Finn v. New York
| Decision Date | 21 October 2022 |
| Docket Number | 3:22-CV-721 |
| Parties | GEORGE H. FINN, Plaintiff, v. STATE OF NEW YORK, HINMAN HOWARD & KATTELL, LLC, KATHERINE A. FITZGERALD, ESQ., HARVEY SHAPIRO, ESQ., NELSON F. MIGDAL, ESQ., RONALD SCHIESS, LLS, BRUCE W. SNYDER, Director of LS, DELTA ENGINEERS, ARCHITECTS, & LAND SURVEYORS, PC, JENEE RASMUSSEN-GREEN,LLS, RONALD GREEN, and RASMUSSEN LAND SURVEY PLLC, Defendants. |
| Court | U.S. District Court — Northern District of New York |
HON LETITIA JAMES
CIPRIANI & WERNER, P.C.
Hinman Howard & Kattell, LLC,
Katherine A. Fitzgerald, Esq., and
Nelson F. Migdal, Esq.
Architects, & Land Surveyors, P.C.
ADRIENNE J. KERWIN, ESQ.
PHILIP A. DAVOLOS, III, ESQ.
ALFRED PANICCIA, JR., ESQ.
PAUL G. FERRARA, ESQ.
COSTELLO, COONEY & FEARON, PLLC
Rasmussen-Green, Ronald Green, and
Rasumussen Land Survey PLLC
On July 8, 2022, pro se plaintiff George Finn (“Finn” or “plaintiff') filed this civil action alleging that certain defendants conspired to assist in the theft of certain parcels of plaintiffs real property by, inter alia, altering a property deed and falsifying a survey description. Dkt. No. 1. Plaintiff also moved to appoint counsel, Dkt. No. 4, but that motion was denied by U.S. Magistrate Judge Miroslav Lovric without prejudice to renew, Dkt. No. 6.
On July 21, 2022, Judge Lovric advised Finn that he bore responsibility for serving the summonses, copies of his pleading, and General Order 25 on the named defendants in accordance with Rule 4 of the Federal Rules of Civil Procedure. Dkt. No. 11. Judge Lovric instructed plaintiff to file affidavits of service on or before September 28, 2022. Id. And Judge Lovric cautioned plaintiff that his failure to do so could result in the dismissal of his case. Id.
Thereafter, most of the named defendants moved to dismiss Finn's complaint under Rule 12(b) of the Federal Rules of Civil Procedure.[1] First to move were defendants Delta Engineers, Architects, & Land Surveyors, P.C. (“Delta Surveyors”) and Bruce W. Snyder (“Snyder”). Dkt. No. 13. Second to move was defendant State of New York (the “State”). Dkt. No. 16. The third group of movants were defendants Katherine A. Fitzgerald, Esq. (“Attorney Fitzgerald”) and Hinman Howard & Kattell, LLC (the “Firm”). Dkt. No. 24.
Finn opposed some of these motions. Dkt. Nos. 22, 23. But his filings suggested that he was having trouble making sense of his obligations under the Federal Rules of Civil Procedure. See, e.g., Dkt. No. 12 (); Dkt. No. 18 (); Dkt. No. 21 (attempting same).
On August 11, 2022, Judge Lovric ordered the Clerk of the Court to strike Finn's partial filings as improper. Dkt. No. 28. At that time, Judge Lovric explained to plaintiff he was still permitted to amend his pleading once as of right, but that in order to do so he would need to file a “wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court.” Id. And Judge Lovric cautioned plaintiff that further amendments-after the first “freebie”-would require either his opponents' written consent or leave from the court. Id.
On August 19, 2022, Finn filed an amended complaint. Dkt. No. 33. A few days later, Judge Lovric issued a second text order reminding plaintiff that he was obligated to serve the summonses, his amended complaint, and General Order 25 on the named defendants in accordance with Rule 4 of the Federal Rules of Civil Procedure. Dkt. No. 34.
On August 22, 2022, Finn filed a letter motion in which he stated:
I have been fighting for decades to obtain one thing, the undoing of what was done to my family's property deed. If the court decides that I have no complaint and then dismiss it; I ask the court to consider just correcting the property deed. I am attached a proposed deed to this letter in hopes that, if nothing else, I might live a few years not dealing with any of this.
Dkt. No. 35 (attaching proposed “corrected” deed).
On August 24, 2022, this Court stepped in and directed the Clerk of the Court to terminate Finn's letter motion with the attached “corrected” property deed. Dkt. No. 39. Because plaintiff's amended complaint had become the operative pleading, the Court further directed the Clerk to deny all of the pending motions to dismiss without prejudice as moot. Id.
At that time, the Court also reminded Finn of his obligation to serve the amended complaint on his opponents. Dkt. No. 39. The Court reiterated to plaintiff that any further amendments to his pleading were impermissible absent defendants' consent or the Court's leave. Id. Finally, the Court cautioned plaintiff that his failure to follow these instructions or other court rules could result in the dismissal of his action. Id.
On September 1, 2022, Finn filed a letter requesting additional time in which to complete service. Dkt. No. 42. Judge Lovric granted that request in part. Dkt. No. 43. At that time, Judge Lovric advised plaintiff that he remained obligated to serve each defendant and file proof with the Court. Id.
On September 13, 2022, defendants Delta Surveyors and Mr. Snyder (collectively the “Surveyor defendants”) and defendants Attorney Fitzgerald, Nelson F. Migdal, Esq. (“Attorney Migdal”), and the Law Firm (collectively the “Law Firm defendants”) renewed their motions to dismiss Finn's amended complaint.[2] Dkt. Nos. 51, 52.
Defendant Attorney Shapiro answered the pleading. Dkt. No. 45. So did defendants Jenee Rasmussen-Green, LLC (“Rasmussen-Green”), Rasmussen Land Survey PLLC (“Rasmussen”), and Ronald Green (“Green”) (collectively the “Rasmussen defendants”). Dkt. No. 60. Although the State participated in the prior round of briefing, it has not answered or moved against plaintiff's amended complaint. Dkt. No. 44 (). Nor has named defendant Ronald Schiess. Dkt. No. 40 (same).
The motions filed by the Surveyor defendants and the Law Firm defendants have been briefed and will be considered on the basis of the submissions without oral argument.
The following facts are taken from Finn's operative complaint, Dkt. No. 33, and are assumed true in light of plaintiffs pro se status and the procedural posture of the case. In 1940, one of plaintiffs predecessors-in-interest staved off an attempt by an adjoining landowner to “illegally claim” certain land. Am. Compl. at 5 ¶ 3.[3] In 1974, one of Finn's relatives rebuffed a renewed attempt by a surveyor working on behalf of the Hurlburt family to move certain property boundaries in a second effort to wrongfully obtain the same land that was disputed back in 1940. Am. Compl. at 9 ¶ 18.
Finn alleges that the Hurlburt family's surveyor-a man named Edward L. Darling-eventually succeeded in improperly or unlawfully redrawing the boundary lines in 1981, shortly after one of plaintiffs relatives died. Am. Compl. at 9 ¶ 19.
Beginning in 1982 and continuing until 1984, Attorney Fitzgerald “performed a tenant deed separation” between Finn and his “now deceased former brother-in-law.” Am. Compl. at 9 ¶ 22. As plaintiff explains, Attorney Fitzgerald sent to Attorney Migdal a commissioner's deed to be filed with the Broome County Clerk. Id. ¶ 23.
According to Finn, on April 24, 1984, Attorney Migdal, Attorney Shapiro, and non-party Vincent Vitrano, Esq., “submitted the commissioner's deed” to New York Supreme Court, an act which in plaintiffs view “initiated” the “fraud conspiracy” about which he complains. Am. Compl. at 9 ¶ 24.
Finn alleges this so-called “commissioner's deed” varies from the previous, correct deed for the property. Am. Compl. at 10-11 ¶ 32. As he explains:
it is almost identical to the previous deed, except for right in the middle of the description it was parted, sliced open, or separate and a false fictitious survey was placed right into the middle of the deed. I say fictitious and false and can state adamantly without a doubt because it is not in the warranty deed, as stated in the Commissioners deed, prepared by the defendant [Law Firm] just 3 months prior to the submission of the Commissioner's deed.
Am. Compl. at 10-11 ¶ 32. According to plaintiff, various aspects of the survey in this deed show that it is “false.” Id. at 11 ¶ 35.
Finn alleges that this false survey description “is a proposed perjury that was committed by New York State Official's [ sic ], having been appointed by the New York State Supreme Court.” Am. Compl. at 15 ¶ 43. Plaintiff further alleges that he “feels it is up to the Federal Court and the State of New York to ascertain why the commissioners lied or who put them up to it and who or how many are involved.” Id. at ¶ 44.
In 1997, Finn hired Southern Tier Surveyors to perform a land survey “after loggers logged timber” from his property. Am. Compl. at 16 ¶ 54. After the survey was completed, plaintiff “discussed” with defendant Schiess, the Southern Tier Surveyor, “what [he] felt were discrepancies.” Id. at ¶ 55.
As Finn explains, defendant Schiess's survey “was based upon the false survey description that was transcribed into the commissioner's property deed.” Am. Compl. at 16 ¶ 55. Afterward, defendant Schiess “placed and corrected at least three (3) of the property iron's [ sic ].” Id. at ¶ 56.
Finn alleges that when he checked the property irons that had just been placed by defendant Schiess he discovered “that they had been moved by his business partner Roger Holmes.” Am. Compl. at 17 ¶ 57. Plaintiff alleges that defendant Schiess ...
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