Abrahams v. Appellate Div. Of Supreme Court

• Decision Date: 07 February 2007
• Docket Number: No. 05 Civ. 4053(SCR)(GAY).,05 Civ. 4053(SCR)(GAY).
• Citation: 473 F.Supp.2d 550
• Parties: Solomon ABRAHAMS, Plaintiff, v. The APPELLATE DIVISION OF the SUPREME COURT, Second Judicial Department, Gail Prudenti, Individually, a Justice of the Appellate Division, Second Judicial Department, David Ritter, Individually, a Justice of the Appellate Division, Second Judicial Department, Frank Santucci, Individually, a Justice of the Appellate Division, Second Judicial Department, Robert Schmidt, Individually, a Justice of the Appellate Division, Second Judicial Department, James E. Pelzer, Individually, the Clerk of the Appellate Division, Second Judicial Department, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 550

473 F.Supp.2d 550

Solomon ABRAHAMS, Plaintiff, v. The APPELLATE DIVISION OF the SUPREME COURT, Second Judicial Department, Gail Prudenti, Individually, a Justice of the Appellate Division, Second Judicial Department, David Ritter, Individually, a Justice of the Appellate Division, Second Judicial Department, Frank Santucci, Individually, a Justice of the Appellate Division, Second Judicial Department, Robert Schmidt, Individually, a Justice of the Appellate Division, Second Judicial Department, James E. Pelzer, Individually, the Clerk of the Appellate Division, Second Judicial Department, Defendants.

No. 05 Civ. 4053(SCR)(GAY).

United States District Court, S.D. New York.

February 7, 2007.

COPYRIGHT MATERIAL OMITTED

Solomon Abrahams, Hartsdale, NY, pro se.

Lisa Ghartey, Eliot Spitzer, Attorney General of The State of NY, New York City, for defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

ROBINSON, District Judge.

This case was referred to Magistrate Judge George A. Yanthis for a report and recommendation on Defendants' motion to dismiss the Amended Complaint filed by Solomon Abrahams ("Plaintiff').

I. Background

a. Facts

Plaintiff is suing the Appellate Division of the Supreme Court, Second Judicial Department ("Appellate Division"); Appellate Division justices Gail Prudenti, David Ritter, Frank Santucci, and Robert Schmidt, in their individual capacities; and, finally, also in his individual capacity, James E. Pelzer, the Clerk of the Appellate Division.

Plaintiff was admitted to practice law before the courts of the State of New York On December 20, 1950, and was subsequently admitted to practice before the United States District Courts of the Southern and Eastern Districts of New York.

This case arises from two court sanctions against Plaintiff which, coupled with several other disciplinary violations, resulted in the Suspension of his license to practice law. First, on September 14, 1999, the Westchester County Supreme Court issued a sanction order directing Plaintiff to pay $4,500 by October 1, 1999 to the Lawyers' Fund for Client Protection for the State of New York for violating pretrial discovery orders and engaging in frivolous motion practice. Caiola v. AllCity Ins. Co., Nos. 1333/96, 8095/99, 2002 WL 1448855, *1 (N.Y.Sup. June 10, 2002). Second, on July 10, 2001, the Westchester Supreme Court directed Plaintiff to pay $3,500 by July 30, 2001 to the Client Protection Fund for once more engaging in frivolous motion practice. Id. at *2.

Plaintiff did not comply with these sanctions, and the trial court found him guilty of criminal contempt. Id. at *19-20. This order subsequently was overturned by the Appellate Division because Plaintiff was not personally served with notice of the proceeding. Caiola v. Allcity Ins. Co., 305 A.D.2d 350, 351, 758 N.Y.S.2d 683, 685 (App. Div.2d Dep't 2003). On July 22, 2003, the Westchester Supreme Court judge denied Plaintiff's motion to dismiss the criminal contempt proceeding against him. Caiola v. Allcity Ins. Co., 7 A.D.3d 557, 557, 776 N.Y.S.2d 504, 2004 N.Y. Slip Op. 03756 (App. Div.2d Dep't 2004). The Appellate Division affirmed, holding that his argument that the Westchester Supreme Court "did not have the power to commence the criminal contempt proceeding against him sua sponte" was "without merit." Id.

On October 16, 2002, the Appellate Division issued an interim order suspending Plaintiffs law license pursuant to New York Judiciary Law § 90(4)(f). Plaintiff moved to vacate this interim suspension pending final disciplinary proceedings by the Grievance Committee; the Appellate Division denied the motion. In re Abrahams, 2001-08705, 2003 WL 23100117, *1 (App.Div.2d Dep't, Dec. 29, 2003).

On December 29, 2003, Plaintiff was suspended from the practice of law for five years. In re Abrahams, 5 A.D.3d 21, 26, 770 N.Y.S.2d 369 (App. Div.2d Dep't 2003). In sustaining thirteen of nineteen charges that had been brought before the Special Referee, the Appellate Division unanimously found that Plaintiff "engaged in a pattern and practice of frivolous conduct, disregarding court orders and judgments, and providing misleading information to tribunals," indicating "disrespect for the courts and the judicial process." Id. The court considered the letters and affidavits of good moral character submitted on Plaintiff's behalf, as well as the four letters of caution and four letters of admonition in Plaintiff's disciplinary file. Id. at 26, 770 N.Y.S.2d 369. Citing, inter alia, Plaintiff's engagement in conduct adversely reflecting on his fitness to practice in violation of New York Code of Professional Responsibility DR 1-102(a)(7) (22 N.Y.C.R.R. 1200.3(a) (7)), the Appellate Division suspended him for five years and set forth certain conditions he would have to fulfill for reinstatement. Id. at 27, 770 N.Y.S.2d 369.

The New York Court of Appeals dismissed Plaintiffs appeal on February 24, 2004, holding that he had no grounds to appeal as of right the unanimous order as there was no "direct involvement of a substantial constitutional question." In re Abrahams, 1 N.Y.3d 619, 620, 808 N.E.2d 1273, 1273, 777 N.Y.S.2d 13, 14 (2004). Soon thereafter, the Court of Appeals then denied leave to appeal. In re Abrahams, 3 N.Y.3d 601, 816 N.E.2d 194, 782 N.Y.S.2d 404 (2004).

Plaintiff filed his Complaint before this Court on April 22, 2005. In his Amended Complaint, filed on July 18, 2005, Plaintiff asserts that the Appellate Division lacked the subject matter jurisdiction to issue the interim suspension order pursuant to New York Judiciary Law §§ 90(4)(d) and (f); that the order was not preceded by an application from the Grievance Committee pursuant to 22 N.Y.C.R.R. § 691.7; and that the order awarding sanctions for frivolous conduct was erroneous in that it was not in the form of a money judgment. Plaintiff contended that Defendants' actions deprived him of his rights to due process and equal protection, and subjected him to cruel and unusual punishment, and unlawful seizure of his license to practice law. Am. Compl. ¶ 30.

This Court referred this matter to Magistrate Judge George A. Yanthis on September 12, 2005, to issue a report and recommendation ("Report and Recommendation") on Defendants' motion to dismiss Plaintiffs action pursuant to Rules 12(b)(1) and 12(b)(6). Defendants' grounds for dismissal are: (1) this Court lacks subject matter jurisdiction pursuant to the Rooker-Feldman Doctrine and the Eleventh Amendment of the United States Constitution; (2) the justices have absolute immunity; (3) Younger abstention bars Plaintiffs claims; (4) Plaintiffs allegations that James E. Pelzer violated his § 1983 rights are insufficient to state a claim. For the reasons stated below, Defendants' motion to dismiss is granted.

II. Analysis

a. Standard of Review for Report and Recommendation

In reviewing a Report and Recommendation, a court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b) (1)(C). To accept a Report and Recommendation to which neither party has timely objected, "a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985) (citations omitted). See also Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991) (court may accept report if it is "not facially erroneous"). However, a district court judge is required to make a de novo determination as to the aspects of the Report and Recommendation to which objections are made. 28 U.S.C. § 636(b) (1); United States v. Raddatz, 447 U.S. 667, 673-674, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997).

A district court's obligation to make a de novo determination does not require that the judge conduct a hearing on the matter, however. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989). Instead, a de novo determination requires "review of the magistrate's proposed findings and an exercise of sound judicial discretion with respect to whether reliance should be placed on those findings." American Express Int'l Banking Corp. v. Sabet, 512 F.Supp. 472, 473 (S.D.N.Y. 1981), aff'd without opinion, 697 F.2d 287 (2d Cir.1982), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982).

Here, Plaintiff has objected to Judge Yanthis's recommendation that this Court grant Defendants' motion to dismiss. This Court carefully engaged in a de novo review of Judge Yanthis's thorough and thoughtful Report and Recommendation, and Plaintiffs objections to the same. For the reasons stated in that Report, this Court grants Defendants' motion to dismiss.

b. Standard of Review for Defendants' Motion to Dismiss

When presented with motions to dismiss on both 12(b)(1) and 12(b)(6) grounds, a court must first decide the 12(b)(1) motion as defenses and objections are moot if the court does not have subject matter jurisdiction over the complaint. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 675 (2d Cir.1990).

i. 12(b)(1)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a case is properly dismissed for lack of subject matter jurisdiction "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). "In resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings ...." Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir.2002). The party asserting subject matter jurisdiction must prove by a preponderance of the evidence that it exists. Id. Here, Plaintiff bears the burden of establishing the court's jurisdiction. For the reasons explained below, this case is dismissed against all defendants on 12(b)(1) grounds.

ii. 12(b)(6)

In considering a motion to...