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Panchisak v. State

United States District Court, S.D. New York

January 12, 2015

Mycola Panchisak, Plaintiff,
the State of New York, Defendant

Mycola Panchishak, Plaintiff, Pro se, New City, NY.

For The State of New York, Defendant: Michael Adam Berg, Office of the Attorney General, New York State, New York, NY.


ALISON J. NATHAN, United States District Judge.

Before the Court is Defendant's motion to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and failure to state a claim, Fed.R.Civ.P. 12(b)(6). For the reasons set forth herein, the motion is GRANTED.


Plaintiff Mycola Panchisak is an active user of the New City, New York Public Library. He alleges that for several years he was systematically and publicly harassed by employees of the New City Library who wrongly accused him in front of other customers of being overdue on a number of DVDs that he had checked out from the Library. Plaintiff apparently complained to the administration of the Library and suggested that they install what he refers to as cheap and effective digital cameras and scanners in the drop boxes that he believes would rectify the allegedly false accusations of delinquency.

On December 17, 2012, Plaintiff filed suit in small claims court against the " Administration of New City Library." In that action, Plaintiff sought an order requiring the New City Library to stop harassing Plaintiff, install a digital video camera and scanner to record when DVDs are returned to the Library's drop box, and reimburse him for $889.65, which apparently represented the portion of Plaintiff's property taxes that made their way to the Library for the years 2010, 2011, and 2012. Plaintiffs action was dismissed by the Honorable Howard Gerber of the Town of Clarkstown Justice Court by a Notice of Small Claims Judgment dated June 11, 2013. See Berg Deck Ex. A.

Rather than appeal that judgment, Plaintiff filed a new action in New York State Supreme Court, Rockland County on July 15, 2013. The underlying dispute remained the same as the Small Claims Court action, but this time Plaintiff named the New City Library, the Library's director, the Town of Clarkstown, and the Town's supervisor as defendants. He also increased the amount of reimbursement sought to $32, 890.29, which apparently represented the amount of town and school taxes that Plaintiff paid in 2010, 2011, and 2012, and also sought $10, 000, 000 in compensation and punitive damages. On February 19, 2014, the Honorable Margaret Garvey, Justice of the Supreme Court, granted a motion to dismiss Plaintiffs claims on the basis of res judicata against the New City Library and its director. See id. She also granted a motion for summary judgment brought by the remaining Defendants for failure to state a claim, because the Town of Clarkstown and its supervisor have no responsibility for the New City Library, and for failure to comply with the notice-of-claim requirements under New York's General Municipal Law § 50-i. See id.

Rather than appeal that judgment, Plaintiff filed the present action in federal court, this time against the State of New York only. In his Complaint, Plaintiff alleges that he was repeatedly denied his constitutional right to a full and fair opportunity to be heard because he was denied the opportunity to try his civil case to a jury. On April 11, 2014, Defendant filed the present motion to dismiss, Dkt. No. 6, and the Declaration of Michael A. Berg containing true and correct copies of Plaintiff's earlier state court filings and judgments, Dkt. No. 7. On the same day, Defendant also provided notice to Plaintiff pursuant to Local Rule 12.1 regarding the possibility of conversion of its motion to dismiss to a motion for summary judgment. Dkt. No. 9. Plaintiff filed an opposition to the Defendant's motion on May 12, 2014 and attached additional documents outside the pleadings in support of his claims. Dkt. No. 14. The motion was fully briefed following the filing of Defendant's reply on May 21, 2014. Dkt. No. 15.


" Dismissal under Fed.R.Civ.P. 12(b)(6) is appropriate when a defendant raises claim preclusion . . . as an affirmative defense and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiffs claims are barred as a matter of law." Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir. 2000) (citing Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992)). " In determining whether plaintiffs' claims [are] barred by res judicata, the district court [may] properly consider[] documents expressly referenced in the amended complaint and materials in the public record that are subject to judicial notice." Kiryas Joel Alliance v. Vill. of Kiryas Joel, 495 F.App'x 183, 187 n.2 (2d Cir. 2012) (citing Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (noting that courts " may also look to public records including complaints filed in state court, in deciding a motion to dismiss")).

But Federal Rules of Civil Procedure 12 and 56 together also suggest that if a district court considers matters outside the pleadings, converting a motion to dismiss to one for summary judgment is proper so long as the opposing party is given proper notice of the conversion. McCoy v. Goord, 255 F.Supp.2d 233, 251 (S.D.N.Y. 2003) (Chin, J.) (citing Villante v. Dep't of Corr. of City of New York, 786 F.2d 516, 521 (2d Cir. 1986)); see also Fed.R.Civ.P. 12(d). Here, conversion of Defendant's motion to dismiss to one for summary judgment is proper because Defendant submitted and referenced documents outside of the pleadings. Moreover, pursuant to Local Rule 12.1, Defendant provided Plaintiff with notice, Dkt. No. 9, that the Court might treat Defendants' motion to dismiss pursuant to Rule 12(b)(6) as a motion for summary judgment. See, e.g., Hernandez v. Coffey, 582 F.3d 303, 308 n.2 (2d Cir. 2009) (citing cases finding that a Local Rule 12.1 Notice provides sufficient notice to pro se parties).

Summary judgment shall be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine dispute as to any material fact exists " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, a court views all evidence in the light most favorable to the non-movant, Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and " resolve[s] all ambiguities and draw[s] all permissible factual inferences in ...

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