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Neroni v. Coccoma

United States District Court, N.D. New York

June 5, 2014

ELLEN L. COCCOMA et al., Defendants.

Frederick J. Neroni, Pro Se, Delhi, NY, for Plaintiff.

BRUCE J. BOIVIN, Assistant Attorney General, for Defendants Ellen L. Coccoma, Michael V., Coccoma, Robert Mulvey, A. Gail Prudenti, Kevin Dowd, Eugene Peckham, Karen Peters, Thomas Mercure, Kelly Sanfilippo HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY,

JAMES S. GLEASON, ESQ., Hinman, Howard & Kattell, LLP, Hinman, Howard Law Firm Binghamton, NY ROBERT A. BARRER, ESQ., Levene, Gouldin and Thompson, LLP, Margaret Fowler, Hiscock, Barclay Law Firm Syracuse, NY.


GARY L. SHARPE, Chief Magistrate Judge.

I. Introduction

Plaintiff pro se Frederick J. Neroni commenced this action against defendants[1] pursuant to 42 U.S.C. 1983, alleging violations of his Fourth, Fifth, and Fourteenth Amendment rights, along with violations of the Nobility Clause.[2] (Compl., Dkt. No. 1.) Pending are defendants' motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), (Dkt. Nos. 29, 30, 44), and Neroni's cross motions for disqualification of the court, to transfer venue, and to disqualify counsel, (Dkt. Nos. 40, 47). For the reasons that follow, defendants' motions are granted, Neroni's cross motions are denied, and Neroni's complaint is dismissed.

II. Background[3]

This case presents yet another chapter in a barrage of lawsuits[4] filed by Neroni, a disbarred and disgruntled former attorney.[5] In his lengthy and disjointed complaint, Neroni names as defendants a host of New York state judges, court officials, private attorneys, and private law firms, and weaves a tangled web of judicial corruption, political favoritism, and professional improprieties, resulting in a range of-barely decipherable-constitutional transgressions. ( See generally Compl.)

While difficult to discern, many of Neroni's claims tangentially relate to the circumstances surrounding his disbarment, ( id. ¶¶ 8, 83-85, 140); others pertain to a New York state case, Kilmer v. Moseman, No. 2009-298, pending in Supreme Court in Delaware County before Justice Kevin Dowd, in which Neroni's only involvement was receiving an order compelling him to appear for a deposition, ( id. ¶¶ 18, 20, 34, 69, 86-95, 98-99). In an attempt to provide some clarity, below, the court addresses the relevant facts pertaining to, and the claims asserted against, each defendant.

A. Ellen L. Coccoma

Ellen Coccoma is an attorney in private practice at Hinman, Howard & Katell, LLP (HHK) and a former member of New York's Committee on Professional Standards (COPS). ( Id. ¶¶ 8, 82.) Neroni alleges that, during her time as a member of COPS, Ellen Coccoma "participated in [the] investigation and decision-making" that led to his disbarment, ( id. ), and used certain, unspecified information gained from the investigation for "private gain, " ( id. ¶¶ 84-85). Neroni further alleges that, during her involvement in his disciplinary case, Ellen Coccoma "accepted a private case prosecuting [his] then corporation for fraud." ( Id. ¶ 83.) Ellen Coccoma's actions, Neroni contends, resulted in a deprivation of his Fourteenth Amendment due process rights. ( Id. ¶ 85.)

In addition to her involvement in Neroni's disciplinary action, Ellen Coccoma is also involved as a private attorney in Kilmer. ( Id. ¶ 18.) Neroni seems to allege that Ellen Coccoma exploited her relationship with her husband, Deputy Chief Administrative Judge Michael V. Coccoma, to obtain favorable treatment and avoid the imposition of sanctions in Kilmer. ( Id. ¶¶ 18-19.) Ellen Coccoma was also involved in procuring a court order requiring Neroni to provide deposition testimony in Kilmer, which, Neroni contends, violated his Fourth Amendment rights. ( Id. ¶¶ 18, 86, 92, 138.) Neroni seeks treble, actual, and punitive damages against Ellen Coccoma. ( Id. ¶¶ 138, 147.) He also seeks declaratory and injunctive relief, including a declaratory judgment that his disbarment is void. ( Id. ¶¶ 120, 140.)


Neroni claims that HHK, a private law firm, acting in concert with its employee, Ellen Coccoma, "obtained by fraud... an order to involuntarily depose [Neroni]" in the Kilmer state court litigation, resulting in a violation of Neroni's Fourth Amendment rights. ( Id. ¶¶ 11, 92, 138.) HHK, as Ellen Coccoma's employer, is also responsible, Neroni claims, for Ellen Coccoma's "fraudulent failure" to disclose to the parties and court in Kilmer that she was involved with Neroni's disciplinary case. ( Id. ¶ 138(c)(v).) Neroni seeks treble, actual, and punitive damages as against HHK. ( Id. ¶¶ 138, 147.)

C. Judge Coccoma

As noted above, Judge Coccoma is the Deputy Chief Administrative Judge for courts outside of New York City, and Ellen Coccoma's husband. ( Id. ¶¶ 14, 16.) As the Chief Administrative Judge, he "controls [the] assignment of judges in courts" in upstate New York. ( Id. ¶¶ 16-17.) Neroni claims that Judge Coccoma "controlled and monitored" the assignment of the justice to the Kilmer action, so that Ellen Coccoma could obtain favorable treatment, including, among other things, avoiding sanctions.[6] ( Id. ¶ 18.) Additionally, at least briefly, Judge Coccoma presided over Mokay v. Mokay, No. 2007-695, the New York Supreme Court case in which Neroni was found to have committed a fraud upon the court, and which ultimately led to his disbarment. ( Id. ¶¶ 8, 15); see In re Neroni, 86 A.D.3d 710, 710-11 (3d Dep't 2011).

Neroni further claims that, pursuant to 22 N.Y.C.R.R. art. 122, a retired Supreme Court justice may be appointed as a judicial hearing officer. (Compl. ¶ 22.) Neroni states that judicial hearing officers have the potential to earn up to $75, 600 per year, which could "more than double a retired judge's income, " and are appointed by the Deputy Chief Administrative Judge-in this case, Judge Coccoma. ( Id. ¶¶ 22, 23, 25, 26, 28.) Because Judge Coccoma has this power, Neroni alleges, the justices have a financial interest in doing favors for him, such as providing Ellen Coccoma with special treatment in matters that are before them. ( Id. ¶¶ 28, 40, 56-57, 61, 95, 97.) Neroni claims that this violates the Nobility Clause of the United States Constitution, because Ellen Coccoma, ostensibly, has been "elevated to the ranks of nobility." ( Id. ¶¶ 97, 106, 143.) Neroni seeks declaratory relief. ( Id. ¶ 141.)

D. Justice Dowd

Justice Dowd is a New York Supreme Court justice and was assigned to the Kilmer action by Judge Coccoma, after the previous judge-former New York Supreme Court Justice Eugene Peckham, also a defendant in this action-recused himself from the case. (Compl. ¶¶ 20, 34, 40, 41.) In Kilmer, Justice Dowd granted Ellen Coccoma's motion to compel and ordered Neroni to appear to provide deposition testimony, in violation of Neroni's Fourth Amendment and due process rights.[7] ( Id. ¶ 98.) Neroni surmises that, because Justice Dowd is nearing retirement, and will soon be eligible to be appointed to the position of a judicial hearing officer, Justice Dowd has a financial stake in granting favors to Judge Coccoma.[8] ( Id. ¶¶ 28, 95, 97.) Neroni seeks damages against Justice Dowd and an injunction and a declaratory judgment prohibiting Justice Dowd from presiding over any cases where Neroni is a party or a non-party witness sought to be subpoenaed. ( Id. ¶¶ 105, 134, 137.)

E. Judge Robert Mulvey

Judge Mulvey is the Administrative Judge of the Sixth Judicial District, and is responsible for assigning cases within that district. ( Id. ¶¶ 36, 38.) Judges Coccoma and Mulvey, acting together, "helped deprive [Neroni] of his rights by assigning [Justice] Dowd to the Kilmer action where sanctions were requested against [Judge] Coccoma's wife." ( Id. ¶¶ 40, 94.) Neroni claims that, as Judge Coccoma's "subordinate, " Judge Mulvey has "a financial incentive to please" Judge Coccoma. ( Id. ¶¶ 39, 40.)

F. Former Justice Peckham

Justice Peckham is a former New York Supreme Court justice. ( Id. ¶ 41.) Justice Peckham retired from his post in 2011, and has since joined the private law firm Levene Gouldin & Thompson (LGT)-perhaps not surprisingly, another defendant in this action. ( Id. ¶¶ 41-43, 63.) Prior to his retirement, and before Justice Dowd was assigned, Justice Peckham presided over the Kilmer action. ( Id. ¶ 41.)

Additionally, after his retirement, Justice Peckham was appointed to the position of judicial hearing officer in Delaware County Supreme Court. ( Id. ¶¶ 56-57, 61.) Neroni claims that Justice Peckham's position as a judicial hearing officer, coupled with Judicial Defendants' failure to publicly post a list of judicial hearing officers, should disqualify his law firm, LGT, from all matters in Delaware County Supreme Court. ( Id. ¶¶ 57, 58, 64, 69, 70.) Neroni seeks treble, actual, and punitive damages as against Justice Peckham. ( Id. ¶¶ 138, 147.)

G. LGT Defendants

LGT is a private law firm in Binghamton, New York. ( Id. ¶ 44.) Margaret Fowler is a partner in LGT; she also previously represented two codefendants in the Kilmer action, and "supported" Ellen Coccoma's motion to compel Neroni to provide deposition testimony. ( Id. ¶¶ 46, 65-69.) LGT and Fowler "failed to announce to the Kilmer court that [Justice] Peckham, the previous judge on the Kilmer case, joined... LGT... as a partner." ( Id. ¶ 64.) LGT and Fowler's actions, Neroni claims, violated his Fourth Amendment rights. ( Id. ¶ 69.) Neroni seeks treble, actual, and punitive damages as against LGT Defendants. ( Id. ¶¶ 138, 147.)

H. Judge Gail A. Prudenti, Justices Karen Peters and Thomas Mercure, and Kelly Sanfilippo

Neroni's claims against Chief Administrative Judge Prudenti, Justice Peters, Presiding Justice[9] of the Appellate Division, Third Judicial Department, Justice Mercure, former acting Presiding Justice[10] of the Appellate Division, Third Judicial Department, and Kelly Sanfilippo, Court Clerk of Delaware County Supreme Court, boil down to the fact that they all had a duty to publicly disclose Justice Peckham's position as a judicial hearing officer, failed to do so, and allowed LGT and Fowler to continue to litigate the Kilmer matter. ( See generally id. ¶¶ 56-61.) As a result, Neroni's Fourth Amendment rights were violated when he was ordered to provide deposition testimony in Kilmer. ( Id. ¶ 69.) Neroni seeks injunctive relief against Judge Prudenti and Justice Peters, essentially requiring them to publicly post the appointments of judicial hearing officers. ( Id. ¶¶ 81, 142.)

III. Standard of Review

The standards of review under Rules 12(b)(1) and 12(b)(6), which are "substantively identical, " Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003), are well settled and will not be repeated. For a full discussion of those standards, the parties are referred to the court's decisions in Unangst v. Evans Law Associates, P.C., 798 F.Supp.2d 409, 410 (N.D.N.Y. ...

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