Avraham v. Lakeshore Yacht & Country Club, Inc.
| Decision Date | 07 November 2016 |
| Docket Number | 5:15-CV-1297 |
| Parties | OVADIA AVRAHAM, Plaintiff, v. LAKESHORE YACHT & COUNTRY CLUB, INC., and its members / owners, TOWN OF CICERO NY, NEW YORK STATE, JUDY BOYKE, ANTHONY RIVIZZIGNO, WAYNE DEAN, STEVEN PROCOPIO, Town of Cicero Code Enforcement, RICHARD HOOPER, Town of Cicero Code Enforcement, JESSICA ZAMBRANO, Town of Cicero, ZACHARY M. MATTISON, Hancock Estabrook, LLP, MICHAEL L. CORP, Hancock Estabrook, LLP, JOHN J. MARZOCCHI, Germain and Germain Law Firm, NEIL G. GERMAIN, Germain and Germain Law Firm, ROBERT M. GERMAIN, Germain and Germain Law Firm, VERN CONWAY, ROBERT SMITH, Town of Cicero Planning Board, MARK VENESKY, Town of Cicero Board, RICHARD CUSHMAN, Town of Cicero Board, GILBERT, STINZIANO, HEINZ & SMITH P.C., HANCOCK ESTABROOK LLP, GERMAIN AND GERMAIN LAW FIRM, HAL R. ROMANS, Ianuzi & Romans Land Surveying, P.C., and IANUZI & ROMANS LAND SURVEYING, P.C., Defendants. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
OVADIA AVRAHAM
Plaintiff, Pro Se
6724 Lakeshore Road
Cicero, NY 13039
NEWMAN & LICKSTEIN
Attorneys for Defendant Lakeshore
Yacht & Country Club Inc.
Richard Cushman, Gilbert, Stinziano, and
Heinz & Smith P.C.
211 West Jefferson Street
Syracuse, NY 13202
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorneys for Defendant New York State
The Capitol
120 Broadway
Albany, NY 12224
GILBERTI, STINZIANO LAW FIRM
Attorneys for Defendant Anthony P.
Rivizzigno, Gilberti, Stinziano, and
Heinz & Smith P.C.
and Heinz & Smith P.C.
500 Plum Street, Suite 300
Syracuse, NY 13204
SMITH, SOVIK, KENDRICK & SUGNET, P.C.
Attorneys for Defendant Germain and Germain
Law Firm
250 South Clinton Street, Suite 600
Syracuse, NY 13202
PAPPAS, COX, KIMPEL, DODD & LEVIN, PC
Attorneys for Defendants Hal R. Romans and
Ianuzi & Romans Land Surveying, P.C.
SCOTT A. LICKSTEIN, ESQ.
STEVEN D. LICKSTEIN, ESQ.
PAUL V. MULLIN, ESQ.
ADRIENNE J. KERWIN, ESQ.
Ass't Attorney General
ANTHONY P. RIVIZZIGNO, ESQ.
JANET D. CALLAHAN, ESQ.
PAUL G. FERRARA, ESQ.
KEVIN E. HULSLANDER, ESQ.
THOMAS J. MURPHY, ESQ.
MEMORANDUM-DECISION and ORDER
On October 30, 2015, plaintiff Ovadia Avraham ("Avraham" or "plaintiff"), proceeding pro se, filed this civil rights action alleging that defendants are participants in a decades-long conspiracy whose primary object has been to prevent plaintiff from developing a parcel of waterfront land situated adjacent to the Lakeshore Yacht and Country Club (the "LYCC" or the "Club") in Cicero, New York.
Avraham's initial seventy-six page complaint, which included eighteen pages of supporting exhibits and asserted twenty-one causes of action against twenty-three different defendants, sought injunctive relief as well as millions of dollars in compensatory and punitive damages. The same day he instituted this lawsuit, plaintiff also filed two requests to "Remove/Transfer" certain pending state court actions in which he is, or was, a named defendant in an effort to consolidate those state actions as part of this federal one. A few days later, plaintiff filed two emergency motions seeking preliminary injunctive relief.
On November 9, 2015, a Decision and Order issued denying all four of Avraham's pending motions. Among other things, this Decision and Order concluded that plaintiff's removal petitions were procedurally defective and that his requests for injunctive relief lacked the requisite supporting documentation.
On November 24, 2015, defendant Hal Romans ("Romans") and his surveying firm, Ianuzi & Romans Land Surveying, P.C. (the "Surveying Firm Defendants"), submitted an answer to Avraham's complaint. However, in lieu of filing similarly responsive pleadings, the twenty-one other named defendants chose instead to invoke the Federal Rules of Civil Procedure to seek pre-answer dismissal of this action insofar as plaintiff's complaint could be construed as raising one or more claims against them.
First, on December 31, 2015, defendant New York State (the "State") moved pursuant to Rules 12(b)(1) and 12(b)(6) seeking dismissal from the action on the ground that the Eleventh Amendment precludes Avraham from asserting any viable claims against it.
Second, on January 5, 2016, defendant Gilberti, Stinziano, Heintz & Smith, P.C. (the "Gilberti Firm"); defendants Town of Cicero (the "Town"), Judy Boyke ("Boyke"), Anthony P. Rivizzigno ("Rivizzigno"), Wayne Dean ("Dean"), Steven Procopio ("Procopio"), Richard Hooper ("Hooper"), Jessica Zambrano ("Zambrano"), John J. Marzocchi ("Marzocchi"), Neil G. Germain ("N. Germain"), Robert M. Germain ("R. Germain"), Vern Conway ("Conway"), Robert Smith ("Smith"), Mark Venesky ("Venesky"), and Richard Cushman ("Cushman") (collectively the "Town Defendants"); and defendants Hancock Estabrook, LLC (the "Hancock Firm") along with two of its attorneys, Michael L. Corp ("Corp") and Zachary M. Mattison ("Mattison"), (collectively the "Hancock Firm Defendants"), each moved separatelyseeking Rule 12(b)(6) dismissal. Defendants Germain & Germain, LLP (the "Germain Firm") filed a substantially similar Rule 12(b)(6) motion on February 5, 2016.
On February 10, 2016, Avraham filed a motion seeking an entry of default against the LYCC, which had not yet entered an appearance. The Club responded to plaintiff's filing in short order, explaining in a February 19 letter that it had not been properly served and requesting an extension of time to answer or otherwise respond to plaintiff's complaint. The Club's request was granted on February 22.
On February 25, 2016, faced with the prospect of an imminent dismissal motion from the LYCC as well as already-filed dismissal motions from the State, the Gilberti Firm, the Germain Firm, the Town Defendants, and the Hancock Firm Defendants, Avraham requested a ninety-day extension of time to respond. The Club filed its own Rule 12(b)(6) dismissal motion on February 29 and, on March 17, plaintiff's request for an extension of time to respond was granted.
On April 21, 2016, Avraham moved to amend his complaint, submitting a fifty-six page proposed amended pleading along with seven short exhibits. Although the Surveying Firm Defendants submitted a letter motion indicating that they did not oppose plaintiff's motion for leave to amend, the LYCC, the Gilberti Firm, the Germain Firm, the Town Defendants, and the Hancock Firm Defendants (collectively "defendants") each submitted briefing in opposition to plaintiff's request for leave to amend.1
Finally, on May 17, 2016, Avraham further supported his request for leave to amend with a sixty-eight page affirmation that describes in greater detail the allegedly unlawfulconduct on which his proposed amended complaint is based. Since filing this particular motion to amend, plaintiff has also filed (1) a letter motion requesting leave to file another amended complaint and, more recently, (2) a second motion to amend accompanied by a second proposed amended complaint.
In addition to the fact that both of these requests are premature in light of Avraham's already pending motion to amend under consideration here, plaintiff's newly proposed pleading includes substantially the same factual allegations and claims for relief that will already be addressed in this decision. However, because he is proceeding pro se, the additional factual information in plaintiff's affirmation as well as his second proposed pleading will be considered to the extent these documents clarify or supplement the allegations in plaintiff's original amended pleading.
All of these pending motions will now be considered on the basis of the presently available submissions and without oral argument.
Avraham, an ethnic Jew born in Israel, immigrated to the United States in 1974. Proposed Am. Compl. ("Compl.") at 1, 7.3 In 1995, plaintiff purchased an eighty-two acre parcel of waterfront property (the "Property") located on Oneida Lake from former NewYork State Senator Tarky Lombardi, Jr. Id. at 1-2, 11. The Property, which includes the Oneida Bay Marina (the "Marina"), is situated adjacent to the LYCC, itself located at 6777 Lakeshore Road in Cicero, New York. Id. at 4-5, 11.
Lombardi, a former member of the LYCC, chose to sell the Property to Avraham for only $10,000 more than what John Wozniczka, Sr., himself a long-time Club member, had offered for the entire parcel. Id. at 1, 19. According to plaintiff, this infuriated the rest of the Club members. Id. Plaintiff alleges that Club members immediately offered to purchase the Property from him. Id. When plaintiff refused this offer, the Club members "made it their objective to do 'whatever it takes'" to "make sure [plaintiff is] never allowed to do anything" with the Property. Id. at 11-12.
On March 15, 1996, Avraham received a telephone call from Anthony Aloi, who advised plaintiff that he wanted to discuss plaintiff's "parking lot and the illegal dumping in which the LYCC had engaged in" on plaintiff's Property. Compl. at 12.
On March 23, 1996, Avraham received another telephone call, this time "from a man with a deep NYC accent who introduced himself as 'Anthony,' [who] said he is a member of the LYCC." Compl. at 12. According to plaintiff, "Anthony" informed him that the Club members were "not very happy" that he had purchased the land. Id. Plaintiff asserts that "Anthony" told him "you don't know who you are messing with" and that he should do everyone a...
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