United States District Court, S.D. New York
IRINA GALANOVA et al. Plaintiff,
VLAD PORTNOY et al. Defendants.
OPINION AND ORDER
G. KOELTL, DISTRICT JUDGE.
plaintiffs, Irina Galanova and Peter Gitzis, proceeding
pro se, bring this action against a number of
defendants connected in various ways to a New York State
Article 81 Guardianship proceeding. The plaintiffs allege that
their rights were violated when a New York State Supreme
Court Justice found Gitzis to be incapacitated and
incompetent, and appointed him a legal guardian, the
defendant Vlad Portnoy. The plaintiffs ask this Court to find
that the state court erred in appointing a property guardian
with broad powers. The plaintiffs request monetary relief
resulting from actions taken by the guardian with respect to
accounts and property owned by the plaintiffs. The plaintiffs
bring this action pursuant to 42 U.S.C. §§ 407,
1981, 1982, 1985, and 1986; 18 U.S.C. §§ 1951 and
1957; the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et
seq.; the Due Process Clause of the Fourteenth
Amendment; and New York state law.
defendants have moved to dismiss the Complaint pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. For the following reasons, the defendants'
motions to dismiss are granted.
defending against a motion to dismiss for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), the plaintiff bears the burden of proving the
Court's jurisdiction by a preponderance of the evidence.
See 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. Id. Indeed, where
jurisdictional facts are disputed, the Court has the power
and the obligation to consider matters outside the pleadings,
such as affidavits, documents, and testimony, to determine
whether jurisdiction exists. See APWU v. Potter, 343
F.3d 619, 627 (2d Cir. 2003); Kamen v. Am. Tel. &
Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986).
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). “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).
the Court should construe the factual allegations in the
light most favorable to the plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in the complaint is inapplicable to legal conclusions.”
Id. When presented with a motion to dismiss pursuant
to Rule 12(b)(6), the Court may consider documents that are
referenced in the complaint, documents that the plaintiff
relied on in bringing suit and that are either in the
plaintiff's possession or that the plaintiff knew of when
bringing suit, or matters of which judicial notice may be
taken. See Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir. 2002).
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)).
Amended Complaint sets forth the following facts, which are
accepted as true for the purposes of deciding these motions.
January 2012, Peter Gitzis, a Brooklyn, New York resident,
suffered a stroke. Am. Compl. ¶¶ 5, 26. As a
result, Gitzis developed “receptive and
expressive” language deficiencies, as well as other
physical and mental impairments that substantially impacted
his everyday life. Id. at ¶¶ 26-27. At the
time of his stroke, Gitzis contacted a distant cousin, Alla
Sherbakov, for assistance. Id. at ¶ 28. On
January 23, 2012, Gitzis was admitted to Coney Island
Hospital, and one week later was transferred to a
rehabilitation center. Id.
February 8, 2012, Gitzis allegedly signed a Power of Attorney
in favor of the defendants Alla Sherbakov and her husband,
Igor Sherbakov. Id. On February 29, 2012, Gitzis was
referred to state Adult Protective Services
(“APS”) by a social worker due to concerns that
he was being “financially exploited by a female, who
might have been a distant relative.” Id. The
referral was rejected because Gitzis was hospitalized without
a specified date of discharge. Id. On March 8, 2012,
Gitzis purported to replace the Sherbakovs by appointing
Galanova as what the Amended Complaint refers to as
Gitzis's “Attorney-In-Fact.” Id.
That same day, Gitzis was released under the care of
Galanova, who signed the discharge papers. Id. On
March 14, 2012, Gitzis appointed Galanova to be his health
care agent. Id. On March 22, 2012, the Sherbakovs
referred Gitzis to APS, claiming Gitzis was “being
financially exploited” by Galanova. Id.
February 20, 2013, then-Commissioner of Social Services of
the City of New York, Robert Doar,  commenced a proceeding
pursuant to Article 81 of the New York Mental Hygiene Law
seeking to appoint the Jewish Association Serving the Aging
(“JASA”) as community guardian of personal needs
and property management for Gitzis.
Id. On September 12, 2016, Galanova requested
a “Fair Hearing” before a New York State
Administrative Law Judge to determine if Gitzis was eligible
for APS, asserting that Gitzis never received a notice of
eligibility determination or notice of fee requirements.
Id. at ¶ 36. At the Fair Hearing on March 9, 2017,
the New York City Human Resources Administration's Office
of Legal Affairs presented a copy of a signed notice of
eligibility, dated March 28, 2012. Id. at ¶ 37.
The plaintiffs allege that the defendant Krysta Berquist made
materially false statements at the Fair Hearing and in the
course of the Article 81 proceeding and “is guilty of
intentional fraud, deceit and collusion.” Id.
at ¶¶ 36-45. Sometime thereafter, Gitzis and
Galanova were married. Id. at ¶¶ 68, 70.
October 12, 2017, Justice Loren Baily-Schiffman of the New
York State Supreme Court, Kings County found that Gitzis
required a Guardian of Property and appointed the defendant
Vlad Portnoy to that position, suspending Galanova's
alleged Power of Attorney. Id. at ¶¶ 50-51.
Portnoy thus had alleged authority over all of Plaintiff
Gitzis's real and personal property, including bank
accounts. Id. at ¶¶ 53-55. On March 13,
2018, Portnoy opened a guardianship account at JPMorgan Chase
and two days later transferred some of Gitzis's assets
into that account. Id. at ¶¶ 54, 60. On
June 6, 2018, Justice Baily-Schiffman issued an order
allowing Defendant Portnoy to, among other things, sell and
lease certain properties belonging to Plaintiff Gitzis.
Id. at ¶¶ 53, 55. The plaintiffs allege
that the City fraudulently initiated and prosecuted the
Article 81 proceedings. Id. at ¶¶ 32-48.
They further allege that Portnoy and Chase fraudulently
controlled the plaintiffs' assets through the
guardianship and unlawfully obtained the plaintiffs'
benefits and marital assets. Id. at ¶¶
61-68, 75, 78. Finally, the plaintiffs also allege that the
Portnoy defendants and the City defendants deprived the
plaintiffs of their rights and property in connection with
Portnoy's exercise of his guardianship rights in
violation of federal law, state law, and state rules of
professional conduct. Id. at ¶¶ 78-84.
25, 2017, and prior to the appointment of Portnoy as
guardian, Galanova and Gitzis initiated an action in the
United States District Court for the Eastern District of New
York. Galanova v. Roberts et al., No. 17-cv-3179
(E.D.N.Y.). On June 1, 2018, Galanova initiated a second
action, based on substantially the same facts, in the United
States District Court for the Eastern District of New York,
against a number of defendants, this time adding Portnoy as a
defendant. Galanova v. Portnoy et al., No.
18-cv-3212 (E.D.N.Y.). Both cases alleged claims
substantially similar to those in this case against
substantially similar defendants. The federal claims were for
violations of 42 U.S.C. §§ 1981, 1982, 1985, and
1986, the ADA, and the Due Process Clause of the Fourteenth
Amendment. Judge Chen reserved ruling on the defendants'
motion to dismiss the claims brought by Gitzis, but Judge
Chen granted the defendants' motion to dismiss the claims
brought by Galanova. Galanova v. Portnoy, Nos.
17-cv-3179 & 18-cv-3212, 2018 WL 3824126, at *1, *6
(E.D.N.Y. Aug. 10, 2018).
plaintiffs commenced this action on February 15, 2019 and
filed an amended complaint on May 30, 2019. Gitzis purported
to proceed pro se and “by his next friend,
Irina Galanova” and Galanova also purported to proceed
pro se on her own behalf. Am. Compl. at 1. The
plaintiffs assert that the Article 81 proceeding “was
entirely without merit from the time of its commencement to
the present date.” Id. at ¶ 85. They
therefore allege that as a direct result of the
defendants' conduct, they have suffered monetary damages
to their assets and emotional distress. Id. at
the defendants moved to dismiss the Amended Complaint
pursuant to Rules 12(b)(1) and 12(b)(6). The defendants move
to dismiss based on a lack of standing, the
Rooker-Feldman doctrine, res judicata, and that in
any event, no claims are sufficiently pleaded. Additionally,
Justice Baily-Schiffman argues she is protected by judicial
immunity, Portnoy argues he is protected by quasi-judicial
immunity as an appointed guardian, and JPMorgan Chase argues
that it was simply complying with a court order.
defendants make two arguments styled as standing arguments
that are rather about the capacity to sue. First, they argue
that Gitzis cannot appear pro se in this case
because he has been deemed incapacitated by the state court.
Second, the defendants argue ...