Sasmor v. Powell

JON SASMOR, Plaintiff, v. STEVEN POWELL, Individually and as City Marshal; CHAIM GOLDBERGER a/k/a/HENRY GOLDBERG; HENRY MANAGEMENT, LLC; ISAAC TEITELBAUM a/k/a ISAACTITALBAUM; ABRAHAM SCHNEEBALG; FERN FISHER, Individually and as DeputyChief Administrative Judge for the New York City Courts; and CAROL ALT,Individually and as Chief Clerk ofthe Civil Court of the City of New York, Defendants.

11 Civ. 4645 (KAM)(JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 17, 2015

ORDER ADOPTING REPORT & RECOMMENDATION

MATSUMOTO, United States District Judge

On September 26, 2011, pro se plaintiff Jon Sasmor commenced this action pursuant to 42 U.S.C. §§ 1983, 1985 and 1988, seeking injunctive and declaratory relief and damages arising from the execution of certain eviction warrants pursuant to section 749(1) of the New York Real Property Actions and Proceedings Law ("RPAPL") at a building located at 287 Franklin Avenue ("287 Franklin"), in Brooklyn, New York, in which plaintiff had a lease for one room. (ECF No. 1, Complaint.) On October 11, 2011, plaintiff amended his complaint (ECF No. 6, Amended Complaint, filed 10/11/2011 ("Am. Compl.")) after the court denied his previous request for a temporary restrainingorder that accompanied plaintiff's initial complaint (ECF No. 5, Order Denying Request for Temporary Restraining Order, dated 9/26/2011). Plaintiff alleges claims against the private management company that manages 287 Franklin on behalf of the Ronald Henry Land Trust, along with the two trustees and one of its employees (collectively, the "Private Defendants"); state court judge Fern Fisher, court clerk Carol Alt, (collectively, the "State Defendants"), and New York City Marshal Steven Powell, all of whom at least nominally performed official functions relating to the issuance and execution of the eviction warrants.

Each of the defendants named in this action moved separately to dismiss plaintiff's complaint. (ECF Nos. 38, 45, 48.) Plaintiff opposed each of defendants' motions to dismiss, (ECF Nos. 51-1, 52-1, 53-1), and the moving defendants all submitted reply briefs in support of their respective motions. (ECF Nos. 44, 47, 49). Plaintiff moved for a preliminary injunction barring any further evictions (not just those that affect him) in New York state pursuant to RPAPL § 749, which plaintiff claims is unconstitutional. (ECF No. 54.) The Private Defendants and Judicial Defendants opposed plaintiff's motion for a preliminary injunction, (ECF Nos. 44, 50), and plaintiff submitted a reply thereto. (ECF No. 55-1).

On August 31, 2012, the court referred all of the aforementioned motions to Magistrate Judge James Orenstein for areport and recommendation. (Order Referring Motion, dated 8/31/2012.) On February 21, 2013, Judge Orenstein issued his Report and Recommendation, (ECF No. 61, Report and Recommendation dated 2/21/13 ("R & R dated 2/21/13")), and on March 31, 2013, the court adopted Judge Orenstein's recommendation to dismiss all of Sasmor's claims, and the Clerk entered judgment accordingly. (ECF Nos. 66, Order Adopting Report and Recommendations, dated 3/31/13, 67, Clerk's Judgment dated 4/2/13.)

On November 16, 2014, plaintiff moved this court for reconsideration pursuant to Federal Rule of Civil Procedure 60(b) and for leave to amend his complaint based on a related New York State Court's apellate ruling in an eviction matter that this court previously cited in dismissing plaintiff's complaint.¹ (ECF No. 76.) The court thus re-opened this case for the limited purpose of considering the effect of the state court appellate decision that the Ronald Henry Land Trust lacked the capacity to bring eviction proceedings against Jon Sasmor in state court. The court ruled that plaintiff's case would be re-opened forconsideration of the full record and briefing, as well as the additional letters recently submitted in support of, and in opposition to, plaintiff's motion for relief from the court's prior judgment and to amend the complaint (ECF Nos. 71-75), to make a revised determination in light of the state appellate term's judgment. (Minute Entry dated 12/5/14.) The court referred plaintiff's reconsideration motion to Judge Orenstein on for a report and recommendation.

DISCUSSION

Presently before the court is the Report and Recommendation issued by Judge Orenstein on July 20, 2015. (ECF No. 80, Report and Recommendation, dated 7/20/15 ("R&R").) Upon review of the full record and upon consideration of the State Court Appellate Term's recent decision, Judge Orenstein recommended that the court adhere to its prior order dismissing this case because, notwithstanding the state appellate term ruling, there are independent and alternate bases for dismissing all of the remaining claims in the complaint with prejudice. (Id.)

On August 6, 2015, plaintiff timely filed his objections to Judge Orenstein's recommendations in the R & R. (ECF No. 81, Plaintiff's Objections ("Pl. Objs."), filed 8/6/15.) For the reasons set forth below, the court adoptsthe Report & Recommendation in its entirety and dismisses plaintiff's remaining claims in the complaint.

STANDARD OF REVIEW

In reviewing a Report and Recommendation, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Where "the objecting party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report and recommendation strictly for clear error." Zaretsky v. Maxi-Aids, Inc., No. 10-CV-3771, 2012 WL 2345181, at *1 (E.D.N.Y. June 18, 2012) (internal quotation marks omitted); Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Merely referring the court to previously filed papers or arguments does not constitute an adequate objection"); see also Soley v. Wasserman, 823 F. Supp. 2d 221, 228 (S.D.N.Y. 2011). The district court is "permitted to adopt those sections of a magistrate judge's report to which no specific objection is made, so long as those sections are not facially erroneous." Batista v. Walker, No. 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July31, 1995) (Sotomayor, J.) (citation and internal quotation marks and brackets omitted).

Furthermore, even on de novo review of specific objections, the court "will not consider 'arguments, case law, and/or evidentiary material which could have been, but [were] not, presented to the magistrate judge in the first instance.'" Brown v. Smith, No. 09-CV-4522, 2012 WL 511581, at *1 (E.D.N.Y. Feb. 15, 2012) (quoting Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)).

DISCUSSION

The court presumes familiarity with the underlying facts and procedural history as set forth in more detail in the July 20, 2015 Report & Recommendation, in Judge Orenstein's February 21, 2013 Report and Recommendation, and in the court's prior order dated March 31, 2013 adopting Judge Orenstein's prior Report & Recommendation. (R & R at 2-3; ECF Nos. 66, Order Adopting R & Rd, dated 3/31/13, 61, Report and Recommendation, dated 2/21/13.)

Plaintiff raises three main objections to the following findings and recommendations: (1) plaintiff has no cognizable property interests in the rooms at 287 Franklin, and thus lacks standing to bring his claims in federal court; (2) plaintiff's alleged rights and cognizable property interest do not "stand or fall with the judgment of the Housing Court in the state evictionproceedings"; and (3) Defendant Powell is entitled to qualified immunity.² (See generally Pl. Objs.)

In support of his objections, plaintiff merely attempts to re-litigate arguments made in his prior submissions and thoroughly considered and addressed by Judge Orenstein in his R & R. For example, although plaintiff attempts to re-argue that RPAPL Sections 711 and 713 and New York Real Property Law ("NYRPL") Section 228 convey cognizable property rights, Judge Orenstein explicitly considered this argument in plaintiff's initial opposition briefing and concluded that "neither of the cited provisions confers any property right." (R & R at 6; see ECF No 52-1, Plaintiff's Memorandum of Law ("Pl. Mem.) at 10-12.) Plaintiff's repeated arguments that the R & R erred in construing RPAPL § 711, NYRPL § 228, and N.Y.C. Admin. Code 26-51, were also raised in plaintiff's last set of objections, and overruled by this court in its March 31, 2013 Order. (See Pl. Objs. § I(B); Pl. 3/6/13 Objs. at 27-32; Order dated 3/31/13 at 5-6.) Indeed, the "legal errors" that plaintiff points to are, as the court found previously, based on the same contentions that plaintiff proffered in his oppositions to the motions to dismiss (ECF No.51-1, at 26-29, nn.42-43 & 45, 35-36; ECF No. 52-1, at 10-13, 25-26; ECF No. 53-1, at 4-7, nn.7 & 9, 18-19), and his unsuccessful motion for a preliminary injunction (ECF No. 54-1, at 14-18, 25-26). (See Order dated 3/31/13 at 6.) Because the Appellate Term's judgment has no bearing on these arguments or Judge Orenstein's independent finding that RPAPL § 711, NYRPL § 228, and N.Y. City Admin. Code § 26-521 do not confer a cognizable property interest on plaintiff, a different outcome is not warranted.

Indeed, plaintiff's reliance on this court's ruling in Pelt v. City of New York, No. 11-CV-5633, 2013 WL 4647500 (E.D.N.Y. Aug. 28, 2013), for the proposition that RPAPL § 711 conveys a property interest is entirely misplaced. (Pl. Objs. § I(A).) In Pelt, the court dismissed plaintiff's Section 1983 claims and rejected plaintiff's argument that he had a property interest in the apartment from which he was evicted, as a licensee pursuant to RPAPL § 713(a). Although the court distinguished RPAPL § 711 from 713(a), and noted in a footnote that "by...