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Caldwell v. Pesce

United States District Court, E.D. New York

February 3, 2015

KEN CALDWELL AND LISA CALDWELL, Plaintiffs,
v.
JUSTICE MICHAEL L. PESCE, P.J.; JUSTICE MICHELLE WESTON; JUSTICE MARTIN M. SOLOMON; CHIEF CLERK PAUL KENNY; SENIOR PARTNER RUSSELL POLIRER, ESQ.; SENIOR PARTNER KENNETH NOVIKOFF, ESQ.; SENIOR PARTNER CHERY [SIC] F. KORMAN, ESQ.; GUTMAN, MINTZ, BAKER & SONNENFELDT, P.C; AND RIVKIN RADLER, LLP, ATTORNEY AT LAW, Defendants

Plaintiffs, Pro se.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, United States District Judge.

Before the Court are plaintiffs Ken and Lisa Caldwell's (" plaintiffs" or " the Caldwells" ) applications to proceed in forma pauperis filed together with their complaint against the following defendants: Justice Michael L. Pesce, P.J.; Justice Michelle Weston; Justice Martin M. Solomon; Chief Clerk Paul Kenny; Senior Partner Russell Polirer, Esq.; Senior Partner Kenneth Novikoff, Esq.; Senior Partner Chery[l] F. Korman, Esq.; Gutman, Mintz, Baker & Sonnenfeldt, P.C; and Rivkin Radler, LLP, attorney at law.[1]

For the reasons set forth below, the plaintiffs' applications to proceed in forma pauperis are granted. However, the complaint is dismissed, sua sponte, with prejudice.

I. Background

A. Prior Federal Complaint

Plaintiffs Ken and Lisa Caldwell, who are proceeding pro se, are no strangers to this Court. Plaintiffs' first complaint in this Court was filed on October 7, 2008 against defendants Gutman, Mintz, Baker, & Sonnenfeldt P.C. (" Gutman" ); Russell Polirer; Fairfield Presidential Associates (" FPA" ); Lightstone Group; Fairfield Presidential Management Corporation (" FPMC" ); David Lichtenstein; and Debbie Ketay, (collectively, " defendants" ), alleging numerous federal and state claims, including: (1) violations of the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692, et seq.; (2) violations of the Fair Credit Reporting Act (" FCRA" ), 15 U.S.C. § 1681, et seq.; (3) violations of New York General Business Law § 349; (4) malicious prosecution; (5) abuse of process; (6) wrongful use of a civil proceeding; (7) violations of Federal Rule of Civil Procedure 11; (8) violations of the federal criminal false statements statute, 18 U.S.C. § 1001; and (9) federal criminal mail fraud, apparently under an " honest services" theory, pursuant to 18 U.S.C. § § 1341 and 1346.

Defendants moved for judgment on the pleadings and this Court referred defendants' motion to Magistrate Judge Wall for a Report and Recommendation (" R& R" ). Magistrate Judge Wall recommended that defendants be granted judgment on the pleadings and also recommended, sua sponte, that plaintiffs' motion to amend their complaint be denied. Plaintiffs objected to the R& R and, by Memorandum and Order dated March 30, 2010, the Court adopted the well-reasoned and thorough R& R in its entirety with the exception that the Court afforded plaintiffs leave to replead their Fair Credit Reporting Act claim. Plaintiffs filed an amended complaint, and defendants moved to dismiss it. Plaintiffs then sought leave to file a Second Amended Complaint, which the Court granted. The Court denied defendants' motion to dismiss as moot without prejudice to renewal upon the filing of the Second Amended Complaint by the plaintiffs. Plaintiffs filed a Second Amended Complaint and defendants moved to dismiss it. By Memorandum and Order dated March 28, 2012, the Court granted defendants' motion in its entirety as to the federal claims asserted by plaintiffs. The Court also sua sponte dismissed with prejudice the state law claims set forth in the Second Amended Complaint. See 08-CV-4207, Mem. & Order, dated March 28, 2012, (Bianco, J.).

B. The Present Complaint

On July 7, 2014, plaintiffs filed the instant complaint in this Court against Justice Michael L. Pesce, P.J.; Justice Michelle Weston; Justice Martin M. Solomon; Chief Clerk Paul Kenny; [2] Senior Partner Russell Polirer, Esq.; Senior Partner Kenneth Novikoff, Esq.; Senior Partner Chery[l] F. Korman, Esq.; Gutman, Mintz, Baker & Sonnenfeldt, P.C. (" Gutman" ); and Rivkin Radler, LLP, attorney at law.[3] Like the earlier complaint, the present complaint is difficult to comprehend as it is voluminous and replete with not only factual allegations but references to and quotations from various statutes, codes of conduct, and case law. However, as the Court can best discern, the gravamen of the claims here arise from the same underlying proceedings complained of in plaintiffs' first action in this court. More specifically, plaintiffs again seek review in this court of the action against them in the Civil Court of the City of New York.

According to the complaint, the instant matter arises from a " frivolous" lawsuit filed by Gutman on behalf of its client, Fairfield Presidential Associates (" FPA" ), in the Civil Court of the City of New York, Kings County, against the Caldwells, Index No. CV-26710-06 (" Kings I" ). (Compl. at ¶ III. (1).) The Caldwells were tenants in a residential building that is allegedly owned by Fairfield Towers Condominium. (Compl. at ¶ ¶ III. (1-2, 8-9).) Plaintiffs complain that Gutman, on behalf of FPA, sent the Caldwells collection letters in January 2006 concerning the non-payment of rent. On February 27, 2006, Gutman filed a lawsuit in New York City Civil Court on behalf of FPA against the Caldwells for breach of lease and damages. (Compl. at ¶ ¶ III. (1-4).)

A civil trial was held and the Honorable Alice Fisher Rubin issued a decision on June 4, 2007, stating that the plaintiff, FPA, had " established a prima facie case based on credible evidence" and that the defendants did not establish a prima facie case on their counterclaim. (Compl. at ¶ III. (21), Ex. K.) Finding that the matter originated in the housing court where the issues of non-payment, holdover, and abatement were adjudicated, Judge Rubin ruled that a judgment of possession was granted to FPA in the holdover action, use and occupancy were established, and FPA's claim for money damages was established. ( Id.) In addition, Judge Rubin found that the Caldwells' counterclaim seeking further abatement could not be sustained since they had had their day in court in the underlying housing court proceeding. ( Id.)

Plaintiffs assert in the instant complaint that these rulings are " unconstitutional, inequitable [and] directly violate and disenfranchise [plaintiffs] of their constitutional rights to due process, a fair civil proceeding and clearly demonstrate[] a lack of standing by the defendants and their client FPA." (Compl. at ¶ III. (21).) Plaintiffs claim that Judge Rubin " erred and ruled with bias and prejudice . . . ." ( Id. at ¶ III. (24).)

The Caldwells appealed the Civil Court ruling to the Appellate Term, which affirmed the order, on February 11, 2009. ( Id. at ¶ ¶ III. (30-31,33), Ex. M.) In between the entry of judgment in the Civil Court and the denial of the Caldwell's appeal, they filed their first action in this court, which was described above.

Plaintiffs also seek review of another state court proceeding in the Civil Court, Ken Caldwell v. Gutman, Mintz, Baker Sonnfeldt, P.C., 33 Misc.3d 1226[A], 941 N.Y.S.2d 536, 2011 N.Y. Slip. Op. 52116[U] (" Kings II" ). There, Ken Caldwell sued Gutman for causes of action such as " wrongful use of civil proceeding" and " abuse of process." ( See Decision & Order, dated Nov. 25, 2011, Levine, J., Ex. N-6 annexed to the Compl. at 2.) Ken Caldwell claimed that Gutman violated a number of disciplinary rules governing the Lawyer's Code of Professional Responsibility and the " Rules of Conduct" by initiating a meritless suit (Kings I) against him and his wife. ( Id.) Gutman moved to dismiss the complaint on the grounds that the court lacked subject matter jurisdiction since plaintiff was seeking an amount of recovery beyond the jurisdictional limit of the court. ( Id.) By Decision and Order dated June 9, 2008, the action and motion were held in abeyance pending the determination of the pending appeal of Judge Rubin's June 4, 2007 decision. The order further provided that the action could be restored to the court's calendar upon written request once the appeal was determined. ( Id.) The Appellate Term affirmed Judge Rubin's decision by order dated February 11, 2009 and Ken Caldwell did not move to restore the action to the court's calendar until approximately one year and one month after the Appellate Term's final order. ( Id.)

While Kings II was stayed, the Caldwells filed the first federal action and this Court adopted the R& R dismissing the complaint on March 30, 2010, approximately nine days before the expiration of the year in which Ken Caldwell had to restore the state court civil action to the trial calendar. Accordingly, because " Caldwell was engrossed in federal litigation during the year he had to restore the instant action to the calendar, . . . [Judge Levine found] that plaintiff . . . set forth a reasonable explanation for his delay" and, accordingly, Judge Levine declined to dismiss the complaint on that basis. ( Id. at 6.) However, Judge Levine dismissed the complaint on the merits, finding that plaintiff's claims were barred by res judicata. ( Id. at 7.) Judge Levine further found that the FDCPA claim was time-barred since it was filed beyond the one-year statute of limitations. ( Id.) Finally, Judge Levine ruled that, insofar as Caldwell alleged Gutman violated various attorney disciplinary rules and codes of conduct, there is no private right of action for such claims. ( Id. at 7-8.)

Caldwell appealed Judge Levine's November 25, 2011 order and, following argument, in person by Caldwell and submitted by Novikoff, the Appellate Term affirmed the order in its entirety, without costs. ( See Order, dated February 7, 2014, annexed to the Compl. as Exs. N7, N8 and N9.) The justices on the Appellate Term panel, namely Justices Pesce, Weston, and Solomon, are named as defendants in the instant federal complaint.

Further, plaintiffs complain about the defense lawyers' conduct in the first federal action. More specifically, plaintiffs contend that Rivkin Radler, LLP and Novikoff " filed frivolous motions to dismiss." (Compl. at 70, ¶ 30.) Plaintiffs allege that Novikoff " knowingly perjured himself in his motion to dismiss dated Jul[y] 8, 2010 to the federal court . . . [and ] in his reply motion to dismiss dated Aug. 20, 2010. . . [and] in his motion to dismiss dated Jun. 9, 2011. . . ." (Compl. at 72, ¶ ¶ 32-34.) Plaintiffs also claim that Novikoff " obstruct[ed] discovery . . . by sending a letter to Magistrate Judge []Wall dated Jul[y] 16, 2009." (Compl. at 74-75, ¶ 37.) With regard to Cheryl Korman, she is mentioned in a single paragraph on page eighty of the eighty-nine page complaint. There, plaintiffs assert that Korman, as a senior partner with Rivkin Radler, LLP, " was fully aware that Ken Caldwell was entitled to a default judgment" and " was fully aware that her firm had no business representing Gutman in the civil court or state court proceeding without first receiving authorization from a civil court judge as a matter of law." (Compl. at 80-81, ¶ 44.) As a result, plaintiffs claim, inter alia, that Korman violated New York " CPLR 321(a)(b)." (Compl. at 80-81, ¶ 44.)

Based on the foregoing, plaintiffs assert a myriad of claims, including: (1) civil rights violations pursuant to 42 U.S.C. § § 1983 and 1985 based on the alleged deprivation of their Constitutional rights to equal protection and due process in violation of the Fifth, Seventh, Thirteenth and Fourteenth Amendments; (2) Civil RICO claims under the Federal Racketeering Act, 18 U.S.C. § 1621; (3) violations of New York General Business Law § 349; and (4) fraud, perjury and obstruction of justice. The gist of the factual predicate for these claims is that FPA was not their landlord and, as such, had no standing to pursue legal action against the Caldwells in state court. Relying on that premise, the Caldwells claim the state court judges and personnel " corrupt[ed] their authority" and " knowingly did not follow civil procedure" by allowing Gutman and their counsel, Novikoff, to file " frivolous motions." (Compl. at ¶ III. (42).) Plaintiffs also challenge the conduct of defense counsel in the first federal action.

All of the defendants named in instant complaint are related to the state court proceedings, either as members of the judiciary or court personnel or as counsel to the corporate entities involved in the underlying state court proceedings.

II. Standard of Review

A. Application to Proceed In Forma ...


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