United States District Court, S.D. New York
DARREN P. ZAPOTOCKY,
CIT BANK, N.A., Defendant.
MEMORANDUM OPINION & ORDER
G. KOELTL, DISTRICT JUDGE
pro se plaintiff, Darren P. Zapotocky, brings this
action alleging that CIT Bank, N.A., breached his reverse
mortgage contract by requiring him to obtain flood insurance.
Zapotocky also challenges a foreclosure judgment entered
against him in Connecticut state court.
moves pursuant to Rules 12(b) (!) and 12(b) (6) of the
Federal Rules of Civil Procedure to dismiss this action for
lack of subject matter jurisdiction and for failure to state
a claim. CIT argues that Zapotocky lacks standing to bring
this claim because he forfeited it during a personal
bankruptcy and that the Court lacks jurisdiction under the
so-called Rooker-Feldman Doctrine. See
generally Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284-88 (2005). CIT' also argues that
Zapotocky's claims are barred by the doctrine of res
judicata and that he fails to state any claim for relief. For
the reasons explained below, CIT's Rule 12(b)(1) motion
is granted, and Zapotocky's claims are
dismissed without prejudice..
presented with both a motion under 12(b)(1) to dismiss for
lack of subject matter jurisdiction and a motion under Rule
12(b)(6) to dismiss for failure to state a claim upon which
relief can be granted, the first issue is whether the Court
has the subject matter jurisdiction necessary to consider the
merits of the action. See Rhulen Agency, Inc. v. Ala.
Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990);
see also Graham v. Select Portfolio Servicing, Inc.,
156 F.Supp.3d 491, 499 (S.D.N.Y. 2016).
prevail against a motion to dismiss for lack of subject
matter jurisdiction, the plaintiff bears the burden of
proving the Court's jurisdiction by a preponderance of
the evidence. Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). In considering such a motion, the
Court generally must accept the material factual allegations
in the complaint as true. See J.S. ex rel. N.S. v. Attica
Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court
does not, however, draw all reasonable inferences in the
plaintiff's favor. Graubart v. Jazz Images,
Inc., No. 02-CV-4645, 2006 WL 1140724, at *2 (S.D.N.Y.
Apr. 27, 2006); see also Graham, 156 F.Supp.3d at
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff's
favor. McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007). The Court's function on a
motion to dismiss is "not to weigh the evidence that
might be presented at a trial but merely to determine whether
the complaint itself is legally sufficient." Goldman
v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court
should not dismiss the complaint if the plaintiff has stated
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the Court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
also Burke v. Metro. Transp. Auth., No. 09-cv-3291, 2009
WL 4279538, at *2 (S.D.N.Y. Dec. 1, 2009).
pleadings and allegations of a pro se plaintiff must
be construed liberally for the purposes of deciding motions
pursuant to Rules 12(b)(1) and 12(b)(6). See McKithen v.
Brown, 481 F.3d 89, 96 (2d. Cir. 2007); Weixel v.
Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002). The
submissions of a pro se litigant should be
interpreted to "raise the strongest arguments that they
suggest." Pabon v. Wright, 459 F.3d 241, 248
(2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994)); see also Burke, 2009 WL
4279538, at *2.
complaint is deemed to include any documents incorporated in
it by reference. Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 47 (2d Cir. 1991). "[W]hen a
plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely
relies and which is integral to the complaint, the court may
nevertheless take the document into consideration in deciding
the defendant's motion to dismiss, without converting the
proceeding to one for summary judgment." Int'1
Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62
F.3d 69, 72 (2d Cir. 1995) (per curiam) (internal quotation
marks omitted). "A court may [also] take judicial notice
of the records of state administrative procedures, as these
are public records, without converting a motion to dismiss to
one for summary judgment." Evans v. N.Y. Botanical
Garden, No. 02-CV-3591, 2002 WL 31002814, at *4
(S.D.N.Y. Sept. 4, 2002). Furthermore, a court must deem a
pro se plaintiff's complaint to include the
facts contained in any submissions filed by the plaintiff in
response to a motion to dismiss. Le Grand v. Evan,
702 F.2d 415, 416 n.3 (2d Cir. 1983).
Court accepts the following allegations as true for the
purposes of this motion to dismiss.
is a citizen of Connecticut. CIT is a New York corporation
with is principal place of business in New York. Am. Compl.
August 25th, 2006, Zapotocky obtained a reverse mortgage loan
from Cambridge Home Capital, LLC, secured by a mortgage on
his home in Connecticut. Am. Compl. 5; see Welker Decl. Exs.
1, 2. In July, 2015, Zapotocky's mortgage was assigned to
OneWest Bank, N.A., now known as CIT Bank, N.A.. Welker Decl.
around 2008, Zapotocky was notified that he was required
under the reverse mortgage agreement to obtain flood
insurance. Am. Compl. 5. Zapotocky claims that the flood
insurance was prohibitively expensive and made "it
impossible for [him] to pay the required taxes on [his]
mortgaged house and property." Id.
2016, CIT commenced a foreclosure action against Zapotocky in
the Superior Court of the State of Connecticut (the
"Superior Court"). Welker Decl. Ex. 4. On October
13, 2016, the Superior Court granted CIT's "Motion
For Default - Failure to Plead" after Zapotocky failed
to respond in the foreclosure action. Welker Decl. Ex. 6. On
November 28, 2016, Zapotocky requested argument to discuss
"irregularities" in his reverse mortgage contract.
Welker Decl. Ex. 8. On December 5, 2016, the Superior Court
entered an Order of Judgment of Foreclosure by Sale (the
"Foreclosure Judgment"), and set a sale date of
March 4, 2017. Welker Decl. Ex. 9.
submitted various documents and requests for relief in
response to the entry of the Foreclosure Judgment.
See Welker Decl. Exs. 10-11. On January 10, 2017,
the Superior Court granted a motion by Zapotocky to open the