Tang v. Grossman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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HONG TANG,

Plaintiff,

MEMORANDUM & ORDER

- against - 19-CV-6099 (PKC) (PK)

JUSTIN P. GROSSMAN, in his individual and

official capacities (as City Marshal); NEW

YORK CITY DEPARTMENT OF

INVESTIGATION; and CITY OF NEW

YORK,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Hong Tang brings this action against New York City Marshal Justin P. Grossman,

along with the City of New York (the “City”) and the New York City Department of Investigation

(collectively the “City Defendants”), asserting various constitutional violations under 42 U.S.C.

§ 1983. (See generally Complaint (“Compl.”), Dkt. 1.) Before the Court are Defendant

Grossman’s and the City Defendants’ motions to dismiss. (Dkts. 17, 18.) For the reasons

discussed below, the Court grants Defendants’ motions to dismiss.

BACKGROUND1

I. Relevant Facts

Prior to October 6, 2016, Plaintiff rented an apartment in Manhattan. On October 6, 2016,

Defendant Grossman, in his capacity as New York City Marshal, served Plaintiff with a notice of

eviction. (Compl., Dkt. 1, at 5.) On October 13, 2016, the Appellate Term of the New York

1 For purposes of this motion, the Court assumes the truth of all non-conclusory allegations

in the Complaint. See Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424,

429 (2d Cir. 2012).

Supreme Court issued a temporary stay of that notice. (Id.; see also id. Ex. A, Dkt. 1, at ECF2 10.)

Defendant Grossman was served with notice of that stay, which lifted on October 27, 2016.

(Compl., Dkt. 1, at 5–6; id. Ex. B, Dkt. 1, at ECF 12.) Pursuant to the New York City Marshals

Handbook of Regulations (“Marshals Handbook”), “[t]he marshal must give the [tenant-

]respondent an additional notice of eviction where a Court order stays the eviction after service of

a notice of eviction and the stay later expires or is vacated, unless the Court specifically waives

the requirement of an additional notice[.]” (Compl. Ex. C, Dkt. 1, at ECF 15; see also Compl.,

Dkt. 1, at 6.) Rather than serving Plaintiff with an additional notice of eviction, however,

Defendant Grossman “took legal possession of the premises on November 3, 2016 by surprise,”

despite Plaintiff having “inform[ed] Defendant . . . that no additional notice of eviction had been

given yet and [that] an additional notice . . . [wa]s required by law and policy.” (Compl., Dkt. 1,

at 6.) Plaintiff alleges that Defendant Grossman’s failure to abide by the Marshals Handbook was

“a direct result of the failures of [the City Defendants] to provide adequate training, exercise

necessary supervision, and properly implement policies and internal process[.]” (Id.)

In his Complaint, Plaintiff asserts the following claims: (1) a claim against Defendant

Grossman pursuant to 42 U.S.C. § 1983 (“Section 1983”) for violation of Plaintiff’s due-process

and equal-protection rights (id. at 6); (2) a claim against the City Defendants pursuant to Monell v.

Dep’t of Soc. Servs., 436 U.S. 658 (1978) (id.); and (3) state-law claims against Defendant

Grossman, including (i) unlawful eviction under Real Property Actions & Proceedings Law § 853,

(ii) negligence, (iii) intentional infliction of emotional distress, (iv) negligent infliction of

2 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

emotional distress, (v) conversion, and (vi) trespass to chattels (id. at 6–7). Plaintiff seeks damages

and costs. (Id. at 7.)

II. Procedural History

Plaintiff filed the instant action on October 29, 2019. (See generally Compl., Dkt. 1.) On

April 10, 2020, Defendants filed pre-motion conference requests in connection with their

anticipated motions to dismiss (Dkts. 17, 18), which the Court construed as the motions themselves

(4/29/2020 Docket Order). Briefing in connection with the motions to dismiss was completed on

June 11, 2020. (See Dkts. 24, 27, 30.)

LEGAL STANDARD

I. Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure (“Rule”) 12(b)(1) provides for the dismissal of a claim

over which the Court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Where

jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of

fact by reference to evidence outside the pleadings, such as affidavits.” APWU v. Potter, 343 F.3d

619, 627 (2d Cir. 2003) (quoting LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir.1999)). “In that

case, the party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance

of the evidence that it exists.’” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d

239, 243 (2d Cir. 2014) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000));

see also Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)).

II. Federal Rule of Civil Procedure 12(b)(6)

To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (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.”

Id. (citing Twombly, 550 U.S. at 556). The plausibility standard “is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Id. (internal citation omitted). Determining whether a complaint states a plausible claim for relief

is “a context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 679 (internal citation omitted). In addressing a motion to dismiss, the court

should “draw all reasonable inferences in Plaintiffs’ favor, assume all well-pleaded factual

allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.”

Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and

citations omitted). However, a court is not bound to accept “conclusory allegations or legal

conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517 F.3d 140, 149 (2d

Cir. 2008) (internal quotation marks and citation omitted). A court may also consider certain

additional materials, including documents attached to the complaint as an exhibit or incorporated

in it by reference, matters of which judicial notice may be taken, and documents that are integral

to the complaint. See Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).

DISCUSSION

I. Pro se Litigants

Generally, complaints brought by pro se litigants are “held to less stringent standards than

formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal

quotation marks and citations omitted), and are construed liberally “to raise the strongest

arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.

2006) (internal quotation marks, citations, and emphasis omitted). Though Plaintiff is an attorney,

he argues that the Court should treat his Complaint as if it had been filed by a nonlawyer, as he is

proceeding pro se. (Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss (“Pl.’s

Opp.”), Dkt. 24, at 1.)

However, “pro se attorneys . . . typically ‘cannot claim the special consideration which the

courts customarily grant to pro se parties.’” Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d

Cir. 2001) (quoting Harbulak v. County of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981)); see also

Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“[T]he degree of solicitude may be lessened

where the particular pro se litigant is experienced in litigation and familiar with the procedural

setting presented . . . . [A] lawyer representing himself ordinarily receives no such solicitude at

all.” (internal citations omitted)); Fenner v. City of New York, No. 08–CV–2355 (BMC) (LB),

2009 WL 5066810, at *3 (E.D.N.Y. Dec. 21, 2009) (“It is well[-]settled in the Second Circuit that

since the reason for affording pro se litigants special deference is not present when the litigant is

an attorney, no special consideration is required.” (citations omitted)).

The Court will thus evaluate Plaintiff’s Complaint in accordance with regular pleading

standards rather than the deference afforded non-lawyer pro se litigants.

II. Claims Against Defendant Grossman

Plaintiff alleges that Defendant Grossman’s failure to serve a second notice of eviction

“deprived Plaintiff of rights of due process and equal protection[.]” (Compl., Dkt. 1, at 6.)

Defendant Grossman argues that (1) pursuant to the Rooker-Feldman doctrine, the Court lacks

subject matter jurisdiction to adjudicate any claim relating to his failure to serve a second notice

of eviction because the state court already denied this challenge; and (2) regardless of subject

matter jurisdiction, Plaintiff fails to state a claim. (Defendant Grossman’s Letter Motion to

Dismiss (“Grossman’s Mot.”), Dkt. 18, at 1–3.) “When a defendant moves to dismiss under Rule

12(b)(1) for lack of subject matter jurisdiction[] and also moves to dismiss on other grounds such

as Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the Court must

consider the Rule 12(b)(1) motion first.” Bobrowsky v. Yonkers Courthouse, 777 F. Supp. 2d 692,

703 (S.D.N.Y. 2011) (citing, inter alia, Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass’n, 896 F.2d 674,

678 (2d Cir. 1990)). The Court thus considers Defendant Grossman’s Rooker-Feldman argument

first.

1. Rooker-Feldman

The Rooker-Feldman doctrine, which has grown out of Rooker v. Fidelity Tr. Co., 263 U.S.

413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), provides

that “federal district courts lack jurisdiction over cases that essentially amount to appeals of state

court judgments.” Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014)

(citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283–84 (2005)). “‘The

Rooker-Feldman doctrine merely recognizes that 28 U.S.C. § 1331 is a grant of original

jurisdiction, and does not authorize district courts to exercise appellate jurisdiction over state-court

judgments,’ a power reserved exclusively to the Supreme Court.” Gribbin v. N.Y. State Unified

Court Sys., — F. App’x —, 2021 WL 864701, at *1 (2d. Cir. Mar. 9, 2021) (summary order)

(quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 644 n.3 (2002)). In

Hoblock v. Albany County Board of Elections, the Second Circuit clarified the four requirements

for application of the Rooker-Feldman doctrine as follows:

First, the federal-court plaintiff must have lost in state court. Second, the plaintiff

must complain of injuries caused by a state-court judgment. Third, the plaintiff

must invite district court review and rejection of that judgment. Fourth, the state-

court judgment must have been rendered before the district court proceedings

commenced—i.e., Rooker-Feldman has no application to federal-court suits

proceeding in parallel with ongoing state-court litigation.

422 F.3d 77, 85 (2d Cir. 2005) (internal quotations and alterations omitted).

Defendant Grossman argues that Plaintiff is, in effect, challenging the state court landlord-

tenant judgment because Grossman executed the eviction warrant only because the Appellate Term

lifted the stay on the state judgment on October 27, 2016. Furthermore, Grossman points out that,

on November 3, 2016, after he executed the eviction without serving a second notice of eviction,

the state court denied Plaintiff’s request for an Order to Show Cause (“OSC”) restoring his

possession of the apartment. In his affidavit in support of an OSC,3 Plaintiff argued that an OSC

was warranted because “[t]he Marshal failed to serve/give an additional notice before eviction.”

(Ex. A, OSC, Dkt. 30, at ECF 3.) In denying the OSC application, the state court simply stated in

a handwritten notation that “[t]he Appellate Term denied respondent’s motion for a stay on

10/27/2016.” (Id. at ECF 2.) Thus, Grossman argues, because “Plaintiff’s alleged injury did not,

and would not, exist absent the [landlord-tenant] [j]udgment and the denial of the OSC to Restore,”

“Plaintiff’s claim cannot succeed unless this Court were to determine that Plaintiff was entitled to

be restored to possession of the Premises” and is thus barred by Rooker-Feldman. (Defendant

Grossman’s Reply in Support of Motion to Dismiss (“Grossman’s Reply”), Dkt. 28, at 3.)

The Court disagrees. Plaintiff does not challenge or seek reversal of the state court

judgment of eviction or denial of the OSC to reinstate possession. Instead, he challenges

Defendant Grossman’s alleged failure to adhere to proper procedures while carrying out the state

court judgment. That the alleged procedural defect occurred while carrying out the state court

judgment does not mean the state court judgment caused the challenged defect.4 See McKithen v.

3 As previously discussed, “[a]lthough courts are generally limited to examining the

sufficiency of the pleadings on a motion to dismiss [pursuant to Rule 12(b)(6)], ‘on a challeng[e]

[to] the district court’s subject matter jurisdiction [pursuant to Rule 12(b)(1)], the court may

resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings.’” Flores

v. S. Peru Copper Corp., 414 F.3d 233, 255 n.30 (2d Cir. 2003) (quoting Filetech S.A. v. France

Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998)).

4 Defendant Grossman also argues that “his actions were produced by the [landlord-tenant]

[a]ction and [were] inextricably inter[twined] with” that action (Grossman’s Mot., Dkt. 18, at 2),

thus justifying dismissal of the instant action pursuant to language in Feldman, which stated that

the federal court “is in essence being called upon to review the state court decision” when the

constitutional claims presented to the federal court “are inextricably intertwined with the state

Brown, 481 F.3d 89, 98 (2d Cir. 2007) (“[T]he applicability of the Rooker-Feldman doctrine turns

not on the similarity between a party’s state-court and federal-court claims (which is, generally

speaking, the focus of ordinary preclusion law), but rather on the causal relationship between the

state-court judgment and the injury of which the party complains in federal court.” (emphases in

original) (citing Hoblock, 422 F.3d at 87)). And because Defendant Grossman’s failure to serve a

second notice before executing the eviction was not an “action[] taken pursuant to a [state] court

order,” see Hoblock, 422 F.3d at 88, Plaintiff’s challenge of that deficiency is not barred from this

Court’s jurisdiction by Rooker-Feldman. See, e.g., Dorce v. City of New York, 460 F. Supp. 3d

327, 339 (S.D.N.Y. 2020) (“To the extent that the plaintiffs . . . claim that their injury was the

deprivation of process to which they were entitled, their procedural due process claims are not

barred by Rooker-Feldman . . . because their injuries were caused by the City’s failure to provide

notice of the action when the City commenced the [] proceedings, rather than by the state court

judgments themselves.”); Mortimer v. Wilson, No. 15-CV-7186 (KPF), 2020 WL 3791892, at *19

(S.D.N.Y. July 7, 2020) (“Although [plaintiff]’s claim may touch upon the [state court order], the

underlying cause of her alleged injury is [defendant]’s failure to give notice, and not the Order

itself.”); Ezagui v. City of New York, 726 F. Supp. 2d 275, 290 (S.D.N.Y. 2010) (“Here, Plaintiff

does not complain of an injury caused by a state court judgment; instead, he complains of an injury

caused by Defendants’ failure to give him notice of his due process rights[.]”).

Relatedly, that the state court declined to reinstate Plaintiff’s access to the premises after

he pointed out Defendant Grossman’s failure to serve a second notice of eviction (Ex. A, OSC,

court’s denial in a judicial proceeding of a particular plaintiff’s application[.]” 460 U.S. at 483

n.16. But, as the Second Circuit explained in Hoblock, relying on this “inextricably intertwined”

language has led lower courts to apply Rooker-Feldman too broadly, for the phrase “has no

independent content. It is simply a descriptive label attached to claims that meet the requirements”

of Rooker-Feldman. Hoblock, 422 F.3d at 87.

Dkt. 30, at ECF 2) provides no bar to the instant claim. The Court has considered whether the

instant action could be construed as challenging the state court’s denial of Plaintiff’s OSC

application and thus barred under Rooker-Feldman, and rejects that result. In his OSC application,

Plaintiff sought to restore possession of his apartment based on an alleged due-process violation;

here, he seeks damages pursuant to Section 1983 for that violation—a claim on which he can

prevail without a finding that the state court incorrectly denied the OSC. While Rooker-Feldman

precludes review of state-court judgments themselves, it does not preclude independent review of

an alleged violation for which the state court denied a remedy. The Second Circuit explained the

distinction this way in Hoblock:

Suppose a plaintiff sues his employer in state court for violating both state anti-

discrimination law and Title VII and loses. If the plaintiff then brings the same suit

in federal court, he will be seeking a decision from the federal court that denies the

state court’s conclusion that the employer is not liable, but he will not be alleging

injury from the state judgment. Instead, he will be alleging injury based on the

employer’s discrimination.

422 F.3d at 87–88. The subsequent federal action might be barred by ordinary preclusion

principles, but not by Rooker-Feldman. Id. at 88 n.6. The situation here is materially similar:

Plaintiff requested a remedy in his OSC application from the state court by way of repossession,

which was denied, and now he requests a remedy in a Section 1983 claim from this Court by way

of damages. As the Second Circuit held in Hoblock, “[t]he fact that the state court chose not to

remedy the injury does not transform the subsequent federal suit on the same matter into an appeal,

forbidden by Rooker-Feldman, of the state-court judgment.” Id. at 88.

Accordingly, the Court concludes that the present action presents an independent federal

claim against Defendant Grossman that averts dismissal for lack of jurisdiction under Rooker-

Feldman. However, as now discussed, it still must be dismissed for failure to state a claim under

Rule 12(b)(6).

2. Section 1983

Section 1983 “is not itself a source of substantive rights, but a method for vindicating

federal rights elsewhere conferred by those parts of the United States Constitution and federal

statutes that it describes.” Conklin v. County of Suffolk, 859 F. Supp. 2d 415, 438 (E.D.N.Y. 2012)

(quoting Baker v. McCollan, 443 U.S 137, 144 n.3 (1979)); accord Cornejo v. Bell, 592 F.3d 121,

127 (2d Cir. 2010). In order to maintain a civil rights action under Section 1983, a plaintiff must

allege two essential elements. First, the conduct challenged must have been “committed by a

person acting under color of state law.” Cornejo, 592 F.3d at 127 (quoting Pitchell v. Callan, 13

F.3d 545, 547 (2d Cir. 1994)); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)

(“[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private

conduct, no matter how discriminatory or wrongful.” (internal quotation marks and citation

omitted)). Second, the conduct complained of “must have deprived a person of rights, privileges,

or immunities secured by the Constitution or laws of the United States.” Cornejo, 592 F.3d at 127;

see also Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).

Defendant Grossman does not dispute that he was acting under color of state law when

effectuating Plaintiff’s eviction (see generally Grossman’s Mot., Dkt. 18; Grossman’s Reply, Dkt.

28), nor could he, see Schaer v. City of New York, No. 09-CV-7441 (CM) (MHD), 2011 WL

1239836, at *11 (S.D.N.Y. Mar. 25, 2011) (“The position of City Marshal exists only because it

was created by state law. That law gives City Marshals the power to carry out certain state

functions that private citizens are not allowed to perform. . . . [E]nforcing the traffic laws and civil

judgments are quintessentially state functions.”). He does argue, however, that Plaintiff has failed

to state a claim for any violation of his substantive due process, procedural due process, or equal

protection rights. The Court agrees, and dismisses Plaintiff’s Section 1983 claim against

Defendant Grossman pursuant to Rule 12(b)(6).

a. Substantive Due Process

“[T]he touchstone of due process is protection of the individual against arbitrary action of

government.” Weisshaus v. Cuomo, — F. Supp. 3d —, 2021 WL 103481, at *11 (E.D.N.Y. Jan.

11, 2021) (quoting City of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998)). To bring a

substantive due process claim, a plaintiff must plead (1) the deprivation of a constitutional right,

and (2) state action that “was so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.” Hurd v. Fredenburgh, 984 F.3d 1075, 1087 (2d Cir. 2021) (quoting

Southerland v. City of New York, 680 F.3d 127, 151 (2d Cir. 2012)). The failure to serve a second

notice of eviction may constitute negligence, but does not arise to the level of being “so egregious,

so outrageous, that it may fairly be said to shock the contemporary conscience.” See Velez v. Levy,

401 F.3d 75, 93 (2d Cir. 2005) (internal quotation marks and citation omitted); see also Lewis, 523

U.S. at 849 (“[L]iability for negligently inflicted harm is categorically beneath the threshold of

constitutional due process.”). Plaintiff thus fails to allege a claim under substantive due process.

b. Procedural Due Process

“To prevail on a procedural due process claim, a plaintiff must (1) ‘identify a property

right,’ (2) ‘show that the state has deprived him of that right,’ and (3) ‘show that the deprivation

was effected without due process.’” Tang v. Visnauskas, — F. App’x —, 2021 WL 688293, at *1

(2d Cir. Feb. 23, 2021) (summary order) (quoting Mehta v. Surles, 905 F.2d 595, 598 (2d Cir.

1990)). Where, as here, the alleged “state conduct in question is random and unauthorized, the

state satisfies procedural due process requirements so long as it provides meaningful post-

deprivation remedy.” Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006)

(citing Hellenic Am. Neighborhood Action Comm. (“HANAC”) v. City of New York, 101 F.3d 877,

880 (2d Cir. 1996)); see also id. at 466 (noting that “random and arbitrary” state conduct is distinct

from conduct “pursuant to established state procedures”).

The Court finds that the New York State provides an adequate remedy to Plaintiff’s

claimed deprivation. In New York, tenants are protected “by the continuing jurisdiction of the

Civil Court over the landlord/tenant disputes.” Stern v. Regency Towers, LLC, 886 F. Supp. 2d

317, 323–24 (S.D.N.Y. 2012) (citing Matter of Brusco v. Braun, 84 N.Y.2d 674, 681–82 (1994)).

The factual account in Plaintiff’s Complaint lacks detail regarding the lead-up to Defendant

Grossman’s service of the notice of eviction, but the Court infers from Plaintiff’s references to

“the final judgment and warrant of eviction,” and the Appellate Term’s involvement (see Compl.,

Dkt. 1, at 5) that the judgment of eviction was obtained pursuant to “state court proceedings in

which [Plaintiff] was given [an] opportunity to contest, and did contest, the legality of his

eviction,” Stern, 886 F. Supp. 2d at 324.5 Importantly, “the Civil Court may, in appropriate

circumstances, vacate the warrant of eviction and restore the tenant to possession even after the

warrant has been executed.” Id. (emphasis in original) (quoting Matter of Brusco, 84 N.Y.2d at

681–82). Indeed, Plaintiff had made use of the state-court remedies throughout the eviction

process, including when he requested and obtained from the Appellate Term a stay of his eviction.

(See Compl., Dkt. 1, at 5–6; see also id. Ex. 1, Dkt. 1, at ECF 10.) The Court sees no reason why

5 Though the Court relies on only facts presented in the pleadings when making this

inference in evaluating the instant motions to dismiss, Defendants’ briefing is consistent with this

conclusion. (See Grossman’s Mot., Dkt. 18, at 1 (noting that Plaintiff “lost a series of motions, a

trial, and at least two appeals” in the landlord-tenant action); City Defendants’ Motion, Dkt. 17, at

1 (“This action stems from a 2016 Warrant of Eviction that was issued by the New York Civil

Court-Housing Court directing that a New York City Marshal evict Plaintiff from his

apartment.”).)

Plaintiff could not have continued using the state-court remedies following the execution of the

eviction warrant.6,7

Because “Plaintiff does not allege that the state procedures in place, if strictly complied

with, would be insufficient due process under the Fourteenth Amendment,” his procedural due

process claim is dismissed for failure to state a claim. See Terio v. Johann, No. 05-CV-5918

(RPP), 2006 WL 2819659, at *7 (S.D.N.Y. Sept. 29, 2006) (dismissing, inter alia, procedural due

process claim), aff’d, 257 F. App’x 374 (2d Cir. 2007).

c. Equal Protection

To bring an equal protection claim, Plaintiff must plead “that he was treated differently

than others similarly situated as a result of intentional or purposeful discrimination . . . [and] that

the disparity in treatment cannot survive the appropriate level of scrutiny[.]” Phillips v. Girdich,

408 F.3d 124, 129 (2d Cir. 2005) (citations omitted). Plaintiff fails to allege that he was treated

differently from similarly situated individuals as a result of discrimination, and thus cannot bring

an equal-protection claim.

Therefore, Plaintiff’s Section 1983 claim against Defendant Grossman is dismissed for

failure to state a claim, and because the Court has dismissed Plaintiff’s federal claim against

6 The Court does not consider information outside the pleadings when granting Defendant

Grossman’s Rule 12(b)(6) motion, but notes that Plaintiff in fact exercised this post-deprivation

remedy when he made an application for an OSC to restore possession on the same day the warrant

was executed. (See Ex. A, OSC, Dkt. 30, at ECF 3.) That Plaintiff’s use of state procedures was

ultimately unsuccessful does not mean the procedures themselves were inadequate.

7 The Court further notes that an alternative state remedy may have been available to

Plaintiff through an Article 78 proceeding. See Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 234

(2d Cir. 2002) (“This court has ‘held on numerous occasions’ that where, as here, a party sues the

state and its officials and employees for the arbitrary and random deprivation of a property or

liberty interest, ‘an Article 78 proceeding is a perfectly adequate postdeprivation remedy.’”

(quoting HANAC, 101 F.3d at 880–81)).

Defendant Grossman, the Court declines to exercise supplemental jurisdiction over Plaintiff’s

state-law claims against Grossman. See Liverpool v. City of New York, No. 19-CV-5527 (CM),

2019 WL 3745734, at *3 n.2 (S.D.N.Y. Aug. 7, 2019) (“Under 28 U.S.C. § 1367(c)(3)[,] a district

court may decline to exercise supplemental jurisdiction over state-law claims when it has

dismissed all claims over which it has original jurisdiction.” (internal quotations omitted)). The

state-law claims are thus dismissed without prejudice to being brought in state court.8

III. Monell Claim Against the City Defendants

A municipality can be liable under Section 1983 if the plaintiff can show that a municipal

policy or custom caused the deprivation of his constitutional rights. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690–91 (1978). Four types of practices may give rise to a Section 1983 claim

against a municipality:

(1) a formally adopted municipal policy; (2) the actions or decisions

of a municipal official with final policymaking authority; (3) a

practice so persistent and widespread that it constitutes a custom or

usage; and (4) a failure by official policy-makers to properly train

or supervise subordinates to such an extent that it amounts to

deliberate indifference.

8 In his opposition to Defendants’ motions to dismiss, Plaintiff requests the Court “to

convert the basis for jurisdiction for the state[-]law claims for this suit from 28 U.S.C. § 1367 to

28 U.S.C. § 1332” because Plaintiff “is a foreign citizen (citizen of [a] foreign state).” (Pl.’s Opp.,

Dkt. 24, at 6.) The Court denies that request. Besides citing no authority suggesting the Court

may entertain such requests to “convert the basis for jurisdiction,” Plaintiff fails to establish that

the Court would have had diversity jurisdiction even had it been invoked in the Complaint. He

alleges no facts in either his Complaint or opposition to Defendants’ motions to dismiss

“demonstrating that complete diversity of citizenship exists between all parties to the action,” so

the Court cannot determine the existence of diversity jurisdiction. See Obstfeld v. Schwartz, 621

F. Supp. 2d 87, 93 (S.D.N.Y. 2008) (citing Advani Enterprises, Inc. v. Underwriters at Lloyds, 140

F.3d 157 (2d Cir. 1998)); see also Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010) (“The burden of

persuasion for establishing diversity jurisdiction, of course, remains on the party asserting it.”

(citation omitted)).

Doe v. City of New York, No. 18-CV-670 (ARR) (JO), 2018 WL 3824133, at *8 (E.D.N.Y. Aug.

9, 2018) (internal quotation marks and citation omitted); see also Safran v. Singas, No. 20-CV-

4537 (PKC) (SMG), 2020 WL 7125232, at *4 (E.D.N.Y. Dec. 4, 2020). Critically, “a prerequisite

to municipal liability under Monell is an underlying constitutional violation by a state actor.”

Henry-Lee v. City of New York, 746 F. Supp. 2d 546, 567 (S.D.N.Y. 2010); see also Segal v. City

of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Monell does not provide a separate cause of

action for the failure by the government to train its employees; it extends liability to a municipal

organization where that organization’s failure to train, or the policies or customs that it has

sanctioned, led to an independent constitutional violation.”).

As discussed above, Plaintiff fails to establish a constitutional violation by any state actor,

which dooms his Monell claim. Furthermore, even if he had sufficiently alleged an underlying

constitutional violation, his Monell claim would fail. The entirety of Plaintiff’s claims against the

City Defendants consists of the following statement:

[Plaintiff’s] injuries are [] unlawfully caused by the policy and customs of [the City

Defendants]. Defendant [] Grossman’s ignoring and being ignorant of law and

policy is a direct result of the failures of [the City Defendants] to provide adequate

training, exercise necessary supervision, and properly implement policies and

internal process to ensure the city marshal [] comply with the legal and policy

requirements as to an eviction . . . and thus all three [D]efendants are liable for the

damages.

(Compl., Dkt. 1, at 6.)

Plaintiff’s “boilerplate assertions” are plainly insufficient to state a Monell claim.9 See

Dumel v. Westchester County, No. 19-CV-2161 (KMK), 2021 WL 738365, at *6 (S.D.N.Y. Feb.

9 The failure to train employees “may constitute an official policy or custom if the failure

amounts to ‘deliberate indifference’ to the rights of those with whom the city employees interact.”

Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (citing City of Canton v. Harris, 489

U.S. 378, 388 (1989)). To establish deliberate indifference with respect to failure to provide

training or necessary supervision, a plaintiff must establish that: (1) “a policymaker knows to a

moral certainty that city employees will confront a particular situation”; (2) “the situation either

25, 2021) (collecting cases); Triano v. Town of Harrison, 895 F. Supp. 2d 526, 540 (S.D.N.Y.

2012) (same); Bradley v. City of New York, No. 08-CV-1106 (NGG), 2009 WL 1703237, at *3

(E.D.N.Y. June 18, 2009) (“The Complaint’s conclusory, boilerplate language—that the City

fail[ed] to adequately train, discipline, and supervise employees and fail[e]d to promulgate and put

into effect appropriate rules and regulations applicable to the duties and behavior of its

employees—is insufficient to raise an inference of the existence of a custom or policy.” (internal

quotation marks and citations omitted)).10 Plaintiff’s Monell claims against the City Defendants

are thus dismissed.11

presents the employee with a difficult choice of the sort that training or supervision will make less

difficult or there is a history of employees mishandling the situation”; and (3) “the wrong choice

by the city employee will frequently cause the deprivation of a citizen’s constitutional rights.” Id.

at 195–96 (internal quotation marks and citations omitted). Plaintiff clearly fails to plead these

elements.

10 In addition to arguing that he has sufficiently pleaded a Monell claim, Plaintiff states

that, during discovery, he will request records relating to “any administrative complaints filed with

the [City Defendants] involving the issues of the proper and adequate service[] of notices of

eviction[.]” (Pl.’s Opp., Dkt. 24, at 6.) However, as the City Defendants correctly note, subsequent

discovery does not cure an otherwise inadequate pleading. See Ashcroft, 556 U.S. at 678–79

(“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.”).

11 The Court further notes that Plaintiff’s claims against the Department of Investigation

must also be dismissed on the ground that it is not suable as an agency of the City of New York.

See N.Y.C. Charter § 396 (“[A]ll actions and proceedings for the recovery of penalties for the

violation of any law shall be brought in the name of the city of New York and not in that of any

agency, except where otherwise provided by law.”); Davis v. N.Y.C. Dep’t of Corr., No. 17-CV-

3863 (MKB), 2017 WL 5634123, at *2 (E.D.N.Y. Nov. 22, 2017) (dismissing claims against, inter

alia, the Department of Investigation (citing N.Y.C. Charter, § 396)); Artec Constr. & Dev. Corp.

v. N.Y.C. Dep’t of Hous. Pres. & Dev., No. 15-CV-9494 (KPF), 2017 WL 782911, at *4 (S.D.N.Y.

Feb. 27, 2017) (same).

CONCLUSION

For the foregoing reasons, Plaintiff’s Complaint is dismissed in its entirety. The Clerk of

Court is respectfully directed to enter judgment and close this case.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: March 22, 2021

Brooklyn, New York