United States District Court, E.D. New York
OPINION & ORDER
GERSHON United States District Judge
Tayanika Mattos and Black Dog Financial Inc. ("Black
Dog") bring suit seeking to enjoin the New York State
Department of Taxation and Finance ("Department of
Taxation") and the Office of the Attorney General of the
State of New York ("Attorney General's Office")
from pursuing collection activities against her for
outstanding tax penalties. Plaintiff alleges that the
collection activities violate her right to due process.
Defendants move to dismiss the complaint in its entirety
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). For the reasons set forth below, defendants'
motion is granted.
resides in Georgia and owns Black Dog, a for profit
corporation that earns its income by preparing tax returns
for low-income residents of New York and Georgia. The
Department of Taxation fined plaintiff approximately $300,
000 for submitting inaccurate and fraudulent tax forms in
2010 and 2011 for certain taxpayers for whom she prepared
to plaintiff, prior to January of 2013, her registered
address with the Department of Taxation was 1715 Leigh Meadow
Dr., Dacula, GA 30019. In January of 2013, plaintiff claims
she registered her new address with the Department of
Taxation, as required in order to prepare and file tax
returns for plaintiffs clients. This new address also is in
Georgia. This dispute arises from letters the Department of
Taxation sent to plaintiff in January and February of 2013,
which informed plaintiff of the alleged fraud and stated that
she had 90 days to respond. Plaintiff did not learn of these
letters at that time, however, because they were sent to her
prior address and were not forwarded to her new address.
After plaintiff failed to respond, the Department of Taxation
proceeded with collection activities. In May of 2014,
plaintiff checked her credit report and she learned of the
default judgment entered against her. She contacted the
Department of Taxation and it sent her the letters that it
had originally sent in January and February of 2013. The
Department of Taxation told her that the letters were
returned to sender because of the faulty address. Plaintiff
maintains that the Department of Taxation already had her new
address when it sent her the original letters.
learning of the fraud allegations, plaintiff sent the
Department of Taxation a letter explaining why the claims
were incorrect and demanded that the fraud accusations be
dropped and all collection activities cease. The Department
of Taxation denied this request. Plaintiff then requested a
"Conciliation Conference" for the opportunity to be
heard on the fraud allegations. This request was denied as
untimely. On February 17, 2015, the Department of Taxation
seized all the money from plaintiffs personal bank account to
collect on the default judgment.
argues that this seizure violated due process because she
never had an opportunity to contest the fraud allegations,
and she seeks a preliminary injunction against the defendants
enjoining them from any and all collection activities.
Defendants have moved to dismiss.
Department of Taxation's Immunity
Eleventh Amendment states that "the Judicial power of
the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State." U.S. Const,
amend. XI. State sovereign immunity extends beyond the state
itself to "state agents and state instrumentalities that
are, effectively, arms of a state." Woods v. Rondout
Valley Cent. School Dist. Bd. of Educ, 466 F.3d 232, 236
(2d Cir. 2006) (internal quotation omitted). Therefore, the
Eleventh Amendment bars suits against states and their
agencies for both money damages and injunctive relief unless
the State has waived immunity or Congress has abrogated it.
McGinty v. New York, 251 F.3d 84, 91 (2d Cir. 2001).
However, the Eleventh Amendment does not preclude suits
against state officers acting in their official capacities
for prospective injunctive relief to prevent a continuing
violation of federal law. See Steinberg v. Elkman,
666 Fed.Appx. 26, 27 (2d Cir. 2016) (citing Ex parte
Young, 209 U.S. 123, 155-56 (1908)).
plaintiff does not state the avenue through which she is
suing for the alleged violation of her due process rights, I
assume she is doing so pursuant to 42 U.S.C. § 1983.
However, as to suits pursuant to Section 1983, Congress did
not abrogate state sovereign immunity, and New York has not
waived it. See Id. Because the Department of
Taxation is an agency of the State, it is insulated from suit
by the Eleventh Amendment. See Walker v. New York,
150 Fed.Appx. 28, 30 (2d Cir. 2005) (dismissing suit on
Eleventh Amendment immunity grounds as to the Department of
Taxation). Plaintiff "does not name any state official
as a defendant so as to present a possible exception to the
Eleventh Amendment immunity pursuant to Ex parte
Young." Id; see Palmer v. New York State Off. of Court
Admin., 526 Fed.Appx. 97, 99 (2d Cir. 2013)
("[Plaintiffs] claim for prospective injunctive relief..
. fails because she neglected to name a state official acting
in his or her official capacity."). Accordingly, the
claims against the Department of Taxation are dismissed.
the extent the plaintiff is seeking . . . injunctive relief
against the New York State Attorney General in this case, the
Eleventh Amendment would not be a bar to h[er] constitutional
claim." Burke v. Metro. Transp. Auth., 2009 WL
4279538, at *3 (S.D.N.Y. Dec. 1, 2009). However, as discussed
below, plaintiff fails to state a claim as to the Attorney
General's Office. See Carr v. State of New York,
2016 WL 3636675, at *5 (S.D.N.Y. June 29, 2016)
("Although a claim for injunctive relief might
theoretically be brought against [the Attorney General],
Plaintiffs claim would still fail to survive a motion to
dismiss under Rule 12(b)(6).") (internal citation
Failure to State a Claim as to the Attorney General's
deciding a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the court must accept as true all
well-pleaded factual allegations and must draw all inferences
in plaintiffs favor. Swiatkowski v. Citibank, 446
Fed.Appx. 360, 360-61 (2d Cir. 2011). To survive a motion to
dismiss, a complaint must contain sufficient factual matter
to "state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal,556 U.S. 662, 678
(2009) (quoting Bell Ail. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Facial plausibility exists when a plaintiff