Building by Mithila in
1997 to WPA, an entity controlled by Chiarello, and WRA's subsequent
assignment of the mortgage to other defendants.
Singh alleges that Gates was a fictitious entity formed by Parnes and
Houlihan in violation of applicable state laws and for the sole purpose
of defrauding Mithila in the purchase and mortgaging of the Building.
Singh also claims that Parnes and Houlihan conducted their real estate
brokerage business as a racketeering enterprise engaged in fraudulent
buying and selling of real property, of which their transactions with
Mithila regarding the Building was an example. The pattern of fraudulent
and racketeering conduct, violating various provisions of state and
federal law, that Singh attributes to these defendants includes forming
fictitious entities, concealing and misrepresenting material facts,
forging documents, charging inflated brokerage fees, mail and wire fraud
and collecting money under threat of bringing foreclosure actions.
The second motion is that made by State Supreme Court Justice Douglas
E. McKeon ("McKeon"). Singh alleges that in connection with the
receivership action, Friederich and Rivera, by means of false and
misleading statements, conspired with McKeon and procured McKeon to rule
against Singh in denying a motion to vacate the receivership.
The third motion represents that of three defendants involved in
Mithila's sale of the Building in 1997. In that transaction, which Singh
alleges occurred under duress by Parnes and Chiarello, Mithila conveyed
the Building to 1930 Grand Concourse LLC ("1930 Grand Concourse"), which
later transferred to David Green ("Green"), who in turn assigned the
Building's underlying mortgages to 1056 Boynton Realty ("Boynton").
According to Singh, Boynton was a fictitious entity formed by Parnes and
Houlihan as part of their scheme to defraud.
Finally, the fourth motion was filed by HSBC Bank USA, ("HSBC"),
successor to Marine Midland Bank. Singh asserts that Boynton fraudulently
assigned two mortgages in the Building to HSBC in connection with a
$1,300,000.00 financing in March 1998 allegedly carried out in
furtherance of the conspiracy with Parnes and Green to defraud.
1. Singh v. Parnes, New York State Supreme Court, Queens County, Index
No. 24180/96 ("Singh I").
Plaintiff in Singh I was Bina Singh, wife of Singh and the designated
purchaser and signatory of the contract for sale of the Building in 1986.
In essence, the complaint in Singh I, filed in 1996, alleges that HP
Realtors, Parnes, Chiarello and Gates, among others, conspired to defraud
Mithila in connection with the sale and mortgage financing of the
Building by Gates. The state court, granting defendants' motions for
summary judgment in 1999, ruled that (a) Bina Singh had failed to plead
with the requisite specificity the nature of the tortious acts defendants
committed; (b) Mithila, having been dissolved by the State for failure to
pay taxes, lacked legal capacity to sue, and thus was barred from
maintaining any action in New York courts; and (c) Singh's fraud claim
was barred by the statute of limitations. The same court in March 2001
denied a motion by Dwarika Singh for leave to intervene or substitute
himself as plaintiff in that matter, noting that Singh had failed to
establish that Mithila was an existing corporation.
2. Singh v. Parnes, New York State Supreme Court, Bronx County, Index