Galanova v. Portnoy, 19-cv-1451 (JGK)

• Decision Date: 13 January 2020
• Docket Number: 19-cv-1451 (JGK)
• Citation: 432 F.Supp.3d 433
• Parties: Irina GALANOVA et al., Plaintiff, v. Vlad PORTNOY et al., Defendants.
• Court: U.S. District Court — Southern District of New York

432 F.Supp.3d 433

Irina GALANOVA et al., Plaintiff,

v.Vlad PORTNOY et al., Defendants.

19-cv-1451 (JGK)

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

Signed January 13, 2020

Irina Galanova, Pro se.

Peter Gitzis, Pro se.

Amanda Rae Griner, Janice J. DiGennaro, Rivkin Radler, LLP, Uniondale, NY, for Defendants Vlad Portnoy, The Beinhaker Law Firm LLC and Law Offices of Vlad Portnoy, P.C.

Adam C. Wilner, Pro se.

Adam Craig Wilner, Greenberg & Wilner, LLP, New York, NY, for Defendants Harvey L. Greenberg and Greenberg & Wilner, LLP.

Andrew James Rauchberg, New York City Law Department, New York, NY, for Defendant Krysta L. Berquist, Gili Hershkovich, David Klein, Steven Banks and Pamela M. Perel.

Melissa Ellen Ysaguirre, NYS Office of The Attorney General, New York, NY, for Defendant Loren Baily-Schiffman.

Michelle Elaine Tarson, Thomas Edward Stagg, Stagg, Terenzi, Confusione & Wabnik, L.L.P., Garden City, NY, for Defendant JPMorgan Chase Bank, N.A.

Peter Adelman, The Law Offices of Peter Adelman, Brooklyn, NY, for Defendants Alla Sherbakov and Igor Sherbakov.

OPINION AND ORDER

JOHN G. KOELTL, United States District Judge:

The plaintiffs, Irina Galanova and Peter Gitzis, proceeding pro se, bring this action against a number of defendants connected in various ways to a New York State Article 81 Guardianship proceeding.¹ The plaintiffs allege that their rights were violated when a New York State Supreme Court Justice found Gitzis to be incapacitated and incompetent, and appointed him a legal guardian, the defendant Vlad Portnoy. The plaintiffs ask this Court to find that the state court erred in appointing a property guardian with broad powers. The plaintiffs request monetary relief resulting from actions taken by the guardian with respect to accounts and property owned by the plaintiffs. The plaintiffs bring this action pursuant to 42 U.S.C. §§ 407, 1981, 1982, 1985, and 1986 ; 18 U.S.C. §§ 1951 and 1957 ; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. ; the Due Process Clause of the Fourteenth Amendment; and New York state law.

The defendants have moved to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the defendants' motions to dismiss are granted.

I.

In defending against a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id. Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) ; Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

The pleadings and allegations of a pro se plaintiff must be construed liberally for the purposes of deciding motions pursuant to Rules 12(b)(1) and 12(b)(6). See McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007) ; Weixel v. Bd. of Educ., 287 F.3d 138, 145–46 (2d Cir. 2002). The submissions of a pro se litigant should be interpreted to "raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ).

II.

The Amended Complaint sets forth the following facts, which are accepted as true for the purposes of deciding these motions.

A.

In January 2012, Peter Gitzis, a Brooklyn, New York resident, suffered a stroke

. Am. Compl. ¶¶ 5, 26. As a result, Gitzis developed "receptive and expressive" language deficiencies, as well as other physical and mental impairments that substantially impacted his everyday life. Id. at ¶¶ 26-27. At the time of his stroke, Gitzis contacted a distant cousin, Alla Sherbakov, for assistance. Id. at ¶ 28. On January 23, 2012, Gitzis was admitted to Coney Island Hospital, and one week later was transferred to a rehabilitation center. Id.

On February 8, 2012, Gitzis allegedly signed a Power of Attorney in favor of the defendants Alla Sherbakov and her husband, Igor Sherbakov. Id. On February 29, 2012, Gitzis was referred to state Adult Protective Services ("APS") by a social worker due to concerns that he was being "financially exploited by a female, who might have been a distant relative." Id. The referral was rejected because Gitzis was hospitalized without a specified date of discharge. Id. On March 8, 2012, Gitzis purported to replace the Sherbakovs by appointing Galanova as what the Amended Complaint refers to as Gitzis's "Attorney-In-Fact." Id. That same day, Gitzis was released under the care of Galanova, who signed the discharge papers. Id. On March 14, 2012, Gitzis appointed Galanova to be his health care agent. Id. On March 22, 2012, the Sherbakovs referred Gitzis to APS, claiming Gitzis was "being financially exploited" by Galanova. Id.

On February 20, 2013, then-Commissioner of Social Services of the City of New York, Robert Doar,² commenced a proceeding pursuant to Article 81 of the New York Mental Hygiene Law seeking to appoint the Jewish Association Serving the Aging ("JASA") as community guardian of personal needs and property management for Gitzis. Id. ³ On September 12, 2016, Galanova requested a "Fair Hearing" before a New York State Administrative Law Judge to determine if Gitzis was eligible for APS, asserting that Gitzis never received a notice of eligibility determination or notice of fee requirements. Id. at ¶ 36.⁴ At the Fair Hearing on March 9, 2017, the New York City Human Resources Administration's Office of Legal Affairs presented a copy of a signed notice of eligibility, dated March 28, 2012. Id. at ¶ 37. The plaintiffs allege that the defendant Krysta Berquist made materially false statements at the Fair Hearing and in the course of the Article 81 proceeding and "is guilty of intentional fraud, deceit and collusion." Id. at ¶¶ 36-45. Sometime thereafter, Gitzis and Galanova were married. Id. at ¶¶ 68, 70.

On October 12, 2017, Justice Loren Baily-Schiffman of the New York State Supreme Court, Kings County found that Gitzis required a Guardian of Property and appointed the defendant Vlad Portnoy to that position, suspending Galanova's alleged Power of Attorney.⁵ Id. at ¶¶ 50-51. Portnoy thus had alleged authority over all of Plaintiff Gitzis's real and personal property, including bank accounts. Id. at ¶¶ 53-55. On March 13, 2018, Portnoy opened a guardianship account at JPMorgan Chase and two days later transferred some of Gitzis's assets into that account. Id. at ¶¶ 54, 60. On June 6, 2018, Justice Baily-Schiffman issued an order allowing Defendant Portnoy to, among other things, sell and lease certain properties belonging to Plaintiff Gitzis. Id. at ¶¶ 53, 55. The plaintiffs allege that the City fraudulently initiated and prosecuted the Article 81 proceedings. Id. at ¶¶ 32-48. They further allege that Portnoy and Chase fraudulently controlled the plaintiffs' assets through the guardianship and unlawfully obtained the plaintiffs' benefits and marital assets. Id. at ¶¶ 61-68, 75, 78. Finally, the plaintiffs also allege that the Portnoy defendants and the City defendants deprived the plaintiffs of their rights and property in connection with Portnoy's exercise of his guardianship rights in violation of federal law, state law, and state rules of professional conduct. Id. at ¶¶ 78-84.

B.

On May 25, 2017, and prior to the appointment of Portnoy as guardian, Galanova and Gitzis initiated an action in the United States District Court for the Eastern District of New York. Galanova v. Roberts et al., No. 17-cv-3179 (E.D.N.Y.). On June 1, 2018, Galanova initiated a second action, based on substantially the same facts, in the United States District Court for the Eastern District of New York, against a number of defendants, this time adding Portnoy as a defendant. Galanova v. Portnoy et al., No. 18-cv-3212 (E.D.N.Y...