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Lomtevas v. Cardozo

January 31, 2005

PETER C. LOMTEVAS, PRO SE, PLAINTIFF,
v.
MICHAEL A CARDOZO, ESQ., INDIVIDUALLY AND AS CORPORATION COUNSEL OF THE CITY OF NEW YORK, JOSEPH GREENBERG, ESQ., INDIVIDUALLY AND AS ASSISTANT CORPORATION COUNSEL, NEW YORK STATE OFFICE OF COURT ADMINISTRATION, ELAINE C. CLARK, ESQ., INDIVIDUALLY AND AS SUPPORT MAGISTRATE OF THE QUEENS FAMILY COURT, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

Peter C. Lomtevas ("Lomtevas" or "plaintiff") brings this action against New York Corporation Counsel Michael A. Cardozo, Esq. ("Cardozo"), Assistant Corporation Counsel Joseph Greenberg, Esq. ("Greenberg"), the New York State Office of Court Administration ("OCA"), and New York Family Court Support Magistrate Elaine A. Clark, Esq. ("Clark") (collectively "defendants"), pursuant to 42 U.S.C. §1983, alleging conspiracy to violate and violations of his First, Fifth, Ninth, and Fourteenth Amendment rights.

Plaintiff seeks a judgment ordering that he be reunited with his son and enjoining defendants from attempting to assert jurisdiction in the New York State Family Court. He seeks declaratory relief and compensatory and punitive damages against Clark, and he seeks compensatory and punitive damages against Cardozo and Greenberg. He also requests that the court award him attorney's fees.

Defendants move to dismiss under Fed. R. Civ. P. 12(b)(6) and (1). For the foregoing reasons, defendants' motion to dismiss is granted in its entirety.

I. Factual Background

This action arises out of plaintiff's divorce from his wife Gisela Lomtevas (now Gisela Strom) ("Strom") on February 2, 1987. At the conclusion of that proceeding, the New York Supreme Court, Queens County, awarded plaintiff custody of their child and ordered him to pay Strom $50.00 a week in child support. (Compl. Ex. A at 2--3.) In the divorce judgment, Judge Zelman stated that "this court retains jurisdiction of this matter concurrently with the Family Court for the purposes of making such further decree with respect to alimony, support, and visitation as it finds appropriate under the circumstances." (Id. at 3.) Later that year, on June 5, 1987, Judge DePhillips of the Queens County Family Court awarded Strom temporary custody of the child. (Compl. Ex. C.) Lomtevas appealed that decision several times over a period of years.

Lomtevas filed an action in the New York Supreme Court, Queens County, to resettle the divorce judgment. The divorce settlement was reworded to state that, "the Supreme Court retains jurisdiction with respect to custody, alimony, support, and visitation . . . the Family Court shall not have any concurrent jurisdiction." (Compl. Ex. B at 3.) There was a subsequent period of confusion concerning which court had jurisdiction to hear the various custody claims and appeals filed by plaintiff. Ultimately, on December 4, 1989, the Appellate Division, Second Department, in declining to modify DePhillips' order granting Strom temporary custody of the child, noted that Lomtevas "may pursue his application for a change of custody in the Supreme Court." Lomtevas v. Lomtevas, 548 N.Y.S.2d 901 (2d Dep't 1989). Lomtevas never returned to the Supreme Court to apply for a change of custody nor, apparently, did he ever try to modify the November 5, 1987 child support order. (Compl. Ex. H at 2--3.)

Around 1991, Gisela Strom left for Germany with the child. According to Lomtevas, he never saw his child again. In March 2003, Strom reappeared to collect child support arrears by petition in the Queens County Family Court. On October 28, 2003, Support Magistrate Clark of the Queens County Family Court issued a temporary order of support directing Lomtevas to pay Strom $50.00 a week effective October 31, 2003. (Compl. Ex. G at 1--2.) Plaintiff filed several orders to show cause before the Supreme Court, Queens County, seeking to dismiss the Family Court proceeding. (Compl. Ex. F.)

Plaintiff's Order to Show Cause was adjourned several times and finally considered fully submitted on January 25, 2005. (Compl. Ex. H at 4.) On April 14, 2005, Judge Lebowitz of the Queens County Supreme Court denied the motion to dismiss the Family Court proceedings, explaining that his court did "not have the jurisdiction to dismiss a proceeding pending in another court." (Id.) Lebowitz recommended that Lomtevas raise the jurisdictional issue in the Family Court proceeding. Lomtevas appealed Lebowitz's decision to the Appellate Division, Second Department, but the Second Department Clerk's Office reports that the appeal was withdrawn on October 15, 2005. (See Goldberg Decl. at 2, Ex. B.)

As per Judge Lebowitz's recommendation, plaintiff filed a motion in Family Court to dismiss Clark's order of support for lack of subject matter jurisdiction. On June 6, 2005, Strom's petition was dismissed, and the dismissal was affirmed by Judge Lubow in the Family Court on August 10, 2005. (Goldberg Decl, Ex. C.) Corporation counsel reports that Strom will appeal Judge Lubow's decision. (Goldberg Decl. at 2.)

On June 9, 2005, Lomtevas filed this complaint. He alleges that Clark issued the order of temporary support without subject matter jurisdiction and in violation of his due process rights. He alleges that OCA, as Clark's employer and supervisor, is also culpable. He further alleges that Greenberg and Cardozo's refusal to acknowledge that the Family Court did not have jurisdiction and their zealous prosecution of Strom's child support enforcement petition violated his constitutional rights.

II. Discussion

Standard of Review

In reviewing a complaint under Fed. R. Civ. P. 12(b)(1), the court accepts as true all factual allegations in the plaintiff's complaint. Atlantic Mut. Ins. Co. v. Balfour Maclaine Intern. Ltd., 968 F.2d 196, 198 (2d Cir. 1992). However, "inferences favorable to the party asserting jurisdiction should not be drawn." Id. A case is properly dismissed under 12(b)(1) when "the district court lacks ...


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