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Wik v. City of Rochester

November 13, 2008

DANIEL JOSEPH WIK, PLAINTIFF,
v.
CITY OF ROCHESTER, ET AL. DEFENDANT.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

This civil rights case is before the Court on Defendants' motion (Docket No. 13) to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), (2), (4) and (6). It is also before the Court on what appears to be a cross-motion by Plaintiff (Docket No. 15) "dismissing the Motion and Order issuing Defendants' Extension of Time to Answer."*fn1 For the reasons stated below, Plaintiff's cross-motion is denied and Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) is granted.*fn2

BACKGROUND

For the purpose of adjudicating the pending motion to dismiss, the Court assumes all the allegations in the amended complaint (Docket No. 7) are true and views them in the light most favorable to the non-moving party. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989). The Court reproduces, below, three sections of Plaintiff's amended complaint:*fn3 Definitions, Material Facts and Federal Causes of Action.

III. Definitions

2. "Daniel J. Wik" is both Plaintiff's name and Plaintiff's complete address.

3. Plaintiff's name was given to Plaintiff by Plaintiff's Father in a solemn religious ceremony and when Plaintiff came of competent age Plaintiff covenanted with God to keep Plaintiff's name sacred and free from perversions. Thus violating Plaintiff's name violates Plaintiff's rights to religious freedom.

4. Plaintiff's name is an English language proper noun.

a) Therefore, according to the rules of the English language, said name must at all times be spelled with capital and lower case letters (as it is throughout this complaint).

b) According to the English language rules Proper nouns not properly capitalized are mis-spelled; and, Implications at law indicate spellings in the nature of all capital letters can only indicate dead persons or some fictitious business name or corporate capacity; and, Plaintiff is neither dead nor in corporate capacity;

c) Misspellings indicate some other person other than Plaintiff.

d) It is a violation of law to accept or receive mail not addressed to you.

e) Any misspelling of Plaintiff's name or address will cause the device using the misspelling to be returned marked, "Refused for Cause", as to accept or receive such would constitute a crime.

5. Plaintiff's exact mailing location is:

"c/o non-domestic, 659 Averill Avenue; near: Rochester, New York".

6. Said mailing location is a de jure New York Republic location, and as such is not a part of the corporation known as: "THE STATE OF NEW YORK", and is not a part of the corporation known as: "THE UNITED STATES GOVERNMENT", and therefore said location cannot be represented by corporate state or federal zone locators like, zip codes, and/or corporate state trademarks like, "NY". Mail addressed with federal such zone locators will not be delivered to Plaintiff and if such are by mistake or any other means delivered, as a matter of law, such mail cannot be accepted or received without committing a crime and will therefore be refused..

V. Material Facts

1. All factual contents of the "Parties" section above are included herein as if fully reproduced herein.

2. At all times relative to this action Plaintiff was the owner or had privity of title to 23-31 Anderson Avenue, 48 Ripley Street, 1244-1246 East Main Street, 179 North Union Street, 225 North Union Street, 305 North Union Street, and 366-366.5 Alexander Street, which are located in Rochester, Monroe County, New York state.

3. Plaintiff had possession of 23-31 Anderson Avenue, 48 Ripley Street, 1244-1246 East Main Street, 179 North Union Street, 225 North Union Street, 305 North Union Street, and parts of 366-366.5 Alexander Street, which are located in Rochester, Monroe County, New York state.

4. Plaintiff has personal property stored at 23-31 Anderson Avenue, 48 Ripley Street, 1244-1246 East Main Street, 179 North Union Street, 225 North Union Street, 305 North Union Street, and 366-366.5 Alexander Street.

5. On or about the 7th of December 2005 agents and/or employees for the CITY filed a List of Delinquent Taxes as of July 1, 2005 in the Monroe County Clerk[']s office which was assigned the Index # 13605/05 in THE STATE OF NEW YORK, COUNTY OF MONROE, SUPREME COURT.

6. The properties 23-31 Anderson Avenue, 48 Ripley Street, 1244-1246 East Main Street, 179 North Union Street, 225 North Union Street, 305 North Union Street, and 366-366.5 Alexander Street were included in the List of Delinquent Taxes as of July 1, 2005.

7. On or about the 5th of January 2006, Treasurer Benincasa, made a statement to the effect that being duly sworn he is the City Treasure for THE CITY OF ROCHESTER; that he is responsible for the compilation of the City's tax foreclosure list, and mailing the Foreclosure Notices to all owners of the properties; that the letters for each property were placed in envelopes, sealed, and were run through a postage meter regular first class postage, and mailed on December 6, 2005.

8. Plaintiff has never been served the Petition of Foreclosure or Notice of Foreclosure in regard to Foreclosure of the List of Delinquent Taxes as of July 1, 2005 for 366-366.5 Alexander Street, 23-31 Anderson 8 Avenue, 48 Ripley Street, 1244-1246 East Main Street, 179 North Union Street, 225 North Union Street, or 305 North Union Street.

9. On or about the 16th of August 2006 Plaintiff filed and served the legal department for the CITY an Answer to the Foreclosure of the List of Delinquent Taxes as of July 1, 2005 denying the claim of delinquent taxes and claiming violation of plenary rights thereby creating a controversy.

10. On or about the 16th of August 2006 Plaintiff filed and served the legal department for the CITY Notice of Interests for the properties 366-366.5 Alexander Street, 23-31 Anderson Avenue, 48 Ripley Street, 1244-1246 15 East Main Street, 179 North Union Street, 225 North Union Street. or 305 North Union Street.

11. On or about the 4th of October 2006 Complaint had a conversation with Attorney Smith whereby Attorney Smith stated words to the effect that anyone could redeem any property from the Foreclosure of the List of Delinquent Taxes as of July 1, 2005 by paying the delinquent years taxes or entering into a payment plan with the CITY anytime before the close of the business day prior to the tax sale auction.

12. On or about the 29th of November 2006, Treasurer Benincasa signed an affidavit to the effect that being duly sworn he is the City Treasurer for THE CITY OF ROCHESTER; that he is responsible for collecting real property taxes levied by the CITY; that the information as stated in the List of Delinquent Taxes as of July 1, 2005 are correct to the best of his knowledge; that his staff carried out the task of mailing the Foreclosure Notices to all owners of the properties; and that the notices were mailed on December 7, 2005.

13. On or about the 29th of November 2006, Attorney Smith signed an Attorney's Affirmation swearing under penalty of perjury to the effect that the CITY had published a Notice of Foreclosure in two newspapers; a Notice of Foreclosure was mailed to the last known owner of each parcel; that the parcels in Schedule 4 were covered by a bankruptcy stay which prevents the commencement of an action to enforce the collection of delinquent taxes; that the parcels in Schedule 6 had Notice of Interests filed and these properties under 9-139(C) of the Charter must be offered for sale by public auction and that if any of these properties are redeemed prior to the auction they will be removed from the auction; and that the parcels in Schedule 8 which have not been redeemed, no notice of interest served, and no tax agreement entered into with the City requested an order granting the CITY judgment of foreclosure pursuant to Section 9-139(A) of the City Charter.

14. Attorney Smith's Attorney's Affirmation signed on or about the 29th of November 2006, states word to the effect that in regard to the properties in Schedule 6 all the Notice of Interest are hereby admitted and that if any of these parcels are redeemed prior to the time of the public auction, such properties will be removed from the auction list, and the City will, upon request, issue a Certificate of Redemption.

15. The properties 179 North Union Street, 225 North Union Street, 305 North Union Street, 48 Ripley Street, and 1244-1246 East Main Street were included in Schedule 6, and 366-366.5 Alexander Street and 23-31 Anderson Avenue were included in Schedule 8.

16. On or about the 11th of December 2006 in an Ex Parte term of the Supreme Court in the matter of the List of Delinquent Taxes as of July 1, 2005 upon a motion by Counselor Richards and Attorney Smith before THE STATE OF NEW YORK, COUNTY OF MONROE, SUPREME COURT, Justice Rosenbaum issued a[] Judgment upon the Attorney's Affirmation of Scott C. Smith and the Treasure's [sic] Affidavit of Charles A. Benincasa to the effect of issuing parcels in Schedule 6 to be auctioned at public auction, and parcels in Schedule 8 that a judgment be entered for the CITY to take immediate possession.

17. Plaintiff was never served noticed nor had prior knowledge of the hearing held on or about the 11th of December 2006 before Justice Rosenbaum.

18. It is public policy that the agents and/or employees of the CITY accepts payment from any party for delinquent taxes included in the Foreclosure of the List of Delinquent Taxes as of July 1, 2005 up until the close of the day before the tax foreclosure auction for redemption of properties included in the auction.

19. The agents and/or employees of the CITY accepted payment for delinquent taxes and entered into payment agreements regarding properties included in the Foreclosure of the List of Delinquent Taxes as of July 1, 2005 up until the close of the business day before the tax foreclosure auction for redemption of properties from numerous individuals tendering discharge of the delinquent taxes.

20. Plaintiff became aware of the In Rem Tax Foreclosure auction regarding the properties in the List of Delinquent Taxes as of July 1, 2005 when Plaintiff saw a flyer a few days prior to the auction that was scheduled for the 18th of January 2007.

21. On or about the 17th of January 2007 Plaintiff (accompanied by witness, Freeman Burks) went to Rochester, Monroe County, New York state CITY Treasurer's cashiers window and timely tendered full payment under protest in lawful money [substance: 31 USC §5103; 31 USC §5112(h). form 31 USC §5112 (a)(7) and (a)(1O)J for the alleged taxes on 366-366.5 Alexander Street, 23-31 Anderson Avenue, 48 Ripley Street, 1244-1246 East Main Street, 179 North Union Street, 225 North Union Street, and 305 North Union Street to Treasury Clerk Jean Profetta (hereinafter Treasury Clerk Profetta).

22. Plaintiff told Treasury Clerk Profetta words to the effect that he was paying the alleged taxes in full under protest in lawful money of the United States of America.

23. Treasury Clerk Profetta took one coin and a receipt from the United States Mint from Plaintiff and stated words to the effect that she needed to speak to her supervisor and would return.

24. Deputy Treasurer Jones came out into the lobby and handed the single coin and receipt back to Plaintiff and stated words to the effect that the CITY refused to accept these types of coins as payment.

25. On or about the 18th of January 2007 the agents and/or employees of the CITY executed an In Rem tax foreclosure auction pertaining to the List of Delinquent Taxes as of July 1, 2005.

26. Plaintiff believes the auction included 179 North Union Street, 225 North Union Street, and 305 North Union Street.

27. On or about the 22nd of January 2007 just prior to the close of the business day, Plaintiff received an Order to Show Cause signed by Justice Lindley requiring Plaintiff's the [sic] Petition to Show Cause, to be served upon the CITY before or by January 22, 2007 in regard to a hearing scheduled for the 26th of January 2007 at 9:30 am.

28. On or about the 23rd of January 2007 the legal department of the CITY and Justice Lindley were given a Notice of request for rescheduling the January 26, 2007 hearing due to the delayed receipt of the signed order by Justice Lindley, by no fault of Plaintiff, making it improbable to serve the CITY sufficient notice of the Petition to Show Cause.

29. On or about the 23rd of January 2007 the legal department for the CITY was served a Notice of Hearing and Order to Show Cause signed by Justice Lindley for a hearing on January 26, 2007 at 9:30am.

30. On or about the 25th of January 2007 Plaintiff called Justice Lindley's clerk to question the status of the request for rescheduling. Complainant was told by Justice Lindley's clerk words to the effect that Justice Lindley stated to appear at the January 26, 2007 hearing in order to allow him (Justice Lindley) to get an understanding of the points of contention and that he (Justice Lindley) would not proceed with the case at this hearing.

31. On or about the 25th of January 2007 Counselor Richards signed a Tax Foreclosure deed conveying 366-366.5 Alexander Street and 23-31 Anderson Avenue to the CITY.

32. The Tax Foreclosure deed signed by Counselor Richards on or about the 25th of January 2007 stated the former owner of 366-366.5 Alexander Street as Daniel J. Wik.

33. The Tax Foreclosure deed signed by Counselor Richards on or about the 25th of January 2007 stated the former owner of23-31 Anderson Avenue as 23-31 Anderson Avenue Trust.

34. 23-31 Anderson Avenue Trust conveyed 23-31 Anderson Avenue to Daniel J. Wik by deed on or about the 15th of May 2006.

35. On or about the afternoon of the 25th of January 2007 Attorney Campolieto called Plaintiff and made a request to the effect of asking Plaintiff to come to City Hall to pick up the CITY'S response brief. Plaintiff told Attorney Campolieto words to the effect that he was not able to pick up said documents currently.

36. Attorney Campolieto informed Plaintiff that he would be sending them by email. Plaintiff responded to the effect that he would probably not be able to receive them until later that night or the following morning if sent by email.

37. On or about the morning ofthe 26th of January 2007 Attorney Campolieto handed Plaintiff the CITY'S response brief to the Order to Show Cause which in effect contained a Motion to Dismiss.

38. Plaintiff was not served the CITY'S response until minutes before court, this was the first time Plaintiff was made aware that the CITY through Attorney Campolieto was claiming Plaintiff had no standing, was not the owner of the properties or had privity to title, and/or had no interest in the properties.

39. Attorney Campolieto has had copies of the deeds showing Plaintiffs [sic] privity of title for 179 North Union Street, 225 North Union Street, 48 Ripley, 1244-1246 East Main Street, and 305 North Union Street since on or about the 8th of October 2006.

40. Attorney Campolieto has appeared before the court on several occasions against Daniel J. Wik regarding 23-31 Anderson Avenue and 366-366.5 Alexander Street.

41. The property 366-366.5 Alexander Street has been recorded in the Monroe county clerks office under the owners name DANIEL J WIK since on or about the 25th of April 1996.

42. On or about the 26th of January 2007 Plaintiff appeared before Justice Lindley by special and limited appearance and not general appearance to challenge the jurisdiction of the court and the CITY and seeking the relief of removing the properties from the list of properties to be included in the In Rem foreclosure action which was ordered by an ex parte order denying Plaintiff due process and notice and opportunity to defend the action.

43. During the hearing conducted on or about the 26th of January 2007, Justice Lindley stated on the record words to the effect that an option, if Plaintiff didn't want this to be the end of his interest in these properties, if he (plaintiff) had any interest to begin with, then they (CITY) would take, on their (CITY) terms, a bank check or money order, and Plaintiff can get all these properties back. Justice Lindley went on to say words to the effect that Plaintiff can pay the CITY the taxes and retain the properties.

44. Plaintiff stated on the record words to the effect that he questioned what authority Justice Lindley had to require him to make tendering of payment in any such form, whether he make it in pennies, dimes, nickels, dollars, gold coin. There's nothing in the law that gives ...


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