Festinger v. Rosner, 20 Civ. 9784 (PGG) (JW)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtPaul G. Gardephe, United States District Judge
Decision Date28 March 2022
Docket Number20 Civ. 9784 (PGG) (JW)



No. 20 Civ. 9784 (PGG) (JW)

United States District Court, S.D. New York

March 28, 2022


Paul G. Gardephe, United States District Judge

Pro se Plaintiff Samuel Festinger alleges that Defendants Snitow Kaminetsky Rosner & Snitow, LLP (“SKRS”), Franklyn H. Snitow, and Elliot J. Rosner (collectively, the “Firm Defendants”) and Charnie Rosenbaum - Plaintiff's former wife - participated in and conspired to participate in a pattern of racketeering activity during Plaintiff's divorce proceeding, in violation of the Racketeering Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c) and (d). Plaintiff separately asserts claims against New York State Supreme Court Justice Rachel A. Adams under 42 U.S.C. §§ 1983, 1985, 1986, and 1988 and New York law based on her rulings while presiding over Plaintiff's divorce proceeding.

The Firm Defendants, Rosenbaum, and Justice Adams moved to dismiss the Complaint. Plaintiff then moved to file an Amended Complaint. (Firm Mot. (Dkt. No. 32); Rosenbaum Mot. (Dkt. No. 21); Adams Mot. (Dkt. No. 27); Pltf. Mot. (Dkt. No. 63)) This Court referred the motions to Magistrate Judge Kevin Nathaniel Fox for a Report and Recommendation (“R&R”). (Dkt. Nos. 23, 37)


In two separate R&Rs, Judge Fox recommends that the motions to dismiss filed by Justice Adams, the Firm Defendants, and Rosenbaum be granted, and that Plaintiff's motion to amend be denied. (R&R (Dkt. No. 71) at 19; R&R (Dkt. No. 72) at 21)[1] Plaintiff has filed objections to both R&Rs. (Pltf. Obj. (Dkt. No. 74); Pltf. Obj. (Dkt. No. 75)) The R&Rs will be adopted as set forth below; the Complaint will be dismissed in its entirety; and Plaintiff's motion to amend will be denied.



A. Events Prior to Divorce Proceedings

Plaintiff Festinger and Defendant Rosenbaum were previously married. (Cmplt. (Dkt. No. 1) ¶ 32) Plaintiff alleges that, during their marriage, Rosenbaum (1) “was successful in generating millions of dollars of wrongfully billed reimbursements” while working at the Children's Center for Early Learning between 2001 and 2014; (2) “owned and operated a laser hair removal clinic, ” where she was paid in cash “so as to avoid paying taxes”; and (3) operated and “drained the funds of” Rack Oil Corporation, which “resulted in huge tax liabilities.” (Id. ¶¶ 38, 46-48)

In 2012, Rack Oil was audited by the New York State Department of Taxation and Finance, and Rosenbaum “became extremely concerned that she may become a target in the


investigation.” (Id. ¶ 28) As a result, Rosenbaum told Plaintiff that she had hired Defendant Franklyn Snitow to “help her to escape from serious trouble.” (Id. ¶ 29)

Festinger alleges that - while Snitow was representing Rosenbaum during the audit of Rack Oil - he “aided and abetted Rosenbaum to hide her assets and to form alter ego entities with which to hide assets.” (Id. ¶ 31) Plaintiff also alleges that, between 2012 and 2014, “Snitow guided Rosenbaum in defrauding Chase Manhattan Bank of a [$300, 000] Home Equity Line of Credit” by “misrepresent[ing] her financial standing” so as to avoid paying back the full amount of the loan. (Id. ¶ 35)

B. Divorce Proceedings

On January 29, 2013, Rosenbaum commenced divorce proceedings against Festinger in Supreme Court of the State of New York, Kings County. Rosenbaum was represented by Snitow and Defendant Elliot J. Rosner. (Id. ¶ 32; Divorce Cmplt. (Dkt. No. 19-2) at 8)[3] Justice Adams was assigned to preside over the divorce proceedings. (Cmplt. (Dkt. No. 1) ¶ 59)

Festinger alleges that, “[t]hroughout the divorce proceedings, Snitow and Rosner advised and guided Rosenbaum to fraudulently form and file Net Worth Statements which depicted Rosenbaum as barely putting bread on the table, ” even though Snitow, Rosner, and Rosenbaum “knew full well that [Rosenbaum] hid millions of dollars.” (Id. ¶ 33) The purpose of these fraudulent misrepresentations was to “divest [Festinger] of his assets” and shift Rosenbaum's many liabilities to Festinger. (Id. ¶¶ 33, 42) Festinger also alleges that “the divorce proceeding was orchestrated by Snitow, Rosner and Rosenbaum as a cover up of flagrant


fraudulent activities and a means to further various frauds and be able to keep the millions of defrauded proceeds.” (Id. ¶ 36)

Festinger alleges that Rosenbaum's “liabilities were repeatedly brought to the attention of” Justice Adams during the divorce proceedings, but that she “ignored [his] many pleas to be heard . . . and . . . [his] many presentations demonstrating Rosenbaum's financial perjuries[, ] . . . thereby depriv[ing] [Festinger of] due process on many occasions.” (Id. ¶¶ 39-40)

C. Contempt Orders

During the divorce proceedings, Rosenbaum moved by order to show cause to hold Festinger in contempt for violating Justice Adams' orders requiring him to provide Rosenbaum with “child and spousal support, counsel fees, and arrears.” Festinger submitted an affidavit in opposition, and Justice Adams heard oral argument on Rosenbaum's application. (Contempt Decision (Dkt. No. 28-2) at 2-3)

On June 10, 2020, Justice Adams held Festinger in (1) civil contempt for failure to pay spousal support, child support, and counsel fees as required by her prior orders; and (2) criminal contempt for his willful non-compliance with those orders. (Id. at 19-22) Justice Adams imposed a criminal contempt sentence of two months' incarceration, but delayed execution of the sentence in light of the COVID-19 pandemic.[4] (Id. at 22) Justice Adams also imposed a civil contempt sentence of six months' incarceration, which Festinger could purge by making certain payments by August 17, 2020. (Id.)


Festinger did not make payments in accordance with the June 10, 2020 order. Accordingly, on September 8, 2020, Justice Adams issued an “Order of Commitment” directing the Sheriff of the City of New York to arrest Festinger on September 10, 2020 at 10:00 a.m., and ordering that Festinger serve a term of thirty days' imprisonment for criminal contempt, and six months' imprisonment for civil contempt unless he made the payments necessary to purge his contempt.[5] (Commitment Order (Dkt. No. 28-4) at 2)

On September 3, 2020, a third-party creditor filed involuntary petitions against Festinger and Rosenbaum under Chapter 11 of the Bankruptcy Code.[6] (Cmplt. (Dkt. No. 1) ¶ 52 n.1) On September 9, 2020, Festinger “filed a Notice of Removal” purporting to remove his divorce proceedings to the U.S. Bankruptcy Court for the Eastern District of New York. (Id. ¶¶ 53-56) Festinger claims that, as a result of his Notice of Removal, the New York State Supreme Court, Kings County, “lost subject matter jurisdiction over any and all matters contained in the said removed Proceeding.” (Id. ¶ 57)

On September 10, 2020, Justice Adams held a conference to address the status of Festinger's contempt. (Sept. 10, 2020 Tr. (Dkt. No. 28-5) at 3-4) At the conference, Festinger's counsel represented that “today or yesterday, ” Festinger had filed and served his Notice of Removal. (Id. at 4) Defendant Rosner, who was representing Rosenbaum at the proceeding, responded as follows:

The document that [Festinger], on his own, emailed apparently to all counsel last night is a nullity. It has not been filed or served properly. . . . More than that, under [f]ederal [l]aw, you can't file a removal more than 30 days after the service of the state court action; we're seven years later. The divorce is non-removable to
[f]ederal [c]ourt[;] there is no jurisdiction. . . . Obviously this is a desperate last dash to somehow [wrest] jurisdiction away. It's a joke and it should be treated as such and this should have zero impact on what is going on this morning.

(Id. at 5)

As to Festinger's email regarding the Notice of Removal, Justice Adams stated:

[T]he emailing of documents by one of the part[ies] to chambers is, in this Court's estimation, an inappropriate, improper way to communicate with the Court. This Court has no way of assessing the validity of emailed documents by [Festinger] who is, in the context of this case, represented by counsel.

(Id. at 6) Justice Adams later reiterated that “the Court does not have any credible documentation to support the representation made on the record with regard to a bankruptcy and the impact of that bankruptcy on this proceeding.” (Id. at 14)

In a September 10, 2020 order, however, Justice Adams stayed Plaintiff's obligation to make certain payments “pending submission and sufficient clarification by the parties' counsel of any pending Bankruptcy Court actions of [Festinger] as debtor.”[7] (Sept. 10, 2020 Order (Dkt. No. 28-6) at 3)

In a September 17, 2020 order, Justice Adams (1) amended the June 10, 2020 contempt decision so that Plaintiff's incarceration was “limited to the court's criminal contempt finding only”; and (2) stayed “commitment and incarceration related to the court's June 10, 2020 civil contempt finding . . . pending resolution of the bankruptcy proceeding under Case No. 20-43271-nhl [in the U.S. Bankruptcy Court for the Eastern District of New York] and/or an order lifting any stay of the above matrimonial action.” (Sept. 17, 2020 Order (Dkt. No. 28-8) at 2) That same day, Justice Adams entered a second order of commitment against Plaintiff, amended


to reflect that it was based solely on her criminal contempt finding.[8] (Id.; see also Cmplt. ¶ 65 (referencing September 17, 2020 order of commitment))

D. Bankruptcy Court Proceedings

As noted above, on September 9, 2019, a third-party creditor filed involuntary petitions against Festinger and Rosenbaum under Chapter 11 of the Bankruptcy Code in...

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