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SINGH v. PARNES

April 29, 2002

DWARIKA SINGH, PLAINTIFFS,
V.
HOWARD BARNES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

    ORDER

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.

SO ORDERED.

SING v. PARNES, ET AL 01 Civ. 2449
Statement of the Court Regarding Defendants's Motion to Dismiss

April 26, 2002

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.

I. FACTS

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.

B. PRIOR LITIGATION

Under the principles enunciated by the Second Circuit in Cortec Indus. v. Sum Holding, 949 F.2d 42 (2d Cir. 1991), and related cases, the Court, in considering the motions to dismiss, takes note of three prior actions brought by Mithila, Singh and relatives in some form of privity with Singh, against some of the HP Defendants arising out of the same events and transactions that form the core of the action Singh asserts in this case. Those cases are:

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 No. ...

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