Pervu v. City of Oneonta David Merzig

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Docket Number6:19-CV-00861 (MAD/TWD)
Decision Date02 April 2020


6:19-CV-00861 (MAD/TWD)


April 2, 2020


26 Maple Street
Oneonta, New York 13820
Plaintiff pro se

648 Plank Road, Suite 204
Clifton Park, New York 12020
Attorneys for Defendants



Mae A. D'Agostino, U.S. District Judge:



On June 17, 2019, pro se plaintiffs Melania and Nicolae Pervu ("Plaintiffs") commenced this action against Defendants David Merzig and the City of Oneonta ("Defendants"). See Dkt. No. 1 at 1. In their complaint, Plaintiffs' only remotely cognizable allegation claimed that Defendants had falsely classified Plaintiffs' apartment building, located at 195 Main Street, Oneonta, New York 13820, as uninhabitable. See Dkt. No. 1 at 3. However, in their response to Defendants' motion to dismiss, Plaintiffs asserted a litany of additional claims, despite not seeking to amend their complaint. These claims include a 42 U.S.C. § 1983 violation for discrimination,

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defamation, perjury, false statements, witness tampering, and "a very clear case of judicial misconduct" during state court proceedings initiated by Defendants. See Dkt. No. 18 at 1-2.

Currently before the Court is Defendants' motion to dismiss pursuant to Federal Rules of Procedure 8(a) and 12(b)(6). See generally Dkt. No. 16-1.


Plaintiffs have owned the property formerly known as the Oneonta Hotel since May 22, 2015 (the "Property"), and, until February 2019, ran it as an apartment building for low-income1 residents. See Dkt. No. 1 at 3; Dkt. No 16-1 at 11. The building did not have a Certificate of Compliance, a prerequisite for rental occupancy, when Plaintiffs purchased it, as it was in some state of disrepair. See Dkt. No. 16-1 at 7. Plaintiffs failed to remedy the violations preventing them from obtaining this certificate, and on January 5, 2017, the City of Oneonta's Board of Public Service (the "Board") deemed the building to be "unsafe" and "order[ed] immediate repair." Dkt. No. 16-1 at 8. The Board also resolved that if Plaintiffs failed to make the repairs within thirty days, it would issue an order to vacate the Property. Dkt. No. 16-1 at 8.

On September 14, 2017, more than nine months after the Board's resolutions, the City's Code Enforcement Officer found multiple violations, including the following: "extensive water damage (including active water leaks), inoperable carbon monoxide detectors, inoperable and/or missing smoke detectors, incorrectly located smoke and/or carbon dioxide detectors and inoperable lights and/or emergency signage." Dkt. No. 16-1 at 9. The Code Enforcement Officer notified the Board, and on November 2, 2017, the Board moved to order that the building be

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vacated, but agreed not to take further action until after April 30, 2018, "so as to allow the low-income tenants to find substitute housing" and to give Plaintiffs one last chance to remedy the violations. Dkt. No. 16-1 at 9. On March 8, 2018, the City of Oneonta circulated a notice to tenants and funding agencies declaring the building "to be unsafe for occupancy, due to significant violations of the New York State Housing and Building Code" and advising tenants to vacate the building "[u]nless the landlord brings the property into full building code compliance by April 30, 2018[.]" Dkt. No. 1 at 5.

On June 26, 2018, after Plaintiffs had continued to rent out the Property in violation of the Board's May 15, 2018 order to vacate, Defendants filed a petition in Otsego County Supreme Court pursuant to Sections 302, 303, and 309 of the New York State Multiple Dwelling Law. See Dkt. No. 16-1 at 10. On August 14, 2018, Plaintiffs answered the petition and brought a counterclaim against the City of Oneonta for violation of their due process rights under the Fifth and Fourteenth Amendments. See Dkt. No. 16-1 at 10. On September 7, 2018, the Otsego County Supreme Court held an evidentiary hearing, and three days later issued an order requiring Plaintiffs to remedy all code violations by January 11, 2019, or "immediately be in Contempt of the Court." Dkt. No. 16-1 at 10.

However, after another inspection on January 15, 2019, the City of Oneonta found "numerous remaining Code violations such as extensive water damage and active leaks and inoperable or missing smoke detectors, as well as numerous other health and safety violations." Dkt. No. 16-1 at 11. Accordingly, in a February 5, 2019 hearing, the state court ordered all tenants to vacate the building by February 7, 2019. See Dkt. No. 16-1 at 11.

According to Plaintiffs, "the city Oneonta attorney David Merzig and his wife Margie Merzig, Chair of the City Board, decided to act against me, my family, and my tenants." Dkt. No.

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1 at 3. Indeed, Plaintiffs allege that "[t]he city administration represented by David Merzig us[ed] false statements, weaponized the code enforcement office and using false pretenses, asked the court to evict by force my tenants[.]" Dkt. No. 1 at 3. Plaintiffs further allege that these acts, among others mentioned in the complaint, constitute "discrimination against [their] [immigrant] status, selective enforcement, defamation, and slander" and thus violate Section 1983. Dkt. No. 18 at 1. Specifically, Plaintiffs claim that Defendants used misleading photographs as evidence to obtain the warrant of eviction, and that their purpose "has been nothing but discriminatory, as their real interest was not [t]o work with us but to do everything in order to shut our property down." Id. at 4.

In their motion to dismiss, Defendants argue that, even under the more liberal pleading standard granted to pro se plaintiffs, the complaint fails to allege any cognizable injury under Section 1983. See Dkt. No. 16-1 at 12-13. Further, Defendants assert that Plaintiffs' complaint fails to include any factual statements or claims that would satisfy Rule 8's pleading standard. See id. at 14 (quoting Fed. R. Civ. P. 8(a)(2)). Regardless of the complaint's sufficiency, Defendants also argue that Plaintiffs claims are barred by collateral estoppel because "Plaintiffs have a full and fair opportunity to litigate their counterclaims in the state court proceeding." Dkt. No. 19 at 11. In short, Defendants claim that "Plaintiffs are merely unhappy with the rulings by the state court judge [who] direct[ed] Plaintiffs to either repair the building or vacate the tenants." Dkt. No. 16-1 at 15.

Currently before the Court is Defendants' motion to dismiss.


A. Standard of Review

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A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Furthermore, "[w]hen deciding a motion to dismiss, the [c]ourt's review is ordinarily limited to 'the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.'" Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 379 (S.D.N.Y. 2013) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) and citing Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)). Accordingly, "[w]hen matters outside the pleadings are presented [in support of or] in response to a 12(b)(6) motion, a district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment . . . and afford all parties the opportunity to present supporting material." Friedl v. City of N.Y., 210 F.3d 79, 83 (2d Cir.2000) (alteration and internal quotation marks omitted). A court may, under appropriate circumstances, "consider material outside of the pleadings on a motion to dismiss." Chamberlain, 986 F. Supp. 2d at 379 (citing Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011)). If, for example, the record clearly demonstrates "that no dispute exists regarding the authenticity or accuracy of the document[s]," Faulkner, 463 F.3d at 134, then "a court may consider documents upon the terms and effect of which the complaint relies heavily—that is, 'integral' documents—without converting a motion to

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dismiss into a summary judgment motion," Chamberlain, 986 F. Supp. 2d at 379 (citing Chambers, 282 F.3d at 153).

B. Abstention Under Younger v. Harris, 401 U.S. 37 (1971)

Federal courts have "no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 19 U.S. 264, 404 (1821). In Younger, the Supreme Court recognized a limited exception to this general rule, holding that federal courts should abstain from exercising jurisdiction over suits to enjoin pending state criminal proceedings, absent a showing of bad faith, harassment, or a patently invalid state statute. See Younger v. Harris, 401 U.S. 37, 53-54 (1971) (citation omitted).

Younger is not based on an Article III requirement, but instead is a "prudential limitation on the court's exercise of jurisdiction grounded in equitable considerations of comity." Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003) (citations omitted). The rationale behind Younger was set forth by the Second Circuit in Spargo:

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