Reisner v. Stoller
| Decision Date | 21 May 1999 |
| Docket Number | No. 98 Civ. 3198(WCC).,98 Civ. 3198(WCC). |
| Citation | 51 F.Supp.2d 430 |
| Parties | Ida REISNER, a/k/a Ida J. Augello, David Reisner and Eric Reisner, Plaintiffs, v. A. STOLLER, Spring Valley Justice Court, County of Rockland, J. Meara Deputy Sheriff, Kenneth Moran, Michael Augello, William E. Sherwood, County Clerk of Rockland County, J. Grasselino, Law Clerk, Village Attorney of Spring Valley, Michael Augello, Jr., "John" Pelzer, William D. Friedmann, Charles Brieant, Barbara Jones, Adlai Hardin, Jeffrey Sapir, Heritage Savings, Kensher Homes, Inc., Ronald M. Kahn, James M. Feeney, Albany Savings Bank and John Does 1 to 10, defendants. |
| Court | U.S. District Court — Southern District of New York |
Ida Reisner, David Reisner and Eric Reisner, Port Chester, New York, for plaintiffs pro se.
Marx & Aceste, LLP, Andrew Stoller, Spring Valley Justice and Village Attorney of Spring Valley, White Plains, New York, for defendants, Paul I. Marx, Sally Ann Zullo, of counsel.
Law Offices of Kenneth Moran, Kenneth Moran, Michael Augello and Michael Augello Jr., Tallman, New York, for defendants, Kenneth Moran, of counsel.
Eliot Spitzer, Attorney General of the State of New York, William E. Sherwood J., Grasselino, John Pelzer and William D. Friedmann, New York City, for defendants, Simone A. Pam, Asst. Attorney General, of counsel.
Mary Jo White, United States Attorney for the Southern District of New York, Charles Brieant, Barbara Jones and Adlai Hardin, U.S. Department of Justice, New York City, for defendants, Sarah Thomas, Asst. United States Attorney, of counsel.
Law Offices of Jeffrey L. Sapir, White Plains, New York, for defendant pro se, Jeffrey L. Sapir, of counsel.
Rider, Weiner, Frankel & Calhelha, Heritage Savings and Albany Savings, Newburgh, New York, for defendants, Moacyr Calhelha, of counsel.
Pro se plaintiffs Ida Reisner, David Reisner and Eric Reisner brought this action under, inter alia, 42 U.S.C. § 1983 and 18 U.S.C. § 1962 alleging that the defendants have engaged in a pattern of racketeering activity and conspired to deprive them of title to and possession of their home at 53 Gerow Avenue, Spring Valley, New York (the "Premises"). Plaintiffs have named as defendants in this action Michael Augello ("Augello"), the individual who allegedly took title to the Premises by fraudulent means, his son, Michael Augello, Jr., and his attorney, Kenneth Moran ("Moran") (collectively the "Augello defendants"); Albany Savings Bank, now known as Albank, FSB, and its predecessor in interest Heritage Savings Bank (collectively "Albank"), the institution that issued a mortgage loan to Augello in connection with his alleged purchase of the Premises; Andrew Stoller,1 the Village of Spring Valley Justice who issued the warrant evicting plaintiffs from the Premises, and the Village Attorney of the Village of Spring Valley2 (collectively the "village defendants"); William E. Sherwood, Justice of the Supreme Court of the State of New York, Rockland County, Gregory C. Grasselena, law clerk to Justice Sherwood,3 James Pelzer, Supervisor of the Decision Department of the Appellate Division, Supreme Court of the State of New York, Second Judicial Department,4 and William D. Friedmann, Associate Justice of the Appellate Division, Supreme Court of the State of New York, Second Judicial Department (collectively the ); Jeffrey L. Sapir ("Sapir"), the Standing Chapter 13 Trustee for the Southern District of New York, who was the duly appointed Trustee for Ida Reisner in connection with her Chapter 13 bankruptcy filing; and finally, Charles L. Brieant, United States District Judge, Barbara S. Jones, United States District Judge, and Adlai S. Hardin, United States Bankruptcy Judge (collectively the "federal judicial defendants").5
This matter is now before the Court on a variety of motions. The Augello defendants have moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings on the grounds that the court lacks subject matter jurisdiction and the action (i) is barred by the doctrine of res judicata, (ii) fails to state a claim upon which relief may be granted, (iii) is barred by the statute of limitations, and (iv) is barred by the statute of frauds.6 The Augello defendants further request that the Court issue an order canceling the notice of pendency.
Albank has moved for an order dismissing the complaint (i) pursuant to Fed. R.Civ.P. 12(b)(1), on the ground that the Court lacks subject matter jurisdiction, and (ii) pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that the complaint fails to state a claim upon which relief may be granted and the action is barred by the applicable statute of limitations.
The village defendants have moved for (i) an order dismissing the complaint pursuant to Fed.R.Civ.P. 12(c), on the grounds that the Court lacks subject matter jurisdiction and the complaint fails to state a claim upon which relief may be granted; and/or (ii) for an order pursuant to Fed. R.Civ.P. 56(b), granting the village defendants summary judgment on the basis of judicial immunity and quasi-judicial immunity.7
The state defendants have moved for an order dismissing the complaint pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that (i) the complaint fails to state a claim upon which relief may be granted, and (ii) judicial immunity, abstention and comity require its dismissal.
Sapir has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c),8 on the grounds that (i) the complaint fails to state a claim upon which relief may be granted, (ii) Sapir as Bankruptcy Trustee is entitled to quasi-judicial immunity, and (iii) plaintiffs failed to seek permission to name the Chapter 13 Trustee as a defendant.
Lastly, the federal judicial defendants have moved for an order dismissing the complaint (i) pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, and (ii) pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted and the doctrine of absolute immunity.
For the reasons stated below, the motions of Albank, the village defendants, the state defendants, Sapir and the federal judicial defendants are granted. The Augello defendants' motion to dismiss is granted only insofar as it seeks: (1) dismissal of all claims against Michael Augello, Jr.; (2) dismissal of the RICO claims against Augello and Moran; and (3) dismissal of the abuse of process claim against Moran, subject to repleading by plaintiffs within 30 days of the date of this Order.
Some time prior to 1977, plaintiff Ida Reisner, then widowed, sold her home in Portchester, New York and moved with her two sons, plaintiffs David Reisner and Eric Reisner, to Greenridge Avenue in White Plains, New York. While living in White Plains, Ms. Reisner claims, and Augello does not dispute, that she and Augello were involved in an intimate relationship. Although Augello had allegedly informed Ms. Reisner that he was divorced, at all relevant times, Augello was living with his wife Rosario at their residence in Monsey, New York.
Exactly what transpired next is unclear at this stage of the litigation. Ms. Reisner alleges that she wanted to purchase a home in Spring Valley, New York (defined above as the "Premises") using the proceeds from the sale of her prior home as a downpayment, but was told by either Augello or Albank that she would need a male cosigner on the mortgage because she was a widow. It is clear that Kensher Homes, Inc., the seller of the property, initially believed that Ms. Reisner and Augello were going to purchase the property as man and wife because the letter confirming the time and place of the closing was sent to "Mr. and Mrs. Michael Augello" at Ms. Reisner's address on Greenridge Avenue, White Plains.
Ms. Reisner and Augello attended the closing on July 26, 1977. Ms. Reisner claims that Augello would not allow her to obtain legal counsel or to have an attorney present on her behalf at the closing. Ms. Reisner presented herself as Ida J. Augello and pretended to be Augello's wife. It appears that the deed was originally drafted to convey the Premises to "MICHAEL AUGELLO and IDA AUGELLO, his wife, both residing at 212 Greenridge Avenue, White Plains, New York" but the portion reading "and IDA AUGELLO, his wife, both" has been crossed-out. Ms. Reisner alleges that her name was deleted outside her presence and without her knowledge. Augello claims that she was aware that all documents executed at the closing were executed solely in his name.
It is undisputed that Ms. Reisner paid approximately $10,000 as a downpayment on the Premises; however, Augello claims that Ms. Reisner had loaned him that money. Augello executed a mortgage on the Premises for the remainder of the purchase price ($47,440.00) in his name only. Both the deed and mortgage were filed in the Rockland County Clerk's Office on July 28, 1977.
Ms. Reisner and her sons moved into the Premises in August of 1977. For approximately the next twenty years, Ms. Reisner made all mortgage payments to Augello in cash for which no receipts were given. Augello then forwarded such payments to Albank, presumably in the form of a personal check drawn on his own bank account. Ms. Reisner claims that she also paid for all utilities, expenses and maintenance of the Premises. Here, again the parties dispute the nature of the arrangement. Ms. Reisner believed that she was the owner of the Premises. Augello claims that he had an oral agreement with Ms. Reisner that she and her sons could live on the Premises, which was owned by him alone, for as long as they continued to make all mortgage, tax and expense payments.
In or about June of 1992, Ms. Reisner learned for the first time that her name had been removed from the deed. She claims that she...
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