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Sol Rosen and Florence Rosen v. North Shore Towers Apartments

March 7, 2011


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



On February 15, 2011, Plaintiffs filed this action against Defendant North Shore Towers, Inc., principally challenging a Notice of Eviction issued by the Housing Court of the City of New York ordering the City Marshal to evict Plaintiffs from their apartment at North Shore Towers, a housing development located in the Eastern District of New York. On February 16, 2011, Plaintiffs filed an Amended Complaint further amplifying what appeared to be a long-running dispute between Plaintiffs and Defendant that ultimately ended in Plantiffs eviction through various housing and state court proceedings. In the Amended Complaint, Plaintiffs allude to various constitutional rights including freedom of speech and the right of assemblage and peaceful petition, but seek in their prayer for relief access to their apartment and the restoration of electrical services.

On February 17, 2011, after both parties were heard on the matter, this Court denied Plaintiffs' motion for a preliminary injunction which sought to reinstate Plaintiffs as the tenants of their apartment. (Minute Entry (Doc. No. 5)). At that time, in addressing Plaintiffs' likelihood of success on the merits of their claim for purposes of the preliminary injunction standard, the Court noted that there were substantial issues regarding the jurisdiction of this Court over the claims alleged in Plaintiffs' Amended Complaint, and further cautioned that this Court may lack subject matter jurisdiction over what appears to be nothing more than an appeal to this Court of Plaintiffs' state court litigation. See, e.g., Skinner v. Switzer, ___ U.S. ____, 2011 U.S. LEXIS 1905 (Decided March 7, 2011) (Rooker-Feldman doctrine applies to cases brought by state-court losers inviting district court review and rejection of state court judgments) (citations omitted). Counsel for Defendants indicated that they would immediately seek leave to file a motion to dismiss this action for lack of subject matter jurisdiction in conformity with this Court's Individual Motion Practices and Rules. In fact, by letter filed March 4, 2011, Defendants have requested a pre-motion conference in advance of filing such motion, and have also requested an extension of time to Answer.

By letter dated and filed February 23, 2011 [Doc. No. 10], Plaintiffs moved for reconsideration of this Court's Order denying the preliminary injunction. In the same letter, Plaintiffs move to join as defendants: Errol Brett, Three Towers Associates, James Short, Morton Gitten, Esq., Robert Serikstad, and Glen Kotowski. (Id. at 2--6, 16--20, 27--28.) *fn1

By separate letter dated and filed on February 25, 2011 [Doc. No. 11], Plaintiffs filed a "Motion for Summary Judgment." Attached thereto are numerous exhibits, many of which were provided to the Court at the preliminary injunction hearing, that document the procedural history in the housing and state courts relating to Plaintiffs' eviction. Read broadly, Plaintiffs' ostensible bases for seeking summary judgment rests on their claims that the housing and state courts wrongly decided against Plaintiffs. On March 1, 2011, Plaintiffs filed "Supplemental Evidence in Support of Plaintiffs' Motion for Summary Judgment." [Doc. No. 14]

For the reasons below, Plaintiffs' motions for reconsideration, joinder and summary judgment are denied. With respect to Defendant's request for a pre-motion conference, the Court finds that such conference is not required in this matter in light of the Court's familiarity with the issues. As discussed further below, Defendant may file its Motion to Dismiss, and Plaintiffs shall have an opportunity to respond.


Before an appeal is filed, a district court has the inherent power to reconsider or otherwise affect its prior interlocutory orders. Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir. 1962); see John Simmons Co. v. Grier Bros., 258 U.S. 82, 88 (1922). Litigants must not, however, "merely try[] to relitigate on a fuller record preliminary injunction issues already decided." Am. Optical Co. v. Rayex Corp., 394 F.2d 155, 156 (2d Cir. 1968). "The standard for granting . . . a motion [to reconsider] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The motion will be denied if the movant "failed to exercise due diligence in not presenting [the new material] earlier." Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1207 (2d Cir. 1970).

Here, Plaintiffs have failed to submit overlooked "controlling decisions or data" necessary to grant a motion to reconsider. Plaintiffs allege that an entry of summary judgment against them in a state court civil action deprived them of their right to "[a] trial by jury . . . guaranteed by the Bill of Rights (Sixth Amendment[])." (Notice to the Court, 1--2, 3.) The Sixth Amendment does not apply to civil actions, however. See Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 386 n.15 (1979). Moreover, the right to a jury under the Seventh Amendment is not incorporated in the Due Process Clause of the Fourteenth Amendment and, therefore, does not apply to state court proceedings. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3035 (2010). Plaintiffs have not indicated any controlling law overlooked by this Court in denying their motion for a preliminary injunction.

Plaintiffs' other factual and legal arguments for revisiting this Court's Order are, for the most part, the same as those made in their initial Complaint (Doc. No. 1), Affidavit in Support of an Order to Show Cause (Doc No. 2), or at oral argument on February 17, 2011 (see Doc. No. 5). They were not overlooked then, and the Court will not revisit them now. Plaintiffs also elaborate on an alleged fraud involving the defendants to be joined, Defendant's Board of Directors, an accounting firm, and various other parties. (Notice to the Court 2--6, 16--20, 27--28.) This material, however, is recycled from the state court proceedings, which means that Plaintiffs, employing due diligence, could have presented it with their motion for a preliminary injunction. Plaintiffs' motion is merely an attempt to relitigate the same issues already decided. For these reasons, the Court will not reconsider its denial of the motion for a preliminary injunction.

III.Plaintiffs' Motions for Joinder and Summary Judgment

In light of the significant questions regarding the Court's subject matter jurisdiction over this action, the Court denies Plaintiffs' requests for joinder and summary judgment.

Joinder of defendants is permissible if the plaintiff asserts claims against them that "aris[e] out of the same transaction or occurrence, or series of transactions or occurrences," and raise "any question of law or fact common to all defendants." Fed. R. Civ. P. 20(a)(2)(A)--(B). Plaintiffs indicate in their February 23 submission that each individual to be joined is responsible for a scheme defrauding Defendant of $35 million to ...

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