Alroy v. City of N.Y.

• Decision Date: 24 November 2014
• Docket Number: No. 13–CV–6740 VEC.,13–CV–6740 VEC.
• Citation: 69 F.Supp.3d 393
• Parties: Daniel ALROY, Plaintiff, v. CITY OF NEW YORK LAW DEPARTMENT, Michael A. Cardozo, William A. Grey, Avalonbay Communities, Inc., Timothy J. Naughton, Frederick S. Harris, Michael W. Freudenberg, Harrington, Ocko & Monk, LLP, Defendants.
• Court: U.S. District Court — Southern District of New York

69 F.Supp.3d 393

Daniel ALROY, Plaintiff

v.CITY OF NEW YORK LAW DEPARTMENT, Michael A. Cardozo, William A. Grey, Avalonbay Communities, Inc., Timothy J. Naughton, Frederick S. Harris, Michael W. Freudenberg, Harrington, Ocko & Monk, LLP, Defendants.

No. 13–CV–6740 VEC.

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

Signed Nov. 24, 2014.

Daniel Alroy, New York, NY, pro se.

Omar Hani Tuffaha, New York City Law Department, New York, NY, Kevin James Harrington, Harrington Ocko & Monk, LLP, White Plains, NY, for Defendants.

ORDER & OPINION

VALERIE CAPRONI, District Judge.

This action arises out of the destruction of a sculpture owned by pro se Plaintiff Daniel Alroy that had been displayed in a community park, and his disappointment with the course of the ensuing state court litigation. Defendants have moved to dismiss the complaint.

I. PROCEDURAL BACKGROUND

On October 1, 2007, Plaintiff commenced an action (the “City Action”) against the City of New York Parks and Recreation Department (the “Parks Department” or “City Defendant”) in the Supreme Court of the State of New York, County of New York, alleging that the Parks Department was responsible for the destruction of his sculpture and that the destruction was an illegal taking without just compensation in violation of his Fifth and Fourteenth Amendment rights. Harrington Decl. Ex. B.¹ On September 29, 2009, Plaintiff brought a second action (the “Avalon Action”) against AvalonBay Communities, Inc. (“AvalonBay”), Tony Casale, Inc., and Antonio Casale. Harrington Decl. Ex. C.² The two actions were consolidated for all purposes in 2010 (collectively, the “State Action”), Avalon Mem. at 2, and the State Court granted summary judgment in favor of the City Defendants on June 21, 2012, see Harrington Decl. Ex. F. The Avalon Action is still pending in State Court. City Mem. at 3 n. 2.

Plaintiff commenced this action on September 24, 2013, and filed an Amended Complaint on January 29, 2014. Dkt. 1, 7. Principally, Plaintiff alleges that the Defendants' conduct of the State Court proceeding constituted an abuse of process and a “denial of his constitutional right to due process and fair and equal access to the Courts.” Compl. at 12.³ Defendants have moved pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.⁴

For the following reasons, Defendants' motions are GRANTED and Plaintiff's Complaint is DISMISSED.

II. FACTUAL BACKGROUND⁵

In 1995, Plaintiff agreed to provide a sculpture he had commissioned, allegedly from marble extracted from the same quarry used by Michelangelo, for display in a private community garden known as the Rock & Rose Garden located at the northwest corner of Houston Street and Second Avenue in Manhattan, New York. Compl. ¶ D1; Compl. Ex. 1. The agreement provided that Plaintiff would remove the sculpture within 24 hours upon written notice. Compl. ¶ D3. Thereafter, the Parks Department assumed jurisdiction of all community gardens, including the Rock & Rose Garden. Compl. ¶ D5. In 2005, the Parks Department undertook to integrate the Rock & Rose Garden with an adjacent garden and contracted with AvalonBay to oversee the project. Compl. ¶ D7.⁶ AvalonBay subcontracted with Tony Casale, Inc. (“Casale”) for certain aspects of the project. Compl. ¶ D7. On December 4, 2006, workers employed by Casale demolished the sculpture in order to remove it from the garden; Plaintiff had not been given advance notice of the removal or provided an opportunity to remove his sculpture. Compl. ¶¶ D8, D10.

Plaintiff brought an action against the City in 2007 for damages alleging that Casale acted at the direction of a Parks Department representative when it demolished the sculpture rather than removing it intact. Compl. ¶ D10, 12. The City denied liability and asserted that AvalonBay and Casale were liable for the destruction of the sculpture, prompting Plaintiff to commence the Avalon Action. Compl. ¶ D13. Plaintiff alleged that AvalonBay initially told the City and his attorney that two AvalonBay witnesses would testify that the City had directed the demolition of the sculpture. Compl. ¶ D14. When the AvalonBay witnesses were deposed, however, they testified that they did not remember the decision having been made by a representative of the City. Compl. ¶¶ D17. Plaintiff alleges that the witnesses “changed” their testimony as a result of improper conduct (not further defined or described) on the part of the City's attorney and collusion between the City and AvalonBay. Compl. ¶¶ D16, D17, D19.

Plaintiff claims these changed circumstances caused his attorney to “throw in the towel” and take actions that were contrary to Plaintiff's interests. Compl. ¶ E3; Pl. Mem. ¶¶ 5.4, 6.4. During the course of the State Action, Plaintiff terminated his attorney and began representing himself. Compl. ¶¶ E5, E7.

One consequence of the changed testimony was that AvalonBay accepted responsibility for demolition of the sculpture, extinguishing any potential liability of the City to Plaintiff in connection with the destruction of the sculpture. Pl. Mem. ¶ 2.8. Over Plaintiff's objection that the City's filings were fraudulent and collusive, the State Court granted the City Defendants' motion for summary judgment and dismissed the City Action. Harrington Decl. Ex. F. In pertinent part, the State Court found that Plaintiff's “allegations of collusion between the City and Avalon[B]ay” were “unsubstantiated” and his “theory that the City's attorney formerly handling [that] matter acted improperly to deceive th[e] Court and the various parties, supposedly cover[ed] up the true facts, and manipulated the administration of th[at] action” was “unfounded.” Id. at 5.

The crux of Plaintiff's complaint before this Court is that the Defendants' conduct in the State Action caused him legal injury. In his words: “[T]he defendants manipulated the judicial system on the State level in a way that violated [his] constitutional right to a fair and impartial trial.” Compl. at 12. Plaintiff further argues that he was used as an “involuntary instrument” between the City Defendants and Avalon Defendants to determine which party was responsible for compensating him, which burdened him with establishing liability and forced him to incur the costs of litigating an “otherwise unnecessary lawsuit.” Pl. Mem. Opp. at 1.

III. ANALYSIS

Because Plaintiff is proceeding pro se, the Court construes his submissions “liberally” and with “special solicitude” and interprets them to “raise the strongest arguments that they suggest. ” Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474 (2d Cir.2006) (per curiam ) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.2006) ) (emphasis from Triestman ).

a. Rooker–Feldman Bar

Construed liberally, Plaintiff intended to invoke the Court's federal question jurisdiction under 28 U.S.C. § 1331.⁷ His claim that he was deprived of due process in the State Action invokes federal law. The remaining causes of action—abuse of process, conspiracy, and tortious interference with contract—are all state law claims. Because Plaintiff alleges those torts were committed by a state agency⁸ and by government officials acting in their official capacity, the claims could be construed as arising either under 42 U.S.C. § 1983, giving rise to federal question jurisdiction, or as state law tort claims, which would require the Court to exercise supplemental jurisdiction under 28 U.S.C. § 1367 if it first finds federal question jurisdiction over his due process claim.⁹ See Compl. at 12.

Defendants argue that the Court lacks subject matter jurisdiction over the due process claim by virtue of the Rooker–Feldman doctrine and that the Amended Complaint fails to state a claim for relief under Section 1983 ; therefore, the entire action should be dismissed for lack of subject matter jurisdiction. City Mem. at 7–10; Avalon Mem. at 10–13. “In evaluating a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), courts ‘must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.’ ” Waltman v. U.S. S.E.C., No. 14–CV–1574 (VEC), 2014 WL 4357477 (S.D.N.Y. Sept. 2, 2014) (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.2014) ).

The Court may look to evidence outside the pleadings (including the records of the State Court proceeding) in resolving the question of subject matter jurisdiction; the Plaintiff has the burden of proof by a preponderance of the evidence that jurisdiction exists. Id. at 496–97.

b. Plaintiff's Due Process Claim

Defendants argue that Plaintiff's claim that he was deprived of due process and access to the state court is barred by the Rooker–Feldman doctrine. The Rooker–Feldman doctrine recognizes that Congress did “not authorize district courts to exercise appellate jurisdiction over state-court judgments” when it defined the district courts' original subject matter jurisdiction in 28 U.S.C. § 1331. McKithen v. Brown, 481 F.3d 89, 96 (2d Cir.2007) (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 644 n. 3, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) ). “Underlying the Rooker–Feldman doctrine is the principle, expressed by Congress in 28 U.S.C. § 1257, that within the federal judicial system, only the Supreme Court may review state-court decisions.” Green v. Mattingly, 585 F.3d 97, 101 (2d Cir.2009) (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir.2005) ). Thus, when faced with a claim that is in effect an appeal of a final state court judgment, a district court should dismiss for lack of subject matter jurisdiction. See id. The Supreme Court has admonished, however, that the Rooker–Feldman doctrine does not alter federal courts' concurrent subject matter jurisdiction over claims...