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Diaconu v. County of Franklin

United States District Court, N.D. New York

August 28, 2014

COUNTY OF FRANKLIN, et al., Defendants.


LAWRENCE E. KAHN, District Judge.


Pro se Plaintiff Eufrosina Diaconu ("Plaintiff") alleges that she was defrauded at a tax foreclosure real estate auction in 2005 by Defendants County of Franklin ("Franklin County"), Office of Jonathan J. Miller, Esq. ("Miller"), Bryon A. Varin ("Varin"), and Earl J. LaVoie ("LaVoie") (collectively, the "County Defendants"); Community Bank System, Inc. and Mark E. Tryniski (collectively "Community Bank"); and Ocwen Federal Bank FSB, Ocwen Financial Corporation, and Randal M. Farris (collectively "Ocwen"). Dkt. No. 1 ("Complaint"). Presently before the Court are: (1) Motions to Dismiss by the County Defendants and Community Bank; (2) Plaintiff's Motions for summary judgment; and (3) Plaintiff's request for reconsideration of the Clerk's denial of her request for a default entry. Dkt. Nos. 29 ("County Motion"); 50 ("Community Motion"); 40 ("Plantiff's Motion"); 68 ("Plaintiff's Amended Motion"); 58 ("Plaintiff's Request"). For the following reasons, the County Defendants' and Community Bank's Motions to dismiss are granted, Plaintiff's Motions are denied, and the Complaint is dismissed in its entirety.


A. Factual Background

On October 26, 2005, Plaintiff attended a real estate auction in which a number of properties held by Franklin County were to be sold. Compl. ¶ 29. Franklin County employed a professional real estate auctioneer to market and sell the foreclosed properties. See id. In preparation for the auction, the auctioneer published a brochure, which included a description and picture of the available properties. Id . ¶ 31. The brochure also indicated that all parcels were sold "as is, " included no personal property, and no warranty was made by Franklin County concerning the condition of the property or any defect in title. Id . ¶¶ 33, 35. Additionally, in order to participate in the auction, each attendee was required to sign the "Terms and Conditions of the Auction, " which included these same provisions. See id. ¶ 31.

At issue are two properties that Plaintiff successfully purchased at the auction: a parcel located in the Town of Dickinson, NY (the "Dickinson property"), and another parcel in the Village of Malone, NY (the "Malone property"). Compl. ¶¶ 36-43. Plaintiff claims that the Dickinson property was listed as including a mobile home; but, in September 2010, she discovered that the mobile home was not actually located on the Dickinson property, and that it belonged to Ocwen. Id . ¶¶ 36-37. With respect to the Malone property, in 2006 Plaintiff evicted its long-time tenant and discovered that the Malone property contained a large amount of hazardous waste that had not been previously disclosed to her. Id . ¶ 41. Plaintiff incurred significant expense in removing the waste from the Malone property and claims that the County Defendants are liable to reimburse her. See id. ¶ 42.

B. Procedural History

Plaintiff originally brought suit only against Franklin County in New York Supreme Court, County of Franklin. Compl. ¶ 46. Plaintiff alleged that she was defrauded by Franklin County because the Dickinson property did not include the mobile home as advertised, and the condition of the Malone Property was not disclosed prior to the auction. Dkt. No 31-7 at 4. Plaintiff's complaint was dismissed for failure to state a claim because fraud is an intentional tort, and the brochure and Terms and Conditions, both of which clearly indicated that properties were sold "as is" and did not include any personal property, negated any possible finding of intent to defraud by Franklin County. Id . Plaintiff did not appeal the state court's decision. See Dkt. No. 67 ("Plaintiff's Response") at 2.[2] Plaintiff then commenced this action on March 20, 2013. Compl.


To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id . (citing Twombly, 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. See id. at 678-79.


A. Claims Against the County Defendants

The County Defendants argue that Plaintiff's Complaint should be dismissed because: (1) her claims are barred under the applicable statute of limitations; (2) she failed to comply with notice of claim requirements; (3) Plantiff's Complaint fails to state a claim; and (4) her claims are barred by ...

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