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Kainth v. Salamone

March 31, 2009

INDER KAINTH, PLAINTIFF,
v.
BRYAN L SALAMONE, ESQ., ANDREW M. CUOMO, ATTORNEY GENERAL OF NEW YORK, JUSTICE JOHN C. BIVONA, SUFFOLK COUNTY SUPREME COURT, C. ISLIP, USHA SRIVASTAVA, ESQ., CHRISTINE MALAFI, SUFFOLK COUNTY ATTORNEY, JOHN R. PETROSKI, SUFFOLK COUNTY ASSISTANT ATTORNEY, ALETHA V. FIELDS-FERRARO, SUFFOLK COUNTY FAMILY COURT SUPPORT MAGISTRATE, SUFFOLK COUNTY SUPPORT COLLECTION UNIT, SUFFOLK COUNTY COMMISSIONER OF SOCIAL SERVICES, SUFFOLK COUNTY SHERIFF'S DEPARTMENT, JOHN & JANE DOE, CLERK OF SUFFOLK COUNTY FAMILY COURT, PRITPAL RISHIRAJ, DEFENDANTS.



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

MEMORANDUM & ORDER

On February 29, 2008, pro se Plaintiff Inder Kainth commenced this action alleging that Defendants abridged his constitutional rights during custody and child support proceedings held in the Suffolk County Supreme Court. On May 15, 2008, the Court sua sponte dismissed Plaintiff's Complaint. On June 20, 2008, Plaintiff filed his First Amended Complaint. On July 21, 2008, the Court dismissed Plaintiff's First Amended Complaint. On October 3, 2008, the Plaintiff filed his Second Amended Complaint.

Presently pending before the Court are Attorney General Andrew Cuomo, Supreme Court Justice John Bivona, Suffolk County Family Court Support Magistrate Aletha Fields-Ferraro, John & Jane Doe, Clerk of Suffolk County Family Court, Wachovia Bank Legal Order Processing, and AXA Equitable Life Insurance Company's motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the Court GRANTS the Defendants' motions to dismiss and dismisses Plaintiff's Complaint in its entirety.

BACKGROUND

This case arises out of a child custody dispute between Plaintiff and his former spouse, Ptitpal Rishiraj ("Rishiraj"). In late 2001, a New York State appointed law guardian, Defendant Usha Srivastava ("Srivastava"), requested that Plaintiff bring his two children to New York for a personal interview. Plaintiff alleges that he had custody of his children at that time, and had been residing in Kansas with his children. According to the Complaint, Plaintiff brought his children to New York, where they were privately interviewed by Srivastava. The next morning, Plaintiff appeared in Suffolk County Supreme Court for a hearing regarding his divorce to Rishiraj. At this hearing Supreme Court Justice John C. Bivona allegedly seized Plaintiff's children without a hearing. Subsequently, a two week hearing was held regarding custody of Plaintiff's children. After an in-camera proceeding conducted between Justice Bivona and Srivastava with the children, Justice Bivona awarded custody to Rishiraj.

In November of 2002, Plaintiff was scheduled to testify again regarding custody of his children. On the Friday before his scheduled appearance, Plaintiff states that he received a fax from Suffolk County Supreme Court stating that all of the outstanding motions on Plaintiff's case had been decided. Plaintiff claims he called Justice Bivona's clerks numerous times to request an adjournment of the appearance date, but his requests were denied on the day before his scheduled appearance. The Complaint alleges that Plaintiff failed to appear for the scheduled conference because he could not afford to fly to New York, and would not have had enough time to drive to New York for the conference scheduled for the next day. Justice Bivona entered a default judgment against the Plaintiff. Plaintiff was ordered to pay $5,000 to Srivastava, $5,000 to the opposing attorney, and $4,000 for "financial forensics."

In or about June 2005, Rishiraj filed a petition alleging that Plaintiff willfully failed to obey an order of support, and seeking a money judgment for missed payments. A hearing was held on June 17, 2005 before Magistrate Aletha Fields-Ferraro. At this hearing, Suffolk County Support Collection Unit ("SCU") allegedly gave false testimony against Plaintiff, which led to Plaintiff being found in willful violation of the court's orders. After the Honorable Jeffrey Spinner confirmed Magistrate Fields-Ferraro's willful violation order, Plaintiff was arrested by the Suffolk County Sheriff's Department. On January 30, 2007, the Appellate Division for the Second Department reversed the lower court holding on June 17, 2005, stating that the record did not support a finding that the Plaintiff had willfully violated his order of support.

On February 15, 2008, Plaintiff claims that SCU and the New York State Department of Taxation and Finance unlawfully seized his life insurance policy, issued by AXA Equitable Life Insurance Company, in the amount of $5,026.54 for falsely-created child support arrears. On March 6, 2008, SCU sent a restraining Notice pursuant to CPLR § 5222 to Plaintiff's bank, Wachovia, and placed a freeze on Plaintiff's bank account in the amount of $8,141.07. Plaintiff claims that both of these actions were taken in violation of the January 2007 Appellate Division order.

In late April 2008, Plaintiff filed another petition to have his child support payments modified. Plaintiff requested downward modification to reflect (1) that he retained custody of his children from June 2001 to April 2002, (2) his unemployment status from February 2002 to March 2003, and (3) his current salary for $12,000 per year. On June 3, 2008, Magistrate Fields-Ferraro dismissed the Plaintiff's petition, finding that Plaintiff failed to raise new issues that were not already decided; therefore, res judicata barred his petition.

In this case, Plaintiff claims that many New York State judges, including Justice Bivona, rule against non-custodial parents, such as the Plaintiff, because they have a financial interest in the outcome.*fn1 Plaintiff claims that he is entitled to child support modification because child support was originally calculated when he was making $27,000 per year, but has subsequently been terminated from his job. Plaintiff additionally alleges that he should have received a credit for the child support payments he gave Rishiraj while the two children were in his custody. Further, Plaintiff claims that the foregoing proceedings violated his due process rights, and seeks to recover for those violations pursuant to 42 U.S.C. §§ 1983 and 1985 (respectively "Section 1983" and "Section 1985"). Finally, Plaintiff asserts claims pursuant to 15 U.S.C. § 1692e(2), Article I, Sections 1, 2, 5, 6, 11 and 12 of the New York State Constitution, malicious prosecution, malicious abuse of process, wrongful arrest, and intentional and/or negligent infliction of emotional distress.

STANDARD OF REVIEW

I. Standard of Review

A. Rule 12(b)(1)

A defendant may move to dismiss pursuant to Rule 12(b)(1) by attacking the complaint on its face and alleging that a plaintiff failed to allege facts supporting subject matter jurisdiction, or he can argue that based on the facts alleged, jurisdiction lacks. Tasini v. N.Y. Times Co., Inc., 184 F. Supp. 2d 350, 353 (S.D.N.Y. 2002). When a defendant claims a plaintiff failed to allege facts required for jurisdiction, a "court should review the complaint, deeming all averments as true, for sufficiency." Id. at 457. If a defendant factually challenges allegations in a complaint, a court "may consider affidavits and other ...


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